                               Illinois Official Reports

                                      Appellate Court



                      Harrison v. Deere & Co., 2014 IL App (3d) 130497




Appellate Court          ANDRE HARRISON, Plaintiff-Appellant, v.               DEERE      AND
Caption                  COMPANY, a Corporation, Defendant-Appellee.




District & No.           Third District
                         Docket No. 3-13-0497



Filed                    August 8, 2014




Held                       Plaintiff’s claims based on the termination of his employment by
(Note: This syllabus defendant for alleged sexual misconduct with subordinate employees
constitutes no part of the were properly dismissed on the ground that the claims were barred by
opinion of the court but the res judicata effect of the decisions in two earlier lawsuits he
has been prepared by the brought involving the same claims, and his request for relief under the
Reporter of Decisions Illinois Personnel Record Review Act for defendant’s alleged failure
for the convenience of to send him a copy of the investigative report supporting his discharge
the reader.)               within the required 7 days was properly denied due to the lack of any
                           legal consequences.



Decision Under           Appeal from the Circuit Court of Rock Island County, No. 10-L-75;
Review                   the Hon. Lori R. Lefstein, Judge, presiding.



Judgment                 Affirmed.
     Counsel on                Stephen T. Fieweger and Nicholas Cibula (argued), of Katz, Huntoon
     Appeal                    & Fieweger, P.C., of Moline, for appellant.

                               Nina G. Stillman and Christopher J. Boran (argued), both of Morgan,
                               Lewis & Bockius, LLP, of Chicago, for appellee.



     Panel                     JUSTICE McDADE delivered the judgment of the court, with
                               opinion.
                               Justices Carter and Schmidt concurred in the judgment and opinion.

                                                 OPINION

¶1         The plaintiff, Andre Harrison, filed three separate lawsuits, including this one, in response
       to the termination of his employment by the defendant, Deere & Company.
¶2         Harrison’s first litigated case was filed in Illinois state court against several of Deere’s
       managers involved in the investigation of Harrison’s alleged sexual misconduct with
       subordinate employees and the decision to terminate the plaintiff’s employment. After two
       earlier amendments to the complaint, the third amended complaint alleged that Deere’s
       managers had defamed Harrison and intentionally interfered with his employment. Harrison v.
       Addington, 2011 IL App (3d) 100810 (hereinafter Addington). The trial court ruled in favor of
       Deere’s managers and the judgment was affirmed on appeal. Id. The appellate decision
       included a thorough recitation of the facts relating to all of the issues raised by Harrison as well
       as several entries noting that the managers’ actions during the investigation were in accord
       with their job duties. Id. ¶ 75. The court further stated that the appeal was totally devoid of
       merit. Harrison’s employment was terminated because his interactions with the subordinate
       employees violated company policy. Id. His actions “created a risk of workplace violence as
       well as a risk of financial liability for [the defendant].” Id. ¶ 83. His claims of racial
       discrimination or retaliation were found to be unsupported. Id. ¶ 79. There was no supreme
       court review of that decision.
¶3         Harrison’s second case alleged an intentional racial discrimination violation under 42
       U.S.C. § 1981 in federal court. The district court concluded and the Seventh Circuit affirmed
       that the case was barred by res judicata. Harrison v. Deere & Co., 533 F. App’x 644 (7th Cir.
       2013) (hereinafter Deere). Addington had already determined that the issue of race
       discrimination was without merit against Deere’s managers and those managers were shown to
       be in privity with Deere. Id. No writ of certiorari has been granted in that case.
¶4         In this, the third case, Harrison claimed violations by Deere of the Illinois Personnel
       Record Review Act (the Act) (820 ILCS 40/2, 9 (West 2008)) when Deere assembled an
       investigative record of his associations, communications, and nonemployment activities
       prohibited by section 9 and failed to provide him a copy of the investigative report supporting
       his discharge within the seven days required by section 2 for production. He alleges that these
       activities were racially motivated, constituted an invasion of his privacy and resulted in his
       wrongful termination.


