Kelly v. Georgia-Pacific Corp.

Wright, J.,

dissenting. This case, while seemingly complex, should turn on a single narrow issue. That issue is whether the same parties who litigated different causes of action in federal court wherein particular issues of fact were necessarily adjudicated are precluded from relitigating those same issues of fact in state court under different legal theories.

I

It is clear to me that the appellant is barred by the doctrine of collateral estoppel from bringing his subsequent suit in state court because the particular issues of fact raised in this case have been “* * * passed upon and determined by a court of competent jurisdiction.” Norwood v. McDonald (1943), 142 Ohio St. 299, 27 O.O. 240, 52 N.E. 2d 67, paragraph three of the syllabus. For this and the reasons that follow, I must respectfully dissent from the majority’s holding that somehow the federal district court’s prior determination of the salient points involved in this controversy will not bar appellant from raising them in these proceedings.

Appellant Kelly originally brought a variety of actions in the United States District Court for the Northern District of Ohio, Eastern Division, based on federal claims premised upon *141alleged age-discrimination and pension-fund violations. Georgia-Pacific was granted summary judgment on these claims and the court’s ruling was affirmed on appeal. Kelly also asserted pendent state claims based on tort and contract causes of action under state law. A handicap discrimination claim was voluntarily dismissed by Kelly and the pendent state claims were ultimately dismissed, without prejudice, by the federal tribunal.

Kelly then sued in state court on contract claims of breach of the covenant of good faith and fair dealing, breach of express and implied contract, and promissory estoppel, and on tort claims of negligent termination and defamation. Kelly dismissed the defamation claim and the trial court found that Ohio does not recognize a cause of action for negligent termination and thus dismissed that count.

The remaining counts arise out of Kelly’s contention that defendant’s policies and behavior have altered Kelly’s employee-at-will status. The trial court granted defendant’s motion for summary judgment regarding these claims, since essential facts necessary to establish the thrust of Kelly’s state claims had already been determined against him in the federal litigation. In other words, issue preclusion collaterally estopped Kelly from litigating certain facts, and other unrebutted facts entitled Georgia-Pacific to summary judgment.

The general definition of the doctrine of collateral estoppel and its proper application are well-settled by this court. In the seminal case of Norwood v. McDonald, supra (approved and followed in Whitehead v. General Tel Co. [1969], 20 Ohio St. 2d 108, 49 O.O. 2d 435, 254 N.E. 2d 10, paragraph two of the syllabus), this court held:

“A point or a fact which was actually and directly at issue in a former action and was there passed upon and determined by a court of competent jurisdiction may not be drawn in question in any future action between the same parties or their privies, whether the cause of action in the two actions be identical or different.” (Emphasis added.) Norwood, supra, at paragraph three of the syllabus. Thus, a “* * * prior judgment estops a party, or a person in privity with him, from subsequently relitigating the identical issue raised in the prior action.” Whitehead, supra, at paragraph two of the syllabus. See, also, Goodson v. McDonough Power Equip., Inc. (1983), 2 Ohio St. 3d 193, 2 OBR 732, 443 N.E. 2d 978, paragraph one of the syllabus. As Whitehead explains: “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 relitigating 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 (1876), 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.” (Emphasis sic). Id. at 112, 49 O.O. 2d at 437-438, 254 N.E. 2d at 13 (quoted in Goodson, supra, at 195, 2 OBR at 734, 443 N.E. 2d at 981).

As an incident to its summary judgment decision, the federal court necessarily had to examine all the facts and circumstances surrounding Kelly’s claims against Georgia-Pacific in order *142to find any inference of age discrimination. The court was required to and did review the employment policies of defendant and specifically addressed how the company dealt with terminated employees. In order to sustain the summary judgment, the court in its twenty-page memorandum and six-page order essentially found it to be unrebutted that Georgia-Pacific had a legitimate business reason to eliminate plaintiff Kelly’s sales territory and his position and found further that the language from the operating policy manual upon which plaintiff claimed to have relied was too general to constitute an alteration of plaintiff’s employee-at-will status. I must point out that the majority opinion simply misstates the scope of the federal court’s factual determination. The majority mistakenly suggests that the district court limited itself to consideration of only those facts related to the context of a federal age-discrimination claim and thus resolved the issues noted above.

It is well-settled that a state supreme court, and not a federal district court, is the final arbiter of questions of purely state law. Thus, it is beyond cavil that it is within the province of this court and the courts below to determine if a point or issue involving the laws of the state of Ohio has been actually litigated and finally determined. The trial court clearly had the right and duty to apply the collateral estoppel doctrine in this case.

