[Cite as Rarden v. Ewen, 2016-Ohio-548.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
LONNIE RARDEN, :
Plaintiff-Appellant, : CASE NO. CA2015-05-098
: OPINION - vs - 2/16/2016 :
AMANDA K. EWEN, :
Defendant-Appellee. :
CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2014 12 3263
Lonnie Rarden, #A547085, Madison Correctional Institution, P.O. Box 740, London, Ohio 43140, plaintiff-appellant, pro se
Amanda K. Ewen, 350 Warr Lane, Hamilton, Ohio 45013, defendant-appellee, pro se
HENDRICKSON, J.
{¶ 1} Plaintiff-appellant, Lonnie Rarden, appeals from a decision of the Butler County
Court of Common Pleas dismissing his complaint for defamation on the basis of res judicata.
For the reasons set forth below, we reverse and remand.
{¶ 2} In 2013, in Butler County Court of Common Pleas Case No. CV 2013 08 2405,
Rarden filed a defamation complaint against defendant-appellee, Amanda K. Ewen. Ewen
filed a motion to dismiss the complaint for failure to state a claim under Civ.R. 12(B)(6), and Butler CA2015-05-098
the motion to dismiss was granted in November 2013. Rarden appealed the trial court's
decision to this court, and we dismissed his appeal due to his failure to pay the required filing
fees. Rarden v. Ewen, 12th Dist. Butler No. CA2013-12-230 (Mar. 18, 2014) (Entry of
Dismissal). Nearly a year after Ewen's motion to dismiss had been granted and Rarden's
appeal of that decision dismissed, Rarden filed a motion to "voluntarily dismiss" Case No. CV
2013 08 2405 with the trial court.
{¶ 3} On December 29, 2014, Rarden filed a complaint in Butler County Court of
Common Pleas Case No. CV 2014 12 3263. This complaint was identical to the complaint
filed in Case No. CV 2013 08 2405. Ewen, pro se, responded to the complaint by filing a
letter with the court on January 20, 2015, asking the court to dismiss the 2014 case because
the case had already been decided by virtue of the court's dismissal in the 2013 case.
Attached to Ewen's letter were court documents pertaining to the 2013 case. Ewen
subsequently filed a Civ.R. 12(B)(6) motion to dismiss in the action. Rarden filed a
memorandum in opposition to Ewen's motion to dismiss, arguing he set forth sufficient facts
to proceed on his defamation claim. He also argued that refiling of his complaint was proper
since he "voluntarily dismissed" his cause of action in the 2013 case.
{¶ 4} After considering the parties' briefs on the issue, the trial court granted Ewen's
motion to dismiss on the basis that Rarden's claims were barred by the doctrine of res
judicata. The court found that a decision on the merits of Rarden's complaint had already
been issued in Case No. CV 2013 08 2405, and that such decision served as a bar to any
subsequent action on the same claim between the parties.1
{¶ 5} Rarden timely appealed the trial court's decision, raising the following
1. In concluding that res judicata barred appellant's present lawsuit, it was necessary for the trial court to consider evidence outside the four corners of the complaint. In doing so, the trial court, in essence, converted Ewen's motion to dismiss into a motion for summary judgment. -2- Butler CA2015-05-098
assignment of error:
{¶ 6} THE TRIAL COURT ERRORED [SIC] GRANTING APPELLEE/DEFENDANT'S
MOTION TO DISMISS PURSUANT TO CIVIL RULE 12(B)(6) ON THE GROUNDS OF RES
JUDICATA.
{¶ 7} In his sole assignment of error, Rarden argues the trial court erred in granting
Ewen's motion to dismiss because res judicata cannot be raised by a motion to dismiss
under Civ.R. 12(B). He further contends the court erred when it granted Ewen's motion
because the court relied on evidence outside of the complaint.
{¶ 8} "A motion to dismiss for failure to state a claim upon which relief can be granted
* * * tests the sufficiency of the complaint." State ex rel. Hanson v. Guernsey Cty. Bd. of
Commrs., 65 Ohio St.3d 545, 548 (1992). A motion made pursuant to Civ.R. 12(B)(6) only
determines whether the pleader's allegations set forth an actionable claim. Pyle v. Ledex,
Inc., 49 Ohio App.3d 139, 143 (12th Dist.1988). "A court may not use the motion to
summarily review the merits of the cause of action." Home Builders Assn. of Dayton & Miami
Valley v. Lebanon, 12th Dist. Warren No. CA2003-12-115, 2004-Ohio-4526, ¶ 8.
{¶ 9} "In order for a complaint to be dismissed under Civ.R. 12(B)(6) * * * it must
appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling
him to relief." Cincinnati v. Berretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, ¶ 5.
"In construing a complaint upon a motion to dismiss for failure to state a claim, we must
presume that all factual allegations of the complaint are true and make all reasonable
inferences in favor of the non-moving party." Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190,
192 (1988). The court may look only to the complaint to determine whether the allegations
are legally sufficient to state a claim. Home Builders Assn. at ¶ 8. "[A]s long as there is a set
of facts, consistent with the plaintiff's complaint, which would allow the plaintiff to recover, the
court may not grant a defendant's motion to dismiss." York v. Ohio State Hwy. Patrol, 60 -3- Butler CA2015-05-098
Ohio St.3d 143, 145 (1991). A reviewing court conducts a de novo review of a trial court's
decision on a motion to dismiss. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-
Ohio-4362, ¶ 5.
{¶ 10} In State ex rel. Freeman v. Morris, 62 Ohio St.3d 107, 109 (1991), the Ohio
Supreme Court held that the defense of res judicata may not be raised by a motion to
dismiss under Civ.R. 12(B). The court stated:
Civ.R. 8(C) designates res judicata an affirmative defense. Civ.R. 12(B) enumerates defenses that may be raised by motion and does not mention res judicata. Accordingly, we hold that the defense of res judicata may not be raised by motion to dismiss under Civ.R. 12(B).
Id. The court went on to recognize that the defense of res judicata could be raised by motion
for summary judgment. Id. However, the court in Freeman concluded summary judgment
was not appropriate as the motion to dismiss had not been converted by the trial court into a
motion for summary judgment and the documents attached to the motion were not proper
Civ.R. 56(C) evidence. Id.
{¶ 11} This court, relying on Freeman, has found reversible error where a trial court
granted a party's motion to dismiss under Civ.R. 12(B) on the grounds of res judicata. See
Becker v. Becker, 12th Dist. Clermont No. CA95-01-002, 1995 WL 308505 (May 22, 1995).
We have also found reversible error where the trial court, in considering evidence outside the
complaint, effectively converted a Civ.R. 12(B) motion to dismiss to a Civ.R. 56 motion for
summary judgment without giving proper notice to the parties of the conversion. See Easy
Tone Body Systems, Inc. v. Kornylak Corp., 12th Dist. Butler No. CA91-06-108, 1992 WL
75190 (Apr. 13, 1992). We stated, "a trial court must notify the parties when it converts a
motion to dismiss a complaint for failing to state an actionable claim into a motion for
summary judgment." Id. at *2, citing Federated Dept. Stores, Inc. v. Lindley, 30 Ohio St.3d
135 (1987), syllabus.
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[Cite as Rarden v. Ewen, 2016-Ohio-548.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
LONNIE RARDEN, :
Plaintiff-Appellant, : CASE NO. CA2015-05-098
: OPINION - vs - 2/16/2016 :
AMANDA K. EWEN, :
Defendant-Appellee. :
CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2014 12 3263
Lonnie Rarden, #A547085, Madison Correctional Institution, P.O. Box 740, London, Ohio 43140, plaintiff-appellant, pro se
Amanda K. Ewen, 350 Warr Lane, Hamilton, Ohio 45013, defendant-appellee, pro se
HENDRICKSON, J.
{¶ 1} Plaintiff-appellant, Lonnie Rarden, appeals from a decision of the Butler County
Court of Common Pleas dismissing his complaint for defamation on the basis of res judicata.
For the reasons set forth below, we reverse and remand.
{¶ 2} In 2013, in Butler County Court of Common Pleas Case No. CV 2013 08 2405,
Rarden filed a defamation complaint against defendant-appellee, Amanda K. Ewen. Ewen
filed a motion to dismiss the complaint for failure to state a claim under Civ.R. 12(B)(6), and Butler CA2015-05-098
the motion to dismiss was granted in November 2013. Rarden appealed the trial court's
decision to this court, and we dismissed his appeal due to his failure to pay the required filing
fees. Rarden v. Ewen, 12th Dist. Butler No. CA2013-12-230 (Mar. 18, 2014) (Entry of
Dismissal). Nearly a year after Ewen's motion to dismiss had been granted and Rarden's
appeal of that decision dismissed, Rarden filed a motion to "voluntarily dismiss" Case No. CV
2013 08 2405 with the trial court.
{¶ 3} On December 29, 2014, Rarden filed a complaint in Butler County Court of
Common Pleas Case No. CV 2014 12 3263. This complaint was identical to the complaint
filed in Case No. CV 2013 08 2405. Ewen, pro se, responded to the complaint by filing a
letter with the court on January 20, 2015, asking the court to dismiss the 2014 case because
the case had already been decided by virtue of the court's dismissal in the 2013 case.
Attached to Ewen's letter were court documents pertaining to the 2013 case. Ewen
subsequently filed a Civ.R. 12(B)(6) motion to dismiss in the action. Rarden filed a
memorandum in opposition to Ewen's motion to dismiss, arguing he set forth sufficient facts
to proceed on his defamation claim. He also argued that refiling of his complaint was proper
since he "voluntarily dismissed" his cause of action in the 2013 case.
{¶ 4} After considering the parties' briefs on the issue, the trial court granted Ewen's
motion to dismiss on the basis that Rarden's claims were barred by the doctrine of res
judicata. The court found that a decision on the merits of Rarden's complaint had already
been issued in Case No. CV 2013 08 2405, and that such decision served as a bar to any
subsequent action on the same claim between the parties.1
{¶ 5} Rarden timely appealed the trial court's decision, raising the following
1. In concluding that res judicata barred appellant's present lawsuit, it was necessary for the trial court to consider evidence outside the four corners of the complaint. In doing so, the trial court, in essence, converted Ewen's motion to dismiss into a motion for summary judgment. -2- Butler CA2015-05-098
assignment of error:
{¶ 6} THE TRIAL COURT ERRORED [SIC] GRANTING APPELLEE/DEFENDANT'S
MOTION TO DISMISS PURSUANT TO CIVIL RULE 12(B)(6) ON THE GROUNDS OF RES
JUDICATA.
{¶ 7} In his sole assignment of error, Rarden argues the trial court erred in granting
Ewen's motion to dismiss because res judicata cannot be raised by a motion to dismiss
under Civ.R. 12(B). He further contends the court erred when it granted Ewen's motion
because the court relied on evidence outside of the complaint.
{¶ 8} "A motion to dismiss for failure to state a claim upon which relief can be granted
* * * tests the sufficiency of the complaint." State ex rel. Hanson v. Guernsey Cty. Bd. of
Commrs., 65 Ohio St.3d 545, 548 (1992). A motion made pursuant to Civ.R. 12(B)(6) only
determines whether the pleader's allegations set forth an actionable claim. Pyle v. Ledex,
Inc., 49 Ohio App.3d 139, 143 (12th Dist.1988). "A court may not use the motion to
summarily review the merits of the cause of action." Home Builders Assn. of Dayton & Miami
Valley v. Lebanon, 12th Dist. Warren No. CA2003-12-115, 2004-Ohio-4526, ¶ 8.
{¶ 9} "In order for a complaint to be dismissed under Civ.R. 12(B)(6) * * * it must
appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling
him to relief." Cincinnati v. Berretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, ¶ 5.
"In construing a complaint upon a motion to dismiss for failure to state a claim, we must
presume that all factual allegations of the complaint are true and make all reasonable
inferences in favor of the non-moving party." Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190,
192 (1988). The court may look only to the complaint to determine whether the allegations
are legally sufficient to state a claim. Home Builders Assn. at ¶ 8. "[A]s long as there is a set
of facts, consistent with the plaintiff's complaint, which would allow the plaintiff to recover, the
court may not grant a defendant's motion to dismiss." York v. Ohio State Hwy. Patrol, 60 -3- Butler CA2015-05-098
Ohio St.3d 143, 145 (1991). A reviewing court conducts a de novo review of a trial court's
decision on a motion to dismiss. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-
Ohio-4362, ¶ 5.
{¶ 10} In State ex rel. Freeman v. Morris, 62 Ohio St.3d 107, 109 (1991), the Ohio
Supreme Court held that the defense of res judicata may not be raised by a motion to
dismiss under Civ.R. 12(B). The court stated:
Civ.R. 8(C) designates res judicata an affirmative defense. Civ.R. 12(B) enumerates defenses that may be raised by motion and does not mention res judicata. Accordingly, we hold that the defense of res judicata may not be raised by motion to dismiss under Civ.R. 12(B).
Id. The court went on to recognize that the defense of res judicata could be raised by motion
for summary judgment. Id. However, the court in Freeman concluded summary judgment
was not appropriate as the motion to dismiss had not been converted by the trial court into a
motion for summary judgment and the documents attached to the motion were not proper
Civ.R. 56(C) evidence. Id.
{¶ 11} This court, relying on Freeman, has found reversible error where a trial court
granted a party's motion to dismiss under Civ.R. 12(B) on the grounds of res judicata. See
Becker v. Becker, 12th Dist. Clermont No. CA95-01-002, 1995 WL 308505 (May 22, 1995).
We have also found reversible error where the trial court, in considering evidence outside the
complaint, effectively converted a Civ.R. 12(B) motion to dismiss to a Civ.R. 56 motion for
summary judgment without giving proper notice to the parties of the conversion. See Easy
Tone Body Systems, Inc. v. Kornylak Corp., 12th Dist. Butler No. CA91-06-108, 1992 WL
75190 (Apr. 13, 1992). We stated, "a trial court must notify the parties when it converts a
motion to dismiss a complaint for failing to state an actionable claim into a motion for
summary judgment." Id. at *2, citing Federated Dept. Stores, Inc. v. Lindley, 30 Ohio St.3d
135 (1987), syllabus. Failure to do so, results in reversible error. Id., citing State ex rel. -4- Butler CA2015-05-098
Baran v. Fuerst, 55 Ohio St.3d 94, 97 (1990).
{¶ 12} Having reviewed the record in this case, we conclude that the trial court erred
when it granted Ewen's motion to dismiss on the basis of res judicata. We further find that
even if we construe the trial court's actions as converting the motion to dismiss into a motion
for summary judgment, judgment in Ewen's favor is improper as the trial court failed to give
notice of such conversion to the parties.2 Rarden's sole assignment of error is, therefore,
sustained.
{¶ 13} Judgment reversed and the matter remanded for further proceedings consistent
with this Opinion.
M. POWELL, P.J., and S. POWELL, J., concur.
2. Compare the present case to Herbert v. Farmer, 12th Dist. Warren No. CA2013-02-016, 2014-Ohio-877, ¶ 11, where we stated, "[a]lthough the failure to convert a motion to dismiss to a motion for summary judgment and notify the parties may constitute reversible error, neither appellant nor [appellees] have raised the trial court's failure to comply with the requirements of the rule as error on appeal." Unlike in Herbert, Rarden did raise the issue of the trial court's failure to notify the parties of its intent to convert the motion to dismiss to a motion for summary judgment on appeal. -5-