[Cite as FRC Project, L.L.C. v. Canepa Media Solutions, Inc., 2013-Ohio-259.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 97845


                                 FRC PROJECT, L.L.C.
                                                           PLAINTIFF-APPELLANT

                                                     vs.

            CANEPA MEDIA SOLUTIONS, INC., ET AL.
                                                           DEFENDANTS-APPELLEES



                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-763900


        BEFORE:          Celebrezze, J., Boyle, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                           January 31, 2013
ATTORNEY FOR APPELLANT

Orville E. Stifel, II
5310 Franklin Boulevard
P.O. Box 602780
Cleveland, Ohio 44102


ATTORNEY FOR APPELLEES

Daniel Thiel
75 Public Square
Suite 650
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

      {¶1} Plaintiff-appellant, FRC Project, L.L.C. (“FRC”), appeals the dismissal of

its declaratory judgment action seeking to enjoin the enforcement efforts by Canepa

Media Solutions, Inc. (“Canepa”) for a judgment Canepa obtained against a third party.

FRC argues that its complaint adequately stated a claim for relief and that the trial court

erred in dismissing it based on Civ.R. 12(B)(6). After a thorough review of the record

and law, we affirm.

                            I. Factual and Procedural History

      {¶2} Canepa filed an action in Rocky River Municipal Court that resulted in a

judgment against Peneventures, Inc. (“Peneventures”) for $15,000. Penny Dixon is the

corporation’s sole officer and shareholder. In July 2011, just short of two years after

obtaining this judgment, Canepa transferred it to the Cuyahoga County Common Pleas

Court and obtained a writ of execution directing the sheriff to levy upon and seize all

property located at 19102 Old River Road in Rocky River, Ohio. This was the business

location of Peneventures, now being operated by FRC. FRC asserts that it is the owner

of all property and inventory at this location. FRC is an Ohio limited liability company

formed in 2004, and its sole member is Debra Dixon, Penny Dixon’s daughter. FRC also

obtained a license to use the “Pen-E-Ventures” trade name from Peneventures. FRC was

notified of the writ of execution by Canepa and asserted that the property Canepa was

attempting to seize was not owned by Peneventures. FRC informed Canepa’s attorney,
Daniel Thiel, that Canepa had no judgment against FRC and that any seizure of its

property would be illegal. According to FRC, Thiel indicated the writ of execution would

still be carried out.

       {¶3} Rather than filing a motion to quash the writ or availing itself of statutory

provisions for the protection of property of third parties wrongly seized by the sheriff, on

September 8, 2011, FRC filed a complaint seeking declaratory judgment, damages, and

injunctive relief against Attorney Thiel and Canepa. The action alleged attempted trespass

and conversion as well as civil rights actions under 42 U.S.C. 1983 and 1988. It sought

an injunction, compensatory and punitive damages, and attorney fees.1 Canepa filed a

motion to dismiss for failure to state a claim on September 28, 2011. We note that as a

result of FRC’s declaratory complaint, Canepa filed a separate action in the Cuyahoga

County Common Pleas Court alleging fraudulent transfer of assets against Peneventures

and FRC. The writ of execution was returned by the sheriff unfulfilled, and Canepa filed

a second motion to dismiss FRC’s declaratory judgment action as moot.

       {¶4} On December 20, 2011, the trial court granted Canepa’s first motion to

dismiss, finding:

       There is no basis in law or equity to award the relief sought against
       defendant Daniel Thiel, Esq., who is alleged to have acted solely in his
       capacity as attorney for defendant Canepa Media Solutions Inc.
       Furthermore, Plaintiff’s allegations of “threatened” trespass and conversion
       do not state a claim for trespass and conversion; and there is neither state
       action nor a state actor against whom an action under 42 U.S.C. 1983 and

         42 U.S.C. 1988 allows a successful plaintiff asserting a cause of action under 42 U.S.C.
       1


1983 and other similar sections to recover attorney fees.
      1988 can lie. Finally, to the extent that a claim for declaratory relief is
      deemed to have been raised, the court dismisses such claim: “[D]eclaratory
      judgment is inappropriate when, as in the instant matter, a resolution of the
      controversy depends greatly upon a determination of the facts of the case *
      * * especially when the same facts are at issue in a pending action.”
      Therapy Partners of Am., Inc. v. Health Providers, Inc., 129 Ohio App.3d
      572, 578 (1998); accord Baker v. Miller, 33 Ohio App.2d 248, 249 (1972),
      quoting Smith v. Civil Service Comm., 158 Ohio St. 401, 402 (“‘Where the
      resolution of the controversy involved in an action for declaratory judgment
      depends largely on a determination of facts * * * the trial court, in the
      exercise of sound discretion, may either entertain or not entertain such an
      action.’”). * * * Furthermore, plaintiff is not a “prevailing party” for
      purposes of attorneys’ fees.

