[Cite as Schrock Road Mkts., Inc. v. Sun Life Assur. Co. of Canada, 2011-Ohio-4087.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


SCHROCK ROAD MARKETS, INC.                                 JUDGES:
                                                           Hon. William B. Hoffman, P.J.
        Plaintiff-Appellant                                Hon. Sheila G. Farmer, J.
                                                           Hon. Patricia A. Delaney, J.
-vs-

SUN LIFE ASSURANCE COMPANY                                 Case No. 11CAE020015
OF CANADA, ET AL.

        Defendants-Appellees                               OPINION



CHARACTER OF PROCEEDING:                              Appeal from the Court of Common Pleas,
                                                      Case No. 08CVC071052



JUDGMENT:                                             Reversed and Remanded




DATE OF JUDGMENT ENTRY:                               August 16, 2011




APPEARANCES:

For Plaintiff-Appellant                               For Defendants-Appellees

DENNIS L. PERGRAM                                     JEFFREY A. WILLIS
50 North Sandusky Street                              191 West Nationwide Blvd.
Delaware, OH 43015-1926                               Suite 300
                                                      Columbus, OH 43215

                                                      DIMITRI HATZIFOTINOS
                                                      141 East Town Street
                                                      Suite 200
                                                      Columbus, OH 43215
Delaware County, Case No. 11CAE020015                                                  2

Farmer, J.

       {¶1}      On March 27, 2006, appellees, Sun Life Assurance Company of Canada

and Grubb & Ellis/Adena Realty Advisors, filed a complaint in the Court of Common

Pleas of Delaware County, Ohio for declaratory judgment against appellant, Schrock

Road Markets, Inc., to determine the ownership of some property located at the site of a

former Big Bear store (Case No. 06CVH030279) (hereinafter "Lawsuit I"). Appellees

filed an amended complaint on April 3, 2006, adding a breach of contract claim. On

April 5, 2006, appellant filed an answer and counterclaim for declaratory judgment. A

bench trial was held on September 5, 2006. By decision and entry filed October 27,

2006, the trial court found in favor of appellees as against appellant.        Appellant

appealed. This court reversed the trial court's judgment and remanded the case for

further proceedings.      Sun Life Assurance Company of Canada v. Schrock Road

Markets, Inc., Delaware App. No. 06CAE110089, 2008-Ohio-7.

       {¶2}      Upon remand, on February 11, 2008, appellant filed a motion for leave to

file a supplemental counterclaim to add claims of conversion, unjust enrichment, and

breach of constructive trust. By judgment entry filed February 13, 2008, the trial court

denied the motion.

       {¶3}      On February 28, 2008, appellant filed a complaint in the Court of Common

Pleas of Franklin County, Ohio against appellees, claiming conversion, unjust

enrichment, and breach of constructive trust (Case No. 08CVC023063) (hereinafter

"Lawsuit II").    On April 4, 2008, appellees filed a motion to dismiss and/or change

venue. By judgment entry filed June 13, 2008, the case was transferred to Delaware

County which is the case sub judice (Case No. 08CVC071052).
Delaware County, Case No. 11CAE020015                                                     3


       {¶4}   On July 30, 2008, the trial court filed a judgment entry in Lawsuit I, finding

the real estate containing the disputed property had been sold and therefore the issues

in the lawsuit were moot. No appeal was taken.

       {¶5}   All parties filed motions for summary judgment in Lawsuit II. On January

18, 2011, the trial court filed a judgment entry granting appellees' motion to dismiss filed

on April 4, 2008, finding appellant's claims were compulsory counterclaims that should

have been asserted in Lawsuit I. The trial court rendered the motions for summary

judgment moot.

       {¶6}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                             I

       {¶7}   "THE    TRIAL    COURT       COMMITTED        PREJUDICIAL       ERROR      IN

GRANTING THE MOTION TO DISMISS."

                                             I

       {¶8}   Appellant claims the trial court erred in granting appellees' Civ.R. 12(B)(6)

motion to dismiss. We agree.

       {¶9}   Our standard of review on a Civ.R. 12(B)(6) motion to dismiss is de novo.