II

I would agree with the majority’s discussion of Mers v. Dispatch Printing Co. (1985), 19 Ohio St. 3d 100, 19 OBR 261, 483 N.E. 2d 150, approved and followed in Helmick v. Cincinnati Word Processing, Inc. (1989), 45 Ohio St. 3d 131, 543 N.E. 2d 1212, recognizing that the doctrine of promissory estoppel is applicable to and binding upon oral employment-at-will agreements where detrimental reliance is apparent. I also agree that “* * * [t]he test in such cases is whether the employer should have reasonably expected its representation to be relied upon by its employee, and, if so, whether the expected action or forbearance actually resulted and was detrimental to the employee.” (Emphasis added.) Mers, supra, at paragraph three of the syllabus.

However, when discussing the preclusion of the relitigation of a point of law or fact, it should be remembered that under a claim of promissory estoppel involving an oral employment-at-will agreement, the trier of fact is to look at all the facts and circumstances of the case. These facts and circumstances include “the character of the employment, custom, the course of dealing between the parties, company policy, or any other fact which may illuminate the question.” Id. at paragraph two of the syllabus.

The plaintiff in his deposition concedes that he never even saw the employment policy manual, neither the 1980 version nor the 1983 version with the disclaimer that all employee relationships are on an at-will basis, until after he had left Georgia-Pacific. Further, Georgia-Pacific did not make any representations about job security to plaintiff. Thus, plaintiff could not have relied upon the terms in the manual.

The district court found that the language in the manual was too general to create a binding policy; and that even if statements in the manual constituted a transfer policy, there was no policy mandating transfer between divisions, and that defendant corporation had made a good faith effort to transfer the plaintiff to another suitable job. Indeed, all the above issues of fact were litigated and con*143clusively determined in the federal action in favor of Georgia-Pacific. It is difficult to see how this case can survive a directed verdict in light of appellant’s specific admission that he in no way relied on the manual to his detriment.

I am puzzled by the majority’s seeming lack of awareness of this established doctrine. I say this because there are strong policy justifications underlying the use of the doctrine of collateral estoppel. One of the chief justifications for the doctrine is to protect the rights of the defendant by preventing the plaintiff, who is allowed broad latitude in choosing the time and forum of the action, from being able to relitigate issues in yet another forum if unsuccessful in his first action. Stated another way, “* * * [t]he rule recognizes that every litigant should be allowed to choose when and where to bring his own claims and that plaintiff should not have the advantage of compelling the defendant to bring claims prematurely.” Friedenthal,' Kane & Miller, Civil Procedure (1985), Section 14.6, at 637.

A second equally important justification is that reasonable application of collateral estoppel can save considerable judicial resources, since issues or points of law, once conclusively determined, need not be again determined. Relitigating issues already determined takes up the court’s valuable time that could better be spent resolving legal concerns of litigants who are before the court for the first time. Id. at 628, 637. Indeed, the United States Supreme Court has noted that use of the doctrine of collateral estoppel promotes judicial economy. See Parklane Hosiery Co. v. Shore (1979), 439 U.S. 322, 329. Thus, preserving the rights of defendants and promoting judicial economy are both major policy justifications for the use of collateral estoppel, a doctrine that clearly should bar plaintiff’s claims in the case before us.

Balanced against these two significant policy concerns are two mandates with respect to fundamental fairness in the application of collateral estoppel. First, the plaintiff must have had an opportunity to fully, fairly, and vigorously litigate an issue in the first action. Goodson, supra, at 198, 2 OBR at 737, 443 N.E. 2d at 983. Second, the plaintiff must have been able to foresee “* * * that the issue would be subsequently utilized collaterally.” Id. at 201, 2 OBR at 739, 443 N.E. 2d at 986.

It is perfectly apparent that plaintiff was given a more than adequate opportunity to fully, fairly, and vigorously litigate the issues. Plaintiff was fully represented by counsel at all stages of the first proceeding. Plaintiff was afforded adequate procedural due process. Plaintiff zealously explored a variety of alternative causes of action, covering the gamut of factual issues that could be presented in such contract or tort actions.

It is equally apparent to me that plaintiff should have foreseen that these issues which were fully and finally adjudicated in his federal action would serve to bar him from relitigating these same issues in the state action. Obviously, the federal court would have had to and did make comprehensive factual determinations in order to rule on plaintiff’s federal claims.

For the reasons aforesaid I agree with the trial court and the court of appeals that appellant cannot challenge the prior determination regarding the general language of the manual in a state cause of action. The summary judgment granted to Georgia-Pacific is well grounded on unrebutted facts in plaintiff’s deposition that preclude him *144from varying his status as an employee at will.

Accordingly, I would affirm the decision of the court of appeals, a decision I feel to be in complete harmony with our holding in Mers v. Dispatch Printing Co., supra.

Moyer, C. J., and Holmes, J., concur in the foregoing dissenting opinion.