[Cite as Baumgartner v. AIM Leasing, 2013-Ohio-883.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT 

TRUMBULL COUNTY, OHIO 

ALBERT BAUMGARTNER, : O P I N I O N 

 Plaintiff-Appellant, :

CASE NO. 2012-T-0070

 - vs - :

AIM LEASING, :

 Defendant-Appellee. :

Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2011 CV 

1699. 

Judgment: Affirmed. 

James E. Lanzo, 4126 Youngstown-Poland Road, Youngstown, OH 44514 (For 

Plaintiff-Appellant). 

Stephen S. Zashin, B. Jason Rossiter, and Patrick M. Watts, Zashin & Rich Co., 

L.P.A., 55 Public Square, 4th Floor, Cleveland, OH 44113 (For Defendant-Appellee). 

DIANE V. GRENDELL, J. 

{¶1} Plaintiff-appellant, Albert Baumgartner, appeals from the Order and 

Judgment Entry of the Trumbull County Court of Common Pleas, granting defendantappellee, AIM Integrated Logistics’ (AIM), Motion for Summary Judgment. The issues 

to be determined by this court are whether a settlement agreement provision can be 

waived by signing a release form and whether a provision is enforceable if one party 

fails to perform part of its obligation under that provision. For the following reasons, we 

affirm the judgment of the court below. 
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{¶2} Baumgartner was an employee of AIM, a trucking company, from April 

2007 to May 2008, before he ceased to be employed by the company. Following the 

termination of his employment, he filed a lawsuit entitled Baumgartner v. AIM Leasing 

Co., Case No. 4:08-CV-2765, in the United States District Court for the Northern District 

of Ohio. In that suit, a settlement agreement was reached between the parties. The 

agreement stated, inter alia, the following: “Baumgartner agrees to direct all persons 

who desire a reference about his prior employment at AIM to Patricia Durkin. AIM will 

respond to all such inquiries by providing the document attached as Exhibit B, and by 

providing further only Baumgartner’s dates of employment, positions held, and his 

salary at the time of his separation from employment with AIM.” The agreement was 

signed by Baumgartner on August 6, 2009, and by a representative from AIM on August 

10, 2009. Attached to the agreement was Exhibit B, a document titled “Transportation 

Employment History,” which stated the dates Baumgartner was employed with AIM, as 

well as other general information. The document did not refer to any accidents that 

occurred while Baumgartner was employed by AIM. 

{¶3} On April 22, 2010, Baumgartner submitted a signed application for 

employment with Old Dominion Freight, another trucking company. A review of this 

application shows that, in the section titled “Accident Review (Past 10 Years)-

Preventable and Non-Preventable,” used for stating driving accidents, he wrote “none.” 

The application also stated that “misrepresentation or omission of information will result 

in rejection or dismissal.” A separate document, titled “Previous Employer Record 

Check,” also signed by Baumgartner on the same date, was sent from Old Dominion to 

AIM. At the bottom of that form, right above Baumgartner’s signature, it stated the 

following: “Dear Former Employer, You are hereby authorized to give Old Dominion 
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Freight Line, Inc. all information * * * regarding my employment. You are hereby 

released from any and all liability which may result from furnishing such information to 

Old Dominion.” This form was subsequently filled out by an AIM human resources 

employee, on June 1, 2010 who stated that Baumgartner had been in three accidents, 

including one “preventable” and two “non-preventable,” while employed at AIM. 

{¶4} After filling out the application, Baumgartner began working for Old 

Dominion in April of 2010. Pursuant to the testimony given in Baumgartner’s deposition 

in the present matter, after being employed by Old Dominion for several weeks, 

Baumgartner was informed by a manager that he was being “let go” after a report came 

back from AIM, which documented three “incidents” or accidents that occurred while 

Baumgartner was employed as a truck driver at AIM. At that time, Baumgartner told Old 

Dominion to contact Patricia Durkin, and was informed that it was “not their job to do 

that.” He did not inform them to contact Durkin in his application or prior to being fired. 

