[Cite as White v. Cleveland, 2014-Ohio-3926.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 101167




                                     HERSHEL WHITE
                                                       PLAINTIFF-APPELLANT

                                                 vs.


                                CITY OF CLEVELAND

                                                       DEFENDANT-APPELLEE




                                            JUDGMENT:
                                             AFFIRMED


                                     Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CV-13-812344

        BEFORE:           Boyle, A.J., Jones, J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED:                      September 11, 2014
ATTORNEY FOR APPELLANT

Paul A. Mancino
Mancino Mancino & Mancino
75 Public Square Building
Suite 1016
Cleveland, Ohio 44113-2098

ATTORNEYS FOR APPELLEE

Barbara A. Langhenry
Director of Law
Jonathan P. Barra
Assistant Director of Law
City of Cleveland
601 Lakeside Avenue
Suite 106
Cleveland, Ohio 44114
MARY J. BOYLE, A.J.:

       {¶1} Plaintiff-appellant, Hershel White, appeals the trial court’s sua sponte

dismissal of his complaint for back pay against defendant-appellee, the city of Cleveland

(“the city”). Finding no merit to the appeal, we affirm.

                                Procedural History and Facts

       {¶2} The record reveals that in October 2006, White resigned from his

employment as a waste collection foreman with the city, after being found guilty of three

counts of criminal usury. White’s convictions were later vacated on appeal. See State v.

White, 8th Dist. Cuyahoga No. 89085, 2007-Ohio-5951. White subsequently asked the

city to reinstate him to his former position, but the city refused.

       {¶3} In August 2008, White filed an injunctive action in the Cuyahoga County

Court of Common Pleas, Cuyahoga C.P. No. CV-667908, seeking reinstatement to his

position. The parties filed cross motions for summary judgment. The trial court granted

the city’s motion for summary judgment and denied White’s motion for summary

judgment, finding that White was not entitled to reinstatement. On appeal, however, this

court reversed the trial court’s decisions and remanded the case. See White v. Cleveland,

8th Dist. Cuyahoga No. 94212, 2010-Ohio-4357 (“White Appeal I”).

       {¶4} On remand, White filed a motion seeking an award of back pay in the amount

of $279,041.20 for the period of time that he resigned to the date that he was rehired.

The trial court denied the motion, and White appealed again. This court affirmed the
trial court’s denial of back pay. See White v. Cleveland, 8th Dist. Cuyahoga No. 99400,

2013-Ohio-3007 (“White Appeal II”).

       {¶5} One month after this court issued its opinion, White filed the underlying

action, alleging that he is entitled to an award of $279,041.20 in back pay after being

reinstated to his former position with the city. The underlying case, therefore, is White’s

second attempt to collect back pay from the city.

       {¶6} In his complaint, White specifically identified this court’s holding in White

Appeal I, but omitted any reference to White Appeal II.

       {¶7} The city answered the complaint, asserting several affirmative defenses,

including that White’s claim was barred by the doctrine of res judicata.          The city

specifically identified White Appeal II in its answer and attached a copy of this court’s

opinion and journal entry to its answer.

       {¶8} White subsequently moved for summary judgment, arguing that he was

entitled to back pay in light of this court’s decision in White Appeal I. White attached a

copy of that decision and his own affidavit in support of his argument. In his motion,

White ignored this court’s decision in White Appeal II, offering no arguments

distinguishing the case.

       {¶9} Relying on this court’s decision in White Appeal II, the trial court ultimately

denied White’s motion for summary judgment and dismissed his complaint. The trial

court specifically found that “White’s claim for back pay had been previously adjudicated
and affirmed on appeal. Therefore, the case currently before the court is barred by the

doctrine of res judicata.”

       {¶10} White appeals, raising the following two assignments of error:

       I. Plaintiff was denied due process of law when the court, without notice
       or an opportunity to be heard, took the [sic] judicial notice of other
       proceedings in another case.

       II. Plaintiff was denied due process of law when the court, on its own
       motion, ruled that res judicata precluded the claim for back pay when that
       claim was not part of the prior declaratory judgment action and only
       resulted from a post-verdict motion which, in a prior appeal, the court of
       appeals said was insufficient as it was not pled with any specificity as
       required by Rule 9(A) of the Rules of Civil Procedure.

                                      Judicial Notice

       {¶11} In his first assignment of error, White argues that the trial court erroneously

took judicial notice of this court’s opinion in White Appeal II without first giving him an

opportunity to respond to “the propriety of taking judicial notice.” White’s argument,

however, is misplaced.

