[Cite as Heller v. Pre-Paid Legal Servs., Inc., 2013-Ohio-680.]


STATE OF OHIO                      )                         IN THE COURT OF APPEALS
                                   )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

DAWN M. HELLER                                               C.A. No.   26376

        Appellant

        v.                                                   APPEAL FROM JUDGMENT
                                                             ENTERED IN THE
PRE-PAID LEGAL SERVICES, INC., et al.                        COURT OF COMMON PLEAS
                                                             COUNTY OF SUMMIT, OHIO
        Appellees                                            CASE No.   CV 2011 11 6514

                                  DECISION AND JOURNAL ENTRY

Dated: February 27, 2013



        MOORE, Presiding Judge.

        {¶1}     Appellant Dawn Heller appeals the judgment of the Summit County Court of

Common Pleas. This Court affirms.

                                                        I.

        {¶2}     In April, 2011, Ms. Heller obtained a membership in a pre-paid legal service,

administered by appellees Pre-Paid Legal Services, Inc. (“Pre-Paid”) and its subsidiary Ohio

Access to Justice (“OAJ”). Soon thereafter, Ms. Heller requested legal services regarding a

foreclosure matter and a car accident. Pre-Paid referred the matters to appellee law firm Maguire

and Schneider, LLP (“Maguire”), in Columbus, which in turn referred the matters to various

local attorneys. Dissatisfied with the legal services rendered by all the attorneys to which her

matters had been referred, in July, 2011, Ms. Heller filed a legal malpractice action against Pre-

Paid, OAJ, and Maguire in case number CV 2011-07-3977. She represented herself in that

lawsuit.
                                                 2


       {¶3}    Maguire filed an answer in which it raised an affirmative defense as to lack of

subject matter jurisdiction. In lieu of an answer, Pre-Paid and OAJ filed a motion to dismiss

pursuant to Civ.R. 12(B)(1) in which they argued that, because all of Ms. Heller’s claims were

subject to mandatory arbitration under the terms of the membership agreement, the trial court

lacked subject matter jurisdiction to proceed. In the alternative, Pre-Paid and OAJ moved the

trial court to stay the proceedings and compel arbitration.

       {¶4}    Ms. Heller filed a brief in opposition to the motion to dismiss in which she (1)

challenged the validity of the legal services membership contract, and consequently the

arbitration provision therein, and (2) argued the merits of her underlying legal malpractice

claims. She further filed a motion to compel the joinder of the parties she had already named as

defendants. In her joinder motion, she also argued that the arbitration clause in her membership

contract with Pre-Paid was unconscionable because it had not been disclosed to her, the

agreement contained no signature, the contract was not in writing, she did not have the

opportunity for representation by attorneys she chose, and she had no bargaining power in

negotiating the membership contract.

       {¶5}    In a September 26, 2011 order, the trial court recited the arbitration clause of the

membership agreement which required that all disputes or claims between Ms. Heller and Pre-

Paid or its affiliates arising out of the contract or services rendered under the contract must be

resolved pursuant to arbitration. The trial court found that Maguire was an affiliate of Pre-Paid

and OAJ. Further finding that “this matter must be dismissed in favor of the parties’ selection of

arbitration as the preferred manner to resolve any dispute arising from their contract[,]” the trial

court dismissed Ms. Heller’s claims pursuant to Civ.R. 12(B)(1) for lack of subject matter

jurisdiction. The trial court made no express ruling on Pre-Paid’s motion to stay and compel
                                                  3


arbitration or Ms. Heller’s motion to compel joinder, although presumably it concluded that

those motions were of no effect given its belief that it lacked subject matter jurisdiction over the

case. Significantly, no party appealed the trial court’s dismissal of case number CV 2011-07-

3977.

        {¶6}   In November, 2011, Ms. Heller refiled her legal malpractice action in case

number CV 2011-11-6514 against the above-named parties, plus 20 John Doe defendants alleged

to have been referred by Maguire to render her legal services pursuant to the membership

agreement. In addition, she sought a declaration from the court that the arbitration clause in her

membership agreement was unconscionable and, therefore, unenforceable. She was represented

by counsel in the second lawsuit.

