COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59187 WILLETTA CRILE, ET AL. : : PLAINTIFFS-APPELLANTS : JOURNAL ENTRY : v. : AND : THOMAS W. HALL, PH.D., ET AL. : OPINION : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 24, 1991 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. 162862. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants Joseph Bancsi, Esq. Willetta Crile, et al.: 19915 Lake Road Rocky River, OH 44116 For Defendant-Appellee George W. Stuhldreher, Esq. Thomas W. Hall, PH.D.: 6th Floor Bulkley Building 1501 Euclid Avenue Cleveland, OH 44115 Richard J. McGraw, Esq. 2150 Illuminating Building Cleveland, OH 44114 For Appellee Barbara Hall: James M. Wilsman, Esq. 800 National City E. 6 Bldg. Cleveland, OH 44114 For Appellee Gerald Buckley: Robert G. Quandt, Esq. James E. Powell 800 Leader Building Cleveland, OH 44114 -2- MATIA, P.J.: Plaintiffs-appellants, Willetta Crile and Sokratis Taki Frantzis (the son of Willetta Crile) appeal from the judgment of the Cuyahoga County Court of Common Pleas, General Division, which granted summary judgment on behalf of the defendants- appellees, Thomas W. Hall, Barbara Hall and Gerald Buckley. It should be noted that this appeal involves the application of the doctrine of collateral estoppel in a manner which has not previously been addresed within this jurisdiction. The appellants' appeal is not well taken. I. THE FACTS A. THE DIVORCE PROCEEDINGS WHICH INVOLVED ALL PARTIES In March of 1985, a complaint for divorce was filed in the Domestic Relations Division of the Cuyahoga County Court of Common Pleas by appellee-Barbara Hall who was acting as attorney for R. Hunter Crile, the husband of appellant-Willetta Crile. During the course of the divorce proceedings, it was discovered that appellee-Gerald Buckley, a social worker, was providing counseling services for the benefit of appellant-Sokrates Taki Frantzis. It was also discovered that appellee-Thomas W. Hall, a licensed psychologist and the husband of appellee-Barbara Hall, was the individual who supervised appellee-Gerald Buckley with regard to the counseling services provided to appellant-Sokratis Taki Frantzis. -3- B. THE MOTION TO DISQUALIFY APPELLEE-BARBARA HALL AS ATTORNEY- OF-RECORD As a result of the discovery of the marriage relationship between appellee-Barbara Hall and appellee-Thomas Hall, the appellant-Willetta Crile filed a motion to disqualify appellee- Barbara Hall as attorney-of-record for R. Hunter Crile in relation to the pending divorce proceedings. The motion to disqualify was based upon the allegation that the social worker, appellee-Gerald Buckley, had passed confidential information concerning appellant-Sokrates Taki Frantzis to the supervising psychologist, appellee-Thomas Hall, who in turn passed the confidential information to his wife, appellee-Barbara Hall. Allegedly, appellant-Willetta Crile was prejudiced by the passing of the confidential information and that ethical violations had occurred as a result of the passing of the confidential information to appellee-Barbara Hall. C. TRIAL COURT DENIES MOTION TO DISQUALIFY ATTORNEY On December 3, 1987, the Domestic Relations Court denied the motion to disqualify as filed by appellant-Willetta Crile on the basis that no confidential information had been passed between appellee-Gerald Buckley, appellee-Thomas Hall and appellee- Barbara Hall which concerned appellant-Sokrates Taki Frantzis. It should be noted that the Domestic Relations Court's judgment, which denied the motion to disqualify of appellant-Willetta Crile, was affirmed in a decision rendered by this appellate -4- court in Crile v. Crile (June 28, 1990), Cuyahoga App. No. 57161, unreported. D. APPELLANTS' COMPLAINT AS FILED IN COURT OF COMMON PLEAS On January 6, 1989, the appellants filed a complaint in the Cuyahoga County Court of Common Pleas, General Division, which essentially alleged that appellee-Barbara Hall, appellee-Thomas Hall and appellee-Gerald Buckley had each breached ethical duties and applicable codes of professional conduct as a result of the passing of confidential information, with regard to appellant- Sokratis Taki Frantzis, between all three appellees. It should be noted that the basis of the appellants' complaint was identical to the issue of confidential information as presented with regard to the motion to disqualify appellee-Barbara Hall as attorney in the prior divorce action. E. APPELLEES' THREE MOTIONS FOR SUMMARY JUDGMENT Subsequent to the filing of the appellants' complaint, each of the three appellees filed a separate motion for summary judgment as based upon the non-existence of any genuine issues of material fact and the application of the doctrine of collateral estoppel. On January 3, 1990, the trial court granted the motions for summary judgment as filed by appellee-Barbara Hall and appellee-Gerald Buckley. Similarly, on January 5, 1990, the trial court granted