Rolph v. Rolph

Opinion

[Cite as Rolph v. Rolph, 2026-Ohio-3005.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BROWN COUNTY

MARTIN ROLPH, et al., : CASE NO. CA2025-08-013 Appellees, : OPINION AND vs. : JUDGMENT ENTRY 8/4/2026 DANIEL ROLPH, et al., :

Appellants. :

:

CIVIL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS Case No. 2023-0418

Cors & Bassett, LLC, and Kevin R. Feazell; and Patrick J. Gregory and David E. Grimes, for appellees.

Yonas & Phillabaum, LLC, and Jason Phillabaum, James Boyd, and Hope Platzbecker, for appellants.

____________ OPINION

BYRNE, P.J.

{¶ 1} Plaintiffs-Appellants, Martin Rolph, James Rolph, Julie Robke, and Luke

Rolph (collectively, "Plaintiffs"), appeal from the decision of the Brown County Court of

Common Pleas, General Division, which granted summary judgment on all claims in Brown CA2025-08-013

favor of Defendants-Appellees, Daniel and Christina Rolph (collectively, "Defendants").

For the reasons described below, we affirm.

I. Factual and Procedural Background

A. Background Facts

{¶ 2} This matter involves the Estate of Judy Martin Gray and an inter vivos

transfer of her real property. The following facts, unless noted, are not in dispute.

{¶ 3} Gray passed away on April 22, 2022. Four of Gray's five children survived

her: Plaintiffs Martin, James, and Julie, and Defendant Daniel. Gray's son, Christopher,

predeceased her. Christopher had two children, Plaintiff Luke and non-party Grant.

{¶ 4} Gray executed her last will and testament in August 2021. In the will, Gray

divided her beneficial estate into five equal shares. Her four surviving children would each

receive a one-fifth share. The remaining one-fifth share would be split between

Christopher's sons, Plaintiff Luke and non-party Grant.

{¶ 5} At the heart of this dispute is the family farm ("the Farm"), which was an

approximate 300-acre farm located at 7618 State Route 505, Felicity, Brown County,

Ohio. Gray and her late husband raised their children on the Farm.

{¶ 6} Beginning in or around 2005, Defendant Daniel moved back to the Farm

and began working there as a self-employed farmer. He lived in a home on the property

next door to Gray. The record is not clear, but it appears that Defendants Daniel and

Christina lived together as husband and wife while living at the Farm.

{¶ 7} In 2014, eight years prior to her death, Gray entered into a land contract

("Land Contract") with Defendants Daniel and Christina, allowing them to purchase the

Farm. The Land Contract specified a purchase price of $600,000, payable by 10 annual

payments of approximately $27,000 per year, with interest accruing at 2% per annum.

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Defendants further agreed to pay the outstanding balance in the 11th year, and agreed to

obtain financing or other sources of funds to make this final payment.

{¶ 8} At the time Gray entered into the Land Contract, she allegedly wrote a letter

to her other children informing them that she had decided to sell the Farm to the

Defendants, which would allow them to continue farming and keep the Farm in the family

for at least another generation.1 She also stated that the money from this sale would "go

into my trust" and what was left would be divided "between the five of you." There is no

evidence that Gray created a trust for the benefit of her children or deposited money

received from the Land Contract into a trust.

{¶ 9} Beginning in 2015, Defendants began making the annual payments on the

Land Contract and paid $27,000 each year until 2020, making a total of six payments

totaling $162,000 in principal and interest.

{¶ 10} In August 2020, Gray transferred the Farm by general warranty deed to the

Defendants. The deed reflected that it released the Land Contract, and referenced the

Land Contract by recorded book and page number. On the same day, Gray transferred

her own house by general warranty deed to Plaintiff Julie. At her deposition, Plaintiff Julie

testified that she drove Gray to the law office of Gray's attorney, Michael Pfeffer, where

the deeds for these two transfers were prepared and executed.

{¶ 11} Gray's last will and testament nominated Michael Pfeffer as Executor of her

estate. The will further identified Defendants as alternate co-executors. After Gray's

passing, Pfeffer was unable to serve as executor. Defendants thereafter opened Gray's

Estate in the Brown County Court of Common Pleas, Probate Division.

1. The letter is in evidence, but some Plaintiffs dispute whether Gray wrote the letter. -3- Brown CA2025-08-013

B. The Probate Division Matter

{¶ 12} After the Estate was opened and the inventory filed, Plaintiff Martin filed a

motion with the probate court to disqualify the Defendants as co-executors, pursuant to

R.C. 2113.18. That statute allows a probate court to remove an executor if there are

"unsettled claims" between the executor and the estate that the court believes may be

the subject of controversy or litigation. Plaintiff Martin alleged that there was

approximately $600,000 missing from the estate inventory because Defendants had failed

to pay the Land Contract in full. Martin asked the probate court to appoint him estate

administrator.

