Grava v. Parkman Twp.

, overruled; paragraph two of the syllabus of Whitehead v.
        Gen. Tel. Co. [1969],

, overruled to the extent inconsistent herewith; paragraph one of the
        syllabus of

 and paragraph one of the syllabus of

modified; 1 Restatement of the Law 2d, Judgments
[1982], Sections 24-25, approved and adopted.)
(No. 94-1406—Submitted June 7, 1995—Decided August 30, 1995.)
CERTIFIED by the Court of Appeals for Geauga County, No. 93-G-1775.
__________________
{¶ 1} In August 1991, appellant, Alfred Grava, who owns 3.6 acres of
industrially zoned land located in Parkman Township, Geauga County, Ohio,
submitted an “application for a zoning certificate” to the Parkman Township
Zoning Inspector. Grava wanted to construct a building on his property to improve
his existing business. The zoning inspector denied the application on the basis of
Section 404.4 of the Parkman Township Zoning Ordinance (“Section 404.4”),
which requires that industrially zoned property contain a minimum of five acres.
SUPREME COURT OF OHIO

{¶ 2} Grava, acting pro se, appealed to appellee, Parkman Township Board
of Zoning Appeals (“board”), seeking a variance from Section 404.4. Following
public hearings, the board denied Grava’s request for a variance on December 3,
1991. Grava did not appeal the board’s decision.
{¶ 3} On May 15, 1992, Grava submitted a second application for a zoning
certificate to the zoning inspector, requesting permission to construct the same
building that was the subject of his earlier application. In his second application,
Grava asserted that he was entitled to construct the building pursuant to Section
906.0 of the Parkman Township Zoning Ordinance (“Section 906.0”).1 The zoning
inspector denied the application for the same reason he denied Grava’s first
application.
{¶ 4} Subsequently, Grava filed with the board two notices of appeal. In
one document, Grava asserted that the zoning inspector erred in refusing to grant a
zoning certificate under Section 906.0. In the other document, Grava argued, in the
alternative, that he should be granted a variance from the five-acre requirement set
forth in Section 404.4. After a public hearing, the board denied both appeals.
Reasoning that it had previously denied Grava’s request to build the same building
in the same location and that no other circumstances had changed, the board
concluded that Grava’s application for a zoning certificate pursuant to Section
906.0 was barred by the doctrine of res judicata.
{¶ 5} Upon Grava’s appeal pursuant to R.C. 2506.01 et seq., the Court of
Common Pleas of Geauga County concluded that the board was bound by its prior

1. Section 906.0 provides:
“Nonconforming Lot of Record
“In any zoning district, a zoning certificate may be issued for a building, structure, or use
on any lot of record prior to the effective date of this resolution or any amendments thereto that does
not meet the minimum lot area or frontage requirement for the district in which it is located, provided
that said lot is a minimum of 1.5 acres in area and has a minimum of 150 feet of frontage and all of
the other zoning requirements for said district are met.”

2
January Term, 1995

decision and affirmed the board’s decision. Upon further appeal, the Geauga
County Court of Appeals affirmed the judgment of the trial court. The court of
appeals held that Grava was barred by the doctrine of res judicata from asserting
an alternate ground for relief pursuant to Section 906.0 because that claim “‘might
have been litigated’” in his first appeal to the board concerning his 1991 application
for a zoning certificate.
{¶ 6} Finding its judgment to be in conflict with the judgments of the
Cuyahoga County Court of Appeals in Jones v. Petruska (1979),

13 O.O.3d 111

,
and Positive Edn. Program v. Cleveland (Sept. 3, 1987), Cuyahoga App. No.
53081, unreported, the court of appeals certified the record of the cause to this court
for review and final determination.
                               __________________
        Walter, Haverfield, Buescher & Chockley and R. Todd Hunt, for appellant.
        David P. Joyce, Geauga County Prosecuting Attorney, and Lorrie A. Sass,
Assistant Prosecuting Attorney, for appellee.
                               __________________
        WRIGHT, J.
        {¶ 7} The issue certified to this court is whether, “[a]bsent a showing of
changed circumstances, the doctrine of res judicata is applicable to decisions of a
board of zoning appeals denying a request for a variance, even when the subsequent
action seeks a zoning certificate based on the property’s alleged status as a prior
legal nonconforming use as provided for in a zoning resolution.” We answer this
query in the affirmative.
        {¶ 8} In Set Products, Inc. v. Bainbridge Twp. Bd. of Zoning Appeals
(1987),

