[Cite as Soliel Tans, L.L.C. v. Timber Bentley Coe, L.L.C., 2019-Ohio-4889.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

SOLIEL TANS, L.L.C., ET AL., : 

 

 Plaintiffs-Appellants, : 

 No. 108125 

 v. : 

 

TIMBER BENTLEY COE, L.L.C. ET AL., : 

 

 Defendants-Appellees. : 

 

JOURNAL ENTRY AND OPINION 

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: November 27, 2019 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CV-18-903198 

 

Appearances: 

Wendy S. Rosett, for appellants. 

Dinn, Hochman & Potter, L.L.C., Steven B. Potter, and 

Carly A. Boyd, for appellees. 

MICHELLE J. SHEEHAN, J.: 

Soliel Tans, L.L.C. and its managing member Trinity Steffen 

(collectively referred to as “Tenant” hereafter) appeal from a judgment of the 

Cuyahoga County Court of Common Pleas granting summary judgment in favor of 
Timber Bentley Coe, L.L.C. and its member and agent Douglas Bercu (collectively 

referred to as “Landlord” hereafter). 

The parties entered into a lease agreement in 2016, and Tenant alleged 

Landlord failed to properly maintain the premises, causing damages to Tenant. In 

2017, Landlord filed a complaint for eviction and breach of contract against Tenant 

in Rocky River Municipal Court.1 The municipal court granted eviction, and 

Landlord subsequently dismissed the breach of contract count of the complaint. 

In 2018, Tenant filed the instant lawsuit in the Cuyahoga County 

Common Pleas Court. Landlord filed a motion to dismiss on the ground that 

Tenant’s claim for damages relating to the subject lease was barred because Tenant 

failed to raise compulsory counterclaims regarding its alleged damages stemming 

from Landlord’s breach of the lease in the municipal court case. After providing 

notice to the parties, the trial court converted the motion to dismiss to a motion for 

summary judgment and ruled in favor of Landlord. On appeal, Tenant assigns the 

following two errors for our review: 

I. The trial court erred to the prejudice of the Appellants by 

converting the Appellees’ Motion to Dismiss into a Motion for 

Summary Judgment and, at the very least, by failing to stay the 

proceedings pursuant to Rule 56(F) of the Ohio Rules of Civil 

Procedure, as requested by the Appellants. 

II. Reviewing the converted Motion for Summary Judgment de 

novo, the Record is clear and convincing that the trial court 

 

1 In the 2017 municipal court lawsuit (as well as the 2017 common pleas case), only 

the corporate entities were named as parties. Nonetheless, we will refer to the parties as 

Landlord and Tenant in all three cases. 
erred to the prejudice of the Appellants by granting the 

Appellees’ converted Motion for Summary Judgment. 

Having fully reviewed the record, we find no merit to the claims raised 

in the assignments of error. Accordingly, we affirm the trial court’s judgment. 

I. Substantive Facts and Procedural History 

Timber Bentley Coe, L.L.C. is the owner of a commercial property 

located at 24101 Lorain Road, North Olmsted, Ohio. Soliel Tans, L.L.C. is a business 

that provides tanning and related services. On July 28, 2016, the two parties entered 

into a three-year lease agreement commencing in November 2016. The relationship 

between Landlord and Tenant deteriorated quickly. Tenant alleged there were 

several problems with the conditions of the property.2 

a. 2017 Cuyahoga County Common Pleas Court Case 

On September 29, 2017, Tenant filed a lawsuit in the Cuyahoga County 

Common Pleas Court (Cuyahoga C.P. No. CV 17 886685), alleging Landlord 

breached the lease agreement and also violated its duties as a landlord under R.C. 

1310.47. Tenant sought damages, declaratory judgment, and injunctive relief. 

 

2 Apparently, prior to the subject lease, Tenant leased a commercial property in a 

different location from a different landlord. Tenant alleged that it experienced water 

leaking and problems with electric equipment and air conditioning in that location and it 

was forced to close its business on several occasions. Tenant alleged Landlord induced 

Tenant to move to the subject premises with promises of a location free of these issues. 

However, Tenant alleged Landlord failed to maintain and repair the subject premises. 

