[Cite as Baumgartner v. AIM Leasing, 2013-Ohio-883.]


                                 IN THE COURT OF APPEALS

                              ELEVENTH APPELLATE DISTRICT

                                  TRUMBULL COUNTY, OHIO


ALBERT BAUMGARTNER,                                    :   OPINION

                 Plaintiff-Appellant,                  :
                                                           CASE NO. 2012-T-0070
        - vs -                                         :

AIM LEASING,                                           :

                 Defendant-Appellee.                   :


Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2011 CV
1699.

Judgment: Affirmed.


James E. Lanzo, 4126 Youngstown-Poland Road, Youngstown, OH 44514 (For
Plaintiff-Appellant).

Stephen S. Zashin, B. Jason Rossiter, and Patrick M. Watts, Zashin & Rich Co.,
L.P.A., 55 Public Square, 4th Floor, Cleveland, OH 44113 (For Defendant-Appellee).



DIANE V. GRENDELL, J.

        {¶1}     Plaintiff-appellant, Albert Baumgartner, appeals from the Order and

Judgment Entry of the Trumbull County Court of Common Pleas, granting defendant-

appellee, AIM Integrated Logistics’ (AIM), Motion for Summary Judgment. The issues

to be determined by this court are whether a settlement agreement provision can be

waived by signing a release form and whether a provision is enforceable if one party

fails to perform part of its obligation under that provision. For the following reasons, we

affirm the judgment of the court below.
      {¶2}   Baumgartner was an employee of AIM, a trucking company, from April

2007 to May 2008, before he ceased to be employed by the company. Following the

termination of his employment, he filed a lawsuit entitled Baumgartner v. AIM Leasing

Co., Case No. 4:08-CV-2765, in the United States District Court for the Northern District

of Ohio. In that suit, a settlement agreement was reached between the parties. The

agreement stated, inter alia, the following: “Baumgartner agrees to direct all persons

who desire a reference about his prior employment at AIM to Patricia Durkin. AIM will

respond to all such inquiries by providing the document attached as Exhibit B, and by

providing further only Baumgartner’s dates of employment, positions held, and his

salary at the time of his separation from employment with AIM.” The agreement was

signed by Baumgartner on August 6, 2009, and by a representative from AIM on August

10, 2009. Attached to the agreement was Exhibit B, a document titled “Transportation

Employment History,” which stated the dates Baumgartner was employed with AIM, as

well as other general information. The document did not refer to any accidents that

occurred while Baumgartner was employed by AIM.

      {¶3}   On April 22, 2010, Baumgartner submitted a signed application for

employment with Old Dominion Freight, another trucking company. A review of this

application shows that, in the section titled “Accident Review (Past 10 Years)-

Preventable and Non-Preventable,” used for stating driving accidents, he wrote “none.”

The application also stated that “misrepresentation or omission of information will result

in rejection or dismissal.”   A separate document, titled “Previous Employer Record

Check,” also signed by Baumgartner on the same date, was sent from Old Dominion to

AIM. At the bottom of that form, right above Baumgartner’s signature, it stated the

following: “Dear Former Employer, You are hereby authorized to give Old Dominion

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Freight Line, Inc. all information * * * regarding my employment.        You are hereby

released from any and all liability which may result from furnishing such information to

Old Dominion.” This form was subsequently filled out by an AIM human resources

employee, on June 1, 2010 who stated that Baumgartner had been in three accidents,

including one “preventable” and two “non-preventable,” while employed at AIM.

       {¶4}     After filling out the application, Baumgartner began working for Old

Dominion in April of 2010. Pursuant to the testimony given in Baumgartner’s deposition

in the present matter, after being employed by Old Dominion for several weeks,

Baumgartner was informed by a manager that he was being “let go” after a report came

back from AIM, which documented three “incidents” or accidents that occurred while

Baumgartner was employed as a truck driver at AIM. At that time, Baumgartner told Old

Dominion to contact Patricia Durkin, and was informed that it was “not their job to do

that.” He did not inform them to contact Durkin in his application or prior to being fired.

Baumgartner later testified, however, that he was also informed by Old Dominion that

he was terminated because he falsified his employment application and did not report

his driving record properly.

       {¶5}     According to Baumgartner, in his employment application to Old

Dominion, he did not report any of the accidents that occurred while he was employed

by AIM.       He explained that he would have reported them if he did not have an

agreement with AIM. He testified that the Transportation Employment History attached

to the settlement agreement stated that he had zero accidents while employed with

AIM.

       {¶6}     On August 3, 2011, Baumgartner filed the Complaint in the present action

against AIM, in which he asserted that AIM released information related to

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Baumgartner’s driving and accident record to Old Dominion, and that this was a breach

of the settlement agreement signed during the prior litigation. Baumgartner argued that

the release of this information caused him to lose his job with Old Dominion, and he

requested money damages. Attached to the Complaint was a copy of the settlement

agreement.

