[Cite as Finn v. James A. Rhodes State College, 191 Ohio App.3d 634, 2010-Ohio-6265.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




FINN,

        APPELLANT,                                                CASE NO. 1-10-47

        v.

JAMES A. RHODES
STATE COLLEGE,                                                    OPINION

        APPELLEE.




                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CV2009 1385

                      Judgment Reversed and Cause Remanded

                         Date of Decision:        December 20, 2010




APPEARANCES:

        Drew R. Massi, for appellant.

        Reid T. Caryer, for appellee.
Case No. 1-10-47


        WILLAMOWSKI, Presiding Judge.

        {¶ 1} Plaintiff-appellant, Lisa R. Finn, appeals the judgment of the Allen

County Court of Common Pleas granting summary judgment in favor of

defendant-appellee, James A. Rhodes State College, finding that Finn failed to

point to any admissible summary-judgment evidence that would create a genuine

issue of material fact. On appeal, Finn contends that the trial court erred in

deciding that her claim was barred by Ohio’s sovereign-immunity statute and res

judicata. For the reasons set forth below, the judgment is reversed and the cause is

remanded.

        {¶ 2} In December 2009, Finn filed a complaint alleging a third-party-

beneficiary breach-of-contract case against James A. Rhodes State College,

formerly known as Lima Technical College, claiming that the college breached its

promise to provide liability-insurance coverage to her and fellow students. The

claim was made after Finn (f.k.a. Lisa R. Fleming) sustained an injury on April 12,

1995, when she was enrolled in the college’s physical-therapy program and was

participating in a Therapeutic Procedures II laboratory class. Finn was injured

when a fellow student, under the supervision of the college’s instructors, was

practicing physical-therapy maneuvers on Finn and dislocated her knee. Finn

claimed that she sustained further injuries when her instructor tried to reset the

knee.



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        {¶ 3} On April 4, 1997, Finn filed a lawsuit against the student and against

the college for negligence. See Fleming v. Sheets, Allen County case No. CV97

04 0253. The college tendered its defense of the lawsuit to its insurance company,

Continental Insurance Company, in accordance with the policy’s notice

provisions. On May 26, 1998, the trial court granted summary judgment in favor

of the college, finding that the college was a political subdivision and was entitled

to sovereign immunity pursuant to R.C. 2744.02(A). Finn voluntarily dismissed

her lawsuit against the student.

        {¶ 4} On March 27, 2000, Finn refiled the lawsuit against the student,

although the case was stayed shortly thereafter when the student filed for

bankruptcy.1 On February 2, 2005, the lawsuit was reactivated, but the student did

not participate in the litigation or attempt to defend herself. The court granted

Finn’s unopposed motion for summary judgment as to liability and awarded

damages in the amount of $288,392.99. Fleming v. Sheets, Allen County case No.

CV00 03 0215 (Mar. 5, 2007 judgment entry). However, the trial court granted

judgment only to the extent that liability insurance was available to defend and

indemnify the student because her personal collectability for the liability had been

discharged in bankruptcy. Id. (Jan. 8, 2007 judgment entry).




1
 Continental was not put on notice of the refiling at that time, nor was Continental asked to provide an
answer in the student’s defense.


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        {¶ 5} Finn then filed a supplemental complaint against Continental

claiming that Continental was liable for the judgment that Finn had obtained

against the student.2         The trial court granted summary judgment in favor of

Continental, finding that Finn and the other student were not insureds under the

college’s insurance policy and that the policy was not intended to extend coverage

to students who injured fellow students in classroom exercises. Id. (Sept. 9, 2009

judgment entry, p. 4-5).

        {¶ 6} On December 29, 2009, Finn filed a complaint against the college in

the case before us now, alleging that the college had breached its agreement to

provide liability insurance covering students while they were participating in

physical-therapy laboratory exercises.                As Exhibit 1 to the complaint, Finn

attached a one-page copy of a document discussing the topics of “Clinical

Application Coursework” and “Insurance.” The “Insurance” section stated:

               Liability insurance is provided through Lima Technical
        College. This insurance will cover working with fellow students in
        the laboratory as subjects and with actual patients in the clinic.