Tenant also alleged Landlord had permitted Tenant to “delay transferring the electric 

service into its name and accepted payments of that obligation from [Tenant]” and that 

Landlord, “with only 48 hours’ notice, then informed [Tenant] that [it] intended to 

terminate electric service as of October 1, 2017.” 
However, Tenant’s complaint erroneously named “Timber 

Development Corporation aka Timber Development Company, L.L.C.” as the 

defendant. On December 13, 2017, the trial court dismissed the case with prejudice 

on the ground that the named defendant was not a party to the lease agreement. 

b. 2017 Municipal Court Case 

While the Cuyahoga County Common Pleas Court case was pending, 

on November 6, 2017, Landlord filed a complaint for eviction (forcible entry and 

detainer) and breach of contract against Tenant in the municipal court, in Rocky 

River M.C. No. 17 CVG 2375. Landlord alleged Tenant failed to (1) pay the security 

deposit of $3,200, (2) maintain an HVAC Maintenance Agreement as required by 

the lease, and (3) maintain an insurance policy underwritten by a company rated 

“best” as also required by the lease. Landlord sought eviction and damages 

stemming from Tenant’s breach of the lease. 

On November 27, 2017, the municipal court held an eviction hearing 

in the case. After the hearing, the court granted eviction but allowed Tenant to file 

an answer regarding the breach of contract claim.3 

 

3 As alleged by Tenant in its brief in opposition to the motion for summary 

judgment, Tenant represented that, in the municipal court case, on the same day the 

eviction hearing was held, November 27, 2017, Tenant filed a motion to dismiss the 

eviction proceedings or to transfer the matter to the then-pending common pleas case 

(which was subsequently dismissed due to the erroneously naming of the defendant). The 

municipal court later dismissed Tenant’s motion to transfer as moot. 

 
On December 29, 2017, Tenant filed an answer, raising 13 affirmative 

defenses but did not assert any counterclaims against Landlord. Subsequently, on 

January 23, 2018, Landlord filed a Civ.R. 41(A)(1)(a) notice of dismissal of Count 2 

(breach of contract) of its complaint with prejudice. The municipal court journalized 

the dismissal on January 25, 2018. 

c. Instant Case 

On September 4, 2018, Tenant filed the instant complaint in the 

Cuyahoga County Common Pleas Court against Landlord, alleging breach of 

contract, fraudulent inducement, respondeat superior, negligence, and intentional 

infliction of emotional distress, all relating to the subject lease agreement and 

subject premises. The complaint named Soliel Tans, L.L.C. and its managing 

member Trinity Steffen as plaintiffs, and Timber Bentley Coe, L.L.C. and its member 

and agent Douglas Bercu as defendants. 

On October 4, 2018, Landlord filed a motion to dismiss and requested 

the motion be converted to a motion for summary judgment should the trial court 

find consideration of the motion would require an analysis of matters outside the 

pleading. Landlord argued the complaint should be dismissed because Tenant’s 

claims were compulsory counterclaims in the municipal court case. Landlord 

attached several exhibits to its motion. 

 Exhibit A was a copy the complaint filed on September 29, 2017, in 

the common pleas court (CV 17 886685); exhibit B was the affidavit of Trinity 

Steffen filed in that case; exhibit C was a copy of the journal entry in that case 
journalized on December 13, 2017; exhibit D was the “Complaint for Eviction and 

Breach of Contract” filed with the clerk of Rocky River Municipal Court by Attorney 

Steven Potter on November 6, 2017, at 3:57 p.m., which attached several exhibits — 

the subject lease agreement; a notice of default dated October 10, 2017; and a threeday notice for eviction; exhibit E was a copy of the journalized entry granting 

eviction dated November 28, 2017, and signed by a municipal court judge; Exhibit 

F was a copy of the answer filed by Tenant’s attorney Wendy Rosett on December 

18, 2017, in that case; Exhibit G was a copy of the dismissal entry signed by the same 

municipal court judge and journalized on January 25, 2018. 

 Also attached to the motion was Attorney Steven Potter’s affidavit. 

Attorney Potter stated the affidavit was made upon personal knowledge and that (1) 

exhibits A to C were true copies of pleadings or orders filed in Aces & Jaxis L.L.C. 

d.b.a. Soliel Tans v. Timber Development Corporation, Cuyahoga County C.P. No. 