        {¶7}   Maguire answered and raised res judicata as an affirmative defense. The law firm

subsequently filed a motion to dismiss pursuant to Civ.R. 12(B)(6) for failure to state a claim

upon which relief could be granted on the basis of res judicata. The firm appeared to argue that

the underlying claim of legal malpractice was barred by the doctrine of res judicata based on the

trial court’s prior dismissal of Ms. Heller’s claims. In the alternative, it argued that, if the trial

court determined that the matter may be relitigated, the firm thereby incorporated the arguments

it presented in the original filing. Maguire, however, merely filed an answer in the first suit. The

two suits were not consolidated, and Maguire did not attach any documents evidencing any prior

arguments.

        {¶8}   Ms. Heller opposed Maguire’s motion to dismiss on two bases. First, she argued

that the trial court’s prior dismissal pursuant to Civ.R. 12(B)(1) for lack of subject matter

jurisdiction did not constitute a dismissal on the merits; accordingly, the doctrine of res judicata
                                                 4


was not applicable to bar her second suit. Second, she argued that a party may not premise a

motion to dismiss on the doctrine of res judicata.

       {¶9}    In lieu of an answer, Pre-Paid and OAJ filed a motion to dismiss the refiled

complaint, although they emphasized that their motion was not made pursuant to Civ.R. 12(B),

but rather pursuant to the Federal Arbitration Act (“FAA”) and Ohio law governing the

arbitration of disputes. At another point, Pre-Paid/OAJ asserted that their motion was a “motion

to enforce arbitration.” They argued that the trial court previously “decreed” that Ms. Heller’s

claims were subject to arbitration when it dismissed her first suit, so that the second suit was

barred by the doctrine of res judicata. The motion further sought dismissal pursuant to federal

case law recognizing the propriety of dismissal when all claims are subject to arbitration.

       {¶10} Ms. Heller opposed Pre-Paid/OAJ’s motion to dismiss. She argued that the crux

of the motion to dismiss was that the membership contract which contained an arbitration clause

was enforceable, so the trial court had no jurisdiction to proceed. Accordingly, Ms. Heller

argued that the motion was effectively made pursuant to Civ.R. 12(B)(1). She opposed the

motion on three bases. First, she argued that the FAA contemplates that various reasons will

justify finding an arbitration clause to be unenforceable and that dismissal pursuant to the FAA

was not proper in this case. Second, she argued that, because the trial court based its prior

dismissal on Civ.R. 12(B)(1), the dismissal was other than on the merits, precluding the

application of res judicata to the second suit. Finally, she argued that res judicata may not be

raised in a motion to dismiss.

       {¶11} Pre-Paid/OAJ moved to strike Ms. Heller’s brief in opposition, arguing that it was

untimely and not responsive to the issue of preclusion. They asserted that their motion had
                                                 5


argued only that the issue of the arbitrability of the claims was subject to preclusion, not that the

underlying legal malpractice claims were precluded.

       {¶12} The trial court granted the defendants’ motions to dismiss.                 The court

acknowledged that its prior dismissal of the first suit pursuant to Civ.R. 12(B)(1) was not a

dismissal on the merits of the underlying claims. However, it agreed with Pre-Paid/OAJ’s

argument that res judicata barred reconsideration of the issue of the arbitrability of the

underlying legal malpractice claims. Asserting that it had found in the first action that Ms.

Heller’s claims were subject to arbitration, it reasoned that the issue of arbitration was barred by

res judicata. Accordingly, it dismissed the second suit without prejudice, further stating that

there was nothing in the court’s first or second dismissal orders that prevented Ms. Heller from

initiating arbitration proceedings. The trial court did not issue an order compelling arbitration.

       {¶13} Ms. Heller purported to appeal the trial court’s orders in both case numbers CV

2011-07-3977 and CV 2011-11-6514. She failed, however, to file a notice of appeal in the

record of the first case. Moreover, had she actually filed her notice of appeal in case number CV

2011-07-3977 at the same time she filed the notice in case number CV 2011-11-6514, it would

have been untimely. See App.R. 4. However, she filed a timely appeal from the trial court’s

order in case number CV 2011-11-6514.

                                                 II.

       {¶14} Ms. Heller sets out four lengthy and somewhat confusing “Errors of the Court”

which we decline to reiterate here. None of her arguments compel reversal of the trial court’s

judgment.

       {¶15} In her first assigned error, Ms. Heller argues that the trial court erred by failing to

properly join the parties she sued to allow for a proper assumption of liability. It is unclear why
                                                  6


she sought the joinder of parties who were already parties to the action. Nevertheless, this Court

declines to address the merits of this assigned error because Ms. Heller only moved for joinder in

case number CV 2011-07-3977, and she failed to timely appeal from the judgment in that case.