Finn claimed that she was a third-party beneficiary of this agreement between the

college and the student who caused her injury and, therefore, she was damaged in


2
  Finn believed that coverage existed under the Continental policy because it provided coverage for
“volunteers and students when working on behalf of the named insured [the college].” After finding that
the Continental policy did not provide insurance, the trial court stated that if Finn wished to use the
“Clinical Application Coursework” sheet (Exhibit 1 in this case) as evidence that insurance coverage was
provided for students participating in classroom exercises, “a claim should rest against the party [with]
which they had direct privity, in this case, Lima Technical College.” (CV00 03 0215, Sept. 9, 2009
judgment entry, p. 6.) Finn did not appeal that decision; she filed the instant action against the college.


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the amount of $288,392.99 by the college’s failure to satisfy liability claims

arising out of laboratory work between the students.

       {¶ 7} The college filed a Civ.R. 12(B)(6) motion to dismiss (in lieu of an

answer), stating that Finn’s complaint failed to state a claim upon which relief

could be granted because she had not alleged any exception to the college’s

sovereign immunity pursuant to R.C. 2744.02(B)(1) through (5) and because her

claim was barred by res judicata based upon the previous lawsuits. The college

maintained (1) that Finn was relitigating the matter by bringing “the identical

claims for damages she brought twice before” and (2) that it was undisputed that

the college was “entitled to tort liability immunity.” The college also filed a

motion requesting a stay of discovery.

       {¶ 8} The parties filed several additional responsive motions (Finn’s

response to the motion to dismiss, the college’s reply, Finn’s surreply, and the

college’s reply to Finn’s surreply) prior to the trial court’s decision. The trial

court concluded that the bar of res judicata could not be raised in a motion to

dismiss because it would require the trial court to consider matters outside the

pleadings. As a result, the trial court converted the college’s motion to dismiss

into a motion for summary judgment and allowed the parties an additional 30 days

in which “to file additional evidentiary material * * *, to request an extension, if

needed, under Civ.R. 56(F) and in which to request an oral hearing.”



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        {¶ 9} On June 2, 2010, the college filed a supplemental memorandum

along with affidavits3 from its controller/assistant treasurer and its vice president

for business, testifying that the college had obtained general commercial insurance

coverage but that the coverage did not extend to student-on-student injuries

sustained during classroom activities. They further testified that although Finn

and her classmate who caused the injury were students at the college, they were

not volunteers or employees of the college so as to bring them within the policy’s

coverage. The affidavit of the vice president of business who had purchased the

insurance policy in effect during 1995 testified that “[a]t the time the College

purchased this insurance policy, it was understood that the policy would not

extend coverage to students of the college who injured fellow students while

participating in classroom exercises.”

        {¶ 10} Finn filed a memorandum of supplemental authority on June 9,

2010, setting forth her arguments against summary judgment with attachments

consisting of (1) a copy of the September 9, 2009 judgment entry in Fleming v.

Sheets, Allen County case No. CV00 03 0215, (2) a copy of the memorandum in

opposition to Continental’s motion for summary judgment that was apparently

submitted by Finn in case No. CV00 03 0215, and (3) a copy of the

unauthenticated Exhibit 1 that was attached to her complaint (see above).

3
  Finn’s attorney claims, and has attached an affidavit attesting, that he never received a copy of the
college’s supplemental authority with attached affidavits until after the trial court’s decision granting
summary judgment.


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      {¶ 11} After considering the parties’ briefs and evidence, the trial court

concluded that the college had demonstrated that it was entitled to summary

judgment and that Finn had not introduced any admissible Civ.R. 56 evidence in

response to the motion. The trial court granted summary judgment in favor of the

college on June 22, 2010, finding that the college had produced evidence that it

had not intended to provide insurance coverage to students of the college for

student-on-student injuries sustained during classroom activities and that Finn had

failed to produce evidence that created a genuine issue regarding that fact. Finn

timely appeals this decision, raising the following three assignments of error for

our review.

                            First Assignment of Error

              The trial court erred in granting the summary judgment
      motion of [the college] on the basis that the College did not provide
      liability coverage to [Finn] and fellow students; there was no
      evidence produced that [the college] did not promise to provide such
      coverage.



