# Johnson's Island, Inc. v. Board of Township Trustees > Ohio Supreme Court · February 17, 1982 · 69 Ohio St. 2d 241 URL: https://www.frixlaw.com/law-library/cases/6757485 ## Case - **Full name:** Johnson's Island, Inc. v. Board of Township Trustees of Danbury Township - **Court:** Ohio Supreme Court - **Decided:** February 17, 1982 - **Citations:** 69 Ohio St. 2d 241 - **Precedential status:** Published - **Opinion:** Dissent by Brown - **Judges:** Brown, Celebrezze, Holmes, Krupansky, Locher, Sweeney - **Cited by:** 111 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6757485 ## How later opinions describe it (automated extraction) - finding mutuality of interest sufficient to establish privity between township trustees seeking injunction to prevent violations of zoning ordinance and property owners seeking similar injunctive relief in prior action - establishing the same doctrine for res judicata as the United States Court of Appeals for the Fourth Circuit ## Opinion text William B. Brown, J., dissenting. In my opinion, the majority opinion misapplies and confuses the doctrines of res judicata and collateral estoppel in the course of reaching an unjust result, and I must, therefore, dissent. Res judicata and collateral estoppel are quite different doctrines. Res judicata provides that a final judgment by a court of competent jurisdiction is conclusive upon the parties in any subsequent litigation involving the same cause of action. In res judicata the first judgment is conclusive on all matters that could have been litigated. State, ex rel. Ohio Water Service Co., v. Mahoning Valley Sanitary District (1959), 169 Ohio St. 31 , 36. Collateral estoppel, on the other hand, involves a different cause of action. Conclusive effect under collateral estoppel is given only to issues which were actually litigated and which are pertinent to the course of action in the subsequent suit. Whitehead v. Genl. Tel. Co. (1969), 20 Ohio St. 2d 108, 112 . The cause presented herein is one for resolution under the doctrine of collateral estoppel and not res judicata. To conclude, as does the majority, that a mutuality of interest exists between the appellees and plaintiff landowners in the prior injunction, or that this declaratory judgment action is the same cause of action as the prior action for injunctive relief, offends the sense of fair play and substantial justice which must attend the application of res judicata. First, it is difficult to reason how the plaintiff landowners and the township trustees could be considered privies, as they must be in order that the first judgment be conclusive in the second action. See First National Bank of Cincinnati v. Berkshire Life Ins. Co. (1964), 176 Ohio St. 395 . The trustees and landowners do not fall into any of the categories of privies as defined by the Restatement of the Law of Judgments. See Restatement of Judgments (1942), Sections 84-92. Their interests were not the same: the landowners were seeking to protect private property rights and to prevent diminution of the value of their property; the trustees, on the other hand, *251 were seeking to uphold the validity of the zoning ordinance as a valid expression of their police powers. Furthermore, the parties viewed by the majority to be privies were, alternatively, plaintiff and defendant in the two actions, with different burdens of proof in each. Nor were both actions, in essence, the same cause of action. (See, generally, Norwood v. McDonald [1943], 142 Ohio St. 299 , paragraph four of the syllabus.) One was an injunctive action defended by appellant, and the other a declaratory action brought by appellant. These actions are not analogous; they do not vindicate the same rights, they involve different remedies and they possess separate elements of proof. Specifically, in the first case involving a request for injunctive relief, appellant asserted a prior non-conforming use. He was required to show that (1) the use was in existence at the time of the passage of the ordinance and (2) the use has continued without expansion or interruption ever since. (See, generally, Akron v. Chapman [1953], 160 Ohio St. 382 , 387.) The proof of these facts is not solely determinative of the constitutional claim now asserted in the declaratory judgment action, for the standard for testing the constitutionality of a zoning restriction is whether such restriction is an arbitrary or unreasonable burden on the owner’s use of his property. (See, generally, Mayfield-Dorsh, Inc. v. South Euclid [1981], 68 Ohio St. 2d 156 .) Clearly, these actions require proof of different facts. Thus, even though these two cases relate to the same subject matter, they are separate causes of actions. See, e.g., Jones v. Petruska (1979), 13 O.O. 3d 111 (finding an application for a variance and the assertion of prior non-conforming use separate causes of action although relating to the same subject matter). This case, then, is not one for decision under the doctrine of res judicata. The conclusive effect of the prior case must be applicable only to those issues in common between the separate causes of action, if at all. 3 Justice Traynor, in the landmark decision eliminating the need for mutuality of parties for the application of collateral estoppel principles, defined the fundamental question as, “[w]as the issue decided in the *252 prior adjudication identical with the one presented in the action in question?” Bernhard v. Bank of America Nat. Trust & Sav. Ass’n. (1942), 19 Cal. 2d 807, 813 , 122 P. 2d 892 . Clearly, our answer to that question should be a resounding “No!” Appellant’s defense to the injunction action did not involve, nor did it need involve, a constitutional attack on the zoning ordinance. Accordingly, he should not be foreclosed from raising that issue in the present action. I respectfully dissent. Celebrezze, C. J., and C. Brown, J., concur in the foregoing dissenting opinion. I am assuming arguendo that Ohio would permit the defensive use of collateral estoppel by a party who was neither party or privy to the original cause of action. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6757485. Public record. Not legal advice.