CV 17 886685, and (2) exhibits D-G were true and accurate copies of pleadings and 

orders filed or issued in Rocky River M.C. No. 17 CVG 2375. 

Also attached to the motion was an affidavit by Douglas Bercu, a 

member of Timber Bentley Coe authorized to act on its behalf. Bercu stated 

(1) Timber Bentley Coe filed a lawsuit against Soliel Tans, L.L.C., in Rocky River 

M.C. No. 17 CVG 2375, which raised two counts, eviction and damages (for breach 

of contract); (2) the municipal court held a hearing on the eviction matter on 

November 27, 2017, where Trinity Steffen appeared on behalf of Soliel Tans; (3) the 
municipal court granted eviction; and (4) on January 25, 2018, the municipal court 

journalized an entry dismissing the damages count of the complaint. 

 On October 9, 2018, the trial court in this matter journalized an entry 

which stated “[t]he court will treat defendants’ motion to dismiss as a motion for 

summary judgment pursuant to Civ.R. 56. Plaintiff[s] to file any brief in opposition 

by 11/09/2018; [Defendants’] reply, if any, to be filed by 11/19/2018.” 

 Subsequently, Tenant filed a “Brief in Opposition to Defendants’ 

Motion for Summary Judgment/Motion to Dismiss or Motion to Stay Summary 

Proceedings.”4 Tenant claimed the trial court should not consider the proceedings 

in the municipal court case because the court cannot take judicial notice of 

proceedings in another case. Moreover, Tenant asserted that Attorney Steven Potter 

was not a records custodian for the court and his affidavit could not authenticate the 

court documents. Tenant asserted that, in the municipal court case, before Tenant 

had an opportunity to further investigate the damages and file a counterclaim 

against Landlord, Landlord prematurely dismissed the breach of contract count of 

 

4 In an affidavit attached to the complaint, Tenant’s managing member, Trinity 

Steffen alleged that Landlord “permitted us, since the inception of the Lease, to delay 

transferring the electric service into the name of Plaintiff Soliel and accepted payments of 

that obligation from Plaintiff Soliel. [Landlord], with only 48 hours notice, then informed 

me that they intended to terminate electric service as of October 1, 2017. [Landlord] did 

this knowing that we were unable to effect such a transfer on 48-hours notice and that 

terminating electric service would cause irreparable harm to me and the business.” 

Steffen also alleged that Landlord was “aware that we were experiencing major issues 

involving water leaking into the premises and electrical equipment as well as inoperable 

air conditioning ***.” She stated Landlord insisted the premises did not have these 

problems prior to Tenant’s move-in. 
the case. Tenant asked the court to deny Landlord’s motion for summary judgment 

or, in the alternative, stay the summary judgment ruling pursuant to Civ.R. 56(F). 

On December 7, 2016, Landlord filed a reply brief. In response to 

Tenant’s assertion that the court documents in the prior court cases cannot be 

considered by the trial court in this case, Landlord attached to its reply brief six 

exhibits, which were certified copies of (1) the Rocky River Municipal Court docket 

in Case No. 17 CVG 2375, (2) November 28, 2017 magistrate’s decision in the case; 

(2) January 25, 2018 notice of dismissal in the case; (4) the Cuyahoga Court of 

Common Pleas Court docket in CV 17 886685, (5) Tenant’s complaint in that case; 

and (6) December 13, 2017 entry of dismissal in the case. 

 On December 18, 2018, the trial court issued a decision in the instant 

case. It struck the exhibits (the certified copies of the court documents) attached to 

Landlord’s reply brief because Landlord filed the exhibits without first obtaining 

leave of court to accompany its reply brief with the additional evidentiary materials. 

The court, however, granted summary judgment in favor of Landlord. Tenant now 

appeals. 

II. Analysis 

We review a trial court's entry of summary judgment de novo, using 

the same standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 

105, 671 N.E.2d 241 (1996). Summary judgment may only be granted when the 

following is established: (1) there is no genuine issue as to any material fact; (2) the 

moving party is entitled to judgment as a matter of law; and (3) that reasonable 
minds can come to but one conclusion, and the conclusion is adverse to the party 

against whom the motion for summary judgment is made, who is entitled to have 

the evidence construed most strongly in its favor. Harless v. Willis Day 

Warehousing Co., 54 Ohio St.2d 64, 67, 375 N.E.2d 46 (1978); Civ.R. 56(E). 

