[Cite as Jones v. Morgan, 2026-Ohio-3054.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
MARK G. JONES, : APPEAL NO. C-250371
TRIAL NO. A-2500345
Plaintiff-Appellant, :
vs. :
JUDGMENT ENTRY
VICTORIA MORGAN, :
PRODIGY PROPERTIES, LLC, :
JEFFREY S. LANE, :
VALERIE B. ZUMMO, :
PAUL E. BACKSCHEIDER, :
and :
AUBREY L. BACKSCHEIDER, :
Defendants-Appellees. :
This cause was heard upon the appeal, the record, the briefs, and arguments.
For the reasons set forth in the Opinion filed this date, the judgments of the trial court are affirmed in part and reversed in part, and the cause is remanded.
Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed 32% to appellant Mark G. Jones; 17% to appellee Victoria Morgan; 17% to appellees Prodigy Properties, LLC, and Jeffrey S. Lane, jointly and severally; 17% to appellee Valerie B. Zummo; and 17% to appellees Paul E. Backscheider and Aubrey L. Backscheider, jointly and severally.
The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27.
OHIO FIRST DISTRICT COURT OF APPEALS
To the clerk:
Enter upon the journal of the court on 8/7/2026.
Pursuant to App.R. 30, the clerk is directed to serve upon all parties, or their counsel if represented, a copy of the court’s judgment and note such action on the docket.
By:_______________________
Administrative Judge
[Cite as Jones v. Morgan, 2026-Ohio-3054.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
MARK G. JONES, : APPEAL NO. C-250371
TRIAL NO. A-2500345
Plaintiff-Appellant, :
vs. :
OPINION
VICTORIA MORGAN, :
PRODIGY PROPERTIES, LLC, :
JEFFREY S. LANE, :
VALERIE B. ZUMMO, :
PAUL E. BACKSCHEIDER, :
and :
AUBREY L. BACKSCHEIDER, :
Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: August 7, 2026
Mark G. Jones, pro se,
Robbins Kelly Patterson & Tucker, LPA, Michael Galasso and Andrew Trice, for Defendant-Appellee Victoria Morgan,
Beyke Law, LLC, Joseph L. Beyke and Ryan R. Blindauer, for Defendants-Appellees Prodigy Properties, LLC, and Jeffrey S. Lane,
OHIO FIRST DISTRICT COURT OF APPEALS
Kohnen & Patton LLP and Anthony J. Caruso, for Defendant-Appellee Valerie B. Zummo,
Manley Burke LPA, Timothy M. Burke and Ilana L. Linder, for Defendants-Appellees Paul and Aubrey Backscheider.
[Cite as Jones v. Morgan, 2026-Ohio-3054.]
CROUSE, Presiding Judge.
{¶1} Plaintiff-appellant Mark G. Jones has long litigated his divorce from
defendant-appellee Victoria Morgan. This appeal concerns Jones’s separate, civil
action against Morgan (and several others involved in the divorce proceedings). The
trial court dismissed Jones’s claims under Civ.R. 12(B)(6), based largely on orders
issued and actions taken in Jones and Morgan’s prior divorce proceeding, and not on
Jones’s complaint itself.
{¶2} We now hold that the trial court’s consideration of materials beyond the
complaint was error. Jones did not allege the existence or content of the particular
orders on which the trial court relied. And Jones’s single reference to his divorce case
number did not, as defendants contend, incorporate the entire record of his divorce
proceedings into his complaint. We therefore reverse the portions of the trial court’s
judgments that relied upon those materials. But we affirm the dismissal of Jones’s
fraud claim, which he failed to allege with the requisite particularity.
I. Background
{¶3} Jones and Morgan divorced in 2019. They then spent the next several
years litigating various aspects of that divorce. In January 2025, Jones commenced
the instant civil action in the General Division of the Hamilton County Court of
Common Pleas. In addition to naming Morgan as a defendant, Jones’s complaint also
named as defendants Valerie B. Zummo, Jeffrey S. Lane, and Prodigy Properties, LLC,
(“Prodigy”) who had been retained to help sell Jones and Morgan’s marital home (“the
home”), and Paul E. Backscheider and Aubrey L. Backscheider, who had purchased
that home.
