Petree, Judge.
Plaintiff, Keeley & Associates, Inc., appeals from a judgment of the Franklin County Court of Common Pleas in favor of defendant, Integrity Supply, Inc. Plaintiff sets forth the following assignments of error:
“I. The trial court erred in granting summary judgment in reliance upon the doctrine of
res judicata
because the cause of action contained in the complaint is
dissimilar from the issues presented and decided in
Integrity Supply, Inc. v. C. Robert Keeley.
“II. The trial court erred in granting summary judgment in reliance upon the doctrine of
res judicata
because the parties in this action were dissimilar from the parties involved in
Integrity Supply, Inc. v. C. Robert Keeley.
“III. The trial court erred in granting summary judgment in this action in reliance upon the doctrine of
res judicata
because the jury verdict in
Integrity Supply, Inc. v. C. Robert Keeley
did not adjudicate the merits of Keeley and Associates, Inc.’s claims against Integrity for amounts owed for services rendered by the corporation.”
On June 10,1992, Integrity Supply, Inc. (“Integrity”) filed an action against C. Robert Keeley in the Franklin County Court of Common Pleas (“1992 action”). Therein, Integrity sought money damages from Mr. Keeley for an alleged breach of a communications consulting agreement. Although plaintiff, Keeley & Associates, Inc., was a party to the contract at issue, the corporation was not named as a party in the 1992 action.
During the pendency of the 1992 action, plaintiff filed a separate action against Integrity (“1993 action”). Therein, plaintiff brought a claim against Integrity for the reasonable value of services rendered to Integrity under the consulting agreement. This action was eventually dismissed by plaintiff voluntarily, pursuant to Civ.R. 41(A). At that time, the 1992 action was still pending. Thereafter, on November 22, 1993, the 1992 action was tried to a jury. The jury returned a verdict in favor of Mr. Keeley.
On June 9, 1995, plaintiff brought the instant action against Integrity, being case No. 95CVH06-3965 on the docket of the Franklin County Court of Common Pleas. In this case, plaintiff seeks the same relief requested in the 1993 action: the reasonable value of services rendered to Integrity arising from the communications consulting agreement.
Integrity moved for summary judgment in the trial court, arguing that plaintiffs action was barred by
res judicata
and collateral estoppel. On June 7, 1996, the trial court issued a decision granting the motion for summary judgment. A judgment entry dismissing plaintiffs cause of action was journalized by the trial court on June 10, 1996. Plaintiff appeals to this court from the judgment of the Franklin County Court of Common Pleas.
In each of plaintiffs assignments of error, plaintiff argues that the trial court erred when it determined that its cause of action was barred by the doctrine of
res judicata.
Accordingly, we will consider those assignments of error jointly.
Res judicata
involves both claim preclusion and issue preclusion or collateral estoppel.
Grava v. Parkman Twp.
(1995), 73 Ohio St.3d 379, 381, 653 N.E.2d 226, 228. Under the doctrine of
res judicata,
a valid final judgment rendered upon the merits bars all subsequent actions by the parties or their privies which are based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action.
Id.
The doctrine applies not only to those who were parties in the prior action and those who were in privity with litigants, but also to those who could have joined the action and did not. See
Howell v. Richardson
(1989), 45 Ohio St.3d 365, 367, 544 N.E.2d 878, 880-881.
The crux of plaintiffs argument on appeal is that there is a lack of the necessary identity of parties between the 1992 action and the current litigation. Although Mr. Keeley was the lone defendant in the prior action, the trial court determined that Mr. Keeley and plaintiff shared a common identity for purposes of this case and the 1992 action. The trial court relied on the fact that Mr. Keeley was plaintiffs sole shareholder and sole corporate officer in making this determination.
Support for the trial court’s ruling can be found in a case decided by the Butler County Court of Appeals. In
Grant Fritzsche Ent., Inc. v. Fritzsche
(1995), 107 Ohio App.3d 23, 667 N.E.2d 1004, a corporation, in which a divorced husband was the sole shareholder, sued his former wife for damages allegedly arising from acts of conversion and fraud she committed as an employee and part owner of the corporation. The common pleas court entered summary judgment in favor of the wife, relying on the doctrine of
res judicata.
In affirming the trial court, the court of appeals reasoned that the divorced husband, as the person who had exclusive control and ownership of the corporation, shared such an identity of interest with the corporation that the trial court was justified in concluding that the husband adequately represented the corporation’s legal rights during the prior divorce proceeding.
Id.
at 25, 667 N.E.2d at 1005-1006. The court noted that the husband knew that his wife had misappropriated funds from the corporation before entering into the settlement with her and could have shaped the settlement accordingly.
Id.
at 25, 667 N.E.2d at 1005-1006.
In this case, as in
Fritzsche, supra,
Mr. Keeley effectively controlled plaintiff as its sole shareholder and director. Mr. Keeley was also plaintiffs promoter, incorporator and sole employee. Mr. Keeley necessarily had knowledge of plaintiffs claim against Integrity during the pendency of the 1992 action. Under these circumstances, the trial court was justified in concluding that Mr. Keeley and plaintiff shared the same identity for purposes of asserting a claim against Integrity for the reasonable value of services rendered to Integrity.
Id.
Nevertheless, plaintiff argues that the court, by applying the doctrine of
res judicata
in this case, ignored Integrity’s corporate identity without the required proof of fraud or illegality.
Belvedere Condominium Unit Owners’ Assn. v. R.E. Roark Cos., Inc. (1993),
67 Ohio St.3d 274, 289, 617 N.E.2d 1075, 1086-1087. However, an affidavit filed by Mr. Keeley in the 1992 action and the corporate minutes attached as an exhibit thereto clearly evidence the fact that Mr. Keeley and plaintiff were one and the same.
Mr. Keeley’s affidavit reads:
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Petree, Judge.
Plaintiff, Keeley & Associates, Inc., appeals from a judgment of the Franklin County Court of Common Pleas in favor of defendant, Integrity Supply, Inc. Plaintiff sets forth the following assignments of error:
“I. The trial court erred in granting summary judgment in reliance upon the doctrine of
res judicata
because the cause of action contained in the complaint is
dissimilar from the issues presented and decided in
Integrity Supply, Inc. v. C. Robert Keeley.
“II. The trial court erred in granting summary judgment in reliance upon the doctrine of
res judicata
because the parties in this action were dissimilar from the parties involved in
Integrity Supply, Inc. v. C. Robert Keeley.
“III. The trial court erred in granting summary judgment in this action in reliance upon the doctrine of
res judicata
because the jury verdict in
Integrity Supply, Inc. v. C. Robert Keeley
did not adjudicate the merits of Keeley and Associates, Inc.’s claims against Integrity for amounts owed for services rendered by the corporation.”
On June 10,1992, Integrity Supply, Inc. (“Integrity”) filed an action against C. Robert Keeley in the Franklin County Court of Common Pleas (“1992 action”). Therein, Integrity sought money damages from Mr. Keeley for an alleged breach of a communications consulting agreement. Although plaintiff, Keeley & Associates, Inc., was a party to the contract at issue, the corporation was not named as a party in the 1992 action.
During the pendency of the 1992 action, plaintiff filed a separate action against Integrity (“1993 action”). Therein, plaintiff brought a claim against Integrity for the reasonable value of services rendered to Integrity under the consulting agreement. This action was eventually dismissed by plaintiff voluntarily, pursuant to Civ.R. 41(A). At that time, the 1992 action was still pending. Thereafter, on November 22, 1993, the 1992 action was tried to a jury. The jury returned a verdict in favor of Mr. Keeley.
On June 9, 1995, plaintiff brought the instant action against Integrity, being case No. 95CVH06-3965 on the docket of the Franklin County Court of Common Pleas. In this case, plaintiff seeks the same relief requested in the 1993 action: the reasonable value of services rendered to Integrity arising from the communications consulting agreement.
Integrity moved for summary judgment in the trial court, arguing that plaintiffs action was barred by
res judicata
and collateral estoppel. On June 7, 1996, the trial court issued a decision granting the motion for summary judgment. A judgment entry dismissing plaintiffs cause of action was journalized by the trial court on June 10, 1996. Plaintiff appeals to this court from the judgment of the Franklin County Court of Common Pleas.
In each of plaintiffs assignments of error, plaintiff argues that the trial court erred when it determined that its cause of action was barred by the doctrine of
res judicata.
Accordingly, we will consider those assignments of error jointly.
Res judicata
involves both claim preclusion and issue preclusion or collateral estoppel.
Grava v. Parkman Twp.
(1995), 73 Ohio St.3d 379, 381, 653 N.E.2d 226, 228. Under the doctrine of
res judicata,
a valid final judgment rendered upon the merits bars all subsequent actions by the parties or their privies which are based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action.
Id.
The doctrine applies not only to those who were parties in the prior action and those who were in privity with litigants, but also to those who could have joined the action and did not. See
Howell v. Richardson
(1989), 45 Ohio St.3d 365, 367, 544 N.E.2d 878, 880-881.
The crux of plaintiffs argument on appeal is that there is a lack of the necessary identity of parties between the 1992 action and the current litigation. Although Mr. Keeley was the lone defendant in the prior action, the trial court determined that Mr. Keeley and plaintiff shared a common identity for purposes of this case and the 1992 action. The trial court relied on the fact that Mr. Keeley was plaintiffs sole shareholder and sole corporate officer in making this determination.
Support for the trial court’s ruling can be found in a case decided by the Butler County Court of Appeals. In
Grant Fritzsche Ent., Inc. v. Fritzsche
(1995), 107 Ohio App.3d 23, 667 N.E.2d 1004, a corporation, in which a divorced husband was the sole shareholder, sued his former wife for damages allegedly arising from acts of conversion and fraud she committed as an employee and part owner of the corporation. The common pleas court entered summary judgment in favor of the wife, relying on the doctrine of
res judicata.
In affirming the trial court, the court of appeals reasoned that the divorced husband, as the person who had exclusive control and ownership of the corporation, shared such an identity of interest with the corporation that the trial court was justified in concluding that the husband adequately represented the corporation’s legal rights during the prior divorce proceeding.
Id.
at 25, 667 N.E.2d at 1005-1006. The court noted that the husband knew that his wife had misappropriated funds from the corporation before entering into the settlement with her and could have shaped the settlement accordingly.
Id.
at 25, 667 N.E.2d at 1005-1006.
In this case, as in
Fritzsche, supra,
Mr. Keeley effectively controlled plaintiff as its sole shareholder and director. Mr. Keeley was also plaintiffs promoter, incorporator and sole employee. Mr. Keeley necessarily had knowledge of plaintiffs claim against Integrity during the pendency of the 1992 action. Under these circumstances, the trial court was justified in concluding that Mr. Keeley and plaintiff shared the same identity for purposes of asserting a claim against Integrity for the reasonable value of services rendered to Integrity.
Id.
Nevertheless, plaintiff argues that the court, by applying the doctrine of
res judicata
in this case, ignored Integrity’s corporate identity without the required proof of fraud or illegality.
Belvedere Condominium Unit Owners’ Assn. v. R.E. Roark Cos., Inc. (1993),
67 Ohio St.3d 274, 289, 617 N.E.2d 1075, 1086-1087. However, an affidavit filed by Mr. Keeley in the 1992 action and the corporate minutes attached as an exhibit thereto clearly evidence the fact that Mr. Keeley and plaintiff were one and the same.
Mr. Keeley’s affidavit reads:
“(2) That with respect to all alleged undertakings, conduct, and activity of any kind, including, but not limited to acting as a telecommunications consultant, Affiant was acting as promoter and on behalf of Keeley & Associates, Inc., an Ohio corporation;
“(3) Affiant further states that at all times and places of such conduct and activity involving Plaintiff corporation and himself, Plaintiff corporation and he transacted all business as being between Plaintiff corporation and Keeley & Associates, Inc., exclusively; that Plaintiff corporation understood by said conduct and activity, and by specific representations that Keeley & Associates, Inc. was the sole and only responsible party relative to any transactions and undertakings which Affiant, as promoter of Keeley & Associates, Inc., entered into with Plaintiff corporation;
« if:
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“(6) That pursuant to the Minutes of the Shareholder’s First Meeting, all business conducted by C. Robert Keeley as incorporater and promoter in the name of said corporation in furtherance of corporate business were affirmed as the acts of the corporation.”