 On appeal, Tenant raises two assignments of error. Under the first 

assignment of error, it argues that the trial court erred in converting Landlord’s 

motion to dismiss into a motion for summary judgment and that the court erred in 

failing to stay the proceedings pursuant to Civ.R. 56(F). Under the second 

assignment of error, Tenant argues that its claims in the instant case are not barred 

by res judicata and that the pleadings and entries in the municipal court case cannot 

be considered by the trial court because they were not properly authenticated. We 

address these four claims in turn. 

a. Conversion of the Motion to Dismiss to Summary Judgment 

Under the first assignment of error, Tenant asserts two claims. First, 

it asserts that the trial court improperly converted Landlord’s motion to dismiss to 

a motion for summary judgment. Pursuant to Civ. R. 12(B), when a motion to 

dismiss for failure to state a claim for relief contains matters outside the pleadings, 

as in the instant case, the motion may be converted into a motion for summary 

judgment provided the parties are given a reasonable opportunity to present all 

materials pertinent to the motion. Sciko v. Cleveland Elec. Illum. Co., 83 Ohio 

App.3d 660, 663, 615 N.E.2d 674 (8th Dist.1992); Park v. Acierno, 160 Ohio App.3d 

117, 2005-Ohio-1332, 826 N.E.2d 324 (7th Dist.), citing Petrey v. Simon, 4 Ohio 
St.3d 154, 156, 447 N.E.2d 1285 (1983). It is the trial court’s “responsibility either 

to disregard extraneous material or to convert a motion to dismiss into a motion for 

summary judgment when additional materials are submitted.” Keller v. Columbus, 

100 Ohio St.3d 192, 2003-Ohio-5599, 797 N.E.2d 964, ¶ 18. Before converting a 

motion to dismiss for failure to state a claim into a motion for summary judgment, 

the trial court must give actual notice to the parties and provide an opportunity to 

respond. State ex rel. Baran v. Fuerst, 55 Ohio St.3d 94, 97, 563 N.E.2d 713 (1990). 

 Here, Landlord filed a “Motion to Dismiss or, in the Alternative, 

Motion for Summary Judgment” on October 4, 2018. As it is improper to look at 

matters outside the pleadings in ruling on a Civ.R. 12(B) motion, the trial court 

properly gave notice to the parties that it would treat the motion to dismiss as a 

motion for summary judgment. On October 9, 2018, the trial court issued a journal 

entry to notify the parties of its intention to treat the motion to dismiss as a motion 

for summary judgment and gave Tenant 30 days to respond to the motion. The Ohio 

Supreme Court has held that a court must notify all parties that it has converted a 

motion to dismiss for failure to state a claim into a motion for summary judgment 

at least 14 days in advance. Petrey at 154. 

 The trial court complied with the notice required by Civ.R. 12(B) and 

gave the parties a reasonable opportunity to respond. As the record reflects, Tenant 

did respond to the trial court’s notice for the conversion and filed its opposition to 

the converted motion for summary judgment. The trial court did not err in 

converting Landlord’s motion to dismiss into a motion for summary judgment. 
b. Request for Continuance under Civ.R. 56(F) 

 Under the first assignment of error, Tenant also claims the trial court 

erred in failing to stay the proceedings pursuant to Civ.R. 56(F) as it had requested. 

In its brief in opposition to Landlord’s motion to dismiss, treated as a motion for 

summary judgment by the trial court, Tenant asked the trial court to deny the 

motion for summary judgment or, in the alternative, stay the summary judgment 

ruling pursuant to Civ.R. 56(F). 

 Civ.R. 56(F) permits the trial court to allow additional time for 

discovery to oppose a summary judgment motion. Civ.R. 56(F) provides: 

Should it appear from the affidavits of a party opposing the motion for 

summary judgment that the party cannot for sufficient reasons stated 

present by affidavit facts essential to justify the party’s opposition, the 

court may refuse the application for judgment or may order a 

continuance to permit affidavits to be obtained or discovery to be had 

or may make such other order as is just. 