{¶ 13} A magistrate with the probate court held an evidentiary hearing on the

motion to disqualify and testimony and evidence was offered. At the conclusion of the

hearing, the magistrate orally announced that the transfer of the Farm to the Defendants

by deed was a valid transfer. In a subsequent written decision, the magistrate found that

the terms of the Land Contract merged with the deed executed in August 2020. The

magistrate noted that no exceptions were filed to the inventory, which did not list the Farm

as an estate asset. The magistrate overruled the motion to remove the co-executors.

{¶ 14} Plaintiff Martin objected to the magistrate's decision. Martin objected on the

basis that (1) removal of the co-executors was required due to the high likelihood of

litigation between heirs and co-executors, (2) the magistrate erred by refusing to permit

evidence regarding the transfer of the Farm, and (3) the magistrate erred by not taking

into account that the vested beneficiaries of Gray's will (other than Defendant Daniel)

supported removing Defendants.

{¶ 15} The probate court judge overruled the objections. Like the magistrate, the

judge found that the payment terms of the Land Contract merged with the August 2020

transfer by deed. The judge also found no basis to remove the co-executors based on a

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"high" probability of litigation. The judge noted that the Land Contract was not listed on

the estate inventory and no party had filed exceptions to the inventory. The court found

that "unknown litigation" did not require removing the Defendants as co-executors.

{¶ 16} Lastly, the judge found that the magistrate did not err in refusing to permit

evidence related to Gray's mental condition at the time of the execution of the August

2020 deeds. The judge found that no medical testimony had been submitted and Plaintiff

Julie, who was present for the execution of the deed, "allowed it to happen" and benefitted

from the transfer of Gray's home that day. The court questioned why Plaintiff Julie would

now question the legitimacy of a transfer in which she was an active participant.

{¶ 17} Plaintiff Martin did not appeal the probate court's decision.

C. The General Division Matter

1. Plaintiffs' Complaint, Defendants' Answer, and Discovery

{¶ 18} Approximately six months later, in July 2023, Plaintiffs filed a complaint in

the Brown County Court of Common Pleas, General Division, against Defendants Daniel

and Christina, both in their individual capacities and as co-executors of Gray's Estate. In

the complaint, Plaintiffs asserted five counts: (1) intentional interference with the

expectancy of an inheritance ("IIEI"), (2) fraud, (3) undue influence, (4) unjust enrichment,

and (5) quiet title. Only three of those claims have been raised as issues in this appeal:

IIEI, fraud, and undue influence.

{¶ 19} With respect to the IIEI claim, Plaintiffs asserted that Defendants committed

fraud, duress, and/or undue influence to intentionally interfere with their expectation of an

inheritance.

{¶ 20} With respect to the fraud claim, Plaintiffs asserted that the Defendants made

"false statements" to Gray in order to induce her to convey the Farm to them before the

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Land Contract had been fulfilled. The complaint did not state what false statements were

made by the Defendants.

{¶ 21} Regarding the undue influence claim, Plaintiffs asserted that Defendants

believed or knew that Gray was suffering from diminished capacity and susceptible to

their influence and exerted improper influence over her.

{¶ 22} In answering the complaint, Defendants stated the following as their

affirmative defenses: (1) "Plaintiffs fail to state a claim upon which relief can be granted";

(2) "Defendants set forth all affirmative defenses listed in Ohio Civil Rule 8(c) until

discovery can be completed in this matter"; and (3) "Plaintiffs failed to include all

necessary parties."

{¶ 23} The parties thereafter engaged in discovery, including taking depositions of

Defendant Daniel and each of the Plaintiffs. Afterward, Defendants moved for summary

judgment on all claims.

2. Defendants' Motion for Summary Judgment

{¶ 24} In support of summary judgment, Defendants first argued that the complaint

was barred by issue preclusion. Defendants argued that the probate court's decision on

Plaintiff Martin's motion to disqualify found that the conveyance of the Farm to the

Defendants was legally valid. Defendants argued that this determination had a preclusive

effect in any subsequent proceedings and all parties to the Estate were bound by that

decision. Defendants argued that the complaint was an attempt to relitigate that issue and

should be barred.

{¶ 25} Turning to the merits, Defendants argued that Plaintiffs could not meet their

burden of proof on any claims due to a lack of evidence. With regard to fraud, Defendants

argued that the complaint was defectively vague as to what alleged acts or statements by

the Defendants were fraudulent and that each of the Plaintiffs at deposition failed to

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identify any false statements made to Gray to induce her to convey the Farm to

Defendants.

{¶ 26} With regard to the IIEI and undue influence claims, Defendants again

pointed to the depositions of the Plaintiffs, in which some testified that they had no real

expectation of an inheritance from Gray, or that they only expected Gray's estate to be

divided equally, as was the case in her will. Defendants argued that none of the Plaintiffs

could identify any specific conduct by either Defendant towards Gray that could be

characterized as fraudulent, causing duress, or undue influence.

{¶ 27} With regard to allegations of diminished capacity, and with respect to the

undue influence claim, Defendants argued that Gray was "never actually diagnosed with

dementia" and pointed to a neuropsychological test requested by Gray, which only

showed "mild cognitive impairment." Defendants pointed to their own expert testimony,

which found that given Gray's improving mental state between two neuropsychological

exams, she could not have been suffering from dementia, which is a progressive disease.

3. Plaintiffs' Opposition to Summary Judgment

{¶ 28} In opposing summary judgment, Plaintiffs argued that Defendants' issue

preclusion argument was an attempt to assert the affirmative defense of res judicata, and

was waived because it was not raised in the Defendants' answer. Furthermore, Plaintiffs

argued that even if Defendants had not waived the assertion of res judicata, issue

preclusion was only applicable to facts or points actually determined in a prior proceeding

and was limited by the probate court's jurisdiction.

{¶ 29} Plaintiffs argued that the probate court had no jurisdiction over complaints

for money damages arising from fraud, and while a declaratory judgment action about the

validity of inter vivos transfers can be brought in probate court, no such action was filed

in the probate court. Plaintiffs argued that the only issues raised with the probate court

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were (1) whether the co-executors should be removed due to potential litigation, and (2)

what assets were currently in Gray's estate. On the other hand, Plaintiffs argued that the

issues before the general division of the common pleas court were "whether the Family

Farm and its value were obtained from Gray by fraud, undue influence, or intentional

interference with expectancy of inheritance. . . "

{¶ 30} Addressing the merits, Plaintiffs argued that they submitted summary

judgment evidence demonstrating genuine issues of fact for trial on fraud, intentional

interference, and undue influence.

4. General Division's Decision Granting Summary Judgment

{¶ 31} The court granted summary judgment in favor of Defendants on all claims.

First, the court agreed that res judicata applied on "all issues regarding the execution of

the Deed to the Defendants" as that issue was previously litigated in and determined by

the probate court. The court further found that the affirmative defense of res judicata could

be raised for the first time in a motion for summary judgment.

{¶ 32} As to the claims of fraud, undue influence, and IIEI, the court found that the

Plaintiffs had failed to plead facts constituting fraud in the complaint. The court noted that

not one Plaintiff could articulate any facts supporting these claims at their depositions.

The court further observed that the claims required clear and convincing evidence, and

the Plaintiffs could not establish a prima facie case for any claims.

{¶ 33} As to the Plaintiffs' claim that Gray suffered from dementia at the time of the

deed transfer of the Farm, the court found that the Plaintiffs ignored the findings of Gray's

physician, who opined that the results of her neurological testing "would be impossible in

someone with dementia."

{¶ 34} The court found no genuine issues of any material fact and granted

judgment to Defendants on all claims.

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{¶ 35} Plaintiffs have appealed, raising two assignments of error.

II. Law and Analysis

A. Res Judicata and Waiver

{¶ 36} Plaintiffs first assignment of error states:

THE TRIAL COURT ERRED IN DETERMINING THAT PLAINTIFFS' CLAIMS WERE BARRED BY RES JUDICATA.

{¶ 37} Plaintiffs argue that by failing to raise the affirmative defense of res judicata

in their answer, Defendants waived the defense of res judicata and therefore the trial court

erred in granting summary judgment on all claims regarding the execution of the deed of

the Farm to the Defendants on the basis of issue preclusion. We first turn to the applicable

standard of review.

1. Summary Judgment Standard of Review

{¶ 38} "Summary judgment is a procedural device used to terminate litigation when

there are no issues in a case requiring a formal trial." Franchas Holdings, L.L.C. v.

Dameron, 2016-Ohio-878, ¶ 16 (12th Dist.).

{¶ 39} "Civ.R. 56 sets forth the summary judgment standard." State ex rel. Becker

v. Faris, 2021-Ohio-1127, ¶ 14 (12th Dist.). "Pursuant to that rule, a court may grant

summary judgment only when (1) there is no genuine issue of any material fact, (2) the

moving party is entitled to judgment as a matter of law, and (3) the evidence submitted

can only lead reasonable minds to a conclusion that is adverse to the nonmoving party."

Spitzer v. Frisch's Restaurants, Inc., 2021-Ohio-1913, ¶ 6 (12th Dist.). "'An issue is

genuine only if the evidence is such that a reasonable jury could find for the non-moving

party.'" Baker v. Bunker Hill Haven Home, 2024-Ohio-875, ¶ 10 (12th Dist.), quoting

Abbuhl v. Orange Village, 2003-Ohio-4662, ¶ 14 (8th Dist.). "A material fact is one which

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would affect the outcome of the suit under the applicable substantive law." Hillstreet Fund

III, L.P. v. Bloom, 2010-Ohio-2961, ¶ 9 (12th Dist.).

{¶ 40} "The moving party bears the initial burden of informing the court of the basis

for the motion and demonstrating the absence of a genuine issue of material fact."

Berkheimer v. REKM, L.L.C., 2023-Ohio-116, ¶ 18 (12th Dist.). To satisfy this initial

burden, the moving party must be able to point to evidentiary materials of the type listed

in Civ.R. 56(C) that a court is to consider in rendering summary judgment. Adkins v.

Middletown, 2025-Ohio-317, ¶ 60 (12th Dist.). "Once this burden is met, the nonmoving

party has a reciprocal burden to set forth specific facts showing there is some genuine

issue of material fact yet remaining for the trier of fact to resolve." Sullivan v. Mercy Health,

2022-Ohio-4445, ¶ 21 (12th Dist.). The nonmoving party does this by presenting "'specific

facts,'" demonstrating the existence of a genuine triable issue; the nonmoving party "'may

not rest on the mere allegations or denials in its pleadings.'" Oliphant v. AWP, Inc., 2020-

Ohio-229, ¶ 31 (12th Dist.), quoting Deutsche Bank Natl. Trust Co. v. Sexton, 2010-Ohio-

4802, ¶ 7 (12th Dist.), citing Civ.R. 56(E). "Summary judgment is proper if the nonmoving

party fails to set forth such facts." Taylor v. Atrium, 2019-Ohio-447, ¶ 10 (12th Dist.), citing

Puhl v. U.S. Bank, N.A., 2015-Ohio-2083, ¶ 13 (12th Dist.). "In determining whether a

genuine issue of material fact exists, the evidence must be construed in favor of the

nonmoving party." Assured Admin., L.L.C. v. Young, 2019-Ohio-3953, ¶ 14 (12th Dist.),

citing Vanderbilt v. Pier 27, L.L.C., 2013-Ohio-5205, ¶ 8 (12th Dist.).

{¶ 41} "This court reviews a trial court's summary judgment decision under a de

novo standard." Faith Lawley, L.L.C. v. McKay, 2021-Ohio-2156, ¶ 26 (12th Dist.). De

novo means that this court uses the same standard that the trial court should have used.

Brock v. Servpro, 2022-Ohio-158, ¶ 29 (12th Dist.). Therefore, when conducting a de novo

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review, this court independently reviews the trial court's decision without giving it any

deference. Baker, 2024-Ohio-875, at ¶ 9 (12th Dist.).

2. Applicable Rules and Law on Waiver of the Affirmative Defense of Res Judicata

{¶ 42} Civ.R. 8(B) states that a defendant "shall," in response to a pleading, "state

in short and plain terms the party's defenses to each claim asserted and shall admit or

deny the averments upon which the adverse party relies." Civ.R. 8(C) addresses pleading

affirmative defenses. In relevant part, the rule provides that "In pleading to a preceding

pleading, a party shall set forth affirmatively . . . res judicata . . ." (Emphasis added.)

Defendants' answer did not assert res judicata as an affirmative defense but generally

referred to all defenses listed in Civ.R. 8(C). Defendants did not move to supplement their

answer with any affirmative reference to res judicata before moving for summary

judgment.

{¶ 43} In State ex rel. Freeman v. Morris, 62 Ohio St.3d 107 (1991), the Ohio

Supreme Court considered an appeal from a decision granting a Civ.R. 12(B)(6) motion

to dismiss an action in mandamus on the basis of res judicata. The supreme court first

noted that the lower court had considered materials outside the pleadings, and thus

treated the motion to dismiss as a motion for summary judgment. Id. at 109. However, the

supreme court found that those materials were not proper summary judgment evidence,

so the lower court should not have treated the motion to dismiss as a summary judgment

motion. Id. The supreme court then held that the defense of res judicata could not be

raised in a Civ.R. 12(B) motion to dismiss because Civ.R. 12(B) enumerates the defenses

that may be raised in such a motion but res judicata is not among Civ.R. 12(B)'s listed

defenses. Id. The supreme court noted that in Johnson v. Lindner, 14 Ohio App.3d 412

(3rd Dist.1984), the Third District Court of Appeals stated that the affirmative defense of

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res judicata could be raised by motion for summary judgment. Id. at 109. The Freeman

court simply stated, "We concur." Id.

{¶ 44} Notably, the Ohio Supreme Court in Freeman did not specifically address

the precise issue in this case, which is whether res judicata is waived if not initially

asserted in a responsive pleading. Instead, Freeman only held that Civ.R. 12(B) is not the

proper vehicle to assert the defense of res judicata.

{¶ 45} Later, in Jim's Steak House, Inc. v. Cleveland, 81 Ohio St.3d 18, 1998-Ohio-

440, the Ohio Supreme Court held that "Affirmative defenses other [than] those listed in

Civ.R. 12(B) are waived if not raised in the pleadings or in an amendment to the

pleadings." (Emphasis added.) Id. at 20, citing Civ.R. 8. This statement in Jim's indicates

that res judicata is waived if not raised in the pleadings or in an amendment to the

pleadings because it is included as an affirmative defense listed in Civ.R. 8(C) but not

included as a defense which may be asserted by motion pursuant to Civ.R. 12(B).

{¶ 46} In Jim's, the Ohio Supreme Court cited Freeman, but only for the assertion

that res judicata was not an affirmative defense that could be asserted in a Civ.R. 12(B)

motion. Id. at 21. Because Jim's involved a Civ.R. 12(B)(6) motion to dismiss, the Ohio

Supreme Court's decision did not discuss whether res judicata could be raised for the first

time in a motion for summary judgment, as potentially implied in Freeman.

{¶ 47} In State ex rel. Anderson v. Wilson, 2025-Ohio-493, in the context of a filing

of a motion to dismiss on grounds of res judicata, the Ohio Supreme Court reaffirmed that

the affirmative defense of res judicata is waived if it is not raised in a responsive pleading.

Id. at ¶ 10, citing State ex rel. Deiter v. McGuire, 2008-Ohio-4536, ¶ 28, in turn citing Jim's

at ¶ 13-14. In Anderson, the court found that respondents had waived res judicata by

failing to plead it in their answer.

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{¶ 48} Plaintiffs cite Jim's and Anderson for the proposition that the Defendants'

failure to raise res judicata in their answer waived their ability to raise that affirmative

defense for the first time in their motion for summary judgment.

{¶ 49} Defendants counter by arguing that neither Jim's nor Anderson construed

waiver of the affirmative defense of res judicata when raised for the first time in a motion

for summary judgment. They also argue that neither case overruled Freeman, and

Freeman impliedly approved the statement in Johnson that res judicata could be raised

in a motion for summary judgment.

{¶ 50} Upon review, we do not find the Defendants' arguments persuasive. Jim's

and Anderson and the plain text of Civ.R. 8(C) support the proposition that the affirmative

defense of res judicata is waived if not raised in a responsive pleading. See Civ.R. 8(C)

("a party shall set forth affirmatively . . . res judicata.") While Jim's and Anderson involved

attempts to assert the defense of res judicata in the context of a Civ.R. 12(B)(6) motion,

the same situation occurred in Freeman. That is, the court in Freeman did not hold that

the affirmative defense of res judicata could be asserted for the first time in a motion for

summary judgment. Instead, the supreme court found that the lower court had improperly

construed the Civ.R. 12(B)(6) motion as a motion for summary judgment and improperly

relied on inadmissible summary judgment evidence. The supreme court then held that

res judicata may not be raised in a Civ.R. 12(B) motion to dismiss. Thus, to the extent that

the Ohio Supreme Court indicated its agreement with the Third's District comment about

asserting res judicata in a summary judgment motion, such discussion was irrelevant to

the holding in Freeman and we consider it dicta.

{¶ 51} Regardless, in Johnson, the Third District did not hold that res judicata may

be asserted for the first time in a motion for summary judgment. For the proposition that

res judicata could be raised in a motion for summary judgment, the court cited a law

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treatise that observed that prior to the Ohio Rules of Civil Procedure, courts "permitted

the disposition of actions involving . . . res judicata by summary judgment." Johnson, 14

Ohio App.3d at 414. The Third District did not address whether such a practice survived

the adoption of the Rules of Civil Procedure but stated it would assume that "this [meaning

the pre-Civil Rules statement of law] still applies" and went on to address whether the

affirmative defense had been specifically raised by the motion for summary judgment in

that case. Id. The Third District went on to find that the summary judgment motion filed in

had not specifically raised res judicata, but even if it had, there was no evidentiary basis

upon which to issue a finding as to the applicability of res judicata. Id. at 414-415.

Therefore, the court in Johnson was not required to resolve—and did not resolve—the

question of whether res judicata could be raised for the first time in a post-Civil Rules

motion for summary judgment.

{¶ 52} On the precise issue of whether res judicata is waived if not asserted in a

responsive pleading and raised for the first time in a summary judgment motion, we find

instructive and persuasive the analysis of the Ninth District Court of appeals in Nationstar

Mtge., L.L.C v. Young, 2016-Ohio-8287 (9th Dist.). In that case, the Youngs filed two

answers, neither of which expressly raised res judicata as an affirmative defense. Id. at ¶

16. The Youngs later asserted the defense of res judicata in their motion for summary

judgment. Id. The Ninth District analyzed Freeman and found that its citation to Johnson

did not mean that res judicata could be raised for the first time in a summary judgment

motion. Instead, the court concluded that res judicata can be raised in a summary

judgment motion only if it is (1) first raised in a responsive pleading, or (2) by amending

a previously filed responsive pleading to include it as an affirmative defense. Id. at ¶ 18.

The court stated, "We are not convinced . . . that the [Ohio Supreme Court] intended its

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citation to Johnson v. Linder to resolve the issue of whether affirmative defenses are

preserved if raised for the first time in a motion for summary judgment." Id.

{¶ 53} The Ninth District further found no support for the contention that Jim's

favorable citation of Freeman signaled support for the contention that an affirmative

defense not raised in a pleading can nevertheless be raised for the first time in summary

judgment. Id. at ¶ 19. The court noted that Jim's was devoid of any discussion regarding

summary judgment motions as proper vehicles for the assertion of res judicata or other

affirmative defense. The court also noted that Jim's contained no citation to Johnson. Id.

{¶ 54} Finally, the Ninth District noted that when the Third District assumed (without

deciding) that res judicata could be raised for the first time in a motion for summary

judgment, there was "limited support" for this assumption. Id. at ¶ 20. The Ninth District

noted that while the Third District in Johnson cited the Anderson's treatise as support for

its assumption, a more recent version of the Anderson's treatise indicated that "The better

practice is for the affirmative defense of res judicata to be raised by answer and then by

summary judgment motion, rather than by a motion to dismiss for failure to state a claim

upon which relief can be granted." Id. citing McCormac and Solimine, Anderson's Ohio

Civil Rules Practice, Answers and Replies, Section 7.34, at 7-19 (2010).

{¶ 55} In sum, we find the analysis of the Ninth District in Nationstar persuasive

and adopt the same position in this district.

{¶ 56} Defendants cite E.B.P., Inc. v. 623 W. St. Clair Ave., L.L.C., 2010-Ohio-4005

(8th Dist.) and Internatl. EPDM Rubber Roofing Sys., Inc. v. GRE Ins. Group, 2001 WL

477251 (6th Dist. May 4, 2001), in support of the contention that res judicata is not waived

if raised for the first time in a motion for summary judgment.

{¶ 57} E.B.P. involved the same situation presented here. That is, a party asserted

res judicata for the first time in a motion for summary judgment and had not raised the

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defense in its responsive pleading. Id. at ¶ 14, 18, 20, 29. In finding that res judicata could

be asserted for the first time in a motion for summary judgment, the Eighth District

analyzed Jim's and Freeman. Id. at ¶ 22-33. The court found Jim's factually

distinguishable because the case did not involve a motion for summary judgment, and

therefore did not stand for the proposition that res judicata may not be raised for the first

time in a motion for summary judgment. Id. at ¶ 33. In finding that res judicata could be

raised for the first time in a motion for summary judgment, the Eighth District primarily

relied on Freeman's tacit approval of the Third District's statement in Johnson that res

judicata can be raised in summary judgment proceedings. Id. at ¶ 26-29.

{¶ 58} In Internatl. EPDM, the Sixth District Court of Appeals applied the same

reasoning later adopted in E.B.P. and held that the statement in Jim's that affirmative

defenses are waived if not asserted in a responsive pleading had no effect on the Ohio

Supreme Court's decision in Freeman, which it found supported the position that res

judicata may be asserted for the first time in a motion for summary judgment. Id. at *4-5.

{¶ 59} The problem with both E.B.P. and Internatl. EPDM is that both are premised

on the fallacy that Freeman stands for the proposition that res judicata may be asserted

for the first time in a motion for summary judgment. But as set forth in our analysis above,

Freeman neither concerned the assertion of res judicata in a motion for summary

judgment nor addressed the waiver effect of failing to assert res judicata in a responsive

pleading in the first instance.

{¶ 60} For the foregoing reasons, we conclude that the trial court erred by granting

summary judgment in favor of the Defendants on the basis of res judicata. Defendants

did not expressly assert res judicata as an affirmative defense, did not amend their answer

to expressly raise the defense, and instead raised it for the first time in their motion for

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summary judgment. The Defendants therefore waived the defense. We sustain Plaintiffs'

first assignment of error.

B. Genuine Issues of Fact and Plaintiffs' Claims

{¶ 61} Plaintiffs' second assignment of error states:

THE TRIAL COURT ERRED IN DETERMINING THAT THERE WERE NO GENUINE ISSUES OF MATERIAL FACT.

{¶ 62} In its decision, the trial court found as follows concerning Plaintiffs' fraud,

undue influence, and IIEI claims:

Also pending are claims of fraud, undue influence, duress, and interference with expectancy of inheritance. No actual facts constituting fraud are plead in Plaintiffs' complaint. When questioned in their respective depositions, not one Plaintiff could articulate any facts at all concerning these claims. Each Plaintiff was asked to give an example of facts that in any way established their claims. Not one Plaintiff could do so.

{¶ 63} Plaintiffs argue that the court's analysis was in error, and that they in fact

submitted evidence demonstrating genuine issues of material fact in support of their

fraud, undue influence, and IIEI claims.

1. Applicable Law

a. Fraud

{¶ 64} The elements of fraud are (1) a representation or, where there is a duty to

disclose, concealment of a fact; (2) which is material to the transaction; (3) made falsely,

with knowledge of its falsity, or with such utter disregard and recklessness as to its truth

or falsity that knowledge may be inferred, (4) with the intent of misleading another to rely

on it; (5) justifiable reliance upon the representation or concealment; and (6) resulting

injury proximately caused by the reliance. Adena at Miami Bluffs Condominium Owners'

Assn., Inc. v. R. Hugh Woodward, 2021-Ohio-3872, ¶ 32 (12th Dist.)

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{¶ 65} Plaintiffs contend that they provided the trial court with "ample evidence"

that the Defendants (1) fraudulently misrepresented the value of the Farm and falsely

claimed that it was "not making money" in order to induce Gray to sell it to them for

$600,000; (2) falsely claimed that they were not able to obtain a loan to buy the Farm and

therefore induced Gray to "simply sign [over]" the Farm to them; (3) falsely claimed that

they would care for Gray when they had no intention to do so, thereby allowing them to

"take over" her financial affairs.

{¶ 66} Plaintiffs state that they provided the trial court with "ample" evidence, yet

their appellate brief, while summarizing this evidence as set forth above, provides no

citation to the record indicating where this "ample evidence" of purported false

representations is contained in the record. As the appellants, Plaintiffs bear the burden of

affirmatively demonstrating error on appeal and substantiating their arguments in support

thereof. Ostigny v. Brubaker, 2024-Ohio-384, ¶ 38 (12th Dist.). It is not an appellate court's

duty to "root out" or develop an argument that can support an assigned error, even if one

exists. Lebanon v. Ballinger, 2015-Ohio-3522, ¶ 27 (12th Dist.). Nor is it the duty of an

appellate court to search the record for evidence to support an appellant's argument as

to alleged error. Hellmuth v. Stephens, 2023-Ohio-4592, ¶ 23 (12th Dist.).

{¶ 67} Regardless, we initially note that the Plaintiffs' complaint contains only the

most threadbare accusations of fraud. Civ.R. 9(B) requires "[i]n all averments of fraud or

mistake, the circumstances constituting fraud or mistake shall be stated with particularity."

The count of fraud merely alleges that Defendants made "false statements" without

identifying any particular statements. We agree with the trial court's conclusion that the

complaint failed to plead fraud with particularity.

{¶ 68} Upon our review of the record, we can find no record support for any false

statements by Defendants in which Defendants misrepresented the value of the Farm to

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Gray, or any false statements by Defendants to Gray that the Farm was "not making

money." There is also no record support—nor do the Defendants cite any record

support—for the allegation that the Defendants made a false promise to care for Gray

when they had no intention of doing so. At most, any testimony that touched on these

subjects established that the Plaintiffs had no knowledge of any false statements but

instead, as their only explanation for Gray's actions, speculated that the Defendants must

have made some false statements to Gray. But "[m]ere speculation is insufficient to create

a genuine issue of material fact to avoid summary judgment." Fontain v. H&R Cincy

Properties, L.L.C., 2022-Ohio-1000, ¶ 67 (12th Dist.).

{¶ 69} With regard to the alleged false statement about an inability to obtain a loan,

Plaintiff Julie testified that Gray told her that the Defendants were not able to get a loan

to satisfy the Land Contract, and that Gray was scared and did not want Daniel to worry

when she passed. Likewise, Plaintiff James testified that Gray told him that Defendant

Daniel stated he was afraid that he would lose the Farm or that his siblings would take it

from him. Assuming that Defendant Daniel conveyed to Gray his fear about his ability to

obtain a loan or relayed a fear about losing the Farm, Plaintiffs do not articulate how this

constitutes a false statement. The Defendants may well have believed that they may have

trouble obtaining a loan. Plaintiffs produced no evidence that Defendants knew that they

could obtain a loan and instead falsely represented to Gray that they could not.

{¶ 70} As such, we find no error in the trial court's determination that Defendants

were entitled to summary judgment on Plaintiffs' fraud claims.

b. Undue Influence

{¶ 71} The elements of undue influence are: "(1) a susceptible testator, (2)

another's opportunity to exert influence on the testator, (3) the fact of improper influence

exerted or attempted, and (4) a result showing the effect of such influence." Estate of

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Everhart v. Everhart, 2014-Ohio-2476, ¶ 36 (12th Dist.) Because Plaintiffs were

attempting to use the claim of undue influence to set aside a deed, Plaintiffs' burden of

proof is clear and convincing evidence. Id. at ¶ 35; Lakes v. Ryan, 2003-Ohio-504, ¶ 18

(12th Dist.).

{¶ 72} Upon review, we find no facts demonstrating a genuine issue of fact as to

whether the Defendants exerted or attempted to exert improper influence over Gray in

conjunction with the transfer of the Farm to the Defendants. Although Plaintiffs again claim

to have "ample" evidence supporting the improper exertion of influence, they have not

cited the record in support of such evidence. No Plaintiff testified to being aware of any

specific circumstances or conversations wherein improper influence was exerted by the

Defendants in order to ensure that the Farm was deeded to them.

{¶ 73} As to the "susceptible testator" element, Plaintiffs argue that the trial court

erred in only considering Defendants' evidence (from Gray's physician) that she was not

and could not have been suffering from dementia at the time of these transactions. They

argue that the court disregarded Plaintiffs' expert, who opined that Gray was suffering

from dementia. This difference of opinion as to whether Gray suffered dementia did create

a factual dispute that in other circumstances would have been inappropriate for resolution

in summary judgment. However, this factual dispute was not a genuine issue of material

fact in the context of this case. See Civ.R. 56(C) (summary judgment merited when "there

is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law"). Plaintiffs' cause of action did not allege that Gray lacked

the capacity to convey the Farm to Defendants, but instead that the conveyance was the

product of undue influence asserted by one or more Defendants. Whether Gray was

suffering from dementia is relevant to whether she was susceptible to being unduly

influenced, but it does not relate to whether the Defendants actually exerted undue

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influence. As discussed above, the Plaintiffs submitted no summary judgment evidence

that Defendants engaged in acts or statements that would constitute their exertion of

undue influence over Gray.

{¶ 74} We find no error in the trial court's determination that Defendants were

entitled to summary judgment on Plaintiffs' fraud claims.

c. Intentional Interference with Expectancy of an Inheritance

{¶ 75} The elements of the claim of IIEI are:

"'(1) an existence of an expectancy of inheritance in the plaintiff; (2) an intentional interference by a defendant(s) with that expectancy of inheritance; (3) conduct by the defendant involving the interference which is tortious, such as fraud, duress or undue influence, in nature; (4) a reasonable certainty that the expectancy of inheritance would have been realized, but for the interference by the defendant; and (5) damage resulting from the interference.'"

Treadway v. Free Pentecostal Pater Ave Church of God, Inc., 2008-Ohio-1663, ¶ 22,

quoting Firestone v. Galbreath, 67 Ohio St.3d 87, 88 (1993).

{¶ 76} Initially, we note that all of the Plaintiffs testified either that they had no

expectancy of an inheritance from Gray or that they expected that Gray's estate would be

divided equally. In fact, Gray's will divided her estate equally, and so the Plaintiffs

expectation was consistent with what actually occurred. Regardless, we understand that

Plaintiffs are alleging tortious acts which caused the Farm to be transferred outside of

Gray's estate, thereby depriving them of their equal share of the Farm upon Gray's death.

{¶ 77} For the IIEI claim to survive summary judgment, Plaintiffs were required to

point to genuine issues of fact as to whether that Defendants engaged in acts of fraud,

duress, or undue influence in order to intentionally interfere with their inheritance. But as

set forth previously, Plaintiffs lacked any summary judgment evidence indicating that

Defendants engaged in acts of fraud or misrepresentation, subjected Gray to duress, or

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attempted to unduly influence Gray. At best, Plaintiffs could only speculate as to what

conversations occurred between Defendants and Gray that may have resulted in the

transfer of the Farm. But, again, "[m]ere speculation is insufficient to create a genuine

issue of material fact to avoid summary judgment." Fontain, 2022-Ohio-1000 at ¶ 67 (12th

Dist.). As such, the trial court did not err in granting summary judgment in favor of

Defendants on this final claim.

{¶ 78} We overrule Plaintiffs' second assignment of error.

III. Conclusion

{¶ 79} The trial court erred by concluding that Defendants did not waive the

affirmative defense of res judicata by failing to raise it in their pleadings and instead raising

it for the first time in their motion for summary judgment. Even though we have sustained

Plaintiffs' first assignment of error, the decision to grant summary judgment in favor of

Defendants does not constitute reversible error because Plaintiffs failed to demonstrate

genuine issues of fact for trial on their claims of fraud, undue influence, and IIEI.

{¶ 80} Judgment affirmed.

HENDRICKSON and M. POWELL, JJ., concur.

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JUDGMENT ENTRY

The assignments of error properly before this court having been ruled upon, it is the order of this court that the judgment or final order appealed from be, and the same hereby is, affirmed.

It is further ordered that a mandate be sent to the Brown County Court of Common Pleas for execution upon this judgment and that a certified copy of this Opinion and Judgment Entry shall constitute the mandate pursuant to App.R. 27.

Costs to be taxed 50% to appellant and 50% to appellee.

/s/ Matthew R. Byrne, Presiding Judge

/s/ Robert A. Hendrickson, Judge

/s/ Mike Powell, Judge

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