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¶5         Deere prevailed in the trial court and Harrison appeals the following rulings of the trial
       court: (1) the granting of Deere’s motion to reconsider and the determination that defendant’s
       conduct did not rise to the level of bad faith and willfulness within the meaning of section 2 of
       the Act (820 ILCS 40/2 (West 2008)); (2) the finding that Harrison’s claim pursuant to section
       9 of the Act (820 ILCS 40/9 (West 2008)) was barred under the doctrine of res judicata, as well
       as prior grants of Deere’s motions to dismiss the plaintiff’s invasion of privacy and wrongful
       termination claims; and (3) the denial of Harrison’s posttrial motion for leave to file a third
       amended complaint seeking to add a race discrimination claim.

¶6                                SUMMARY OF RELEVANT FACTS
¶7         On or around August 30, 2009, Deere initiated an investigation concerning allegations that
       Harrison had engaged in sexual misconduct with subordinate employees. Despite being
       advised that the interaction was consensual, Deere continued its investigation of the nature and
       extent of Harrison’s relationships with the employees. Deere terminated Harrison’s
       employment on September 3, 2009, citing violations of its policy prohibiting managers from
       engaging in sexual relationships with subordinate employees.
¶8         On September 10, 2009, Harrison sent an email to Deere formally requesting a copy of his
       personnel file. Deere’s September 11 response advised that Sherri Martin (Martin), its human
       resource director, would be the contact person for the matter. Also on September 11, Martin
       received the investigative report (report) setting out the facts disclosed through the
       investigation. This report was used in determining that Harrison should be discharged.
¶9         On September 14, Martin mailed the plaintiff documents contained in his personnel file,
       but the report was not included. When Harrison received the documents on September 17, he
       notified Martin via email of the missing information. Martin responded with an email stating
       she had given him everything that was in his personnel file.
¶ 10       On September 24, the plaintiff emailed Martin, for the second time, requesting a copy of
       his personnel file including the information related to his discharge and stating that such
       information was needed for his adequate legal representation. Martin advised Harrison on that
       same day that further communication should then be by counsel and provided him with
       Deere’s attorney’s email address. On September 28, Harrison emailed Martin that his attorney
       had not been able to reach Deere’s attorney. He further specified that his benefit information
       needed for his settlement proposition could be sent to Deere’s attorney, who could then share
       the information with his attorney.
¶ 11       On October 5, Deere resent the file, this time including the report, to Harrison’s attorney.1
       Harrison filed his complaint seeking enforcement of section 2 of the Act (820 ILCS 40/2 (West
       2008)) with the Department of Labor on October 24. His original civil complaint seeking
       enforcement of section 2 of the Act (820 ILCS 40/2 (West 2008)) was filed on June 16, 2010.
¶ 12       During trial, Martin testified that she was familiar with Deere’s “Human Resource Policy
       and Guidance Statement 203,” which required compliance with Illinois law in responding to
       requests pursuant to the Act. She, however, had never read the Act and she had never asked for
       legal assistance in determining her compliance with the Act.

           1
            Harrison later complained about this delivery, asserting that he had not hired counsel to assist him
       in securing the investigation report.

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¶ 13       Martin acknowledged that documents concerning disciplinary actions can be human
       resource documents. However, she stated that she had never seen investigatory documents in
       human resource files and stated that such reports are not typically part of personnel files. She
       did not believe that the report should be part of Harrison’s personnel file because it did not
       discuss any disciplinary action and she did not consider the report to be disciplinary in nature.
       She conceded that there was no written procedure for personnel files established for Harrison’s
       unit of employment as recommended by Deere’s human resource policy.
¶ 14       Harrison testified at trial that in his various managerial capacities he had seen reports in the
       files of several of his former employees. However, he had never personally placed such a
       report in a personnel file.