{¶4} In his complaint, Jones alleged that he retained an interest in various
items of personal property that he had left in the home. He alleged that the court
OHIO FIRST DISTRICT COURT OF APPEALS
overseeing his divorce had appointed Zummo as receiver to sell the home. Zummo
then retained Prodigy—who employed Lane and/or acted as his agent—to market the
home. Per the complaint, Morgan, Zummo, Lane, and Prodigy conspired to hide from
Jones the imminent sale of the home and prevent him from removing his personal
property. Then, in November 2024, the home was sold to the Backscheiders, who
continued to prevent Jones from recovering his personal property.
{¶5} Jones’s complaint therefore sought (1) writs of replevin to recover his
allegedly detained personal property, (2) money damages for any personal property
wrongfully converted by defendants, and (3) money damages based on defendants’
alleged fraudulent statements and misrepresentations.
{¶6} All six defendants filed motions to dismiss Jones’s complaint pursuant
to Civ.R. 12(B)(6), which the trial court granted in four separate entries.1 Although the
trial court’s stated reasons varied slightly for each, they generally included (1) that
Jones had abandoned any personal property left in the home; (2) that Jones sought to
collaterally attack the judgment of the domestic-relations court; (3) that Jones was
collaterally estopped from relitigating certain legal and factual issues; (4) that Zummo,
Lane, and Prodigy had been appointed as receivers by the domestic-relations court
and were therefore immune from suit without that court’s leave; and (5) that Jones
had failed to plead his fraud claims with particularity.
II. Analysis
{¶7} Jones’s sole assignment of error challenges the trial court’s dismissal of
his complaint for failing to state a claim upon which relief may be granted, pursuant
1 Prodigy and Lane filed a joint motion to dismiss, so the trial court disposed of the claims against
them in a single entry. The Backscheiders did likewise, so they, too, received a single entry. Zummo and Morgan received separate entries.
6
OHIO FIRST DISTRICT COURT OF APPEALS
to Civ.R. 12(B)(6). We review Civ.R. 12(B)(6) dismissals de novo. Vandemark v.
Reder, 2026-Ohio-50, ¶ 12 (1st Dist.).
{¶8} A motion to dismiss pursuant to Civ.R. 12(B)(6) is procedural; it tests
merely “the sufficiency of the complaint and the materials incorporated into it.” State
ex rel. Ames v. Baker, Dublikar, Beck, Wiley & Mathews, 2022-Ohio-3990, ¶ 16.
Generally, a complaint is sufficient if its contents (1) show that what the plaintiff
intends to prove would entitle him to judicial relief, and (2) give the defendant “fair
notice of the claim and an opportunity to prepare his response.” (Cleaned up.) Wells
Fargo Bank, N.A. v. Horn, 2015-Ohio-1484, ¶ 13; accord Vandemark at ¶ 10. Neither
goal requires the plaintiff to “prove his . . . case at the pleading stage.” York v. Ohio
State Hwy. Patrol, 60 Ohio St.3d 143, 145 (1991); accord Doe v. Greenville City
Schools, 2022-Ohio-4618, ¶ 8. Rather, it is enough that the complaint informs the
defendants of the basis for their alleged liability and is consistent with some set of facts
that would permit recovery. York at 145; Doe at ¶ 8; Vandemark at ¶ 10. The rules
provide an exception to this lenient standard for allegations of fraud, the
circumstances of which must be alleged with “particularity.” Civ.R. 9(B); accord
Vandemark at ¶ 11.
{¶9} We begin by addressing the dismissal of Jones’s fraud claims, before
turning to his claims for conversion and replevin, and, finally, Zummo’s alternative
basis for affirmance.
A. Fraud Claims
1. Failure to Plead with Particularity
{¶10} To prove his fraud claim, Jones had to show “(1) an actual or implied
false representation concerning a fact or, where there is a duty to disclose,
concealment of a fact, material to the transaction; (2) knowledge of the falsity of the
7
OHIO FIRST DISTRICT COURT OF APPEALS
representation or such recklessness or utter disregard for its truthfulness that
knowledge may be inferred; (3) intent to induce reliance on the representation; (4)
justifiable reliance; and (5) injury proximately caused by the reliance.” Fed. Natl.