Baumgartner later testified, however, that he was also informed by Old Dominion that 

he was terminated because he falsified his employment application and did not report 

his driving record properly. 

{¶5} According to Baumgartner, in his employment application to Old 

Dominion, he did not report any of the accidents that occurred while he was employed 

by AIM. He explained that he would have reported them if he did not have an 

agreement with AIM. He testified that the Transportation Employment History attached 

to the settlement agreement stated that he had zero accidents while employed with 

AIM. 

{¶6} On August 3, 2011, Baumgartner filed the Complaint in the present action 

against AIM, in which he asserted that AIM released information related to 
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Baumgartner’s driving and accident record to Old Dominion, and that this was a breach 

of the settlement agreement signed during the prior litigation. Baumgartner argued that 

the release of this information caused him to lose his job with Old Dominion, and he 

requested money damages. Attached to the Complaint was a copy of the settlement 

agreement. 

{¶7} On September 1, 2011, AIM filed its Answer and Counterclaim. In this 

Answer, it raised various affirmative defenses, including that Baumgartner’s claims were 

waived, they were barred by estoppel, and that Baumgartner failed to follow the terms of 

the settlement agreement required to give rise to AIM’s duty to perform. In its 

counterclaim, AIM asserted that Baumgartner breached the confidentiality provision of 

the settlement agreement by attaching a copy of it to his Complaint. 

{¶8} On September 14, 2011, AIM filed a Motion to Seal Exhibit, requesting 

that the confidential agreement be sealed. 

{¶9} On October 20, 2011, Baumgartner filed his Answer to the Counterclaim. 

{¶10} AIM filed a Motion for Leave to File Amended Answer Instanter on 

October 26, 2011, and filed an Amended Answer of November 2, 2011. 

{¶11} On April 25, 2012, AIM filed a Motion for Summary Judgment. In this 

Motion, AIM argued that, based on the language of the settlement agreement, no 

breach occurred. It asserted that Baumgartner never notified his prospective employer, 

Old Dominion, to contact Patricia Durkin, as required by the settlement agreement, and 

thus, no duty arose under the agreement for AIM to disclose only certain information. 

{¶12} AIM also argued that Baumgartner signed a release authorizing AIM to 

provide information related to his driving record and is estopped from arguing that AIM 

should not have relied on this release as permission to provide such information. 
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{¶13} Attached to the Motion for Summary Judgment were several exhibits, 

including Baumgartner’s aforementioned application for employment with Old Dominion 

and the Previous Employer Record Check. An affidavit of Patricia Durkin was also 

submitted, in which she attested to the fact that she was never contacted by anyone at 

Old Dominion regarding Baumgartner’s employment application and that she did not 

provide any information to Old Dominion, but that another AIM human resources 

employee, Christie Barber, had filled out the employer record check. 

{¶14} In Baumgartner’s Response to the Motion for Summary Judgment, filed on 

June 22, 2012, he argued that there were genuine issues of material fact left to be 

argued at trial. He asserted that AIM failed to follow the specific language of the 

settlement agreement. 

{¶15} On July 26, 2012, the trial court issued an Order and Judgment Entry, 

granting AIM’s Motion for Summary Judgment “[f]or the reasons stated in Defendant’s 

briefs.” It entered judgment in favor of AIM on all claims asserted in Baumgartner’s 

Complaint. A second Order and Judgment Entry containing the same ruling was also 

filed on August 6, 2012. 

{¶16} On August 6, 2012, AIM filed a Notice of Voluntary Dismissal of 

Counterclaim Without Prejudice. 

{¶17} Baumgartner timely appeals and raises the following assignment of error: 

{¶18} “The trial court erred when it sustained appellee’s motion [for] summary 

judgment.” 

{¶19} Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the 

evidence shows “that there is no genuine issue as to any material fact” to be litigated, 

(2) “[t]he moving party is entitled to judgment as a matter of law,” and (3) “it appears 
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from the evidence * * * that 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, that party being entitled to have the evidence * * * construed most strongly in the 

party’s favor.” A trial court’s decision to grant summary judgment is reviewed by an 

appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77 

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). “A de novo review requires the appellate 

court to conduct an independent review of the evidence before the trial court without 

deference to the trial court’s decision.” (Citation omitted.) Peer v. Sayers, 11th Dist. 

No. 2011-T-0014, 2011-Ohio-5439, ¶ 27. 

{¶20} Moreover, the interpretation of a written contract is a question of law and 

is subject to de novo review. Long Beach Assn., Inc. v. Jones, 82 Ohio St.3d 574, 576, 

697 N.E.2d 208 (1998). This court has noted that a “settlement agreement is a

contract” and it must comply with the requirements of contract law. (Citation omitted.) 

Marshall v. Beach, 143 Ohio App.3d 432, 436, 758 N.E.2d 247 (11th Dist.2001). 

{¶21} Baumgartner argues that the trial court should have overruled AIM’s 

Motion for Summary Judgment because the settlement agreement forbid AIM from 

releasing his driving record to potential employers, since it stated that AIM could provide 

only certification of his employment dates, position held, and his salary. Baumgartner 

argues that the word “only” would be improperly disregarded if AIM were permitted to 

disclose his driving record. 

{¶22} AIM asserts that it did not breach the settlement agreement because 

Baumgartner failed to comply with the requirement that inquiries regarding his 

employment be directed to Patricia Durkin, to ensure that his accident history would not 

be reported. AIM also argues that Baumgartner signed a release form authorizing 
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information regarding his employment to be provided by AIM and, therefore, is estopped 

from claiming that AIM violated the settlement agreement. 

{¶23} Upon reviewing this matter, we conclude that there is no genuine issue of 

material fact and agree with the trial court’s decision granting summary judgment in 

favor of AIM. The language of the pertinent settlement agreement provision stated that 

Baumgartner “agrees to direct all persons who desire a reference about his prior 

employment at AIM to Patricia Durkin.” This appears to indicate that Baumgartner must 

refer any potential employer to Durkin in order for the company to provide the 

appropriate information. Baumgartner admitted in his deposition that he did not refer 

Old Dominion to Durkin until after AIM had already released Baumgartner’s accident 

history to Old Dominion. Based on this testimony, there is no factual dispute that 

Baumgartner failed to follow the requirement in the settlement agreement to ensure that 

proper information was reported. 

{¶24} As noted above, Baumgartner failed to refer Old Dominion to Durkin to 

receive information regarding his employment. Based on that failure, we find that the 

second portion of the relevant paragraph of the settlement agreement was not 

applicable to AIM and AIM did not violate the settlement agreement. The text of the 

settlement agreement stated that “Baumgartner agrees to direct all persons who desire 

a reference about his prior employment at AIM to Patricia Durkin. AIM will respond to 

all such inquiries” by providing the document attached as Exhibit B and “only 

Baumgartner’s dates of employment, positions held, and his salary at the time of his 

separation from employment with AIM.” (Emphasis added.) “Such” has been defined 

as “[t]hat or those; having just been mentioned.” Black’s Law Dictionary 1473 (8th 

Ed.2004). The use of the word “such” prior to the word “inquiries” can only be referring 
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to the portion of the sentence before it, which stated that Baumgartner would direct 

employers desiring a reference about his employment to Durkin. Since Baumgartner 

did not refer Old Dominion to Durkin, the asserted requirement that only limited 

information could be provided is not applicable under the language of the settlement 

agreement. 