¶ 15                                            ANALYSIS
¶ 16                           I. Propriety of Granting Motion to Reconsider
¶ 17        On appeal, Harrison first argues that the court erred in granting Deere’s motion to
       reconsider and in finding that Deere did not commit a “willful and knowing violation” of
       section 2 of the Act (820 ILCS 40/12(d)(2) (West 2008)). Deere concedes its actions were in
       violation of section 2 of the Act, but again asserts that the actions were not willfully and
       knowingly in violation of section 12(d)(2) (820 ILCS 40/2, 12(d)(2) (West 2008)).
¶ 18        The standard of review of a grant of a motion to reconsider is abuse of discretion. Robidoux
       v. Oliphant, 201 Ill. 2d 324, 347 (2002). However, a trial court’s order may be affirmed for any
       valid reason supported by the record, regardless of the reasoning used by the trial court. Bank
       of America, N.A. v. Luca, 2013 IL App (3d) 120601. To the extent this issue also presents a
       question of statutory interpretation, it is subject to de novo review. County of Du Page v.
       Illinois Labor Relations Board, 231 Ill. 2d 593, 603 (2008). Our primary objective in
       interpreting a statute is to ascertain and give effect to the intent of the legislature. People v.
       Zimmerman, 239 Ill. 2d 491, 497 (2010). We not only look to the plain and ordinary meaning
       of the words in the statute but interpret those words in light of other relevant provisions in the
       statute. Id.
¶ 19        In general, the administration of section 2 and enforcement by section 12 are designed to
       facilitate an employee’s personnel file review request. Section 2 of the Act requires: “Every
       employer shall, upon an employee’s request *** permit the employee to inspect any personnel
       documents which are, have been or are intended to be used in determining that employee’s
       qualifications for *** discharge or other disciplinary action ***.” 820 ILCS 40/2 (West 2002).
       This section also requires that the “employer shall provide the employee with the inspection
       opportunity within 7 working days after the employee makes the request.” Id.
¶ 20        Here, Deere concedes that its agent, Martin, did not provide Harrison with all of the
       information in his personnel file, including the report, within the seven-day time frame
       required of the statute. However, Deere provided these documents to Harrison on October 5,
       2010, well before Harrison filed his Department of Labor complaint on October 24. Though
       Harrison asserts in his Department of Labor complaint and subsequent administrative hearing
       that the documents were improperly sent to his attorney and not directly to him, he failed to
       acknowledge the effective acquiescence in his email on September 28 to “counsel only”
       communication. That email further stipulated that sensitive documents, like his pension plan,



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       could be transferred to him through the attorneys. It thus appears that Deere complied with the
       request albeit not within the seven working days.
¶ 21       Harrison contends that because Deere did not comply with the time frame required by
       section 2 (820 ILCS 40/2 (West 2008)), Deere should suffer the penalty imposed by the statute.
       Section 12(d)(2) of the Act provides that “the court shall award an employee prevailing in an
       action pursuant to this Act the following damages: *** For a willful and knowing violation of
       this Act, $200 plus costs, reasonable attorney’s fees and actual damages.” 820 ILCS
       40/12(d)(2) (West 2008). We fail to see how this section is actually applicable to the claims
       Harrison asserts.
¶ 22       In the factual context of this case, this issue is without legal consequence. The only
       significance of whether Deere’s violation was willful is the availability of attorney fees, if
       reasonable. Review of section 12 of the Act in its entirety discloses procedures available for an
       employee whose employer has persisted in its failure to comply with the requirements of other
       parts of the Act. Specifically, section 12(c) provides:
                   “(c) If an employer violates this Act, an employee may commence an action in the
               circuit court to enforce the provisions of this Act, including actions to compel
               compliance, where efforts to resolve the employee’s complaint concerning such
               violation by conference, conciliation or persuasion pursuant to subsection (b) have
               failed and the Department has not commenced an action in circuit court to redress such
               violation. The circuit court for the county in which the complainant resides, in which
               the complainant is employed, or in which the personnel record is maintained shall have
               jurisdiction in such actions.” 820 ILCS 40/12(c) (West 2008).
¶ 23       Immediately following this section is what Harrison refers to as the penalty that Deere
       should be made to suffer. He overlooks, however, that the statute imposes the penalty for the
       employer’s “[f]ailure to comply with an order of the court.” 820 ILCS 40/12(d) (West 2008).
¶ 24       Harrison is not eligible for attorney fees for two reasons: first, because the court did not
       compel, has not compelled, and cannot compel Deere to comply with the statutory
       requirements to produce the report for inspection because Deere had already produced the
       documents prior to Harrison’s filing of the complaint with the Department of Labor and the
       complaint with this case. Second, Deere complied without any need for Harrison to hire
       counsel. Supra n.1. Thus, nothing related to the violation would make his attorney fees
       reasonable or invoke the application of this section of the statute.
¶ 25       Because of Deere’s conceded technical violation of the statute’s time frame requirement,
       section 12(e) of the Act is the only applicable portion of the administration and enforcement
       section of the Act. That section states that “[a]ny employer or his agent who violates the
       provisions of this Act is guilty of a petty offense.” 820 ILCS 40/12(e) (West 2008). Deere did,
       in fact, violate a provision of this Act by providing Harrison with all of his personnel file
       documents in 25 working days rather than the statutorily required 7 days. Thus, Harrison’s
       only relief on this count of his complaint is the acknowledgement that Deere committed a petty
       offense.

