COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72915 REBECCA L. CORRADI : : : : Plaintiff-Appellant : : : -vs- : JOURNAL ENTRY : AND : OPINION BEAR CREEK INVESTMENTS, ET AL. : : Defendants-Appellees : DATE OF ANNOUNCEMENT MAY 14, 1998 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Common Pleas Court Case No. CV-333097 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: Marc N. Silberman, Esq. Commerce Park Plaza 24700 Chagrin Blvd. Suite 200 Beachwood, Ohio 44122 For defendants-appellees: Thomas H. Barnard, Esq. Ulmer & Berne Bond Court Building 1300 East Ninth Street Suite 900 Cleveland, Ohio 44114 MICHAEL J. CORRIGAN, J.: Rebecca Corradi, plaintiff-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, General -2- Division, Case No. CV-333079, in which the trial court entered summary judgment in favor of Bear Creek Investments, et al., defendants-appellees. Plaintiff-appellant assigns two errors for this court's review. Plaintiff-appellant's appeal is not well taken. Columbus Park Apartments, defendant-appellee, ( Columbus Park ) is a five-building 625 unit apartment complex located in Bedford Heights, Ohio and managed by Emmco Corporation, defendant- appellee. ( Emmco ). Bear Creek Investments, defendant-appellee, ( Bear Creek ) owns the real estate and apartment building complex. Ivan Soclof, defendant-appellee, ( Soclof ) is President of Emmco and General Partner of Bear Creek. David Heffelman, defendant- appellee, was the Director of Residential Properties for Emmco. Irene Soltis, defendant-appellee, ( Soltis ) was an employee and managing agent for Emmco, Bear Creek and Columbus Park. Mary Carpenter, defendant-appellee, ( Carpenter ) was an employee of Emmco, Bear Creek, and Columbus Park. Plaintiff-appellant was employed by Emmco Corporation from November 14, 1988 through January 15, 1991 as office manager and later property manager at Columbus Park. Plaintiff-appellant was terminated by Emmco on January 15, 1991. On December 27, 1991, plaintiff-appellant filed the first of three lawsuits against various Bear Creek defendants. In the initial action, Case No. CV-224180, plaintiff-appellant accused Emmco and Heffelman, her immediate supervisor, of knowingly making false and defamatory statements about her with reckless disregard -3- for the truth. Plaintiff-appellant maintained that she had been accused of accepting kickbacks from contractors and suppliers with whom she had dealt with (sic) in the course of her employment with Defendant Emmco. The second count of the complaint alleged that Emmco, Heffelman and Soltis had told potential employers of plaintiff-appellant that she was dishonest and disloyal thereby hindering future employment opportunities. The third count of the complaint alleged that Soltis had falsely accused plaintiff- appellant of criminal activity causing plaintiff-appellant to suffer shame and embarrassment. Plaintiff-appellant alleged further that she suffered emotional distress as a result of these actions. Case No. CV-224180 was tried to a jury. At the close of plaintiff-appellant's case, the trial court granted a motion for directed verdict in favor of Emmco and Heffelman. The jury returned a verdict in favor of Soltis on the remaining defamation claims. On appeal, this court affirmed the trial court's decision as it related to Emmco and Heffelman. The verdict in favor of Soltis was reversed and remanded on the grounds that the trial court failed to properly instruct the jury on the issue of defamation. See Corradi v. Emmco Corp. (Feb. 16, 1996), Cuyahoga App. No. 67407, unreported. The Supreme Court declined jurisdiction on further appeal. On July 12, 1993, plaintiff-appellant filed a second action, Case NO. CV-254942, against Emmco, Bear Creek and Soclof asserting four separate causes of action: breach of an implied employment -4- contract; promissary estoppel; wrongful discharge; and intentional infliction of emotional distress. All defendants in Case No. CV-254942 moved for summary judgment which was subsequently granted by the trial court. On appeal, this court affirmed the decision of the trial court. See Corradi v. Soclof (May 25, 1995), Cuyahoga App. No. 67586, unreported. Plaintiff-appellant's appeal to the Supreme Court was dismissed since her notice of appeal was not filed in a timely manner. On April 14, 1997, plaintiff-appellant filed the underlying action, Case No. CV-333097, against Emmco, Bear Creek, Soclof, Soltis, Heffelman, Carpenter