“Civ.R. 56(F) provides a method by which a party may seek a continuance on a 

motion for summary judgment so that he may obtain affidavits opposing the 

motion or conduct discovery relevant to it.” Glimcher v. Reinhorn, 68 Ohio App.3d 

131, 137, 587 N.E.2d 462 (10th Dist.1991). 

 “The burden is upon the party seeking to defer the court’s action on a 

motion for summary judgment to demonstrate that a continuance is warranted[.]” 

Kupczyk v. Kuschnir, 8th Dist. Cuyahoga No. 76614, 2000 Ohio App. LEXIS 3380, 

5-6 (July 27, 2000). “Mere allegations requesting a continuance or deferral of action 

for the purpose of discovery are not sufficient reasons why a party cannot present 
affidavits in opposition to the motion for summary judgment. There must be a 

factual basis stated and reasons given why it cannot present facts essential to its 

opposition to the motion.” Gates Mills Invest. Co. v. Pepper Pike, 59 Ohio App.2d 

155, 169, 392 N.E.2d 1316 (8th Dist.1978). The trial court's determination under 

Civ.R. 56(F) is a matter within its sound discretion and it is reviewed under an abuse 

of discretion standard. Juergens v. House of Larose, Inc., 8th Dist. Cuyahoga No. 

106972, 2019-Ohio-94, ¶ 51 (the trial court has considerable discretion in the 

regulation of discovery proceeding); and Scaccia v. Dayton Newspapers, Inc., 170 

Ohio App.3d 471, 476, 2007-Ohio-869, 867 N.E.2d 874, 878 (2d Dist.). 

 Here, Tenant opposed the motion for summary judgment asserting 

that the claims it raised in this present case were not barred by res judicata because 

the claims did not constitute compulsory counterclaims in the municipal court case. 

Although Tenant sought a continuance of a ruling on the motion for summary 

judgment, it did not set forth any reasons for a continuance or explain why 

additional discovery was necessary. We note this was not the first litigation filed 

between the parties on the subject commercial lease. Furthermore, the evidence 

regarding the pleadings and entries in the municipal court case was equally 

accessible to Tenant. “The party seeking additional time to respond to a motion for 

summary judgment must present sufficient reasons that would justify the requested 

continuance, and do more than merely assert generally the need for additional 

discovery.” Juergens at ¶ 52, citing Grill v. Artistic Renovations, 8th Dist. Cuyahoga 

No. 105882, 2018-Ohio-747, 106 N.E.3d 934, ¶ 33. Based on the record before us, 
therefore, the trial court did not abuse its discretion in ruling on the summary 

judgment without staying the summary judgment proceeding for additional 

discovery under Civ.R. 56(F). The first assignment of error is without merit. 

c. Compulsory Counterclaim 

We now turn to the main issue in this appeal, raised under the second 

assignment of error: whether Tenant was required to bring any compulsory 

counterclaims against Landlord when Landlord filed the forcible entry and detainer 

and breach of contract action in the Rocky River Municipal Court. 

 Civ.R. 13(A) governs compulsory counterclaims. It states: 

A pleading shall state as a counterclaim any claim which at the time 

of serving the pleading the pleader has against any opposing party, if 

it arises out of the transaction or occurrence that is the subject matter 

of the opposing party’s claim and does not require for its adjudication 

the presence of third parties of whom the court cannot acquire 

jurisdiction. 

 Under Civ.R. 13(A), “all existing claims between opposing parties that 

arise out of the same transaction or occurrence must be litigated in a single lawsuit, 

regardless of which party initiates the action.” Ferarra v. Vicchiarelli Funeral 

Servs., 2016-Ohio-5144, 69 N.E.3d 171, ¶ 11 (8th Dist.), citing Rettig Ents. v. 

