Opinion
No. 838234
Decided October 23, 1967.
Summary judgment — Available, when — Motion to strike affidavit — Burden on movant to show prejudicial content — Court presumed to have determined jurisdiction, when — Res judicata doctrine applicable, when — Effect.
1. When an action is at issue, there is no genuine issue as to any material fact, and all parties have had notice and opportunity to be heard on motions for summary judgment, a judgment may be issued on one of such motions.
2. On consideration of a motion to strike an affidavit filed in support of a motion for summary judgment on the grounds of prejudicial content, the burden is on the party objecting to show specific instances of prejudicial matter.
3. Although a judicial decision contains no express determination of jurisdiction to determine the case, the court will be presumed to have made such a finding by reason of the fact that it proceeds to decide the merits.
4. When a trial court is required to determine the merits of an action in which it finds that the issues and the parties are identical to those in an action previously decided on the merits by an appellate court of the same jurisdiction, it must act upon the basis of res judicata.
5. An action in which the doctrine of res judicata applies may not be decided differently than in the earlier action, although the court in the instant case might believe that a patent oversight was made in the prior decision.
Messrs. Calfee, Fogg, McChord Halter and Messrs. Rosenthal, Roesch, Buckman McLandrich, for plaintiff.
Messrs. Arter, Hadden, Wykoff Van Duzer, Messrs. Baker, Hostetler Patterson and Miss Janice E. Wolfe, for defendants.
This cause came on for hearing on September 21, 1967, pursuant to Section 2311.041, Revised Code, on the motions of defendants for summary judgment and the motions of plaintiff for summary judgment and to strike defendants' affidavit as inadmissible.
Because of the involved and unique facts and history in this case, it seems prudent for the court to review the legal and factual background preceding the present hearing.
The chronological occurrence of certain pertinent elements follows:
November 16, 1957 — Revocable inter vivos trust established by Jessie Wheeler Purcell, the deceased spouse of J. Ambrose Purcell, whose estate is represented by Paul B. Roesch, the plaintiff in this action for declaratory judgment.
January 15, 1960 — Jessie Wheeler Purcell died.
February 23, 1960 — Jessie Wheeler Purcell's will admitted to Probate Court.
February 23, 1960 — J. Ambrose Purcell elected, in open court, not to take under the will but rather to take under the laws of descent and distribution.
February 24, 1960 — Action to reach trust property filed by J. Ambrose Purcell in Probate Court.
October 5, 1961 — Section 1335.01, Revised Code, re-enacted without substantial change.
October 25, 1961 — Case of Smyth v. Cleveland Trust Co. argued in Supreme Court of Ohio.
December 20, 1961 — Smyth case ( 172 Ohio St. 489) decided by Supreme Court.
January 23, 1963 — Section 1335.01, Revised Code, re-enacted without substantial change.
July 20, 1964 — Probate Court opinion issued, ruling for the plaintiff, J. Ambrose Purcell ( Purcell v. Cleveland Trust Co., 94 Ohio Law Abs. 455).
March 3, 1965 — Judgment entered by Probate Court.
October 28, 1965 — Court of Appeals ruled Probate Court was without jurisdiction since it has no control over the trustee of an inter vivos trust not appointed by it and that this case is controlled by Smyth. Probate Court judgment was reversed as contrary to law and a final judgment was rendered for defendant-appellant ( Purcell v. Cleveland Trust Co., 6 Ohio App.2d 235).
May 4, 1966 — Motion to certify was denied and appeal as of right was dismissed by the Ohio Supreme Court.
So far as the facts concerning this particular action are concerned, plaintiff instituted this suit for declaratory judgment on December 22, 1966. An amended petition was filed on April 6, 1967. Defendants have all filed answers and plaintiff has filed his reply.
Plaintiff's claim is that on February 23, 1960, his decedent, when he elected to take against the will of his spouse, acquired a vested interest in her estate as an heir at law, and, under the then existing Ohio law as set forth in the cases of Bolles v. Toledo Trust Co. (1944), 144 Ohio St. 195 and Harris v. Harris (1947), 147 Ohio St. 437, this interest extended to the assets of the inter vivos trust to the extent of one-half (1/2) thereof. Plaintiff argues further that the decision of Smyth v. Cleveland Trust Co., supra, was subsequent to his decedent's election and cannot operate retroactively to defeat vested rights.
Defendants, by answer, have admitted all material facts alleged by plaintiff and have denied those allegations which constitute questions of law. In addition, defendants have set forth two defenses, the first being that plaintiff is estopped to challenge the validity of the trust because of his decedent's ratification of such trust, and the second consisting of allegations which are contended by defendants to constitute res judicata.
Plaintiff's reply denies the defense of estoppel and admits parts of the second defense alleging prior court actions by his decedent and denying the holding of the Court of Appeals as to decedent's right to invade the trust and denying the Supreme Court's action of dismissal. This court takes judicial notice of those holdings.
This court finds that the motions for summary judgment are proper in this case for declaratory judgment, that the action is at issue, that there is no genuine issue as to any material fact, that all parties were given notice of the hearing which was held on September 21, 1967, that all parties were present at such hearing, and, therefore, that summary judgment may issue in this case.
