COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72900 GERALD POWELL : : Plaintiff-Appellant : JOURNAL ENTRY : -vs- : AND : JAMES DOYLE, ET AL. : OPINION : Defendants-Appellees : Date of Announcement of Decision: OCTOBER 8, 1998 Character of Proceeding: Civil appeal from Court of Common Pleas Case No. 320030 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiff-Appellant: BRENT L. ENGLISH, ESQ. 310 Lakeside Avenue, W. 795 Courthouse Square Cleveland, Ohio 44113-1021 TIMOTHY J. KUCHARSKI, ESQ. 1130 Leader Building Cleveland, Ohio 44114 For Defendants-Appellees: STEPHEN A. MARKUS, ESQ. GREGORY A. GORDILLO, ESQ. Ulmer & Berne, L.L.P. 1300 East Ninth Street Cleveland, Ohio 44114-1583 -2- JAMES M. PORTER, P.J.: Plaintiff-appellant Gerald Powell appeals from the trial court order granting the motion for summary judgment filed by defendants- appellees Northeastern Ohio District Council of Carpenters (hereinafter District Council ) and the District Council's secretary-treasurer and chief executive officer, James Doyle (hereinafter Doyle ). Plaintiff, a union carpenter and member of Local 21 of the International Brotherhood of Carpenters, had alleged in his complaint causes of action against defendants for breach of contract and promissory estoppel. Plaintiff challenges the trial court's order on three bases: viz., that the trial court failed to consider plaintiff's memorandum and evidence in opposition to defendants' motion for summary judgment; that the trial court failed to act on plaintiff's motion for enlargement of time within which to respond to defendants' motion for summary judgment; and that the trial court erred in granting summary judgment in favor of defendants based on the contention that the claims in this case are barred by the doctrine of res judicata. We find no error and affirm. The record reflects that in August 1994, plaintiff filed a discrimination lawsuit against the District Council in the United States District Court for the Northern District of Ohio. The only claim presented by plaintiff in the federal court complaint was that he was denied an appointment as a business agent for the District Council solely on the basis of his race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq. -3- By way of relief, plaintiff sought, among other things, a declaratory judgment that the District Council's actions were unlawful; a preliminary and permanent injunction against the District Council and its agents, officers and employees enjoining them from engaging in the unlawful practices; and compensation sufficient to make the plaintiff whole for all earnings, wages and other benefits that he would have received if he had been appointed to the position of business agent. Subsequent to the initiation of the federal court action, plaintiff made an oral motion to voluntarily dismiss the action, with prejudice, pursuant to Fed.R.Civ.P. 41(a)(2). On May 26, 1995, pursuant to plaintiff's oral motion, the United States District Court entered the following order: It is, therefore, ordered, adjudged and decreed that this action is hereby dismissed, with prejudice, each party to bear his or its own costs. This Order applies to only those claims that were brought in this case. (Emphasis added.) Thereafter, on December 6, 1996, plaintiff filed a complaint in the Cuyahoga County Court of Common Pleas alleging that the District Council's refusal to appoint him to the position of business agent constituted breach of contract and that promissory estoppel should operate to prevent the District Council from denying him the position. The defendants in the state court action included the District Council as well as Doyle, the District Council's secretary-treasurer and chief executive officer. The primary relief sought by plaintiff in that case was judgment in excess of $100,000.00. The defendants filed an answer to the com- -4- plaint on January 7, 1997, and the following day filed a motion for judgment on the pleadings on the grounds of res judicata. Despite plaintiff's failure to file a response thereto, the trial court denied the motion for judgment on the pleadings, finding that a Civ.R. 12(C) motion could not be sustained on the basis of res judicata. In its order, the court indicated that it would reconsider the issue if properly presented. Thereafter, on April 17, 1997, the defendants filed a motion for summary judgment, arguing that the federal court's dismissal, with prejudice, of plaintiff's discrimination complaint constituted res judicata with respect to plaintiff's state court claims. On June 16, 1997, plaintiff filed a memorandum in opposition to defendants' motion for summary judgment, three days after the court-ordered deadline for said opposition. The trial court then entered the following order dated June 23, 1997: Defendants' motion for summary judgment *** is granted *** as the doctrine of res judicata bars the litigation of the claims presented ***. This motion was considered as unopposed because plaintiff failed to timely file his brief in opposition. Plaintiff filed a timely appeal from the trial court's order, presenting three assignments of error. We shall address Assignment of Error III first because we find it dispositive of this appeal. III. THE TRIAL COURT [COMMITTED] REVERSIBLE ERROR BY GRANTING SUMMARY JUDGMENT IN FAVOR OF THE APPELLEES BASED ON THE CONTENTION THAT THE CLAIMS IN THIS CASE WERE BARRED BY THE DOCTRINE OF RES JUDICATA. Under Civ.R. 56, summary judgment is proper when: -5- (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. It is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. However, the nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108, 111; Celotex, supra, at 322-323. In accordance with Civ.R. 56(E), "a nonmovant may not rest upon the mere allegations or denials of his pleadings, but must set forth specific facts showing there is a genuine issue for trial." Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Supreme Court of Ohio modified the summary judgment standard as was applied under Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108. Presently, under the new standard, "*** the moving party bears the initial responsibility of informing the trial court of -6- the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact or a material element of the nonmoving party's claim." Dresher at 296. This Court reviews the lower court's granting of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711 ("We review the judgment independently and without deference to the trial court's determination"). An appellate court reviewing the grant of summary judgment must follow the standards set forth in Civ.R. 56(C). "The reviewing court evaluates the record *** in a light most favorable to the nonmoving party. *** [T]he motion must be overruled if reasonable minds could find for the party opposing the motion." Saunders v. McFaul (1990), 71 Ohio App.3d 46, 50; Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741. We find the issue before us is a pure question of law ripe for summary judgment, i.e., should the with prejudice dismissal in federal court operate as res judicata for plaintiff's claims asserted in the state court. It is well settled that when a judgment is rendered by a federal court acting under its federal question jurisdiction, the availability of a res judicata defense depends on the federal-law standard. Apparel Art Intern., Inc. v. Amertex Enterprises Ltd. (C.A.1, 1995), 48 F.3d 576; Kale v. Combined Ins. Co. Of America (C.A.1, 1990), 924 F.2d 1161; Cemer v. Marathon Oil Co. (C.A.6, 1978), 583 F.2d 830. To the extent to which a federal court judgment operates as res judicata in the -7- federal court, it also operates as res judicata in Ohio state courts. Horne v. Woolever (1959), 170 Ohio St. 178. The main purposes of the doctrine are to protect defendants from being harassed by repetitive actions on the same claim, to conserve judicial resources, and to encourage reliance on adjudication. In the Matter of Super Van Inc. (C.A.5, 1996), 92 F.3d 366; Apparel Art Intern., supra. Under federal law, in order for a claim to be barred on grounds of res judicata, the new claim must share three elements with the earlier action: (1) identity of the parties or their privies; (2) identity of the causes of action; and (3) a final judgment on the merits. D & K Properties Crystal Lake v. Mutual Life Ins. Co. Of New York (C.A.7, 1997), 112 F.3d 257; Barnett v. Stern (C.A.7, 1990), 909 F.2d 973; Kale, supra. In the case sub judice, the first element, identity of the parties or their privies, has been established despite plaintiff's argument that the addition of Doyle as a party defendant in the state-based claim negates such identity. Although Doyle was not a party to the federal court action, a court is required to look behind the nominal parties to the substance of the cause of action to determine the real parties in interest. Trautwein v. Sorgenfrei (1979), 58 Ohio St.2d 493. Privity, which is defined as a succession of interest or relationship in the same thing, is established if the nonparty has succeeded to a party's interest, if he controlled the prior litigation, or if his interests were adequately represented by a party in the prior case. Metalworking -8- Machinery Co. v. Fabco, Inc. (1984), 17 Ohio App.3d 91. See, also, Latham v. Wells Fargo Bank, N.A. (C.A.5, 1990), 896 F.2d 979. As the chief executive officer of the District Council, Doyle is clearly in privity with the District Council. The second element of res judicata, identity of the causes of action, has also been established. While it is true that plaintiff's federal complaint raised only a discrimination claim, whereas his state action was based on breach of contract and promissory estoppel, res judicata operates to bar claims that were or could have been asserted in the earlier proceeding. D & K Properties Crystal Lake, supra; Apparel Art Intern., Inc., supra; Kale, supra; White v. Colgan Electric Co. (C.A.6, 1986), 781 F.2d 1214. The fact that a party raises different theories of recovery in federal and state actions is of no consequence if both theories derive from the same cause of action and concern the same operative nucleus of facts or the same transactions or events. Kale, supra; Brown v. Federated Dept. Stores, Inc. (C.A.9, 1981), 653 F.2d 1266. Plaintiff's two lawsuits, although based on different legal theories, were intended to remedy a single alleged wrong, i.e., the defendants' failure to appoint him to the position of business agent, and should have been brought together. See Cemer, supra. The final element of res judicata, a final judgment on the merits, has likewise been established. The federal court order dismissing plaintiff's discrimination claim against the District Council was made with prejudice. A dismissal with prejudice pursuant to