Jones v. W. Reserve Transit Auth.

2014 Ohio 2591

PAUL L. JONES, PLAINTIFF-APPELLANT, v. WESTERN RESERVE TRANSIT AUTHORITY, ET AL., DEFENDANTS-APPELLEES.

CASE NO. 13 MA 41

STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT

Dated: June 12, 2014

OPINION

CHARACTER OF PROCEEDINGS:

Civil Appeal from Court of Common

Pleas of Mahoning County, Ohio

Case No. 12CV841

JUDGMENT: Affirmed

APPEARANCES:

For Plaintiff-Appellant

Attorney David C. Fox

Attorney Mark Hanni

For Defendant-Appellee

Western Reserve Transit Authority

Attorney Karen D. Adinolfi

For Defendant-Appellee

Moore Counseling and Mediation

Services

Attorney Brian D. Sullivan

Attorney Brian T. Gannon

JUDGES:

Hon. Gene Donofrio

Hon. Joseph J. Vukovich

Hon. Cheryl L. Waite

DONOFRIO, J.

{¶1} Plaintiff-appellant Paul L. Jones appeals a decision of the Mahoning County Common Pleas Court awarding summary judgment in favor of defendants-appellees Western Reserve Transit Authority and Moore Counseling and Mediation Services on his claims for negligence and breach of contract.

{¶2} On April 25, 2008, while in the course and scope of his employment as a bus driver for WRTA, Jones attempted to make a stop at a grocery store, but the bus stop area was blocked by another vehicle. Jones and the driver of the other vehicle ended up in a verbal altercation and the grocery store later notified WRTA that Jones was banned from its property.

{¶3} In lieu of termination, Jones was offered WRTA's Employment Assistance Program (EAP). Jones was referred to Moore Counseling, the company WRTA had contracted with to administer its EAP. Jones was required to attend and complete a course of anger management. He was notified that his failure to complete the program would result in the termination of his employment. Initially, he attended the sessions as required but then missed one in July 2008. Efforts made by Moore Counseling to contact Jones proved unsuccessful and Moore Counseling notified WRTA of Jones's noncompliance with the EAP. WRTA suspended Jones, held a disciplinary hearing, and terminated his employment.

{¶4} On September 19, 2009, Jones sued WRTA for federal disability discrimination, federal and state racial discrimination, wrongful termination, and retaliation pursuant to 42 U.S.C. 1981. WRTA answered, detailing the series of events leading to Jones's termination, including his noncompliance with the EAP. On October 29, 2009, Jones dropped the wrongful termination claim and clarified his disability discrimination claim.

{¶5} In January of 2010, Jones filed a motion to amend his first amended complaint, alleging that he received information that the counseling program's third-party administrator, Moore Counseling, was "inextricably complicit in" his termination, which somehow gave rise to a breach of a fiduciary duty owed to Jones. Jones additionally alleged state-law contract and negligence claims, arising from thecontract that Jones signed with WRTA to begin his counseling program. Three days later, Jones withdrew that motion, and the day after that, filed another motion to amend his complaint to remove federal claims, or, in the alternative, to dismiss the complaint without prejudice. The district court denied both motions, reasoning:

Jones repeatedly claims that he is justified in amending the complaint because the amendment is supported by facts that were "recently discovered." In support, Jones claims that he became aware of these facts on January 14, 2010, when he received answers to interrogatories. However, the sole fact relied upon by Jones consists of WRTA informing Jones that it received confirmation from Moore Counseling that Jones had failed to complete his mandatory anger management therapy. Contrary to Jones' contentions, this fact was openly discussed during the Court's case management conference. WRTA's counsel made it clear to the court and Jones that his termination was the result of his unsuccessful completion of the anger management therapy. That conference took place on November 9, 2009. Jones' contention that he only learned of this fact in January [2010], therefore, is severely undermined.

{¶6} The federal court then granted WRTA's subsequent motion for summary judgment. The court found that Jones neither suffered from a disability nor was regarded as suffering from a disability, that Jones could not show evidence indicating that WRTA's reason for his termination was pretextual, and that Jones could not show any evidence of retaliation. Jones appealed to the Sixth Circuit Court of Appeals, arguing, in part, that the court's earlier denial of his motion to amend his complaint or dismiss it without prejudice was an abuse of discretion.