Greeley v. Miami Valley Maintenance Contractors, Inc. (1990), 49 Ohio St.3d 228. A

motion to dismiss for failure to state a claim upon which relief can be granted is

procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey

County Board of Commissioners, 65 Ohio St.3d 545, 1992-Ohio-73. Under a de novo

analysis, we must accept all factual allegations of the complaint as true and all
Delaware County, Case No. 11CAE020015                                                  4

reasonable inferences must be drawn in favor of the nonmoving party. Byrd. v. Faber

(1991), 57 Ohio St.3d 56.

       {¶10} In its judgment entry filed January 18, 2011 granting appellees' motion to

dismiss, the trial court found the following:

       {¶11} "Schrock the Plaintiff in their second case is obviously attempting to get

two bites at the apple. All of the counterclaims sought to be filed by Schrock in Case

No. 06 CVH 03 0279 January 28, 2008 existed when the original declaratory judgment

action was filed and should have been alleged as compulsory counterclaims pursuant to

Civil Rule.

       {¶12} "Schrock however did not even attempt to pursue these claims until 16

months after trial at which time leave was sought for purposes of filing these claims

almost as an afterthought. This Court denied the motion for leave to file supplemental

pleadings 16 months after trial.

       {¶13} "Schrock did not appeal this Court's decision but instead has attempted to

bypass the appeal by filing a new case based on the same pleadings and causes of

action in Franklin County."

       {¶14} The gravamen of this case is whether appellant should have filed its

claims as a compulsory counterclaim to Lawsuit I or whether appellant should have filed

an appeal of the trial court's February 13, 2008 denial of its motion for leave to file a

supplemental counterclaim in Lawsuit I.

       {¶15} In order to determine these issues, we will first address the status of the

record as it existed at the time of appellees' motion to dismiss.
Delaware County, Case No. 11CAE020015                                                      5


       {¶16} On April 4, 2008, appellees filed a motion to dismiss with exhibits which

included the April 3, 2006 amended complaint filed in Lawsuit I, the April 5, 2006

answer to the amended complaint and counterclaim, the trial court's October 27, 2006

decision and entry, this court's January 2, 2008 opinion and judgment entry, the

February 11, 2008 motion for leave to file a supplemental counterclaim, the trial court's

February 13, 2008 judgment entry denying said motion, and the complaint filed in

Franklin County on February 28, 2008. The attachments were attested to by Jeffrey

Willis, Esq., who averred "the pleadings and memoranda attached to this Motion to

Dismiss, which were filed in the Delaware County Court of Common Pleas, Case No.

Case No. (sic) 06-CVH-03-279 ('Delaware County Case'), are true and accurate

copies."

       {¶17} The February 28, 2008 complaint alleged conversion, unjust enrichment,

and breach of constructive trust. On August 6, 2008, appellees filed an answer with

twenty affirmative defenses. Affirmative defense nos. 12, 13, and 18 raised the issues

of failure to file a compulsory counterclaim in Lawsuit I, collateral estoppel, res judicata,

and mootness.

       {¶18} The four corners of the complaint and the answer do not include the

previous rulings from the trial court and this court. Clearly the trial court proceeded in

rendering its decision by looking outside the four corners of the pleadings. The matter

should have been converted to summary judgment status as Civ.R. 12(B) requires. We

note summary judgment motions were pending which the trial court deemed moot in its

January 18, 2011 judgment entry.
Delaware County, Case No. 11CAE020015                                                        6


         {¶19} Because matters were considered beyond the four corners of the

pleadings, we reverse the trial court's decision, and remand the matter for further

proceedings.

         {¶20} We note appellees argued the previous rulings were attached to their

motion to dismiss via Attorney Willis's affidavit.     The proper authentication of these

documents is not via an affidavit of an attorney, but by certification of the clerk.

         {¶21} In Helfish v. Madison, Licking App. No. 08-CA-150, 2009-Ohio-5140, ¶40,

49, this court held the following:

         {¶22} "The pleadings filed in the instant case were a part of the record in this

case and the court could consider these pleadings in making a determination on

summary judgment. However, the record in Case No. 05 CV 00120 is not a part of the

record in this case, and the pleadings appellees relied on in that case must be properly

before the court as admissible evidence before they may be considered by the court in

ruling on the summary judgment motion. E.g., Nationwide v. Kallberg, Lorain App. No.

06CA008968, 2007-Ohio-2041, ¶20, 22.

         {¶23} "***

         {¶24} "We note that the court did not state that it was taking judicial notice of any

of the pleadings in Case No. 05 CV 00120. Further, the court could not take judicial

notice of such pleadings.       This Court has stated in dicta that we agreed with the

proposition that the trial court can take judicial notice of prior lawsuits filed in its own

court.    Lansing v. Hybud Equipment Co., Stark App. No.2002CA00112, 2002-Ohio-

5869, ¶16.      A trial court can take judicial notice of the court's docket.          State v.

Washington (August 27, 1987, Cuyahoga App. Nos. 52676, 52677, 52678 at 15.
Delaware County, Case No. 11CAE020015                                                     7


However, a court does not have the authority to take judicial notice of the proceedings

in another case, including its own judgment entries. Eg., State v. LaFever, Belmont

App. No. 02 BE 71, 2003-Ohio-6545, ¶27; State v. Blaine, Highland App. No. 03CA9,

2004-Ohio-1241, ¶17; Diversified Mortgage Investors, Inc. v. Athens Cty. Bd. of

Revision (1982), 7 Ohio App.3d 157, 454 N.E.2d 1330; NorthPoint Properties, Inc. v.

Petticord, 179 Ohio App.3d 342, 2008-Ohio-5996, ¶16. The rationale for this holding is

that if a trial court takes notice of a prior proceeding, the appellate court cannot review

whether the trial court correctly interpreted the prior case because the record of the prior

case is not before the appellate court. Eg. Blaine, supra, ¶17; LaFever, supra, ¶27;

Buoscio, supra, ¶34."

       {¶25} The motion to dismiss and the attachments thereto created evidentiary

issues which pursuant to Civ.R. 12(B) should have been converted into a motion for

summary judgment which was not done sub judice.

       {¶26} The sole assignment of error is granted.
Delaware County, Case No. 11CAE020015                                          8


      {¶27} The judgment of the Court of Common Pleas of Delaware County, Ohio is

hereby reversed.

By Farmer, J.

Delaney, J. concur and

Hoffman, P.J. concurs separately




                                        s/ Sheila G. Farmer_________________




                                        s/ Patricia A. Delaney_________________




                                        ___________________________________


                                                       JUDGES

SGF/sg 714
Delaware County, Case No. 11CAE020015                                                         9

Hoffman, P.J.,

         {¶28} I concur in the majority’s analysis and disposition. However, I would go

further and conclude Appellant’s claims were not compulsory counterclaims in the

original declaratory judgment action. The claims arose because of Appellees’

disposition of the property which occurred after the original complaint and counterclaim

were filed and while the initial appeal therefrom was pending.

         {¶29} I find the claims were not compulsory given the underlying action was only

for declaratory judgment concerning ownership of the property.

         {¶30} Because Appellees sold the property after the declaratory judgment action

had been decided, Appellant could seek leave to file a supplemental complaint or,

alternatively, institute a new action. I do not believe the two alternatives are exclusive.

         {¶31} I find it would be inequitable for Appellees to benefit from their sale of the

property during the pendency of the appeal, particularly given this Court’s prior

declaration the property in dispute was a fixture and determining Appellant was the legal

owner.



                                                   s / William B. Hoffman_____________

                                                     HON. WILLIAM B. HOFFMAN
Delaware County, Case No. 11CAE020015                                              10


           IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT



SCHROCK ROAD MARKETS, INC.                :
                                          :
       Plaintiff-Appellant                :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
SUN LIFE ASSURANCE COMPANY                :
OF CANADA, ET AL.                         :
                                          :
       Defendants-Appellees               :         CASE NO. 11CAE020015




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Delaware County, Ohio is reversed, and the

matter is remanded to said court for further proceedings consistent with this opinion.

Costs to appellees.




                                           s/ Sheila G. Farmer_________________




                                           s/ Patricia A. Delaney_________________




                                           _s/ William B. Hoffman________________

                                                           JUDGES