                           Second Assignment of Error

             The trial court erred in granting the summary judgment
      motion of [the college] on the basis that [Finn] produced no evidence
      that her claim fit within an exception to O.R.C. 2744.02(A), Ohio’s
      tort sovereign immunity statute; there was no evidence produced that
      her action was not a contract action as pled, exempted by O.R.C.
      2744.09 from sovereign immunity.

                            Third Assignment of Error


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             The trial court erred in granting the summary judgment
      motion of [the college] because once it converted this motion to
      dismiss into a motion for summary judgment, it did not require [the
      college] to delineate with specificity the basis upon which summary
      judgment was sought so as to allow [Finn] a meaningful opportunity
      to respond.

      {¶ 12} Appellate courts review decisions on summary judgment de novo,

viewing the facts as most favorable to the nonmoving party and resolving any

doubt in favor of that party. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d

102, 105, 671 N.E.2d 241. Because it is a procedural device that terminates

litigation, summary judgment must be awarded with caution. Ormet Primary

Aluminum Corp. v. Employers Ins. of Wausau (2000), 88 Ohio St.3d 292, 725

N.E.2d 646.

      {¶ 13} Summary judgment is appropriate when (1) there is no genuine issue

of material fact, (2) the moving party is entitled to judgment as a matter of law,

and (3) reasonable minds can come to but one conclusion and that conclusion is

adverse to the nonmoving party. Horton v. Harwick Chem. Corp. (1995), 73 Ohio

St.3d 679, 686-687, 653 N.E.2d 1196.

      {¶ 14} The party moving for summary judgment has the initial burden of

producing some evidence that demonstrates the lack of a genuine issue of material

fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. Civ.R.

56(C) provides that summary judgment is appropriate only if the “pleadings,



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depositions, answers to interrogatories, written admissions, affidavits, transcripts

of evidence, and written stipulations of fact, if any, timely filed in the action,”

show there to be no genuine issue of material fact.         No evidence may be

considered in connection with a motion for summary judgment “except as stated in

this rule.” Id. It is well settled that the moving party bears both (1) the initial

responsibility of informing the trial court of the basis for the motion and (2) the

responsibility to identify those portions of the record before the trial court that

demonstrate the absence of a genuine issue of fact on a material element of the

nonmoving party's claim. Todd Dev. Co., Inc. v. Morgan, 116 Ohio St.3d 461,

2008-Ohio-87, 880 N.E.2d 88, ¶12, citing Dresher. If the moving party fails to

satisfy its initial burden, the motion for summary judgment must be denied.

Dresher at 293-294.

       {¶ 15} Once the moving party discharges its initial burden, summary

judgment is appropriate if the nonmoving party does not respond, by affidavit or

as otherwise provided in Civ.R. 56, with specific facts showing that a genuine

issue exists for trial. Dresher at 293; Vahila v. Hall, 77 Ohio St.3d 421, 430, 674

N.E.2d 1164; Civ.R. 56(E). In responding, the nonmoving party may not simply

rest upon the claims or allegations contained in the party's pleadings or briefs.

Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶10; Civ.R.

56(E). When the nonmoving party fails to make a sufficient showing on an



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essential element of the case with respect to which it has the burden of proof,

summary judgment is appropriate. Celotex Corp. v. Catrett (1986), 477 U.S. 317,

324, 106 S.Ct. 2548, 91 L.Ed.2d 265.

         {¶ 16} In reviewing the briefs and evidence on the motion for summary

judgment, the trial court found that the college had pointed to evidence that it had

previously been determined that Finn and the student who caused the injury were

not insureds under the Continental policy, and that the college had supported that

assertion with affidavits from college officers. The trial court also found that Finn

had failed to point to any admissible Civ.R. 56(C) evidence in response because

the documentation that Finn had provided was not authenticated or verified in any

way and had no evidentiary value.4 The trial court further found that Finn failed to

demonstrate any exception under R.C. 2744.02 that would remove the college’s

blanket of tort immunity that that had already been established. Therefore, the

trial court determined that the college was entitled to summary judgment because

Finn had failed to meet her burden to point to evidence creating a genuine issue of

fact.




