[Cite as Rolph v. Rolph, 2026-Ohio-3005.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BROWN COUNTY
MARTIN ROLPH, et al., :
CASE NO. CA2025-08-013
Appellees, :
OPINION AND
vs. : JUDGMENT ENTRY
8/4/2026
DANIEL ROLPH, et al., :
Appellants. :
:
CIVIL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS
Case No. 2023-0418
Cors & Bassett, LLC, and Kevin R. Feazell; and Patrick J. Gregory and David E. Grimes, for appellees.
Yonas & Phillabaum, LLC, and Jason Phillabaum, James Boyd, and Hope Platzbecker, for appellants.
OPINION
BYRNE, P.J.
{¶ 1} Plaintiffs-Appellants, Martin Rolph, James Rolph, Julie Robke, and Luke
Rolph (collectively, "Plaintiffs"), appeal from the decision of the Brown County Court of
Common Pleas, General Division, which granted summary judgment on all claims in
Brown CA2025-08-013
favor of Defendants-Appellees, Daniel and Christina Rolph (collectively, "Defendants").
For the reasons described below, we affirm.
I. Factual and Procedural Background
A. Background Facts
{¶ 2} This matter involves the Estate of Judy Martin Gray and an inter vivos
transfer of her real property. The following facts, unless noted, are not in dispute.
{¶ 3} Gray passed away on April 22, 2022. Four of Gray's five children survived
her: Plaintiffs Martin, James, and Julie, and Defendant Daniel. Gray's son, Christopher,
predeceased her. Christopher had two children, Plaintiff Luke and non-party Grant.
{¶ 4} Gray executed her last will and testament in August 2021. In the will, Gray
divided her beneficial estate into five equal shares. Her four surviving children would each
receive a one-fifth share. The remaining one-fifth share would be split between
Christopher's sons, Plaintiff Luke and non-party Grant.
{¶ 5} At the heart of this dispute is the family farm ("the Farm"), which was an
approximate 300-acre farm located at 7618 State Route 505, Felicity, Brown County,
Ohio. Gray and her late husband raised their children on the Farm.
{¶ 6} Beginning in or around 2005, Defendant Daniel moved back to the Farm
and began working there as a self-employed farmer. He lived in a home on the property
next door to Gray. The record is not clear, but it appears that Defendants Daniel and
Christina lived together as husband and wife while living at the Farm.
{¶ 7} In 2014, eight years prior to her death, Gray entered into a land contract
("Land Contract") with Defendants Daniel and Christina, allowing them to purchase the
Farm. The Land Contract specified a purchase price of $600,000, payable by 10 annual
payments of approximately $27,000 per year, with interest accruing at 2% per annum.
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Defendants further agreed to pay the outstanding balance in the 11th year, and agreed to
obtain financing or other sources of funds to make this final payment.
{¶ 8} At the time Gray entered into the Land Contract, she allegedly wrote a letter
to her other children informing them that she had decided to sell the Farm to the
Defendants, which would allow them to continue farming and keep the Farm in the family
for at least another generation.1 She also stated that the money from this sale would "go
into my trust" and what was left would be divided "between the five of you." There is no
evidence that Gray created a trust for the benefit of her children or deposited money
received from the Land Contract into a trust.
{¶ 9} Beginning in 2015, Defendants began making the annual payments on the
Land Contract and paid $27,000 each year until 2020, making a total of six payments
totaling $162,000 in principal and interest.
{¶ 10} In August 2020, Gray transferred the Farm by general warranty deed to the
Defendants. The deed reflected that it released the Land Contract, and referenced the
Land Contract by recorded book and page number. On the same day, Gray transferred
her own house by general warranty deed to Plaintiff Julie. At her deposition, Plaintiff Julie
testified that she drove Gray to the law office of Gray's attorney, Michael Pfeffer, where
the deeds for these two transfers were prepared and executed.
{¶ 11} Gray's last will and testament nominated Michael Pfeffer as Executor of her
estate. The will further identified Defendants as alternate co-executors. After Gray's
passing, Pfeffer was unable to serve as executor. Defendants thereafter opened Gray's
Estate in the Brown County Court of Common Pleas, Probate Division.
1. The letter is in evidence, but some Plaintiffs dispute whether Gray wrote the letter.
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B. The Probate Division Matter
{¶ 12} After the Estate was opened and the inventory filed, Plaintiff Martin filed a
motion with the probate court to disqualify the Defendants as co-executors, pursuant to
R.C. 2113.18. That statute allows a probate court to remove an executor if there are
"unsettled claims" between the executor and the estate that the court believes may be
the subject of controversy or litigation. Plaintiff Martin alleged that there was
approximately $600,000 missing from the estate inventory because Defendants had failed
to pay the Land Contract in full. Martin asked the probate court to appoint him estate
administrator.
