[Cite as Fitzgerald v. Cuyahoga, 2012-Ohio-2638.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97772



                             ARNETTA FITZGERALD
                                                    PLAINTIFF-APPELLANT

                                                     vs.


                     COUNTY OF CUYAHOGA, ET AL.
                                                    DEFENDANTS-APPELLEES




                                           JUDGMENT:
                                            AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-762300

        BEFORE: Kilbane, J., Blackmon, A.J., and Cooney, J.

        RELEASED AND JOURNALIZED:                          June 14, 2012
ATTORNEY FOR APPELLANT

Paul M. Kaufman
801 Terminal Tower
50 Public Square
Cleveland, Ohio 44113-2203

ATTORNEYS FOR APPELLEES

William D. Mason
Cuyahoga County Prosecutor
Steven W. Ritz
Assistant County Prosecutor
3955 Euclid Avenue, Room 305E
Cleveland, Ohio 44115
MARY EILEEN KILBANE, J.:

          {¶1} This is an accelerated appeal brought pursuant to App.R. 11.1 and

Loc.App.R. 11.1.

          {¶2} Plaintiff-appellant, Arnetta Fitzgerald (“Fitzgerald”), appeals the trial court’s

order granting summary judgment in favor of defendants-appellees Cuyahoga County,

Cuyahoga County Department of Children and Family Services (“CCDCFS”), Deborah

Forkas, former director of CCDCFS, Alan Shubert, Jillian Blackwell, and Chararie

Ragland (collectively referred to as “defendants”). Finding no merit to the appeal, we

affirm.

          {¶3} The instant appeal arises out of the October 2009 death of Fitzgerald’s

five-year-old grandson, Arshon Baker (“Baker”). Baker died as a result of being beaten

by his mother, Angel Glass.

          {¶4} In October 2010, Fitzgerald, as administrator of her grandson’s estate, filed a

complaint against CCDCFS for negligence and wrongful death.

See Fitzgerald v. Cuyahoga Cty., Cuyahoga C.P. No. CV-10-738363 (prior case).

          Fitzgerald alleged that Baker was under the care and supervision of
          CCDCFS’s social workers, supervisors, and related staff. Fitzgerald alleged
          that CCDCFS failed to provide Baker with safe and acceptable social
          services care. Fitzgerald specifically alleged that as a result of CCDCFS’s
          negligent acts and/or omissions, Baker sustained injuries, which resulted in
          his death.

Fitzgerald v. Cuyahoga Cty., 8th Dist. No. 96333, 2011-Ohio-3476, ¶ 4 (“Fitzgerald I”).
       {¶5} CCDCFS filed a motion to dismiss Fitzgerald’s complaint on the basis of

governmental immunity.       In response to CCDCFS’s motion, Fitzgerald amended her

complaint by adding a count for “bad faith, wanton misconduct and/or reckless behavior as

stated in [R.C. 2744.03(A)(6)(b)].”       In response, CCDCFS argued that Fitzgerald’s

amendment is futile because governmental immunity still applies, and the reckless and

wanton conduct count failed to state a claim upon which relief could be granted.

Fitzgerald then argued that the governmental immunity statute as applied to the case was

unconstitutional. The trial court granted CCDCFS’s motion to dismiss the complaint, and

Fitzgerald appealed to this court in Fitzgerald I.

       {¶6} On appeal, Fitzgerald argued that the trial court erred in granting CCDCFS’s

motion to dismiss because R.C. 2744 is unconstitutional. In finding that Fitzgerald’s

constitutional challenge is without merit, we noted that in O’Toole v. Denihan, 118 Ohio

St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, ¶ 95, the Ohio Supreme Court refused to

revisit the constitutionality of R.C. Chapter 2744 (where the court concluded that this issue

is one that is settled). We concluded: “[g]iven that Fitzgerald is unable to prove any set

of facts entitling her to relief, the trial court did not err in granting CCDCFS’s motion to

dismiss the complaint.” Fitzgerald I at ¶ 10.

       {¶7} Then in August 2011, Fitzgerald refiled her complaint against defendants,

again alleging that Baker was under the care and supervision of CCDCFS’s social

workers, and supervisors.       She further alleged that under R.C. 2744.03(A)(6)(b),

defendants were negligent because the service they provided Baker “constitutes omissions
of the Defendants which were rendered in bad faith and/or wanton or a reckless manner.”

In response, defendants filed a “motion for judgment on the pleadings and/or summary

judgment” arguing res judicata, failure to state a claim, and governmental immunity under

R.C. Chapter 2744. The trial court gave notice that it was treating the motion as a motion

for summary judgment and gave Fitzgerald the opportunity to respond to defendants’

motion.    Fitzgerald argued that the current complaint does not contain the same

allegations as the first amended complaint in her prior case. The trial court granted

defendants’ motion for summary judgment, stating that the order was final and there was

no just reason for delay.

       {¶8} It is from this order that Fitzgerald appeals, raising the following single

assignment of error for review.

                                  ASSIGNMENT OF ERROR

       The trial court erred in granting [defendant’s] motion for summary
       judgment.

       {¶9} In the sole assignment of error, Fitzgerald argues that there are numerous

issues of material fact and res judicata does not apply because when the trial court

dismissed the first amended complaint in the prior case, it did not adjudicate the issue of

“wanton and willful” misconduct. We disagree.

       {¶10} In the instant case, Fitzgerald amended the complaint in her prior case by

adding a count for “bad faith, wanton misconduct and/or reckless behavior as stated in

[R.C. 2744.03(A)(6)(b)].”     The trial court dismissed the amended complaint, with
prejudice, finding that Fitzgerald failed to state a claim upon which relief can be granted

under Civ.R. 12(B)(6). The trial court further stated that:

       This court does recognize an exception to immunity based on claims for bad
       faith, wanton misconduct and/or reckless behavior. However, as argued by
       the defendants this court must decide whether the mere allegation of wanton
       and/or reckless misconduct is sufficient to state a claim for liability. The
       Ohio Supreme Court and this district’s court of appeals have held that mere
       allegations of wanton misconduct without any factual allegations are not
       sufficient to survive a motion to dismiss and that while a court has an
       obligation to accept factual allegations as true that obligation does not
       extend to unsupported legal conclusions. [Hodge v. Cleveland, 8th Dist.
       No. 72283, 1998 WL 742171 (Oct. 22, 1998)]; see also [Byrd v. Faber, 57
       Ohio St.3d 56, 565 N.E.2d 584 (1991)]. [Fitzgerald] failed to allege any
       facts in the complaint that might constitute wanton or reckless conduct and
       rather simply stated legal conclusions.

       {¶11} We recognize that under the doctrine of res judicata, “[a] valid, final

judgment rendered upon the merits bars all subsequent actions based upon any claim

arising out of the transaction or occurrence that was the subject matter of the previous

action.” Grava v. Parkman Twp., 73 Ohio St.3d 379, 1995-Ohio-331, 653 N.E.2d 226, at

the syllabus.

       {¶12} Res judicata requires the plaintiff to present every ground for relief in the

first action, or be forever barred from asserting it. Hempstead v. Cleveland Bd. of Edn.,

8th Dist. No. 90955, 2008-Ohio-5350, ¶ 7. In order for a claim to be barred on the

grounds of res judicata, the following four elements must be met: “‘(1) a prior final, valid

decision on the merits by a court of competent jurisdiction; (2) a second action involving

the same parties, or their privies, as the first; (3) a second action raising claims that were or

could have been litigated in the first action; and (4) a second action arising out of the
transaction or occurrence that was the subject matter of the previous action.’” Portage

Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478, ¶84,

quoting Hapgood v. Warren, 127 F.3d 490 (6th Cir.1997).

      {¶13} Here, we find that all four elements have been met.             The trial court

dismissed the first amended complaint in Fitzgerald’s prior case with prejudice. The Ohio

Supreme Court has found that a dismissal with prejudice is a final judgment for purposes

of res judicata. Tower City Properties v. Cuyahoga Cty. Bd. of Revision, 49 Ohio St.3d

67, 69, 551 N.E.2d 122 (1990). Furthermore, Fitzgerald’s complaint in the instant case

alleges the same causes of action against the same defendants arising from the same

incident — the death of her grandson. Count IV of Fitzgerald’s first amended complaint

alleges claims for “bad faith, wanton misconduct and/or reckless behavior as stated in

[R.C. 2744.03(A)(6)(b)]” and in Count II of her current complaint, Fitzgerald alleges that

under R.C. 2744.03(A)(6)(b), the “omissions of the Defendants * * * were rendered in bad

faith and/or wanton or a reckless manner.” Fitzgerald could have raised the “bad faith,

wanton misconduct and/or reckless behavior” argument in her prior appeal, but failed to

do so. Thus, Fitzgerald’s argument is barred by res judicata.

      {¶14} The sole assignment of error is overruled.

      {¶15} Accordingly, judgment is affirmed.

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

      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 EILEEN KILBANE, JUDGE

PATRICIA A. BLACKMON, A.J., and
COLLEEN CONWAY COONEY, J., CONCUR
