[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