COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71723 MICHELLE HUNTER, ET AL. : : JOURNAL ENTRY Plaintiff-Appellees : : AND vs. : : OPINION ARCHIE HARRISON : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 18, 1997 CHARACTER OF PROCEEDING: Civil appeal from Juvenile Court Division Case No. 9171000 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellees: TIMOTHY G. SPACKMAN, Assistant County Prosecuting Attorney 1910 Carnegie Avenue, Second Floor Cleveland, Ohio 44115 For Defendant-Appellant: R. DALE YUROVICH 5 East Long Street, Suite 100 Columbus, Ohio 43215 2 O'DONNELL, J.: Archie Harrison appeals from a judgment of the Cuyahoga County juvenile court denying his motion to vacate its earlier judgment finding him to be the putative father of Anthony Marcus Hunter, the minor child of Michelle Hunter, born May 26, 1984. For the reasons which follow, we affirm the judgment of the juvenile court. The record reveals that on March 29, 1991, Michelle Hunter, her minor child Anthony, and the Cuyahoga County Department of Human Services filed a paternity action against Harrison asserting him to be Anthony's natural father. Consequently, the court ordered Harrison to submit to two separate genetic tests which reflected the probability of paternity at 99.01% and 99.98%, respectively,and both tests determined that Harrison could not be excluded as the biological father of Anthony. The court tried the case on August 18, 1993, found Harrison to be the father of Anthony Hunter, and ordered him to pay child support based upon both the results of the genetic tests and his admission at trial that he had engaged in sexual relations with Michelle Hunter. On September 28, 1993, Harrison filed a motion asking the court to consider the additional evidence that his identical twin brother, Arthur Harrison, had admitted to having sexual relations with Michelle Hunter during the months of June, July, and August, 1983, and further urging that this evidence should have been presented at trial. Harrison attached to his motion both an 3 affidavit signed by his twin brother, Arthur, admitting that he had a sexual relationship with Hunter and the results of a DNA test which determined the probability of identity between brothers to be 99.92%. About two months later, on November 30, 1993, Harrison filed a motion for a new trial and for stay of execution based upon this newly discovered evidence. On April 13, 1994, the juvenile court denied both motions, finding that the evidence regarding Arthur Harrison did not constitute newly discovered evidence since it could have been discovered before trial, and that Harrison had failed to use reasonable diligence to join his brother as a party during the pendency of the paternity action. On May 5, 1994, Harrison then appealed the ruling of the juvenile court finding him to be the putative father of the minor child and the denial of the motion for a new trial. He raised three assignments of error, arguing first that the judgment was against the manifest weight of the evidence; second, that he had been denied effective assistance of counsel; and third, that the trial court erred in denying his motion to consider newly discovered evidence and in denying him a new trial. Our court affirmed the judgment of the trial court on March 30, 1995, determining, in part, that the juvenile court did not abuse its discretion in denying Harrison's motions because the new evidence would have been discoverable with due diligence. Following our affirmance, Harrison then filed another motion in juvenile court seeking to vacate the same trial court judgment, arguing that the trial court lacked jurisdiction alleging the 4 absence of an indispensable party, his twin brother, Arthur. On November 1, 1996, the juvenile court denied that motion. Harrison now appeals from that denial and assigns one error for our review: THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO VACATE VOID JUDGMENT WHEN THE TRIAL COURT'S JUDGMENT WAS RENDERED WITHOUT A PRESUMED FATHER BEING JOINED AS A PARTY AS STATUTORILY MANDATED. Here, Harrison contends that the trial court erred in denying his motion to vacate because R.C. 3111.07 mandates that all presumed fathers be joined as parties in paternity actions, and Arthur is a presumed father of the minor pursuant to R.C. 3111.03. Appellees argue the trial court did not err because Harrison, himself, failed to join his brother Arthur and has therefore waived joinder, and further suggesting Harrision should not be allowed to reappeal the issue of newly discovered evidence because our court previously considered and rejected that argument. We shall therefore initially consider whether appellant is collaterally estopped from relitigating this issue based upon our earlier decision in Hunter v. Harrison (March 30, 1995), Cuyahoga App. No. 67287, unreported. The Ohio Supreme Court stated in Goodson v. McDonough Power Equip., Inc. (1983), 2 Ohio St.3d 193, in its syllabus: 1. In Ohio, the general rule is that mutuality of parties is the requisite to collateral estoppel, or issue preclusion. As a general principal, 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. 5 The Supreme Court further explained in Thompson v. Wing (1994), 70 Ohio St.3d 176, at 183: Collateral estoppel (issue preclusion) prevents parties or their privies from relitigating facts and issues in a subsequent suit that were fully litigated in a prior suit. Collateral estoppel applies when the fact or issue (1) was actually and directly litigated in the prior action, (2) was passed upon and determined by a court of competent jurisdiction, and (3) when the party against whom collateral estoppel is asserted was a party in privity with a party to the prior action. Harrison seeks another review of his twin brother's sexual relationship with Hunter and raises the issue of joinder. In the former appeal of this case, our court affirmed the denial of Harrison's motions, concluding: Archie based his motion on Arthur's affidavit averring that he had sexual intercourse with Michelle around the time of Anthony's conception and that he had not been asked to testify. We find no abuse of discretion by the trial court in denying Archie's motion. The evidence was discoverable with due diligence. Hunter v. Harrison (March 30, 1995), Cuyahoga App. No. 67287, unreported, at 6. Thus, we conclude that this issue has been previously litigated in a prior action, has been passed upon by a court of competent jurisdiction, and a mutuality of parties exists in both instances, satisfying the test set forth in Thompson v. Wing, supra. Accordingly, having raised the issues of new evidence and joinder in his motions for consideration of evidence and for new trial which the juvenile court considered and denied and our court affirmed on appeal, Harrison is collateral estopped from relitigating and reappealing this issue. Therefore, the judgment of the juvenile court is affirmed. 6 Judgment affirmed. 7 It is ordered that appellee recover of appellant its 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 Juvenile 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. MATIA, P.J., and NAHRA, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .