[Cite as Nationside Mtge.., L.L.C. v. Young, 2016-Ohio-8287.]


STATE OF OHIO                     )                        IN THE COURT OF APPEALS
                                  )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

NATIONSTAR MORTGAGE LLC                                    C.A. No.   28134

        Appellant

        v.                                                 APPEAL FROM JUDGMENT
                                                           ENTERED IN THE
CHARLES YOUNG, et al.                                      COURT OF COMMON PLEAS
                                                           COUNTY OF SUMMIT, OHIO
        Appellees                                          CASE No.   CV 2013 07 3563

                                 DECISION AND JOURNAL ENTRY

Dated: December 21, 2016



        WHITMORE, Judge.

        {¶1}     Plaintiff-Appellant, Nationstar Mortgage, LLC (“Nationstar”), appeals from the

judgment of the Summit County Court of Common Pleas, granting summary judgment in favor

of Defendant-Appellees, Charles and Gertraud Young (“the Youngs”). This Court reverses.

                                                      I

        {¶2}     In early 2003, Stephanie Young received the deed to certain real property on

Topflite Drive in Akron (“the Property”). She executed a note and mortgage in favor of Lehman

Brothers Bank, FSB (“Lehman Brothers”) the following year and subsequently defaulted on the

note. Lehman Brothers then assigned her note to Aurora Loan Services, LLC (“Aurora”), and

Aurora filed a foreclosure action against Young in federal court.

        {¶3}     Twelve days before Aurora filed its foreclosure action against her, Young

executed a $57,000 mortgage in favor of her parents, the Youngs. The mortgage was secured by

the Property and indicated that it would be paid upon the sale of the Property. Nevertheless,
                                                2


Aurora never included the Youngs as parties in the foreclosure action. On April 30, 2007, the

federal court entered a judgment and decree of foreclosure in favor of Aurora for the Property

and ordered the property sold by a Master Commissioner.

       {¶4}    Within ten days of the court’s judgment of foreclosure, Young filed a petition for

Chapter 13 bankruptcy such that an automatic stay of the proceedings occurred.             In her

bankruptcy petition, Young included her parents and the $57,000 mortgage in their favor on her

schedule of creditors holding secured claims against her. Her petition resulted in the court

confirming a Chapter 13 plan that required her to make monthly payments, but she ultimately

failed to make the required payments.

       {¶5}    On November 8, 2011, Aurora moved for relief from the bankruptcy stay due to

Young’s default on her scheduled payments. In its motion for relief, Aurora specifically noted

that it believed the Youngs had an interest in the Property; specifically, “a lien in the

approximate amount of $57,000.00 as set forth in [Young’s] Schedule D.” Nevertheless, after

the trial court lifted the stay, Aurora did not seek to join the Youngs in the foreclosure action.

Instead, it purchased the Property at public auction and then assigned its successful bid to

Nationstar.   The federal court confirmed the sale and, on January 23, 2013, a Master

Commissioner’s Deed to the Property was recorded in favor of Nationstar.

       {¶6}    Several months after it acquired its deed, Nationstar filed the current action

against the Youngs to quiet title to the Property and establish its fee simple ownership.

Nationstar indicated that Aurora had “inadvertently failed” to include the Youngs in the

foreclosure action because their mortgage lien “was not detected at the outset of the foreclosure

action.” The Youngs responded to the complaint by filing a pro se answer, but later secured
                                                   3


counsel and filed an amended answer. Both parties then moved for summary judgment and filed

briefs in opposition to their competing motions.

       {¶7}    It was the Youngs’ position that res judicata barred Nationstar from contesting the

validity of their mortgage because their mortgage was recognized as a secured claim in their

daughter’s bankruptcy case and Aurora never challenged it. Meanwhile, Nationstar argued that

the Youngs’ mortgage was invalid, that res judicata was an affirmative defense that could not be

raised for the first time in a motion for summary judgment, and that, in any event, their res

judicata argument failed on its merits.

       {¶8}    The trial court determined that the Youngs had a valid mortgage, as established in

the bankruptcy proceedings, and that res judicata barred Nationstar from contesting the validity

of their mortgage.     Accordingly, it entered summary judgment in favor of the Youngs.