the motion for summary judgment as filed by appellee-Thomas Hall. -5- F. THE APPELLANTS' TIMELY APPEAL Thereafter, the appellants timely brought the instant appeal from the judgment of the trial court which granted the appellees' three separate motions for summary judgment. II. THE APPELLANTS' SOLE ASSIGNMENT OF ERROR The appellants' sole assignment of error is that: "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR, AN ERROR AS A MATTER OF LAW, WHEN IT GRANTED DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT, SINCE, PURSUANT TO THE STANDARD SET FORTH IN OHIO CIVIL RULE 56: CONSTRUING THE EVIDENCE MOST STRONGLY IN FAVOR OF THE PLAINTIFFS- APPELLANTS, REASONABLE MINDS CAN COME TO MORE THAN ONE CONCLUSION AS TO THE FACTS, CREATING GENUINE ISSUES OF FACT IN THIS CAUSE." A. ISSUE RAISED: GENUINE ISSUES OF MATERIAL FACT PREVENTED THE TRIAL COURT FROM GRANTING THE APPELLEES' MOTIONS FOR SUMMARY JUDGMENT The appellants, in their sole assignment of error, argue that the trial court erred in granting the three motions for summary judgment as filed by appellee-Barbara Hall, appellee- Thomas Hall and appellee-Gerald Buckley. Specifically, the appellants argue that genuine issues of material fact existed as to whether confidential information concerning Sokrates Taki Frantzis had been passed between the appellees thus resulting in prejudice to the appellants. The appellants' sole assignment of error is not well taken. B. CIV. R. 56(C) AND A MOTION FOR SUMMARY JUDGMENT Civ. R. 56(C), which establishes the standard upon which a trial court may grant a motion for summary judgment, provides that: -6- "*** Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. ***" C. STANDARD OF REVIEW FOR A MOTION FOR SUMMARY JUDGMENT AS SET FORTH BY SUPREME COURT OF OHIO With regard to the granting of a motion for summary judgment, the Supreme Court of Ohio, in Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St. 2d 1, established that: "'Summary judgment is a procedural device to terminate litigation and to avoid a formal trial where there is nothing to try. It must be awarded with caution, resolving doubts and construing evidence against the moving party, and granted only when it appears from the evidentiary material that reasonable minds can reach only an adverse conclusion as to the party opposing the motion. Petroff v. Commercial Motor Freight, Inc. (1960), 82 Ohio Law Abs. 433; Horvath v. Fisher foods, Inc. (1963), 93 Ohio Law Abs. 182; Norman v. Thomas Emery's Sons, Inc. (1966), 7 Ohio App. 2d 41; Morris v. First Natl. Bank & Trust Co. (1970), 21 Ohio St. 2d 25. A successful motion for summary judgment rests on the two-part foundation that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Kwait v. John David Management Co. (1974), 42 Ohio App. 2d 63.' -7- Vetovitz Bros., Inc. v. Kenny Constr. Co. (1978), 60 Ohio App. 2d 331, 332." In addition, the Supreme Court of Ohio, in Mitseff v. Wheeler (1988), 38 Ohio St. 3d 112, established that a party opposing a motion for summary judgment may not rest upon the allegations or denials of his pleadings but must affirmatively demonstrate the existence of genuine issues of material fact. "It should be noted that placing the above-mentioned requirements on the moving party does not mean the non-moving party bears no burden. Requiring that the moving party provide specific reasons and evidence gives rise to a reciprocal burden of specificity for the non-moving party. Civ. R. 56(E) provides in part: 'When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.' Rather than eliminate the non-moving party's burden, the requirement that the moving party, here appellee, be specific in his reasons for requesting summary judgment provides the non-moving party with the information needed to formulate an appropriate response as required by Civ. R. 56((E)." Mitseff v. Wheeler, supra, at 115. D. NO GENUINE ISSUE OF MATERIAL FACT EXISTED FOR THE TRIER OF FACT In the case sub judice, a review of the evidentiary material contained in the record before this court clearly demonstrates that reasonable minds could only reach a conclusion which was adverse to the appellants who were opposing the appellees' motions for summary judgment. A review of the pleadings, depositions, answers to interrogatories, written -8- admissions, affidavits and transcripts of evidence in the present appeal demonstrates that the appellees were entitled to summary judgment as a matter of law since no genuine issues of material fact existed as to whether confidential information concerning the treatment and counseling of Sokrates Taki Frantzis had been passed between the appellees. The appellants through their brief in opposition to the three motions for summary judgment did not produce one scintilla of evidence which demonstrated the passing of confidential information. The affidavit of appellant-Willetta Crile, which alleged that "affiant not only believed