Kobal v. Kobal

2022 Ohio 812

• Court: Ohio Court of Appeals
• Decided: March 17, 2022
• Docket: 110317
• Status: Published

Opinion

[Cite as Kobal v. Kobal, 2022-Ohio-812.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOHN E. KOBAL, :

Plaintiff-Appellant, : No. 110317 v. :

JONATHAN D. KOBAL, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: March 17, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-20-933361

Appearances:

John E. Kobal, pro se.

Darren W. DeHaven, for appellees.

MICHELLE J. SHEEHAN, J.:

Appellant John E. Kobal appeals the trial court’s dismissal of his

complaint in which he alleged multiple causes of action against appellees Jonathan

D. Kobal, Christopher J. Kobal, Shylah Kobal, and Kathleen M. Kobal. Because the

trial court erred in ruling upon the motion to dismiss by not converting the motion to dismiss into a motion for summary judgment, we reverse the judgment of the trial

court and remand this case to the trial court for further proceedings consistent with

this opinion.

I. FACTS AND PROCEDURAL HISTORY

Appellant filed a complaint on June 15, 2020. The complaint alleged

that appellant transferred the property at 6014 Velma Avenue, Parma, Ohio (the

“Velma property”) to his then wife, Kathleen Kobal, in 1993 in order to shield the

property from potential creditors. The complaint also alleged that in 2006, while

facing incarceration,1 he executed a general power of attorney to Kathleen Kobal.

Appellant further alleged that in 2010, Kathleen Kobal transferred the Velma

property to Jonathan D. Kobal and Christopher Kobal, reserving a life interest for

herself. He also states in the complaint that in 2015, there was a trial during the

divorce case with Kathleen Kobal and attached excerpts of the transcript from that

trial to the complaint. Appellant further attached the 1993 deed transferring the

Velma property, the 2006 power of attorney, and the 2010 deed transferring the

Velma property. In the four designated counts of the complaint, appellant outlined

varying theories that Kathleen Kobal committed fraud or breached certain

contractual duties in the 2010 transfer of the Velma property. Appellant also sought

1 Appellant was sentenced to a 14-year prison sentence in State v. Kobal, Cuyahoga C.P. No.

CR-06-487194-A (Mar. 26, 2007). an accounting of all his personal property that was in the Velma property at the time

of the transfer.

In answering the complaint, appellees admitted that appellant

transferred his interest in the Velma property to Kathleen Kobal in 1993, that

appellant executed the power of attorney in 2006, and that Kathleen Kobal gifted

the Velma property to Jonathan D. Kobal and Christopher Kobal. Appellees also

asserted several affirmative defenses to include that the complaint failed to state a

claim upon which relief could be granted, the complaint was barred by the statute of

limitations, and the complaint was barred by res judicata because the claims were

“addressed by the Cuyahoga County Domestic Relations Court, affirmed by the

Eighth District Court of Appeals, and/or dismissed by Judgment Entry of the

Cuyahoga County Court of Common Pleas, General Division.”

After answering the complaint, appellees filed a joint motion to

dismiss the complaint in which they argued that the complaint should be dismissed

on the basis of res judicata. Appellees attached the magistrate’s decision in the

divorce case, the trial court’s ruling on the objections to the magistrate’s decision,

and our opinion affirming the judgment. They argued that the first and third counts

of the complaint, which alleged wrongdoing in Kathleen Kobal’s transfer of the

Velma property, was litigated in the divorce case which appeal was determined in

Kobal v. Kobal, 2018-Ohio-1755, 111 N.E.3d 804 (8th Dist.). Appellees argued that

appellant’s demand for an accounting for his personal belongings outlined in the

second count of the complaint was also resolved in the domestic relations court. Finally, appellees argued that as to the fourth count of the complaint

alleging a fraudulent transfer of property that 1) appellant had no standing to bring

any fraudulent claim against Kathleen Kobal under Ohio’s Uniform Fraudulent

Transfer Act, and 2) even if he had standing, the statute of limitations had expired.

Further, appellees argued that the issue of fraud was raised in the divorce

proceedings and the court found that the transfer of the property was not done for

any improper purpose.

Appellant filed a response to the motion to dismiss to which he added

facts that were not detailed in the complaint. He attached exhibits to the response,

to include excerpts from the domestic relations case, excerpts from notes to 2015

H.B. 432, December 2008 and March 2009 corporate account statements, and a

copy of a general power of attorney. Appellant argued that res judicata did not

preclude his filing of the complaint because of false or fraudulent statements by

Kathleen Kobal and her counsel during the divorce proceedings. Further, appellant

claimed that discovery was necessary to develop facts in support of his complaint.

On February 3, 2021, the trial court dismissed the complaint on the

doctrine of res judicata, noting that “all of the counts in the complaint have been

previously adjudicated in other court proceedings.”

II. LAW AND ARGUMENT

A. Applicable law and standards of review

The trial court granted the motion to dismiss by applying the doctrine

of res judicata. “‘The issue of whether res judicata * * * applies in a particular situation is a question of law that is reviewed under a de novo standard.’”