Mtge. Assn. v. Hirschhaut, 2019-Ohio-3636, ¶ 30 (1st Dist.); accord Lucarell v.
Nationwide Mut. Ins. Co., 2018-Ohio-15, ¶ 61. And to allege his claim with the
“particularity” required by Civ.R. 9(B), he needed to include “the time, place, and
content of the false representation, the fact misrepresented, and the nature of what
was obtained or given as a consequence of the fraud.” Meehan v. Mardis, 2019-Ohio4075, ¶ 20 (1st Dist.).
{¶11} But Jones’s complaint includes no allegation of an affirmative false
representation. Instead, he contends that his fraud claim was based on what
defendants didn’t tell him. Nondisclosure can be the basis of a fraud claim, but only
“where there exists a duty to speak.” Layman v. Binns, 35 Ohio St.3d 176, 178 (1988).
Without such a duty, even material nondisclosures do not constitute fraud. Applegate
v. Fund for Constitutional Govt., 70 Ohio App.3d 813, 819 (10th Dist. 1990).
{¶12} Jones’s fraudulent-nondisclosure theory fails, because Jones can point
to no common-law, statutory, or equitable duty that required defendants to speak.
Jones suggests that his divorce decree required Morgan “to notify Jones if she
intended to unlawfully interfere with Jones’s previously-accomplished control of his
Property.” But even assuming this is true, the remedy for violations of a divorce decree
is contempt; Jones offers no authority to suggest he can enforce the decree through a
separate fraud action. Compare Lelak v. Lelak, 2022-Ohio-3458, ¶ 47 (2d Dist.)
(noting that divorce decree “did not impose a fiduciary duty” and that “the proper
remedy for failure to abide by the decree was a contempt action”).
8
OHIO FIRST DISTRICT COURT OF APPEALS
2. Dismissal with Prejudice
{¶13} Jones contends, however, that even if his fraud claims were deficient,
the trial court still erred by dismissing them with prejudice, rather than permitting
Jones to refile or amend them.
{¶14} At the time the trial court dismissed his claims, Jones was not entitled
to amend his complaint as of right. See Civ.R. 15(A) (plaintiff can amend as of right
within 28 days “after service of a responsive pleading or . . . a motion under Civ.R.
12(B), (E), or (F), whichever is earlier”). Jones did not file a motion for leave to amend
his complaint; he merely sought it in his memorandum opposing defendants’ motions
to dismiss. Nor did he include a proposed amended complaint with that memorandum
or explain how any potential amendment might salvage his claims. The trial court did
not abuse its discretion in denying his request. Compare Kromer v. Arthritis Found.,
Inc., 2025-Ohio-661, ¶ 27-28, 30 (10th Dist.).
{¶15} Nor did the trial court abuse its discretion in dismissing Jones’s fraud
claims with prejudice, rather than without. A Civ.R. 12(B)(6) dismissal should be with
prejudice if the dismissed claim “cannot be pleaded in any other way.” Fletcher v.
Univ. Hosps. of Cleveland, 2008-Ohio-5379, ¶ 17. But Jones’s omission of any alleged
misrepresentation or duty to disclose suggests a substantive defect in his claim, not a
mere technical defect of pleading. And Jones offered the trial court no reason to believe
otherwise.
{¶16} We therefore hold that Jones’s complaint failed to state claims against
defendants for fraud. The trial court did not err in dismissing those claims pursuant
to Civ.R. 12(B)(6) and did not abuse its discretion by dismissing them with prejudice.
B. Replevin & Conversion Claims
{¶17} We next turn to the trial court’s dismissal of Jones’s claims for replevin
9
OHIO FIRST DISTRICT COURT OF APPEALS
and conversion based on the affirmative defenses of abandonment, collateral estoppel,
the collateral-attack bar, and receivership immunity. We begin, however, by
considering the legal standards for considering such defenses at the pleading stage.
