[Cite as Wilson v. Jo-Ann Stores, Inc.,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

SUE WILSON, et al. C.A. No. 26154

Appellants

v. APPEAL FROM JUDGMENT ENTERED IN THE JO-ANN STORES, INC., et al. COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellees CASE No. CV 2011 02 0637

DECISION AND JOURNAL ENTRY

Dated: June 20, 2012

WHITMORE, Presiding Judge.

{¶1} Plaintiff-Appellants, Sue Wilson and Jeffrey Vano (collectively “Employees”),

appeal from the judgment of the Summit County Court of Common Pleas, granting summary

judgment in favor of Defendant-Appellees, Jo-Ann Stores, Inc. (“Jo-Ann Stores”), Richard

Chapman, Rachel Wright, and LaTonya Myers (collectively “Jo-Ann”). This Court reverses.

I

{¶2} Wilson worked for Jo-Ann Stores until the summer of 2007 when, according to

Wilson, Jo-Ann Stores constructively discharged her due to her age. Vano worked alongside

Wilson during her employment with Jo-Ann. According to Vano, he opposed Jo-Ann Stores’

unlawful treatment of Wilson and, in the fall of 2007, Jo-Ann Stores retaliated by wrongfully

discharging him. Employees originally filed suit against Jo-Ann Stores in February 2009,

claiming four causes of action: unlawful discrimination, retaliatory discharge, aiding and

abetting unlawful discrimination, and intentional infliction of emotional distress. Subsequently, 2

Jo-Ann Stores learned that Employees were in possession of several hundred internal

documents/company records they retained after their respective discharges. Jo-Ann Stores filed

a counterclaim for replevin against Employees, seeking the return of the documents.

{¶3} Employees returned the documents in their possession to Jo-Ann Stores, but never

responded to the counterclaim. Jo-Ann Stores moved for a default judgment on its replevin

counterclaim, as well as for summary judgment on Employees’ claims against it. Rather than

respond to the motion for summary judgment, Employees voluntary dismissed their claims

without prejudice. Employees also sought leave to respond to the replevin action, but the trial

court denied the motion for leave as Employees waited until the morning of the default hearing

to file it. The court then granted the motion for default. Because Jo-Ann Stores already had

possession of the documents at issue, the court only awarded Jo-Ann Stores damages for the

mileage costs it incurred in filing its claim and ordered Employees to pay the costs associated

with the action.

{¶4} On February 1, 2011, Employees filed suit against Jo-Ann, naming the same four

causes of action set forth in their original complaint. Jo-Ann filed a motion for summary

judgment. In the motion, Jo-Ann argued that Employees were required to pursue their claims in

the previous suit that resolved Jo-Ann Stores’ replevin claim and res judicata now barred their

compulsory claims. Employees filed a memorandum in opposition, and Jo-Ann replied. On

October 6, 2011, the trial court granted Jo-Ann’s motion for summary judgment.

{¶5} Employees now appeal from the trial court’s summary judgment ruling and raise a

single assignment of error for our review. 3

II

Assignment of Error

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE EMPLOYERS SINCE IT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO HOLD THAT WILSON AND VANO’S CLAIMS WERE COMPULSORY COUNTERCLAIMS TO THE REPLEVIN CLAIM.

{¶6} In their sole assignment of error, Employees argue that the trial court improperly

granted Jo-Ann’s motion for summary judgment. Employees assert that they were not required

to bring their claims against Jo-Ann in the previous replevin suit because their claims were not

compulsory counterclaims. We agree.

{¶7} This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co.,

(1996). Pursuant to Civ.R. 56(C), summary judgment is

proper if:

(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc.,

(1977). The party moving for summary

judgment bears the initial burden of informing the trial court of the basis for the motion and

pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher

v. Burt,

(1996). Specifically, the moving party must support the

motion by pointing to some evidence in the record of the type listed in Civ.R. 56(C).

Once

this burden is satisfied, the non-moving party bears the burden of offering specific facts to show

a genuine issue for trial.

