[Cite as Schrock Road Mkts., Inc. v. Sun Life Assur. Co. of Canada, 2011-Ohio-4087.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
SCHROCK ROAD MARKETS, INC. JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellant Hon. Sheila G. Farmer, J.
Hon. Patricia A. Delaney, J.
-vs-
SUN LIFE ASSURANCE COMPANY Case No. 11CAE020015
OF CANADA, ET AL.
Defendants-Appellees OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Case No. 08CVC071052
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: August 16, 2011
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
DENNIS L. PERGRAM JEFFREY A. WILLIS
50 North Sandusky Street 191 West Nationwide Blvd.
Delaware, OH 43015-1926 Suite 300
Columbus, OH 43215
DIMITRI HATZIFOTINOS
141 East Town Street
Suite 200
Columbus, OH 43215
Delaware County, Case No. 11CAE020015 2
Farmer, J.
{¶1} On March 27, 2006, appellees, Sun Life Assurance Company of Canada
and Grubb & Ellis/Adena Realty Advisors, filed a complaint in the Court of Common
Pleas of Delaware County, Ohio for declaratory judgment against appellant, Schrock
Road Markets, Inc., to determine the ownership of some property located at the site of a
former Big Bear store (Case No. 06CVH030279) (hereinafter "Lawsuit I"). Appellees
filed an amended complaint on April 3, 2006, adding a breach of contract claim. On
April 5, 2006, appellant filed an answer and counterclaim for declaratory judgment. A
bench trial was held on September 5, 2006. By decision and entry filed October 27,
2006, the trial court found in favor of appellees as against appellant. Appellant
appealed. This court reversed the trial court's judgment and remanded the case for
further proceedings. Sun Life Assurance Company of Canada v. Schrock Road
Markets, Inc., Delaware App. No. 06CAE110089, 2008-Ohio-7.
{¶2} Upon remand, on February 11, 2008, appellant filed a motion for leave to
file a supplemental counterclaim to add claims of conversion, unjust enrichment, and
breach of constructive trust. By judgment entry filed February 13, 2008, the trial court
denied the motion.
{¶3} On February 28, 2008, appellant filed a complaint in the Court of Common
Pleas of Franklin County, Ohio against appellees, claiming conversion, unjust
enrichment, and breach of constructive trust (Case No. 08CVC023063) (hereinafter
"Lawsuit II"). On April 4, 2008, appellees filed a motion to dismiss and/or change
venue. By judgment entry filed June 13, 2008, the case was transferred to Delaware
County which is the case sub judice (Case No. 08CVC071052).
Delaware County, Case No. 11CAE020015 3
{¶4} On July 30, 2008, the trial court filed a judgment entry in Lawsuit I, finding
the real estate containing the disputed property had been sold and therefore the issues
in the lawsuit were moot. No appeal was taken.
{¶5} All parties filed motions for summary judgment in Lawsuit II. On January
18, 2011, the trial court filed a judgment entry granting appellees' motion to dismiss filed
on April 4, 2008, finding appellant's claims were compulsory counterclaims that should
have been asserted in Lawsuit I. The trial court rendered the motions for summary
judgment moot.
{¶6} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶7} "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN
GRANTING THE MOTION TO DISMISS."
I
{¶8} Appellant claims the trial court erred in granting appellees' Civ.R. 12(B)(6)
motion to dismiss. We agree.
{¶9} Our standard of review on a Civ.R. 12(B)(6) motion to dismiss is de novo.
Greeley v. Miami Valley Maintenance Contractors, Inc. (1990), 49 Ohio St.3d 228. A
motion to dismiss for failure to state a claim upon which relief can be granted is
procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey
County Board of Commissioners, 65 Ohio St.3d 545, 1992-Ohio-73. Under a de novo
analysis, we must accept all factual allegations of the complaint as true and all
Delaware County, Case No. 11CAE020015 4
reasonable inferences must be drawn in favor of the nonmoving party. Byrd. v. Faber
(1991), 57 Ohio St.3d 56.
{¶10} In its judgment entry filed January 18, 2011 granting appellees' motion to
dismiss, the trial court found the following:
{¶11} "Schrock the Plaintiff in their second case is obviously attempting to get
two bites at the apple. All of the counterclaims sought to be filed by Schrock in Case
No. 06 CVH 03 0279 January 28, 2008 existed when the original declaratory judgment
action was filed and should have been alleged as compulsory counterclaims pursuant to
Civil Rule.
{¶12} "Schrock however did not even attempt to pursue these claims until 16
months after trial at which time leave was sought for purposes of filing these claims
almost as an afterthought. This Court denied the motion for leave to file supplemental
pleadings 16 months after trial.
{¶13} "Schrock did not appeal this Court's decision but instead has attempted to
bypass the appeal by filing a new case based on the same pleadings and causes of
action in Franklin County."
{¶14} The gravamen of this case is whether appellant should have filed its
claims as a compulsory counterclaim to Lawsuit I or whether appellant should have filed
an appeal of the trial court's February 13, 2008 denial of its motion for leave to file a
supplemental counterclaim in Lawsuit I.
{¶15} In order to determine these issues, we will first address the status of the
record as it existed at the time of appellees' motion to dismiss.
Delaware County, Case No. 11CAE020015 5
{¶16} On April 4, 2008, appellees filed a motion to dismiss with exhibits which
included the April 3, 2006 amended complaint filed in Lawsuit I, the April 5, 2006
answer to the amended complaint and counterclaim, the trial court's October 27, 2006
decision and entry, this court's January 2, 2008 opinion and judgment entry, the
February 11, 2008 motion for leave to file a supplemental counterclaim, the trial court's
February 13, 2008 judgment entry denying said motion, and the complaint filed in
Franklin County on February 28, 2008. The attachments were attested to by Jeffrey
Willis, Esq., who averred "the pleadings and memoranda attached to this Motion to
Dismiss, which were filed in the Delaware County Court of Common Pleas, Case No.
Case No. (sic) 06-CVH-03-279 ('Delaware County Case'), are true and accurate
copies."
{¶17} The February 28, 2008 complaint alleged conversion, unjust enrichment,
and breach of constructive trust. On August 6, 2008, appellees filed an answer with
twenty affirmative defenses. Affirmative defense nos. 12, 13, and 18 raised the issues
of failure to file a compulsory counterclaim in Lawsuit I, collateral estoppel, res judicata,
and mootness.
{¶18} The four corners of the complaint and the answer do not include the
previous rulings from the trial court and this court. Clearly the trial court proceeded in
rendering its decision by looking outside the four corners of the pleadings. The matter
should have been converted to summary judgment status as Civ.R. 12(B) requires. We
note summary judgment motions were pending which the trial court deemed moot in its
January 18, 2011 judgment entry.
Delaware County, Case No. 11CAE020015 6
{¶19} Because matters were considered beyond the four corners of the
pleadings, we reverse the trial court's decision, and remand the matter for further
proceedings.
{¶20} We note appellees argued the previous rulings were attached to their
motion to dismiss via Attorney Willis's affidavit. The proper authentication of these
documents is not via an affidavit of an attorney, but by certification of the clerk.
{¶21} In Helfish v. Madison, Licking App. No. 08-CA-150, 2009-Ohio-5140, ¶40,
49, this court held the following:
{¶22} "The pleadings filed in the instant case were a part of the record in this
case and the court could consider these pleadings in making a determination on
summary judgment. However, the record in Case No. 05 CV 00120 is not a part of the
record in this case, and the pleadings appellees relied on in that case must be properly
before the court as admissible evidence before they may be considered by the court in
ruling on the summary judgment motion. E.g., Nationwide v. Kallberg, Lorain App. No.
06CA008968, 2007-Ohio-2041, ¶20, 22.
{¶23} "***
{¶24} "We note that the court did not state that it was taking judicial notice of any
of the pleadings in Case No. 05 CV 00120. Further, the court could not take judicial
notice of such pleadings. This Court has stated in dicta that we agreed with the
proposition that the trial court can take judicial notice of prior lawsuits filed in its own
court. Lansing v. Hybud Equipment Co., Stark App. No.2002CA00112, 2002-Ohio-
5869, ¶16. A trial court can take judicial notice of the court's docket. State v.
Washington (August 27, 1987, Cuyahoga App. Nos. 52676, 52677, 52678 at 15.
Delaware County, Case No. 11CAE020015 7
However, a court does not have the authority to take judicial notice of the proceedings
in another case, including its own judgment entries. Eg., State v. LaFever, Belmont
App. No. 02 BE 71, 2003-Ohio-6545, ¶27; State v. Blaine, Highland App. No. 03CA9,
2004-Ohio-1241, ¶17; Diversified Mortgage Investors, Inc. v. Athens Cty. Bd. of
Revision (1982), 7 Ohio App.3d 157, 454 N.E.2d 1330; NorthPoint Properties, Inc. v.
Petticord, 179 Ohio App.3d 342, 2008-Ohio-5996, ¶16. The rationale for this holding is
that if a trial court takes notice of a prior proceeding, the appellate court cannot review
whether the trial court correctly interpreted the prior case because the record of the prior
case is not before the appellate court. Eg. Blaine, supra, ¶17; LaFever, supra, ¶27;
Buoscio, supra, ¶34."
{¶25} The motion to dismiss and the attachments thereto created evidentiary
issues which pursuant to Civ.R. 12(B) should have been converted into a motion for
summary judgment which was not done sub judice.
{¶26} The sole assignment of error is granted.
Delaware County, Case No. 11CAE020015 8
{¶27} The judgment of the Court of Common Pleas of Delaware County, Ohio is
hereby reversed.
By Farmer, J.
Delaney, J. concur and
Hoffman, P.J. concurs separately
s/ Sheila G. Farmer_________________
s/ Patricia A. Delaney_________________
___________________________________
JUDGES
SGF/sg 714
Delaware County, Case No. 11CAE020015 9
Hoffman, P.J.,
{¶28} I concur in the majority’s analysis and disposition. However, I would go
further and conclude Appellant’s claims were not compulsory counterclaims in the
original declaratory judgment action. The claims arose because of Appellees’
disposition of the property which occurred after the original complaint and counterclaim
were filed and while the initial appeal therefrom was pending.
{¶29} I find the claims were not compulsory given the underlying action was only
for declaratory judgment concerning ownership of the property.
{¶30} Because Appellees sold the property after the declaratory judgment action
had been decided, Appellant could seek leave to file a supplemental complaint or,
alternatively, institute a new action. I do not believe the two alternatives are exclusive.
{¶31} I find it would be inequitable for Appellees to benefit from their sale of the
property during the pendency of the appeal, particularly given this Court’s prior
declaration the property in dispute was a fixture and determining Appellant was the legal
owner.
s / William B. Hoffman_____________
HON. WILLIAM B. HOFFMAN
Delaware County, Case No. 11CAE020015 10
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
SCHROCK ROAD MARKETS, INC. :
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
SUN LIFE ASSURANCE COMPANY :
OF CANADA, ET AL. :
:
Defendants-Appellees : CASE NO. 11CAE020015
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Delaware County, Ohio is reversed, and the
matter is remanded to said court for further proceedings consistent with this opinion.
Costs to appellees.
s/ Sheila G. Farmer_________________
s/ Patricia A. Delaney_________________
_s/ William B. Hoffman________________
JUDGES