4
  Finn’s “Exhibit 1” to her pleadings and summary-judgment briefs is an unauthenticated and unverified
copy of a document purporting to contain the college’s promise to provide liability insurance for students.
Although Finn claims that this undated and unsigned document constitutes a contract, there is no verified
explanation as to its identity and purpose, who created it, whether the person providing the document was
authorized to act on behalf of the college, whether it was a part of a handbook, syllabus, or something else,
what the other parts of the document stated, whether there was any reasonable reliance upon this document,
or even whether it was applicable to the time period when Finn was injured.


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       {¶ 17} Finn, however, argues that the obligation to provide summary-

judgment evidence on the issues on which she would bear the burden of

production at trial never shifted to her. Finn contends that the college did not meet

its initial burden of pointing to evidence demonstrating the absence of a genuine

issue of material fact as to the actual issues that were set forth in her complaint and

that were before the trial court. We will address that assertion in the context of her

assignments of error.

       {¶ 18} In her first assignment of error, Finn maintains that the trial court

erred in considering the college’s evidence that it did not provide liability

coverage to students as a basis for denying her claim. Finn argues that the issue

was not whether or not the college had actually provided the insurance, but

whether the college had promised to provide insurance. Finn acknowledged that

the college did not provide insurance and stated so in her complaint. Therefore,

Finn claims that evidence that the college did not provide insurance was irrelevant

and was not sufficient to shift the burden to Finn to produce any admissible

evidence.

       {¶ 19} We agree with Finn. Even the trial court acknowledged that the

summary-judgment evidence the college produced pertained to the existence of

insurance coverage under the Continental policy. That fact was not an issue in

contention in this case. The issue Finn raised was whether or not the college had



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made a commitment to provide insurance. The college did not produce or point to

any evidence by way of affidavit or deposition testimony or as a result of any of

the decisions in previous cases wherein the college ever denied that it had

represented that liability insurance covering students working with students in

laboratories would be provided.

       {¶ 20} The college argues that “Finn failed to produce evidence to show

that she had a contract with Rhodes to provide liability insurance coverage.”

However, the burden never shifted to Finn to produce such evidence because the

college never produced any evidence challenging the existence or validity of the

agreement that she claims the college made with its students. There are two

completely different contracts at issue in this case: (1) the college’s insurance

policy with Continental and (2) the alleged contract or agreement between the

college and its physical-therapy students stating that it would provide liability

insurance. The college repeatedly argued and provided evidence concerning the

first insurance policy but never addressed the main issue in this case, i.e., the

existence and validity of the second contract. Evidentiary materials regarding the

coverage of the Continental insurance policy have no bearing on the issue before

the trial court in the current case.

       {¶ 21} The college is not entitled to summary judgment based on Finn’s

failure to provide appropriate evidence of the college’s promise to provide



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insurance when the college failed its initial burden to provide any evidence

challenging that particular agreement.         Finn’s first assignment of error is

sustained.

       {¶ 22} However, the college could still be entitled to summary judgment

based upon its contention that it had sovereign immunity.             Finn’s second

assignment of error alleges that the trial court erred in finding that Finn had failed

to present any evidence demonstrating that the college, as a political subdivision,

was not entitled to tort immunity under R.C. 2744.02(A). Finn argues that her

cause of action was properly pleaded in contract, not in tort. Therefore, she

asserts that sovereign immunity was not relevant, pursuant to R.C. 2744.09(A),

and that the previous judgments finding that the college had tort sovereign

immunity for negligence claims did not act as a bar to her present cause of action.

       {¶ 23} The Political Subdivision Tort Liability Act, codified in R.C.

Chapter 2744, governs political-subdivision immunity from civil liability. Perkins

v. Norwood City Schools (1999), 85 Ohio St.3d 191, 192, 707 N.E.2d 868. R.C.

