[Cite as Grimm v. Wickman, 2011-Ohio-3991.]


               Court of Appeals of Ohio
                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 96508




                                   ROBERT GRIMM
                                                    PLAINTIFF-APPELLANT

                                              vs.

                             MICHELLE WICKMAN
                                                    DEFENDANT-APPELLEE




                                        JUDGMENT:
                                         AFFIRMED



                                    Civil Appeal from the
                           Cuyahoga County Court of Common Pleas
                                    Case No. CV-743314

       BEFORE: S. Gallagher, J., Kilbane, A.J., and Cooney, J.

       RELEASED AND JOURNALIZED: August 11, 2011
FOR APPELLANT

Robert L. Grimm, pro se
510 Locklie Drive
Highland Heights, OH 44143

ATTORNEYS FOR APPELLEE

Jennifer Monty Rieker
Rosemary Taft Milby
Weltman, Weinberg & Reis Co., LPA
200 Lakeside Place
323 Lakeside Ave., West
Cleveland, OH 44113




SEAN C. GALLAGHER, J.:

       {¶ 1} This cause came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1, the trial court records, and briefs of counsel.

       {¶ 2} Appellant Robert Grimm appeals the decision of the trial court in Cuyahoga

County Common Pleas Court Case No. CV-743314, dismissing all claims against

Michelle Wickman with prejudice.          For the reasons stated herein, we affirm the

judgment of the trial court.

       {¶ 3} Grimm alleged in his complaint underlying the current appeal, filed on

December 10, 2010, that Wickman made false statements in an affidavit filed in another

case, Cuyahoga County Common Pleas Case No. CV-609684, Parkview Fed. Sav. Bank
v. Grimm (“Parkview I”). Wickman filed a motion to dismiss in lieu of answering the

complaint and in which, in pertinent part, she asserted the affirmative defenses of the

doctrines of res judicata and witness immunity.       The trial court summarily granted

Wickman’s motion to dismiss with prejudice. Grimm timely appealed, asserting one

assignment of error.

       {¶ 4} Grimm’s sole assignment of error provides that “[t]he trial court erred in

dismissing this case.” He argues that the trial court’s decision to grant Wickman’s motion

to dismiss for failure to state a claim was in error because he indeed stated a cognizable

claim under Ohio law and the doctrine of res judicata does not apply. Grimm’s sole

assignment of error is not well taken.

       {¶ 5} We review an order dismissing a complaint for failure to state a claim for

relief de novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814

N.E.2d 44. When reviewing a Civ.R. 12(B)(6) motion to dismiss, we must accept the

material allegations of the complaint as true and make all reasonable inferences in favor

of the plaintiff. Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 280, 2005-Ohio-4985,

834 N.E.2d 791. For a defendant to prevail on the motion, it must appear from the face

of the complaint that the plaintiff can prove no set of facts that would justify a court in

granting relief. Id.

       {¶ 6} We first note that Wickman’s argument that the doctrine of res judicata

prohibits Grimm from advancing his claims against her and that Wickman, as an

employee of Parkview Federal, cannot be held liable for actions undertaken in the course
and scope of her employment is not an appropriate argument for a Civ.R. 12(B) motion to

dismiss. The Ohio Supreme Court has consistently held that the affirmative defense of

res judicata is generally not a proper basis for   such motions. State ex rel. Freeman v.

Morris (1991), 62 Ohio St.3d 107, 109, 579 N.E.2d 702. Res judicata as a defense is

generally proven through matters not contained in the complaint.        Ardary v. Stepien,

Cuyahoga App. No. 82950, 2004-Ohio-630, ¶ 18. Similarly, Grimm’s complaint does

not allege the fact that Wickman is an employee of Parkview Federal.       In order to even

consider Wickman’s second argument that she acted within the course and scope of her

employment, the trial court would have to look beyond the facts alleged in the complaint.

 In reviewing motions to dismiss under Civ.R. 12(B)(6), courts are limited to the facts

and allegations of the complaint.   We agree with Grimm, albeit for different reasons, in

that the trial court could not have relied on either of those arguments in granting

Wickman’s motion to dismiss.

       {¶ 7} In this case, however, on the face of the complaint, Grimm claims that

Wickman signed an affidavit and filed it in a previous court case. Pursuant to that

allegation, Grimm established the necessary fact that Wickman was a witness in a

previous court proceeding in considering the witness immunity doctrine.             Grimm

essentially alleges that Wickman committed perjury by filing a false affidavit.

       {¶ 8} “It is a well-established rule that judges, counsel, parties, and witnesses are

absolutely immune from civil suits for defamatory remarks made during and relevant to

judicial proceedings.”    Willitzer v. McCloud (1983),      6 Ohio St.3d 447, 449, 453
N.E.2d 693.     Further, claims of perjury, subornation of perjury, and conspiracy to

commit perjury, although punishable under criminal statutes, may not form the basis of a

civil lawsuit. Costell v. Toledo Hosp. (1988), 38 Ohio St.3d 221, 223-224, 527 N.E.2d

858.

       {¶ 9} In Morrow v. Reminger & Reminger Co., L.P.A. (10th Dist., 2009), 183

Ohio App.3d 40, 51-52, 915 N.E.2d 696, the defendants were accused of falsifying facts

and affidavits in an attempt to thwart execution on a valid judgment. The court held, in

accord with Ohio law, that “the giving of false testimony in a judicial proceeding does not

give rise to a civil action for damages resulting from the giving of the false testimony

even when it is alleged that the witness knew the testimony to be false.”           (Internal

citations omitted.) Id.

       {¶ 10} In the current case, if we assume, as we must, that Wickman did in fact

make false statements in her affidavit filed in the Parkview I case, she is absolutely

immune from subsequent civil liability based on that allegation.         Grimm, therefore,

failed to state a cognizable claim upon which relief could be granted.    When considering

all the material allegations and all inferences therefrom, in a light most favorable to

Grimm, we find that the trial court did not err in granting Wickman’s motion to dismiss

for failure to state a claim. Grimm’s claim as pleaded is specifically prohibited as a matter

of law, and no set of facts would therefore entitle him to relief. His sole assignment of

error is overruled.

       {¶ 11} The decision of the trial court is affirmed.
       It is ordered that appellee recover from appellant 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.



SEAN C. GALLAGHER, JUDGE

MARY EILEEN KILBANE, A.J., and
COLLEEN CONWAY COONEY, J., CONCUR
