Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
Weltman, Weinberg & Reis Co., L.PA., and Daniel A.
Friedlander, for appellees.
E. Pittman & Associates, and Darryl E. Pittman, for
JOURNAL ENTRY AND OPINION
T. GALLAGHER, PRESIDING JUDGE.
1} Plaintiffs-appellants, Charles Harper, et al.
(collectively "appellants," individually
"Charles" and "Bernadette"), appeal from
the trial court's judgment granting the motion to dismiss
filed by defendants-appellees, Weltman, Weinberg & Reis
Co., L.P.A., et al. ("defendants"). Appellants
raise the following assignment of error for review:
The trial court abused its discretion in dismissing the case
because there were questions of fact which precluded the
court from granting a motion to dismiss.
2} After careful review of the record and relevant case law,
we affirm the trial court's judgment.
Procedural and Factual History
3} In May 2011, a complaint for cognovit judgment (the
"Cognovit Complaint") was filed against Charles and
others in Cuyahoga C.P. No. CV-11- 756112. The Cognovit
Complaint alleged that in March 2010, Charles Emerman, as
trustee of the Charles Emerman Revocable Trust, loaned $63,
374 to Donald Williams, Sr., Donald Williams, Jr.,
and Charles. Trustar Funding, L.L.C. ("Trustar")
served as the loan servicer for Emerman, and thus, the
cognovit note was between Trustar and the three borrowers.
The note was secured by a mortgage on commercial property
located at 22021 Euclid Avenue, Euclid, Ohio. The property
was owned by Shepherd Group Realty and Development
Corporation, a Georgia corporation that was owned and
operated by Donald Williams, Sr.
4} Judgment in that case was ultimately rendered in favor of
Trustar and against Charles in the amount of $71, 951.11. In
February 2018, this court affirmed the trial court's
judgment denying Harper's motion to vacate the cognovit
judgment. Trustar Funding, L.L.C. v. Harper, 8th
Dist Cuyahoga No. 105837, 2018-Ohio-495.
5} In September 2017, defendants filed a complaint on behalf
of Trustar in Cuyahoga C.P. No. CV-17-886346 (the
"Fraudulent Conveyance Complaint") against Charles,
Bernadette, and Gilmore Heights Dental Holdings, Ltd. In the
Fraudulent Conveyance Complaint, Trustar stated that it was
"the holder of an outstanding cognovit judgment rendered
in the Cuyahoga Court of Common Pleas, under Case No.
CV-11-756112 on May 25, 2011 against Charles W. Harper and
others." In an effort to collect the outstanding
judgment, Trustar sought a creditor's bill and set forth
a fraudulent conveyance cause of action. Trustar alleged that
Bernadette "holds, receives, [and] conceals income
rightfully due [to Charles] * * * in an attempt to avoid
payment of creditors' claims including that of
[Trustar]." In January 2018, Trustar voluntarily
dismissed the complaint.
6} On March 16, 2018, appellants filed the complaint that is
the subject of this appeal in Cuyahoga C.P. No. CV-18-107439
against the defendants, Weltman, Weinberg & Reis Co.,
L.P.A., and attorney Donald A. Mausar. The complaint alleged
that by filing the Fraudulent Conveyance Complaint on behalf
of Trustar, the defendants violated certain provisions of the
federal Fair Debt Collection Practices Act, 15 U.S.C. 1692
("FDCPA"), and the Ohio Consumer Sales Practices
Act ("OCSPA"), R.C. 1345.01 et seq. Specifically,
appellants alleged that because Trustar previously assigned
the cognovit judgment to a third party in 2016, defendants
filed the Fraudulent Conveyance Complaint while having
knowledge that Trustar "had no interest whatsoever in
the judgment being sued upon." Relevant to this appeal,
the complaint incorporated the Fraudulent Conveyance
Complaint by reference.
7} In April 2018, defendants filed a Civ.R. 12(B)(6) motion
to dismiss, arguing that appellants' complaint failed to
state a claim upon which relief may be granted because the
underlying debt did not arise from a "consumer
transaction" as contemplated under the FDCPA or the
OCSPA. Thus, defendants maintained that appellants' FDCPA
and OCSPA claims fail as a matter of law because they
"are definitionally invalid given that the [underlying]
lawsuit was based on a commercial, not a consumer
transaction." The motion to dismiss attached copies of
the Cognovit Complaint, the Fraudulent Conveyance Complaint,
and the underlying cognovit promissory note.
8} In June 2018, the trial court issued a journal entry
granting defendants' motion to dismiss. The court stated,
in relevant part:
The court, in construing all factual allegations in the
complaint as true and drawing all reasonable inferences in
favor of Plaintiffs, finds that Plaintiffs' complaint
fails to state a claim upon which relief may be granted.
9} Appellants now appeal from the trial court's judgment.
Law and Analysis
10} In their sole assignment of error, appellants argue the
trial court erred by granting defendants' motion to
dismiss. Appellants contend that its complaint "alleged
facts sufficient to satisfy Ohio's notice pleading
standard on all counts."
Standard of Review
11} A Civ.R. 12(B)(6) motion to dismiss for failure to state
a claim on which relief can be granted "is procedural
and 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), citing Assn. for
Defense of Washington Local School Dist. v. Kiger, 42
Ohio St.3d 116, 117, 537 N.E.2d 1292 (1989). In order for a
trial court to grant a motion to dismiss for failure to state
a claim on which relief can be granted, it must appear
"beyond doubt from the complaint that the plaintiff can
prove no set of facts entitling her to relief." Grey
v. Walgreen Co., 197 Ohio App.3d 418, 2011-Ohio-6167,
967 N.E.2d 1249, ¶ 3 (8th Dist.), citing LeRoy v.
Allen, Yurasek & Merklin, 114 Ohio St.3d 323,
2007-Ohio-3608, 872 N.E.2d 254, ¶ 14.
12} An appellate court employs "a de novo standard of
review for motions to dismiss filed pursuant to Civ.R.
12(B)(6)." Grey at ¶ 3, citing Greeley
v. Miami Valley Maintenance Contrs., Inc., 49 Ohio St.3d
228, 551 N.E.2d 981 (1990). Under de novo analysis, we are
required to "accept all factual allegations of the
complaint as true and draw all reasonable inferences in favor
of the nonmoving party." Id. at ¶ 3,
citing Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d
584 (1991). "Unsupported conclusions of a complaint[, ]
[however, ] are not considered admitted and are not
sufficient to withstand a motion to dismiss." State
ex rel. Hickman v. Capots, 45 Ohio St.3d 324, 324, 544
N.E.2d 639 (1989), citing Schulman v. Cleveland, 30
Ohio St.2d 196, 283 N.E.2d 175 (1972).
13} Given the litigation history of the parties involved in
this case, it is necessary to note that when assessing a
Civ.R. 12(B)(6) motion to dismiss, a trial court is not
permitted to "take judicial notice of court proceedings
in another case." NorthPoint Props. v.
Petticord,179 Ohio App.3d 342, 2008-Ohio-5996, 901
N.E.2d 869, ¶ 16 (8th Dist.), citing Campbell v.
Ohio Adult Parole Auth., 10th Dist. Franklin No.
97APE05-616, 1997 Ohio App. LEXIS 4829 (Oct. 28, 1997).
Similarly, "'a trial court may not take judicial
notice of prior proceedings in the court even if the same
parties and subject matter are involved.'"
Id., quoting First Michigan Bank & Trust Co.
v. P. & S. Bldg., 4th Dist. Meigs No. 413, 1989 Ohio
App. LEXIS 527 (Feb. 16, 1989). A ...