Fed.R.Civ.P. 41(a)(2) is a final judgment on the merits -9- favorable to the defendant. Fitzgerald v. Allegheny Corp. (S.D.N.Y., 1995), 882 F.Supp. 1433; Nemaizer v. Baker (C.A.2, 1986), 793 F.2d 58. The foregoing reasoning is dictated by our decision in Lakewood, Ohio Congregation of Jehovah's Witnesses, Inc. v. Lakewood (1984), 20 Ohio App.3d 338, 339-340: Both federal and Ohio law indicate that the principle of res judicata is applicable to the case at bar. The United States Court of Appeals for the Seventh Circuit has held that where a plaintiff filed a federal suit alleging that defendants violated a federal statute, that plaintiff could not subsequently bring an action in state court alleging violation of state contract laws. Harper Plastics, Inc. v. Amoco Chemicals Corp. (C.A.7, 1981), 657 F.2d 939. In Harper Plastics, the court reasoned that both lawsuits were based on the same physical actions taken by the defendant, and that there was not a second cause of action merely because recovery was sought under different laws. The court in Harper Plastics further held that the plaintiff could have joined the state claim in federal court, and that res judicata operates to bar litigation not only of matters that were raised, but also of matters that should have been raised, in the previous proceeding. The facts in the present case are analogous to those in Harper Plastics. In Harper Plastics, supra at 941, the issue on appeal was whether res judicata bars a litigant from bringing a contract claim in state court following a dismissal on the merits of his federal anti-trust claim from federal court where the litigant did not join the contract claim as an alternative theory of recovery in the federal action. The defendant argued that the federal court's dismissal barred the plaintiff's state court claims. The -10- plaintiff, on the other hand, argued that his state court claims were not barred because these claims sought recovery under different laws and therefore the causes of action were separate and distinct. The court disagreed: [R]es judicata operates to bar litigation of matters that should have been raised in the prior proceeding. The prior judgment is conclusive not only in respect of every matter which was actually offered and received to sustain the demand or to make out a defense, but also as to every ground of recovery or defense which might have been presented. Mendez v. Bowie, 118 F.2d 435, 440 (1st Cir.), cert. denied, 314 U.S. 639, 62 S. Ct 76, 86 L.Ed 513 (1941). This application of the doctrine of res judicata operates to prevent the splitting of a single cause of action and the use of several grounds for recovery under the same action as the basis for separate suits. Id. An unsuccessful party may not, therefore, frustrate the doctrine of res judicata by cloaking the same cause of action in the language of a theory of recovery untried in the previous litigation. Lambert v. Conrad, 536 F.2d 1183 (7th Cir. 1976). Harper Plastics, supra, at 945. The Seventh Circuit found for the defendant holding that the district court's dismissal of plaintiff's federal claim precluded the state court contract claim. The court held: *** The facts set forth in Amended Count III of the federal complaint are the same as those alleged in the second count of the state pleading. The only significant variations lie in the jurisdictional allegations and the form of relief sought in each (i.e., damages under the Robinson-Patman Act in the federal compliant, and damages for breach of contract in the state complaint). In light of the foregoing authorities, appellant's contention that two separate causes of action are involved is simply incorrect. In essence, appellant argues that whenever several -11- theories of relief can conceivably apply to a single instance of wrongdoing, it follows of necessity that several causes of action arise out of that wrongdoing. While a single wrongful act may in some instances give rise to more than one cause of action, Kernel Kutter v. Fawcett Publications, Inc., 284 F.2d 675 (7th Cir. 1960), this is not such a case. The right involved in both of appellant's proceedings, insofar as the transaction for the sale of F.L.W. is concerned, was the right to an unconditional performance of the contract of sale, and appellant had an ample opportunity to advance its several theories of relief in its federal pleading. It elected not to do so at its own peril, and cannot now argue there are as many causes of action arising out of the transaction as there are conceivably relevant theories of relief. Id. The court in Harper Plastics also rejected the plaintiff's argument that, because the federal court's use of pendent jurisdiction was discretionary, it was unfair to expect plaintiff to plead his state claims in his federal complaint. The court stated: We fail to discern the unfairness in requiring a plaintiff to join all relevant theories of relief in a single proceeding. The uncertainty over whether a trial judge would exercise pendent jurisdiction does not justify permitting the institution of a multiplicity of proceedings which may have the effect of harassing defendants and wasting judicial resources. If appellant entertained any doubts at the pleading stage, they should have been resolved in favor of joinder. Id. at 946. Similarly, in Cemer, supra, the Sixth Circuit held that the plaintiff's state breach of contract claim was barred