      {¶5} FRC then timely appealed the dismissal to this court assigning two errors:

      I. The trial court erred in dismissing this case for failure to state a claim
      upon which relief can be granted, [where] the complaint alleged good
      causes of action under both state and federal law.

      II. The trial court erred in dismissing FRC’s complaint with prejudice.

                                  II. Law and Analysis

                                  A. Motion To Dismiss

      {¶6} FRC’s action was dismissed for failure to state a claim on which relief could

be granted pursuant to Civ.R. 12(B)(6). A motion to dismiss for failure to state a claim

on 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, 1992-Ohio-73,

605 N.E.2d 378. It is well settled that “when a party files a motion to dismiss for failure

to state a claim, all factual allegations of the complaint must be taken as true and all

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

57 Ohio St.3d 56, 60, 565 N.E.2d 584 (1991).
       {¶7} While the factual allegations of the complaint are taken as true,

“[u]nsupported conclusions of a complaint are not considered admitted * * * and are not

sufficient to withstand a motion to dismiss.” State ex rel. Hickman v. Capots, 45 Ohio

St.3d 324, 544 N.E.2d 639 (1989). In light of these guidelines, in order for a court to

grant a motion to dismiss for failure to state a claim, it must appear “beyond doubt that

the plaintiff can prove no set of facts in support of his claim which would entitle him to

relief.”   O’Brien v. Univ. Community Tenants Union, 42 Ohio St.2d 242, 245, 327

N.E.2d 753 (1975).

       {¶8} Normally, because factual allegations in the complaint are presumed true,

only the legal issues are presented, and an entry of dismissal on the pleadings will be

reviewed de novo. Hunt v. Marksman Prods., 101 Ohio App.3d 760, 762, 656 N.E.2d

726 (9th Dist.1995). A de novo standard of review affords no deference to the trial

court’s decision, and we independently review the record. Gilchrist v. Gonsor, 8th Dist.

No. 88609, 2007-Ohio-3903, ¶16. However, Ohio’s declaratory judgment statutes give

the trial court discretion to reject a plea for declaratory relief where a ruling “would not

terminate the uncertainty or controversy giving rise to the action.” R.C. 2721.07.

       {¶9} A proper claim for declaratory judgment must set forth sufficient facts to

show “(1) a real controversy between the parties; (2) a controversy which is justiciable in

character; and (3) a situation in which speedy relief is necessary to preserve the rights of

the parties.” Peat Marwick Main & Co. v. Elliott, 10th Dist. No. 90AP-921, 1991 Ohio

App. LEXIS 101, *4-5 (Jan. 10, 1991), citing Burger Brewing Co. v. Liquor Control
Comm., 34 Ohio St.2d 93, 97, 296 N.E.2d 261 (1973); Buckeye Quality Care Ctrs., Inc. v.

Fletcher, 48 Ohio App.3d 150, 154, 548 N.E.2d 973 (10th Dist.1988). However,

       there are only two reasons for dismissing a complaint for declaratory
       judgment pursuant to Civ.R. 12(B)(6): (1) where there is no real
       controversy or justiciable issue between the parties, or (2) where the
       declaratory judgment will not terminate the uncertainty or controversy,
       under R.C. 2721.07.

Fioresi v. State Farm Mut. Auto. Ins. Co., 26 Ohio App.3d 203, 499 N.E.2d 5 (1st

Dist.1985), syllabus.   If neither is satisfied, then “the court is required to issue a

judgment declaring the rights or legal relations, or both, of the parties, and the court errs

when it dismisses the complaint for failure to state a claim under Civ.R. 12(B)(6).” Id.

       {¶10} Turning to FRC’s complaint, the trial court ruled that FRC failed to

demonstrate why attorney Thiel could be sued individually. “‘An attorney is immune

from liability to third persons arising from his performance as an attorney in good faith on

behalf of, and with the knowledge of his client, unless such third person is in privity with

the client or the attorney acts maliciously.’” Petrey v. Simon, 19 Ohio App.3d 285,

287-288, 484 N.E.2d 257 (1st Dist.1984), quoting Scholler v. Scholler, 10 Ohio St.3d 98,

462 N.E.2d 158 (1984), paragraph one of the syllabus. Malicious conduct has been

defined in the governmental immunity context as the “‘willful and intentional design to

do injury, or the intention or desire to harm another, usually seriously, through conduct

which is unlawful or unjustified.’” Hicks v. Leffler, 119 Ohio App.3d 424, 428-429, 695

N.E.2d 777 (10th Dist.1997), quoting Jackson v. Butler Cty. Bd. of Cty. Commrs., 76

Ohio App.3d 448, 453-454, 602 N.E.2d 363 (12th Dist.1991).
       {¶11} Here, attorney Thiel filed a writ of judgment with the common pleas court

attempting to enforce his client’s rights seeking the attachment of property belonging to

Peneventures. FRC’s complaint fails to allege any malicious actions that would expose

Thiel to suit individually. Thiel was attempting to satisfy a validly obtained judgment by

causing a writ of execution to be issued on the former business location of the judgment

debtor where the same business appeared to be operating and to seize property belonging

to Peneventures only. Therefore, the trial court did not err in granting Thiel’s motion to

dismiss.

       {¶12} The trial court also dismissed FRC’s 42 U.S.C. 1983 claim. This action

was premised on the use of the courts and the local sheriff to enforce a judgment.

       {¶13} In order “‘[t]o state a claim for relief in an action brought under [Section]

1983, respondents must establish that they were deprived of a right secured by the

Constitution or laws of the United States, and that the alleged deprivation was committed

under color of state law.’”     Grybosky v. Ohio Civ. Rights Comm., 11th Dist. No.

2010-A-0047, 2011-Ohio-6843, ¶ 36, quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526

U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999).

       {¶14} Here, there has been no deprivation of any right. Therefore, there can be no

successful Section 1983 action. There has been no action, by the state or otherwise.

While a writ had been issued to the sheriff’s office and execution proceedings were

imminent, that does not give rise to a Section 1983 action, which requires such a

deprivation in order to succeed. Likewise, there has been no trespass or conversion. As
the trial court recognized, there is no justiciable claim for threatened trespass or

threatened conversion.

        {¶15} In terms of the injunction FRC also seeks, “[t]he party seeking a permanent

injunction must demonstrate by clear and convincing evidence that they are entitled to

relief under applicable statutory law, that an injunction is necessary to prevent irreparable

harm, and that no adequate remedy at law exists.” Acacia on the Green Condominium

Assn. v. Gottlieb, 8th Dist. No. 92145, 2009-Ohio-4878, ¶ 18, citing Proctor & Gamble

Co. v. Stoneham, 140 Ohio App.3d 260, 268, 747 N.E.2d 268 (1st Dist.2000).2 That is

not the case here.

        {¶16} FRC possessed adequate, alternate means of protecting its rights. It could

have filed a motion to intervene and quash the writ of execution. It could have also

availed itself of the provisions of R.C. 2329.84. FRC now argues that similar statutes

have been held unconstitutional and it should not be required to rely on this

unconstitutional remedy. However, no controlling case has held that R.C. 2329.84 is

unconstitutional. In fact, both the Ohio Supreme Court and a federal district court for

Ohio have examined the statute and found it constitutional. Ryan v. Carter, 67 Ohio

St.3d       568,   1993-Ohio-168,     621    N.E.2d     399;    Planned     Parenthood       of   the

Columbia/Willamette, Inc. v. Am. Coalition of Life Activists, S.D. Ohio No.

2:05-MC-0002, 2006 U.S. Dist. LEXIS 74894 (Oct. 16, 2006). FRC cites to case law


         Also, “in the exercise of its discretion, the court may refuse a declaratory judgment when it
        2


deems that rights may be fully protected through other available remedies.” Schaefer v. First Natl.
Bank, 134 Ohio St. 511, 518, 18 N.E.2d 263 (1938).
dealing with prejudgment attachment statutes, but these cases are not applicable here.

