FirstMerit Bank v. Hortpro, Inc., (Ohio 2008)
Linked as:
Summary
cognovit promissory note, replevin, res judicata
Summary
cognovit promissory note, replevin, res judicata
Text
[Cite as FirstMerit Bank v. Hortpro, Inc., 2008-Ohio-5975.]
STATE OF OHIO
)
IN THE COURT OF APPEALS
)ss:
NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
FIRST MERIT BANK C.A. No. 24152
Appellant
v.
APPEAL FROM JUDGMENT
ENTERED IN THE HORTPRO, INC. et al.
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO Appellees CASE No.
CV 2007-11-7743
DECISION AND JOURNAL ENTRY
Dated: November 19, 2008
Per Curiam.
Plaintiff/Appellant, FirstMerit Bank, N.A. ("Bank") appeals the judgment of the Summit County Court of Common Pleas dismissing its complaint against Defendant/Appellees, Hortpro, Inc. and Kaan M. Aydin (collectively "Hortpro"). We reverse.
On November 6, 2007, Bank filed a complaint for replevin and conversion against Hortpro seeking possession of certain assets that Bank alleged Hortpro pledged as collateral to secure repayment of a cognovit promissory note executed by Hortpro on November 7, 2001 (the "note"). Bank had previously obtained a judgment on the note in the amount of $281,865.36, plus interest and court costs in Summit County Court of Common Pleas Case No. CV 2006-03- 2069 ("first action"). On November 21, 2007, Hortpro moved the trial court for a hearing on the matter, and a hearing was set for January 25, 2008. On January 10, 2008, Hortpro moved to dismiss the action based on the doctrine of res judicata and the judgment entered in the first action. Bank responded on February 1, 2008. On February 4, 2008, Bank voluntarily dismissed
- 1 -
its conversion claim. On March 5, 2008, the trial court dismissed Bank's complaint finding that it was "barred by the doctrine of res judicata because [Bank] received judgment on the promissory note in" the first action.
Bank timely appealed and raises one assignment of error.
Assignment of Error "The trial court erred by granting [Hortpro's] motion to dismiss."
In its first assignment of error, Bank asserts that the trial court erred when it dismissed its complaint based on the doctrine of res judicata. Bank maintains that it is entitled to seek possession of the collateral assets by a replevin action because it has a valid and subsisting security agreement for the assets and an action for replevin and a complaint for money damages are separate and distinct. Moreover, Bank maintains, "any requirement to file a [r]eplevin [c]omplaint and [m]otion for [p]ossession before filing a [c]omplaint on a [c]ognovit [n]ote pursuant to Ohio Revised Code 2323.12 and 2323.13 is contrary to the purpose of [j]udgment by [c]onfession." Such requirement would "render any cognovit provision in a promissory note void."
Hortpro asserts that R.C. 2737.02 expressly prohibits a party from seeking possession of personal property after final judgment has been entered. Hortpro also asserts that Bank could have and should have sought possession of the assets in the first action and thus, is precluded from doing so now by the doctrine of res judicata.
We agree that the trial court improperly dismissed the Bank's complaint but for different reasons. A trial court may not grant a motion to dismiss based on res judicata. State ex rel. Freeman v. Morris (1991), 62 Ohio St.3d 107, 109; Nosal v. Fairlawn Corporate Ctr., 9th Dist. No. 23846, 2008-Ohio-414, at ¶13; Niepsuj v. Summa Health Sys., 9th Dist. Nos. 21557,
- 2 -
21559, 2004-Ohio-115, at ¶7, citing Freeman, supra. Moreover, the trial court based its decision on matters outside the pleadings, i.e., the judgment entry in the first action, without properly converting the motion into one for summary judgment. As in Freeman, "it treated the case as if it were converting the motion to dismiss into a motion for summary judgment. In such a case, Civ.R. 12(B) requires that the court consider `only such matters outside the pleadings as are specifically enumerated in Rule 56.' Civ.R. 56(C) enumerates `pleading[s], depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact.'" Id. The pleadings in the first action, submitted without affidavit, are none of these. See id. See, also, Costoff v. Akron Gen. Med. Ctr. 9th Dist. No. 22010, 2004- Ohio-5166, at ¶14-15 (noting that a certified copy of judgment entry without an affidavit would be proper Civ.R. 56(C) evidence). Accordingly, the case is not a proper one for summary judgment and, as set forth above, a trial court may not grant a motion to dismiss based on res judicata. Freeman, supra.
Bank's assignment of error is sustained and the judgment of the Summit County Court of Common Pleas is reversed.
Judgment reversed.
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 App.R. 27.
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
- 3 -
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellees.
DONNA J.
CARR
FOR THE COURT
CARR, P. J.
MOORE, J.
CONCUR SLABY, J.
DISSENTS, SAYING:
I respectfully dissent. While I acknowledge the rule set forth in State ex rel.
Freeman v. Morris (1991), 62 Ohio St.3d 107, the Bank did not raise this issue in response to Hortpro's motion to dismiss or on appeal, and I would not make the argument or consider its merit sua sponte. I would address the merits of the Bank's appeal and upon review of the merits, I would affirm.
APPEARANCES: ANDREW C. VOORHEES, Attorney at Law, for Appellant.
MICHELLE L. DIBARTOLO, Attorney at Law, for Appellees.
- 4 -
Sponsored links
