[Cite as Irby v. Ohio Dept. of Rehab. & Corr., 2017-Ohio-2629.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Chad Irby, Sr., : 

 Plaintiff-Appellant, : 

 No. 16AP-561 

v. : (Ct. of Cl. No. 2015-00900)

Ohio Department of : (REGULAR CALENDAR) 

Rehabilitation and Correction, 

 : 

 Defendant-Appellee. 

 : 

 

D E C I S I O N 

Rendered on May 2, 2017 

 

On brief: Chad Irby, Sr., pro se. 

On brief: Michael DeWine, Attorney General, and Lee Ann 

Rabe, for appellee. 

 

APPEAL from the Court of Claims of Ohio 

BRUNNER, J. 

{¶ 1} Plaintiff-appellant, Chad Irby, Sr., appeals a July 12, 2016 decision of the 

Court of Claims of Ohio granting summary judgment to defendant-appellee, Ohio 

Department of Rehabilitation and Correction ("ODRC"), for the reason that Irby had 

previously filed and litigated to an unsuccessful conclusion, essentially the same cause of 

action in Court of Claims case No. 2015-00822AD ("822AD case"). We hold that, even 

though the 822AD case was administratively determined, it precluded a subsequent case 

on the same issues for the same claim. Thus we affirm. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} On September 22, 2015, Irby filed an action in the 822AD case seeking 

$5,000 in damages. (Sept. 22, 2015 Compl. 822AD case; Ex. A, May 12, 2016 Mot. for 

Summ. Jgmt.) This demand was based on alleged negligence by the State and, in 
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No. 16AP-561 

particular, by a "Major Fullencamp," who had allegedly failed to mitigate chemical smells 

produced in the prison as a result of roofing work; Irby thus claimed that his asthma 

worsened and that he had trouble breathing. Id. On September 24, 2015, the Court of 

Claims, noting that original actions before the Court of Claims are only proper against the 

State and its agencies, sua sponte dismissed Fullencamp as a party and substituted ODRC 

for Fullencamp. (Sept. 24, 2015 Pre-Screening Entry 822AD case; Ex. T, May 26, 2016 

Memo. Contra Mot. for Summ. Jgmt.) 

{¶ 3} After Fullencamp was dismissed in the 822AD case, Irby filed a new 

complaint on October 19, 2015 under a new case No. 2015-00900 ("2015-00900 case"), 

alleging the same injury from the same chemical smell situation. (Oct. 19, 2015 Compl. 

2015-00900 case.) This time, however, Irby listed the ODRC rather than Fullencamp as a 

party and requested $15,000 (instead of $5,000) in damages. Id.

{¶ 4} On January 28, 2016, the ODRC filed an investigation report concerning the 

incident with the Court of Claims in the 822AD case. (May 6, 2016 Decision 822AD case 

at 1; Ex. C., May 12, 2016 Mot. for Summ. Jgmt.; Jan 28, 2016 Investigation Report 

822AD case.) On February 19, 2016, Irby responded in the 822AD case. (Decision 

822AD case at 2; Feb. 19, 2016 Response in Opp. to Investigation Report 822AD case.) 

{¶ 5} While the 822AD case was awaiting decision, on March 4, 2016, the ODRC 

filed an answer and sought a stay of the 2015-00900 case arguing that the outcome in the 

first-filed 822AD case would control both cases. (Mar. 4, 2016 Mot. for Stay; Mar. 4, 2016 

Answer.) Irby opposed ODRC's motion and argued that the 822AD case should be 

dismissed with his claims proceeding only in the 2015-00900 case. (Mar. 23, 2016 Mot. 

to Dismiss Mot. to Stay.) 

{¶ 6} Before the Court of Claims ruled on ODRC's motion for stay, on May 6, 

2016, a deputy clerk of the Court of Claims issued an administrative decision in the 

822AD case denying Irby's claims. (Decision 822AD case.) Six days later, on May 12, 

2016, the ODRC filed a motion for summary judgment in the 2015-00900 case arguing 

that Irby's claim was litigated and decided in the 822AD case and that the 2015-00900 

case should be dismissed as a matter of law based on res judicata and collateral estoppel. 

(Mot. for Summ. Jgmt.) Irby timely responded and argued that the Court of Claims made 

a mistake in failing to close case 822AD after dismissing Fullencamp, that the parties 
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No. 16AP-561 

were different between the two cases (822AD case against Fullencamp and 2015-00900 

case against the ODRC), and thus res judicata and collateral estoppel were inapplicable. 

(Memo Contra Mot. for Summ. Jgmt.) 

{¶ 7} On July 5, 2016, the Court of Claims sua sponte extended the deadline for 

ODRC to amend its answer to include res judicata as a defense, noting that res judicata 

cannot be asserted for the first time in a motion for summary judgment. (July 5, 2016 

Mag. Order.) The following day, ODRC filed an amended answer. (July 6, 2016 Am. 