¶ 26                          II. General Applicability of Res Judicata
¶ 27      Next Harrison argues that the trial court erred in granting (1) Deere’s motion for summary
       judgment on his claims based on section 9 of the Act and (2) Deere’s motion to dismiss his


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       wrongful termination and invasion of privacy claims. He further argues that the trial court
       erred in denying his motion for leave to file a third amended complaint. Deere counters that all
       of these claims are barred by res judicata.
¶ 28       When reviewing a case decided on summary judgment or a motion to dismiss, our standard
       of review is de novo. See Pielet v. Pielet, 2012 IL 112064, ¶ 30. De novo consideration affords
       this court the opportunity to analyze the facts and issues independently and without deference
       to the trial court. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).
¶ 29       In the instant case, the trial court granted Deere’s summary judgment motion, finding
       Harrison’s section 9 claim barred by res judicata. Based on the following analysis, we agree
       with that finding and further find that Harrison’s invasion of privacy and wrongful termination
       claims are also amendable to dismissal on res judicata grounds.
¶ 30       Res judicata applies when: “(1) there was a final judgment on the merits rendered by a
       court of competent jurisdiction, (2) there is an identity of cause of action, and (3) there is an
       identity of parties or their privies.” River Park, Inc. v. City of Highland Park, 184 Ill. 2d 290,
       302 (1998). “ ‘[T]he doctrine of res judicata extends not only to every matter that was actually
       determined in the prior suit but to every other matter that might have been raised and
       determined in it.’ ” Deere, 533 F. App’x at 648 (quoting Torcasso v. Standard Outdoor Sales,
       Inc., 157 Ill. 2d 484, 490 (1993)). Each res judicata factor will be addressed in turn.

¶ 31                                         A. Final Judgment
¶ 32       The Addington court held that the information acquired by Deere’s managers concerning
       the plaintiff’s relationships with subordinate employees was the reason for the plaintiff’s
       termination under the defendant’s company policy. Addington, 2011 IL App (3d) 100810,
       ¶¶ 64, 73. The federal court in Deere held that Harrison’s issue of race discrimination was
       barred by res judicata because not only were Deere’s managers (defendants in Addington) in
       privity with Deere, the cause of action had already been addressed in Addington using the same
       set of operative facts. Deere, 533 F. App’x at 649. No supreme court review in either case has
       been had or is pending.
¶ 33       Therefore, there are two “final judgments on the merits” that have been issued by “courts
       of competent jurisdiction” satisfying the first element of res judicata.

¶ 34                                B. Identity of Parties or Their Privies
¶ 35       We agree with the Seventh Circuit’s reasoning as to why the defendants in Addington and
       Deere meet the “identity of parties or their privies” element for res judicata.
¶ 36       The defendants in Addington were eight managers working for Deere, while the defendant
       in this case is Deere itself. The eight managers operated within the scope of their employment
       when they investigated Harrison’s sexual misconduct and decided to terminate his
       employment. See Addington, 2011 IL App (3d) 100810, ¶¶ 43-81. Because the managers were
       acting as agents for Deere, the Illinois Appellate Court observed that Deere “would have been
       liable for all of the actions taken by its employees” when they terminated Harrison’s
       employment. Id. ¶ 51. Additionally, the managers’ interests were aligned with Deere’s
       interests because Harrison’s conduct “created a risk of workplace violence as well as a risk of
       financial liability for Deere.” Id. ¶ 83. The eight managers and Deere shared an interest in
       preventing such violence and liability. Therefore, because the managers were acting as Deere’s

