Calin v. Nemes
2012 Ohio 1409
Ohio Ct. App.2012Background
- July 2, 2007: Calins contracted to buy real estate from Nemeses and paid $15,000 down.
- Sale did not close due to Calins' financing problems.
- June 15, 2009: Calins filed breach-of-contract suit seeking return of the down payment.
- Appellees answered, raising estoppel and waiver as defenses and counterclaimed for breach; case transferred to the Common Pleas Court.
- December 22, 2010: trial court dismissed on res judicata/issue preclusion grounds based on a separate 2007 case (07CV4382).
- This appeal challenges the dismissal as improper and seeks remand for proceedings on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Civ.R.12(B)(6) dismissal was proper | Calin argues res judicata should be raised via answer, not motion. | Nemes contends res judicata can be raised by motion to dismiss. | Dismissal improper; need for conversion or alternate procedure. |
| Whether res judicata was waived by defendant’s pleadings | Waiver not valid; defense pleaded as estoppel/waiver. | Res judicata defense was raised in some form. | Waiver defense not clearly waived; issue preserved for review. |
| Whether the trial court should have converted to Civ.R.56 or provided notice | Conversion needed to rely on extrinsic evidence. | Conversion not performed; could be proper with notice. | Improper dismissal; required conversion or denial. |
Key Cases Cited
- Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79 (2004-Ohio-4362) (de novo review; Civ.R.12(B)(6) dismissal requires true pleadings only)
- State ex rel. Freeman v. Morris, 62 Ohio St.3d 107 (1991) (res judicata not raised by Civ.R.12(B) motion)
- Powell v. Wal-Mart Stores, Inc., 2010-Ohio-5233 (8th Dist.) (burden to prove res judicata outside pleadings)
- Thomas v. Arm Food, Inc., 2003-Ohio-6925 (8th Dist.) (conversion of Civ.R.12(B) to Civ.R.56 when relying on outside evidence)
- Park v. Acierno, 2005-Ohio-1332 (5th Dist.) (notice requirement for conversion to summary judgment)
- Scardina v. Ghannam, 2005-Ohio-3315 (7th Dist.) (dismissal under Civ.R.12(B)(6) based on extrinsic evidence improper without conversion)