Answer.) Approximately one week later, on July 12, the Court of Claims ruled that the 

2015-00900 case was precluded by the litigation and decision in the 822AD case and 

found in favor of ODRC on the summary judgment motion. (July 12, 2016 Jgmt. Entry). 

{¶ 8} Irby now appeals the 2015-00900 case. Irby never appealed the decision in 

the 822AD case. 

II. ASSIGNMENTS OF ERROR 

{¶ 9} Nowhere does Irby's brief contain, "[a] statement of the assignments of 

error presented for review, with reference to the place in the record where each error is 

reflected." App.R. 16(A)(3). However, he does set forth a position that, as a matter of 

discretion, we treat as assignment of error in order to address the merits of his case. This 

position statement is as follows: 

THE PLAINTIFFS[sic] CLAIMS IN CASE NO. 2015-00900 

ARE NOT BARRED BY RES JUDICATA:[sic] 

(Irby Brief at 2.)1

III. DISCUSSION 

{¶ 10} Civ.R. 56(C) provides: 

Summary judgment shall be rendered forthwith if the 

pleadings, depositions, answers to interrogatories, written 

admissions, affidavits, transcripts of evidence, and written 

stipulations of fact, if any, timely filed in the action, show that 

there is no genuine issue as to any material fact and that the 

moving party is entitled to judgment as a matter of law. 

 

1 Irby's brief was incorrectly filed with the trial court but this Court permitted him to file it late rather than 

suffer dismissal of his appeal for want of prosecution. (Dec. 1, 2016 Entry.) Thus, his brief was not filed with 

this Court until September 14, 2016, after the ODRC's brief and after his reply brief. 
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No. 16AP-561 

We review a trial court's decision on summary judgment de novo and apply the same 

standards as the trial court. Westfield Ins. Co. v. Hunter, 128 Ohio St.3d 540, 2011-Ohio1818, ¶ 12; Bonacorsi v. Wheeling & Lake Erie Ry., 95 Ohio St.3d 314, 2002-Ohio-2220, 

¶ 24. 

{¶ 11} On the topic of res judicata, the Supreme Court of Ohio has explained: 

The doctrine of res judicata involves both claim preclusion 

(historically called estoppel by judgment in Ohio) and issue 

preclusion (traditionally known as collateral estoppel). Grava 

v. Parkman Twp., 73 Ohio St.3d 379, 381, 1995 Ohio 331, 653 

N.E.2d 226 (1995), citing Whitehead v. Gen. Tel. Co., 20 Ohio 

St.2d 108, 254 N.E.2d 10 (1969) and Krahn v. Kinney, 43 

Ohio St.3d 103, 107, 538 N.E.2d 1058, (1989). With regard to 

claim preclusion, a final judgment or decree rendered on the 

merits by a court of competent jurisdiction is a complete bar 

to any subsequent action on the same claim between the same 

parties or those in privity with them. Id., citing Norwood v. 

McDonald, 142 Ohio St. 299, 52 N.E.2d 67 (1943), paragraph 

one of the syllabus, and Whitehead, paragraph one of the 

syllabus. Moreover, an existing final judgment or decree 

between the parties is conclusive as to all claims that were or 

might have been litigated in a first lawsuit. Id. at 382, citing 

Natl. Amusements, Inc. v. Springdale, 53 Ohio St.3d 60, 62, 

558 N.E.2d 1178 (1990). 

Brooks v. Kelly, 144 Ohio St.3d 322, 2015-Ohio-2805, ¶ 7; see also, e.g., State ex rel. Ohio 

Water Serv. Co. v. Mahoning Valley Sanit. Dist., 169 Ohio St. 31, 34-35 (1959). In 

contrast with claim preclusion: 

The doctrine of issue preclusion, also known as collateral 

estoppel, holds that a fact or a point that was actually and 

directly at issue in a previous action, and was passed upon and 

determined by a court of competent jurisdiction, may not be 

drawn into question in a subsequent action between the same 

parties or their privies, whether the cause of action in the two 

actions be identical or different. 

State ex rel. Stacy v. Batavia Local School Dist. Bd. of Edn., 97 Ohio St.3d 269, 2002-

Ohio-6322, ¶ 16. 

{¶ 12} ODRC argues that this case potentially implicates both issue and claim 

preclusion. We agree. The 822AD and 2015-00900 cases involve the same claim and 

issues, arising from the same chemical smell incident, between the same parties (Irby and 
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No. 16AP-561 

ODRC). Although Irby argues that his first action was against Fullencamp, this is a nullity 

in the Court of Claims because Fullencamp cannot be a party in the Court of Claims. R.C. 

2743.03(C)(1). While it may have been better for the Court of Claims to have directed 

Irby to amend his complaint in the 822AD case or face dismissal when he improperly 

attempted to sue Fullencamp, the Court of Claims instead elected to interpret Irby's 

complaint as having sued ODRC through its agent Fullencamp.2 (Pre-Screening Entry 

822AD case.) Since Irby never appealed the 822AD case and thus never challenged the 

procedural propriety of substituting ODRC for Fullencamp, we are left with the posture of 

the 822AD case that Irby's first filed claim was against ODRC. Hence, both of Irby's cases, 

822AD and 2015-00900, involved the same parties and concerned the same claim. 

