[Cite as Needles v. Raitz, 2012-Ohio-5021.]




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




RISA L. NEEDLES,

        PLAINTIFF-APPELLEE,                               CASE NO. 13-12-15

        v.

JOHN RAITZ, ET AL.,                                       OPINION

        DEFENDANTS-APPELLANTS.




                           Appeal from Tiffin Municipal Court
                             Trial Court No. CVI 1200018

                                      Judgment Affirmed

                            Date of Decision: October 29, 2012




APPEARANCES:

        Corey L. Tomlinson for Appellants

        Risa L. Needles, Appellee
Case No. 13-12-15


SHAW, P.J.

       {¶1} Defendants-appellants, John Raitz and Melissa Matteson (collectively

referred to as “Appellants”), appeal the February 17, 2012 judgment of the Tiffin

Municipal Court awarding plaintiff-appellee, Risa Needles (“Appellee”),

$2,100.00 plus interest and court costs for the damage Appellants caused to her

rental property while they were living there as tenants.

       {¶2} On October 20, 2011, in case number 11CVI277, Appellee filed a

small claims complaint alleging Appellants broke the residential lease agreement

between them and requesting money damages. In particular, Appellee claimed

Appellants: 1) failed to perform work on the property that was promised to be

completed in exchange for not having to put a security deposit down and for

having $75.00 subtracted from the monthly rent; 2) housed two dogs while living

on the premises, which were not approved by the landlord and damaged the

property; and 3) broke the lease two months prior to its expiration. Appellee also

alleged that Appellants caused significant damage to the premises while living

there and requested the trial court to grant her judgment in the amount of

$2,470.00 plus interest and court costs.

       {¶3} On December 6, 2011, Appellee filed an amended complaint

requesting a judgment for damages in the amount of $3,970.00.




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       {¶4} On December 7, 2011, a hearing was held and at the end of the

hearing the trial court announced that it would take the matter under advisement.

On the same day, the trial court issued an entry. After a brief recitation of the

facts, the trial court concluded its entry as follows:

       The Court has always taken its responsibility in small claims
       cases very seriously, due to the fact that it is one of the few
       outlets individuals have to obtain redress for their grievances.
       Indeed, it is important to keep in mind that the small claims
       Court is a layman’s forum, and an overly legalistic application
       of the rules of evidence serve only to deny justice. However, the
       plaintiff’s case as presented makes its nearly impossible for the
       Court to determine how the amount of the claim was reached, let
       alone whether the damages were the result of something other
       than ordinary wear and tear. Defendants countered with the
       poor condition of the premises at the time they moved in and
       asserted that many of the damages detailed were preexisting.
       This, coupled with the fact that the plaintiff’s claim is in excess
       of the statutory lime [sic] of small claims court, give the Court
       pause to grant a judgment in this matter. Any judgment
       awarded—even the agreed damage to the door screen—would
       be speculative in light of the fact that plaintiff has failed to
       present evidence of the cost of its repair, let alone whether is [sic]
       was beyond ordinary wear and tear. As such, the Court finds
       the plaintiff has failed to meet her burden of proof by a
       preponderance of the evidence. While the Court declines to
       grant damages to the plaintiff in this instance, it does not
       preclude the plaintiff from pursuing damages in separate
       litigation, and encourages the plaintiff to do so with the
       appropriate supporting evidence.

(Dec. 7, 2011 Entry at 4).




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Case No. 13-12-15


Notably, there is no dispositional order, or any language indicating that judgment

is granted in a party’s favor or that the trial court adjudicated the case on the

merits.

          {¶5} On January 18, 2012, in case number 12CVI18, Appellee filed a new

complaint alleging the same claims against Appellants.

          {¶6} On February 17, 2012, the trial court held a hearing. On the record,

the trial court discussed the entry issued on December 7, 2011, in case number

11CVI277, and determined that the prior entry constituted an involuntary

dismissal without prejudice pursuant to Civ.R. 41(B)(2). The trial court proceeded

to hear evidence and subsequently entered judgment in favor of Appellee,

awarding her $2,100.00 in damages plus interest and court costs.

          {¶7} On March 1, 2012, Appellants filed their notice of appeal.

          {¶8} On August 20, 2012, the appellate record was supplemented with the

trial record from case number 11CVI277 pursuant to App.R. 9(E) and based upon

the trial court granting the Appellants’ motion to supplement the record.

          {¶9} On appeal, the Appellants assert the following assignment of error for

our review.

          TRIAL COURT ERRED AS A MATTER OF LAW IN
          GRANTING JUDGMENT FOR APPELLEE AS JUDGMENT
          WAS BARRED BY RES JUDICATA.




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Case No. 13-12-15


       {¶10} In their sole assignment of error, Appellants argue that the trial court

erred when it construed the December 7, 2011 entry in case number 11CVI277 as

an involuntary dismissal without prejudice. Appellants further argue that this

entry was a judgment on the merits which precluded Appellee from raising the

same claims against Appellants in the subsequent case 12CVI18 under the

doctrine of res judicata.

       {¶11} In order to apply the doctrine of res judicata, we must conclude the

following: (1) there was a prior valid judgment on the merits; (2) the second action

involved the same parties as the first action; (3) the present action raises claims

that were or could have been litigated in the prior action; and (4) both actions arise

out of the same transaction or occurrence. Grava v. Parkman Twp., 73 Ohio St.3d

379, 381–382 (1995).

       {¶12} In reviewing the December 7, 2011 entry, there is nothing in the

entry to support the conclusion that an adjudication on the merits or otherwise

took place. The trial court simply states that upon having found Appellee had

failed to meet her burden of proving her case by the preponderance of the

evidence, the court “declines to grant damages” to Appellee. The trial court then

proceeds to encourage Appellee to “pursu[e] damages in separate litigation * * *

with the appropriate supporting evidence.” There is nothing in the entry indicating

that the trial court granted judgment in favor of a party nor is there any language


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that can even be construed as imposing a disposition of the case, including a

dismissal without prejudice. Accordingly, we conclude that the December 7, 2011

entry was not a valid judgment on the merits; therefore, the doctrine of res judicata

does not apply to the case sub judice.

       {¶13} Additionally, we believe Appellants waived any claim of res judicata

because they did not file an answer or otherwise raise res judicata as an affirmative

defense in response to Appellee’s January 18, 2012 complaint. Civil Rule 8(C)

provides that “[i]n pleading to a preceding pleading, a party shall set forth

affirmatively * * * res judicata * * * .” The Ohio Supreme Court has held that

affirmative defenses other than those listed in Civ.R. 12(B) are waived unless they

are raised in the pleadings or in an amendment to the pleadings. Jim’s Steak

House, Inc. v. City of Cleveland, 81 Ohio St.3d 18, 20, (1998), citing Civ.R. 8 &

15. Res judicata is not one of the defenses enumerated in Civ.R. 12(B). While we

acknowledge that in some instances the civil rules may or may not be applicable to

small claims court cases, in this instance Appellants never raised any issue

regarding res judicata until the appeal.

       {¶14} Based on the foregoing, the assignment of error is overruled and the

judgment of the Tiffin Municipal Court is affirmed.

                                                                Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.


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/jlr




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