Before proceeding to the motions for summary judgment, the court will first resolve the motion to strike defendants' affidavit. In essence, the granting of the motion would strike not only the affidavit but the exhibits attached thereto. The affidavit is by one of the attorneys for defendant Cleveland Trust Company, and, in effect, states that he was the attorney in the three prior proceedings (from Probate Court through the Supreme Court) and that the attached documents are true copies of the papers involved in the previous litigation. Attached thereto are some 49 documents and records, including 18 documents admitted in the prior Probate Court trial as stipulation of facts. Plaintiff contends all this evidence is irrelevant and prejudicial to plaintiff.
Section 2311.041(D), Revised Code, requires in part:
"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."
One of the issues joined in this case is the question of whether or not plaintiff is bound by the doctrine of res judicata because of the prior court rulings in the cases instituted by his decedent. Accordingly, all pleadings, opinions, journal entries and orders in the previous litigation are highly relevant for the purpose of aiding the court in determining the issues argued and decided in that litigation. This reasoning applies with equal effect to the stipulated evidence admitted in that litigation. This court cannot find, nor does plaintiff show, specific instances of prejudicial matter, and therefore, plaintiff's motion to strike is overruled.
Proceeding to the motions for summary judgment, it is the opinion of the court that the first issue to be determined is that of res judicata, for if this defense is valid, there will be no need to proceed to the other substantive issues which have been raised.
Counsel for all parties have prepared thorough briefs and have presented well reasoned arguments. Plaintiff contends that res judicata does not and cannot apply because the Court of Appeals lacked jurisdiction to decide the case on the merits. Plaintiff contends that once the appellate court found that no jurisdiction existed in the Probate Court, such lower court decision became void, and since Ohio law gives appellate jurisdiction over judgments or final orders only, there was no judgment or final order before the Court of Appeals so as to allow it to render a final judgment on the merits for defendant. In other words, it is plaintiff's contention that upon finding that the Probate Court lacked jurisdiction, the Court of Appeals had nothing before it so as to entitle it to decide the merits of the case.
Defendants, replying to this latter contention, urge that plaintiff's recourse, if he is correct, is before the appellate or Supreme Court, and that this court is bound by the prior decisions. Plaintiff, on the other hand, cites the case of Campbell v. Lloyd (1954), 162 Ohio St. 203, in support of his contention that a lower court may decide contrary to a recent rule laid down by the Supreme Court when it is convinced that "a patent oversight has been made."
While recognizing that the lower court did indeed rule contrary to a decision of the Supreme Court in the Campbell case, this court is obliged to point out that the Campbell case did not present a question of res judicata. It was a new case which had never been before the higher courts, even though the rule of law had been.
Our system of jurisprudence has developed over the ages into a means of obtaining justice both through a full hearing and an orderly appellate process. It is not a question of the "right," or "power," or "duty" of this court when the parties claim to have been aggrieved by an erroneous decision on the merits, in the same case, by a higher court to change that decision of such higher court. This court's "duty" is to uphold justice, and we can think of no quicker way to defeat the ends of justice than by creating havoc in our judicial system by refusing to follow a determination of a higher court when the issues and parties before this court are identical to the issues and parties previously before the higher courts, with the exception that the plaintiff in the previous case is now dead and his executor has replaced him.
Proceeding to the plaintiff's argument that the Court of Appeals lacked jurisdiction to decide the case on the merits, this court finds that it is a basic rule in this state that even in the absence of the raising of the question of jurisdiction, a court is presumed to determine its own jurisdiction before proceeding to the merits. In the instant case, however, the precise question as to the Court of Appeals' jurisdiction to rule on the merits was argued by plaintiff's decedent and, by inference, the Court of Appeals found jurisdiction to exist.
The exhibits attached to defendant's affidavit, as well as those reported case decisions of which this court takes judicial notice, show clearly that all the issues attempted to be resolved by plaintiff in this case have been resolved in the previous cases involving plaintiff's decedent and are therefore res judicata.
This court, however, cannot enter its ruling without noting a case which it feels should be considered by the parties in this case and the higher courts, if an appeal is taken from this judgment.
The case of Glass v. McCullough Transfer Co. (1953), 159 Ohio St. 505, is perhaps best noted for the rules of law set down regarding the jurisdiction of a lower court over an out of county defendant who is properly joined as a result of proper service on several local defendants. In that case, when the court directed a verdict in favor of all defendants, except for the out of county defendant, he promptly moved to dismiss for lack of jurisdiction. The court refused, and the jury rendered a verdict against that defendant. The Court of Appeals reversed the judgment, holding that the lower court had no jurisdiction over the person of the defendant and rendered final judgment for defendant. On appeal, the Supreme Court held (paragraph 7 of the syllabus):
"Where a trial court, pursuant to a request of a defendant, should have dismissed an action against such defendant for want of jurisdiction over the person of such defendant, it is error for a reviewing court, after so determining, to further consider the merits of the action and to render final judgment on the merits in favor of that defendant. In such instance, the reviewing court should merely dismiss the action for want of jurisdiction over the person of the defendant."
However, as pointed out previously, it is not and should not be for this court to review the decisions of the Court of Appeals. Having determined that the issues involved in this case have been previously decided as to all the parties in this case, the court holds that all parties are bound by that determination under the doctrine of res judicata.
Accordingly, plaintiff's motion to strike defendants' affidavit is overruled, plaintiff's motion for summary judgment is overruled and defendants' motions for summary judgment are granted with costs assessed to plaintiff herein.
Judgment accordingly.