[Cite as Easterling v. Hafer, 2012-Ohio-2101.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

WARREN EASTERLING                                   :
                                                    :     Appellate Case No. 24950
        Plaintiff-Appellant                         :
                                                    :     Trial Court Case No. 2011-CV-1813
v.                                                  :
                                                    :
WILLIAM HAFER                                       :     (Civil Appeal from
                                                    :     (Common Pleas Court)
        Defendant-Appellee                          :
                                                    :

                                                 ...........

                                                 OPINION

                               Rendered on the 11th day of May, 2012.

                                                 ...........

WARREN EASTERLING, 71 Arlington Avenue, Dayton, Ohio 45417
    Plaintiff-Appellant, pro se

MATHIAS H. HECK, JR., by JOHN A. CUMMING, Atty. Reg. #0018710, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Defendant-Appellee

                                             .............

HALL, J.

        {¶ 1}     Warren Easterling appeals pro se from the trial court’s entry of summary
                                                                                                2


judgment against him on the basis of res judicata.

       {¶ 2}     Easterling advances four assignments of error on appeal. First, he contends the

trial court erred in converting a motion to dismiss into a motion for summary judgment

without having allowed “the presentation of evidentiary materials” in a prior case. Second, he

alleges error based on the fact that the trial court judge in this case also presided over the prior

case. Third, he contends the trial court erred in finding that the only evidence he submitted in

this case related to the prior case. Fourth, he contends the trial court erred in entering summary

judgment in the present case based on res judicata.

       {¶ 3}     The record reflects that Easterling filed the present action against appellee,

William Hafer, a Montgomery County Common Pleas Court bailiff, on March 9, 2011. The

complaint includes several causes of action stemming from Hafer’s actions in another case,

Easterling v. Croswell Bus Lines, Montgomery C.P. No. 2009 CV 8648. A visiting judge was

assigned to hear the case. Hafer responded to the complaint with a Civ.R. 12(B)(6) motion to

dismiss, arguing inter alia that res judicata barred Easterling’s claims. After giving the parties

proper notice and an opportunity to submit evidentiary materials, the trial court converted

Hafer’s motion to a Civ.R. 56 motion for summary judgment. (Doc. #21).

        {¶ 4}    On December 5, 2011, the trial court entered final judgment in favor of Hafer,

finding that res judicata applied. It noted that Easterling previously had sued Hafer in 2010,

asserting claims stemming from Hafer’s participation in Easterling v. Croswell Bus Lines.

Easterling’s 2010 lawsuit against Hafer was dismissed pursuant to Civ.R. 12(B)(6) on the

basis of statutory immunity. See Easterling v. Hafer, Montgomery C.P. No. 2010 CV 2337.

An appeal in the 2010 case voluntarily was dismissed. See Easterling v. Hafer, 2d Dist.
                                                                                            3


Montgomery No. 24038. The trial court concluded that res judicata prevented Easterling from

suing Hafer again. It reasoned:

               The claims set forth in Easterling’s complaint in 2010 CV 2337 relate

       to Easterling’s prosecution of Case No. 2009 CV 8648. * * *

               The claims set forth in Easterling’s complaint in the present case again

       relate to his prosecution of Case No. 2009 CV 8648. * * *

               Hafer, in his motion to dismiss, claims that because the claims asserted

       by Easterling in both complaints arise out of identical facts and circumstances,

       that the court’s dismissal of the claims in 2010 CV 2337 bars the claims

       asserted by Easterling in the present case under the doctrine of res judicata.

                                              ***

               In the present matter, although the theories for recovery are different

       from the previous case, the parties are identical and the claims arise out of the

       identical transaction or set of circumstances as alleged in the prior action. The

       doctrine of claims preclusion bars Easterling from relitigating these matters. * *

       *

(Doc. #28 at 1-2).

       {¶ 5}    Easterling’s first assignment of error states:

        “THE TRIAL COURT JUDGE ERRED WHEN HE GRANTED A DISMISSAL

BASED UPON RULE 12B6 AND CONVERTED IT TO SUMMARY JUDGMENT UNDER

RULE 56 WITHOUT ALLOWING FOR THE PRESENTATION OF EVIDENTIARY

MATERIALS AS REQUIRED BY RULE 12(B7) IN CASE 2010 CV 2337.”
                                                                                            4


       {¶ 6}    In this assignment of error, Easterling challenges the Civ.R. 12(B)(6)

dismissal of the claims in his prior lawsuit against Hafer. He contends the trial court violated

“Civ.R. 12(B7)” in the 2010 case by converting a motion to dismiss into a motion for

summary judgment without allowing him to present evidence. He asserts that res judicata

cannot be invoked here because the 2010 judgment against him was erroneous. He also argues

that the trial court in the present case ignored his request to vacate the 2010 judgment.

