      [Cite as Glesser v. Professional Transp., Inc., 2018-Ohio-5282.]




                          IN THE COURT OF APPEALS OF OHIO
                              SIXTH APPELLATE DISTRICT
                                   WOOD COUNTY


Richard J. Glesser                                        Court of Appeals No. WD-18-019

      Appellant                                           Trial Court No. 17CV316

v.

Professional Transportation, Inc.                         DECISION AND JUDGMENT

      Appellee                                            Decided: December 28, 2018

                                                *****

      Clint M. McBee, for appellant.

      Andrew J. Wilhelms, for appellee.

                                                *****

      JENSEN, J.

                                         I.      Introduction

      {¶ 1} Appellant, Richard Glesser, appeals the judgment of the Wood County Court

of Common Pleas, granting appellee’s, Professional Transportation, Inc., motion for
summary judgment after finding that appellant’s wrongful termination action was barred

under the doctrine of res judicata.

                        A.     Facts and Procedural Background

       {¶ 2} On June 15, 2017, appellant filed his complaint with the trial court, in which

he alleged that appellee wrongfully terminated his employment as a branch manager of

appellee’s Toledo, Ohio unit on July 9, 2015.

       {¶ 3} According to appellant, he was provided an employment contract when he

was hired in 2012. Under the terms of the alleged contract, appellant was to be paid a

salary of $625 per week. Appellant alleged that the contract detailed his job description

and included “an attachment for orientation about offensive behavior.” Appellant

acknowledged that he was not in possession of the employment contract, but opined that

appellee was in possession of the signed copy of the agreement. Further, appellant

alleged that he was “left with the impression that if he followed the Contract he was

given, including the attachment, he was guaranteed his position by Contract.”

       {¶ 4} On July 1, 2015, appellant was called into the office of appellee’s general

manager and informed that he was suspended indefinitely without pay while an

investigation was conducted. Appellant did not provide details regarding the nature of

appellee’s investigation or what brought it about. Appellant’s employment was

terminated eight days after he was suspended. On the date of his termination, appellant




       2.
signed a “termination/separation form,” which did not specify the basis for his

termination.

       {¶ 5} Believing that he was not an at-will employee because of the contract he was

given when he was hired, appellant filed a wrongful termination action with the trial

court against one of appellee’s employees, Mark Nichols, in case No. 2016CV0005. The

complaint filed in case No. 2016CV0005 alleged the same facts as those alleged in the

present action. On October 5, 2016, the trial court granted summary judgment in favor of

Nichols in case No. 2016CV0005. Appellant then appealed the matter to this court.

Glesser v. Nichols, 6th Dist. WD-16-054, 2017-Ohio-7201. We affirmed the judgment of

the trial court on August 11, 2017.

       {¶ 6} While the appeal from the trial court’s decision in case No. 2016CV0005

was pending before our court, appellant filed the present action against appellee. On

December 13, 2017, appellee filed its motion for summary judgment, in which it argued

that appellant’s claims were barred by principles of res judicata and collateral estoppel,

having already been raised and disposed of by a decision on the merits in case No.

2016CV0005. Appellant responded by arguing that Nichols and appellee have separate

interests and are therefore not in privity with one another. As such, appellant asserted

that summary judgment was improper. Further, appellant moved the trial court to require

appellee to produce his personnel file, which he claimed would establish the existence of

an employment contract.




       3.
       {¶ 7} Upon consideration of the parties’ arguments, the trial court issued its

decision on February 20, 2018. In its decision, the trial court found that appellant’s

claims were barred by res judicata. Thus, the court granted appellee’s motion for

summary judgment and dismissed the complaint with prejudice.

                               B.      Assignment of Error

       {¶ 8} On March 13, 2018, appellant timely appealed the trial court’s decision

granting summary judgment to appellee, and now asserts the following assignment of

error for our review:

              The trial court committed error by failing to order discovery of

       Appellant’s personnel file held by Appellee. It was also error for the trial

       court to grant summary judgment without considering [appellee’s]

       personnel file for Appellant.

                                       II.   Analysis

       {¶ 9} In appellant’s assignment of error, he argues that the trial court erred in

finding that his wrongful termination claim was barred by res judicata. Appellant also

asserts that the trial court erred by granting summary judgment to appellee without first

ordering appellee to produce his personnel file in discovery. Appellant moves this court

to issue such an order compelling discovery of the personnel file. Because we find that

appellant’s claims in this action were properly dismissed via summary judgment on the

basis of the doctrine of res judicata, we find appellant’s motion moot.




