LAVON MOORE, Successor Trustee of the Clarence M. Moore and Laura P. Moore Trust v. HIRAM TOWNSHIP, OHIO; JANET PANCOST; GARY BOTT; THOMAS FRANEK; RICHARD GANO; DOES 1-10
No. 20-3259
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
February 19, 2021
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 21a0041p.06
Decided and Filed: February 19, 2021
Before: MOORE, GILMAN, and GRIFFIN, Circuit Judges.
COUNSEL
ON BRIEF: Joel A. Holt, ICKES & HOLT, Stow, Ohio, for Appellant. Tonya J. Rogers, BAKER, DUBLIKAR, BECK, WILEY & MATHEWS, North Canton, Ohio, for Appellees.
GILMAN, J., delivered the opinion of the court in which GRIFFIN, J., joined. MOORE, J. (pp. 17–24), delivered a separate dissenting opinion.
OPINION
RONALD LEE GILMAN, Circuit Judge. This case involves a zoning dispute over LaVon Moore‘s right to continue using his rural property in Ohio as a private airport.
I. BACKGROUND
Because we are reviewing a dismissal pursuant to
Around 1951, the Township enacted a zoning resolution that zoned the Property as Rural-Residential and classified the airport as a nonconforming use. Under Ohio zoning law, a “nonconforming use” is a lawful, preexisting use of property established prior to the enactment of a land-use regulation. See
The airport has been active in varying degrees since its inception. But its use for ultralight aircraft and hang gliders started only recently, and that use has prompted nuisance complaints from neighboring landowners. In 2016, Township officials told Moore that he needed to acquire a certificate of nonconforming use in order to continue the airport‘s operations. After two unsuccessful attempts to secure a certificate, Moore was directed to apply to the BZA.
In September 2016, the BZA conducted a public hearing to determine whether to issue Moore a certificate of nonconforming use. The BZA voted to grant Moore a certificate at the end of the hearing, but imposed several conditions on the certificate. Moore timely appealed the BZA‘s decision to the Portage County Common Pleas Court pursuant to
In July 2017, the state trial court determined that the BZA had properly issued the certificate, but the court modified several of the conditions imposed by the BZA. Both Moore and the Townshiр appealed the trial court‘s judgment to the Ohio Court of Appeals. The Township argued that the trial court‘s modifications to the restrictions placed on the certificate were inconsistent with both the Moore family‘s prior use and the Township‘s zoning resolution. Moore in turn argued that (1) the restrictions placed on the certificate were themselves unlawful, and (2) the trial court erred in holding that the BZA was authorized to decide that large-scale use of the airport for ultralight aircraft and hang gliders was a nuisance. In December 2018, the Ohio Court of Appeals affirmed the trial court‘s judgment in its entirety. Neither the Township nor Moore appealed the matter to the Ohio Supreme Court.
While his appeal of the state trial-court judgment was pending in the Ohio Court of Appeals, Moore turned to the federal courts and filed a complaint in October 2018. As set forth in an authorized refiled complaint, Moore‘s four claims against the defendants are for (1) a violation of his procedural due process rights under
II. ANALYSIS
A. Standard of review
We review de novo a judgment on the pleadings granted pursuant to
B. Res judicata
Federal courts give the same preclusive effect to a state-court judgment as that judgment would receive in the rendering state, meaning that “if an individual is precluded from litigating a suit in state court by the traditional principles of res judicata, he is similarly precluded from litigating the suit in federal court.” Ohio ex rel. Boggs v. City of Cleveland, 655 F.3d 516, 519 (6th Cir. 2011) (quoting ABS Indus., Inc. ex rel. ABS Litig. Trust v. Fifth Third Bank, 333 F. App‘x 994, 998 (6th Cir. 2009)). We look to Ohio law to assess whether res judicata should attach to the state-court judgment in the present case. Id.
This court has distilled Ohio‘s doctrine of claim preclusion down to the following four elements:
(1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action.
Boggs, 655 F.3d at 520 (quoting Hapgood v. City of Warren, 127 F.3d 490, 493 (6th Cir. 1997)).
The defendants bear the burden of proof as to each element. See Winget v. JP Morgan Chase Bank, N.A., 537 F.3d 565, 572 (6th Cir. 2008). Moore, however, does not dispute that this action arises out of the same transaction or occurrence as his prior state-court suit. The fourth element is therefore satisfied because both actions concerned the issuance of the certificate of nonconforming use, leaving only the first three elements to be examined.