by res judicata after his federal age discrimination claim was dismissed -12- on statute of limitations grounds. In Cemer, the plaintiff's claims arose out of his discharge by his employer, Marathon. Plaintiff first filed a federal age discrimination claim in district court which was subsequently dismissed as barred by the statute of limitations. Plaintiff then filed an action in state court asserting that his discharge constituted a breach of his employment contract. After the case was removed back to federal court under diversity jurisdiction, the district court found that the second breach of contract claim was barred by res judicata. The court stated: Both the first and second suits seek to remedy a single alleged wrong, the discharge of Cemer by Marathon. In view of the diversity of the parties, both the contract claim and the ADEA claim were within the original jurisdiction of the district court in the first action and should have been brought together. The failure to join bars the instant suit. Cemer, supra, at 832. We come to the same conclusion under applicable Ohio law. In Shaper v. Tracy (1996), 76 Ohio St.3d 241, the Ohio Supreme Court reaffirmed its previous decision in Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379. In Grava, supra, at syllabus, the Court held that [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. The Court in Grava relied on 1 Restatement of the Law 2d, Judgments (1982) 196, Section 24(1), stating: When a valid and final judgment rendered in an action extinguishes the plaintiff's claim pursuant to the rules of merger or bar ***, -13- the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. See, also, 46 American Jurisprudence 2d, supra, at Sections 516 and 533. Comment b to Section 24 of the Restatement of Judgments, supra, at 198-199, defines a transaction as a common nucleus of operative facts. Comment c to Section 24, at 200, plainly states: That a number of different legal theories casting liability on an actor may apply to a given episode does not create multiple transactions and hence multiple claims. This remains true although the several legal theories depend on different shadings of the facts, or would emphasize different elements of the facts, or would call for different measures of liability or different kinds of relief. Id. at 382. Therefore, even though the federal court's dismissal order attempts to limit the order to only those claims that were brought in this case, the order also governs the state claims based on the same operative facts. Therefore, because plaintiff's federal discrimination claim and state breach of contract claim present the same cause of action, the trial court's limiting language does not prevent the application of res judicata to plaintiff's state breach of contract claim. Accordingly, res judicata bars plaintiff's state claims. Assignment of Error III is overruled. I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO CONSIDER APPELLANT'S MEMORANDUM AND EVIDENCE IN OPPOSITION TO APPELLEE'S [MOTION FOR] SUMMARY JUDGMENT. II. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO ACT ON APPELLANT'S MOTIONS FOR ENLARGEMENT OF TIME WITHIN WHICH TO RESPOND TO APPELLEE'S MOTION FOR SUMMARY JUDGMENT. -14- In view of our disposition of Assignment of Error III, these assignments of error are moot and need not be addressed. App.R. 12(A)(1)(c). Judgment affirmed. -15- It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas 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. JAMES D. SWEENEY, J., CONCURS. ROCCO, J., DISSENTS. (SEE DISSENTING OPINION ATTACHED). JAMES M. PORTER PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. 112, Section 2(A)(1). COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72900 GERALD POWELL : : Plaintiff-appellant : DISSENTING : vs. : OPINION : JAMES DOYLE, et al. : : Defendants-appellees : DATE: OCTOBER 8, 1998 KENNETH A. ROCCO, J. DISSENTING: I would conclude that the federal court's dismissal of appellant's Title VII claim did not preclude appellant's state law claims here. While I have grave doubts about the likelihood appellant would have succeeded on the merits of his claims, I do not believe that claim preclusive effect should be given to a dismissal with prejudice that is expressly limited to those claims that were brought in this case. Accordingly, I respectfully dissent from the majority opinion. The jurisdiction of the federal court was based on a federal question raised by appellant's Title VII claim. Appellant could have asserted his state law claims in that suit, pursuant to the court's supplemental jurisdiction. Had appellant asserted his -2- state law claims in the federal suit, on dismissal of his federal claim, he could have preserved the state law claims for a state court decision by asking the federal court to dismiss them without prejudice pursuant to its discretionary powers under 28 U.S.C. Section 1367(a)(3). It appears to me the judgment entered by the federal court intended the same effect with respect to unasserted state law claims. The court could not have more clearly stated its intention to limit the claim preclusive effect of its judgment. The majority's refusal to acknowledge this intention and give it effect denies the federal judgment the full faith and credit it deserves. For these reasons, I disagree with the majority's conclusion with respect to the res judicata effect of the federal court .