{¶25} Further, it cannot be argued that “such inquiries” could include all inquiries 

to AIM in general and not just those made to Durkin. “In construing a contract, a court * 

* * must give meaning to every paragraph, clause, phrase and word, omitting nothing as 

meaningless, or surplusage.” (Citation omitted.) Ohio Patrolmen’s Benevolent Assoc. 

v. Lordstown, 118 Ohio App.3d 9, 12, 691 N.E.2d 1069 (11th Dist.1997). The use of the 

word “such” cannot be ignored. The phrase immediately preceding the word “such” 

specifically refers to references and inquiries being directed to Durkin, not to AIM in 

general. If the intent of the parties was for any and all inquiries to be included, the 

settlement agreement could have easily stated that intent. 

{¶26} We also note that on the Employer Record Check, Baumgartner signed 

right under a portion stating that AIM was “authorized to give Old Dominion * * * all 

information * * * regarding [his] employment.” It further stated that AIM was “released 

from any and all liability which may result from furnishing such information to Old 

Dominion.” As asserted by AIM, this is consistent with waiver by estoppel. Waiver by 

estoppel “‘exists when the acts and conduct of a party are inconsistent with an intent to 

claim a right, and have been such as to mislead the other party to his prejudice and 

thereby estop the party having the right from insisting upon it.’” Nedel v. Nedel, 11th 

Dist. No. 2007-P-0022, 2008-Ohio-1025, ¶ 47, citing Natl. City Bank v. Rini, 162 Ohio 

App.3d 662, 2005-Ohio-4041, 834 N.E.2d 836, ¶ 24 (11th Dist.). “Waiver by estoppel 
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allows a party’s inconsistent conduct, rather than a party’s intent, to establish a waiver 

of rights.” Id. In the present matter, the statement in the release contradicts any intent 

by Baumgartner to assert that AIM could not supply certain types of information to Old 

Dominion. It was inconsistent with his intent to assert the provision of the settlement 

agreement which he argues prevented AIM from providing his accident history. 

{¶27} Baumgartner argues that the settlement agreement should take 

precedence over any release form because rules of contract interpretation require that 

an express reservation dominates a general provision. However, such a rule is 

inapplicable, as the release was not a part of the contract and is not being interpreted, 

but instead considered only as it relates to Baumgartner’s waiver of the provision in the 

settlement agreement. Moreover, Baumgartner’s argument that the release was 

between himself and Old Dominion and not with AIM does not alter the fact that it 

specifically states Baumgartner is releasing AIM from liability and represents 

inconsistent conduct related to the enforcement of the settlement agreement. 

{¶28} Both parties also present argument as to whether AIM was required under 

federal law to provide the accident information to Old Dominion. Pursuant to 49 CFR 

391.23, previous motor carrier employers must respond to requests from potential future 

employers by providing data related to a previous employee’s accidents. As defined by 

49 CFR 390.5(1), an “accident” generally includes either a fatality, bodily injury, or “[o]ne 

or more motor vehicles incurring disabling damage as a result of the accident.” The 

accident descriptions disclosed by AIM in the Previous Employer Record Check do not 

appear to fall under this definition, although neither party presents any argument to 

address this issue. However, since there was a sufficient basis to grant the Motion for 
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Summary Judgment on the other grounds addressed above, we need not reach this 

issue. 

{¶29} Although AIM addresses the potential argument that it may have breached 

the settlement agreement by providing accident information to another potential 

employer, FedEx, we note that there was no reference to a breach involving such 

disclosure raised in the Complaint. Baumgartner also does not present any argument 

related to FedEx in his appellate brief. Based on the foregoing, we also need not 

address this issue. 

{¶30} The sole assignment of error is without merit. 

{¶31} For the foregoing reasons, the Judgment Entry of the Trumbull County 

Court of Common Pleas, granting summary judgment in favor of AIM, is affirmed. Costs 

to be taxed against appellant. 

TIMOTHY P. CANNON, P.J., 

THOMAS R. WRIGHT, J., 

concur.