and believes that impropriety occurred" was not sufficient to create a genuine issue of material fact nor was the allegation of "pillow talk" between appellee-Barbara Hall and appellee-Thomas Hall sufficient to create a genuine issue of material fact. Thus, the trial court properly granted the appellees' three motions for summary judgment. E. DOCTRINE OF COLLATERAL ESTOPPEL REQUIRED GRANTING OF MOTIONS FOR SUMMARY JUDGMENT Further review of the record demonstrates that the application of the doctrine of collateral estoppel mandated that the trial court grant the appellees' three motions for summary judgment. F. ELEMENTS OF COLLATERAL ESTOPPEL The Supreme Court of Ohio, in Goodson v. McDonough Power Equip., Inc. (1983), 20 Ohio St. 3d 193, examined the doctrine of collateral estoppel as applicable in Ohio and held that: -9- "In Ohio, the general rule is that mutuality of parties is a requisite to collateral estoppel, or issue preclusion. As a general principle, collateral estoppel operates only where all of the parties to the present proceeding were bound by the prior judgment. A judgment, in order to preclude either party from relitigating an issue, must be preclusive upon both. A prior judgment estops a party, or a person in privity with him, from subsequently relitigating the identical issue raised in the prior action. (Paragraph two of the syllabus in Whitehead v. Genl. Tel. Co. of Ohio, 20 Ohio St. 2d 108 [49 O.O.2d 435], and the syllabus of Trautwein v. Sorgenfrei, 58 Ohio St. 2d 493 [12 O.O.3d 403], approved and followed.)" Goodson v. McDonough Power Equip., Inc., supra, paragraph one of the syllabus. G. MUTUALITY OF PARTIES IS WAIVABLE UNDER CERTAIN CONDITIONS The Supreme Court of Ohio, in Goodson, however, opined that the general rule of mutuality of parties as a requisite to the application of collateral estoppel is waivable "upon the basis of serving justice within the framework of sound public policy." "This cause occasions the review and analysis of one aspect of the doctrine of res judicata, that of collateral estoppel, as it has been applied in Ohio, and whether the traditional general rules as previously enunciated and followed should be applied to cases involving claims of product defective design. Collateral estoppel within the context of res judicata has been explained by this court to be preclusion of the relitigation in a second action of an issue or issues that have been actually and necessarily litigated and determined in a prior action. Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St. 2d 108 [49 O.O.2d 435]. "Case law in Ohio concerning the general doctrine of res judicata has long ago established the general principle that -10- material facts or questions which were in issue in a former suit, and were there judicially determined by a court of competent jurisdiction, are conclusively settled by a judgment therein so far as concerns the parties to the action and persons in privity with them. "As a requisite factor in the application of the principle of issue preclusion within the doctrine of res judicata, Ohio cases over the years in like manner have consistently held to the effect that a judgment can operate as collateral estoppel only where all of the parties to the proceeding in which the judgment is relied upon were bound by the judgment. Expressions are found within the cases that the record of a judgment, in order to preclude either of the party litigants, must be preclusive upon both. The operation of the rule must be mutual. If a judgment cannot be effective as res judicata against a particular person, he cannot avail himself of the adjudication and contend that it is available against others, as between them and himself. Therein lies the general rule of mutuality of estoppel which has long been applied by this court and other courts in Ohio. *** "The principles involved within this consideration have been well expressed in the legal commentary in 46 American Jurisprudence 2d 569-570, Judgments, Section 402, as follows: "'The doctrine of res judicata may be said to adhere in legal systems as a rule of justice. Hence, the position has been taken that the doctrine of res judicata is to be applied in particular situations as fairness and justice require, and that it is not to be applied so rigidly as to defeat the ends of justice or so as to work an injustice. "'*** "'Underlying all discussion of the problem must be the principle of fundamental fairness in the due process sense. It has accordingly been adjudged that the public -11- policy underlying the principle of res judicata must be considered together with the policy that a party shall not be deprived of a fair adversary proceeding in which to present his case. ***' "Upon a considered review of the arguments presented, as well as available cases and comment on the subject, we conclude that the principle of mutuality as a prerequisite to the application of