. The non-moving party may not rest upon the mere

allegations and denials in the pleadings but instead must point to or submit some evidentiary 4

material that demonstrates a genuine dispute over a material fact. Henkle v. Henkle,

(12th Dist. 1991).

{¶8} Civ.R. 13(A) governs compulsory counterclaims. “All existing claims between

opposing parties that arise out of the same transaction or occurrence must be litigated in a single

lawsuit pursuant to Civ.R. 13(A), no matter which party initiates the action.” Rettig Enterprises,

Inc. v. Koehler,

(1994), paragraph one of the syllabus. Civ.R. 13(A) “will bar

any future effort to bring a claim if it is determined that it should have been brought as a

compulsory counterclaim in an earlier suit.” Meadows v. Hicks, 9th Dist. No. 23574, 2008-Ohio-

1802, ¶ 12. The rule sets forth a two-prong test: “(1) does the claim exist at the time of serving

the pleading * * *; and (2) does the claim arise out of the transaction or occurrence that is the

subject matter of the opposing claim.” Rettig Enterprises, Inc. at 277, quoting Geauga Truck &

Implement Co. v. Juskiewicz,

(1984). “If both prongs are met, then the

present claim was a compulsory counterclaim in the earlier action and is barred by virtue of

Civ.R. 13(A).” Rettig Enterprises, Inc. at 277.

{¶9} Both parties agree and the record reflects that the first prong of the test set forth in

Rettig and Civ.R. 13(A) is not at issue here because Employees’ claims existed at the time Jo-

Ann filed its replevin counterclaim in 2009. The only question is whether Employees’ claims

arise out of the transaction or occurrence that was the subject matter of Jo-Ann’s replevin

counterclaim in the previous action. See id. at 278. “The Ohio Supreme Court has used the

‘logical relation test’ for deciding whether claims ‘arise out of the same transaction or

occurrence’ as required by [Civ.R.] 13(A).” Meadows at ¶ 15.

{¶10} Under the logical relation test, “[a] compulsory counterclaim is one which ‘is

logically related to the opposing party’s claim where separate trials on each of their respective 5

claims would involve a substantial duplication of effort and time by the parties and the courts.’”

Rettig Enterprises, Inc. at 278, quoting Great Lakes Rubber Corp. v. Herbert Cooper Co.,

(3d Cir. 1961). The test seeks to “avoid a multiplicity of actions and to achieve a

just resolution by requiring in one lawsuit the litigation of all claims arising from common

matters.” Rettig Enterprises, Inc. at 278. It “does not require that the respective claims be

‘precisely identical,’ nor does it exclude counterclaims that ‘embrace[] additional allegations.’”

Meadows at ¶ 15, quoting Moore v. New York Cotton Exchange,

(1926).

“[M]ultiple claims are compulsory counterclaims where they ‘involve many of the same factual

issues, or the same factual and legal issues, or where they are offshoots of the same basic

controversy between the parties.’” Rettig Enterprises, Inc. at 279, quoting Great Lakes Rubber

Corp.,

.

{¶11} Jo-Ann moved for summary judgment on the basis that Employees’ claims were

logically related to the replevin counterclaim that Jo-Ann litigated against Employees in the prior

action. As previously noted, Employees initially brought suit against Jo-Ann Stores and later Jo-

Ann on the same four bases: unlawful discrimination, retaliatory discharge, aiding and abetting

unlawful discrimination, and intentional infliction of emotional distress. Those claims are

distinctly different from one seeking replevin. A replevin suit simply seeks to recover goods

from one who wrongfully retains them at the time the suit is filed. Schneider v. Schneider,

,

(9th Dist.). Replevin does not even require an

“unlawful taking.”

The plaintiff in replevin need only prove that he is entitled to certain

property and that the property is in the defendant’s possession.

Conversely, discrimination

cases typically rely upon circumstantial evidence and present the trier of fact with a question that

“is both sensitive and difficult.” U.S. Postal Serv. Bd. of Governors v. Aikens,

, 716 6

(1983), not followed in part on state law grounds, Williams v. Akron,

, 2005-

Ohio-6268. Discrimination and retaliatory discharge claims both involve burden-shifting tests.