1. Civ.R. 12(B)(6) & Affirmative Defenses
{¶18} Ordinarily, affirmative defenses must be raised in a defendant’s answer.
Civ.R. 8(C). Thus, they are generally not a basis for dismissal under Civ.R. 12(B)(6),
which considers only the sufficiency of the complaint, and may be filed before the
answer. See State ex rel. Freeman v. Morris, 62 Ohio St.3d 107, 109 (1991).
{¶19} Sometimes, however, a plaintiff’s “complaint and the materials
incorporated into it show conclusively that [an affirmative] defense applies.” State ex
rel. Nguyen v. Lawson, 2025-Ohio-507, ¶ 20. In such cases, parties can litigate their
affirmative defenses, without venturing beyond the four corners of the complaint. Id.;
Schmitz v. Natl. Collegiate Athletic Assn., 2018-Ohio-4391, ¶ 11. But a plaintiff is not
required to anticipate and plead around affirmative defenses, so a court should
dismiss a complaint based on an affirmative defense only if the complaint obviously
and conclusively establishes that the defense will bar the claim. Glick Mgt., L.L.C. v.
Cincinnati, 2025-Ohio-2572, ¶ 14 (1st Dist.).
2. Collateral Estoppel
{¶20} Collateral estoppel provided one of the primary grounds for the trial
court’s dismissal. Collateral estoppel, or issue preclusion, is part of the doctrine of res
judicata. See Lycan v. Cleveland, 2022-Ohio-4676, ¶ 22. It is an affirmative defense
that precludes (i.e., estops) a party from relitigating a particular issue that was finally
and conclusively resolved in a prior action. In this case, the trial court reasoned that
orders entered by the domestic-relations court collaterally estopped Jones from
relitigating his title to items left in the home.
10
OHIO FIRST DISTRICT COURT OF APPEALS
{¶21} Because “res judicata is an affirmative defense,” we have long held that
“it must be set forth in the answer to a pleading and is properly raised in a summaryjudgment motion”—not in “a motion to dismiss under Civ.R. 12(B).” State ex rel.
Felson v. McHenry, 2001-Ohio-4265, ¶ 3 (1st Dist.); accord, e.g., Five Star Fin. Corp.
v. Merchant’s Bank & Trust Co., 2011-Ohio-314, ¶ 18 (1st Dist.); Ora v. Fitness
Internatl., 2021-Ohio-2824, ¶ 6 (1st Dist.). The rule is not ours; it has long been a
fixture at the Ohio Supreme Court. See, e.g., Freeman, 62 Ohio St.3d at 109 (“the
defense of res judicata may not be raised by motion to dismiss under Civ.R. 12(B)”);
Sharper v. Tracy, 1995-Ohio-37, ¶ 3-5 (applying Freeman to collateral estoppel);
State ex rel. Green v. Wetzel, 2019-Ohio-4228, ¶ 6. “When the res judicata defense
depends on documents outside the pleadings, the proper procedure is for the court to
convert the motion to dismiss into a motion for summary judgment and provide the
opposing party with notice and an opportunity to respond,” as set forth in Civ.R. 12(B).
Jefferson v. Bunting, 2014-Ohio-3074, ¶ 12; accord Ora at ¶ 6-7.
{¶22} Like other affirmative defenses, however, res judicata may provide a
basis for dismissal where the complaint and any incorporated materials “show
conclusively that the defense applies.” Nguyen, 2025-Ohio-507, at ¶ 20.
{¶23} Although the parties seem to accept these general principles, they differ
on what materials were incorporated into Jones’s complaint. The allegations
themselves do not obviously or conclusively show that prior orders of the domesticrelations court fully and finally resolved Jones’s rights in the property in the home.
They do, however, include a single reference to the case number of Jones’s divorce
proceedings. Defendants contend that this citation effectively incorporated into
Jones’s complaint the entire record of his domestic-relations proceedings. Thus,
defendants say that the trial court and this court may supplement Jones’s complaint
11
OHIO FIRST DISTRICT COURT OF APPEALS
with the contents of every order and filing from that publicly available docket.