1. Final adjudication on the merits
A judgment was entered by the stаte trial court that affirmed in part and modified in part the BZA‘s administrative decision. The judgment specifically discussed the facts of the case and concluded that, although the BZA had properly issued the certificate, some of the conditions imposed by the certificate were improper and thus had to be modified. Such a judgment constitutes a “decision on the merits.” See Hendrix v. Roscommon Twp., 2004 WL 1197359, at *5 (E.D. Mich. May 18, 2004) (finding that the state trial court‘s judgment in a zoning dispute regarding a nonconforming use constituted a final decision on the merits). The fact that the state
Moreover, “[w]hether the original claim explored all the possible theories of relief is not relevant” to the claim-preclusion analysis. Brown v. City of Dayton, 730 N.E.2d 958, 962 (Ohio 2000). As discussed below, even if Moore‘s § 1983 claims are distinct from the underlying challenge (which they are not), they could have been brought in the underlying аction and are thus subsumed by the state trial court‘s judgment for res judicata purposes. See Heike v. Cent. Michigan Univ. Bd. of Trustees, 573 F. App‘x 476, 480, 483 (6th Cir. 2014) (holding that, where a plaintiff‘s new Title IV and Title IX claims could have been litigated with her original § 1983 equal protection and due process claims, the grant of summary judgment in an earlier action constituted a “final adjudication on the merits“).
Also irrelevant is whether the state trial court was ultimately wrong in its judgment. The Supreme Court has held that “the res judicata consequences of a final, unappealed judgment on the merits” are not “altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case.” Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981). If Moore believed that the state trial court issued an erroneous ruling on the constitutional issues, he could have raised those issues in his appeal to the Ohio Court of Appeals (which he did not do) and requested further review by the Ohio Supreme Court (which he also did not do) instead of filing a collateral attack in federal court. See id. at 398–99.
2. Same parties or their privies
Moore concedes that, although the Moore Family Trust was represented by a different successor trustee in the state-court action, both Moore and the Township were parties to the § 2506 Appeal. The parties dispute, however, whether the remaining defendants in this action (Zoning Inspector Gano and the BZA members) are in “privity” with the Township.
A final judgment on the merits of an action bars not only the same parties from relitigating claims that were or could have been raised in that action, but also parties to the second case who are in privity with a party bound by the earlier judgment. Richards v. Jefferson County, 517 U.S. 793, 798 (1996). Under Ohio law, privity is “somewhat amorphous,” and
Ohio courts have thus found that privity exists when “a government official is sued in his individual and in his official capacity,” id. (citing Kirkhart v. Keiper, 805 N.E.2d 1089, 1093 (Ohio 2004)), “between an association and its individual members when the members are liable by law for a judgment against the association,” id. (citing State ex rel. Clinton Mut. Ins. Assn. v. Bowen, 9 N.E.2d 494, 497 (Ohio 1937)), and in a “principal-agent relationship . . . where the claims alleged are within the scope of the agency relationship,” ABS Indus., 333 F. App‘x at 999 (collecting Ohio cases). Relevant to this case, Ohio courts have established that “a government official who is sued in his or her official capacity is in privity with the governmental entity.” Denton v. Bedinghaus, 2002-Ohio-3273, 2002 WL 1393563, at *4 ¶ 16 (Ohio Ct. App. 2002), aff‘d sub nom. State ex rel. Denton v. Bedinghaus, 784 N.E.2d 99 (Ohio 2003); see also Stotts v. Pierson, 976 F. Supp. 2d 948, 962 (S.D. Ohio 2013) (noting the lack of dispute that the city and the BZA members, in their official capacities, were privies of the BZA for purposes of res judicata).