Koehler, 68 Ohio St.3d 274, 626 N.E.2d 99 (1994), paragraph one of the syllabus. In 

Ferarra, this court explained that “[i]n addition to promoting judicial economy, the 

rule is designed to assist courts with the ‘orderly delineation of res judicata.’” Id., 

quoting Lewis v. Harding, 182 Ohio App.3d 588, 2009-Ohio-3071, 913 N.E.2d 

1048, ¶ 12 (8th Dist.). “The purpose of Civ.R. 13, much like the doctrine of res 
judicata, is to avoid multiplicity of suits by requiring in one action the litigation of 

all existing claims arising from a single transaction or occurrence, no matter which 

party initiates the action.” Forney v. Climbing Higher Ents., Inc., 158 Ohio App.3d 

338, 2004-Ohio-4444, 815 N.E.2d 722 (9th Dist.). A party who fails to assert a 

compulsory counterclaim at the proper time is barred from litigating that claim in a 

subsequent lawsuit. Rettig at 277. 

 Forcible entry and detainer actions are governed by 

R.C. Chapter 1923. Because a forcible entry and detainer action is a summary 

proceeding, R.C. 1923.03 provides that “[j]udgments under this chapter are not a 

bar to a later action brought by either party.” Under the statute, “if a landlord files 

an action for forcible entry and detainer and does not join that action with any other 

action, the tenant need not file any counterclaims. Civ.R. 13(A) does not apply in 

forcible entry and detainer actions to require tenants to assert compulsory 

counterclaims.” Haney v. Roberts, 130 Ohio App.3d 293, 300, 720 N.E.2d 101 (4th 

Dist.1998). “If, however, the landlord joins another action with the forcible entry 

and detainer action, Civ.R. 13(A) does apply to that other action and, consequently, 

the tenant must assert compulsory counterclaims.” Id. See also Adams v. Romine, 

2019-Ohio-482, 130 N.E.3d 1050, ¶ 26 (5th Dist.) (“[a]lthough Civil Rule 13(A) is 

inapplicable to a forcible entry and detainer action, it is applicable to a suit for back 

rent or for money damages.”); Forney; Kerr v. Lakewood Shore Towers, Inc., 8th 

Dist. Cuyahoga No. 93462, 2010-Ohio-265 (once the forcible entry and detainer 

action is coupled with an action for back rent or damages, Civ.R. 13(A) is applicable 
and all compulsory counterclaims must be asserted); and Carter v. Russo Realtors, 

10th Dist. Franklin No. 99AP-585, 2000 Ohio App. LEXIS 823 (March 7, 2000). 

 Given the case law authority, Civ.R. 13(A) applies to the forcible entry 

and detainer action filed by Landlord in the Rocky River Municipal Court because 

Landlord’s action was coupled with a breach of contract count seeking money 

damages. Accordingly, Tenant was required to bring any compulsory counterclaims 

it had against Landlord. Having determined that Civ.R. 13(A) is applicable here, we 

must next determine whether Tenant’s claims raised in the instant complaint are 

compulsory counterclaims in the municipal court case. 

 We apply a two-part test for determining whether there is a 

compulsory counterclaim: (1) whether the claim existed at the time of serving the 

pleading, and (2) whether the claim arose out of the transaction or occurrence that 

is the subject matter of the opposing claim. Adams at ¶ 23, citing Rettig, 68 Ohio 

St.3d 274, 626 N.E.2d 99. The Rettig court also set forth a “logical relation” test for 

determining whether claims “arise out of the same transaction or occurrence.” 

Under the “logical relation” test, “‘a compulsory counterclaim is one which is 

logically related to the opposing party’s claim where separate trials on each of their 

respective claims would involve a substantial duplication of effort and time by the 

parties and the courts.’” Adams at ¶ 25, quoting Rettig. “‘[M]ultiple claims are 

compulsory counterclaims where they involve many of the same factual issues, or 

the same factual and legal issues, or where they are offshoots of the same basic 

controversy between the parties.’” Id., quoting Rettig. The purpose behind the rule 
is to “‘avoid multiplicity of actions and to achieve a just resolution by requiring in 

one lawsuit the litigation of all claims arising from common matters.’” Id., quoting 

Rettig. 

 Regarding the first question, Tenant’s claims relating to the alleged 

breach of contract by Landlord existed by November 2017, when Landlord filed the 

forcible entry and detainer action in the municipal court, and the alleged fraudulent 

inducement occurred when the parties entered into the lease agreement in July 

2016. 