       {¶ 7}    Upon review, we find the foregoing arguments to be unpersuasive. If

Easterling believes the trial court erred in the 2010 case, he should not have voluntarily

dismissed his appeal in that case. Despite Easterling’s complaints, the trial court’s 2010

judgment is not void and remains in effect. Hafer was found to be statutorily immune from the

claims Easterling alleged in that case. Easterling cannot challenge the correctness of that

decision in this case. Nor can he have the 2010 judgment vacated in this case. The proper

avenue to challenge the 2010 judgment was in the 2010 case. The first assignment of error is

overruled.

       {¶ 8}    Easterling’s second assignment of error states:

       “THE TRIAL COURT ERRED WHEN IT ASSIGNED CASE 2011 CV 01813 TO

THE SAME TRIAL COURT JUDGE WHO COMMITTED FRAUD AGAINST THE

PLAINTIFF BY IGNORING RULE 12(B7) IN CASE 2010 CV 2337.”

       {¶ 9}    Here Easterling complains about the same visiting trial court judge being

assigned to hear the present case and his 2010 case. He contends the judge committed fraud

against him in the 2010 case and should have been declared ineligible to preside over this

case. This argument lacks merit. As set forth above, the 2010 judgment remains valid, and
                                                                                            5


there has been no showing of fraud in that case. Moreover, we see no indication that

Easterling sought disqualification of the visiting judge. A court of appeals does not have

authority to rule on the disqualification of the trial judge or to void a judgment of the trial

court on that basis. Beer v. Griffith, 54 Ohio St.2d 440, 441–442, 377 N.E.2d 775 (1978). The

second assignment of error is overruled.

       {¶ 10} Easterling’s third assignment of error states:

       “THE [TRIAL] COURT IS LYING AND ATTEMPTING TO MAKE A MOCKERY

OF THE PLAINTIFF’S CASE WHEN IT STATED ‘THE PLAINTIFF SUBMITTED ONLY

EVIDENCE AND ARGUMENT PERTAINING TO THE DISMISSAL OF THE

UNDERLYING CASE FILED BY EASTERLING, CASE #2009 CV 8648.’”

       {¶ 11} In this assignment of error, Easterling contends the trial court erred in finding

that his opposition to summary judgment addressed only “the dismissal” of the 2009 case,

Easterling v. Croswell Bus Lines, which was the subject of Easterling’s 2010 lawsuit against

Hafer. We see no reversible error.

       {¶ 12} In opposing Hafer’s summary judgment motion in this case, Easterling

submitted the following evidence: (1) a computer print out of the docket summary in the 2009

case; (2) a copy of a trial court order in the 2009 case; (3) two affidavits from Easterling

addressing Hafer’s actions in the 2009 case; and (4) a photocopy of Civ.R. 12. (See Doc. #23).

       {¶ 13} With the possible exception of the photocopy, Easterling’s evidence and

argument opposing summary judgment in this case related to the 2009 case. Easterling is

technically correct that not all of that evidence pertained to “the dismissal” of the 2009 case,

as the trial court stated. Some of the evidence concerned Hafer’s actions in the 2009 case. The
                                                                                           6


trial court’s point, however, was that Easterling’s evidence ignored the res judicata issue and

repeated allegations against Hafer that he had pursued in his 2010 lawsuit. The third

assignment of error is overruled.

       {¶ 14} Easterling’s fourth assignment of error states:

       “THE TRIAL COURT JUDGE ERRED WHEN HE GRANTED A DISMISSAL

BASED UPON RES JUDICATA AND ISSUE PRECLUSION IN CASE 2011 CV 1813

WHEN THE COURT DEFRAUDED THE PLAINTIFF OF HIS RIGHTS UNDER RULE

12(B7) WHICH ALLOWED FOR THE COURT TO IMPROPERLY GRANT SUMMARY

JUDGMENT WHICH INSTITUTES RES JUDICATA AND ISSUE PRECLUSION

WITHOUT LITIGATING ANY ISSUES.”

       {¶ 15} In his last assignment of error, Easterling contends the trial court erred in

applying res judicata because the 2010 judgment “was not valid.” Easterling maintains that the

2010 judgment should not have been entered against him. Therefore, he asserts that there

should be no res judicata effect here. As set forth above, however, Easterling cannot challenge

the correctness of the trial court’s 2010 judgment in this action. Accordingly, his fourth

assignment of error is overruled.

       {¶ 16} The judgment of the Montgomery County Common Pleas Court is affirmed.

                                       .............

FAIN and FROELICH, JJ., concur.

Copies mailed to:

Warren Easterling
Mathias H. Heck
John A. Cumming
Hon. Sumner E. Walters, (Sitting for Steven K. Dankof)