{¶ 13} A magistrate with the probate court held an evidentiary hearing on the
motion to disqualify and testimony and evidence was offered. At the conclusion of the
hearing, the magistrate orally announced that the transfer of the Farm to the Defendants
by deed was a valid transfer. In a subsequent written decision, the magistrate found that
the terms of the Land Contract merged with the deed executed in August 2020. The
magistrate noted that no exceptions were filed to the inventory, which did not list the Farm
as an estate asset. The magistrate overruled the motion to remove the co-executors.
{¶ 14} Plaintiff Martin objected to the magistrate's decision. Martin objected on the
basis that (1) removal of the co-executors was required due to the high likelihood of
litigation between heirs and co-executors, (2) the magistrate erred by refusing to permit
evidence regarding the transfer of the Farm, and (3) the magistrate erred by not taking
into account that the vested beneficiaries of Gray's will (other than Defendant Daniel)
supported removing Defendants.
{¶ 15} The probate court judge overruled the objections. Like the magistrate, the
judge found that the payment terms of the Land Contract merged with the August 2020
transfer by deed. The judge also found no basis to remove the co-executors based on a
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"high" probability of litigation. The judge noted that the Land Contract was not listed on
the estate inventory and no party had filed exceptions to the inventory. The court found
that "unknown litigation" did not require removing the Defendants as co-executors.
{¶ 16} Lastly, the judge found that the magistrate did not err in refusing to permit
evidence related to Gray's mental condition at the time of the execution of the August
2020 deeds. The judge found that no medical testimony had been submitted and Plaintiff
Julie, who was present for the execution of the deed, "allowed it to happen" and benefitted
from the transfer of Gray's home that day. The court questioned why Plaintiff Julie would
now question the legitimacy of a transfer in which she was an active participant.
{¶ 17} Plaintiff Martin did not appeal the probate court's decision.
C. The General Division Matter
1. Plaintiffs' Complaint, Defendants' Answer, and Discovery
{¶ 18} Approximately six months later, in July 2023, Plaintiffs filed a complaint in
the Brown County Court of Common Pleas, General Division, against Defendants Daniel
and Christina, both in their individual capacities and as co-executors of Gray's Estate. In
the complaint, Plaintiffs asserted five counts: (1) intentional interference with the
expectancy of an inheritance ("IIEI"), (2) fraud, (3) undue influence, (4) unjust enrichment,
and (5) quiet title. Only three of those claims have been raised as issues in this appeal:
IIEI, fraud, and undue influence.
{¶ 19} With respect to the IIEI claim, Plaintiffs asserted that Defendants committed
fraud, duress, and/or undue influence to intentionally interfere with their expectation of an
inheritance.
{¶ 20} With respect to the fraud claim, Plaintiffs asserted that the Defendants made
"false statements" to Gray in order to induce her to convey the Farm to them before the
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Land Contract had been fulfilled. The complaint did not state what false statements were
made by the Defendants.
{¶ 21} Regarding the undue influence claim, Plaintiffs asserted that Defendants
believed or knew that Gray was suffering from diminished capacity and susceptible to
their influence and exerted improper influence over her.
{¶ 22} In answering the complaint, Defendants stated the following as their
affirmative defenses: (1) "Plaintiffs fail to state a claim upon which relief can be granted";
(2) "Defendants set forth all affirmative defenses listed in Ohio Civil Rule 8(c) until
discovery can be completed in this matter"; and (3) "Plaintiffs failed to include all
necessary parties."
{¶ 23} The parties thereafter engaged in discovery, including taking depositions of
Defendant Daniel and each of the Plaintiffs. Afterward, Defendants moved for summary
judgment on all claims.
2. Defendants' Motion for Summary Judgment
{¶ 24} In support of summary judgment, Defendants first argued that the complaint
was barred by issue preclusion. Defendants argued that the probate court's decision on
Plaintiff Martin's motion to disqualify found that the conveyance of the Farm to the
Defendants was legally valid. Defendants argued that this determination had a preclusive
effect in any subsequent proceedings and all parties to the Estate were bound by that
decision. Defendants argued that the complaint was an attempt to relitigate that issue and
should be barred.
{¶ 25} Turning to the merits, Defendants argued that Plaintiffs could not meet their
burden of proof on any claims due to a lack of evidence. With regard to fraud, Defendants
argued that the complaint was defectively vague as to what alleged acts or statements by
the Defendants were fraudulent and that each of the Plaintiffs at deposition failed to
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identify any false statements made to Gray to induce her to convey the Farm to
Defendants.
{¶ 26} With regard to the IIEI and undue influence claims, Defendants again
pointed to the depositions of the Plaintiffs, in which some testified that they had no real
expectation of an inheritance from Gray, or that they only expected Gray's estate to be
divided equally, as was the case in her will. Defendants argued that none of the Plaintiffs
could identify any specific conduct by either Defendant towards Gray that could be
characterized as fraudulent, causing duress, or undue influence.
{¶ 27} With regard to allegations of diminished capacity, and with respect to the
undue influence claim, Defendants argued that Gray was "never actually diagnosed with
dementia" and pointed to a neuropsychological test requested by Gray, which only
showed "mild cognitive impairment." Defendants pointed to their own expert testimony,
which found that given Gray's improving mental state between two neuropsychological
exams, she could not have been suffering from dementia, which is a progressive disease.
3. Plaintiffs' Opposition to Summary Judgment
{¶ 28} In opposing summary judgment, Plaintiffs argued that Defendants' issue
preclusion argument was an attempt to assert the affirmative defense of res judicata, and
was waived because it was not raised in the Defendants' answer. Furthermore, Plaintiffs
argued that even if Defendants had not waived the assertion of res judicata, issue
preclusion was only applicable to facts or points actually determined in a prior proceeding
and was limited by the probate court's jurisdiction.
{¶ 29} Plaintiffs argued that the probate court had no jurisdiction over complaints
for money damages arising from fraud, and while a declaratory judgment action about the
validity of inter vivos transfers can be brought in probate court, no such action was filed
in the probate court. Plaintiffs argued that the only issues raised with the probate court
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were (1) whether the co-executors should be removed due to potential litigation, and (2)
what assets were currently in Gray's estate. On the other hand, Plaintiffs argued that the
issues before the general division of the common pleas court were "whether the Family
Farm and its value were obtained from Gray by fraud, undue influence, or intentional
interference with expectancy of inheritance. . . "
{¶ 30} Addressing the merits, Plaintiffs argued that they submitted summary
judgment evidence demonstrating genuine issues of fact for trial on fraud, intentional
interference, and undue influence.
4. General Division's Decision Granting Summary Judgment
{¶ 31} The court granted summary judgment in favor of Defendants on all claims.
First, the court agreed that res judicata applied on "all issues regarding the execution of
the Deed to the Defendants" as that issue was previously litigated in and determined by
the probate court. The court further found that the affirmative defense of res judicata could
be raised for the first time in a motion for summary judgment.
{¶ 32} As to the claims of fraud, undue influence, and IIEI, the court found that the
Plaintiffs had failed to plead facts constituting fraud in the complaint. The court noted that
not one Plaintiff could articulate any facts supporting these claims at their depositions.
The court further observed that the claims required clear and convincing evidence, and
the Plaintiffs could not establish a prima facie case for any claims.
{¶ 33} As to the Plaintiffs' claim that Gray suffered from dementia at the time of the
deed transfer of the Farm, the court found that the Plaintiffs ignored the findings of Gray's
physician, who opined that the results of her neurological testing "would be impossible in
someone with dementia."
{¶ 34} The court found no genuine issues of any material fact and granted
judgment to Defendants on all claims.
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{¶ 35} Plaintiffs have appealed, raising two assignments of error.
II. Law and Analysis
A. Res Judicata and Waiver
{¶ 36} Plaintiffs first assignment of error states:
THE TRIAL COURT ERRED IN DETERMINING THAT
PLAINTIFFS' CLAIMS WERE BARRED BY RES JUDICATA.
{¶ 37} Plaintiffs argue that by failing to raise the affirmative defense of res judicata
in their answer, Defendants waived the defense of res judicata and therefore the trial court
erred in granting summary judgment on all claims regarding the execution of the deed of
the Farm to the Defendants on the basis of issue preclusion. We first turn to the applicable
standard of review.
1. Summary Judgment Standard of Review
{¶ 38} "Summary judgment is a procedural device used to terminate litigation when
there are no issues in a case requiring a formal trial." Franchas Holdings, L.L.C. v.
Dameron, 2016-Ohio-878, ¶ 16 (12th Dist.).
{¶ 39} "Civ.R. 56 sets forth the summary judgment standard." State ex rel. Becker
v. Faris, 2021-Ohio-1127, ¶ 14 (12th Dist.). "Pursuant to that rule, a court may grant
summary judgment only when (1) there is no genuine issue of any material fact, (2) the
moving party is entitled to judgment as a matter of law, and (3) the evidence submitted
can only lead reasonable minds to a conclusion that is adverse to the nonmoving party."
Spitzer v. Frisch's Restaurants, Inc., 2021-Ohio-1913, ¶ 6 (12th Dist.). "'An issue is
genuine only if the evidence is such that a reasonable jury could find for the non-moving
party.'" Baker v. Bunker Hill Haven Home, 2024-Ohio-875, ¶ 10 (12th Dist.), quoting
Abbuhl v. Orange Village, 2003-Ohio-4662, ¶ 14 (8th Dist.). "A material fact is one which
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would affect the outcome of the suit under the applicable substantive law." Hillstreet Fund
III, L.P. v. Bloom, 2010-Ohio-2961, ¶ 9 (12th Dist.).
{¶ 40} "The moving party bears the initial burden of informing the court of the basis
for the motion and demonstrating the absence of a genuine issue of material fact."
Berkheimer v. REKM, L.L.C., 2023-Ohio-116, ¶ 18 (12th Dist.). To satisfy this initial
burden, the moving party must be able to point to evidentiary materials of the type listed
in Civ.R. 56(C) that a court is to consider in rendering summary judgment. Adkins v.
Middletown, 2025-Ohio-317, ¶ 60 (12th Dist.). "Once this burden is met, the nonmoving
party has a reciprocal burden to set forth specific facts showing there is some genuine
issue of material fact yet remaining for the trier of fact to resolve." Sullivan v. Mercy Health,
2022-Ohio-4445, ¶ 21 (12th Dist.). The nonmoving party does this by presenting "'specific
facts,'" demonstrating the existence of a genuine triable issue; the nonmoving party "'may
not rest on the mere allegations or denials in its pleadings.'" Oliphant v. AWP, Inc., 2020-Ohio-229, ¶ 31 (12th Dist.), quoting Deutsche Bank Natl. Trust Co. v. Sexton, 2010-Ohio4802, ¶ 7 (12th Dist.), citing Civ.R. 56(E). "Summary judgment is proper if the nonmoving
party fails to set forth such facts." Taylor v. Atrium, 2019-Ohio-447, ¶ 10 (12th Dist.), citing
Puhl v. U.S. Bank, N.A., 2015-Ohio-2083, ¶ 13 (12th Dist.). "In determining whether a
genuine issue of material fact exists, the evidence must be construed in favor of the
nonmoving party." Assured Admin., L.L.C. v. Young, 2019-Ohio-3953, ¶ 14 (12th Dist.),
citing Vanderbilt v. Pier 27, L.L.C., 2013-Ohio-5205, ¶ 8 (12th Dist.).
{¶ 41} "This court reviews a trial court's summary judgment decision under a de
novo standard." Faith Lawley, L.L.C. v. McKay, 2021-Ohio-2156, ¶ 26 (12th Dist.). De
novo means that this court uses the same standard that the trial court should have used.
Brock v. Servpro, 2022-Ohio-158, ¶ 29 (12th Dist.). Therefore, when conducting a de novo
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review, this court independently reviews the trial court's decision without giving it any
deference. Baker, 2024-Ohio-875, at ¶ 9 (12th Dist.).
2. Applicable Rules and Law on Waiver of the
Affirmative Defense of Res Judicata
{¶ 42} Civ.R. 8(B) states that a defendant "shall," in response to a pleading, "state
in short and plain terms the party's defenses to each claim asserted and shall admit or
deny the averments upon which the adverse party relies." Civ.R. 8(C) addresses pleading
affirmative defenses. In relevant part, the rule provides that "In pleading to a preceding
pleading, a party shall set forth affirmatively . . . res judicata . . ." (Emphasis added.)
Defendants' answer did not assert res judicata as an affirmative defense but generally
referred to all defenses listed in Civ.R. 8(C). Defendants did not move to supplement their
answer with any affirmative reference to res judicata before moving for summary
judgment.
{¶ 43} In State ex rel. Freeman v. Morris, 62 Ohio St.3d 107 (1991), the Ohio
Supreme Court considered an appeal from a decision granting a Civ.R. 12(B)(6) motion
to dismiss an action in mandamus on the basis of res judicata. The supreme court first
noted that the lower court had considered materials outside the pleadings, and thus
treated the motion to dismiss as a motion for summary judgment. Id. at 109. However, the
supreme court found that those materials were not proper summary judgment evidence,
so the lower court should not have treated the motion to dismiss as a summary judgment
motion. Id. The supreme court then held that the defense of res judicata could not be
raised in a Civ.R. 12(B) motion to dismiss because Civ.R. 12(B) enumerates the defenses
that may be raised in such a motion but res judicata is not among Civ.R. 12(B)'s listed
defenses. Id. The supreme court noted that in Johnson v. Lindner, 14 Ohio App.3d 412
(3rd Dist.1984), the Third District Court of Appeals stated that the affirmative defense of
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res judicata could be raised by motion for summary judgment. Id. at 109. The Freeman
court simply stated, "We concur." Id.
{¶ 44} Notably, the Ohio Supreme Court in Freeman did not specifically address
the precise issue in this case, which is whether res judicata is waived if not initially
asserted in a responsive pleading. Instead, Freeman only held that Civ.R. 12(B) is not the
proper vehicle to assert the defense of res judicata.
{¶ 45} Later, in Jim's Steak House, Inc. v. Cleveland, 81 Ohio St.3d 18, 1998-Ohio440, the Ohio Supreme Court held that "Affirmative defenses other [than] those listed in
Civ.R. 12(B) are waived if not raised in the pleadings or in an amendment to the
pleadings." (Emphasis added.) Id. at 20, citing Civ.R. 8. This statement in Jim's indicates
that res judicata is waived if not raised in the pleadings or in an amendment to the
pleadings because it is included as an affirmative defense listed in Civ.R. 8(C) but not
included as a defense which may be asserted by motion pursuant to Civ.R. 12(B).
{¶ 46} In Jim's, the Ohio Supreme Court cited Freeman, but only for the assertion
that res judicata was not an affirmative defense that could be asserted in a Civ.R. 12(B)
motion. Id. at 21. Because Jim's involved a Civ.R. 12(B)(6) motion to dismiss, the Ohio
Supreme Court's decision did not discuss whether res judicata could be raised for the first
time in a motion for summary judgment, as potentially implied in Freeman.
{¶ 47} In State ex rel. Anderson v. Wilson, 2025-Ohio-493, in the context of a filing
of a motion to dismiss on grounds of res judicata, the Ohio Supreme Court reaffirmed that
the affirmative defense of res judicata is waived if it is not raised in a responsive pleading.
Id. at ¶ 10, citing State ex rel. Deiter v. McGuire, 2008-Ohio-4536, ¶ 28, in turn citing Jim's
at ¶ 13-14. In Anderson, the court found that respondents had waived res judicata by
failing to plead it in their answer.
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{¶ 48} Plaintiffs cite Jim's and Anderson for the proposition that the Defendants'
failure to raise res judicata in their answer waived their ability to raise that affirmative
defense for the first time in their motion for summary judgment.
{¶ 49} Defendants counter by arguing that neither Jim's nor Anderson construed
waiver of the affirmative defense of res judicata when raised for the first time in a motion
for summary judgment. They also argue that neither case overruled Freeman, and
Freeman impliedly approved the statement in Johnson that res judicata could be raised
in a motion for summary judgment.
{¶ 50} Upon review, we do not find the Defendants' arguments persuasive. Jim's
and Anderson and the plain text of Civ.R. 8(C) support the proposition that the affirmative
defense of res judicata is waived if not raised in a responsive pleading. See Civ.R. 8(C)
("a party shall set forth affirmatively . . . res judicata.") While Jim's and Anderson involved
attempts to assert the defense of res judicata in the context of a Civ.R. 12(B)(6) motion,
the same situation occurred in Freeman. That is, the court in Freeman did not hold that
the affirmative defense of res judicata could be asserted for the first time in a motion for
summary judgment. Instead, the supreme court found that the lower court had improperly
construed the Civ.R. 12(B)(6) motion as a motion for summary judgment and improperly
relied on inadmissible summary judgment evidence. The supreme court then held that
res judicata may not be raised in a Civ.R. 12(B) motion to dismiss. Thus, to the extent that
the Ohio Supreme Court indicated its agreement with the Third's District comment about
asserting res judicata in a summary judgment motion, such discussion was irrelevant to
the holding in Freeman and we consider it dicta.
{¶ 51} Regardless, in Johnson, the Third District did not hold that res judicata may
be asserted for the first time in a motion for summary judgment. For the proposition that
res judicata could be raised in a motion for summary judgment, the court cited a law
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treatise that observed that prior to the Ohio Rules of Civil Procedure, courts "permitted
the disposition of actions involving . . . res judicata by summary judgment." Johnson, 14
Ohio App.3d at 414. The Third District did not address whether such a practice survived
the adoption of the Rules of Civil Procedure but stated it would assume that "this [meaning
the pre-Civil Rules statement of law] still applies" and went on to address whether the
affirmative defense had been specifically raised by the motion for summary judgment in
that case. Id. The Third District went on to find that the summary judgment motion filed in
had not specifically raised res judicata, but even if it had, there was no evidentiary basis
upon which to issue a finding as to the applicability of res judicata. Id. at 414-415.
Therefore, the court in Johnson was not required to resolve—and did not resolve—the
question of whether res judicata could be raised for the first time in a post-Civil Rules
motion for summary judgment.
{¶ 52} On the precise issue of whether res judicata is waived if not asserted in a
responsive pleading and raised for the first time in a summary judgment motion, we find
instructive and persuasive the analysis of the Ninth District Court of appeals in Nationstar
Mtge., L.L.C v. Young, 2016-Ohio-8287 (9th Dist.). In that case, the Youngs filed two
answers, neither of which expressly raised res judicata as an affirmative defense. Id. at ¶
16. The Youngs later asserted the defense of res judicata in their motion for summary
judgment. Id. The Ninth District analyzed Freeman and found that its citation to Johnson
did not mean that res judicata could be raised for the first time in a summary judgment
motion. Instead, the court concluded that res judicata can be raised in a summary
judgment motion only if it is (1) first raised in a responsive pleading, or (2) by amending
a previously filed responsive pleading to include it as an affirmative defense. Id. at ¶ 18.
The court stated, "We are not convinced . . . that the [Ohio Supreme Court] intended its
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citation to Johnson v. Linder to resolve the issue of whether affirmative defenses are
preserved if raised for the first time in a motion for summary judgment." Id.
{¶ 53} The Ninth District further found no support for the contention that Jim's
favorable citation of Freeman signaled support for the contention that an affirmative
defense not raised in a pleading can nevertheless be raised for the first time in summary
judgment. Id. at ¶ 19. The court noted that Jim's was devoid of any discussion regarding
summary judgment motions as proper vehicles for the assertion of res judicata or other
affirmative defense. The court also noted that Jim's contained no citation to Johnson. Id.
{¶ 54} Finally, the Ninth District noted that when the Third District assumed (without
deciding) that res judicata could be raised for the first time in a motion for summary
judgment, there was "limited support" for this assumption. Id. at ¶ 20. The Ninth District
noted that while the Third District in Johnson cited the Anderson's treatise as support for
its assumption, a more recent version of the Anderson's treatise indicated that "The better
practice is for the affirmative defense of res judicata to be raised by answer and then by
summary judgment motion, rather than by a motion to dismiss for failure to state a claim
upon which relief can be granted." Id. citing McCormac and Solimine, Anderson's Ohio
Civil Rules Practice, Answers and Replies, Section 7.34, at 7-19 (2010).
{¶ 55} In sum, we find the analysis of the Ninth District in Nationstar persuasive
and adopt the same position in this district.
{¶ 56} Defendants cite E.B.P., Inc. v. 623 W. St. Clair Ave., L.L.C., 2010-Ohio-4005
(8th Dist.) and Internatl. EPDM Rubber Roofing Sys., Inc. v. GRE Ins. Group, 2001 WL
477251 (6th Dist. May 4, 2001), in support of the contention that res judicata is not waived
if raised for the first time in a motion for summary judgment.
{¶ 57} E.B.P. involved the same situation presented here. That is, a party asserted
res judicata for the first time in a motion for summary judgment and had not raised the
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defense in its responsive pleading. Id. at ¶ 14, 18, 20, 29. In finding that res judicata could
be asserted for the first time in a motion for summary judgment, the Eighth District
analyzed Jim's and Freeman. Id. at ¶ 22-33. The court found Jim's factually
distinguishable because the case did not involve a motion for summary judgment, and
therefore did not stand for the proposition that res judicata may not be raised for the first
time in a motion for summary judgment. Id. at ¶ 33. In finding that res judicata could be
raised for the first time in a motion for summary judgment, the Eighth District primarily
relied on Freeman's tacit approval of the Third District's statement in Johnson that res
judicata can be raised in summary judgment proceedings. Id. at ¶ 26-29.
{¶ 58} In Internatl. EPDM, the Sixth District Court of Appeals applied the same
reasoning later adopted in E.B.P. and held that the statement in Jim's that affirmative
defenses are waived if not asserted in a responsive pleading had no effect on the Ohio
Supreme Court's decision in Freeman, which it found supported the position that res
judicata may be asserted for the first time in a motion for summary judgment. Id. at *4-5.
{¶ 59} The problem with both E.B.P. and Internatl. EPDM is that both are premised
on the fallacy that Freeman stands for the proposition that res judicata may be asserted
for the first time in a motion for summary judgment. But as set forth in our analysis above,
Freeman neither concerned the assertion of res judicata in a motion for summary
judgment nor addressed the waiver effect of failing to assert res judicata in a responsive
pleading in the first instance.
{¶ 60} For the foregoing reasons, we conclude that the trial court erred by granting
summary judgment in favor of the Defendants on the basis of res judicata. Defendants
did not expressly assert res judicata as an affirmative defense, did not amend their answer
to expressly raise the defense, and instead raised it for the first time in their motion for
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summary judgment. The Defendants therefore waived the defense. We sustain Plaintiffs'
first assignment of error.
B. Genuine Issues of Fact and Plaintiffs' Claims
{¶ 61} Plaintiffs' second assignment of error states:
THE TRIAL COURT ERRED IN DETERMINING THAT
THERE WERE NO GENUINE ISSUES OF MATERIAL FACT.
{¶ 62} In its decision, the trial court found as follows concerning Plaintiffs' fraud,
undue influence, and IIEI claims:
Also pending are claims of fraud, undue influence, duress,
and interference with expectancy of inheritance. No actual
facts constituting fraud are plead in Plaintiffs' complaint. When
questioned in their respective depositions, not one Plaintiff
could articulate any facts at all concerning these claims. Each
Plaintiff was asked to give an example of facts that in any way
established their claims. Not one Plaintiff could do so.
{¶ 63} Plaintiffs argue that the court's analysis was in error, and that they in fact
submitted evidence demonstrating genuine issues of material fact in support of their
fraud, undue influence, and IIEI claims.
1. Applicable Law
a. Fraud
{¶ 64} The elements of fraud are (1) a representation or, where there is a duty to
disclose, concealment of a fact; (2) which is material to the transaction; (3) made falsely,
with knowledge of its falsity, or with such utter disregard and recklessness as to its truth
or falsity that knowledge may be inferred, (4) with the intent of misleading another to rely
on it; (5) justifiable reliance upon the representation or concealment; and (6) resulting
injury proximately caused by the reliance. Adena at Miami Bluffs Condominium Owners'
Assn., Inc. v. R. Hugh Woodward, 2021-Ohio-3872, ¶ 32 (12th Dist.)
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{¶ 65} Plaintiffs contend that they provided the trial court with "ample evidence"
that the Defendants (1) fraudulently misrepresented the value of the Farm and falsely
claimed that it was "not making money" in order to induce Gray to sell it to them for
$600,000; (2) falsely claimed that they were not able to obtain a loan to buy the Farm and
therefore induced Gray to "simply sign [over]" the Farm to them; (3) falsely claimed that
they would care for Gray when they had no intention to do so, thereby allowing them to
"take over" her financial affairs.
{¶ 66} Plaintiffs state that they provided the trial court with "ample" evidence, yet
their appellate brief, while summarizing this evidence as set forth above, provides no
citation to the record indicating where this "ample evidence" of purported false
representations is contained in the record. As the appellants, Plaintiffs bear the burden of
affirmatively demonstrating error on appeal and substantiating their arguments in support
thereof. Ostigny v. Brubaker, 2024-Ohio-384, ¶ 38 (12th Dist.). It is not an appellate court's
duty to "root out" or develop an argument that can support an assigned error, even if one
exists. Lebanon v. Ballinger, 2015-Ohio-3522, ¶ 27 (12th Dist.). Nor is it the duty of an
appellate court to search the record for evidence to support an appellant's argument as
to alleged error. Hellmuth v. Stephens, 2023-Ohio-4592, ¶ 23 (12th Dist.).
{¶ 67} Regardless, we initially note that the Plaintiffs' complaint contains only the
most threadbare accusations of fraud. Civ.R. 9(B) requires "[i]n all averments of fraud or
mistake, the circumstances constituting fraud or mistake shall be stated with particularity."
The count of fraud merely alleges that Defendants made "false statements" without
identifying any particular statements. We agree with the trial court's conclusion that the
complaint failed to plead fraud with particularity.
{¶ 68} Upon our review of the record, we can find no record support for any false
statements by Defendants in which Defendants misrepresented the value of the Farm to
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Gray, or any false statements by Defendants to Gray that the Farm was "not making
money." There is also no record support—nor do the Defendants cite any record
support—for the allegation that the Defendants made a false promise to care for Gray
when they had no intention of doing so. At most, any testimony that touched on these
subjects established that the Plaintiffs had no knowledge of any false statements but
instead, as their only explanation for Gray's actions, speculated that the Defendants must
have made some false statements to Gray. But "[m]ere speculation is insufficient to create
a genuine issue of material fact to avoid summary judgment." Fontain v. H&R Cincy
Properties, L.L.C., 2022-Ohio-1000, ¶ 67 (12th Dist.).
{¶ 69} With regard to the alleged false statement about an inability to obtain a loan,
Plaintiff Julie testified that Gray told her that the Defendants were not able to get a loan
to satisfy the Land Contract, and that Gray was scared and did not want Daniel to worry
when she passed. Likewise, Plaintiff James testified that Gray told him that Defendant
Daniel stated he was afraid that he would lose the Farm or that his siblings would take it
from him. Assuming that Defendant Daniel conveyed to Gray his fear about his ability to
obtain a loan or relayed a fear about losing the Farm, Plaintiffs do not articulate how this
constitutes a false statement. The Defendants may well have believed that they may have
trouble obtaining a loan. Plaintiffs produced no evidence that Defendants knew that they
could obtain a loan and instead falsely represented to Gray that they could not.
{¶ 70} As such, we find no error in the trial court's determination that Defendants
were entitled to summary judgment on Plaintiffs' fraud claims.
b. Undue Influence
{¶ 71} The elements of undue influence are: "(1) a susceptible testator, (2)
another's opportunity to exert influence on the testator, (3) the fact of improper influence
exerted or attempted, and (4) a result showing the effect of such influence." Estate of
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Everhart v. Everhart, 2014-Ohio-2476, ¶ 36 (12th Dist.) Because Plaintiffs were
attempting to use the claim of undue influence to set aside a deed, Plaintiffs' burden of
proof is clear and convincing evidence. Id. at ¶ 35; Lakes v. Ryan, 2003-Ohio-504, ¶ 18
(12th Dist.).
{¶ 72} Upon review, we find no facts demonstrating a genuine issue of fact as to
whether the Defendants exerted or attempted to exert improper influence over Gray in
conjunction with the transfer of the Farm to the Defendants. Although Plaintiffs again claim
to have "ample" evidence supporting the improper exertion of influence, they have not
cited the record in support of such evidence. No Plaintiff testified to being aware of any
specific circumstances or conversations wherein improper influence was exerted by the
Defendants in order to ensure that the Farm was deeded to them.
{¶ 73} As to the "susceptible testator" element, Plaintiffs argue that the trial court
erred in only considering Defendants' evidence (from Gray's physician) that she was not
and could not have been suffering from dementia at the time of these transactions. They
argue that the court disregarded Plaintiffs' expert, who opined that Gray was suffering
from dementia. This difference of opinion as to whether Gray suffered dementia did create
a factual dispute that in other circumstances would have been inappropriate for resolution
in summary judgment. However, this factual dispute was not a genuine issue of material
fact in the context of this case. See Civ.R. 56(C) (summary judgment merited when "there
is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law"). Plaintiffs' cause of action did not allege that Gray lacked
the capacity to convey the Farm to Defendants, but instead that the conveyance was the
product of undue influence asserted by one or more Defendants. Whether Gray was
suffering from dementia is relevant to whether she was susceptible to being unduly
influenced, but it does not relate to whether the Defendants actually exerted undue
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influence. As discussed above, the Plaintiffs submitted no summary judgment evidence
that Defendants engaged in acts or statements that would constitute their exertion of
undue influence over Gray.
{¶ 74} We find no error in the trial court's determination that Defendants were
entitled to summary judgment on Plaintiffs' fraud claims.
c. Intentional Interference with Expectancy of an Inheritance
{¶ 75} The elements of the claim of IIEI are:
"'(1) an existence of an expectancy of inheritance in the
plaintiff; (2) an intentional interference by a defendant(s) with
that expectancy of inheritance; (3) conduct by the defendant
involving the interference which is tortious, such as fraud,
duress or undue influence, in nature; (4) a reasonable
certainty that the expectancy of inheritance would have been
realized, but for the interference by the defendant; and (5)
damage resulting from the interference.'"
Treadway v. Free Pentecostal Pater Ave Church of God, Inc., 2008-Ohio-1663, ¶ 22,
quoting Firestone v. Galbreath, 67 Ohio St.3d 87, 88 (1993).
{¶ 76} Initially, we note that all of the Plaintiffs testified either that they had no
expectancy of an inheritance from Gray or that they expected that Gray's estate would be
divided equally. In fact, Gray's will divided her estate equally, and so the Plaintiffs
expectation was consistent with what actually occurred. Regardless, we understand that
Plaintiffs are alleging tortious acts which caused the Farm to be transferred outside of
Gray's estate, thereby depriving them of their equal share of the Farm upon Gray's death.
{¶ 77} For the IIEI claim to survive summary judgment, Plaintiffs were required to
point to genuine issues of fact as to whether that Defendants engaged in acts of fraud,
duress, or undue influence in order to intentionally interfere with their inheritance. But as
set forth previously, Plaintiffs lacked any summary judgment evidence indicating that
Defendants engaged in acts of fraud or misrepresentation, subjected Gray to duress, or
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attempted to unduly influence Gray. At best, Plaintiffs could only speculate as to what
conversations occurred between Defendants and Gray that may have resulted in the
transfer of the Farm. But, again, "[m]ere speculation is insufficient to create a genuine
issue of material fact to avoid summary judgment." Fontain, 2022-Ohio-1000 at ¶ 67 (12th
Dist.). As such, the trial court did not err in granting summary judgment in favor of
Defendants on this final claim.
{¶ 78} We overrule Plaintiffs' second assignment of error.
III. Conclusion
{¶ 79} The trial court erred by concluding that Defendants did not waive the
affirmative defense of res judicata by failing to raise it in their pleadings and instead raising
it for the first time in their motion for summary judgment. Even though we have sustained
Plaintiffs' first assignment of error, the decision to grant summary judgment in favor of
Defendants does not constitute reversible error because Plaintiffs failed to demonstrate
genuine issues of fact for trial on their claims of fraud, undue influence, and IIEI.
{¶ 80} Judgment affirmed.
HENDRICKSON and M. POWELL, JJ., concur.
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JUDGMENT ENTRY
The assignments of error properly before this court having been ruled upon, it is the order of this court that the judgment or final order appealed from be, and the same hereby is, affirmed.
It is further ordered that a mandate be sent to the Brown County Court of Common Pleas for execution upon this judgment and that a certified copy of this Opinion and Judgment Entry shall constitute the mandate pursuant to App.R. 27.
Costs to be taxed 50% to appellant and 50% to appellee.
/s/ Matthew R. Byrne, Presiding Judge
/s/ Robert A. Hendrickson, Judge
/s/ Mike Powell, Judge
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