[Cite as Stratford Commons v. Raaber, 2011-Ohio-6084.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 96867



                            STRATFORD COMMONS
                                                 PLAINTIFF-APPELLANT

                                                   vs.


      JULIUS RAABER A.K.A. JULIU RAABER, ET AL.
                                                 DEFENDANTS-APPELLEES




                                 JUDGMENT:
                           REVERSED AND REMANDED


                                    Civil Appeal from the
                           Cuyahoga County Court of Common Pleas
                                    Case No. CV-740660

        BEFORE: Kilbane, A.J., Boyle, J., and Sweeney, J.

        RELEASED AND JOURNALIZED: November 23, 2011
ATTORNEYS FOR APPELLANT

Patrick M. Higgins
David G. Finley
Matthew Thomas
45 W. Prospect Avenue
Suite 1650-G
Cleveland, Ohio 44115

ATTORNEY FOR APPELLEES

Irving S. Bergrin
27600 Chagrin Blvd.
Suite 340
Cleveland, Ohio 44122




MARY EILEEN KILBANE, A.J.:

      {¶ 1} This is an accelerated appeal brought pursuant to App.R. 11.1 and

Loc.App.R. 11.1.

      {¶ 2} Plaintiff-appellant, Stratford Commons (Stratford), appeals the trial court’s

judgment dismissing its complaint against defendants-appellees. Finding merit to the

appeal, we reverse and remand.

      {¶ 3} In November 2010, Stratford filed a complaint against Julius Raaber a.k.a.

Juliu Raaber (Julius), Julius Raaber Trustee a.k.a. Juliu Raaber Trustee, Margaret Raaber

Trustee a.k.a. Margareta Raaber trustee, George Raaber, George Raaber Trustee
(George), and Andreea Raaber Trustee (collectively referred to as defendants), which

involves a judgment Stratford obtained against George Raaber in 2008.

       {¶ 4} In June 2008, Stratford filed Case No. CV-661095 against George for the

breach of a promissory note executed by George on December 19, 2007, in favor of

Stratford, to guarantee payment for the nursing home care of his father, Julius Raaber.

Stratford obtained a default judgment against George in the amount of $46,756.81.

       {¶ 5} Stratford’s 2010 complaint against the defendants is the subject of this

appeal and asserts three causes of action. The first cause of action alleges that Julius

owes Stratford $41,640.81 from a promissory note dated December 19, 2007.                   The

second cause of action alleges that Julius Raaber Trustee or Margaret Raaber Trustee

improperly transferred Julius’s assets into a trust in order to avoid Stratford’s claims.

The third cause of action alleges that George Raaber Trustee or Andreea Raaber Trustee

improperly transferred George’s assets into a trust in order to avoid Stratford’s claims.

       {¶ 6} In response to Stratford’s complaint, defendants filed a motion to dismiss,

arguing that Stratford’s 2010 lawsuit is barred by res judicata.        In support of their

motion, defendants attached copies of Stratford’s 2008 lawsuit, the nursing facility

agreement between Stratford and Julius, Julius’s account statement, and the promissory

note between Stratford and George. Defendants argued that Stratford’s 2008 and 2010

lawsuits involve the same promissory note and that Stratford is attempting to pursue

liability upon parties who were not joined in the 2008 lawsuit. Defendants argued that
these parties should have been joined in the 2008 lawsuit.            Stratford opposed the

defendants’ motion, and the trial court set a hearing in May 2011.

       {¶ 7} Following the hearing on defendants’ motion, the court dismissed

Stratford’s lawsuit, finding that Stratford has “received a valid judgment on the note that

is the subject of this action. This matter is considered res judicata. [Stratford] believes

property held in trust is subject to collection however, a lawsuit naming trustees of trust

that holds subject property is not a proper vehicle for their attempt to collect.”

       {¶ 8} Stratford now appeals, raising the following assignment of error for review.

       ASSIGNMENT OF ERROR ONE

       “The trial court committed reversible error by granting the motion to
       dismiss the complaint against George Raaber, George Raaber Trustee,
       Andreea Raaber Trustee and Margaret Raaber Trustee.”

       {¶ 9} Stratford argues that the trial court erred when it dismissed its complaint

because res judicata and collateral estoppel do not bar its claims.           We agree with

Stratford that the trial court improperly dismissed its complaint, albeit for different

reasons.

       {¶ 10} Here, the defendants did not file an answer to Stratford’s complaint.

Instead, they filed a motion to dismiss based on the affirmative defense of res judicata and

attached to the motion copies of Stratford’s 2008 lawsuit, the nursing facility agreement

between Stratford and Julius, Julius’s account statement, and the promissory note between

Stratford and George.1 The Ohio Supreme Court has found that res judicata is not a


       1We   note that defendants did not specify in their motion to dismiss one of the
defense that can be raised by a motion to dismiss pursuant to Civ.R. 12(B) because that

defense must be proved with evidence outside the pleadings. State ex rel. Freeman v.

Morris (1991), 62 Ohio St.3d 107, 579 N.E.2d 702; Shaper v. Tracy, 73 Ohio St.3d

1211, 1995-Ohio-37, 654 N.E.2d 1268.

      {¶ 11} In Freeman, the defendant did not file an answer to the complaint, but filed

a motion to dismiss with attachments to establish res judicata. The Freeman court noted

that the lower court converted defendant’s motion to dismiss into a motion for summary

judgment when it based its decision on matters outside the pleadings — the attachments

to the motion to dismiss. Id. at 109. The court noted that “[i]n such a case, Civ.R.

12(B) requires that the court consider ‘only such matters outside the pleadings as are

specifically enumerated in Rule 56.’ Civ.R. 56(C) enumerates ‘pleading[s], depositions,

answers to interrogatories, written admissions, affidavits, transcripts of evidence in the

pending case, and written stipulations of fact.’ The complaints and judgment entries,

submitted without affidavit, are none of these.” Id. Thus, the Freeman court concluded

that the lower court improperly converted the Civ.R. 12(B) motion into a summary

judgment motion. Id. The court went on to explain that “Civ.R. 8(C) designates res

judicata an affirmative defense. Civ.R. 12(B) enumerates defenses that may be raised by

motion and does not mention res judicata. Accordingly, we hold that the defense of res




grounds set forth in Civ.R. 12(B)(1)-(6). However, based on their allegations, it
appears that their motion was filed pursuant to Civ.R. 12(B)(6) for failure to state a
claim.
judicata may not be raised by motion to dismiss under Civ.R. 12(B).” Id., citing Johnson

v. Linder (1984), 14 Ohio App.3d 412, 471 N.E.2d 815.

       {¶ 12} Moreover, in Ardary v. Stepien, Cuyahoga App. No. 82950, 2004-Ohio-630

and Powell v. Wal-Mart Stores, Inc., Cuyahoga App. No. 93707, 2010-Ohio-5233, this

court has found that res judicata is not a defense that can be raised by a motion to dismiss

under Civ.R. 12(B) because that defense must be proved with evidence outside the

pleadings.

       {¶ 13} In the instant case, the trial court based its decision on matters outside the

pleadings without properly converting the motion to dismiss into a motion for summary

judgment.    As the Freeman court stated, “Civ.R. 56(C) enumerates ‘pleading[s],

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

evidence in the pending case, and written stipulations of fact.’” Id. at 109. The copies

of Stratford’s 2008 lawsuit, the nursing facility agreement between Stratford and Julius,

Julius’s account statement with Stratford, and a promissory note between George and

Stratford, submitted without an affidavit, were none of these. See Freeman at 109;

Ardary at ¶19. Thus, defendants’ motion to dismiss was not proper for conversion into a

motion for summary judgment. See Ardary at ¶19, citing Freeman.

       {¶ 14} Furthermore, if the trial court “converts a motion to dismiss into a motion

for summary judgment, the trial court must give notice to the parties and reasonable

opportunity to present Civ.R. 56 evidence.” Ardary at ¶20, citing City Mgmt. Sys. v.

Blakely, Summit App. No. 21162, 2003-Ohio-524. Here, the record reveals that the trial
court did not give the parties any such notice, nor does the record otherwise indicate that

the trial court converted the motion to dismiss into a motion for summary judgment.

Accordingly, the trial court erred in granting defendants’ motion to dismiss on the

grounds that Stratford’s claim was barred by res judicata.

       {¶ 15} Thus, the sole assignment of error is sustained.

       {¶ 16} Judgment is reversed and remanded for further proceedings consistent with

this opinion.

       It is ordered that appellant recover from appellees 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.




MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

MARY J. BOYLE, J., and
JAMES J. SWEENEY, J., CONCUR