{¶24} Defendants cite State ex rel. Peoples v. Schneider, 2020-Ohio-1071, as
support for their broad theory of incorporation and judicial notice at the pleading
stage. We do not read Peoples so broadly.
{¶25} Peoples’s primary holding concerned only claims that expressly
challenge the validity of a prior judgment. In Peoples, the complaint assailed the
finality of the judgment that had imposed the plaintiff’s criminal sentence. Peoples at
¶ 4-5. The lower court dismissed the complaint on res judicata grounds, and the Ohio
Supreme Court affirmed. In its view, the plaintiff’s allegations regarding his criminal
judgment had permitted the lower court to consider that judgment, determine it was
final, and hold that the defendant had been required “to raise his final-appealableorder claim on direct appeal from his conviction.” Id. at ¶ 9. Because the case at issue
was not that direct appeal, the Court concluded that the plaintiff’s claims were res
judicata.
{¶26} The Court’s holding in Peoples did not rely upon any broad theory of
incorporation by reference. Instead, it simply held that, by citing the particular
judgment he sought to attack, the plaintiff had incorporated that judgment into his
complaint. The trial court was thus implicitly permitted to take judicial notice of that
judgment’s contents (assuming it was publicly available) and read them into the
plaintiff’s complaint wholesale.
{¶27} The trial court’s collateral-estoppel dismissal in this case, however,
required much more. Jones’s complaint does not specifically incorporate or even cite
the particular judgments that allegedly estopped Jones from relitigating elements of
his claims. Nor does Jones’s complaint, by its terms, attack the validity of the
domestic-relations court’s prior judgment. Rather, the complaint makes only a passing
12
OHIO FIRST DISTRICT COURT OF APPEALS
reference to the domestic-relations case number generally.
{¶28} Defendants’ theories of incorporation appear to rest on the Peoples
Court’s alternative rationales. After reaching its holding, the Peoples Court cited
decisions in the plaintiff’s other appeals and writ actions as additional grounds for a
res-judicata dismissal. See Peoples, 2020-Ohio-1071, at ¶ 9. Arguably, these
statements were dicta, as the Court had already determined that dismissal was proper
on less expansive grounds, and had no need to consider other judgments that the
plaintiff had not explicitly cited.
{¶29} But even the alternative rationales offered in Peoples cannot support the
weight defendants would have them bear. Under defendants’ maximalist theory of
incorporation by reference, every time a complaint cites another court proceeding, a
trial court becomes obligated to read each and every publicly-available filing from
that proceeding into that complaint, just as if its contents had been copied and pasted
in an endless procession of block quotes. Such a requirement would create an end-run
around the straightforward rule laid down in Freeman, 62 Ohio St.3d 107, and
Jefferson, 2014-Ohio-3074, that res-judicata can provide a basis for dismissal only
where the complaint itself shows the defense applied. But Peoples did not replace
Freeman and Jefferson’s clean rule about pleading sufficiency with an open-ended
invitation to hunt through other courts’ online dockets and treat whatever you find
there as the plaintiff’s own allegations. Just four years after Peoples, the Court
reiterated its straightforward Freeman/Jefferson rule in State ex rel. White v. Aveni,
2024-Ohio-1614, ¶ 22.
{¶30} Instead, we view Peoples’s alternative rationales as suggesting, at most,
a narrow exception to the Freeman/Jefferson rule. That portion of the Court’s opinion
considered several published decisions in actions appealing or collaterally attacking
13
OHIO FIRST DISTRICT COURT OF APPEALS
the judgment identified in the plaintiff’s complaint. And the Court considered these
extrinsic writings with respect to a claim-preclusion defense.
{¶31} The instant case was not cut from this same mold. Here, defendants
raise issue preclusion, rather than the much less fact-bound defense of claimpreclusion at issue in Peoples. And they ask us to resolve that issue-preclusion
question based not on self-sufficient published decisions arising out of the domesticrelations case, but on a series of judgments intended for the parties and available only
on the trial court’s online docket.
{¶32} Further, it is not obvious that the rule in Peoples was meant to apply
outside the context of original or extraordinary writs. Extraordinary-writ cases often
require courts to consider the propriety of other courts’ actions and involve unique
substantive and procedural rules. Compare State ex rel. Bradford v. Palmer, 2024-Ohio-4929, ¶ 13-15 (permitting judicial notice of prior habeas decisions to dismiss
petition based on second-or-successive-petition rule). It is not clear that any license to
go beyond normal principles of incorporation would extend to an ordinary civil action
like Jones’s.
{¶33} We therefore hold that the trial court erred in granting defendants’
motions to dismiss on the basis of collateral estoppel.
{¶34} Morgan, however, argues that policy cuts the other way. She argues that
the finality objectives of the doctrine of res judicata would be “undermined if a
defeated litigant, dissatisfied with the results of the initial action, could repackage his
claims in a new lawsuit and force the previously prevailing parties to engage in
discovery and proceed all the way to summary judgment, by simply not incorporating
the decisions or orders from the prior action.”
{¶35} The rules already provide mechanisms to avoid such abuse. Discovery
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OHIO FIRST DISTRICT COURT OF APPEALS
need not be completed before a motion for summary judgment is filed. See FIG 20,
L.L.C. v. Daczko, 2026-Ohio-602, ¶ 11 (11th Dist.). We have held that a trial court has
discretion to determine whether to rule on such a motion or delay it until after
discovery. Travis v. Tall Tall Properties, L.L.C., 2023-Ohio-3370, ¶ 22 (1st Dist.). In
fact, Civ.R. 12(B) anticipates such prediscovery summary judgments and allows courts
to convert pre-answer Civ.R. 12(B)(6) motions into motions for summary judgment.
Preclusion defenses, which will sometimes benefit little from discovery, may offer one
basis for summary judgment at such an early stage.
{¶36} In this case defendants relied upon judgments outside Jones’s
complaint to justify dismissal based on collateral estoppel. Under Civ.R. 12(B), the
“proper procedure” for a trial court confronted with such extrinsic evidence would be
either to disregard it, or else “to convert the motion to dismiss into a motion for
summary judgment and provide the opposing party with notice and an opportunity to
respond” with contrary evidence. Jefferson, 2014-Ohio-3074, at ¶ 12; accord Ora,
2021-Ohio-2824, at ¶ 6-7 (1st Dist.).
{¶37} But because the court below did not convert defendants’ motions to
dismiss into motions for summary judgment, it neither developed a proper summaryjudgment record nor applied Civ.R. 56’s well-worn framework for assessing
evidentiary sufficiency. It simply treated materials not provided by Jones as
allegations in his complaint. This was error.
3. Collateral-Attack Doctrine
{¶38} The trial court also ruled that Jones’s complaint constituted an
impermissible collateral attack upon the judgment of the domestic-relations court. A
collateral attack on a judgment is “an attack made by or in an action or proceeding that
has an independent purpose other than impeaching or overturning the judgment.”
15
OHIO FIRST DISTRICT COURT OF APPEALS
(Cleaned up.) State v. Bethel, 2022-Ohio-783, ¶ 44. In general, the law disfavors or
prohibits such collateral attacks, unless the initial judgment was entered without
jurisdiction. See Tari v. State, 117 Ohio St. 481, 494 (1927). This rule is distinct from,
but related to, the doctrine of res judicata. See Ohio Pyro, Inc. v. Ohio Dept. of
Commerce, 2007-Ohio-5024, ¶ 22.
{¶39} The face of Jones’s complaint did not allege a contrary judgment. Thus,
the trial court’s collateral-attack rationale suffers from the same defect as its collateralestoppel ruling. Because proof of a collateral attack requires proof of a contrary
judgment, and because such a judgment was neither alleged by nor incorporated into
Jones’s complaint, the collateral-attack doctrine was an improper basis for dismissal
under Civ.R. 12(B)(6).
4. Abandonment
{¶40} The trial court further held that Jones’s claims for replevin and
conversion failed because Jones had abandoned the personal property at issue.
Abandonment would be an affirmative defense to Jones’s conversion claim. Boaeuf v.