Hempstead v. Cleveland Bd. of Edn., 8th Dist. Cuyahoga No 90955, 2008-Ohio-

5350, ¶ 6, quoting Gilchrist v. Gonsor, 8th Dist. Cuyahoga No. 88609, 2007-Ohio-

3903, ¶ 18, citing Nationwide Ins. Co. v. Davey Tree Expert Co., 166 Ohio App.3d

268, 2006-Ohio-2018, 850 N.E.2d 127 (11th Dist.).

The de novo standard of review provides no deference to the trial

court’s decision, and the court independently reviews the record to determine if res

judicata is appropriate. Id. “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 transactions or occurrence that was the subject matter of the

previous action.’” Kirkhart v. Keiper, 101 Ohio St.3d 377, 2004-Ohio-1496, 805

N.E.2d 1089, ¶ 5, quoting Grava v. Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d

226 (1995), syllabus. In other words, res judicata serves to bar claims that were

brought and those that “were or might have been litigated in a first lawsuit.” Rogers

v. Whitehall, 25 Ohio St.3d 67, 69, 494 N.E.2d 1387 (1986).

In reviewing a motion to dismiss brought pursuant to Crim.R. 12(C),

we apply the same standard of review as one brought pursuant to Civ.R. 12(B).

Jordan v. Giant Eagle Supermarket, 8th Dist. Cuyahoga No. 109304, 2020-Ohio-

5622, ¶ 21. “The Ohio Supreme Court has found that res judicata is not a defense

that can be raised by a motion to dismiss pursuant to Civ.R. 12(B) because that

defense must be proved with evidence outside the pleadings.” Commons v. Raaber,

8th Dist. Cuyahoga No. 96867, 2011-Ohio-6084, ¶ 10, citing State ex rel. Freeman v. Morris, 62 Ohio St.3d 107, 579 N.E.2d 702 (1991); Shaper v. Tracy, 73 Ohio St.3d

1211, 654 N.E.2d 1268 (1995).

B. The trial court erred by not converting the motion to dismiss into a motion for summary judgment

Appellant raised 12 assignments of error in this appeal. We address

only the first assignment of error2 to the extent that it addresses the propriety of the

trial court’s grant of appellees’ motion to dismiss. The complaint filed in this case is

divided into four counts, but all encompass issues regarding realty and personal

property that appellant acquired or held during his marriage. Within the complaint,

appellant acknowledges that the marriage was terminated and a trial was held upon

the divorce, attaching as exhibits to the complaint excerpts of the transcript of the

trial. R.C. 3105.171(B) provides a domestic relations court jurisdiction over

property, the ability to determine marital and separate property, and to “divide the

marital and separate property equitably between the spouses * * *.” Accordingly,

issues regarding the ownership or transfer of parties’ property are subject to the

jurisdiction of the domestic relations court. E.g., Cornell v. Rudolph, 3d Dist. Allen

2 The first assignment of error reads:

Trial court use of res judicata as a reason/excuse for dismissal is unreasonable, unconscionable, inappropriate and displays prejudice against the Appellant. Based on the requirements and judicial reasons for exclusion as a defense to obtain dismissal, Trial Court actions are a mis-carriage of judicial due process. No. 1-10-89, 2011-Ohio-4322, ¶ 17-19 (finding res judicata applicable where party

had full opportunity to litigate claims in divorce proceedings).

But the issues actually determined in the divorce proceedings, the

orders of the court, and the opinion of this court reviewing the proceedings are

beyond the facts listed in the pleadings. It is necessary to reference the previous

divorce case, the rulings therein, and the result of those proceedings to determine

whether or not res judicata applies to bar the complaint in this case. Where the

determination of a motion to dismiss requires reference to materials outside the

pleadings, the trial court should convert the motion to dismiss into a motion for

summary judgment. Hecht v. Equity Trust Co., 8th Dist. Cuyahoga Nos. 110380

and 110650, 2022-Ohio-198, ¶ 29.

Because the issue of whether or not res judicata barred the complaint

in this case cannot be determined without reference to materials outside the

pleadings, the trial court erred by not converting the motion to dismiss to one for

summary judgment, providing notice to the parties that it would do so, and allow

the parties to present appropriate evidence under Civ.R. 56. See Hecht at ¶ 33.

Accordingly, appellant’s first assignment of error is sustained in part.3

3 Our resolution of appellant’s first assignment of error renders appellant’s remaining assignments of error moot. App.R. 12(A)(1)(c), State v. Robinson, 8th Dist. Cuyahoga No. 85149, 2005-Ohio-2834, ¶ 49. III. CONCLUSION

Because we find that the trial court erred by proceeding to determine

the motion to dismiss without converting the motion to one of summary judgment,

the trial court’s judgment is reversed and this matter is remanded to the trial court

for proceedings consistent with this opinion.

It is ordered that appellant and appellees share the 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

common pleas 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.

_______________________________ MICHELLE J. SHEEHAN, JUDGE

FRANK DANIEL CELEBREZZE, III, P.J., and EILEEN A. GALLAGHER, J., CONCUR