31 Ohio St.3d 260

, 31 OBR 463,

510 N.E.2d 373

, paragraph one of the
syllabus, this court held that “[t]he doctrine of res judicata applies to the decisions
of a township board of zoning appeals relating to the grant or denial of variances *
* *.” We explained that res judicata, whether claim preclusion or issue preclusion,




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                            SUPREME COURT OF OHIO




applies to administrative proceedings that are “‘of a judicial nature and where the
parties have had an ample opportunity to litigate the issues involved in the
proceeding.’”

Id. at 263

, 31 OBR at 465,

510 N.E.2d at 376

 (quoting Superior’s
Brand v. Lindley [1980],

62 Ohio St.2d 133

16 O.O.3d 150

403 N.E.2d 996

,
syllabus). See, also, Consumers’ Counsel v. Pub. Util. Comm. (1985),

16 Ohio St.3d 9

, 16 OBR 361,

475 N.E.2d 782

.
       {¶ 9} The doctrine of res judicata involves both claim preclusion
(historically called estoppel by judgment in Ohio) and issue preclusion
(traditionally known as collateral estoppel). See Whitehead v. Gen. Tel. Co. (1969),

; Krahn v. Kinney (1989),

43 Ohio St.3d 103, 107

538 N.E.2d 1058, 1062

; 46 American Jurisprudence 2d (1994)
780, Judgments, Section 516. This case involves claim preclusion only.
       {¶ 10} With regard to the claim-preclusive effect of the doctrine of res
judicata, this court, in previous years, has stated: “A final judgment or decree
rendered upon the merits, without fraud or collusion, by a court of competent
jurisdiction * * * is a complete bar to any subsequent action on the same claim or
cause of action between the parties or those in privity with them.” Norwood v.
McDonald (1943),

142 Ohio St. 299

27 O.O. 240

, paragraph one of
the syllabus; see, also, Whitehead v. Gen. Tel. Co., supra, paragraph one of the
syllabus. We also have stated: “A judgment or decree in a former action does not
bar a subsequent action where the causes of action are not the same, even though
each action relates to the same subject matter.”

 paragraph two of
the syllabus; see, also,

 paragraph two of the syllabus. To
determine whether a second action was barred by this rule of law, one of the primary
considerations was the identity of the evidence necessary to sustain each action.
See

 paragraph four of the syllabus.
       {¶ 11} Relying primarily on

 Grava asserts that the
doctrine of res judicata does not bar the present action concerning his second




                                         4
                                       January Term, 1995




application for a zoning certificate because this action involves a distinctly different
method of obtaining relief than the previous action involving his first application.
He argues that the facts necessary to obtain relief under Section 906.0 are different
from the facts necessary to obtain a variance.2
         {¶ 12} In recent years, this court has not limited the application of the
doctrine of res judicata to bar only those subsequent actions involving the same
legal theory of recovery as a previous action.                   In Natl. Amusements, Inc. v.
Springdale (1990),

53 Ohio St.3d 60, 62

558 N.E.2d 1178, 1180

, we stated: “It
has long been the law of Ohio that ‘an existing final judgment or decree between
the parties to litigation is conclusive as to all claims which were or might have been
litigated in a first lawsuit’” (emphasis sic) (quoting Rogers v. Whitehall [1986],

25 Ohio St.3d 67, 69

, 25 OBR 89, 90,

494 N.E.2d 1387, 1388

). We also declared that
“[t]he doctrine of res judicata requires a plaintiff to present every ground for relief
in the first action, or be forever barred from asserting it.”

Id.

