[Cite as Rose v. Cochran, 2012-Ohio-1729.]



                            IN THE COURT OF APPEALS OF OHIO
                               FOURTH APPELLATE DISTRICT
                                     ROSS COUNTY

J.R. ROSE,                            :    Case No. 11CA3243
                                      :
     Plaintiff-Appellant,             :
                                      :    DECISION AND
     v.                               :    JUDGMENT ENTRY
                                      :
WAYNE COCHRAN,                        :
                                      :    RELEASED 04/17/12
     Defendant-Appellee.              :
______________________________________________________________________
                            APPEARANCES:

J.R. Rose, Chillicothe, Ohio, pro se appellant.

Michael W. Sandner, Pickrel, Schaeffer & Ebeling Co., LPA, Dayton, Ohio, for appellee.
______________________________________________________________________
Harsha, J.

        {¶1}    J.R. Rose appeals the trial court’s judgment granting Wayne Cochran’s

motion to dismiss under Civ.R. 12(B)(6). Rose contends that the trial court erred by

dismissing his case because he alleged sufficient facts to support his claims of libel and

fraud. Because the trial court considered materials outside the complaint without

converting the motion to dismiss to one for summary judgment, the trial court erred by

dismissing the case.

                                             I. FACTS

        {¶2}    In 2007, J.R. Rose was convicted of the sale of unregistered securities,

perjury and forgery in the Butler County Court of Common Pleas and sentenced to 20

years in prison. As a result of his conviction, Rose was ordered to pay restitution to

several individuals, including Wayne Cochran. Subsequently, Rose consented to a
Ross App. No. 11CA3243                                                                     2

receivership at the request of the Ohio Department of Commerce and the receiver

sought to recover assets from Rose to satisfy the claims of the injured parties.

           {¶3}    In 2011, Rose filed a complaint in the Ross County Court of Common

Pleas asserting that Wayne Cochran is liable for insurance fraud, libel and slander,

unjust enrichment and fraud. This complaint contained the following allegations: In

2007, Cochran applied for an IRA rollover with National Western Insurance Company

(National Western) and the policy was subsequently issued. In 2008, National Western

presented Cochran with an annual statement of his account and soon after Cochran

sent a letter with false allegations to National Western. Cochran later sent another letter

“of intentional falsity” to National Western. Consequently, National Western reversed a

portion of Rose’s commissions based on Cochran’s “fraudulent declarations” and that

Cochran presented inflated losses of $22,410 to the Butler County Court of Common

Pleas, where “financial records confirm the proximate financial losses were only

$2,010.”

           {¶4}    Cochran responded by filing a motion to dismiss under Civ.R. 12(B)(6)

asserting that there is no factual or legal basis for Rose’s complaint. Cochran attached

nine exhibits in support of his motion to dismiss and in response Rose filed a

memorandum in opposition and attached four additional documents. Subsequent filings

by both parties followed. The trial court granted the motion to dismiss and noted that

under Civ.R. 12(D)(4) venue did not appear to be proper in Ross County, but because

neither party raised the issue it would not decide the matter.1 Rose then filed this

appeal challenging the trial court’s dismissal of his case.


1
    The trial court might revisit this issue on remand.
Ross App. No. 11CA3243                                                                        3

                             II. ASSIGNMENTS OF ERROR

       {¶5}   Rose presents four assignments of error for our review:

       {¶6}   1. “THE TRIAL COURT ALLOWED UNDATED AFFIDAVIT CONTRARY

TO OHIO CIVIL RULE 56.”

       {¶7}   2. “THE TRIAL COURT ERRED IN ALLOWING SCANDALOUS MATTER

PURSUANT TO OHIO CIVIL RULE 12(F).”

       {¶8}   3. “THE TRIAL COURT ABUSED ITS DISCRETION BY ASCERTAINING

THAT VENUE WAS IMPROPER PURSUANT TO OHIO CIVIL RULE 12(D)(4).”