Because her appeal is untimely in regard to this issue, this Court lacks jurisdiction to address the

issue on its merits. Blair v. Wallace, 9th Dist. No. 24819, 2010-Ohio-2734, ¶ 10.

          {¶16} In her second and fourth assigned errors, Ms. Heller raises two issues. First, she

appears to challenge the trial court’s determination regarding the issue of personal jurisdiction.

“Issues not raised in the lower court and not there tried and which are completely inconsistent

with and contrary to the theory upon which appellant[] proceeded below cannot be raised for the

first time on review.” Republic Steel Corp. v. Bd. of Revision of Cuyahoga Cty., 175 Ohio St.

179 (1963), syllabus. As no party below raised the issue of personal jurisdiction, and the trial

court did not consider it, this Court is precluded from considering the issue for the first time on

appeal.

          {¶17} Second, Ms. Heller raises the issue of the enforceability of the arbitration clause

in the membership contract. This appears also to be the issue she raises in her third assigned

error. Her arguments in this regard are barred by the doctrine of res judicata.

          {¶18} Under the doctrine of res judicata, “A valid, final judgment rendered upon the

merits bars all subsequent actions based upon any claim arising out of the transaction or

occurrence that was the subject matter of the previous action.” Grava v. Parkman Twp., 73 Ohio

St.3d 379 (1995), syllabus. However, the dismissal of an action on the basis of the lack of

subject matter jurisdiction operates as a judgment other than on the merits. Civ.R. 41(B)(4).

Accordingly, “a dismissal for lack of jurisdiction is not res judicata to a subsequent action.”

Diagnostic & Behavioral Health Clinic, Inc. v. Jefferson Cty. Mental Health, Alcohol and Drug
                                                  7


Addiction Bd., 7th Dist. No. 01 JE 5, 2002-Ohio-1567, ¶ 11, citing State ex rel. Schneider v. Bd.

of Edn., 39 Ohio St.3d 281 (1988).

       {¶19} There is a narrow exception to this general proposition of law. Issue preclusion

(or collateral estoppel), which bars reconsideration of issues necessarily determined in a prior

action, is applicable to bar the redetermination of the issue concerning the scope of the court’s

jurisdiction. Diagnostic at ¶ 12. Therefore, if a court has determined that it does not have

jurisdiction to consider the merits of an action, a party is precluded from seeking a determination

in a subsequent action regarding the court’s jurisdiction. The party’s only recourse is to appeal

the trial court’s determination regarding its jurisdiction; it may not refile the action and relitigate

the issue of jurisdiction. Moreover, any issues underlying and on which the court premised its

determination regarding its lack of jurisdiction are dispositive and retain a preclusive effect. Id.

at ¶ 13 (concluding that the issue of the Board’s status as a state agency, on which the court of

common pleas premised its determination that the court of claims’ exclusive jurisdiction over the

underlying matter divested it of subject matter jurisdiction, was preclusively determined and

could not be challenged again).

       {¶20} In this case, the trial court dismissed Ms. Heller’s complaint in case number CV

2011-07-3977 after concluding that it lacked subject matter jurisdiction to consider the merits of

her legal malpractice claims. Pre-Paid/OAJ had argued that federal law supports the dismissal of

a case when all claims are referable to arbitration. While many federal courts stay proceedings

pending arbitration, the court may instead dismiss a case upon request of a party instead of

staying the proceedings if all claims are referable to arbitration. See e.g., Stachurski v. DirecTV,

Inc., 642 F.Supp.2d 758, 764 (N.D.Ohio 2009) (recognizing the functional propriety of dismissal
                                                 8


where all claims “are within the scope of the arbitration agreement and ‘there is “nothing left for

the district court to do but execute judgment[.]”’”).

       {¶21} The trial court premised its conclusion that it lacked subject matter jurisdiction on

its determination that Ms. Heller’s claims were subject to mandatory arbitration pursuant to the

arbitration clause in the pre-paid legal services membership contract. The court acknowledged

the arbitration agreement between the parties and discussed on the record the preference in Ohio

for parties to resolve their differences through arbitration where the contract calls for such.

