[Cite as Easterling v. Ameristate Bancorp., Inc., 2012-Ohio-636.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

WARREN EASTERLING                 :
                                  :   Appellate Case No. 24723
    Plaintiff-Appellant           :
                                  :   Trial Court Case No. 10-CV-5811
v.                                :
                                  :
AMERISTATE BANCORP., INC., et al. :   (Civil Appeal from
                                  :   (Common Pleas Court)
    Defendant-Appellees           :
                                  :
                             ...........

                                              OPINION

                          Rendered on the 17th day of February, 2012.

                                              ...........

WARREN EASTERLING, 71 Arlington Avenue, Dayton, Ohio 45417
    Plaintiff-Appellant, pro se

GREGORY DEMOS, Atty. Reg. #0062819, Fowler, Demos and Stueve, 12 West
South Street, Lebanon, Ohio 45036
      Attorney for Defendant-Appellees

                                                                .............



HALL, J.

        {¶ 1} Warren Easterling appeals pro se from the trial court’s dismissal of his

complaint against the appellees on the basis of res judicata.

        {¶ 2} Easterling advances two assignments of error on appeal. First, he

contends the trial court erred in finding res judicata applicable. Second, he claims the
                                                                                                                                   2


trial court erred in denying his Civ.R. 60(B) motion to vacate a judgment previously

entered against him in another case.

         {¶ 3} The record reflects that Easterling filed a nine-count, pro se complaint

against the appellees on July 27, 2010.1 Therein, he set forth claims for passing bad

checks, theft, fraud, wrongful constructive termination, and perjury. (Doc. #1). The

claims all stemmed from Easterling’s employment as a mortgage loan officer for
                                2
appellee Ameristate.

         {¶ 4} The bad-check claims involved allegations that the appellees issued

Easterling commission checks that were returned for insufficient funds. One of the

theft claims involved allegations that he was not paid commission for a closing that

occurred after he quit his job. The other theft claims involved allegations that he

received commission payments late due to checks being returned for insufficient

funds. The fraud claim involved an allegation that the memo line on one check

inaccurately characterized the payment as a “draw” rather than “commission.” The

constructive-termination claim involved allegations that Easterling’s receipt of

bounced checks caused mental anguish, financial hardship, and a hostile work

environment that forced him to resign. Finally, the perjury claim challenged the

accuracy of averments in an affidavit filed by appellee Daniel Dorko in a related case,

Easterling v. Ameristate Bancorp, Inc., Montgomery C.P. No. 2009 CV 8649.


           1
            Parenthetically, we note that Easterling later attempted to file an amended complaint—without obtaining leave of court—that
 contained essentially the same allegations and the same causes of action. (See Doc. #27).
           2
            For present purposes, we will refer to appellees Ameristate Bancorp and Ameristate Bancorp, Inc., collectively as “Ameristate.”
 The other appellee is Daniel Dorko, an officer of Ameristate.
                                                                                   3


      {¶ 5} On August 18, 2010, the appellees moved to dismiss Easterling’s

complaint on res judicata grounds. In support, the appellees alleged that he

previously sued them “regarding the same or similar claims, based upon the same

set of operative facts,” in Easterling v. Ameristate Bancorp, Inc., Montgomery C.P.

No. 2009 CV 8649. The trial court sustained the appellees’ motion on June 30, 2011.

(Doc. #31). It reasoned:

             Res judicata bars all subsequent actions that arise out of the

      same transaction, that is the same common nucleus of operative facts

      that was the subject of the previous litigation, even if the subsequent

      action relied on different claims, grounds, or theories for relief and

      different evidence in support of those theories. Faulkner v. Conrad,

      Montgomery App. No. 17277, 1999 Ohio App. LEXIS 586. In other

      words, a party cannot avoid the claim preclusive effect of res judicata

      by merely raising in a subsequent action different claims or theories for

      imposing liability and introducing different evidence to support those

      new theories. Id. The doctrine of res judicata requires a plaintiff to

      present every ground for relief in the first action, or be forever barred

      from asserting it. Id.