       {¶9}   4. “THE TRIAL COURT ABUSED ITS DISCRETION IN DISMISSING

CLAIM FOR BLATANT FRAUD.”

                            III. 12(B)(6) MOTION TO DISMISS

       {¶10} In order to determine whether the trial court improperly granted the

motion, we must initially review the procedural requirements concerning Civ.R. 12(B)(6).

“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

Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992). And in order to

dismiss a complaint for failure to state a claim upon which relief can be granted under

Civ.R. 12(B)(6), it must appear beyond doubt that the plaintiff can prove no set of facts

warranting relief, after all factual allegations of the complaint are presumed true and all

reasonable inferences are made in plaintiff's favor. See State ex rel. Fuqua v.

Alexander, 79 Ohio St.3d 206, 207, 680 N.E.2d 985 (1997) (per curiam).

       {¶11} Civ.R. 12(B) states: “When a motion to dismiss for failure to state a claim

upon which relief can be granted presents matters outside the pleading and such
Ross App. No. 11CA3243                                                                       4

matters are not excluded by the court, the motion shall be treated as a motion for

summary judgment and disposed of as provided in Rule 56. Provided however, that the

court shall consider only such matters outside the pleadings as are specifically

enumerated in Rule 56. All parties shall be given reasonable opportunity to present all

materials made pertinent to such a motion by Rule 56.” “It is the court’s responsibility

either to disregard extraneous material or to convert a motion to dismiss into a motion

for summary judgment when additional materials are submitted.” Keller v. Columbus,

100 Ohio St.3d 192, 2003-Ohio-5599, 797 N.E.2d 964, ¶ 18. Moreover, “courts cannot

rely on evidence or allegations outside the complaint to determine a Civ.R. 12(B)(6)

motion.” Fuqua, supra, 79 Ohio St.3d at 207. It is error to do so. Id. Where a trial court

chooses to consider materials outside the pleadings, the court must convert the motion

to dismiss into a motion for summary judgment, notify all parties and give them a

reasonable opportunity to present all materials made pertinent to such a motion by Rule

56. Civ.R. 12(B); State ex rel. The V Cos. v. Marshall, 81 Ohio St.3d 467, 470, 692

N.E.2d 198 (1998).

       {¶12} Here, Cochran submitted nine exhibits, which contain evidence not

present in the complaint, along with his Civ.R. 12(B)(6) motion to dismiss. These

exhibits included information relating to Rose’s criminal convictions, appointment of a

receiver and preliminary injunction and information collected by the receiver regarding

the recovery and distribution of funds. In his response to the motion, Rose attached

documents including information about the amount of restitution paid and a “transaction

summary” of Cochran’s deposits and withdrawals. Because the parties submitted

additional evidence not contained in the allegations of the complaint, the trial court was
Ross App. No. 11CA3243                                                                      5

required by Civ.R. 12(B) to either exclude the evidence or convert the motion to dismiss

to a motion for summary judgment.

       {¶13} However, the trial court did neither. The trial court stated in its judgment

entry granting the motion to dismiss that it “has had the opportunity to review the file,

the pleadings, as well as motions made in this matter, and any responses to said

motions. * * * The court further finds [Cochran’s] motion to dismiss well-taken and is

therefore granted.” By considering additional evidence beyond that contained in the

complaint, the trial court erred. Its only other option was to convert the motion to

dismiss to a motion for summary judgment as required by Civ.R. 12(B). Accordingly, we

hold that the trial court improperly dismissed the case and reverse the trial court’s

judgment.

                                                                 JUDGMENT REVERSED
                                                                AND CAUSE REMANDED.
Ross App. No. 11CA3243                                                                     6

                                  JUDGMENT ENTRY

    It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS
REMANDED. Appellee shall pay the costs.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Ross
County Court of Common Pleas to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.
Kline, J. & McFarland, J.: Concur in Judgment and Opinion.



                                                For the Court


                                                BY: _________________________
                                                    William H. Harsha, Judge




                              NOTICE TO COUNSEL


       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