 Regarding the second question, all of Tenant’s claims arose from the 

parties’ lease agreement concerning the premises located at 24101 Lorain Road; as 

such, they were “logically related” to Landlord’s claim in the municipal court case, 

which related to the same lease agreement governing the same premises. Forney, 

158 Ohio App.3d 338, 2004-Ohio-4444, 815 N.E.2d 722, at ¶ 19 (each of tenant’s 

causes of action arose from the landlord-tenant relationship over the subject 

premises and therefore logically related to the landlord’s claims in the landlord’s 

prior forcible entry and detainer action). See also McAlpine v. Patrick, 8th Dist. 

Cuyahoga No. 86453, 2006-Ohio-1101, ¶ 16. 

 Because Tenant’s claims existed at the time Landlord filed the forcible 

entry and detainer action in the municipal court and “arose out of the same 

transaction,” the claims were compulsory counterclaims and must be raised in the 

prior detainer action under Civ.R. 13(A). As Tenant failed to assert the claims raised 

in the instant complaint against Landlord in the municipal court case, the doctrine 
of res judicata bars Tenant from subsequently bringing these claims against 

Landlord in the common pleas court. Forney at ¶ 20 (as the tenant failed to present 

claims relating to the lease when the landlord’s forcible entry and detainer was 

pending before the Akron Municipal Court, the tenant was barred by res judicata 

from bringing these claims against the landlord in the Summit County Court of 

Common Pleas), citing DeNigris v. Walker, 9th Dist. Medina No. 2971-M, 2000 

Ohio App. LEXIS 2196, 10 (May 24, 2000), and Quintus v. McClure, 41 Ohio App.3d 

402, 402-403, 536 N.E.2d 22 (9th Dist.1987) (failure to assert a compulsory 

counterclaim pursuant to Civ.R. 13 constitutes res judicata). See also, e.g., Fender 

v. Miles, 185 Ohio App.3d 136, 2009-Ohio-6043, 923 N.E.2d 631 (12th Dist.) (“[t]he 

failure to assert a compulsory counterclaim operates as a bar to the litigation of the 

counterclaim in a subsequent lawsuit; thus, failure to assert a compulsory 

counterclaim constitutes res judicata”). 

 Tenant argues Haney, 130 Ohio App.3d 293, 720 N.E.2d 101, and its 

progeny does not apply here because the damages count in the municipal court case 

was ultimately dismissed by Landlord and Tenant had “neither the duty nor the 

opportunity” to file the counterclaims. This claim is without merit. First, regarding 

Tenant’s assertion that it could not file the counterclaims in the municipal court case 

because the 2017 common pleas court case it filed against Landlord was still pending 

at the time, our review of the record reflects the common pleas court dismissed the 

2017 case on December 13, 2017, and Tenant had until December 29, 2017, to file an 

answer (and any counterclaims) in the municipal court action. 
 Second, Tenant knew about Landlord’s claims (eviction and damages) 

against Tenant since November 6, 2017, when the forcible entry and detainer action 

was initiated. Tenant itself had filed a complaint against Landlord on September 

29, 2017, and therefore, it must have known the damages it alleged to have sustained 

from Landlord’s breach of the lease. Tenant’s assertion that it had neither the 

opportunity to investigate its damages nor the duty to file the counterclaims between 

November 6, 2017, and January 23, 2018 (when Landlord eventually dismissed the 

breach of contract count) is not supported by the record, especially in light of the 

fact that it filed an answer raising numerous defenses to the breach of contract 

count. Finally, we note that although the instant complaint added the corporate 

entities’ principals — Steffen as an additional plaintiff and Bercu as additional 

defendant — res judicata remains applicable because the corporate entity and its 

principal were in privity with each other. Forney, 158 Ohio App.3d 338, 2004-Ohio4444, 815 N.E.2d 722, at ¶ 21-23. 

d. Authentication of Pleadings and Court Entries 

 Under the second assignment of error, Tenant also claims the trial 

court cannot consider the pleadings and court entries in the Rocky River Municipal 

Court case because these documents have not been properly authenticated by a 

records custodian. 