{¶ 13} However, claim preclusion requires a prior "final judgment or decree 

rendered on the merits by a court of competent jurisdiction" and issue preclusion requires 

that an issue have been "passed upon and determined by a court of competent 

jurisdiction." Brooks at ¶ 7; State ex rel. Stacy at ¶ 16. The 822AD case was determined 

not by a judge of a court but by a deputy clerk pursuant to R.C. 2743.10 which provides 

that cases seeking $10,000 or less in the Court of Claims are to be administratively 

determined by the clerk of the Court of Claims. R.C. 2743.10(A) through (C). Thus, in 

attempting to apply the principles of res judicata as the ODRC argues we should, an issue 

arises as to whether the 822AD case was a proper predicate for claim or issue preclusion. 

{¶ 14} The Supreme Court has explained when issue and claim preclusion apply 

based on administratively-created outcomes: 

Res judicata, whether claim preclusion or issue preclusion, 

applies to quasi-judicial administrative proceedings, Grava v. 

Parkman Twp. (1995), 73 Ohio St.3d 379, 381, 1995 Ohio 331, 

653 N.E.2d 226; Girard v. Trumbull Cty. Budget Comm.

(1994), 70 Ohio St.3d 187, 193, 1994 Ohio 169, 638 N.E.2d 67. 

An administrative proceeding is quasi-judicial for purposes of 

res judicata if " 'the parties have had an ample opportunity to 

litigate the issues involved in the proceeding.' " Set Prods., 

Inc. v. Bainbridge Twp. Bd. of Zoning Appeals (1987), 31 

Ohio St.3d 260, 263, 31 OBR 463, 510 N.E.2d 373, quoting 

Superior's Brand v. Lindley (1980), 62 Ohio St.2d 133, 16 

O.O.3d 150, 403 N.E.2d 996, syllabus; cf. State ex rel. Wright 

 

2 We note that the complaint form used in the 822AD case had blank lines for an agency and an agent but 

Irby placed Fullencamp in the blank reserved for the agency rather than the blank for the agent. (Compl. 

822AD case.) 
6 

No. 16AP-561 

v. Ohio Bur. of Motor Vehicles (1999), 87 Ohio St. 3d 184, 

186, 1999 Ohio 17, 718 N.E.2d 908 ("Quasi-judicial authority 

is the power to hear and determine controversies between the 

public and individuals that require a hearing resembling a 

judicial trial"). 

State ex rel. Schachter v. Ohio Pub. Emps. Retirement Bd., 121 Ohio St.3d 526, 2009-

Ohio-1704, ¶ 29. R.C. 2743.10(B) prescribes an investigation and administrative review 

process that somewhat resembles an adversarial court process: 

Civil actions covered by division (A) of this section shall be 

commenced by filing with the clerk on complaint forms 

prescribed by the supreme court. The clerk shall forward 

copies of the form complaint to the attorney general and the 

state department, board, office, commission, agency, 

institution, or other instrumentality whose actions or failure 

to act are the subject of complaint. The latter shall investigate 

the allegations made in the form complaint and report the 

results of its investigation to the clerk within sixty days of 

receipt of a copy of the form complaint. The clerk shall 

forward a copy of the report to the claimant and give the 

claimant an opportunity to respond to the report either in 

writing or by appearing before the clerk. 

{¶ 15} But R.C. 2743.10(C) provides that for administratively determined matters 

before the Court of Claims, "[r]ules of evidence shall not be applicable in the 

determination. Procedures shall be governed by rules promulgated by the clerk, shall be 

informal, and shall be designed to accommodate persons who are not skilled in the law." 

R.C. 2743.10(D) also prohibits appeal beyond the Court of Claims. So, notwithstanding 

Schachter and R.C. 2743.10(B), there may be some question as to whether, as a matter of 

law, the principles of res judicata and issue preclusion should apply to R.C. 2743.10 

determinations. But Irby has not explicitly raised this issue, nor have the parties briefed 

it. And R.C. 2743.10(D) specifically provides that, as a consequence of an administrative 

proceeding, "[n]o civil action arising out of the same transaction or set of facts may be 

commenced by the claimant in the court of claims." Thus, even were the common-law 

principles of issue and claim preclusion to prove inapplicable, there is a statutory bar to 

subsequent actions on the same topic as those determined administratively pursuant to 

R.C. 2743.10(D). 
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No. 16AP-561 

{¶ 16} Irby's action in the 2015-00900 case is barred by the existence of the 

822AD case as a matter of statute. 

IV. CONCLUSION 

{¶ 17} Because Irby filed two essentially identical causes of action seeking damages 

for the same alleged tort, the first filed action controls the result and precludes the second. 

We therefore affirm the judgment of the Court of Claims of Ohio. 

Judgment affirmed. 

TYACK, P.J., and KLATT, J., concur.