Nationstar then appealed from the court’s judgment. On appeal, Nationstar argued that the trial

court erred by ruling in favor of the Youngs on the basis of res judicata because they had failed

to properly assert res judicata as an affirmative defense in their answer. See Nationstar Mtg.,

L.L.C. v. Young, 9th Dist. Summit No. 27499, 2015-Ohio-3868, ¶ 4-8. This Court determined,

however, that it was unclear from the trial court’s entry “whether it decided that the Youngs

could assert the affirmative defense of res judicata because they had properly pled it in their

answer * * * or because it could be raised for the first time in a motion for summary judgment *

* *.” Id. at ¶ 6, citing Jim’s Steak House, Inc. v. Cleveland, 81 Ohio St.3d 18 (1998) and State ex

rel. Freeman v. Morris, 62 Ohio St.3d 107 (1991). Because that portion of the court’s decision

was critical to our review, we reversed its judgment and remanded the matter for further

consideration. Young at ¶ 6-7.
                                                4


       {¶9}    On remand, the trial court declined to decide whether or not the Youngs had

properly pled res judicata in their answer. Instead, it determined that they could raise the

affirmative defense of res judicata for the first time in their motion for summary judgment. The

court once again entered summary judgment in favor of the Youngs on the basis of res judicata.

       {¶10} Nationstar now appeals from the trial court’s judgment and raises two

assignments of error for our review.

                                                II

                                Assignment of Error Number One

       THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT
       TO THE YOUNGS BASED UPON AN AFFIRMATIVE DEFENSE (RES
       JUDICATA) THAT THE YOUNGS DID NOT PLEAD OR MOVE TO PLEAD.

       {¶11} In its first assignment of error, Nationstar argues that the court erred by awarding

the Youngs summary judgment on the basis of res judicata because res judicata cannot be raised

for the first time in a motion for summary judgment.             Under the particular facts and

circumstances of this case, we agree.

       {¶12} As this Court noted in the earlier appeal in this matter, “[r]es judicata is an

affirmative defense,” and the Civil Rules require it “to be pleaded in an answer.” Young, 2015-

Ohio-3868, at ¶ 5, citing Civ.R. 8(C). In State ex rel. Freeman v. Morris, the Ohio Supreme

Court considered whether a respondent in a mandamus proceeding could raise res judicata in a

motion to dismiss rather than a responsive pleading. 62 Ohio St.3d at 108-109. There, the

respondent filed a motion to dismiss on the basis of res judicata and attached to his motion

various court filings, allegedly evidencing that the matter had been previously litigated. The

Supreme Court noted that Civ.R. 12 did not include res judicata as a defense that may, at the

option of the pleader, be asserted in a motion rather than in a responsive pleading. Id. at 109. It
                                                  5


further noted that, under Civ.R. 12, courts may not consider materials outside the pleadings

without converting a motion to dismiss to a motion for summary judgment. Id. Accordingly, the

Court held that “the defense of res judicata may not be raised by motion to dismiss under Civ.R.

12(B).” Id. In doing so, it favorably cited a Third District case for the proposition that res

judicata “could be raised by motion for summary judgment.” Id. This Court later relied upon

that statement to conclude that a defendant may raise res judicata in a motion for summary

judgment and, therefore, does not waive the defense by failing to assert it in a responsive

pleading. Francis v. Diewald, 9th Dist. Lorain No. 95CA006264, 1996 WL 255885, *2 (May

15, 1996), citing State ex rel. Freeman at 109.

       {¶13} Several years after the issuance of State ex rel. Freeman and Francis, the

Supreme Court decided Jim’s Steak House, Inc. v. Cleveland. The Jim’s Steak House case began

when a business brought suit against Cleveland for damages the business allegedly sustained

after an extended bridge closure. Jim’s Steak House, Inc., 81 Ohio St.3d at 19. The business’

first suit resulted in a dismissal for failure to state a claim, but it later filed another complaint

against Cleveland based on the bridge closure. Cleveland unsuccessfully moved to dismiss the

complaint before filing an answer in which it asserted res judicata. Id. Subsequently, the

business filed an amended complaint, and Cleveland responded by filing two more motions to

dismiss, in the second of which it argued res judicata. Cleveland never filed an answer to the

amended complaint, and the trial court ultimately denied its motions to dismiss. After a jury

found against Cleveland, the matter was appealed until it reached the Supreme Court. Id. at 20.

       {¶14} In a plurality decision, the Supreme Court held that Cleveland had waived the

affirmative defense of res judicata. Id. at 20-21. The plurality determined that “[a]ffirmative

defenses other tha[n] those listed in Civ.R. 12(B) are waived if not raised in the pleadings or in
                                                 6


an amendment to the pleadings.” Id. at 20. It further noted, citing State ex rel. Freeman, that

“the defense of res judicata may not be raised by a motion to dismiss under Civ.R. 12(B).” Id. at

21, citing State ex rel. Freeman at 109. Because Cleveland had failed to raise res judicata as an

affirmative defense in an answer to the amended complaint, the plurality concluded that

Cleveland had waived its res judicata argument. Jim’s Steak House, Inc. at 20-21.

         {¶15} Since the issuance of Jim’s Steak House, a majority of the Supreme Court has

cited the case on two occasions for the proposition that affirmative defenses are waived if not

properly asserted in a responsive pleading. See State ex rel. Adkins v. Shanahan, 132 Ohio St.3d

519, 2012-Ohio-3833, ¶ 2; State ex rel. Deiter v. McGuire, 119 Ohio St.3d 384, 2008-Ohio-

4536, ¶ 28. Meanwhile, the Supreme Court has repeatedly cited State ex rel. Freeman for two

propositions: (1) that res judicata is not the proper subject of a motion to dismiss, and (2) that

courts may not rely upon evidence outside a complaint when granting a motion to dismiss. See,

e.g., Jefferson v. Bunting, 140 Ohio St.3d 62, 2014-Ohio-3074, ¶ 10; State ex rel. The V Cos. v.

Marshall, 81 Ohio St.3d 467, 473-474 (1998); State ex rel. Boggs v. Springfield Local Sch. Dist.

Bd. of Edn., 72 Ohio St.3d 94, 97 (1995).

         {¶16} The Youngs filed two answers in this matter, but neither expressly included res

judicata as an affirmative defense.1 Instead, the Youngs set forth res judicata as an argument in

support of their motion for summary judgment. Even after Nationstar argued that the Youngs

had waived the affirmative defense of res judicata by failing to assert it in a responsive pleading,

the Youngs never filed a motion for leave to amend their answer. On appeal, they maintain that




1
    The Youngs set forth waiver and estoppel as affirmative defenses in their amended answer.
                                                 7


State ex rel. Freeman controls in this matter, and that a defendant may raise res judicata in a

motion for summary judgment without having raised it in a responsive pleading.

        {¶17} Since the Supreme Court decided Jim’s Steak House, several of our sister districts

have addressed the issue of whether a defendant may raise the affirmative defense of res judicata

for the first time in a motion for summary judgment. Certain districts have concluded that it is

permissible to do so and that Jim’s Steak House never addressed that specific issue. E.g.,

Hillman v. Edwards, 10th Dist. Franklin No. 10AP-950, 2011-Ohio-2677, ¶ 12-19; E.B.P., Inc. v.

623 W. St. Clair Ave., L.L.C., 8th Dist. Cuyahoga No. 93587, 2010-Ohio-4005, ¶ 22-35;

Internatl. EPDM Rubber Roofing Sys., Inc. v. GRE Ins. Group, 6th Dist. Lucas No. L-00-1293,

2001 WL 477251, *3-5 (May 4, 2001). Others, relying on Jim’s Steak House, have reached the

opposite conclusion. E.g., Deutsche Bank v. Smith, 1st Dist. Hamilton No. C-140514, 2015-

Ohio-2961, ¶ 15. See also Brown v. Vaniman, 2d Dist. Montgomery No. 17503, 1999 WL

957721, *4 (Aug. 20, 1999) (“[R]es judicata is not grounds for dismissal pursuant to Civ.R.

12(B)(6). * * * Instead, the more appropriate method for raising the defense of res judicata is by

way of a motion for summary judgment after an answer is filed.”). With regard to the former

category, the Sixth, Eighth, and Tenth Districts have all found support for their positions in State

ex rel. Freeman, wherein the Supreme Court favorably cited the Third District case of Johnson v.

Linder. Hillman at ¶ 15-17; E.B.P., Inc. at ¶ 25-29; Internatl. EPDM Rubber Roofing Sys., Inc.

at *4. For several reasons, we depart from the reasoning of the Sixth, Eighth, and Tenth

Districts.

        {¶18} First, the specific issue addressed in State ex rel. Freeman was whether the

affirmative defense of res judicata is the proper subject of a motion to dismiss under Civ.R.

12(B). State ex rel. Freeman, 62 Ohio St.3d at 108-109. In answering no to that question, the
                                                8


Supreme Court emphasized that the rule only allows certain defenses to be made by motion

rather than by responsive pleading. Id. at 109, citing Civ.R. 12(B). The Court cited Johnson v.

Linder, 14 Ohio App.3d 412 (3d Dist.1984), for the proposition that “the defense of res judicata

may not be raised by motion to dismiss under Civ.R. 12(B).” Id. at 109. It then noted that it

concurred with the Third District’s conclusion that “res judicata could be raised by motion for

summary judgment.” Id. It did not indicate, however, that res judicata could be raised by a

motion for summary judgment without (1) first raising it in a responsive pleading, or (2)

amending a previously filed responsive pleading to include it as an affirmative defense. The

Court merely agreed that a motion for summary judgment, rather than a motion to dismiss, is the

more appropriate vehicle to argue res judicata.         Its agreement with that proposition is

unsurprising, given that a trial court may not consider evidentiary materials outside a complaint

in ruling on a motion to dismiss. We are not convinced, however, that the Court intended its

citation to Johnson v. Linder to resolve the issue of whether affirmative defenses are preserved if

raised for the first time in a motion for summary judgment.

       {¶19} Second, while Jim’s Steak House favorably cited State ex rel. Freeman, it went

beyond the holding in that case and did not include any citation to Johnson v. Linder. Much like

the defendant in State ex rel. Freeman, the defendant in Jim’s Steak House raised res judicata in

a motion to dismiss rather than a responsive pleading and/or motion for summary judgment. See

Jim’s Steak House, Inc., 81 Ohio St.3d at 19-20. The plurality, however, did not dispose of the

case simply by citing the holding in State ex rel. Freeman. Instead, the plurality held that the

defendant had waived res judicata as an affirmative defense because “[a]ffirmative defenses

other tha[n] those listed in Civ.R. 12(B) are waived if not raised in the pleadings or in an

amendment to the pleadings.” (Emphasis added.) Id. at 20, citing Civ.R. 8 and Civ.R. 15. The
                                               9


plurality then cited State ex rel. Freeman to note that the defendant could not have properly

raised res judicata in a motion to dismiss under Civ.R. 12(B). Id. at 21. Jim’s Steak House is

devoid of any discussion regarding summary judgment motions as proper vehicles for the

assertion of res judicata or other affirmative defenses. Moreover, while Jim’s Steak House was a

plurality decision, a majority of the Supreme Court has since relied upon it for the proposition

that affirmative defenses are waived if not properly asserted in a responsive pleading. See State

ex rel. Adkins, 132 Ohio St.3d 519, 2012-Ohio-3833, at ¶ 2; State ex rel. Deiter, 119 Ohio St.3d

384, 2008-Ohio-4536, at ¶ 28.

       {¶20} Third, in Johnson v. Linder, the Third District only offered limited support for its

decision to assume for purposes of its analysis that res judicata could be raised by a motion for

summary judgment. It wrote that it was engaging in that assumption because

       in 4 Anderson’s Ohio Civil Practice 417, 419, Answer and Reply, Section 153.09,
       it is stated: “* * * [I]n Ohio prior to the Civil Rules, the courts permitted the
       disposition of actions involving * * * res judicata by summary judgment * * *.”
       (Footnote omitted.)

Johnson, 14 Ohio App.3d at 414. Yet, the 2010 edition of Anderson’s Ohio Civil Rules Practice

reads as follows:

       The better practice is for the affirmative defense of res judicata to be raised by
       answer and then by summary judgment motion, rather than by a motion to dismiss
       for failure to state a claim upon which relief can be granted.

       Defendant waived under Civil Rule 12(H) its opportunity to raise res judicata as
       an affirmative defense when it failed to file an answer to plaintiff’s amended
       complaint. Affirmative defenses other than those listed in Civil Rule 12(B) are
       waived if not raised in the pleadings or in an amendment to the pleadings or in an
       amendment to the pleadings. Filing a motion is not appropriate.

(Footnotes omitted.) McCormac and Solimine, Anderson’s Ohio Civil Rules Practice, Answers

and Replies, Section 7.34, at 7-19 (2010). For the foregoing proposition, Anderson’s cites to

Jim’s Steak House. Id. at fn. 89.
                                                 10


       {¶21} Fourth, numerous districts, including the Eighth and Tenth Districts, have held

that affirmative defenses other than res judicata cannot be raised for the first time in a motion for

summary judgment. See, e.g., Shury v. Greenaway, 8th Dist. Cuyahoga No. 100344, 2014-Ohio-

1629, ¶ 18-23; Wemer v. Walker, 5th Dist. Knox No. 12CA17, 2013-Ohio-2005, ¶ 8-9; Amare v.