         {¶ 13} Today, we expressly adhere to the modern application of the doctrine
of res judicata, as stated in 1 Restatement of the Law 2d, Judgments (1982),
Sections 24-25, and hold that a valid, final judgment rendered upon the merits bars
all subsequent actions based upon any claim arising out of the transaction or
occurrence that was the subject matter of the previous action. Therefore, we
overrule the second paragraph of the syllabus in

 and overrule the
second paragraph of the syllabus in

 to the extent it is inconsistent
with today’s holding.



2. For example, in order to establish the right to an area variance, an owner must show that he has
encountered “practical difficulties” in the use of his property. See Duncan v. Middlefield (1986),

23 Ohio St.3d 83

, 23 OBR 212,

491 N.E.2d 692

. On the other hand, in order for an owner to obtain
nonconforming-use status, in accordance with Section 906.0, the owner must prove that (1) he had
a “lot of record” prior to the effective date of the regulation or any of its restrictive amendments, (2)
the property consists of at least 1.5 acres and has a minimum of one hundred feet of frontage, and
(3) all other zoning requirements for the zoning district have been met.




                                                   5
                             SUPREME COURT OF OHIO




        {¶ 14} Section 24(1) of the Restatement of Judgments, supra, at 196,
provides: “When a valid and final judgment rendered in an action extinguishes the
plaintiff’s claim pursuant to the rules of merger or bar * * *, the claim extinguished
includes all rights of the plaintiff to remedies against the defendant with respect to
all or any part of the transaction, or series of connected transactions, out of which
the action arose.” See, also, 46 American Jurisprudence 2d, supra, at Sections 516
and 533. Comment b to Section 24 of the Restatement of Judgments, supra, at 198-
199, defines a “transaction” as a “common nucleus of operative facts.” Comment
c to Section 24, at 200, plainly states: “That a number of different legal theories
casting liability on an actor may apply to a given episode does not create multiple
transactions and hence multiple claims. This remains true although the several legal
theories depend on different shadings of the facts, or would emphasize different
elements of the facts, or would call for different measures of liability or different
kinds of relief.”
        {¶ 15} Section 25 of the Restatement of Judgments, supra, at 209, further
explains: “The rule of § 24 applies to extinguish a claim by the plaintiff against the
defendant even though the plaintiff is prepared in the second action (1) To present
evidence or grounds or theories of the case not presented in the first action, or (2)
To seek remedies or forms of relief not demanded in the first action.” (Emphasis
added.) See, also, 46 American Jurisprudence 2d, supra, at Sections 535 and 537.
The rationale for such a rule is aptly stated in Comment a to Section 24 of the
Restatement of Judgments, supra, at 196-197: “[I]n the days when civil procedure
still bore the imprint of the forms of action and the division between law and equity,
the courts were prone to associate claim with a single theory of recovery, so that,
with respect to one transaction, a plaintiff might have as many claims as there were
theories of the substantive law upon which he could seek relief against the
defendant. Thus, defeated in an action based on one theory, the plaintiff might be
able to maintain another action based on a different theory, even though both




                                          6
                                January Term, 1995




actions were grounded upon the defendant’s identical act or connected acts forming
a single life-situation. * * * The present trend is to see claim in factual terms and
to make it coterminous with the transaction regardless of the number of substantive
theories, or variant forms of relief flowing from those theories, that may be
available to the plaintiff * * *; regardless of the variations in the evidence needed
to support the theories or rights.” (Emphasis added.)
       {¶ 16} We hold that Grava’s second application for a zoning certificate is
barred by the doctrine of res judicata. Grava’s second application is based on a
claim arising from a nucleus of facts that was the subject matter of his first
application. In both instances, Grava was attempting to construct exactly the same
building on the same tract of land, which had fewer acres than Section 404.4 of the
local zoning ordinance required. In fact, the only difference between the two
applications is the theory of substantive law under which Grava sought relief.
       {¶ 17} Grava argues that barring the present action would be unfair.
However, he had a full and fair opportunity to present his case and obtain a zoning
certificate during the proceedings involving his first application and did not appeal
the zoning board’s denial of his request. Grava simply failed to avail himself of all
available grounds for relief in the first proceeding. Absent changed circumstances,
refusing to allow Grava to use an alternate legal theory overlooked in the previous
proceedings does not work an injustice. Instead, by providing parties with an
incentive to resolve conclusively an entire controversy involving the same core of
facts, such refusal establishes certainty in legal relations and individual rights,
accords stability to judgments, and promotes the efficient use of limited judicial or
quasi-judicial time and resources.       The instability that would follow the
establishment of a precedent for disregarding the doctrine of res judicata for
“equitable” reasons would be greater than the benefit that might result from
relieving some cases of individual hardship.