This is not a prejudgment attachment situation, but, according to FRC’s complaint, an

attachment of property that may belong to a third party according to a valid judgment.

The attachment statute contemplates that occurrence and provides a remedy. FRC could

also move to quash the writ prior to any attachment. FRC has various alternative and

adequate remedies making the argument that injunctive relief is necessary all the weaker.

          {¶17} Further, the trial court may decline to entertain a declaratory judgment

action where a ruling “would not terminate the uncertainty or controversy giving rise to

the action.”      R.C. 2721.07.   At oral arguments, FRC indicated that the declaratory

judgment action in this case relates to the constitutionality of R.C. 2329.84, even though

that statute is not found in its complaint. The constitutionality of R.C. 2329.84 is not

determinative in this case because FRC has additional remedies at law cited above.

Therefore, the trial court did not err when it declined to address this issue, even if such

arguments were contained in FRC’s complaint.

          {¶18}   The trial court did not err in dismissing FRC’s declaratory judgment

action.

                                  B. Dismissal with Prejudice

          {¶19} FRC next argues that the trial court erred when it dismissed the action with

prejudice. “[A] ruling on a Civ.R. 12(B)(6) motion can be an adjudication of the merits

of the claim.”        Hutcheson v. Ohio Auto. Dealers Assn., 8th Dist. No. 97394,
2012-Ohio-3685, ¶ 19, citing Civ.R. 41(B). Civ.R. 41(B) provides a limited category of

involuntary dismissals that are otherwise than on the merits.

       {¶20} Civ.R. 41(B)(3) provides that a dismissal under Civ.R. 41(B) and any

dismissal not provided for in Civ.R. 41, except as set forth in Civ.R. 41(B)(4), lack of

subject matter jurisdiction or failure to join a party, operates as an adjudication on the

merits unless the court, in its order for dismissal, otherwise specifies.

       A dismissal under Civ.R. 12(B)(6) for failure to state a claim is a dismissal
       under Civ.R. 41(B)(1) for failure to comply with the civil rules.
       Customized Solutions, Inc. [v. Yurchyk & Davis, CPA’s, Inc., 7th Dist. No.
       03 MA 38], 2003-Ohio-4881 at ¶ 23. Therefore, a dismissal under Civ.R.
       12(B)(6) operates as an adjudication on the merits and properly results in a
       dismissal with prejudice. See Reasoner v. City of Columbus, 10th Dist.
       No. 04AP-800, 2005-Ohio-468, ¶ 8-10; Collins v. Natl. City Bank, 2nd Dist.
       No. 19884, 2003-Ohio-6893, ¶ 51; Cairns v. Ohio Sav. Bank, 109 Ohio
       App.3d 644, 650, 672 N.E.2d 1058 (8th Dist.1996); Birgel v. Bd. of
       Commrs., 12th Dist. No. CA94-02-042, 1995 Ohio App. LEXIS 160, *4
       (Jan. 23, 1995); Mayrides v. Franklin Cty. Prosecutor’s Office, 71 Ohio
       App.3d 381, 594 N.E.2d 48 (10th Dist.1991); City of Euclid v. Weir, 10th
       Dist. No. 77AP-958, 1978 Ohio App. LEXIS 10727, *4 (June 27, 1978).
       Yet, even if a dismissal under Civ.R. 12(B)(6) were not a dismissal under
       Civ.R. 41(B)(1), “it would at least fall under Civ.R. 41(B)(3)’s catch-all
       provision, ‘and any dismissal not provided for in this rule.’” Customized
       Solutions, Inc., at ¶ 23.

Grippi v. Cantagallo, 11th Dist. No. 2011-A-0054, 2012-Ohio-5589, ¶ 13-14.

Accordingly, the trial court did not err and abuse its discretion by dismissing FRC’s

action with prejudice.

                                      III. Conclusion

       {¶21} FRC’s declaratory judgment action was properly dismissed by the trial court

where causes of action had not arisen and injunctive relief was not appropriate because
adequate alternative remedies existed to fully protect FRC’s rights.            Further, that

dismissal was appropriately with prejudice, according to Civ.R. 41(B).

      {¶22} Judgment affirmed.

      It is ordered that appellees recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said 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.



FRANK D. CELEBREZZE, JR., JUDGE

MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR
