Business Data Sys. v. FigetakisBusiness Data Sys. v. Figetakis
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: {¶ 1} Appellant, Mark Figetakis, appeals from the judgment of the Summit County Court of Common Pleas dismissing his counterclaim. This Court reverses.
I.
{¶ 2} Appellee, Business Data Systems, Inc., originally filed suit in Akron Municipal Court against Gourmet Café Corporation (“Gourmet Café“) and Appellant for breach of lease by Gourmet Café. Appellee‘s claim was based on Appellant‘s guarantee of that lease in his individual capacity. Gourmet Café and Appellant counterclaimed against Appellee in an amount in excess of the municipal court‘s jurisdiction and the case was transferred to the Summit County Court of Common Pleas. Appellant‘s counterclaim was filed on October 4, 2002.
{¶ 3} On January 16, 2003, the trial court assigned the case to arbitration pursuant to S.C.C. Loc.R. 10. On April 17, 2003, the arbitrators filed their report in which they found in favor of Appellee in the amount of $9,050.60. The arbitrators’ report and award stated a finding for “Plaintiff on Defendant‘s counterclaim.” The trial court entered a final judgment adopting the report and award of the arbitrators on May 29, 2003. On appeal from that order, Appellant challenged a nunc pro tunc order issued by the court which found that the arbitrators’ report and award pertained to both Appellant and Gourmet Café.
{¶ 4} Upon review, this Court held that the trial court erred in concluding that the arbitration award applied to both Appellant and Gourmet Café, finding instead that the order only pertained to Gourmet Café. See Business Data Systems, Inc. v. Gourmet Café Corp., 9th Dist. No. 22096, 2005-Ohio-4.
{¶ 5} On June 2, 2005, Appellee filed a dismissal pursuant to
II.
ASSIGNMENT OF ERROR
“THE TRIAL COURT ERRED IN GRANTING JUDGMENT `ON THE PLEADINGS’ WHERE EVIDENCE OUTSIDE OF THE PLEADINGS WAS CONSIDERED.”
{¶ 6} In his sole assignment of error, Appellant contends that the trial court erred in relying on evidence outside of the pleadings in granting Appellee‘s motion for judgment on the pleadings. We agree.
{¶ 7} A
{¶ 8} A reviewing court will reverse judgment on the pleadings if the plaintiff can prove any set of facts which will entitle it to relief. Id. Here, the trial court had before it Appellee‘s complaint with copies of the parties’ lease application and equipment lease agreement attached thereto as Exhibit A, Appellant‘s answer and counterclaim, Gourmet Café‘s answer and counterclaim, and Appellee‘s answers to Appellant and Gourmet Café‘s counterclaims.
{¶ 9} The trial court‘s dismissal of Appellant‘s counterclaim is clearly based on orders that were neither attached nor incorporated into the pleadings and thus fails as a dismissal under
“In the instant matter, the Court finds that there has already been a valid judgment on the merits. * * * The Court clearly adopted the arbitrators’ Report and Award in its May 29, 2003 Order. It is clear from the record that there was a prior judgment on the merits involving the identical issues raised in Figetakis’ Counterclaim.”
Notably, all of these documents arose more than two years after the operative pleadings were filed. It follows, therefore, that the trial court based its dismissal on matters outside the pleadings — the aforementioned attachments to the motion for judgment on the pleadings. Although neither party asked that the trial court treat the motion for judgment on the pleadings as a motion for summary judgment so that documents outside of the pleadings could be considered, the court treated Appellee‘s motion as such. In the case of a motion to dismiss filed under
{¶ 10}
{¶ 11} In addition, to the extent that the trial court dismissed the claims against Appellee as barred by res judicata, we find error. The doctrine of res judicata is not grounds for dismissal pursuant to
{¶ 12} Appellee cites two cases from this Court, Hammerschmidt, supra, and Warner Cable Comm., Inc. v. Neusser (Oct. 6, 1993), 9th Dist. No. 16106, to support its contention that Appellant‘s counterclaim was properly dismissed under the doctrine of res judicata. Upon examination of these cases, we find that they are distinguishable.
{¶ 13} In Hammerschmidt, this Court held that judgment on the pleadings was properly granted where the claim was barred by res judicata. Hammerschmidt, supra, at *2. In so finding, this Court took judicial notice of a prior judgment of the Medina Court of Common Pleas that was dispositive of the res judicata issue because the prior “judgment was incorporated into the pleadings and was set forth in the pleadings as an affirmative defense.” Id. at *1. Here, the operative judgments could not be incorporated into the pleadings, which were filed in 2002, because the judgments were entered after the pleadings were filed. Unlike this case, the trial court in Hammerschmidt did not look outside the pleadings to dispose of the matter.
{¶ 14} In Neusser, we affirmed the trial court‘s order granting judgment on the pleadings on the basis of res judicata. Neusser, supra. However, in contrast to the within matter, there is no indication that we based our decision in Neusser on documents that were not attached and/or incorporated into the pleadings. Id. at *2. Unlike this case, the order relied upon in Neusser existed prior to the filing of the complaint. Id. at *1-2.
{¶ 15} In addition, Appellee contends that even if the trial court erred in granting its motion, the error is harmless under the doctrine of substantial justice. Appellee effectively argues that the trial court‘s judgment should be upheld even if the trial court erred in granting the
{¶ 16} ”
{¶ 17} The Ohio Supreme Court has held that it is reversible error for a trial court to convert a motion to dismiss into a motion for summary judgment without providing notice to the parties. (Emphasis added). State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn. (1995), 72 Ohio St.3d 94, 96. As we held herein, the trial court improperly converted Appellee‘s motion into a summary judgment motion as “[n]o mechanism exists under the civil rules to convert a
{¶ 18} As we find that trial court erred in granting Appellee‘s motion for judgment on the pleadings, we sustain Appellant‘s sole assignment of error.
III.
{¶ 19} Appellant‘s assignment of error is sustained. The judgment of the Summit County Court of Common Pleas is reversed and the cause remanded for further proceedings consistent with this opinion.
Judgment reversed, and cause remanded.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellee.
Whitmore, P.J., Boyle, J., Concur.