dissenting.
{¶ 40} Respectfully, I dissent.
{¶ 41} The Jefferson County Common Pleas Court judgment is binding only upon the parties to that suit. When the state Fire Marshal settled that case and agreed to the court’s entry of judgment, he bound himself to its terms. The court simply journalized the settlement agreement between those parties. The record before us, however, does not reflect whether the Attorney General was made a party to this litigation, which questioned, in part, the constitutionality of Am.Sub.H.B. 215, 147 Ohio Laws, Part I, 909, 2197.
{¶ 42} The peculiar problem here arises because the Fire Marshal must now choose whether to comply with the Jefferson County order to transfer Safety 4th’s fireworks licenses, pursuant to his agreement to do so, or with the Fayette County order enjoining him from doing so; the Fire Marshal therefore will violate a court order no matter which course of action he follows. This conflict creates the question before us.
{¶ 43} Realizing that its pecuniary interests could be affected by a judgment in the Jefferson County Court of Common Pleas, Ohio Pyro filed a timely motion to intervene in that action, but the trial court disallowed the motion. In its ruling denying Ohio Pyro’s motion, the Jefferson County court indicated that while Ohio Pyro claimed an interest in preventing Safety 4th from moving into an area where it would compete with Ohio Pyro, it had not alleged that Safety 4th was actually moving into that area.
{¶ 44} As a result of the Jefferson County settlement agreement and order, Safety 4th took significant steps toward relocating its fireworks licenses to Fayette County by purchasing real estate and erecting a building. Ohio Pyro then filed this action in the Fayette County Court of Common Pleas to contest the impending transfer of Safety 4th’s licenses, asserting a violation of R.C. 3743.75. The Fayette County Court of Common Pleas agreed with Ohio Pyro and prohibited the Fire Marshal from completing the transfer, and the Twelfth District Court of Appeals affirmed that judgment.
{¶ 45} The matter is now before this court on the question whether Ohio Pyro, a stranger to the Jefferson County action, has improperly levied a collateral attack on that court’s order.
{¶ 46} Here, we find a litigant who actively sought to protect its legal rights by moving to intervene in the Jefferson County action and then by suing to prevent the transfer of the Safety 4th licenses to Fayette County. Today, a majority of this court tells Ohio Pyro that the action filed in Fayette County “amounts to an impermissible collateral attack on a prior valid judgment.” Majority, at ¶ 1. *385This, in my view, misapplies the collateral-attack doctrine and sets a bad precedent for future litigants.
{¶ 47} This action did not constitute a collateral attack on the settlement between the Fire Marshal and Safety 4th, as nothing in that settlement specifically ordered transfer of the Safety 4th fireworks licenses to Fayette County — those transfers could have been to any of the 88 counties in Ohio, the vast majority of which would have posed no conflict for the Fire Marshall and no harm to Ohio Pyro. In fact, the Jefferson County trial court stated in its entry denying intervention that the claimed interest of preventing a competitor from moving into an area where it could compete with an existing business was “so speculative that it cannot be seriously considered,” and further opined that the interests of Ohio Pyro would be “adequately represented by the Ohio Department of Commerce who will vigorously defend the Fireworks Code as it now stands.” It is now apparent that the Ohio Department of Commerce did not adequately represent Ohio Pyro’s interests in the Jefferson County proceeding.
{¶ 48} Simply stated, the Fayette County action does not collaterally attack the Jefferson County Court of Common Pleas ruling. Inasmuch as Ohio Pyro had been denied the right to intervene in the Jefferson County case, it had no ability to appeal the judgment resulting from the settlement between the Fire Marshal and Safety 4th.
{¶ 49} Even assuming, arguendo, that Ohio Pyro’s action is a collateral attack, I would not hold it to be an “impermissible” collateral attack. The United States Supreme Court has recognized that “ ‘[i]t is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.’ Hansberry v. Lee (1940), 311 U.S. 32, 40, 61 S.Ct. 115, 117, 85 L.Ed. 22. * * * This rule is part of our ‘deep-rooted historic tradition that everyone should have his own day in court.’ 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure [ (1981) 417, Section 4449] * * *. A judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings.” Martin v. Wilks (1989), 490 U.S. 755, 761-762, 109 S.Ct. 2180, 104 L.Ed.2d 835, superseded in part by Section 108 of the Civil Rights Act of 1991, codified at Section 2000e-2(n), Title 42, U.S.Code.
{¶ 50} As the court noted in Plater v. Jefferson (App.1956), 75 Ohio Law Abs. 68, 136 N.E.2d 111, strangers to a judgment may, in some cases, collaterally attack that judgment. The court in Plater held that “ ‘[i]t is only those strangers who, if the judgment were given full credit and effect, would be prejudiced in regard to some pre-existing right that are permitted to impeach the judgment. Being neither parties to the action, nor entitled to manage the cause nor appeal *386from the judgment, they are by law allowed to impeach it whenever it is attempted to be enforced against them so as to effect [sic] rights or interests acquired prior to its rendition.’ ” (Emphasis added and emphasis sic.) 75 Ohio Law Abs. 68, 136 N.E.2d at 113, quoting 1 Freeman, A Treatise on the Law of Judgments (5th Ed.1925), 636-637, Section 319.
Bricker & Eckler, L.L.P., and T. Earl LeVere, for appellees. Marc Dann, Attorney General, Elise Porter, Acting State Solicitor, Stephen P. Carney, Deputy Solicitor, and Hilary R. Damaser and Susan M. Sullivan, Assistant Solicitors, for appellant Ohio Department of Commerce, Division of State Fire Marshal.{¶ 51} Moreover, in determining that the denial of an insurer’s motion to intervene did not constitute a final, appealable order, this court held: “When a party has sought and been denied intervention, collateral estoppel will not prohibit future litigation of similar issues.” Gehm v. Timberline Post & Frame, 112 Ohio St.3d 514, 2007-Ohio-607, 861 N.E.2d 519, at paragraph two of the syllabus, construing Howell v. Richardson (1989), 45 Ohio St.3d 365, 544 N.E.2d 878.
{¶ 52} Ohio Pyro has done just that. It unsuccessfully sought to intervene in the action between Safety 4th and the Fire Marshall. Its business interest in the enforcement of the fireworks moratorium became ripe when Safety 4th attempted to transfer its licenses to Fayette County, where Ohio Pyro does business. Ohio Pyro then sued in Fayette County to protect its business interests, because it had been denied the right to do so in the Jefferson County action.
{¶ 53} The appellate court noted that “[i]t is not necessary to defeat or avoid the operation of the Jefferson County agreed settlement entry for the [Fayette County] trial court to address the issues brought forth in this action filed below.” Ohio Pyro, Inc. v. Ohio Dept. of Commerce, Div. of State Fire Marshal, Fayette App. Nos. CA 2005-03-009 and CA 2005-03-011, 2006-Ohio-1002, 2006 WL 522457, ¶ 19. Even assuming this to be incorrect, I would still permit Ohio Pyro to proceed based upon my reading of Gehm and Plater. In either event, I would allow Ohio Pyro to maintain this action.
{¶ 54} I therefore concur with the conclusion reached by the appellate court. The grant of summary judgment was appropriate on the issues of irreparable harm and no adequate remedy at law, and on the claim for declaratory relief, dismissal was not appropriate.
{¶ 55} Accordingly, I would affirm the judgment of the appellate court.
Wiles, Boyle, Burkholder & Bringardner, L.P.A., Michael L. Close, and Dale D. Cook; and W. Scott Simon, for appellants Safety 4th Fireworks, Inc., and Liberty Fireworks, Inc.