Gardner v. PaxtonGardner v. Paxton
Douglas S. Gardner, Marietta, Ohio, pro se appellant.
Timothy C. Loughry, Loughry, Buell & Sipe, LLC, Marietta, Ohio for appellee.
Harsha, J.
{¶1} Douglas S. Gardner appeals the dismissal of his complaint and contends that the trial court erred by relying upon res judicata grounds. We agree, but for different reasons than those argued by Gardner.
{¶2} Res judicata is an affirmative defense and cannоt be raised in a
{¶3} Here the trial court created рlain error when it failed to convert the motion to dismiss into a summary judgment motion and give Gardner notice and the opportunity to respond in accordance with
{¶4} Gardner filed a cоmplaint against Rodney E. Paxton alleging that Paxton and he were both members of Triple Tree Pre-Cut Products, a limited liability company, but Paxton had failed to make equal contributions and had engaged in various improper transactions involving Triple Tree. Paxton moved to dismiss the complaint under
{¶5} After Gardner filed an amended complaint Paxton filed a second motion to dismiss on various grounds, including rеs judicata. Paxton argued that Gardner‘s claims all related back to the prior Gardner‘s Custom Sawing action.
{¶6} Instead of converting the motion to summаry judgment, the trial court granted Paxton‘s motion to dismiss on res judicata grounds, finding:
As to Counts 1 through 6 set forth in the Amended Complaint, this Court finds the same to be barred based upon the doctrine of res judicata and the rulings in Gardner‘s Custom Sawing, LLC, et al. v. Silvesco, Inc., et al. 10 OT 31 [sic].
II. ASSIGNMENT OF ERROR
{¶7} Gardner assigns the following error for our review:
THE TRIAL COURT ERRED IN GRANTING RES JUDICATA TO APPELLEE RODNEY E[.] PAXTON.1
III. LAW AND ANALYSIS
{¶8} “We review a trial court‘s decision to grant a motion to dismiss on a de novo basis.” Cooper v. Highland Cty. Bd. of Commrs., 4th Dist. Highland No. 01CA15, 2002-Ohio-2353, ¶ 8. The applicability of res judicata presents a question of law that is subject to de novo review. State ex rel. Jeffers v. Athens Cty. Commrs., 4th Dist. Athens No. 15CA27, 2016-Ohio-8119, ¶ 40.
{¶9} In his motion to dismiss Paxton contended that Gardner‘s claims were barrеd by res judicata because they all relate back to and were resolved by the Gardner‘s Custom Sawing action involving the same partiеs. The trial court did not convert Paxton‘s motion to a summary judgment motion. Paxton did not submit any affidavits or documents from the prior litigation to support his res judicata defense or otherwise connect Gardner‘s current claims to those asserted in thе prior action.
{¶10} “Res judicata is an affirmative defense.
{¶11} The trial court granted Paxton‘s motiоn to dismiss and determined that Gardner‘s claims were barred by res judicata. However, the trial court should have converted Pаxton‘s motion to a summary judgment motion and given Gardner notice and an opportunity to respond. Jefferson at ¶ 12-13. In fact, in his supporting memоrandum Paxton implicitly acknowledged the need for his res judicata defense to be addressed in a summary judgment motion: “In the еvent that the Court grants leave for Plaintiff to amend their [sic] complaint, or if the Court converts Defendant‘s motion to dismiss into a motion for summary judgment, Defendant anticipates proceeding on grounds of res judicata in summary judgment, as this matter and the rеlated claims were previously litigated before this Court in Gardner‘s Custom Sawing, LLC, et al. v. Silvesco, Inc., et al., 10 OT 41.”
{¶12} We sustain Gardner‘s solе assignment of error on the basis of a due process plain error. See Burchett v. Burchett, 4th Dist. Scioto No. 16CA3784, 2017-Ohio-8124, ¶ 15, citing Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997) (discussing standard for invoking plain error doctrine in a civil case).
IV. CONCLUSION
{¶13} Res judicata is an affirmative defense that cannot be raised in a motion to dismiss under
JUDGMENT REVERSED AND CAUSE REMANDED.
It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS REMANDED. Appellee shall pay the costs.
The Court finds there were reasonablе grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Court of Commоn Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon thе bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court оf Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 оf the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute thе mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
McFarland, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutеs a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.