      {¶12} Evid.R. 201 governs judicial notice of adjudicative facts and provides as
follows:

              A judicially noticed fact must be one not subject to reasonable
       dispute in that it is either (1) generally known within the territorial
       jurisdiction of the trial court or (2) capable of accurate and ready
       determination by resort to sources whose accuracy cannot reasonably be
       questioned.

       {¶13} White confuses the doctrine of judicial notice in this case. This is not a

case where the trial court took judicial notice of proceedings of a separate action where

the record is not before this court. Here, the trial court properly applied this court’s
holding in White Appeal II, which is a legally binding precedent that the lower court is

required to follow. See Toler v. Toler, 2d Dist. Clark No. 10-CA-69, 2011-Ohio-3510, ¶

13 (while a trial court “is perfectly free to disagree with prior holdings of [an appellate

court], it is nevertheless required to follow them”). Indeed, once this court affirmed the

trial court’s decision in White Appeal II, denying White back pay, that decision in White

Appeal II is now law of the case and “any further attempt to litigate [this] same issue is

res judicata.”   Ogline v. Sam’s Drug Mart, 5th Dist. Stark No. 2013 CA 00154,

2014-Ohio-2355, ¶ 34. As noted by the Ohio Supreme Court:

       There can be no question that where a judgment becomes final in the course
       of litigation, it becomes res judicata or the law of the case as to all questions
       therein decided. Where a second action or a retrial of an action is predicated
       on the same cause of action and is between the same parties as the first
       action or first trial of an action, a final judgment of an appellate court in the
       former action or the first trial of an action is conclusive in the second action
       or second trial of an action as to every issue which was or might have been
       presented and determined in the former instance.

Burton, Inc. v. Durkee, 162 Ohio St.3d 433, 438, 123 N.E.2d 432 (1954).

       {¶14} Accordingly, we find no merit to White’s first assignment of error and

overrule it.

                                        Res Judicata

       {¶15} In his second assignment of error, White argues that the trial court

erroneously concluded that his claim was barred by the doctrine of res judicata and

deprived him due process by dismissing his complaint. We disagree.

       {¶16} Under the doctrine of res judicata, “a valid, final judgment bars all

subsequent actions based on any claim arising out of the transaction or occurrence that
was the subject matter of the prior action.” Grava v. Parkman Twp., 73 Ohio St.3d 379,

382, 653 N.E.2d 226 (1995).

       {¶17} White claims that the issue of back pay has not been decided because his

underlying complaint in the other appeals involved solely a declaratory judgment seeking

his reinstatement. He argues that the claim for back pay was not part of that lawsuit, and

therefore res judicata does not apply.

       {¶18} Contrary to White’s assertion, the denial of his claim for back pay has

already been adjudicated and affirmed on appeal. Indeed, White Appeal II addressed the

single issue of whether White was entitled to $279,041.20 in back pay from the city

following his reinstatement —the very same issue in our appeal. As this court has

already decided, the trial court properly determined that White is not entitled to back pay

because he failed to properly amend his complaint to add a claim for back pay. White

Appeal II at ¶ 9.

       {¶19} White’s failure to properly plead the claim does not shield him from the

application of res judicata. Under claim preclusion of res judicata, a previous judgment

is conclusive as to all claims that were or could have been litigated in the first action.

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

2009-Ohio-1704, 905 N.E.2d 1210, ¶ 27. White Appeal II establishes that White could

have possibly prevailed on the back pay issue if it had been properly pled. But because it

has already been conclusively decided that White is not entitled to back pay, even if based

on a procedural defect in the complaint, White is precluded from relitigating the claim.
       {¶20} Notably, White failed to appeal our decision in White Appeal II, which he

should have done if he believed it to be wrongly decided. Under the doctrine of res

judicata, he is not entitled to a second bite of the apple to recover back pay when the issue

has already been conclusively decided. See State ex rel. Schneider v. Bd. of Edn. of N.

Olmsted School Dist., 65 Ohio St.3d 348, 603 N.E.2d 1024 (1992) (res judicata applied to

employee’s separate mandamus action for back pay when the issue of back pay had

already been decided by appellate court).

       {¶21} The second assignment of error is overruled.

       {¶22} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, ADMINISTRATIVE JUDGE

LARRY A. JONES, SR., J., and
EILEEN A. GALLAGHER, J., CONCUR