The corporate minutes referred to in the affidavit state:
“It was moved by the Chairman and seconded by the Secretary that such business, as was undertaken by this corporation as of the date of incorporation, which was the 26th day of May, 1992, any business conducted by the incorporator in the name of the corporation prior to the date of incorporation, all of which are in furtherance of said business, are hereby affirmed as the acts of this corporation. All of the foregoing having been moved by the Chairman and seconded by the Secretary, the resolution was unanimously carried.
“The Secretary then moved that the corporation hereby ratify and adopt any and all acts, contracts, or agreements done or entered into by the promoters or incorporators of this corporation and that this corporation reimburse such out of pocket expenses as were reasonably incurred by said promoters and incorporators in the formation of this corporation. The motion was seconded and unanimously carried.”
In combination, these documents establish that plaintiff and Mr. Keeley shared a common identity for purposes of the transaction underlying this litigation.
Plaintiff next argues that the trial court erred in applying the doctrine of
res judicata
because its claim for the reasonable value of services was never actually litigated in the 1992 action. However, the Ohio Supreme Court has stated that the doctrine of
res judicata
bars not only those claims which were actually litigated in the prior action, but those which could or should have been litigated.
Grava, supra.
Civ.R. 13(A) provides:
“Compulsory counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13.”
Civ.R. 13(A), like the doctrine of
res judicata,
is a rule of procedure designed to avoid multiplicity of suits by requiring in one action the litigation of all existing claims arising from a single transaction or occurrence, no matter which party initiates the action.
Rettig Ent., Inc. v. Koehler
(1994), 68 Ohio St.3d 274, 626 N.E.2d 99;
Newcomer & McCarter v. Al-Marayati
(1991), 72 Ohio App.3d 293, 594 N.E.2d 657. Failure to assert a compulsory counterclaim acts as a bar to litigation of the counterclaim in a separate lawsuit. See
Osborn Co. v. Ohio Dept. of Adm. Serv.
(1992), 80 Ohio App.3d 205, 608 N.E.2d 1149.
The Supreme Court has employed the “logical relation” test to determine whether claims between opposing parties arise out of the same transaction or occurrence.
Rettig, supra.
In this case, there is no doubt that plaintiffs claim for the reasonable value of services it rendered to Integrity is logically related to Integrity’s breach-of-contract claim asserted in the 1992 action. Both claims arise out of the same communications consulting agreement. Applying Civ.R. 13(A), we find that plaintiffs claim for the reasonable value of services rendered to Integrity was a compulsory counterclaim in the 1992 action under the circumstances in this case.
Plaintiff argues, alternatively, that it did not have a legal right to assert a compulsory counterclaim in the 1992 action since it was never made a party in that case. However, as stated above, based on the facts of this case, the trial
court was justified in concluding that Mr. Keeley and plaintiff shared a common identity for purposes of actions or claims arising out of the communications consulting contract. Indeed, the trial court found that Mr. Keeley was the real party in interest in the 1992 action. Given this determination, there is little doubt that the trial court would have permitted Mr. Keeley to assert the claim on behalf of plaintiff or permitted plaintiff to join the 1992 action for the purposes of asserting that claim. At a minimum, Mr. Keeley had an obligation to move the court in the 1992 action, to allow him to bring a claim on behalf of the corporation or to permit plaintiffs joinder in the 1992 action for the purpose of asserting the claim. Under the circumstances, simply setting forth a defense of failure to join a necessary party, as was done by Mr. Keeley in the 1992 action is not sufficient to alert the court to the existence of a compulsory counterclaim. In short, we find that the failure to assert the claim in the 1992 action bars plaintiff from pursuing that claim in this action.
This opinion should not be understood to expand the doctrine of
res judicata
in all cases involving closely held corporations. Rather, our conclusion is based on the facts in this particular case. For the foregoing reasons, plaintiffs assignments of error are overruled.
Having overruled each of plaintiffs assignments of error, we hereby affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
Bowman, J., concurs.
Lazarus, J., dissents.