      {¶7}   On September 1, 2011, AIM filed its Answer and Counterclaim. In this

Answer, it raised various affirmative defenses, including that Baumgartner’s claims were

waived, they were barred by estoppel, and that Baumgartner failed to follow the terms of

the settlement agreement required to give rise to AIM’s duty to perform.            In its

counterclaim, AIM asserted that Baumgartner breached the confidentiality provision of

the settlement agreement by attaching a copy of it to his Complaint.

      {¶8}   On September 14, 2011, AIM filed a Motion to Seal Exhibit, requesting

that the confidential agreement be sealed.

      {¶9}   On October 20, 2011, Baumgartner filed his Answer to the Counterclaim.

      {¶10} AIM filed a Motion for Leave to File Amended Answer Instanter on

October 26, 2011, and filed an Amended Answer of November 2, 2011.

      {¶11} On April 25, 2012, AIM filed a Motion for Summary Judgment. In this

Motion, AIM argued that, based on the language of the settlement agreement, no

breach occurred. It asserted that Baumgartner never notified his prospective employer,

Old Dominion, to contact Patricia Durkin, as required by the settlement agreement, and

thus, no duty arose under the agreement for AIM to disclose only certain information.

      {¶12} AIM also argued that Baumgartner signed a release authorizing AIM to

provide information related to his driving record and is estopped from arguing that AIM

should not have relied on this release as permission to provide such information.

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      {¶13} Attached to the Motion for Summary Judgment were several exhibits,

including Baumgartner’s aforementioned application for employment with Old Dominion

and the Previous Employer Record Check. An affidavit of Patricia Durkin was also

submitted, in which she attested to the fact that she was never contacted by anyone at

Old Dominion regarding Baumgartner’s employment application and that she did not

provide any information to Old Dominion, but that another AIM human resources

employee, Christie Barber, had filled out the employer record check.

      {¶14} In Baumgartner’s Response to the Motion for Summary Judgment, filed on

June 22, 2012, he argued that there were genuine issues of material fact left to be

argued at trial.   He asserted that AIM failed to follow the specific language of the

settlement agreement.

      {¶15} On July 26, 2012, the trial court issued an Order and Judgment Entry,

granting AIM’s Motion for Summary Judgment “[f]or the reasons stated in Defendant’s

briefs.” It entered judgment in favor of AIM on all claims asserted in Baumgartner’s

Complaint. A second Order and Judgment Entry containing the same ruling was also

filed on August 6, 2012.

      {¶16} On August 6, 2012, AIM filed a Notice of Voluntary Dismissal of

Counterclaim Without Prejudice.

      {¶17} Baumgartner timely appeals and raises the following assignment of error:

      {¶18} “The trial court erred when it sustained appellee’s motion [for] summary

judgment.”

      {¶19} Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the

evidence shows “that there is no genuine issue as to any material fact” to be litigated,

(2) “[t]he moving party is entitled to judgment as a matter of law,” and (3) “it appears

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from the evidence * * * that reasonable minds can come to but one conclusion and that

conclusion is adverse to the party against whom the motion for summary judgment is

made, that party being entitled to have the evidence * * * construed most strongly in the

party’s favor.” A trial court’s decision to grant summary judgment is reviewed by an

appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). “A de novo review requires the appellate

court to conduct an independent review of the evidence before the trial court without

deference to the trial court’s decision.” (Citation omitted.) Peer v. Sayers, 11th Dist.

No. 2011-T-0014, 2011-Ohio-5439, ¶ 27.

       {¶20} Moreover, the interpretation of a written contract is a question of law and

is subject to de novo review. Long Beach Assn., Inc. v. Jones, 82 Ohio St.3d 574, 576,

697 N.E.2d 208 (1998).         This court has noted that a “settlement agreement is a

contract” and it must comply with the requirements of contract law. (Citation omitted.)

Marshall v. Beach, 143 Ohio App.3d 432, 436, 758 N.E.2d 247 (11th Dist.2001).

       {¶21} Baumgartner argues that the trial court should have overruled AIM’s

Motion for Summary Judgment because the settlement agreement forbid AIM from

releasing his driving record to potential employers, since it stated that AIM could provide

only certification of his employment dates, position held, and his salary. Baumgartner

argues that the word “only” would be improperly disregarded if AIM were permitted to

disclose his driving record.

       {¶22} AIM asserts that it did not breach the settlement agreement because

Baumgartner failed to comply with the requirement that inquiries regarding his

employment be directed to Patricia Durkin, to ensure that his accident history would not

be reported.   AIM also argues that Baumgartner signed a release form authorizing

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information regarding his employment to be provided by AIM and, therefore, is estopped

from claiming that AIM violated the settlement agreement.

      {¶23} Upon reviewing this matter, we conclude that there is no genuine issue of

material fact and agree with the trial court’s decision granting summary judgment in

favor of AIM. The language of the pertinent settlement agreement provision stated that

Baumgartner “agrees to direct all persons who desire a reference about his prior

employment at AIM to Patricia Durkin.” This appears to indicate that Baumgartner must

refer any potential employer to Durkin in order for the company to provide the

appropriate information. Baumgartner admitted in his deposition that he did not refer

Old Dominion to Durkin until after AIM had already released Baumgartner’s accident

history to Old Dominion.   Based on this testimony, there is no factual dispute that

Baumgartner failed to follow the requirement in the settlement agreement to ensure that

proper information was reported.