Pintagro v. Sagamore Hills Twp., 9th Dist. No. 25697,

; Gordon v.

Universal Electronics, Inc., 9th Dist. No. 18071,

, *2-3 (Oct. 1, 1997). By their

very nature, they are far more complex than replevin claims. And while the logical relation test

does not require claims to be “precisely identical,” it is noteworthy that, from an elemental

standpoint, claims of discrimination and replevin lack even the slightest resemblance. Meadows,

, quoting Moore,

.

{¶12} The record does not disclose the specific facts underlying Jo-Ann Stores’ previous

replevin claim. The answer in which Jo-Ann Stores asserted replevin as a counterclaim is not

attached to Jo-Ann’s motion for summary judgment or any other filing in the record. While the

previous judgment entry granting default judgment in favor of Jo-Ann Stores is a part of the

record, the entry only briefly describes the underlying basis for the replevin claim. The record

discloses that Employees possessed hundreds of internal documents from Jo-Ann Stores and, as

of the time of their respective discharges, Employees were no longer entitled to possess those

documents. It is undisputed that Employees returned the documents after Jo-Ann Stores filed the

replevin claim. Further, none of the parties even remotely suggested in their summary judgment

filings that the documents in any way substantiated or bore upon Employees’ claims (e.g., that

Employees were discharged because they wrongfully retained documents). Compare Keith A.

Keisser Ins. Agency, Inc. v. Nationwide Mut. Ins. Co.,

(N.D.Ohio 2003)

(replevin bore logical relationship to claims for theft, conversion, and trademark infringement

where plaintiff allegedly retained and used company documents for his own benefit). The record

supports the conclusion that only a tangential relationship existed between the documents and 7

Employees’ discharges. That is, Employees’ entitlement to the possession of the documents

ended once the employment relationship ended.

{¶13} The trial court determined and Jo-Ann maintains that Employees’ claims were

compulsory counterclaims because they were “offshoots of the same basic controversy between

the parties.” Rettig Enterprises, Inc.,

, quoting Great Lakes Rubber Corp.,

. We do not agree that the claims are offshoots of the same basic controversy.

Viewing all of the claims in the absolute broadest sense, it is true that the replevin claim would

not have arisen but for the termination of the employment relationship. Yet, that is the ending

point of their relationship to one another. The replevin could have arisen regardless of the reason

for Employees’ departures from Jo-Ann Stores, as a replevin claim does not require proof that a

taking was unlawful. Schneider,

,

. Moreover,

Employees’ claims could be resolved without any regard for the resolution of the replevin claim.

Compare Fields v. Anderson, 2d Dist. No. 14113,

, *4 (Oct. 19, 1994) (claims

offshoots of the same basic controversy when one could not possibly be resolved without

considering the subject matter of the other). Trying Employees’ claims and the replevin claim

separately would not involve “a substantial duplication of effort and time by the parties and the

courts.” Rettig Enterprises, Inc. at 278, quoting Great Lakes Rubber Corp.,

.

We must conclude, therefore, that Employees were not required to bring their claims as

compulsory counterclaims in the previous replevin action.

{¶14} Because Employees’ claims are not barred by Civ.R. 13(A), Jo-Ann was not

entitled to summary judgment on that basis. The trial court erred in its application of Rettig

Enterprises, Inc. and improperly granted Jo-Ann’s motion for summary judgment.

Consequently, Employees’ sole assignment of error is sustained. 8

III

{¶15} Employees’ sole assignment of error is sustained. The judgment of the Summit

County Court of Common Pleas is reversed, and the cause is remanded for further proceedings

consistent with the foregoing opinion.

Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellees.

BETH WHITMORE FOR THE COURT

DICKINSON, J. BELFANCE, J. CONCUR. 9

APPEARANCES:

ROBERT B. KAPITAN and JOSEPH A. CONDENI, Attorneys at Law, for Appellant.

JOHN W. MCKENZIE, THOMAS EVAN GREEN, and JULIE A. TROUT, Attorneys at Law, for Appellee.