Accordingly, the trial court implicitly determined that the arbitration clause was valid,

enforceable, and not otherwise void.       This Court has recognized a trial court’s necessary

determination that an arbitration clause was valid where the court granted the defendant’s motion

to stay and compel arbitration and the plaintiff did not appeal the granting of the defendant’s

motion. Dun-Rite Constr., Inc. v. Hoover Land Co., 9th Dist. No. 25731, 2011-Ohio-4769, ¶ 10.

We then concluded that the plaintiff’s challenge to the arbitrability of the claims in its appeal

from the trial court’s judgment confirming the arbitrator’s award was barred by res judicata. Id.

       {¶22} In this case, the trial court determined that the arbitration clause was valid when it

dismissed Ms. Heller’s legal malpractice claims after finding that the parties chose arbitration as

the preferred manner of resolving any disputes. The underlying finding that the arbitration

clause was valid and enforceable formed the basis for the trial court’s conclusion that it lacked

subject matter jurisdiction to address Ms. Heller’s claims. No party appealed the trial court’s

dismissal for lack of subject matter jurisdiction. Accordingly, irrespective of whether that

dismissal was legally correct, that determination, and the determination of any issues on which

the dismissal was premised, have been conclusively determined and may not be relitigated.
                                                 9


Therefore, Ms. Heller is collaterally estopped from arguing on appeal that the trial court erred by

dismissing her second case because the arbitration clause was unconscionable and void.

       {¶23} Finally, Ms. Heller raises issues such as fraud, illegal use of trade names,

improper venue, choice of law, improper licensure, and nullification in the body of her argument.

These arguments, however, are beyond the scope of her assigned errors and this Court, therefore,

need not address them. Rusov v. Ansley, 9th Dist. No. 23748, 2007-Ohio-7022, ¶ 7; see also

App.R. 16(A)(3) and (7). Moreover, as none of these issues were raised below, Ms. Heller

cannot raise them for the first time on appeal. Republic Steel Corp., 175 Ohio St. at syllabus.

       {¶24} The dissent correctly identifies the procedural problems that plague the two cases

below, and we are mindful of what might appear to be an inequitable result. It is a close call

whether this case falls into the very limited category of cases which demand abrogation of the

doctrine of res judicata. However, the omission of these arguments on appeal tips the scale in

favor of application of the doctrine. Based on the above reasoning and analysis, Ms. Heller’s

assigned errors are overruled.

                                                III.

       {¶25} Ms. Heller’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                10


        We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

        Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

        Costs taxed to Appellant.




                                                     CARLA MOORE
                                                     FOR THE COURT




BROGAN, J.
CONCURS.

CARR, J.
CONCURRING IN PART, AND DISSENTING IN PART.

        {¶26} I concur with the majority’s conclusion that this Court may not consider the

merits of Ms. Heller’s arguments on appeal that were either not timely raised or not determined

by the trial court.

        {¶27} I respectfully dissent from the majority’s conclusion that Ms. Heller’s argument

that the arbitration provision is unconscionable and void is barred by the doctrine of res judicata.

I would decline to apply res judicata under the circumstances of this case because the interests of

justice and fairness mitigate against its rigid application. See State ex rel. Estate of Miles v.
                                                 11


Piketon, 121 Ohio St.3d 231, 2009-Ohio-786, ¶ 30 (“The binding effect of res judicata has been

held not to apply when fairness and justice would not support it.”); Builders Dev. Group L.L.C.

v. Smith, 2d Dist. No. 23846, 2010-Ohio-4151, ¶ 14-15.

       {¶28} This Court has held that, when claims are subject to arbitration pursuant to the

parties’ agreement, “the proper procedure is for a trial court to stay the proceedings and send the

parties to arbitration.” Morris v. Vinray Gen. Contractors, 9th Dist. No. 18435, 1998 WL 15608

(Jan. 7, 1998). We further held that a trial court’s dismissal for lack of subject matter jurisdiction

under those circumstances is “erroneous.” Id.; see also Didado v. Lamson & Sessions Co., 81

Ohio App.3d 302, 305 (9th Dist.1992) (reversing a jury verdict in favor of the plaintiff and

remanding for the trial court to enter an order referring the cause to arbitration, but not for an

order dismissing the complaint for lack of subject matter jurisdiction as requested by the

defendant on appeal).

       {¶29} In the first action filed by Ms. Heller, the trial court did precisely what this Court

has recognized as “erroneous;” instead of ordering the matter to arbitration, it dismissed the

action for lack of subject matter jurisdiction based on its implicit finding that the arbitration

clause was valid. As that erroneous dismissal formed the basis for the finding that consideration

of the validity of the arbitration clause was barred by the doctrine of res judicata, I would

conclude that strict application of the doctrine would be unjust.