      {¶24} As noted above, Baumgartner failed to refer Old Dominion to Durkin to

receive information regarding his employment. Based on that failure, we find that the

second portion of the relevant paragraph of the settlement agreement was not

applicable to AIM and AIM did not violate the settlement agreement. The text of the

settlement agreement stated that “Baumgartner agrees to direct all persons who desire

a reference about his prior employment at AIM to Patricia Durkin. AIM will respond to

all such inquiries” by providing the document attached as Exhibit B and “only

Baumgartner’s dates of employment, positions held, and his salary at the time of his

separation from employment with AIM.” (Emphasis added.) “Such” has been defined

as “[t]hat or those; having just been mentioned.” Black’s Law Dictionary 1473 (8th

Ed.2004). The use of the word “such” prior to the word “inquiries” can only be referring

                                           7
to the portion of the sentence before it, which stated that Baumgartner would direct

employers desiring a reference about his employment to Durkin. Since Baumgartner

did not refer Old Dominion to Durkin, the asserted requirement that only limited

information could be provided is not applicable under the language of the settlement

agreement.

      {¶25} Further, it cannot be argued that “such inquiries” could include all inquiries

to AIM in general and not just those made to Durkin. “In construing a contract, a court *

* * must give meaning to every paragraph, clause, phrase and word, omitting nothing as

meaningless, or surplusage.” (Citation omitted.) Ohio Patrolmen’s Benevolent Assoc.

v. Lordstown, 118 Ohio App.3d 9, 12, 691 N.E.2d 1069 (11th Dist.1997). The use of the

word “such” cannot be ignored. The phrase immediately preceding the word “such”

specifically refers to references and inquiries being directed to Durkin, not to AIM in

general. If the intent of the parties was for any and all inquiries to be included, the

settlement agreement could have easily stated that intent.

      {¶26} We also note that on the Employer Record Check, Baumgartner signed

right under a portion stating that AIM was “authorized to give Old Dominion * * * all

information * * * regarding [his] employment.” It further stated that AIM was “released

from any and all liability which may result from furnishing such information to Old

Dominion.” As asserted by AIM, this is consistent with waiver by estoppel. Waiver by

estoppel “‘exists when the acts and conduct of a party are inconsistent with an intent to

claim a right, and have been such as to mislead the other party to his prejudice and

thereby estop the party having the right from insisting upon it.’” Nedel v. Nedel, 11th

Dist. No. 2007-P-0022, 2008-Ohio-1025, ¶ 47, citing Natl. City Bank v. Rini, 162 Ohio

App.3d 662, 2005-Ohio-4041, 834 N.E.2d 836, ¶ 24 (11th Dist.). “Waiver by estoppel

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allows a party’s inconsistent conduct, rather than a party’s intent, to establish a waiver

of rights.” Id. In the present matter, the statement in the release contradicts any intent

by Baumgartner to assert that AIM could not supply certain types of information to Old

Dominion. It was inconsistent with his intent to assert the provision of the settlement

agreement which he argues prevented AIM from providing his accident history.

       {¶27} Baumgartner argues that the settlement agreement should take

precedence over any release form because rules of contract interpretation require that

an express reservation dominates a general provision.           However, such a rule is

inapplicable, as the release was not a part of the contract and is not being interpreted,

but instead considered only as it relates to Baumgartner’s waiver of the provision in the

settlement agreement.      Moreover, Baumgartner’s argument that the release was

between himself and Old Dominion and not with AIM does not alter the fact that it

specifically states Baumgartner is releasing AIM from liability and represents

inconsistent conduct related to the enforcement of the settlement agreement.

       {¶28} Both parties also present argument as to whether AIM was required under

federal law to provide the accident information to Old Dominion. Pursuant to 49 CFR

391.23, previous motor carrier employers must respond to requests from potential future

employers by providing data related to a previous employee’s accidents. As defined by

49 CFR 390.5(1), an “accident” generally includes either a fatality, bodily injury, or “[o]ne

or more motor vehicles incurring disabling damage as a result of the accident.” The

accident descriptions disclosed by AIM in the Previous Employer Record Check do not

appear to fall under this definition, although neither party presents any argument to

address this issue. However, since there was a sufficient basis to grant the Motion for




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Summary Judgment on the other grounds addressed above, we need not reach this

issue.

         {¶29} Although AIM addresses the potential argument that it may have breached

the settlement agreement by providing accident information to another potential

employer, FedEx, we note that there was no reference to a breach involving such

disclosure raised in the Complaint. Baumgartner also does not present any argument

related to FedEx in his appellate brief. Based on the foregoing, we also need not

address this issue.

         {¶30} The sole assignment of error is without merit.

         {¶31} For the foregoing reasons, the Judgment Entry of the Trumbull County

Court of Common Pleas, granting summary judgment in favor of AIM, is affirmed. Costs

to be taxed against appellant.



TIMOTHY P. CANNON, P.J.,

THOMAS R. WRIGHT, J.,

concur.




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