             All three elements of res judicata are present. Plaintiff brought a

      previous action against the Defendant; Montgomery County Case 2009

      CV 08649. There was a final judgment on the merits of the previous

      action. Judge Mary Kate Huffman of this Court, issued a Decision,

      Order, and Entry Granting Defendant’s Motion to Dismiss and Motion
                                                                                      4


       for Summary Judgment on April 5, 2010. Finally, Plaintiff’s claims in

       both 2009 CV 08649 and 2010 CV 05811 arose out of the same

       common nucleus of operative facts. Specifically, Plaintiff’s employment

       with Defendant. The doctrine of res judicata bars Plaintiff’s claims in

       2010 CV 05811. (Doc. #31 at 2-3).

       {¶ 6} Upon review, we agree with the trial court that res judicata applies here.

In his prior lawsuit, Easterling brought claims against Ameristate and Dorko based on

his receipt of checks that were returned for insufficient funds. That case also involved

allegations that Easterling was not paid for a closing that occurred after he quit his

job and that his receipt of the bounced checks caused him mental anguish and

forced him to quit. See Easterling v. Ameristate Bancorp, Inc., 2d Dist. Montgomery

No. 23980, 2010-Ohio-3340. It is apparent to us that res judicata applies to

Easterling’s current claims, with one possible exception, because his prior lawsuit

and this action “involve a common nucleus of operative facts.” U.S. Bank Natl. Assn.

v. Gullotta, 120 Ohio St.3d 399, 2008-Ohio-6268, 899 N.E.2d 987, ¶ 27.

       {¶ 7} The only possible exception to the res judicata bar involves Easterling’s

perjury claim. In count nine of his complaint, Easterling alleges that Daniel Dorko

committed perjury in the prior action when he made false averments in a

summary-judgment affidavit. Easterling arguably could not have raised this as a

separate claim in the prior action because it did not exist when he filed his complaint.

It did not arise until shortly before the trial court entered judgment against him based,

in part, on Dorko’s affidavit. However, Easterling could have challenged the accuracy

and “truthfulness” of the Dorko affidavit he now complains about in the previous
                                                                                      5


proceeding. Nevertheless, even if res judicata does not apply, it is well settled that

“[p]erjury in a prior case cannot support a cause of action in a subsequent civil case.”

Elliott v. Brown, 2d Dist. Miami No. 10-CA-19, 2010-Ohio-5749, ¶ 12; see also

Costell v. Toledo Hosp., 38 Ohio St.3d 221, 223-24, 527 N.E.2d 858 (1988)

(“[A]ppellants have essentially set forth allegations constituting perjury, subornation

of perjury, and conspiracy to commit perjury, all of which are punishable under the

criminal statutes but which, for public policy reasons, may not be the basis of a civil

lawsuit.”). Accordingly, Easterling’s first assignment of error is overruled.

       {¶ 8} In his second assignment of error, Easterling claims the trial court erred

in overruling his motion to vacate the final judgment entered against him in the prior

case, Easterling v. Ameristate Bancorp, Inc., Montgomery C.P. No. 2009 CV 8649.

As noted above, this court affirmed that judgment in Easterling v. Ameristate

Bancorp, Inc., 2d Dist. Montgomery No. 23980, 2010-Ohio-3340.

       {¶ 9} In overruling Easterling’s Civ.R. 60(B) motion, the trial court held that it

lacked jurisdiction to grant him relief. (Doc. #26). We agree. The trial court plainly

lacked jurisdiction, in this case, to vacate a final judgment in a different case that had

been affirmed on appeal. Easterling’s second assignment of error is overruled.

       {¶ 10} The judgment of the Montgomery County Common Pleas Court is

affirmed.

                                     ............


GRADY, P.J., and FROELICH, J., concur.


Copies mailed to:
                        6



Warren Easterling
Gregory Demos
Hon. Frances E. McGee