and Columbus Park. The first cause of action alleged that Emmco, Soclof and Heffelman involuntarily terminated plaintiff-appellant's employment, invaded her privacy and intentionally made false representations concerning plaintiff- appellant by exposing her to potential criminal liability. The second cause of action alleged that Soltis and Carpenter engaged in telephone harassment by repeatedly calling plaintiff-appellant's residence and invading her privacy. The third cause of action alleged that Emmco, Bear Creek, Soclof and Heffelman negligently hired and supervised Soltis and Carpenter and, due to their negligent supervision, plaintiff-appellant suffered severe emotional distress. The fourth cause of action alleged that Emmco, Soclof, Bear Creek and Columbus Park tortiously interfered with plaintiff-appellant's business relationships by inducing third parties not to enter into business relationships with plaintiff- -5- appellant and exposing plaintiff-appellant to potential criminal liability. The fifth cause of action alleged that Emmco, Soclof, Heffelman, Soltis and other unnamed third parties, engaged in a civil conspiracy which violated plaintiff-appellant's civil rights. On May 19, 1997, defendants-appellees filed a motion to dismiss plaintiff's complaint or in the alternative, for summary judgment. Defendants-appellees maintained that all plaintiff- appellant's claims were barred by the doctrine of res judicata since the claims were based upon the exact same facts as those set forth in her two previously filed lawsuits and, in fact, were brought or could have been brought in the prior actions. Defendants-appellees maintained further that plaintiff-appellant's claims were also barred by the applicable four-year statute of limitations set forth in R.C. 2305.09(D). Plaintiff-appellant alleged that the doctrine of res judicata was inapplicable since the facts upon which the underlying lawsuit was predicated did not arise from the same set of facts and circumstances present in the first and second lawsuits. Plaintiff- appellant alleged further that the four-year statute of limitations set forth in R.C. 2305.09(D) had not expired as of the filing date of the instant lawsuit since plaintiff-appellant did not become aware of the underlying facts until after a deposition on April 15, 1993. On July 1, 1997, the trial court issued the following journal entry: Defendants' motion to dismiss denied but Defendants' alternative motion for summary judgment is granted since -6- upon the undisputed material facts there is no genuine issue and on the facts defendants are entitled to judgment as a matter of law. FINAL. VOL. 2104 PG 0176. On July 25, 1997, plaintiff-appellant filed a timely notice of appeal from the judgment of the trial court. Plaintiff-appellant's first assignment of error states: I. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF THE PLAINTIFF-APPELLANT BY IMPROPERLY GRANTING SUMMARY JUDGMENT WHEN GENUINE ISSUES OF MATERIAL FACT EXISTED AND WHEN DEFENDANTS-APPELLEES WERE NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW. Plaintiff-appellant's second assignment of error states: II. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF THE PLAINTIFF-APPELLANT AND VIOLATED HER RIGHTS TO DUE PROCESS OF LAW BY DENYING PLAINTIFF-APPELLANT AN OPPORTUNITY TO HAVE HER CLAIMS FULLY LITIGATED AND HEARD. Having a common basis in both law and fact, this court shall consider plaintiff-appellant's first and second assignments of error simultaneously. Plaintiff-appellant argues, through her first and second assignments of error, that the trial court erred in granting summary judgment in favor of defendants-appellees. Specifically, plaintiff-appellant maintains that the doctrine of res judicata does not operate as a bar to the present action since: (1) there has been no final adjudication of the first lawsuit, Case No. CV- 224180, which has been remanded for a new trial; (2) the issues involved have not been litigated against the same defendants; and (3) the underlying issues could not have been brought in a prior action as they arose from a different fact pattern involving new defendants. Plaintiff-appellant argues further that the statute of limitations did not expire as the underlying claims were brought -7- within four years of the time the claims arose. It is plaintiff- appellant's position that the information, which forms the basis for the subject causes of action, was not discovered until the trial in Case No. CV-224180, which took place in May 1994. The standard for granting a motion for summary judgment is set forth under Civ.R. 56(C). In applying this rule, the Ohio Supreme Court has consistently held that, before such a motion can be granted, the moving party must demonstrate that: (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the non-moving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383. Welco Industries, Inc. v. Applied Cas. (1993), 63 Ohio St.3d 326. A motion for summary judgment forces the non-moving party to produce evidence on issues for which that party bears the burden of production at trial. Wingv. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, syllabus. The non-movant must also present specific facts and may not rely merely upon the pleadings or upon unsupported allegations. Shaw v. Pollock & Co. (1992), 82 Ohio App.3d 656. When a party moves for summary judgment supported by evidentiary material of the type and character set forth in Civ.R. 56(E), the opposing party has a duty to submit affidavits or other material permitted by Civ.R. 56(C) to show that there is a genuine -8- issue for trial. Harlessv. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. In Dresher v. Burt (1996), 75 Ohio St.3d 287, the Ohio Supreme Court recently discussed the proper standard to be applied when reviewing summary judgment motions. The court stated as follows: Again, we note that there is no requirement in Civ.R. 56 that any party submit affidavits to support a motion for summary judgment. See, e.g., Civ.R. 56(A) and (B). There is a requirement, however, that a moving party, in support of a summary judgment motion, specifically point to something in the record that comports with the evidentiary materials set forth in Civ.R. 56(C). This court's analysis of an appeal from a summary judgment is conducted under a de novo standard of review. See Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107; Howard v. Willis (1991), 77 Ohio App.3d 133. No deference is given to the decision under review, and this court applies the same test as the trial court. Bank One of Portsmouth v. Weber (Aug. 7, 1991), Scioto App. No. 1920, unreported. In Whitehead v. Gen. Tel. Co (1969), 20 Ohio St.2d 108, the Ohio Supreme Court stated: The doctrine of res judicata involves two basic concepts. Norwood v. McDonald (1943), 142 Ohio St. 299, 52 N.E. 2d 67. First, it refers to the effect a judgment in a prior action has in a second action based upon the same cause of action. The Restatement of the Law, Judgments, Section 45, uses the terms merger and bar. If the plaintiff in the prior action is successful, the entire cause of action is merged in the judgment. The merger means that a successful plaintiff cannot recover again on the same cause of action, although he may maintain an action to enforce the judgment. If the defendant is successful in the prior action, the plaintiff is barred from suing, in a subsequent action, on the same cause of action. The bar aspect of the doctrine of res judicata is sometimes called estoppel by -9- judgment. Restatement of the Law, Judgments, Section 45, comment (b). The second aspect of the doctrine of res judicata is collateral estoppel. While the merger and bar aspects of res judicata have the effect of precluding a plaintiff from relitigation the same cause of action against the same defendant, the collateral estoppel aspect precludes the relitigation, in a second action, of an issue that has been actually and necessarily litigated and determined in a prior action which was based on a different cause of action. Restatement of the Law, Judgments, Section 45, comment (c), and Section 68 (2); Cromwell v. County of Sac (1976), 94 U.S. 351. In short, under the rule of collateral estoppel, even where the cause of action is different in a subsequent suit, a judgment in a prior suit may nevertheless affect the outcome of the second suit. Id at 112. In order for res judicata to bar a second suit, the following elements must be present: (a) an existing final judgment; (b) rendered on the merits without fraud or collusion; (c) by a court of competent jurisdiction; (d) is conclusive of all rights, questions, and facts in issue; (e) as to the parties and their privies; and (f) in all other actions in the same or any other judicial tribunal or concurrent jurisdiction. Ohio Dept. of Human Serv. v. Kozar (1995), 99 Ohio App.3d 713, 716 citing to Quality Ready Mix, Inc. v. Mamone (1988), 35 Ohio St.3d 224, 520 N.E. 2d 193. The Ohio Supreme Court has recently defined privity as *** merely a word used to say that a relationship between the one who is a party on the record and another is close enough to include the other within the res judicata. Thompson v. Wing (1994), 70 Ohio St.3d 176, 184, 637 N.E.2d 917. The application of the doctrine of res judicata is not limited to points of law actually and directly in issue in the prior action. To the contrary, the doctrine also -10- requires a plaintiff to present all grounds for relief in the initial action or be forever barred from asserting it. See Joe Harisk's Salvage Pool Sys. of Ohio v. Strongsville (1993), 91 Ohio App.3d 121, 128 citing to National Amusements v. Springdale (1990), 53 Ohio St.3d 60. In the case sub judice, a review of the record demonstrates that the trial court properly granted summary judgment in favor of defendants-appellees since plaintiff-appellant's claims were barred by the doctrine of res judicata as well as the applicable four-year statute of limitations set forth in R.C. 2305.09(D). Clearly, all three complaints arose out of the same factual scenario. Plaintiff-appellant maintained that she was wrongfully terminated from her position at Columbus Park Apartments, defamed by her former employer and co-workers, exposed to potential criminal liability through the statements of her former employers and co- workers who engaged in some form of conspiratorial conduct causing plaintiff-appellant to suffer physical and emotional distress as a result. Plaintiff-appellant characterizes the alleged conspira- torial conduct differently in each complaint, i.e., purposefully interfering with her business interests, wrongful termination, negligent supervision and telephone harassment. However, each cause of action is based upon the same events which occurred between January 15, 1991 and the end of March, and the beginning of April 1991. In addition, all defendants-appellees sued by plaintiff- appellant in the three separate actions were in privity with one another as they consisted of the corporate entities charged with -11- operating the rental property in question and employees of the corporate entities. Williamson v. Rodenberg (June 30, 1997), Franklin App. No. 96 APE 10-1395, unreported. Therefore, since the causes of action set forth in the instant complaint are based upon the same facts underlying plaintiff- appellant's first and second complaints and the defendants are in privity with one another, it is apparent that the doctrine of res judicata was properly utilized by the trial court in ruling upon and granting defendants-appellees' motion for summary judgment. Contrary to plaintiff-appellant's assertion, there has been a final adjudication on the merits in a prior lawsuit, Case No. CV-254942, and accordingly, the necessary elements for application of the doctrine of res judicata have been satisfied. Kozar, supra. Even if this court had determined that the doctrine of res judicata was inapplicable to the case at bar, a further review of the record demonstrates that plaintiff-appellant's causes of action were filed after the expiration of the applicable four-year statute of limitations. R.C. 2309.05(D). By plaintiff-appellant's own admission, her contact with all defendants-appellees ended in April of 1991. Plaintiff-appellant also admitted receiving harassing telephone calls during a two week period encompassing late March 1991 and early April 1991. (See Exhibit E to defendants-appellees summary judgment motion.) Clearly, the plaintiff-appellant knew of the existence of a cause of action as of that time period but failed to pursue that claim until after the expiration of the four- year statute of limitations. -12- For the foregoing reasons, the trial court properly entered summary judgment in favor of defendants-appellees in the underlying action and plaintiff-appellant was not unconstitutionally deprived of her right to due process. Plaintiff-appellant's first and second assignments of error are not well taken. Judgment of the trial court is affirmed. -13- It is ordered that appellees recover of appellant 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 Cuyahoga County 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. PATRICIA ANN BLACKMON, A.J. JOSEPH J. NAHRA, J., CONCUR. JUDGE MICHAEL J. CORRIGAN 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 .