[Cite as Pfalzgraph v. Miley, 2019-Ohio-4920.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                  MONROE COUNTY

                        GEORGE AND MARJORIE PFALZGRAF,

                                        Plaintiffs-Appellants,

                                                  v.

                 JEFF MILEY DBA MILEY GAS COMPANY ET AL.,

                                      Defendants-Appellees.


                        OPINION AND JUDGMENT ENTRY
                                         Case No. 19 MO 0006


                                    Civil Appeal from the
                        Court of Common Pleas of Monroe County, Ohio
                                     Case No. 2018-501

                                         BEFORE:
                  Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.


                                            JUDGMENT:
                                         Reversed/Remanded.



 Atty. Ethan Vessels, Fields, Dehmlow & Vessels, 309 Second Street, Marietta, Ohio
 45750, for Plaintiffs-Appellants, and

 Atty. William Taylor, Atty. Scott Eickelberger, Atty. David Tarbert, Atty. Ryan Linn,
 Kincaid, Taylor & Geyer, 50 North Fourth Street, P.O. Box 1030, Zanesville, Ohio
 43702-1030, for Defendants-Appellees.
                                                                                       –2–



                                         Dated:
                                    November 15, 2019

 DONOFRIO, J.

       {¶1}   Plaintiff-appellant, George Pfalzgraf, appeals from a Monroe County
Common Pleas Court judgment granting defendants-appellees’, Jeff Miley, DBA Miley
Gas Company and Antero Resources Corporation, motion to dismiss his complaint.
       {¶2}    In 2013, appellant filed a previous suit seeking a declaration that
appellees’ oil and gas lease had terminated. The trial court evaluated the subject well’s
production figures from 2011 to 2014, and found that the lease should be cancelled due
to a lack of production in paying quantities. Appellees appealed. This Court reversed in
July 2018, holding that the trial court erred in finding that the well was not producing in
paying quantities. Pfalzgraf v Miley, 7th Dist. Monroe Nos. 16 MO 0005, 16 MO 0006,
2018-Ohio-2828, ¶ 45. We reversed and entered judgment in favor of appellees.
       {¶3}    On December 21, 2018, appellant brought the current action against
appellees for a declaration of termination of the lease on the grounds that the subject well
had not been maintained since December 2015, and had not produced in paying
quantities in 2015, 2016, 2017, and 2018. Appellees filed Civ.R. 12(B)(6) motions to
dismiss the case, claiming that appellant’s claims for relief were barred as a matter of law
pursuant to the doctrine of res judicata, given the previous litigation between the parties
concerning the same well.
       {¶4}   The trial court granted appellees’ motions and dismissed the case.       The
court reasoned that the allegations were clearly linked to the prior case and, therefore,
res judicata barred appellant from asserting his claims for relief.
       {¶5}   Appellant filed a timely notice of appeal on March 11, 2019. He now raises
one assignment of error.
       {¶6}   Appellant’s sole assignment of error states:

              THE TRIAL COURT ERRED IN DISMISSING THE CASE BASED
       ON THE APPLICATION OF RES JUDICATA.




Case No. 19 MO 0006
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       {¶7}   Appellant argues that res judicata is an affirmative defense to a preceding
pleading under Civ.R. 8(C). He contends that res judicata is not a basis for a Civ.R.
12(B)(6) motion. Appellant further asserts that the Ohio Supreme Court has previously
held that the defense of res judicata may not be raised by a motion to dismiss under
Civ.R. 12(B), pointing to State ex rel. Freeman v. Morris, 62 Ohio St. 3d 107, 109, 579
N.E.2d 702 (1991).
       {¶8}   Pursuant to the doctrine of res judicata, a valid, final judgment on the merits
bars any subsequent actions based upon any claim arising out of the transaction or
occurrence that was the subject matter of the first action. Grava v. Parkman Twp., 73
Ohio St.3d 379, 653 N.E.2d 226 (1995), syllabus. Appellant contends that the current
litigation concerns a different four-year period of time for the well’s production than the
previous litigation.   Therefore, appellant asserts there is no common basis of facts
between the previous litigation and the present litigation that would trigger res judicata.
       {¶9}   The standard of review for a Civ.R. 12(B)(6) motion to dismiss requires the
appellate court to independently review the complaint to determine if the dismissal was
appropriate. Ferreri v. The Plain Dealer Publishing Co., 142 Ohio App.3d 629, 639, 756
N.E.2d 712 (8th Dist.2001).
       {¶10} A motion to dismiss for failure to state a claim upon which relief can be
granted is a procedural motion that tests the sufficiency of the complaint. State ex rel.
Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605 N.E.2d 378
(1992). In order to dismiss a complaint for failure to state a claim upon which relief can
be granted, the court must find beyond doubt that the plaintiff can prove no set of facts
warranting relief after it presumes all factual allegations in the complaint are true, and
construes all reasonable inferences in the plaintiff's favor. State ex rel. Seikbert v.
Wilkinson, 69 Ohio St.3d 489, 490, 633 N.E.2d 1128 (1994). Importantly, the trial court
may look only to the complaint to determine whether the allegations included within it are
legally sufficient to state a claim. Hanson, 65 Ohio St.3d at 548.
       {¶11} Civ.R. 8(C) provides that “[i]n pleading to a preceding pleading, a party shall
set forth affirmatively * * * res judicata, * * * and any other matter constituting an avoidance
or affirmative defense.” Civ.R. 8(C). Further, affirmative defenses other than those listed
in Civ.R. 12(B) are waived if not raised in a responsive pleading, pursuant to Civ.R. 8(C),