       4.
       {¶ 10} “The doctrine of res judicata encompasses the two related concepts of

claim preclusion, also known as res judicata or estoppel by judgment, and issue

preclusion, also known as collateral estoppel.” O'Nesti v. DeBartolo Realty Corp., 113

Ohio St.3d 59, 2007-Ohio-1102, 862 N.E.2d 803, ¶ 6. “Claim preclusion prevents

subsequent actions, by the same parties or their privies, based upon any claim arising out

of a transaction that was the subject matter of a previous action.” Id.

       {¶ 11} The doctrine of claim preclusion has been distilled to apply where four

elements are present: “(1) there was a prior valid judgment on the merits; (2) the second

action involved the same parties as the first action; (3) the present action raises claims

that were or could have been litigated in the prior action; (4) both actions arise out of the

same transaction or occurrence.” State ex rel. Hensley v. City of Columbus, 10th Dist.

Franklin No. 10AP-840, 2011-Ohio-3311, ¶ 11. With regard to the second element, we

have elaborated that the doctrine of res judicata “applies to those who were parties in the

prior action, to those who were in privity with the litigants, and to those who could have

joined the action and did not.” Highfield v. Pietrykowski, 6th Dist. Ottawa No. OT-16-

008, 2016-Ohio-5695, ¶ 14, citing Howell v. Richardson, 45 Ohio St.3d 365, 367, 544

N.E.2d 878 (1989).

       {¶ 12} Here, appellant’s first action made its way to a valid judgment on the

merits when it was dismissed on summary judgment. Further, the complaint in the first

action is nearly identical to the complaint appellant filed in the present action, except for




       5.
the substitution of defendants, and the same facts underlie both actions. Thus, the only

issue that remains to be examined is whether appellee is in privity with its employee

(Nichols), or whether appellant could have joined appellee in the first action but failed to

do so.

         {¶ 13} Relevant to the issue before us, we have previously noted that “[a]n

employment relationship, coupled with an identity of desired result, has created privity

between an employee and the employer.” Reese v. Wagoner & Steinberg, Ltd., 6th Dist.

Lucas No. L-10-1156, 2011-Ohio-2440, ¶ 20, citing Electrical Enlightenment, Inc. v.

Kirsch, 9th Dist. Summit No. 23916, 2008-Ohio-3633, ¶ 9. Other courts have likewise

found that an agent is in privity with his or her principal for purposes of res judicata,

where the agent is defending against claims that involve his or her conduct undertaken

within the scope of the agency-principal relationship. Wright v. Heller, 2018-Ohio-149,

102 N.E.3d 1285, ¶ 27 (1st Dist.) (applying res judicata to bar a second action against

realty company and its agents who were acting as agents for Bank of America and were

therefore deemed to be in privity with the bank); Ferrara v. Vicchiarelli Funeral Servs.,

Inc., 2016-Ohio-5144, 69 N.E.3d 171, ¶ 19 (8th Dist.) (concluding that privity was

established between funeral home, employee, and independent contractor because all

actions taken by employee and independent contractor were on behalf of the funeral

home).




         6.
       {¶ 14} In appellant’s first action, he asserted a wrongful termination claim against

Nichols for acts he committed while in the employment of appellee. In the present

action, appellant asserts the same claim, only this time against the employer (appellee)

instead of the employee (Nichols). Given the fact that appellee and Nichols were

employer and employee, respectively, and because Nichols was acting within the scope

of his employment during the time period at issue in both of appellant’s actions, we find

that the trial court properly concluded that appellee and Nichols are in privity with one

another. As such, it is clear that all four elements of claim preclusion have been met in

this case. Therefore, we hold that appellant’s second action was barred by the doctrine of

res judicata, and we find appellant’s assignment of error not well-taken.

                                    III.   Conclusion

       {¶ 15} In light of the foregoing, the judgment of the Wood County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.




                                                                        Judgment affirmed.




       7.
                                                                        Richard J. Glesser
                                                       v. Professional Transportation, Inc.
                                                                    C.A. No. WD-18-019




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Thomas J. Osowik, J.                           ____________________________
                                                       JUDGE
James D. Jensen, J.
                                               ____________________________
Christine E. Mayle, P.J.                               JUDGE
CONCUR.
                                               ____________________________
                                                       JUDGE




       This decision is subject to further editing by the Supreme Court of
  Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
       version are advised to visit the Ohio Supreme Court’s web site at:
                http://www.supremecourt.ohio.gov/ROD/docs/.




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