{¶7} Meanwhile, Jones sued WRTA and Moore Counseling in Mahoning County Common Pleas Court on August 16, 2010 (Case No. 2010-CV-03148), asserting claims for breach of contract, civil conspiracy, and negligence. WRTA fileda motion for summary judgment based on res judicata or, in the alternative, a motion to dismiss. Subsequently, Jones voluntarily dismissed WRTA, then later Moore Counseling also.

{¶8} On January 13, 2012, the Sixth Circuit Court of Appeals affirmed the district court's decision.

{¶9} On March 20, 2012, Jones filed the present action against WRTA and Moore Counseling alleging breach of contract and negligence. On May 22, 2012, Jones filed a motion for summary judgment based on res judicata or, in the alternative, a motion to dismiss. Moore Counseling filed a motion for summary judgment on September 5, 2012. Jones responded to both motions, but without any Civ.R. 56 material in support. On March 14, 2014, the trial court granted summary judgment in favor of WRTA and Moore Counseling and dismissed Jones's case. This appeal followed.

{¶10} Jones raises two assignments of error. But before addressing those assignments of error, an issue concerning Jones's appellate brief must first be addressed. In his appellate brief, Jones's appellate counsel continually refers to and relies heavily upon an affidavit apparently made by Jones. That affidavit was not part of the summary judgment proceedings below. In fact, Jones's memorandum in opposition to WRTA's and Moore Counseling's summary judgment motions never references any affidavit and no materials were attached in support of the memorandum.

{¶11} "While we review the record de novo and apply the same standard used by the trial court in reviewing the grant of summary judgment, Dinsio v. Occidental Chem. Corp. (1998), 126 Ohio App.3d 292, 710 N.E.2d 326, citing Varisco v. Varisco (1993), 91 Ohio App.3d 542, 545, 632 N.E.2d 1341, 1342-1343, appellate review is limited to the same evidentiary materials that were properly before the trial court at the time it ruled on the summary judgment motion. Christe v. GMS Mgt. Co. (1997), 124 Ohio App.3d 84, 88, 705 N.E.2d 691, 693, quoting Am. Energy Servs., Inc. v. Lekan (1992), 75 Ohio App.3d 205, 208, 598 N.E.2d 1315, 1317." Rose v. Natl. Mut.Ins. Co., 134 Ohio App.3d 229, 238, 730 N.E.2d 1014 (7th Dist.1999). Therefore, this court cannot consider the new materials referenced in Jones's appellate brief in determining whether the court erred in granting summary judgment.

{¶12} Jones's first assignment of error states:

THE TRIAL COURT ERRED, AS A MATTER OF LAW, BY GRANTING DEFENDANTS-APPELLEES MOTIONS FOR SUMMARY JUDGMENT ON THE BASIS OF RES JUDICATA.

{¶13} As indicated, an appellate court reviews a trial court's decision on a motion for summary judgment de novo. Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707, at ¶ 24. Summary judgment is properly granted when: (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) 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. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1976); Civ.R. 56(C).

{¶14} Given the lack of any materials attached to Jones's memorandums in opposition to WRTA's and Moore Counseling's summary judgment motions, it is important to highlight that Ohio's Rule of Civil Procedure governing summary judgment specifically requires:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party.

Civ.R. 56(E).

{¶15} Jones argues that res judicata does not bar his claims in the present action. More specifically, Jones argues that claim preclusion does not apply because the claims being asserted in the present action do not arise from the same transaction or occurrence that precipitated the causes of action that he asserted in his prior lawsuits. He maintains that his federal lawsuit dealt only with whether he was discriminated against on the basis of his race and not whether WRTA had intentionally or negligently breached the EAP agreement.

{¶16} In support, Jones cites Truax v. Em Industries, Inc., 107 Ohio App.3d 210, 668 N.E.2d 524 (1st Dist.1995). However, Jones's reliance on Truax is misplaced. In Truax, the First District held that an arbitrator's finding of just cause for the termination of an employee does not preclude that employee from bringing a subsequent suit claiming retaliation for having filed for workers' compensation. Truax's holding is limited to cases involving arbitration. In analyzing Truax and other cases like it, this court has observed:

[B]y determining that an arbitrator's decision will be binding on all other tribunals, we would be placing the power of a judge into the hands of an arbitrator. The United States Supreme Court and the Ohio Supreme Court have unequivocally held the

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