STEPHEN A. RICE, et al. v. CHERISH LEWIS
Case No. 13CA3551
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
12-30-13
2013-Ohio-5890
ABELE, J.
DECISION AND JUDGMENT ENTRY
COUNSEL FOR APPELLANT: Konrad Kircher, 4824 Socialville-Foster Road, Suite 110, Mason, Ohio 45040
COUNSEL FOR APPELLEES: Rebecca L. Bennett, 626 Seventh Street, Portsmouth, Ohio 45662
CIVIL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED: 12-30-13
ABELE, J.
{1} This is an appeal from a Scioto County Common Pleas Court, Domestic Relations Division, judgment that dismissed two petitions for a Sexually Oriented Offender Protection Order (SOOPO) filed by Cherish Lewis, defendant below and appellant herein, against Stephen Rice and Regina Kelley, plaintiffs below and appellees herein. Appellant assigns the following error for review:
“THE TRIAL COURT ERRED IN DISMISSING THE SEXUALLY ORIENTED OFFENSE PROTECTION ORDERS ON RES JUDICATA GROUNDS.”
{3} The instant appeal arises from appellant‘s July 26, 2012 petitions for a civil SOOPO against appellees. Appellant alleged that Rice committed a sexually oriented offense against the child, and that Kelley failed to protect the child from Rice‘s alleged sexual abuse. Appellant based her petition upon conduct that allegedly occurred in November 2007, June 2008, November 2008, and “late 2011.”
{4} On October 19, 2012, appellees filed a motion to dismiss appellant‘s petition and asserted that the doctrine of res judicata barred appellant‘s petition. Appellees contended that the domestic relations court had during prior proceedings considered, and rejected, appellant‘s sexual abuse allegations.
{5} Appellees further argued that appellant raised the same allegations in the juvenile court when she sought an ex parte emergency custody order. To support their argument, appellees attached various documents, including filings from the juvenile court proceedings. On August 1, 2008 appellant filed a complaint in juvenile court and alleged the child to be abused and neglected, and requested temporary and permanent custody. Appellant further requested the juvenile court to enter “a protective order vesting the custody of said child in said natural mother
{6} Appellees additionally contended that appellant raised the same sexual abuse allegations in October 2010 when she filed a report in Hillsborough County, Florida. Appellees attached to their motion to dismiss an investigative summary of this 2010 report. The report contains no new sexual abuse allegations, but instead relies upon the same allegations that appellant presented during the juvenile court proceedings.
{7} Appellees also attached a 2011 investigative summary from Pinellas County, Florida. The 2011 summary does not contain any new sexual abuse allegations. Instead, the summary indicates that the sexual abuse allegations were based upon the same conduct that appellant had raised during the juvenile court proceedings and during the domestic relations proceeding.
{8} On April 2, 2013, the trial court agreed with appellees and dismissed appellant‘s petition on the basis of res judicata. The court determined that appellant previously raised the sexual abuse allegations in prior court proceedings and, thus, is barred from re-litigating them. This appeal followed.
A
MOTION TO DISMISS
{10} A
{11} When a trial court considers a
“When a motion to dismiss presents matters outside the pleadings, the trial court may either exclude the extraneous matter from its consideration or treat the motion as one for summary judgment and dispose of it pursuant to
Civ.R. 56 . However, a trial court may not, on its own motion, convert aCiv.R. 12(B)(6) motion to dismiss to a motion for summary judgment and thus dispose of it without giving notice to the parties of its intent to do so and fully complying withCiv.R. 12(B) andCiv.R. 56 in its considerations.Civ.R. 12(B) ; State ex rel. Baran v. Fuerst (1990), 55 Ohio St.3d 94, 97, 563 N.E.2d 713, 716. * * * *
Civ.R. 12(B) provides:When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. Provided however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56. All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56.”
{12} Furthermore, “[i]t is well established that a
”
Civ.R. 8(C) designates res judicata an affirmative defense.Civ.R. 12(B) enumerates defenses that may be raised by motion and does not mention res judicata. Accordingly, we hold that the defense of res judicata may not be raised by motion to dismiss underCiv.R. 12(B) .”
Id. at 109, citing Johnson v. Linder, 14 Ohio App.3d 412, 471 N.E.2d 815 (1984). “Instead, summary judgment is the preferred means by which to address res judicata.” Hutchinson at ¶15, citing Cooper v. Highland Cty. Bd. of Commrs., 4th Dist. Highland No. 01CA15, 2002-Ohio-2353, ¶11.
{13} In the case at bar, appellees’ motion to dismiss presented evidence outside the pleadings and appellant submitted evidence outside the pleadings in her memorandum opposing appellees’ motion to dismiss. In deciding appellees’ motion on the basis of res judicata, the trial court necessarily considered evidence outside the pleadings. Hutchinson at ¶15. Consequently, we believe that the trial court should have either refused to consider the extraneous evidence, or
{14} Although we believe that the trial court erred by treating appellees’ motion as a summary judgment motion without notifying the parties, we will generally disregard the error as harmless if it does not affect the parties’ substantial rights.
No error * * * or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
{15} “[T]he preeminent purpose behind the conversion-notification requirement” is to “permit[] the nonmoving party sufficient opportunity to respond to a converted summary judgment motion.” State ex rel. The V Cos. v. Marshall, 81 Ohio St.3d 467, 472, 692 N.E.2d 198 (1998). “The primary vice of unexpected conversion to summary judgment is that it denies the surprised party sufficient opportunity to discover and bring forward factual matters which
{16} Thus, a trial court‘s error in considering a
{17} In the case sub judice, we believe that the trial court‘s actions constitutes harmless error. Appellant had sufficient notice and an opportunity to respond to appellees’ motion. Appellant filed her opposition memorandum ten days after appellees’ filed their motion. The trial court did not issue a decision for approximately five months. Had appellant wished to submit additional evidence, she had sufficient time to do so.
{18} Moreover, appellant also attached evidence outside the pleadings to her opposition memorandum. EMC Mtge. at ¶14 (“When a party opposing a motion to dismiss based on matters outside the face of its complaint submits evidence outside the complaint in
{19} Consequently, because the trial court should have explicitly regarded appellees’ motion as a summary judgment motion, we now examine whether the trial court‘s judgment in appellees’ favor is appropriate under
B
SUMMARY JUDGMENT
{20} Appellate courts generally review trial court summary judgment decisions de novo. E.g., Troyer v. Janis, 132 Ohio St.3d 229, 2012-Ohio-2406, 971 N.E.2d 862, ¶6; Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). In other words, an appellate court must independently review the record to determine if summary judgment is appropriate and need not defer to the trial court‘s decision. E.g., Brown v. Scioto Bd. of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (1993); Morehead v. Conley, 75 Ohio App.3d 409, 411-12, 599 N.E.2d 786 (1991). To determine whether a trial court properly granted a summary judgment motion, an appellate court must review the
Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action,
show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party‘s favor.
{21} Thus, pursuant to
{22} Moreover, when considering a summary judgment motion,
{23} In the case sub judice, both parties submitted evidence other than the type specified in
C
RES JUDICATA
{24} In her sole assignment of error, appellant asserts that the trial court erred by dismissing her petition because the court wrongly determined that res judicata barred her petition. Appellant argues that the domestic relations court did not issue a final order and, thus, res judicata does not prohibit the SOOPOs. Appellant further argues that the juvenile court proceedings are not “res judicata because they are not the same ‘claims or causes of action’ presented by the SOOPOs.” Instead, appellant contends that her SOOPOs involve different issues than the issues that the juvenile court considered. She argues that whether appellee
{25} The doctrine of res judicata provides that a “valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action.” Kelm v. Kelm, 92 Ohio St.3d 223, 227, 749 N.E.2d 299 (2001), quoting Grava v. Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995), syllabus.
“That a plaintiff changes the relief sought does not rescue the claim from being barred by res judicata: ‘“The rule * * * applies to extinguish a claim by the plaintiff against the defendant even though the plaintiff is prepared in the second action * * * [t]o seek remedies * * * not demanded in the first action.” (Emphasis added.)’ Grava, 73 Ohio St.3d at 383, 653 N.E.2d 226, quoting 1 Restatement of the Law 2d, Judgments (1982) 209, Section 25.”
U.S. Bank Natl. Assn. v. Gullotta, 120 Ohio St.3d 399, 2008-Ohio-6268, 899 N.E.2d 987 (2008), ¶27. “The applicability of res judicata is a question of law that is subject to de novo review.” Althof v. State, 4th Dist. Gallia No. 04CA16, 2006-Ohio-502, ¶13; accord Bell v. Turner, 4th Dist. Highland Nos. 12CA14 and 12CA15, 2013-Ohio-1323, ¶14.
{26} In determining whether a subsequent action arises out of the same transaction or occurrence involved in a previous action, a court examines whether the actions share a “common nucleus of operative facts.” Grava, 73 Ohio St.3d at 382, quoting 1 Restatement of the Law 2d, Judgments (1982) 198-199, Section 24, Comment b.
““[T]o determine whether a second action is barred by a first, a court should consider the facts essential to the maintenance of each cause of action. If the same facts or evidence would sustain both, then the second action is barred by res judicata. If, however, the two cases rely upon different facts, a judgment in one case is no bar to the maintenance of the other. “Different facts” do not include
“different shadings of the facts” or an emphasis “of different elements of the facts.” (Footnotes omitted .)”
Beneficial Ohio, Inc. v. Parish, 4th Dist. Ross No. 11CA3210, 2012-Ohio-1146, ¶11, quoting Geiger v. Westfield Natl. Ins. Co., 1st Dist. No. C-080355, 2008-Ohio-6904, ¶7, citing Norwood v. McDonald, 142 Ohio St. 299, 52 N.E.2d 67 (1943), reversed on other grounds in Grava.
{27} In the case sub judice, appellant contends that res judicata does not apply because (1) the domestic relations court did not issue a final order, and (2) her SOOPOs involve different issues (i.e., ordering appellees to say away from the child) than the issues raised during the juvenile court proceedings (i.e., custody). We disagree with appellant.2
{28} Appellant‘s abuse and neglect complaint and her SOOPOs involve a common nucleus of operative facts. Both actions (1) claim that the child‘s father has sexually abused the child, (2) involve the same sexual abuse allegations, (3) seek to keep the father (and the grandmother) away from the child. Appellant‘s assertion that res judicata cannot apply to the juvenile court‘s judgment because her SOOPO involves a different claim or cause of action is incorrect. Gullotta, supra. Her SOOPOs are “any claim” that arose out of the same sexual abuse allegations raised during the juvenile court proceedings. Moreover, the SOOPOs do not
{29} Appellant nevertheless attempts to create a new allegation of sexual abuse by referring to a 2011 report that an unknown person made in Pinnelas County, Florida. The Pinnelas County report does not, however, contain any new sexual abuse allegations. Instead, it simply rehashes the same sexual abuse allegations that appellant has made throughout the parties’ lengthy custody battle and during the juvenile court proceedings. A review of a 2011 report shows that it is based upon the same nucleus of operative facts that appellant raised during the juvenile court proceedings. The 2011 report notes that in 2010, the state of Florida investigated sexual abuse allegations involving the father and the child and that those “allegations regarding the sexual abuse [are] identical to the current report.” The 2010 “narrative” section of the report observes that allegations of physical and sexual abuse were made in 2007 and again after the child returned from a visit with the father in the state of California. The 2010 report noted that “[t]here have been several reports made with the same allegations of sexual abuse in Ohio.” The report stated: “If another report is received with allegations of sexual abuse CPID should consider judicial action due to mental injury based on the numerous reports throughout three states. The sex abuse allegations have been addressed with California,
{30} Again, the 2010 report does not contain any allegations of sexual abuse that occurred after the juvenile court‘s judgment. Thus, because appellant‘s SOOPOs arise out of the same nucleus of operative facts as the abuse and neglect complaint, the juvenile court‘s judgment bars her SOOPOS.
{31} We further observe that although the juvenile court‘s judgment bars appellant‘s SOOPO,
{32} Accordingly, based upon the foregoing reasons, we hereby overrule appellant‘s sole assignment of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
It is ordered that the judgment be affirmed and that appellees recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court, Domestic Relations Division, to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J. & *Hendon, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.
*Judge Sylvia Hendon, First Appellate District, sitting by assignment of the Ohio Supreme Court in the Fourth Appellate District.