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                                 SUPREME COURT OF OHIO




        {¶ 18} For the foregoing reasons, we affirm the judgment of the court of
appeals.
                                                                          Judgment affirmed.
        MOYER, C.J., WRIGHT, F.E. SWEENEY and COOK, JJ., concur.
        DOUGLAS, RESNICK and PFEIFER, JJ., dissent.
                                   __________________
        DOUGLAS, J., dissenting.
        {¶ 19} I respectfully dissent.3 The majority has established a dangerous
precedent in Ohio regarding property owners.                The majority has concluded,
improperly, that appellant’s prior unsuccessful attempt to obtain a variance in 1991
acted as a bar, on res judicata grounds, to his seeking relief in 1992 under Section
906.0 of the Parkman Township Zoning Ordinance.
        {¶ 20} The doctrine of res judicata involves both estoppel by judgment and
collateral judgment. See Krahn v. Kinney (1989),

43 Ohio St.3d 103, 107

538 N.E.2d 1058, 1062

, citing Whitehead v. Gen. Tel. Co. (1969),

. In Whitehead, at paragraph two of the syllabus, we
held that: “A final judgment or decree in an action does not bar a subsequent action
where the causes of action are not the same, even though each action relates to the
same subject matter. However, a point of law or a fact which was actually and
directly in issue in the former action, and was there passed upon and determined *
* * may not be drawn in question in a subsequent action between the same parties
or their privies. The prior judgment estops a party, or a person in privity with him,
from subsequently relitigating the identical issue raised in the prior action. * * *”
(Emphasis added.)


3. Note: This dissent was written, submitted and voted on before the majority opinion was changed
to overrule, in part, and modify, in part, Norwood v. McDonald (1943), 142 Ohio St.299, 27
O.O.240,

 and Whitehead v. General Tel. Co. (1969),

.




                                               8
                                 January Term, 1995




        {¶ 21} Appellant’s 1991 request for an area variance from Section 404.0 of
the Parkman Township Zoning Ordinance was markedly different from his 1992
request for relief pursuant to Section 906.0. In order to establish the right to an area
variance, it must be shown that the property owner has encountered “practical
difficulties” in the use of his or her property. See Duncan v. Middlefield (1986),

23 Ohio St.3d 83

, 23 OBR 212,

491 N.E.2d 692

. On the other hand, nonconforming-
use status, in accordance with Section 906.0, requires proof that (1) the property
owner had a “lot of record” prior to the effective date of the regulation or any
restrictive amendments thereto, (2) the property in question is a minimum of one
and one-half acres and has a minimum of one hundred fifty feet of frontage, and (3)
all other zoning requirements for the zoning district have been met. Moreover, a
variance, if granted, “runs with the land and, as a judgment in rem, cannot be
collaterally attacked.” Set Products, Inc. v. Bainbridge Twp. Bd. of Zoning Appeals
(1987),

31 Ohio St.3d 260, 263

, 31 OBR 463, 465,

510 N.E.2d 373, 376

. However,
prior nonconforming-use status may be extinguished if the use is discontinued,
voluntarily, for a certain period of time. See R.C. 519.19.
        {¶ 22} Clearly, appellant’s initial request in 1991 for a variance and his
request in 1992 for relief pursuant to Section 906.0 constitute separate “causes of
action,” even though they relate to the same subject matter, i.e., constructing a
building on land that does not comply currently with the minimum acreage
requirement. As is evident from the different requirements involved, proof of either
of these claims for relief “does not necessarily establish the other.” See

Krahn, supra,

43 Ohio St.3d at 107

538 N.E.2d at 1062

. See, also, Norwood v. McDonald
(1943),

142 Ohio St. 299

27 O.O. 240