Memphis Station, L.L.C., 2018-Ohio-745, ¶ 6 (8th Dist.). And because abandonment
would extinguish Jones’s rights in the property, it would undermine his replevin claim,
too. See Peterson v. Booth, 2023-Ohio-1301, ¶ 14-17 (2d Dist.).
{¶41} Nothing in Jones’s complaint established that he abandoned his
property. To the contrary: Jones alleges that he did not “seek, determine, or deem any
item or element of the Property to be abandoned.”
{¶42} The court below rested its abandonment rationale on an order from the
domestic-relations court deeming any personal property left in the home to have been
abandoned by operation of law. But this is simply an argument that Jones’s claims run
contrary to a prior court order—an order never alleged in Jones’s complaint. In other
16
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words, the trial court’s abandonment rationale is identical to the collateral-estoppel
and collateral-attack rationales we have already rejected. All rely on prior orders that
were not incorporated into Jones’s complaint, so all fail. Defendants may have
incontrovertible evidence of abandonment, but such extrinsic evidence tells us
nothing about the sufficiency of Jones’s complaint. And sufficiency is all that matters
under Civ.R. 12(B)(6). See Ames, 2022-Ohio-3990, at ¶ 16.
5. Receivers’ Immunity
{¶43} Finally, the trial court held that the claims against Zummo, Lane, and
Prodigy were barred by virtue of their status as receivers.
{¶44} “Receivers are officers of the court, appointed in equity to manage,
preserve, and sometimes dispose of property in controversy during litigation.”
Morgan v. Jones, 2026-Ohio-2432, ¶ 29 (1st Dist.). A receiver can be sued in either
their individual or official capacities for actions related to their receivership. INF Ent.,
Inc. v. Donnellon, 133 Ohio App.3d 787, 789 (1st Dist. 1999).
{¶45} Official-capacity suits seek recovery against assets in receivership. Id. at
789, quoting Murphy v. Hollbrook, 20 Ohio St. 137, 143 (1870). While the receivership
continues, an official-capacity suit requires either leave of the court that appointed the
receiver or express statutory authority. 80 Ohio Jur.3d, Receivers, § 226 (2026);
Fontain v. Sandhu, 2021-Ohio-2750, ¶ 23 (1st Dist.); Roberts v. Jackass Flats, L.L.C.,
2016-Ohio-610, ¶ 15 (2d Dist.). But once a receiver is discharged and the receivership
is terminated, official-capacity claims against the receiver are necessarily
extinguished. See Morgan at ¶ 37 (collecting authorities to this effect); Madorsky v.
Suburban Homes Co., 45 Ohio App. 83, 85-86 (8th Dist. 1933).
{¶46} Individual-capacity claims, by contrast, seek recovery against a receiver
for the receiver’s own misconduct or negligence. See INF at 789; Koeblitz v. Koeblitz,
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2021-Ohio-2269, ¶ 24 (8th Dist.). Several courts in Ohio have held that such claims,
like official-capacity claims, require leave of the appointing court. See Ettayem v.
Ramsey, 2019-Ohio-675, ¶ 15-16 (10th Dist.); PNC Bank, N.A. v. Kidz Real Estate
Group, L.L.C., 2013-Ohio-1357, ¶ 6 (6th Dist.). Because individual-capacity claims
seek recovery against the receiver’s personal funds (rather than against the assets in
receivership), they survive the receiver’s discharge and the termination of the
receivership. And because a receiver’s final discharge generally terminates an
appointing court’s summary jurisdiction over its receiver, see Madorsky at 85-86, a
plaintiff may no longer need leave to file an individual-capacity suit.
{¶47} The terms of a particular discharge order may alter the ability to bring
individual-capacity claims, however. For example, a discharge order might provide
that the appointing court retains jurisdiction to grant or deny leave, or might include
findings that effectively estop parties from relitigating certain aspects of the receiver’s
conduct. See, e.g., Fontain at ¶ 24, 28. Such ongoing provisions are “in the nature of
an injunction, tailored to ensure the parties [can]not undo the receiver’s work.”
Morgan, 2026-Ohio-2432, at ¶ 62 (1st Dist.).
{¶48} In this case, Jones’s complaint never alleged that either Lane or Prodigy
were appointed as receivers. Nor did it incorporate any orders regarding their
appointment. Thus, the complaint did not plainly and conclusively show that either
was shielded from suit.
{¶49} Jones did allege, however, that “Zummo was appointed on or about
April 2021 by the Hamilton County Court of Common Pleas, Division of Domestic
Relations . . . , to serve as a receiver with the directive of effectuating the sale of the
Residence pursuant to a September 19, 2019 Decree of Divorce.” This allegation was
sufficient to show conclusively that, to the extent Jones sought recovery against
18
OHIO FIRST DISTRICT COURT OF APPEALS
Zummo in her official capacity, his claims were barred. Jones did not allege he
received leave to sue Zummo. Thus, if she was still the receiver when Jones filed his
complaint, his claim fails. And if Zummo was already discharged as receiver, then all
official-capacity claims against her were extinguished.
{¶50} However, Jones’s complaint did not plainly and conclusively establish
Jones was barred from suing Zummo in her personal capacity. If Zummo’s
receivership was ongoing, then Jones did not allege that he obtained the requisite leave
to sue her. But if Zummo had been discharged, then she could be sued—absent a term
in her discharge order to the contrary. Because Jones does not allege the existence or
contents of such a discharge order, there remains a set of facts consistent with the
complaint under which Zummo may be sued.
C. Zummo’s Jurisdictional Argument
{¶51} Zummo makes one final argument, not resolved by the court below. In
her brief, she argues that the General Division of the Hamilton County Court of
Common Pleas lacked subject-matter jurisdiction over Jones’s complaint, because the
case was committed by statute to the Domestic-Relations Division. Although she
characterizes this as an alternative ground for affirmance, we note that jurisdictional
dismissals are always without prejudice. See Civ.R. 41(B)(4); Love v. Hamilton Cty.
Job & Family Servs., 2025-Ohio-2498, ¶ 27 (1st Dist.). Thus, if Zummo were correct,
we would need to modify the trial court’s judgment before affirming it.
{¶52} But Zummo’s jurisdictional justification fails. R.C. 2301.03(B)(2)
provides that the judges “elected and designated as judges of the court of common
pleas, division of domestic relations, . . . shall have assigned to them all divorce,
dissolution of marriage, legal separation, and annulment cases coming before the
court.” We have previously said that this provision grants the domestic-relations
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OHIO FIRST DISTRICT COURT OF APPEALS
division exclusive jurisdiction over the listed cases “and deprives the court’s other
divisions, including the general division, of jurisdiction over the same matters.”
(Cleaned up.) Tabbosha v. Abdelrehim, 2025-Ohio-3133, ¶ 24 (1st Dist.). But this is a
case in replevin, conversion, and fraud—not a “divorce, dissolution of marriage, legal
separation, or annulment case[].” And Jones seeks damages and replevin, not simply
an annulment by another name, as the declaratory judgment sought in Tabbosha was.
See id. at ¶ 33.
{¶53} The General Division of the Hamilton County Court of Common Pleas
thus had subject-matter jurisdiction over Jones’s complaint.
III. Conclusion
{¶54} The trial court properly dismissed Jones’s fraud claims for failure to
state a claim under Civ.R. 12(B)(6). However, the trial court’s rationales for dismissing
Jones’s other claims all relied upon matter far beyond the four corners of Jones’s
complaint. While defendants may have strong evidence to prove their affirmative
defenses, Jones did not incorporate that evidence into his complaint. It was therefore
beyond the scope of defendants’ Civ.R. 12(B)(6) motions. If the trial court wished to
consider those materials, Civ.R. 12(B) required it to convert defendants’ motions into
motions for summary judgment and give Jones the chance to introduce contrary
evidence.
{¶55} Accordingly, we sustain Jones’s assignment of error in part and overrule
it in part. The trial court’s dismissals of Jones’s fraud claims are affirmed. Its
dismissals of Jones’s other claims are reversed. The cause is remanded to the trial
court for further proceedings consistent with the law and this opinion.
Judgments affirmed in part, reversed in part, and cause remanded.
BOCK and NESTOR, JJ., concur.
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