Case No. 19 MO 0006
                                                                                        –4–


or in an amendment to the pleadings under Civ.R. 15.            Jim's Steakhouse, Inc. v.
Cleveland, 81 Ohio St.3d 18, 20, 688 N.E.2d 506 (1998). Res judicata is not one of the
defenses enumerated in Civ.R. 12(B): it must be pled in the answer or it is waived. Calin
v. Nemes, 7th Dist. Mahoning No. 11 MA 12, 2012-Ohio-1409, ¶ 12.
       {¶12} “[T]he defense of res judicata may not be raised by 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). The resolution of a res judicata defense usually requires resort to materials
outside the pleadings. State ex rel. W. v. McDonnell, 139 Ohio St.3d 115, 2014-Ohio-
1562, 9 N.E.3d 1025, ¶ 16. And as stated above, the court may only look to the complaint
when ruling on a Civ.R. 12(B)(6) motion. Hanson, 65 Ohio St.3d at 548.
       {¶13} In short, a motion to dismiss is a procedural tool which tests the sufficiency
of the complaint, not the sufficiency of the evidence. Tests of the sufficiency of the
evidence are handled utilizing motions for summary judgment under Civ.R. 56. It is
permissible for a trial court to convert the Civ.R. 12(B)(6) motion to a motion for summary
judgment, but it must do so using the parameters established by Civ.R. 56. Further, as
this court has previously held, “where the motion to dismiss, which relies on evidence
outside of the complaint, is granted without conversion and notification, the dismissal is
reversible.” Scardina v. Ghannam, 7th Dist. Mahoning No. 04-MA-81, 2005-Ohio-3315,
at ¶ 18.
       {¶14}   In the trial court’s judgment entry, it set out the rules regarding motions to
dismiss. It then proceeded to a res judicata analysis. The trial court compared the
complaint in this case with the facts of the previous case. Because a Civ.R. 12(B)(6)
motion only tests the sufficiency of the complaint itself, by comparing the facts of the
present case with the facts of the previous case the trial court went outside the pleadings.
This was in opposition to what a Civ.R. 12(B)(6) motion allows. Moreover, as the Ohio
Supreme Court has held, a party may not raise res judicata in a Civ.R. 12(B) motion to
dismiss. Freeman, 62 Ohio St.3d at 109. Therefore, the trial court erred in granting
appellees’ motions to dismiss the complaint.
       {¶15}   Accordingly, appellant’s sole assignment of error has merit and is
sustained.




Case No. 19 MO 0006
                                                                               –5–


      {¶16}    For the reasons stated above, the trial court’s judgment is hereby
reversed. Appellant’s complaint is reinstated and the matter is remanded for further
proceedings pursuant to law and consistent with this opinion.



Waite, P. J., concurs.

Robb, J., concurs.




Case No. 19 MO 0006
[Cite as Pfalzgraph v. Miley, 2019-Ohio-4920.]




         For the reasons stated in the Opinion rendered herein, the sole assignment of
 error is sustained and it is the final judgment and order of this Court that the judgment
 of the Court of Common Pleas of Monroe County, Ohio, is reversed. We hereby remand
 this matter to the trial court for further proceedings according to law and consistent with
 this Court’s Opinion. Costs to be taxed against the Appellee.


         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.




                                        NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