2744.02(A) generally provides that a political subdivision is immune from tort

liability for damages in a civil action for losses allegedly caused by an act or

omission of the subdivision or its employees in connection with a governmental or

proprietary function, subject to certain exceptions enumerated in R.C. 2744.02(B)




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Case No. 1-10-47


that act as defenses to that immunity. Hubbard v. Canton City School Bd. of Edn.,

97 Ohio St.3d 451, 2002-Ohio-6718, 780 N.E.2d 543, ¶10-13.

       {¶ 24} In Finn’s previous lawsuit against the college, the Allen County

Court of Common Pleas determined that the college was a political subdivision,

that it was engaged in a governmental or proprietary function, and that Finn had

not alleged any facts that would indicate an exception to its statutory immunity

under R.C. 2744.02(A) or (B). Case No. CV97 04 0253. Therefore, res judicata

would be applicable to these findings. Finn, however, contends that R.C. 2744.09,

listing actions and claims excepted from the provisions of the chapter, is

applicable in this case. That statute states: “This chapter does not apply to, and

shall not be construed to apply to, the following: (A) Civil actions that seek to

recover damages from a political subdivision or any of its employees for

contractual liability ***.” (Emphasis added.) R.C. 2744.09.

       {¶ 25} The college claims Finn has failed to produce any evidence that

“contractual liability” existed here.    Again, the college is misconstruing the

burdens. Finn’s complaint sounds in contract, and she is alleging a breach-of-

contract claim against the college. It is the college that has failed to point to any

evidence that this was really a tort claim barred by the college’s sovereign

immunity or that no contract existed that would bring her claim under the

exceptions in R.C. 2744.09. Until then, Finn was not required to provide any



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additional evidence. The burden never shifted to Finn to “strip [the college] of its

tort immunity” because Finn was not challenging its tort immunity. There was no

question that it was previously established. Therefore, she was not required to

present any exceptions to the college’s tort immunity under R.C. 2744.02, because

she was pleading a case in contract that was outside of and excepted from the

provisions of the Political Subdivision Tort Liability Act.

        {¶ 26} The college still contends that res judicata should preclude Finn’s

cause of action in this case because she failed to raise this issue as a challenge to

the trial court’s finding of the college’s sovereign immunity in the previous 1997

case.    The bar of res judicata is not limited to only those subsequent actions

involving the same legal theory of recovery as a previous action; it 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. (1995), 73 Ohio St.3d 379, 653 N.E.2d 226, syllabus.

        {¶ 27} However, the facts and claims in the 1997 case did not involve

contract, so Finn would not have had any reason to assert the applicability of R.C.

2744.09 at that time. Finn maintains that the two cases do not involve a common

nucleus of operative facts that would have required her to bring this breach-of-

contract action in her previous negligence claim. The operative facts in that claim




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were outlined by the trial court in its decision in case No. CV97 04 0253 and

simply state:

       [Finn] was participating in a class exercise where she avers that her
       partner and defendant, [a fellow student], negligently performed a
       knee extension and as a result, dislocated her right knee. Angie
       Heaton was the instructor in the class. The instructor attempted to
       reset her knee. [Finn’s] claim stems from these facts.

Furthermore, Finn asserts that she could not have raised the issue at that time

because she did not learn that the college had not provided liability insurance until

much later.

       {¶ 28} While it might be possible that facts exist that could raise the

affirmative defenses of res judicata or sovereign immunity, we do not find that

they are in evidence in the record as it has been developed up to this in time. The

college has failed to point to any such facts applicable to the specific contract

claim in this case. Based upon the reasons stated above, Finn’s second assignment

of error is sustained.

       {¶ 29} Our disposition of the first two assignments of error renders Finn’s

third assignment of error moot. Therefore, we need not address it.

       {¶ 30} Having found error prejudicial to the appellant herein in the

particulars assigned and argued, we reverse the judgment of the trial court and

remand the cause for further proceedings consistent with this opinion.

                                                                 Judgment reversed
                                                               and cause remanded.


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       ROGERS and PRESTON, J.J., concur.
                             __________________

       ROGERS, J., concurring separately.

       {¶ 31} Although I concur in the majority’s decision to reverse and remand

the matter, I concur separately because I would reverse the matter on the basis that

the issues of whether the college was entitled to sovereign immunity or whether

Finn’s claim was barred by res judicata were not properly before the court for

determination. As I have previously expressed in my separate concurrence in

Miller v. Van Wert Cty. Bd. of Mental Retardation & Dev. Disabilities, 3d Dist.

No. 15-08-11, 2009-Ohio-5082, I believe it is important to distinguish between a

proper Civ.R. 12(B)(6) motion to dismiss and a ruling on sovereign immunity or

res judicata, which I believe must always be asserted in a responsive pleading as

an affirmative defense.

       {¶ 32} Civ.R. 12(B) governs motions to dismiss and provides:

               Every defense, in law or fact, to a claim for relief in any
       pleading, whether a claim, counterclaim, cross-claim, or third-party
       claim, shall be asserted in the responsive pleading thereto if one is
       required, except that the following defenses may at the option of the
       pleader be made by motion: (1) lack of jurisdiction over the subject
       matter, (2) lack of jurisdiction over the person, (3) improper venue,
       (4) insufficiency of process, (5) insufficiency of service of process,
       (6) failure to state a claim upon which relief can be granted, (7)
       failure to join a party under Rule 19 or Rule 19.1.




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       {¶ 33} Additionally, Civ.R. 8(C) governs the pleading of affirmative

defenses and provides:

       In pleading to a preceding pleading, a party shall set forth
       affirmatively accord and satisfaction, arbitration and award,
       assumption of risk, contributory negligence, discharge in
       bankruptcy, duress, estoppel, failure of consideration, want of
       consideration for a negotiable instrument, fraud, illegality, injury by
       fellow servant, laches, license, payment, release, res judicata, statute
       of frauds, statute of limitations, waiver, and any other matter
       constituting an avoidance or affirmative defense.

(Emphasis added.) The clear, unambiguous, and unequivocal requirement of this

language is that any affirmative defense, such as res judicata, and any defense that

constitutes an avoidance of liability, such as sovereign immunity, must be

specifically pleaded as an affirmative defense.         If it is not properly and

affirmatively set forth in a responsive pleading, the defense is waived.

       {¶ 34} I further note that the Supreme Court of Ohio has defined an

affirmative defense as

       a new matter which, assuming the complaint to be true, constitutes a
       defense to it * * * [and] “any defensive matter in the nature of a
       confession and avoidance. It admits that the plaintiff has a claim (the
       ‘confession’) but asserts some legal reason why the plaintiff cannot
       have any recovery on that claim (the ‘avoidance’).” (Footnote
       omitted.) 1 Klein, Browne & Mortaugh, Baldwin’s Ohio Civil
       Practice (1988) 33, T 13.03.

State ex rel. Plain Dealer Publishing Co. v. Cleveland (1996), 75 Ohio St.3d 31,

33.   Logically, because the affirmative defense includes the confession, it is

incompatible with the Civ.R. 12(B)(6) defense of failure to state a claim. In fact,


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it admits that the plaintiff has stated a claim and may be successful on that claim

should the opposing party fail to properly plead the affirmative defense. A motion

to dismiss pursuant to Civ.R. 12(B)(6) is, therefore, irreconcilable with the

confession included in an affirmative defense.

       {¶ 35} Like the court in Miller, I believe, the trial court and the majority in

this court have ignored the distinction between the “failure to state a claim upon

which relief can be granted” and matters “constituting an avoidance or affirmative

defense.” See Civ.R. 12(B)(6) and 8(C). In the former, no set of facts proven by

the claimant will give rise to a proper claim for relief. In the latter, the plaintiff’s

allegations will give rise to a claim for relief and liability unless the opposing

party can demonstrate some statute or other defense that neutralizes or nullifies the

responsibility of that party. See Davis v. Cincinnati (1991), 81 Ohio App.3d 116,

119, quoting Black’s Law Dictionary (5th Ed.1979) 55. This is a substantial

difference. Further, the proper methods of presenting these issues are separate and

distinct.

       {¶ 36} Civ.R. 12(B) specifically provides that certain enumerated defenses

may be raised in a motion prior to the filing of a responsive pleading. However,

there is no such provision allowing for an affirmative defense to be raised by

motion. In fact, Civ.R. 8(C) specifically requires that an affirmative defense must

be “set forth affirmatively,” and if it is not affirmatively raised in the pleading, it is



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waived. Jim’s Steak House, Inc. v. Cleveland (1998), 81 Ohio St.3d 18 (holding

that “[a]ffirmative defenses other than those listed in Civ.R. 12(B) are waived if

not raised in the pleadings or in an amendment to the pleadings”).

       {¶ 37} The Supreme Court of Ohio has also held that matters designated by

Civ.R. 8(C) as affirmative defenses and not specifically enumerated in Civ.R.

12(B) may not be raised by a motion to dismiss under Civ.R. 12(B). State ex rel.

Freeman v. Morris (1991), 62 Ohio St.3d 107, 109. See also Stutes v. Harris, 2d

Dist. No. 21753, 2007-Ohio-5163, ¶10-12, 18-19; Post v. Caycedo, 9th Dist. No.

23769, 2008-Ohio-111, ¶7; Marok v. Ohio State Univ., 10th Dist. No. 07AP-921,

2008-Ohio-3170, ¶13. Furthermore, an affirmative defense may not be raised for

the first time in a motion for summary judgment. Eulrich v. Weaver Bros. Inc.,

165 Ohio App.3d 313, 2005-Ohio-5891, ¶12, citing Carmen v. Link (1997), 119

Ohio App.3d 244, 250. See also Kritzwiser v. Bonetzky, 3d Dist. No. 8-07-24,

2008-Ohio-4952, ¶25; Midstate Educators Credit Union, Inc. v. Werner, 175 Ohio

App.3d 288, 2008-Ohio-641, ¶11.

       {¶ 38} I acknowledge that reported cases exist in which other courts have

ignored this distinction and state that an affirmative defense may be the subject of

a motion under Civ.R. 12(B)(6) when the circumstances are fully contained in a

complaint. See Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839. However,

statutes and other relevant circumstances are seldom contained in a complaint.



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Obviously, if the trial court may consider only the pleadings when ruling on a

Civ.R. 12(B)(6) motion to dismiss made prior to the filing of an answer, it does

not have before it any affirmative defense. Civ.R. 7(A) defines pleadings, and

includes only complaints and answers (and a reply if ordered). A motion is not

included in that definition.

       {¶ 39} “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. (1992), 65 Ohio St.3d 545, 548. In

order for a trial court to grant a motion to dismiss for failure to state a claim upon

which relief can be granted, “it must appear beyond doubt from the complaint that

the plaintiff can prove no set of facts entitling him to recovery.” O’Brien v. Univ.

Community Tenants Union (1975), 42 Ohio St.2d 242, syllabus. In resolving a

Civ.R. 12(B)(6) motion to dismiss, the trial court may consider only the statements

and facts contained in the pleadings and may not consider or rely on evidence

outside the complaint. Estate of Sherman v. Millhon (1995), 104 Ohio App.3d

614, 617.

       {¶ 40} Finally, I would point out that Ohio requires only notice pleading.

Plaintiffs are not required to anticipate all possible defenses, let alone affirmative

defenses. Consequently, plaintiffs are not required to include in the complaint all

circumstances that might negate potential affirmative defenses or to suffer waiver



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by failure to plead them. For the trial court to consider a Civ.R. 12(B)(6) motion

to dismiss on the basis of an alleged affirmative defense that has not been included

in a responsive pleading, and to which a plaintiff has not had the opportunity to

respond, is improper and highly prejudicial to a plaintiff.

       {¶ 41} Here, the trial court considered two affirmative defenses, sovereign

immunity and res judicata, which were not asserted in any responsive pleading but

were instead asserted in a Civ.R. 12(B)(6) motion that the trial court converted

into a motion for summary judgment. I understand that the result in the trial court

might be the same had the affirmative defense been properly pleaded and argued;

however, that does not negate the fact that the Rules of Civil Procedure

specifically prohibit the procedure followed in this case, or the fact that a ruling on

an affirmative defense was not ripe for consideration. I reiterate my position that

we should not enforce rules only when it is convenient, but that we must enforce

rules and statutes consistently, and as written. If we do not, the law becomes

amorphous and dependent upon the whims, passions, and prejudices of the trial

judge or the reviewing court.




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