collateral estoppel, as applied in this state, recognizing the need in certain instances for the flexibility and exceptions to such rule, has been responsive to the conflicting principles of due process and judicial economy. We therefore opt to adhere to such principle as a general proposition, while realizing that there may well be other cases in which there are presented additional exceptions which could be acceptable to this court upon the basis of serving justice within the framework of sound public policy. "Whether or not we, in the future, may conclude it to be advisable to adopt the nonmutuality rule as a general proposition, for the present we reaffirm our prior general stance that collateral estoppel may generally be applied only when the party seeking to use the prior judgment and the party against whom the judgment is being asserted were parties to the original judgment or in privity with those parties." (Emphasis added.) Goodson v. McDonough Power Equip., Inc., supra, at 195. H. APPELLATE DECISION OF HAMILTON COURT OF APPEALS AND DOCTRINE OF COLLATERAL ESTOPPEL The Supreme Court of Ohio, since the decision of Goodson, has not taken the opportunity to reexamine the issue of mutuality and the doctrine of collateral estoppel. The Court of Appeals for Hamilton County, has however, accepted the limited exception of the "offensive" use of collateral estoppel in Monahan v. Eagle Picker Industries, Inc. (1984), 21 Ohio App. 3d 179: -12- "In order to assert collateral estoppel successfully, a party must plead and prove the following elements: "(1) The party against whom estoppel is sought was a party or in privity with a party to the prior action; "(2) There was a final judgment on the merits in the previous case after a full and fair opportunity to litigate the issue; "(3) The issue must have been admitted or actually tried and decided and must be necessary to the final judgment; and "(4) The issue must have been identical to the issue involved in the prior suit. "See Parklane Hosiery Co. v. Shore (1979), 439, U.S. 322, 326; Hicks v. De La Cruz (1977), 52 Ohio St. 2d 71, 745-75 [6 O.O.3d 274]. "Accordingly, where the identical issues raised by a plaintiff's state court complaint have been previously litigated in federal court, the doctrine of collateral estoppel precludes litigation of those same issues. Bahramian v. Murray (Oct. 26, 1983), Hamilton App. No. C-820870, unreported. See, also, Calhoun v. Supreme Court of Ohio (1978), 61 Ohio App. 2d 1 [15 O.O.3d 13]. In the instant case, the first two elements of collateral estoppel are plainly satisfied, because plaintiff was the same party in both the federal and state actions and there was obviously a final judgment in plaintiff's federal suit after a full opportunity to litigate. The focus of this court's analysis is therefore centered on the third and fourth elements, specifically as to whether there exists an identity of issues between the federal and state suits." Monahan v. Eagle Picker Industries, Inc., supra, at 180. -13- I. "OFFENSIVE" COLLATERAL ESTOPPEL REQUIRED GRANTING OF MOTIONS FOR SUMMARY JUDGMENT Upon review of the present appeal, this court finds that the application of the narrow exception of "offensive" collateral estoppel, which does not require a mutuality of parties, is mandated. Herein, the appellants' claim of the passing of confidential information between the appellees has been previously addressed by this Court of Appeals, the General Division of the Cuyahoga County Court of Common Pleas and the Domestic Relations Division of the Cuyahoga County Court of Common Pleas on at least four separate occasions. Clearly, the four part test as established by the Court of Appeals for Hamilton County is met: 1) the appellants, against whom "offensive" estoppel is sought, were parties in two prior actions; 2) there were final judgments on the merits in the two previous cases after a full and fair opportunity to litigate the issue of the passing of confidential information; 3) the issue of confidential information was actually tried and decided in the two prior cases and was necessary to the final judgments; and 4) the issue of confidential information was identical in all prior cases. The application of the narrow exception of the "offensive" collateral estoppel to the present appeal does not deny the appellants the principle of fundamental fairness and/or due process. To the contrary, public policy and the search for judicial economy requires the application of the narrow -14- exception. Therefore, based upon the "offensive" collateral estoppel exception, the trial court properly granted the appellees' three motions for summary judgment. Judgment affirmed. -15- It is ordered that appellees recover of appellants their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. JOHN F. CORRIGAN, J., and HARPER, J., CONCUR. DAVID T. MATIA PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .