[Cite as Stratford Commons v. Raaber, 2011-Ohio-6084.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 96867
STRATFORD COMMONS PLAINTIFF-APPELLANT
vs.
JULIUS RAABER A.K.A. JULIU RAABER, ET AL. DEFENDANTS-APPELLEES
JUDGMENT: REVERSED AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-740660
BEFORE: Kilbane, A.J., Boyle, J., and Sweeney, J.
RELEASED AND JOURNALIZED: November 23, 2011 ATTORNEYS FOR APPELLANT
Patrick M. Higgins David G. Finley Matthew Thomas 45 W. Prospect Avenue Suite 1650-G Cleveland, Ohio 44115
ATTORNEY FOR APPELLEES
Irving S. Bergrin 27600 Chagrin Blvd. Suite 340 Cleveland, Ohio 44122
MARY EILEEN KILBANE, A.J.:
{¶ 1} This is an accelerated appeal brought pursuant to App.R. 11.1 and
Loc.App.R. 11.1.
{¶ 2} Plaintiff-appellant, Stratford Commons (Stratford), appeals the trial court’s
judgment dismissing its complaint against defendants-appellees. Finding merit to the
appeal, we reverse and remand.
{¶ 3} In November 2010, Stratford filed a complaint against Julius Raaber a.k.a.
Juliu Raaber (Julius), Julius Raaber Trustee a.k.a. Juliu Raaber Trustee, Margaret Raaber
Trustee a.k.a. Margareta Raaber trustee, George Raaber, George Raaber Trustee (George), and Andreea Raaber Trustee (collectively referred to as defendants), which
involves a judgment Stratford obtained against George Raaber in 2008.
{¶ 4} In June 2008, Stratford filed Case No. CV-661095 against George for the
breach of a promissory note executed by George on December 19, 2007, in favor of
Stratford, to guarantee payment for the nursing home care of his father, Julius Raaber.
Stratford obtained a default judgment against George in the amount of $46,756.81.
{¶ 5} Stratford’s 2010 complaint against the defendants is the subject of this
appeal and asserts three causes of action. The first cause of action alleges that Julius
owes Stratford $41,640.81 from a promissory note dated December 19, 2007. The
second cause of action alleges that Julius Raaber Trustee or Margaret Raaber Trustee
improperly transferred Julius’s assets into a trust in order to avoid Stratford’s claims.
The third cause of action alleges that George Raaber Trustee or Andreea Raaber Trustee
improperly transferred George’s assets into a trust in order to avoid Stratford’s claims.
{¶ 6} In response to Stratford’s complaint, defendants filed a motion to dismiss,
arguing that Stratford’s 2010 lawsuit is barred by res judicata. In support of their
motion, defendants attached copies of Stratford’s 2008 lawsuit, the nursing facility
agreement between Stratford and Julius, Julius’s account statement, and the promissory
note between Stratford and George. Defendants argued that Stratford’s 2008 and 2010
lawsuits involve the same promissory note and that Stratford is attempting to pursue
liability upon parties who were not joined in the 2008 lawsuit. Defendants argued that these parties should have been joined in the 2008 lawsuit. Stratford opposed the
defendants’ motion, and the trial court set a hearing in May 2011.
{¶ 7} Following the hearing on defendants’ motion, the court dismissed
Stratford’s lawsuit, finding that Stratford has “received a valid judgment on the note that
is the subject of this action. This matter is considered res judicata. [Stratford] believes
property held in trust is subject to collection however, a lawsuit naming trustees of trust
that holds subject property is not a proper vehicle for their attempt to collect.”
{¶ 8} Stratford now appeals, raising the following assignment of error for review.
ASSIGNMENT OF ERROR ONE
“The trial court committed reversible error by granting the motion to dismiss the complaint against George Raaber, George Raaber Trustee, Andreea Raaber Trustee and Margaret Raaber Trustee.”
{¶ 9} Stratford argues that the trial court erred when it dismissed its complaint
because res judicata and collateral estoppel do not bar its claims. We agree with
Stratford that the trial court improperly dismissed its complaint, albeit for different
reasons.
{¶ 10} Here, the defendants did not file an answer to Stratford’s complaint.
Instead, they filed a motion to dismiss based on the affirmative defense of res judicata and
attached to the motion copies of Stratford’s 2008 lawsuit, the nursing facility agreement
between Stratford and Julius, Julius’s account statement, and the promissory note between
Stratford and George.1 The Ohio Supreme Court has found that res judicata is not a
1We note that defendants did not specify in their motion to dismiss one of the 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. State ex rel. Freeman v.
Morris (1991), 62 Ohio St.3d 107, 579 N.E.2d 702; Shaper v. Tracy, 73 Ohio St.3d
1211, 1995-Ohio-37, 654 N.E.2d 1268.
{¶ 11} In Freeman, the defendant did not file an answer to the complaint, but filed
a motion to dismiss with attachments to establish res judicata. The Freeman court noted
that the lower court converted defendant’s motion to dismiss into a motion for summary
judgment when it based its decision on matters outside the pleadings — the attachments
to the motion to dismiss. Id. at 109. The court noted that “[i]n such a case, Civ.R.
12(B) requires that the court consider ‘only such matters outside the pleadings as are
specifically enumerated in Rule 56.’ Civ.R. 56(C) enumerates ‘pleading[s], depositions,
answers to interrogatories, written admissions, affidavits, transcripts of evidence in the
pending case, and written stipulations of fact.’ The complaints and judgment entries,
submitted without affidavit, are none of these.” Id. Thus, the Freeman court concluded
that the lower court improperly converted the Civ.R. 12(B) motion into a summary
judgment motion. Id. The court went on to explain that “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
grounds set forth in Civ.R. 12(B)(1)-(6). However, based on their allegations, it appears that their motion was filed pursuant to Civ.R. 12(B)(6) for failure to state a claim. judicata may not be raised by motion to dismiss under Civ.R. 12(B).” Id., citing Johnson
v. Linder (1984), 14 Ohio App.3d 412, 471 N.E.2d 815.
{¶ 12} Moreover, in Ardary v. Stepien, Cuyahoga App. No. 82950, 2004-Ohio-630
and Powell v. Wal-Mart Stores, Inc., Cuyahoga App. No. 93707, 2010-Ohio-5233, this
court has found that res judicata is not a defense that can be raised by a motion to dismiss
under Civ.R. 12(B) because that defense must be proved with evidence outside the
pleadings.
{¶ 13} In the instant case, the trial court based its decision on matters outside the
pleadings without properly converting the motion to dismiss into a motion for summary
judgment. As the Freeman court stated, “Civ.R. 56(C) enumerates ‘pleading[s],
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
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[Cite as Stratford Commons v. Raaber, 2011-Ohio-6084.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 96867
STRATFORD COMMONS PLAINTIFF-APPELLANT
vs.
JULIUS RAABER A.K.A. JULIU RAABER, ET AL. DEFENDANTS-APPELLEES
JUDGMENT: REVERSED AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-740660
BEFORE: Kilbane, A.J., Boyle, J., and Sweeney, J.
RELEASED AND JOURNALIZED: November 23, 2011 ATTORNEYS FOR APPELLANT
Patrick M. Higgins David G. Finley Matthew Thomas 45 W. Prospect Avenue Suite 1650-G Cleveland, Ohio 44115
ATTORNEY FOR APPELLEES
Irving S. Bergrin 27600 Chagrin Blvd. Suite 340 Cleveland, Ohio 44122
MARY EILEEN KILBANE, A.J.:
{¶ 1} This is an accelerated appeal brought pursuant to App.R. 11.1 and
Loc.App.R. 11.1.
{¶ 2} Plaintiff-appellant, Stratford Commons (Stratford), appeals the trial court’s
judgment dismissing its complaint against defendants-appellees. Finding merit to the
appeal, we reverse and remand.
{¶ 3} In November 2010, Stratford filed a complaint against Julius Raaber a.k.a.
Juliu Raaber (Julius), Julius Raaber Trustee a.k.a. Juliu Raaber Trustee, Margaret Raaber
Trustee a.k.a. Margareta Raaber trustee, George Raaber, George Raaber Trustee (George), and Andreea Raaber Trustee (collectively referred to as defendants), which
involves a judgment Stratford obtained against George Raaber in 2008.
{¶ 4} In June 2008, Stratford filed Case No. CV-661095 against George for the
breach of a promissory note executed by George on December 19, 2007, in favor of
Stratford, to guarantee payment for the nursing home care of his father, Julius Raaber.
Stratford obtained a default judgment against George in the amount of $46,756.81.
{¶ 5} Stratford’s 2010 complaint against the defendants is the subject of this
appeal and asserts three causes of action. The first cause of action alleges that Julius
owes Stratford $41,640.81 from a promissory note dated December 19, 2007. The
second cause of action alleges that Julius Raaber Trustee or Margaret Raaber Trustee
improperly transferred Julius’s assets into a trust in order to avoid Stratford’s claims.
The third cause of action alleges that George Raaber Trustee or Andreea Raaber Trustee
improperly transferred George’s assets into a trust in order to avoid Stratford’s claims.
{¶ 6} In response to Stratford’s complaint, defendants filed a motion to dismiss,
arguing that Stratford’s 2010 lawsuit is barred by res judicata. In support of their
motion, defendants attached copies of Stratford’s 2008 lawsuit, the nursing facility
agreement between Stratford and Julius, Julius’s account statement, and the promissory
note between Stratford and George. Defendants argued that Stratford’s 2008 and 2010
lawsuits involve the same promissory note and that Stratford is attempting to pursue
liability upon parties who were not joined in the 2008 lawsuit. Defendants argued that these parties should have been joined in the 2008 lawsuit. Stratford opposed the
defendants’ motion, and the trial court set a hearing in May 2011.
{¶ 7} Following the hearing on defendants’ motion, the court dismissed
Stratford’s lawsuit, finding that Stratford has “received a valid judgment on the note that
is the subject of this action. This matter is considered res judicata. [Stratford] believes
property held in trust is subject to collection however, a lawsuit naming trustees of trust
that holds subject property is not a proper vehicle for their attempt to collect.”
{¶ 8} Stratford now appeals, raising the following assignment of error for review.
ASSIGNMENT OF ERROR ONE
“The trial court committed reversible error by granting the motion to dismiss the complaint against George Raaber, George Raaber Trustee, Andreea Raaber Trustee and Margaret Raaber Trustee.”
{¶ 9} Stratford argues that the trial court erred when it dismissed its complaint
because res judicata and collateral estoppel do not bar its claims. We agree with
Stratford that the trial court improperly dismissed its complaint, albeit for different
reasons.
{¶ 10} Here, the defendants did not file an answer to Stratford’s complaint.
Instead, they filed a motion to dismiss based on the affirmative defense of res judicata and
attached to the motion copies of Stratford’s 2008 lawsuit, the nursing facility agreement
between Stratford and Julius, Julius’s account statement, and the promissory note between
Stratford and George.1 The Ohio Supreme Court has found that res judicata is not a
1We note that defendants did not specify in their motion to dismiss one of the 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. State ex rel. Freeman v.
Morris (1991), 62 Ohio St.3d 107, 579 N.E.2d 702; Shaper v. Tracy, 73 Ohio St.3d
1211, 1995-Ohio-37, 654 N.E.2d 1268.
{¶ 11} In Freeman, the defendant did not file an answer to the complaint, but filed
a motion to dismiss with attachments to establish res judicata. The Freeman court noted
that the lower court converted defendant’s motion to dismiss into a motion for summary
judgment when it based its decision on matters outside the pleadings — the attachments
to the motion to dismiss. Id. at 109. The court noted that “[i]n such a case, Civ.R.
12(B) requires that the court consider ‘only such matters outside the pleadings as are
specifically enumerated in Rule 56.’ Civ.R. 56(C) enumerates ‘pleading[s], depositions,
answers to interrogatories, written admissions, affidavits, transcripts of evidence in the
pending case, and written stipulations of fact.’ The complaints and judgment entries,
submitted without affidavit, are none of these.” Id. Thus, the Freeman court concluded
that the lower court improperly converted the Civ.R. 12(B) motion into a summary
judgment motion. Id. The court went on to explain that “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
grounds set forth in Civ.R. 12(B)(1)-(6). However, based on their allegations, it appears that their motion was filed pursuant to Civ.R. 12(B)(6) for failure to state a claim. judicata may not be raised by motion to dismiss under Civ.R. 12(B).” Id., citing Johnson
v. Linder (1984), 14 Ohio App.3d 412, 471 N.E.2d 815.
{¶ 12} Moreover, in Ardary v. Stepien, Cuyahoga App. No. 82950, 2004-Ohio-630
and Powell v. Wal-Mart Stores, Inc., Cuyahoga App. No. 93707, 2010-Ohio-5233, this
court has found that res judicata is not a defense that can be raised by a motion to dismiss
under Civ.R. 12(B) because that defense must be proved with evidence outside the
pleadings.
{¶ 13} In the instant case, the trial court based its decision on matters outside the
pleadings without properly converting the motion to dismiss into a motion for summary
judgment. As the Freeman court stated, “Civ.R. 56(C) enumerates ‘pleading[s],
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence in the pending case, and written stipulations of fact.’” Id. at 109. The copies
of Stratford’s 2008 lawsuit, the nursing facility agreement between Stratford and Julius,
Julius’s account statement with Stratford, and a promissory note between George and
Stratford, submitted without an affidavit, were none of these. See Freeman at 109;
Ardary at ¶19. Thus, defendants’ motion to dismiss was not proper for conversion into a
motion for summary judgment. See Ardary at ¶19, citing Freeman.
{¶ 14} Furthermore, if the trial court “converts a motion to dismiss into a motion
for summary judgment, the trial court must give notice to the parties and reasonable
opportunity to present Civ.R. 56 evidence.” Ardary at ¶20, citing City Mgmt. Sys. v.
Blakely, Summit App. No. 21162, 2003-Ohio-524. Here, the record reveals that the trial court did not give the parties any such notice, nor does the record otherwise indicate that
the trial court converted the motion to dismiss into a motion for summary judgment.
Accordingly, the trial court erred in granting defendants’ motion to dismiss on the
grounds that Stratford’s claim was barred by res judicata.
{¶ 15} Thus, the sole assignment of error is sustained.
{¶ 16} Judgment is reversed and remanded for further proceedings consistent with
this opinion.
It is ordered that appellant recover from appellees 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 EILEEN KILBANE, ADMINISTRATIVE JUDGE
MARY J. BOYLE, J., and JAMES J. SWEENEY, J., CONCUR