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73 Ohio St. 3d 1211

Shaper v. Tracy

Ohio Supreme Court

Decided October 11, 1995

Ohio Supreme Court · decided 1995-10-11

Key passage — most relied on by later courts

““A motion to dismiss is not the proper method to resolve the question posited by the commissioner. According to State ex rel. Freeman v. Morris (1991), 62 Ohio St.3d 107, 109 , 579 N.E.2d 702, 703 , res judicata is an affirmative defense. According to State ex rel. Koren v. Grogan (1994), 68 Ohio St.3d 590, 594 , 629 N.E.2d 446, 450 , an affirmative defense must be raised and proved, and it usually does not affect the jurisdiction of the court. Further, according to Freeman, the court may not dismiss a case, via a motion to dismiss, on res judicata grounds.” Id. at 1212, 654 N.E.2d at 1268 .”

quoted by 1 later decision, including 130 Ohio App. 3d 293 - Haney v. Roberts

Relies on State ex rel. Freeman v. Morris · State ex rel. Koren v. Grogan

Good law ✅— No negative treatment on recordhow we know

Decided 1995-10-11

How this case has been cited

Cited by 31 later decisions — most recently March 2022 · most notably Lycan v. Cleveland (Slip Opinion) (2016), 130 Ohio App. 3d 293 - Haney v. Roberts (1998)

31 state decisions

1201995200020102020decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Per Curiam.

¶1The commissioner argues that this court’s decision to decline jurisdiction in the declaratory judgment action is conclusive as to the issues in the *1212BTA case and bars this court from considering the instant appeal. Shaper responds that the declaratory judgment decision and the BTA decision deal with different issues.

¶2A motion to dismiss is not the proper method to resolve the question posited by the commissioner. According to State ex rel. Freeman v. Morris (1991), 62 Ohio St.3d 107, 109, 579 N.E.2d 702, 703, res judicata is an affirmative defense. According to State ex rel. Koren v. Grogan (1994), 68 Ohio St.3d 590, 594, 629 N.E.2d 446, 450, an affirmative defense must be raised and proved, and it usually does not affect the jurisdiction of the court. Further, according to Freeman, the court may not dismiss a case, via a motion to dismiss, on res judicata grounds.

¶3Accordingly, we deny the “motion to dismiss or affirm.”

¶4Motion denied.

Moyer, C.J., Wright, Resnick, F.E. Sweeney, Pfeifer and Cook, JJ., concur.Douglas, J., dissents.
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