Court of Appeals of Ohio, First District, Hamilton
MARLON D. RALLS, Plaintiff-Appellant,
GAIL LEWIN, Defendant-Appellee.
Hamilton County Court of Common Pleas Trial No. A-1704960
Appealed From Is: Reversed and Cause Remanded
D. Ralls, pro se
Patrick J. Deninger, for Defendant-Appellee.
In two related assignments of error, Marlon D. Ralls argues
that the trial court erred by entering summary judgment in
favor of Gail Lewin on Ralls's claims stemming from an
automobile accident on October 31, 2015. Because we find
procedural errors requiring reversal, we do not reach the
merits of Ralls's arguments.
Lewin filed a Civ.R. 12(B)(6) motion to dismiss Ralls's
complaint for failure to state a claim upon which relief
could be granted, on the sole ground that the matter had
previously been adjudicated. Lewin argued that Ralls had
asserted the same claim against her in four previous
lawsuits, two of which Ralls had voluntarily dismissed, one
of which was dismissed upon Lewin's motion, and one of
which had resulted in a judgment in Lewin's favor. To
establish that she was entitled to dismissal, Lewin attached
to her motion what purported to be copies of a police report,
a waiver and cancelled check, entries and filings from
separate court cases, and a transcript of a
After Ralls failed to respond to Lewin's motion to
dismiss, the trial court placed of record an "Entry
Granting Defendant Gail Lewin's Motion for Summary
Judgment." The entry stated, "This matter came
before the Court upon Defendant Gail Lewin's Motion for
Summary Judgment. Upon Defendant's Motion and for good
cause shown, the Motion to Dismiss is well taken and hereby
Following our review of the record, we conclude that, based
on procedural errors, the trial court's judgment cannot
be upheld either as a dismissal pursuant to Civ.R. 12(B)(6)
or as a summary judgment pursuant to Civ.R. 56.
Res judicata is not a proper basis for dismissal under Civ.R.
12. Jefferson v. Bunting, 140 Ohio St.3d 62,
2014-Ohio-3074, 14 N.E.3d 1036, ¶ 10. Res judicata is an
affirmative defense under Civ.R. 8(C), and is not one of the
defenses that may be raised in a Civ.R. 12(B) motion to
dismiss in the absence of some clear admission on the face of
the complaint. See id.
Moreover, resolution of a res judicata defense typically
depends on materials outside the pleadings. See State ex
rel. West v. McDonnell, 139 Ohio St.3d 115,
2014-Ohio-1562, 9 N.E.3d 1025, ¶ 16. But a trial court
may not rely on evidence or allegations outside the complaint
to determine a Civ.R. 12(B)(6) motion to dismiss. State
ex rel. Fuqua v. Alexander, 79 Ohio St.3d 206, 207, 680
N.E.2d 985 (1997).
Where a res judicata defense depends on matters outside the
pleadings, and the trial court considers the extraneous
materials in ruling on the motion, the court should convert
the motion to dismiss into a motion for summary judgment and
provide the nonmoving party with notice and an opportunity to
be heard. Jefferson at ¶ 12; see
Notice is required to give parties a reasonable opportunity
to demonstrate that a genuine issue of fact exists. See
Dietelbach v. Ohio Edison Co., 11th Dist. Trumbull No.
2004-T-0063, 2005-Ohio-4902, ¶ 12. In Hooten v. Safe
Auto Ins. Co., 100 Ohio St.3d 8, 2003-Ohio-4829, 795
N.E.2d 648, ¶ 34, the Supreme Court of Ohio explained:
One of the overriding goals of Civ.R. 56 is fundamental
fairness to all litigants, given the high stakes involved
when summary judgment is sought. See Murphy v.
Reynoldsburg (1992), 65 Ohio St.3d 356, 360, 604 N.E.2d
138 (because summary judgment terminates litigation without
the benefit of a trial on the merits, compliance with the
letter and spirit of the rule is of paramount importance).
Civ.R. 56's procedural fairness requirements place
significant responsibilities on all parties and judges to
ensure that summary judgment should be granted only after all
parties have ...