Moore named Township BZA Members Gary Bott, Thomas Franek, and Janet Pancost, as well as Township Zoning Inspector Gano, as defendants. Although he did not indicate in his complaint whether he was suing them in their official or individual capacities, Moore‘s opening brief to this court makes clear that this is an official-capacity suit. Moore first delineates the difference between official-capacity and individual-capacity suits, explaining that the former involves officials “acting in their official capacity, cloaked in authority, abusing their authority.” He then states that he “clearly alleged that Gano and the BZA Members, individually and collectively, acted in their official capacities as the zoning inspector and BZA in a manner that
Although parts of the complaint might suggest an individual-capacity suit as well, such as allegations that the defendants “individually and collectively” took certain actions and that the defendants are “jointly and severally liable,” Moore‘s briefing is murky as to these arguments and clearest as to the assertion underlined above. Cf. Moore v. City of Harriman, 272 F.3d 769, 774 (6th Cir. 2001) (noting that “[e]ven assuming the complaint itself failed to provide sufficient notice, [the plaintiff‘s] response . . . clarified any remaining ambiguity” by expressly stating that the officers are “being sued in their individual capacities“); see also Abdur-Rahman v. Michigan Dep‘t of Corr., 65 F.3d 489, 491 (6th Cir. 1995) (finding that the pro se plaintiff cleared up the ambiguity in his motion for summary judgment). Taking the pleadings as a whole and conscious of the importance of fair notice to the individual defendants, we agree with the district court that Moore has brought his claims against the defendants in their official capacities only. See Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989) (“It is certainly reasonable to ask that all plaintiffs alert party defendants that they may be individually responsible in damages.“).
But even if we were to conclude that the BZA members and Zoning Inspector Gano should also be considered sued in their individual capacities, the Ohio Supreme Court has determined that “when a party is sued as an individual for actions taken solely in her official role, res judicata may not be circumvented.” Kirkhart, 805 N.E.2d at 1093 (finding privity when “a plaintiff brings two lawsuits against the same public officials for acts performed in their official roles, even though the defendants were sued in their official capacities in one lawsuit and in their individual capacities in the other“). This prevents a party from being able to “escape the rule of res judicata through expansive pleading.” Id. (citation omitted).
In the present case, all of the actions that Moore complains about were taken by the individual defendants in the exercise of their official duties as employees of the Township. See id. (finding privity where allegations from both complaints were “based upon the same conduct, and all of the alleged wrongdoing stem[med] from conduct by the defendants in their official roles” that “could only have been taken [ ] in the exercise of their official duties” (emphasis in original)). To the extent that Moore labels the BZA members’ routine conduct as individual and
The same result would be reached even if the state court had found in favor of Moore and against the Township in the first action because the BZA members and Zoning Inspector Gano would have been bound by the result. Such mutuality of interest is also evidenced by the fact that Moore lumps all the defendants—the Township, the BZA members, and Zoning Inspector Gano—together throughout his complaint and in his Prayer for Relief. In sum, even if these defendants were deemed to be named in both their individual and official capacities, that would not be enough to bypass the application of res judicata.
3. Claims actually litigated or that should have been litigated
Moore‘s final argument is that the district court erred in its analysis because he did not, and could not, litigate his constitutional claims as part of his administrative appeal. But the record shows that Moore did litigate his constitutional claims in his administrative appeal and, even if he did not, that he could have.
In the state-court aсtion, Moore alleged that the BZA acted outside the scope of its authority, and that the certificate of nonconforming use, as well as the procedures used to issue the certificate, were unconstitutional. Moore further alleged that the unlawful application of the zoning regulations violated his constitutional rights. The state trial court, after considering these arguments, modified the certificate when it determined that certain conditions listed in the certificate were “clearly improper.” Moore did not raise any specific constitutional issues on appeal to the Ohio Court of Appeals, which affirmed the judgment of the lower court. Neither party sought review by the Ohio Supreme Court.
Moore‘s claims in the case before us allege the same constitutional challenges as in the state-court action, albeit in different packaging. He argues again that the BZA acted outside the scope of its authority and that the procedures used to issue the certificate were unconstitutional, thus violating his procedural due process, substantive due process, and equal protection rights.
But even if Moore‘s claims were not actually litigated in the underlying action, they could have been. The doctrine of res judicata requires a plaintiff to advance all theories for every ground of relief in the first action or be forever barred from asserting it. Grava v. Parkman Twp., 653 N.E.2d 226, 229 (Ohio 1995). Ohio‘s view of res judicata is “expansive.” Demsey v. Demsey, 488 F. App‘x 1, 4 (6th Cir. 2012). That “different legal theories casting liability on an actor may apply to a given episode does not create multiple transactions and hence multiple claims,” even if the theories “depend on different shadings of the facts . . . or [ ] call for different measures of liability or kinds of relief.” Id. (quoting Grava, 563 N.E.2d at 229). Where, as here, claims brought in the second suit “arose from the same transaction, or series of transactions” forming the basis of the first suit, those claims must be litigated in the earlier action. Rawe v. Liberty Mut. Fire Ins. Co., 462 F.3d 521, 529 (6th Cir. 2006) (internal citation and quotation marks omitted).
