[Cite as Blue Ash Auto Body, Inc. V. Progressive Cas. Ins. Co., 2013-Ohio-5741.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 99892



                 BLUE ASH AUTO BODY, INC., ET AL.
                                                           PLAINTIFFS-APPELLANTS

                                                     vs.

          PROGRESSIVE CASUALTY INS., CO., ET AL.
                                                           DEFENDANTS-APPELLEES




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-791816


        BEFORE: E.T. Gallagher, J., Jones, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED: December 26, 2013
ATTORNEYS FOR APPELLANTS

For Blue Ash Auto Body, Inc.

Peter D. Traska
Traska Law Firm, L.L.C.
4352 Pearl Road, Suite A
Cleveland, Ohio 44109

Jason R. Bristol
Joshua R. Cohen
Ellen Maglicic Kramer
James B. Rosenthal
Cohen, Rosenthal & Kramer, L.L.P.
The Hoyt Block Building
700 West St. Clair Avenue, Suite 400
Cleveland, Ohio 44113

For Valley Paint & Autobody, Inc.

Erica L. Eversman
846 North Cleveland-Massillon Road
Bath, Ohio 44333


ATTORNEYS FOR APPELLEES

Ernest E. Vargo
Michael E. Mumford
Thomas D. Warren
Baker & Hostetler
1900 East Ninth Street, Suite 3200
Cleveland, Ohio 44114
EILEEN T. GALLAGHER, J.:
     {¶1} Plaintiffs-appellants, Blue Ash Auto Body, Inc., Finney Automotive

Company, Inc., and Valley Paint & Autobody, Inc. (collectively referred to as

“appellants”),   appeal   the   dismissal   of   their   class   action   complaint   against

defendants-appellees, Progressive Casualty Insurance Company, Progressive Specialty

Insurance Company, Progressive Preferred Insurance Company, Progressive Direct

Insurance Company, Artisan & Truckers Casualty Company, and Financial Casualty

Company (collectively referred to as “Progressive”). We find merit to the appeal and

reverse.

       {¶2} Appellants are auto body shops that performed repairs on vehicles insured

under Progressive insurance policies. In August 2009, appellants filed a class action

complaint in the Hamilton County Common Pleas Court against Progressive that included

claims for deceptive trade practices, breach of contract, unjust enrichment, tortious

interference with business, and civil conspiracy.           They alleged, inter alia, that

Progressive refused to pay the auto-body shops for necessary repairs on their insured’s

vehicles.

       {¶3} Progressive filed a motion for summary judgment on appellants’ breach of

contract and unjust enrichment claims. The Hamilton County Common Pleas Court

granted the motion in favor of Progressive and certified the judgment with Civ.R. 54(B)

language.   Appellants moved the court to dismiss their remaining claims without

prejudice in order to appeal the trial court’s judgment. The First Appellate District
affirmed the summary judgment in favor of Progressive. Blue Ash Auto Body, Inc. v.

Progressive Cas. Ins. Co., 1st Dist. Hamilton No. C-110083, 2011-Ohio-5785.

       {¶4} In September and November 2012, appellants filed a complaint and an

amended complaint, respectively, in the Cuyahoga County Common Pleas Court against

Progressive, asserting the claims for deceptive trade practices, tortious interference with

business, and civil conspiracy (the “remaining claims”) that were voluntarily dismissed by

the Hamilton County Common Pleas Court. In their amended complaint, appellants

acknowledged that this action was originally filed in the Hamilton County Court of

Common Pleas and that the Hamilton County court granted Progressive’s motion for

summary judgment on their breach of contract and unjust enrichment claims. However,

appellants further alleged that, pursuant to an agreement among the parties (the “Tolling

Agreement”), they dismissed the remaining claims without prejudice while they pursued

their appeal of the summary judgment ruling.

       {¶5} With respect to the parties’ Tolling Agreement, the amended complaint

alleged:

       18. Pursuant to the parties’ written [tolling] agreement, any statute of
       limitations applicable to the Plaintiffs’ causes of action that were
       voluntarily dismissed would remain tolled during the pendency of the
       appeal and for a specified period thereafter.

       19. On November 10, 2011, the First District Court of Appeals affirmed
       the summary judgment ruling. On March 21, 2012, the Ohio Supreme
       Court declined to accept the case for review. The Plaintiffs re-filed this
       lawsuit within the period stipulated under their written agreement with the
       Defendants.
       {¶6} Progressive moved to dismiss the complaint pursuant to Civ.R. 12(B)(6) for

failure to state a claim. Progressive argued that this case was barred by res judicata

based on the final judgment in the Hamilton County case. It also argued that even if res

judicata were inapplicable, the complaint, nevertheless, failed to state a claim for relief.