       {¶30} Moreover, case number CV 2011-11-6514, the subject of this appeal, was riddled

with procedural missteps. After Ms. Heller refiled her claims, Maguire answered and raised the

affirmative defense of res judicata, thereby preserving the issue to raise it in a later, appropriate

dispositive motion. See Civ.R. 8(C). Instead, the law firm filed a motion to dismiss on the basis

of res judicata in a Civ.R. 12(B)(6) motion. The Ohio Civil Rules of Procedure are clear that a
                                                12


party wishing to raise a defense of the type enumerated in Civ.R. 12(B) may do so by motion,

but that the motion must be made “before pleading,” i.e., before filing an answer. Accordingly,

Maguire’s motion to dismiss pursuant to Civ.R. 12(B)(6) was not properly before the trial court

for consideration because it was not timely filed. Moreover, it is well established that “the

defense of res judicata may not be raised by motion to dismiss under Civ.R. 12(B).” State ex rel.

Freeman v. Morris, 62 Ohio St.3d 107, 109 (1991). Therefore, I would conclude that the trial

court erred by granting Maguire’s motion to dismiss.

       {¶31} Pre-Paid/OAJ, on the other hand, declined to file an answer, choosing instead to

file a motion to dismiss. As the only proper motion to dismiss in lieu of an answer must be filed

pursuant to Civ.R. 12(B), Pre-Paid’s motion must be construed as a Civ.R. 12(B) motion. Their

mere adamant assertions to the contrary that they were not seeking relief pursuant to Civ.R.

12(B) did not make it so.

       {¶32} Pre-Paid characterized the motion in two ways. First, the entities asserted that it

was a “motion to enforce arbitration.” If so, the trial court was limited to either staying the

matter and compelling arbitration or denying a stay and proceeding on the merits of that action.

See Vinray Gen. Contractors, supra.

       {¶33} Second, Pre-Paid asserted that it filed its motion to dismiss pursuant to the Federal

Arbitration Act (“FAA”) and, without elaboration, Ohio law. The FAA, however, was merely

the substantive law underlying the motion to dismiss. Just like Ohio arbitration law, which

requires the court to stay the action and refer the matter for arbitration, the FAA provides, in

relevant part: “If any suit or proceeding be brought in any of the courts of the United States upon

any issue referable to arbitration under an agreement in writing for such arbitration, the court in

which such suit is pending, upon being satisfied that the issue involved in such suit or
                                                 13


proceedings is referable to arbitration under such an agreement, shall on application of one of the

parties stay the trial of the action until such arbitration has been had in accordance with the terms

of the agreement * * *.” 9 U.S.C. 3. In seeking relief, Pre-Paid/OAJ were still bound by Ohio

procedural law. Accordingly, if it sought to dismiss the action, it had to comply with the Ohio

Rules of Civil Procedure, which implicated a motion to dismiss pursuant to Civ.R. 12(B). As

discussed above, however, a party may not seek dismissal of an action on the basis of res

judicata by way of a motion to dismiss pursuant to Civ.R. 12(B).

       {¶34} Only Maguire properly preserved the affirmative defense of res judicata in the

second action. Had Pre-Paid/OAJ filed an answer, they could have preserved the defense, but

they failed to do so. Assuming the affirmative defense was preserved, the matter could only

have been disposed pursuant to an appropriate dispositive motion, specifically by way of a

motion for summary judgment. Based on the procedural posture of the case below, however, the

trial court erred in granting both motions to dismiss on the basis of res judicata.

       {¶35} I recognize that Ms. Heller has not raised any of these issues on appeal.

Nevertheless, I would construe her broad argument that the trial court failed to hear the action as

a plea for justice. In the interests of justice and fairness, I would decline to apply the doctrine of

res judicata in this case. Accordingly, I would reverse and remand the matter to the trial court

for further proceedings.

(Brogan, J., retired, of the Second District Court of Appeals, sitting by assignment pursuant to
§6(C), Article IV, Constitution.)

APPEARANCES:

DAWN HELLER, pro se, Appellant.

D. CHERYL ATWELL and HOLLY MARIE WILSON, Attorneys at Law, for Appellee.

PETER J. COMODECA and DENEEN LAMONICA, Attorneys at Law, for Appellee.