In the motion to dismiss filed by Landlord in the instant case, 

Landlord attached several exhibits relating to the municipal court case: (1) a copy 

of Landlord’s “Complaint for Eviction and Breach of Contract”; (2) a copy of the 
journalized entry granting the eviction signed by the municipal court judge; (3) a 

copy of the answer filed by Tenant’s attorney; and (4) a copy of the dismissal entry 

signed by the same municipal court judge. While these copies were not certified, 

Attorney Potter, Landlord’s attorney, submitted an affidavit stating that these 

documents were true and accurate copies of the pleadings and orders filed or issued 

in Rocky River M.C. No. 17 CVG 2375 in Rocky River Municipal Court. 

 Evid.R. 901 (“Requirement of authentication or identification”) states 

that “[t]he requirement of authentication or identification as a condition precedent 

to admissibility is satisfied by evidence sufficient to support a finding that the matter 

in question is what its proponent claims.” 

 Evid.R. 902 (“Self-authentication) governs self-authentication of 

public records. It states: 

(4) Certified copies of public records. A copy of an official record or 

report or entry therein, or of a document authorized by law to be 

recorded or filed and actually recorded or filed in a public office, 

including data compilations in any form, certified as correct by the 

custodian or other person authorized to make the certification, by 

certificate complying with paragraph (1), (2), or (3) of this rule or 

complying with any law of a jurisdiction, state or federal, or rule 

prescribed by the Supreme Court of Ohio. 

“[C]ertified municipal court documents that are self-authenticating under 

Evidence Rule 902(4) are admissible under Evid.R. 803(8) (the public records 

exception to the hearsay rule).” State v. Davis, 9th Dist. Summit No. 25680, 2012-

Ohio-788, ¶ 17. However, the copies of the court documents in the municipal court 

case attached to Landlord’s motion to dismiss were not certified and, therefore, the 
self-authentication rule under Evid.R. 902 does not apply here.5 Tenant claims 

that because the documents were not self-authenticating, an affidavit from the 

records custodian regarding these documents would be required. 

 The Rules of Evidence do not prohibit the admission of the court 

documents without an affidavit from the records custodian. Evid.R. 803(8) (public 

records exception to the hearsay rule) encompasses dockets and journal entries of 

courts. State v. Glacken, 13 Ohio Misc.2d 17, 19, 469 N.E.2d 95, 98 (1984). The rule 

states: 

(8) Public records and reports. Records reports, statements, or data 

compilations, in any form, of public offices or agencies, setting forth 

(a) the activities of the office or agency, or (b) matters observed 

pursuant to duty imposed by law as to which matters there was a duty 

to report, excluding, however, in criminal cases matters observed by 

police officers and other law enforcement personnel, offered by 

defendant, unless the sources of information or other circumstances 

indicate lack of trustworthiness. 

(Emphasis added.) The proponent of the public record which is not selfauthenticating is required to present some extrinsic evidence demonstrating the 

public record is what it purported to be. State v. Morrow, 138 Ohio App.3d 38, 42, 

740 N.E.2d 314 (2d Dist.2000). However, “[t]he foundational conditions for 

evidence introduced pursuant to Evid.R. 803(8)(a) are minimal and do not require 

the testimony of a custodian or other qualified witness as a precondition to 

 

5 Although Landlord attempted to submit certified copies of the same documents 

by attaching them to its reply brief, the trial court struck them because they were 

submitted without the leave of court. 
admissibility.” Id., citing State v. Breeze, 89 Ohio App.3d 464, 472, 624 N.E.2d 

1092 (2d Dist.1993). 

 Here, we find Landlord presented sufficient evidence to support a 

finding that the court documents were what they purported to be. Attorney Potter, 

who was also Landlord’s trial counsel in the municipal court case, stated in the 

affidavit that the affidavit was made upon personal knowledge and the four exhibits 

were true copies of pleadings and orders filed or issued in the Rocky River M.C. No. 

CV 17 886685. As such, Landlord sufficiently established the authenticity of the 

documents in the municipal court case. The second assignment of error lacks merit. 

 Judgment affirmed. 

It is ordered that appellees recover of appellants costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. 

 A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

___________________________ 

MICHELLE J. SHEEHAN, JUDGE 

PATRICIA ANN BLACKMON, P.J., and 

KATHLEEN ANN KEOUGH, J., CONCUR