The trial court determined that appellants’ claims were barred by res judicata and granted

the motion to dismiss. Appellants now appeal and raise two assignments of error.

                                   Standard of Review

       {¶7} We review an order dismissing a complaint for failure to state a claim for

relief de novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814

N.E.2d 44. Under this standard of review, we must independently review the record and

afford no deference to the trial court’s decision. Herakovic v. Catholic Diocese of

Cleveland, 8th Dist. Cuyahoga No. 85467, 2005-Ohio-5985, ¶ 13.

       {¶8} A motion to dismiss for failure to state a claim upon which relief can be

granted tests the sufficiency of the complaint. Volbers-Klarich v. Middletown Mgt., Inc.,

125 Ohio St.3d 494, 2010-Ohio-2057, 929 N.E.2d 434, ¶ 11. Thus, when ruling on a

Civ.R. 12(B)(6) motion, a court may not rely on evidence or allegations outside the

complaint. State ex rel. Fuqua v. Alexander, 79 Ohio St.3d 206, 207, 680 N.E.2d 985

(1997). Civ.R. 12(B)(6) instructs in pertinent part:

       When a motion to dismiss for failure to state a claim upon which relief can
       be granted presents matters outside the pleading and such matters are not
       excluded by the court, the motion shall be treated as a motion for summary
       judgment and disposed of as provided in Rule 56. Provided however, that
       the court shall consider only such matters outside the pleadings as are
       specifically enumerated in Rule 56. All parties shall be given reasonable
       opportunity to present all materials made pertinent to such a motion by Rule
       56.

       {¶9} Therefore, the trial court may dismiss a complaint only if it appears beyond a

doubt, from the face of the complaint, that the plaintiff can prove no set of facts entitling

the plaintiff to recover. O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d

242, 327 N.E.2d 753 (1975), syllabus.

                                        Res Judicata

       {¶10} In the first assignment of error, appellants argue the trial court erred in

dismissing the complaint pursuant to Civ.R. 12(B)(6) on the basis of res judicata. They

contend the trial court erroneously relied on the parties’ Tolling Agreement in finding

appellants’ claims barred by res judicata. We agree.

       {¶11} Under the doctrine of res judicata, “[a] valid, final judgment rendered upon

the merits bars all subsequent actions based upon any claim arising out of the transaction

or occurrence that was the subject matter of the previous action.” Grava v. Parkman

Twp., 73 Ohio St.3d 379, 653 N.E.2d 226, (1995), syllabus. Thus, a final judgment on

the merits of an action precludes the parties from relitigating issues that were or could

have been raised in that action. Trojanski v. George, 8th Dist. Cuyahoga No. 83472,

2004-Ohio-2414.

       {¶12} 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.

For this reason, the Ohio Supreme Court has held that res judicata may not be raised in a
motion to dismiss under Civ.R. 12(B). State ex rel. Freeman v. Morris, 62 Ohio St.3d

107, 109, 579 N.E.2d 702 (1991).

       {¶13} Nevertheless, the trial court concluded that because appellants referenced

the Hamilton County case in the amended complaint, “it is proper for the Court to rule on

res judicata in a Rule 12 motion to dismiss.” In support of this conclusion, the trial court

cited Barton v. Realty Corp. of Am., 8th Dist. Cuyahoga No. 97340, 2012-Ohio-1838, in

which this court held that where both parties provide evidence of the prior pleadings, and

neither side is prejudiced by the evidence, the court may consider the evidence for

purposes of a motion to dismiss based on res judicata. Id. at ¶ 13. However, this is an

exception to the general rule the Supreme Court proclaimed in Freeman, and is limited to

situations where both parties provide the prior pleadings and neither side is prejudiced by

the evidence. Id.

       {¶14} In the amended complaint, appellants alleged that the parties agreed to toll

the statute of limitations on all remaining claims that were not subject to the motion for

summary judgment.         In its motion to dismiss, Progressive asserted that neither

Progressive nor appellants’ trial counsel “contemplated” that the remaining claims would

be refiled in the event the summary judgment was affirmed on appeal. However, this

fact was not alleged in the complaint.

       {¶15} In their reply brief, appellants attached a copy of the Tolling Agreement to

disprove Progressive’s unsubstantiated assertion.        In its order granting Progressive’s

motion to dismiss, the trial court stated, in relevant part:
       The Plaintiffs first argue that the “Tolling Agreement” that the parties
       entered into has preserved their claims. However, nowhere within the
       “Tolling Agreement” is the defense of res judicata waived.

       {¶16} Thus, the trial court’s determination that appellants’ claims were barred by

res judicata was based on evidence outside the four corners of the complaint and was

therefore in violation of Civ.R. 12(B)(6).1

       {¶17} Relying on Hauser v. Dayton Police Dept., 2d Dist. Montgomery No.

24965, 2013-Ohio-11, the trial court also erroneously concluded that because the

Hamilton County court included a Civ.R. 54(B) certification in its decision granting

summary judgment, the Hamilton County Court’s judgment was final, and res judicata

bars all the remaining claims, even though they were dismissed without prejudice. In

Hauser, the court held that

       [a] voluntary dismissal of all defendants renders an interlocutory summary
       judgment decision a nullity. However, if that decision was a final order,
       such as one containing Civ.R. 54(B) language, then the order was not an
       interlocutory one subject to nullification by a voluntary dismissal.

Id. at ¶ 9, fn.1. In its order granting defendants’ motion to dismiss, the trial court

reasoned that since a voluntary dismissal nullifies an interlocutory summary judgment

order, the opposite is also true, i.e., that a voluntary dismissal of claims remaining after an

order granting summary judgment with Civ.R. 54(B) language nullifies the remaining

claims.




           The Tolling Agreement was not authenticated, and there was no evidence of the type listed
       1


in Civ.R. 56(C) to support a motion for summary judgment.
          {¶18} However, Civ.R. 54(B) authorizes the court to enter final judgment as to one

or more, but fewer than all claims and/or in an action, upon an express determination that

there is no just reason to delay entering such a judgment. Denham v. New Carlisle, 86

Ohio St.3d 594, 595, 716 N.E.2d 184 (1999). The order is only final as to those claims

and/or defendants that are subject to the judgment with the Civ.R. 54(B) certification.

Indeed, when the trial court certifies a judgment as final for purposes of Civ.R. 54(B), it

makes “a factual determination that an interlocutory appeal is consistent with the interests

of sound judicial administration.” (Emphasis Added.) Wisintainer v. Elcen Power Strut

Co., 67 Ohio St.3d 352, 617 N.E.2d 1136 (1993), paragraph one of the syllabus. The

Civ.R. 54(B) certification allows the parties to appeal an interlocutory judgment while

other claims remain pending.

          {¶19} A judgment with the Civ.R. 54(B) certification is an adjudication on the

merits as to the claims and parties that are subject to the judgment. As the Hauser court

noted, while a voluntary dismissal of a complaint without prejudice nullifies interlocutory

summary judgment orders, a voluntary dismissal of the remainder of a case will not

nullify an order granting summary judgment, if it was properly certified with Civ.R.

54(B) language.

          {¶20} Contrary to the trial court’s order, a summary judgment on some claims that

includes a Civ.R. 54(B) certification does not adjudicate the remaining claims on the

merits.      They remain to be adjudicated or dismissed with prejudice.          With few

exceptions that are inapplicable here, “[a] dismissal without prejudice leaves the parties
as if no action had been brought at all.” Denham at 596. Therefore, res judicata cannot

bar the refiling of claims in this case that were only dismissed once without prejudice.

       {¶21} In this case, appellants dismissed the remaining causes of action without

prejudice pending their appeal of the summary judgment order in favor of Progressive on

two of their claims. The First District Court of Appeals had jurisdiction to hear the

appeal because the trial court properly certified the judgment as a final order under Civ.R.

54(B), and the judgment was a final appealable order. Since the remaining claims were

dismissed without prejudice, and they were not adjudicated on the merits, they are not

barred by res judicata. Furthermore, appellants not only raised the claims in the original

action, they preserved them by dismissing them without prejudice and obtaining a waiver

of the statute of limitations from Progressive.

       {¶22} Therefore, we sustain the first assignment of error.

                                  Negotiated Agreement

       {¶23} In the second assignment of error, appellants assert that Progressive agreed

to the refiling of claims dismissed without prejudice.          However, since we have

determined that the trial court erroneously dismissed Appellants’ amended complaint on

the basis of res judicata, the second assignment of error is moot.

                             Progressive’s Other Arguments

       {¶24} Finally, Progressive argues that appellants failed to allege claims for tortious

interference, deceptive trade practices, and civil conspiracy in a manner upon which relief

might be granted. Progressive also contends it enjoys a privilege defense to liability for
appellants’ claims.    However, the trial court declined to address these issues and

appellate courts generally do not address issues that were not addressed by the trial court.

Bowen v. Kil-Kare, Inc., 63 Ohio St.3d 84, 89, 585 N.E.2d 384 (1992). Therefore,

Progressive’s arguments with respect to its claimed privilege and the alleged deficiencies

in the amended complaint are not properly before us.

       {¶25} Judgment reversed and remanded to the lower court for further proceedings

consistent with this opinion.

       It is ordered that appellants 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 the common pleas 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.



EILEEN T. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., and
TIM McCORMACK, J., CONCUR