Moore‘s procedural due process, substantive due process, and equal protection claims each stem from the same occurrence—the issuance of the certificate of nonconforming use—that was litigated in the state-court action, and thus could have been litigated at that time. His argument that a general constitutional clаim is far different than a § 1983 constitutional tort is unpersuasive where each set of claims “arose from the same transaction.” See Rawe, 462 F.3d at 529 (citation omitted).
Moore next argues that he could not have brought his § 1983 claim in the state-court action because he is now seeking money damages, a remedy barred by
Consistent with its findings, the court may affirm, reverse, vacate, or modify the order, adjudication, or decision, or remand the cause to the officer or body appealed from with instructions to enter an order, adjudication, or decision consistent with the findings or opinion of the court.
Nonetheless, Moore‘s attempt to isolate his § 1983 claims from the doctrine of res judicata based on the relief sought fails because, as this court has explained, “a plaintiff pursuing an administrative appeal in Ohio need not limit [him]self to administrative claims. Rather, [he] may seek relief under both § 2506 and federal statutory law, as long as [he] follows the proper procedures.” Carroll v. City of Cleveland, 522 F. App‘x 299, 305–06 (6th Cir. 2013) (rejecting the argument that res judicata is inapplicable because the § 1983 claim sought relief—attorney fees, declaratory relief, and injunctive relief—all of which was unavailable in a § 2506 appeal) (emphasis in original).
Different procedures and standards of review govern § 2506 appeals and federal statutory claims. A court in a § 2506 appeal, unlike in a civil action, “sits in appellate review of the board‘s decision,” Sudan, Inc. v. Chagrin Falls, 577 N.E.2d 1160, 1164 (Ohio Ct. App. 1989), and is authorized only to determine whether the agency‘s action is “unconstitutional, illegal, arbitrary, capricious, unreаsonable, or unsupported by the preponderance of substantial, reliable, and probative evidence,”
Indeed, the practice of consolidating a § 2506 appeal with a separate complaint for declaratory and injunctive relief—relief that, like money damages, may not be available in a § 2506 appeal—is commonplace. See, e.g., BP Am., Inc. v. Avon City Council, 753 N.E.2d 947, 949 (Ohio Ct. App. 2001); Schropshire v. Englewood, 634 N.E.2d 657, 657 (Ohio Ct. App. 1993); Fox v. Lakewood, 616 N.E.2d 588, 589 (Ohio Ct. App. 1992); Ohio Holding Co. v. City of Grove City, No. 89AP-213, 1989 WL 155961, at *1 (Ohio Ct. App. Dec. 28, 1989).
Moreover, the Ohio Court of Appeals in D‘Amico v. City of Stow, No. 14131, 1990 WL 66894, at *6–7 (Ohio Ct. App. May 16, 1990), specifically addressed whether a party bringing a § 2506 appeal must join a related claim—even where the relief requested under the joined claim is unavailable in a § 2506 appeal—to avoid the risk of being barred from later bringing that claim in a separate action. The court in D‘Amico dismissed the plaintiff‘s § 1983 action, ruling that he could have brought his § 1983 claim for money damages as part of his earlier consolidated § 2506 appeal and declaratory-judgment action. It thereforе concluded that
Gillespie had control over this litigation and it was within his ambit to determine the strategy to pursue and in which forum he would litigate. Here, where Gillespie has had a fair opportunity to fully litigate these issues and receive relief, judicial economy requires an end. We will certainly not permit a relitigation of identical
issues solely because the remedy has been unsatisfactory. Res judicata bars claims which were or could have been raised.
Id.