                                                   -6-
       agents and they all had closely aligned interests, Addington and this case meet the “identity of
       parties or their privies” element for res judicata. (Internal quotation marks omitted.) Deere,
       533 F. App’x at 649.
¶ 37       DeFlon v. Sawyers, 2006-NMSC-025, 139 N.M. 637, 137 P.3d 577, relied on by Harrison,
       actually works against him. In that case, the court found that the named managers were not in
       privity with their company in its previous litigation with DeFlon because in their case they
       were being charged with acting outside of the scope of their employment. Id. ¶ 10. However, in
       the instant case, the situation is reversed. In Addington, the defendant’s managers were found
       to be acting within the scope of their employment and thus the defendant would have been
       liable for their actions. Addington, 2011 IL App (3d) 100810, ¶¶ 64, 73. Because of that closely
       aligned interest, there is privity.
¶ 38       Harrison argues that the identified agent in his section 9 cause of action, Martin, is not one
       of the parties identified in Addington and thus privity is severed. However, Harrison apparently
       failed to actually look at his complaint in Addington. Martin is, in fact, a named party in that
       case. Addington, 2011 IL App (3d) 100810.
¶ 39       The Seventh Circuit has already outlined why the parties in Addington are in privity with
       Deere, thus satisfying the second element of res judicata.

¶ 40                                   C. Identity of Cause of Action
¶ 41       Though a bit out of the outlined order, the last factor we consider is “identity of cause of
       action.” We find that the facts used in Addington and later in Deere constitute the same “single
       group of operative facts” that Harrison is once again using to substantiate his claims.
       Addington, 2011 IL App (3d) 100810; Deere, 533 F. App’x at 649.
¶ 42       Illinois’s “transactional test” for identity of cause of action for res judicata provides that
       “the assertion of different kinds or theories of relief still constitutes a single cause of action if a
       single group of operative facts give rise to the assertion of relief.” Baird & Warner, Inc. v.
       Addison Industrial Park, Inc., 70 Ill. App. 3d 59, 64 (1979).
¶ 43       Harrison has essentially conceded that the facts he used in Addington are the same facts he
       is using to establish his rights to relief on his current causes of action. In Addington, facts
       provided by Harrison and Deere concerning the investigation and termination of Harrison’s
       employment were used to determine if the named employees defamed or intentionally
       interfered with Harrison’s employment. Addington, 2011 IL App (3d) 100810. Such facts
       included the premier reason for gathering information about Harrison’s personal relationships
       by Deere’s employees, how the information was gathered, what information was gathered, and
       the management discussion and decisions supported by that information. Id. ¶¶ 64, 73-74. The
       actions used to gather and the decisions based on these facts were determined to have been
       within the scope of the responsibilities of Deere’s employees and not for any discriminatory or
       retaliatory purposes. Id. ¶¶ 73, 75. The factual information was properly acquired for the
       plaintiff’s termination. Id. ¶ 74.

¶ 44                                    1. Section 9 of the Act
¶ 45       Harrison claims that Deere violated section 9 of the Act by “gather[ing] or keep[ing] a
       record of [his] associations[,] *** communications [and] nonemployment activities.” 820
       ILCS 40/9 (West 2008). He asserts that he was unable to bring this issue in Addington because