Chellena Food Express, Inc., 10th Dist. Franklin No. 08AP-678, 2009-Ohio-147, ¶ 18-19;

Johnson v. Waterloo Coal Co., 184 Ohio App.3d 607, 2009-Ohio-5318, ¶ 8-10 (4th Dist.);

Eulrich v. Weaver Bros., Inc., 165 Ohio App.3d 313, 2005-Ohio-5891, ¶ 12-14 (3d Dist.). We

see no reason to apply a different rule when the affirmative defense at issue is res judicata.

Civ.R. 8(C) applies with equal force to all of the affirmative defenses listed therein. If other

affirmative defenses cannot be raised for the first time in a motion for summary judgment, it

likewise follows that the affirmative defense of res judicata cannot be raised in that manner.

       {¶22} In responding to the Youngs’ motion for summary judgment, Nationstar

specifically argued that the Youngs had waived the affirmative defense of res judicata. Compare

Business Data Sys., Inc. v. Gourmet Cafe Corp., 9th Dist. Summit No. 23808, 2008-Ohio-409, ¶

14-15 (plaintiff, by responding to defendant’s res judicata argument on its merits, impliedly

consented to defendant’s improper assertion of the defense and forfeited its opportunity to argue

waiver). Nevertheless, the Youngs did not file a motion for leave to amend their answer so as to

include res judicata as an affirmative defense. Compare Radio Parts Co. v. Invacare Corp., 178

Ohio App.3d 198, 2008-Ohio-4777, ¶ 12-14 (9th Dist.) (defendant did not waive affirmative

defense by asserting it for the first time in a motion for summary judgment where, following the

motion, the defendant obtained leave to amend its answer to properly assert the defense).

Moreover, the trial court never indicated that it was allowing the Youngs to amend their answer.
                                                 11


The court concluded that the Youngs had preserved their res judicata defense by asserting it in

their summary judgment motion.

       {¶23} We acknowledge that, in Francis v. Diewald, we held that a defendant could

assert the affirmative defense of res judicata through a motion for summary judgment. See

Francis, 1996 WL 255885, at *2. Francis, however, predated Jim’s Steak House, and this Court

has not yet had cause to reexamine its position in light of the Supreme Court’s ruling in that case.

For the reasons outlined above, we must depart from our decision in Francis.              It is our

conclusion that a party waives the affirmative defense of res judicata when he or she: (1) raises

the defense in a motion for summary judgment, and (2) fails to assert the defense in a responsive

pleading, either at the outset of the proceedings or by amendment with leave of court. See Jim’s

Steak House, Inc., 81 Ohio St.3d at 19-20; Deutsche Bank, 2015-Ohio-2961, at ¶ 15. Because

the Youngs never asserted res judicata in a responsive pleading, instead asserting it for the first

time in a motion for summary judgment, they waived their affirmative defense. Thus, the trial

court erred when it allowed them to assert the defense and awarded them summary judgment.

Nationstar’s first assignment of error is sustained.

                                Assignment of Error Number Two

       THE TRIAL COURT ERRED WHEN IT DECIDED THAT THAT (sic) RES
       JUDICATA PRECLUDES NATIONSTAR FROM DISPUTING THE
       YOUNGS’ MORTGAGE LIEN.

       {¶24} In its second assignment of error, Nationstar argues that the trial court erred when

it entered summary judgment in favor of the Youngs on the basis of res judicata. Based on our

resolution of Nationstar’s first assignment of error, its second assignment of error is moot, and

we decline to address it. See App.R. 12(A)(1)(c).
                                                12


                                                III

       {¶25} Nationstar’s first assignment of error is sustained. Its second assignment of error

is moot. The judgment of the Summit County Court of Common Pleas is reversed, and the cause

is remanded for further proceedings consistent with the foregoing opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellees.




                                                      BETH WHITMORE
                                                      FOR THE COURT



MOORE, P. J.
SCHAFER, J.
CONCUR.
                                         13



APPEARANCES:

ROBERT M. STEFANCIN, Attorney at Law, for Appellant.

JOHN B. KOPF and BRAD W. STOLL, Attorneys at Law, for Appellees.