Federal courts interpreting Ohio law have made similar determinations. See Lustgarten v. Ayres, 1982 U.S. App. LEXIS 12523, at *2–3 (6th Cir. Jan. 6, 1982) (holding that the Ohio plaintiff‘s civil rights claims brought pursuant to § 1983 and § 1985 were barred by res judicata because those issues could have been presented during the state administrative appeal regarding her termination); Landberg v. Newburgh Heights Police Dep‘t, No. 1:17-CV-298, 2018 WL 2899660, at *5 (N.D. Ohio June 11, 2018) (concluding that, because the plaintiff could have raised his federal age-discrimination claims alongside a § 2506 appeal in the state trial court, his claims in federal court were barred by res judicata); Maurer v. Leonard, No. C-2-07-1142, 2008 WL 5076816, at *5 (S.D. Ohiо Nov. 21, 2008) (holding that the plaintiff‘s § 1983 claims seeking money damages were precluded by his previous administrative appeal, even though the administrative appeal at issue did not permit the court to award damages).
In sum, these state-court and federal-court cases establish that the unavailability of the desired relief in a § 2506 appeal does not create a bypass to the application of res judicata. Where the plaintiff can join other claims with his § 2506 appeal, and where those joined claims permit such relief, the strictures of res judicata apply.
The dissent acknowledges that “Ohio courts permit plaintiffs to join a § 1983 claim for damages with a § 2506 appeal,” but then concludes that “Ohio courts do not require that plaintiffs join the two actions to avoid claim preclusion.” (Dissent p. 18). To the contrary, Ohio law provides that if a plaintiff can bring a claim in the first action, he or she is barred from relitigating that claim in the second action. Grava, 653 N.E.2d at 228–229 (expressly rejecting the argument that the doctrine of res judicata bars “only those subsequent actions involving the same legal theory of recovery as a previous action,” holding instead that the “modern application of the doctrine bars “all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action“). Although, as the dissent points out, two unpublished Ohio cases have found that res judicata does not apply when a party brings a money-damages claim following an administrative appeal, neither case contemplated the
The same problem exists with the federal district-court cases that Moore relies on. See Negin v. City of Mentor, 601 F. Supp. 1502, 1504 (N.D. Ohio 1985); Blue Rock Investments v. City of Xenia, No. 3:17-CV-409, 2020 WL 1443369, at *4 (S.D. Ohio Mar. 25, 2020). These cases are similarly unpersuasive because they failed to consider what this court made clear in Carroll v. City of Cleveland, 522 F. App‘x 299, 305–06 (6th Cir. 2013), and what the Ohio courts have long recognized: that plаintiffs may bring claims seeking money damages alongside their administrative appeal in a state-court action. See id. (holding that if a plaintiff “follows the proper procedures,” he may seek money damages) (collecting cases). A claimant “splitting his claim and trying to litigate in two forums r[uns] the risk of being vulnerable to a defense based on res judicata.” Perry v. Croucher, 165 F.3d 28, 1998 WL 661151, at *6 (6th Cir. 1998) (table) (internal citation and quotation marks omitted) (holding that the plaintiff could have pursued his § 1983 claim in the state-court litigation). Moore ran that risk here. Because his instant claims were litigated, or could have been litigated, in the state-court action, res judicata applies.
We note that the dissent cites Ohio Kentucky Oil Corp. v. Nolfi, 5 N.E.3d 683, 690 (Ohio Ct. App. 2013), for the proposition that if “‘formal barriers’ exist against a plaintiff in the first action, ‘it is unfair to preclude him from a second action in which he can present those phases of the claim which he was disabled from presenting in the first.‘” (Dissent p. 18). But the “formal barrier” in Nolfi was that a federal court had declined to exercise supplemental jurisdiction over the defendants’ state-law claims. Id. at 691. The defendants had no control over the federal court‘s decision. Here, Moore had full control over the claims that he could have brought in the state-court action.
The dissent next argues that the difference in procedures between a § 2506 appeal and a § 1983 action supports an exception to the res judicata doctrine because joining the two proceedings together in the state court would not further a key goal of claim preclusion: promoting the “efficient use of limited judicial . . . time and resources.” (Dissent p. 23, quoting
Second, we believe that combining the different procedures in one case actually conserves judicial resources. As we have already outlined, Moore is raising in his § 1983 claims the same allegations that he raised his § 2506 Appeal: that the BZA acted outside the scope of its authority and that the procedures used to issue the certificate were unconstitutional. The court system surely saves judicial resources when the trial court reviews the same underlying facts and addresses all related arguments simultaneously, even if the standards of review and the procedures used to do so vary. As the court noted in D‘Amico v. City of Stow, No. 14131, 1990 WL 66894 (Ohio Ct. App. May 16, 1990)—where, as here, the plaintiff attempted to bring a separate § 1983 action for money damages after pursuing a § 2506 appeal—“judicial economy requires an end.” Id. at *6. We also see judicial economy at work in Castle Manufactured Homes, Inc. v. Tegtmeier, No. 98CA0065, 1999 WL 771605 (Ohio Ct. App. Sept. 29, 1999), where the court, relying on the same set оf facts, efficiently addressed the plaintiff‘s § 2506 appeal along with the plaintiff‘s § 1983 damages claim.
And finally, the dissent extracts its argument from a Wisconsin Supreme Court case, Hanlon v. Town of Milton, 612 N.W.2d 44 (Wis. 2000), which is readily distinguishable from the case before us. (Dissent p. 23–24). The statute at issue in Hanlon differs from the statute at issue here precisely on the issue of procedure. “Additional fact finding by the circuit court is not permitted” by the Wisconsin statute, and the “court‘s scope of review is limited to the record produced in the proceeding below.” Id. at 49. By contrast, Moore was permitted to offer additional evidence to the Ohio trial court in his § 2506 Appeal. See SMC, Inc. v. Laudi, 338 N.E.2d 547, 551 (Ohio Ct. App. 1975). In fact, because the BZA was prohibited from ruling on constitutional issues, the trial court was required to allow Moore to present additional
In short, Moore‘s failure to combine all of his claims in his state-court action bars his attempt to piecemeal them here. The Ohio Supreme Court reached the same conclusion in Grava, 653 N.E.2d at 229: “res judicata requires a plaintiff to present every ground for relief in the first action, or be forever barred from asserting it.” Grava, 653 N.E.2d at 229.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.
KAREN NELSON MOORE, Circuit Judge, dissenting. After a careful review of Ohio caselaw, I do not agree with the majority opinion‘s conclusion that Ohio precedent requires a plaintiff to join a
Whether claim preclusion bars Moore‘s § 1983 claim for damages turns on (1) whether under Ohio law, Moore could have litigated his § 1983 claim in his § 2506 appeal proceeding; and (2) whether under Ohio law a plaintiff‘s failure to join a § 1983 claim for damages with a § 2506 appeal will preclude the plaintiff from bringing the § 1983 claim in а subsequent proceeding. See Carroll v. City of Cleveland, 522 F. App‘x 299, 303 (6th Cir. 2013) (noting that a federal court must look to Ohio law to determine whether an Ohio state-court judgment bars a subsequent action).
On the first point, Ohio law clearly limits the kinds of relief a court may grant in a § 2506 appeal.
Moore‘s inability to seek § 1983 damages in his first action makes claim preclusion inapplicable to his circumstancеs. Under Ohio precedent, claim preclusion does not apply when a “plaintiff was unable to . . . seek a certain remedy or form of relief in the first action because of . . . restrictions on [the court‘s] authority to entertain . . . demands for multiple remedies or forms of relief in a single action, and the plaintiff desires in the second action . . . to seek that remedy or form of relief.” Ohio Kentucky Oil Corp. v. Nolfi, 5 N.E.3d 683, 689 (Ohio Ct. App. 2013) (quoting Restatement (Second) of Judgments § 26(c)(1) (Am. Law Inst. 1982)). “Thus, if ‘formal barriers’ exist against a plaintiff in the first action, ‘it is unfair to preclude him from a second action in which he can present those phases of the claim which he was disabled from presenting in the first.‘” Id. at 690 (quoting Restatement (Second) of Judgments § 26 cmt. c). Because the “formal barriers” of the § 2506 appeal proceeding prevented Moore from litigating his § 1983 claim for damages within his § 2506 appeal, Ohio caselaw and the principles of claim preclusion instruct us that the exception to the general rule against claim splitting applies. See Walters v. City of Brecksville, No. 53660, 1988 WL 38111, at *4–5 (Ohio Ct. App. Apr. 21, 1988).
The majority opinion dismisses this concern because it found that no barriers prevent a plaintiff from joining a § 2506 appeal with a § 1983 civil action seeking damages. Therefore, it concludes that Moore‘s failure to join his § 1983 claim with his § 2506 appeal precludes Moore from now asserting his § 1983 claim. Even though Ohio courts permit plaintiffs to join a § 1983 claim for damages with a § 2506 appeal, Ohio courts do not require that plaintiffs join the two actions to avoid claim preclusion. For example, in Coppess, the Ohio court of appeals reviewed the defendants’ appeal from summary judgment where the defendants argued, inter alia, that the
The majority opinion points to D‘Amico v. City of Stow, No. 14131, 1990 WL 66894, at *6–7 (Ohio Ct. App. May 16, 1990), for the proposition that Ohiо courts do require parties to join a § 2506 appeal with a § 1983 claim for damages or risk being barred by claim preclusion. Because Ohio‘s intermediate appellate courts have split on this issue and the Ohio Supreme Court has not decided this question, we can look to “other sources such as ‘restatements of law, law-review commentaries, and the rules adopted by other jurisdictions‘” to guide our inquiry. Croce v. New York Times Co., 930 F.3d 787, 792 (6th Cir. 2019) (quoting Mazur v. Young, 507 F.3d 1013, 1016–17 (6th Cir. 2007)). As discussed supra, the Restatement counsels against applying claim preclusion in this scenario, and as discussed infra, two other relevant sources also support the Ohio courts’ conclusion that claim preclusion is inapplicable under these narrow circumstances.
The majority opinion also relies on this court‘s unpublished decisions in Carroll and Perry v. Croucher, No. 97-3033, 1998 WL 661151 (6th Cir. Aug. 31, 1998), to conclude that plaintiffs may bring § 1983 claims with § 2506 appeals and that the failure to take advantage of
Moreover, although I agree that Ohio caselaw makes clear that plaintiffs can join a § 1983 claim for damages with a § 2506 appeal, it is important to note that Ohio courts consider a § 2506 appeal proceeding to be a separate and distinct proceeding from a § 1983 civil action. See Bolek v. Chardon Bd. of Educ., No. 1014, 1982 WL 5670, at *1 (Ohio Ct. App. Oct. 8, 1982) (per curiam) (“[§ 2506 a]ppeals and original actions are, by their appellation, not similar legal proceedings.“). When considering a § 2506 appeal, “a court of common pleas . . . ‘performs an appellate function,‘” AT&T Commc‘ns of Ohio, Inc. v. Lynch, 969 N.E.2d 1166, 1170 (Ohio 2012) (quoting Dvorak v. Mun. Civ. Serv. Comm‘n of Athens, 346 N.E.2d 157, 160 (Ohio 1976)), and many of the procedural rules and motions that apply to civil actions do not apply to the proceeding. Seе Lupo v. Columbus Board of Zoning Adjustment, No. 13AP-1063, 2014 WL 2931893, ¶¶ 18–21 (Ohio Ct. App. June 26, 2014). Additionally, a § 2506 appeal “does not contemplate the filing of a complaint, but a notice of appeal.” Bolek, 1982 WL 5670, at *1.
Furthermore, the special nature and limits of a § 2506 appeal proceeding make it distinct from the broad federal remedy that is a § 1983 civil action and support a denial of claim preclusion under these circumstances. See 18 Charles Alan Wright, Arthur R. Miller, Edward A. Cooper, Federal Practice and Procedure § 4412, p. 307 & n.16 (3d ed. 2016) (discussing claim preclusion issues in the context of special forms of state-court proceedings; “[c]laim preclusion is readily denied when the remedies sought in the second action could not have been sought in the first action, so long as there was good reason to maintain the first action in a court or in a form of proceeding that could not afford full relief.“). Ohio courts have long noted the special nature of a § 2506 appeal proceeding. Under Ohio law, a plaintiff can challenge the final order of a board of zoning appeals only by filing a § 2506 appeal.1 City of Cleveland v. Sun Oil Co., 577 N.E.2d 431, 433 (Ohio Ct. App. 1989). “Absent an appeal to the court оf common pleas, the board‘s decision becomes a final judgment on the merits, erroneous or not, and is res judicata to identical future applications.” Id.
We recognize that under R.C. 2506.03, authorizing the courts of common pleas to hold the hearing on appeal “as in the trial of a civil action,” the court may admit and consider new evidence, and the court must weigh evidence on the whole record.
However, while an appeal under R.C. 2506.01 resembles a de novo proceeding, it is not de novo. There are limits to a court of common pleas review of the administrative body‘s decision. For example, in weighing evidence, the court may not blatantly substitute its judgment for that of the agency, especially in areas of administrative expertise. Further, new evidence is admitted in an R.C. Chapter 2506 appeal only under certain circumstances . . . .
In reviewing the administrative body‘s decision, a court of common pleas is authorized to determine whether the agenсy‘s decision is “unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence.” R.C. 2506.04. The court will then “affirm, reverse, vacate, or modify the order * * *, or remand” the underlying administrative decision under that standard of review specified in the statute. R.C. 2506.04. These standards that a court of common pleas must employ and the dispositions that it must reach are more limited than relief that could be awarded pursuant to a trial, and therefore, the administrative appeal is more akin to an appeal than a trial.
Lynch, 969 N.E.2d at 1169–70 (internal quotations and citations omitted); see also Klein v. Hamilton Cnty. Bd. of Zoning Appeals, 716 N.E.2d 268, 271 (Ohio Ct. App. June 26, 1998) (“The scope of judicial review of the zoning board‘s decision [under § 2506], furthermore, is very limited and unusually deferential. The board‘s decision on such matters is presumed to be valid, and the burden is upon the party contesting the board‘s determination to prove otherwise.“).
In contrast, a civil action involving a § 1983 claim has fewer procedural and substantive limitations. Civil actions involve discovery, the presentation of evidence, and other procedures not guaranteed or allowed in § 2506 appeals. Unlike the limited authority of the court of common pleas in a § 2506 proceeding, when presiding over a civil action the court of common pleas hears the case de novo and has the authority to “weigh conflicting evidence and determine issues of fact” in a manner it is not authorized to do in a § 2506 appeal. Manning v. Straka, 189 N.E.2d. 651, 653 (Ohio Ct. App. 1962). A plaintiff also has a right to demand a jury trial in
The issues discussed above add clarity to the Ohio courts’ decision not to require a plaintiff to join a § 1983 claim for damages with a § 2506 appeal in order to avoid claim preclusion, even though the Ohio courts permit a plaintiff to join such claims. Both substantive and procedural considerations counsel against requiring joinder in this context. Due to the differences in substance and procedure, joining a § 1983 cause of action to a § 2506 appeal may lengthen and complicate the court‘s review of the more limited § 2506 appeal, espеcially because courts and parties may attempt to apply the wrong standards and procedures to the § 2506 appeal. Consequently, joining these two proceedings together does not “promote[] the efficient use of limited judicial . . . time and resources,” Grava v. Parkman Twp., 653 N.E.2d 226, 230 (Ohio 1995), and thus does not further a key objective of claim preclusion.
Notably, in Hanlon v. Town of Milton, the Wisconsin Supreme Court reached the same conclusion when considering very similar circumstances. 612 N.W.2d 44 (Wis. 2000). In Hanlon, the Seventh Circuit certified for determination by the Wisconsin Supreme Court a question of law concerning, inter alia, whether under Wisconsin law the failure of a litigant to join the review of an administrative decision with a § 1983 claim for damages that arose from the
The Wisconsin Supreme Court also addressed the reasoning of the majority here that a litigant‘s failure to join a § 1983 claim for damages with a limited administrative appeal proceeding should result in claim preclusion barring a federal court from considering the § 1983 claim for damages. Id. The Wisconsin Supreme Court noted that a plaintiff could join a certiorari proceeding with a § 1983 civil action. Id. at 50. Nevertheless, it held that a failure to join the claims did not bar a plaintiff from pursuing a § 1983 claim for damages even after a plaintiff litigates a certiorari proceeding in which the plaintiff raises the same arguments. Id. The court based its conclusions on issues identical to those before us, i.e., the limited nature of the certiorari proceeding as compared to a § 1983 civil action, including the differences in the statutes of limitation for both claims. Id. at 48–50.
I find the Wisconsin Supreme Court‘s unanimous decision to be very persuasive, and it bolsters the Ohio courts’ conclusion that claim preclusion is inappropriate in this context. A § 2506 appeal “and a § 1983 action do not fit together within the fundamental structure of bringing one judicial action. The objectives of claim preclusion, therefore, cannot be attained.” Id. at 49. Thus, I believe that this court should conclude that claim preclusion does not bar Moore‘s § 1983 claim for damages. Respectfully, I dissent.