                                                      -7-
       (1) the court refused to consider his section 9 claim, and (2) he had not received his “right to
       sue” letter from the Department of Labor prior to the trial court’s denial of his motion to extend
       the time for amendment of pleadings. He effectively concedes that the facts he uses here to
       argue this issue are the same ones relied on in Addington, but he claims that privity is an issue.
       Harrison’s privity argument has already been addressed. This court has already found in
       Addington that Deere would have been liable for the actions of its managers, including Martin,
       under the statute if a violation had been found. Addington, 2011 IL App (3d) 100810, ¶ 51.
¶ 46       Nonetheless, the Addington decision was not the reason why Harrison could not assert the
       alleged violation of section 9 of the Act before the court. Res judicata applies not only to issues
       that were previously litigated but also to those that could have been litigated but were not.
       Deere, 533 F. App’x at 648. Harrison had multiple options for bringing this specific issue
       before the court during the Addington litigation.
¶ 47       The Addington court declined to address Harrison’s section 9 claim in his appeal because it
       was not properly before the court. Addington, 2011 IL App (3d) 100810, ¶ 73. Harrison had
       waived the issue by failing to argue it in his opening brief. Id. Nonetheless, res judicata still
       applies.
¶ 48       With regard to his “right to sue” letter, Harrison could have asked the Addington trial court
       to stay proceedings until he received his “right to sue” letter. The plaintiff petitioned and was
       granted the right to amend his complaint several times. It is not unfair to presume neither
       Harrison nor the trial court would have had a problem with a stay of proceedings pending
       receipt of the “right to sue” letter. Yet, no stay was requested.
¶ 49       While Harrison does point to the Addington court’s denial of his motion for leave to amend
       the case management order on March 26, 2010, he fails to indicate why he needed such an
       amendment. He acknowledges that at the time he made the motion, he was not aware that the
       Department of Labor had also issued its “right to sue” letter on that same day. Thus, this would
       not have been a consideration in the court’s denial of the leave to amend the case management
       order.
¶ 50       Additionally, Harrison could have motioned for leave to file a supplemental amendment or
       amendments generally. Given the anticipated “right to sue” letter, such amendment would
       have been in the interest of justice. Harrison, however, chose to attempt to file yet another
       lawsuit based on the same operative facts in lieu of that or any of the other aforementioned
       options.

¶ 51                                      2. Invasion of Privacy
¶ 52       The facts Harrison points to in his invasion of privacy argument are the same operative
       facts that the Addington court found to be appropriate actions of Deere’s managers. Addington,
       2011 IL App (3d) 100810, ¶ 74. Harrison argues that questioning other employees directly
       about his private life was worse than the actions of the defendant in Johnson v. K mart Corp.,
       311 Ill. App. 3d 573 (2000) (hiring of private detectives to pose as employees to gain
       information about the private lives of employees). However, these are the same facts and
       essentially the same argument Harrison used in counts X, XI, and XII in Addington. There the
       court noted that “[O]nce the company was aware of appellant’s involvement in this other
       potentially inappropriate employee related relationship, additional investigation was
       appropriate.” Addington, 2011 IL App (3d) 100810, ¶ 74.


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¶ 53                                     3. Wrongful Termination
¶ 54       Finally, Harrison’s wrongful termination argument is couched in the trial court’s finding
       that he did not sufficiently argue the employer’s retaliatory conduct. However, a central
       finding in Addington is that the actions of Deere’s managers and Harrison’s subsequent firing
       were not based on a retaliatory motive. Addington, 2011 IL App (3d) 100810, ¶¶ 43, 58, 64, 76,
       81. The nonemployment activity that Harrison argues should not have been used for his
       termination is his personal relationships, which the Addington court found to be in violation of
       Deere’s company policy and thus the grounds for Harrison’s employment termination. Id.
       ¶ 74.
¶ 55       The facts used in Addington are the same operative facts the plaintiff is using in the present
       claims. The purpose of res judicata is to prohibit such “duplicative” litigation. Hudson v. City
       of Chicago, 228 Ill. 2d 462, 482 (2008). Thus Harrison’s claims of a violation of section 9 of
       the Act, invasion of privacy, and wrongful termination are barred by res judicata.

¶ 56                     III. Denial of Leave to File Another Amended Complaint
¶ 57       We also affirm the trial court’s finding that Harrison’s motion for leave to file an amended
       complaint concerning race discrimination is barred by res judicata. The standard of review for
       cases involving denial of a motion for leave to file an amended complaint is abuse of discretion
       by the trial court, which is found only where no reasonable person would take the view adopted
       by the trial court. Keefe-Shea Joint Venture v. City of Evanston, 364 Ill. App. 3d 48, 61 (2005).
       We point to the Seventh Circuit’s analysis in Deere finding “an identity of cause of action.”
       (Internal quotation marks omitted.) Deere, 533 F. App’x at 648. The same race discrimination
       claim attempted here was resolved in Addington and barred from relitigation in Deere. Id. We
       reject Harrison’s attempt to relitigate this issue and affirm the trial court’s decision that it
       cannot be litigated again.

¶ 58                                          CONCLUSION
¶ 59       We affirm the trial court’s denial of Harrison’s request for relief under section 12 of the Act
       because the issue is without legal consequence and further hold that Harrison’s other claims
       are all barred by res judicata.

¶ 60      Affirmed.




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