[Cite as Dixon v. Huntington Natl. Bank, 2014-Ohio-4079.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 100572

JAMES DIXON, ET AL.

PLAINTIFFS-APPELLANTS 

vs. 

HUNTINGTON NATIONAL BANK, ET AL.

DEFENDANTS-APPELLEES 

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-13-806584 

BEFORE: E.T. Gallagher, J., E.A. Gallagher, P.J., and Stewart, J. 

RELEASED AND JOURNALIZED: September 18, 2014 
ATTORNEY FOR APPELLANTS

Brent L. English 

Law Offices of Brent L. English 

820 Superior Avenue West 

The 820 Building, Suite 900 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEES

For Huntington National Bank

Alexander E. Goetsch 

Komlavi Atsou 

Cavitch, Familo & Durkin Co., L.P.A. 

1300 East Ninth Street 

20th Floor

Cleveland, Ohio 44114

For Third Federal Savings & Loan, Etc.

Janeane R. Cappara 

Kirk W. Roessler 

Ziegler & Metzger, L.L.P. 

2020 Huntington Building 

925 Euclid Avenue 

Cleveland, Ohio 44115
EILEEN T. GALLAGHER, J.: 

{¶1} Plaintiffs-appellants, James and Penny Dixon (“the Dixons”), appeal from the 

trial court’s order granting defendant-appellee’s, Third Federal Savings and Loan 

Association (“Third Federal”), motion to dismiss. The Dixons also appeal from the 

court’s denial of their motion to reconsider the court’s judgment granting 

defendant-appellee’s, Huntington National Bank (“HNB”), motion to dismiss. Finding 

no merit to the appeal, we affirm. 

Facts

{¶2} In May 2013, the Dixons filed a complaint against Third Federal, HNB, and a 

group of six attorneys from the law firm of Weltman, Weinberg and Reis, Co., L.P.A. 

(“Weltman”), 1

 pursuant to the Ohio Corrupt Practices Act, R.C. 2923.31, et seq. 

(“OCPA”), and the federal Racketeer Influenced Corrupt Organizations Act, 18 U.S.C. 

1961, et seq. (“RICO”). 

{¶3} The Dixons alleged in their original complaint that the defendants 

participated in a pattern of corrupt activity, in violation of both the OCPA and RICO 

during foreclosure proceedings that HNB had initiated against the Dixons’ adult daughter, 

on a parcel of residential property. The Dixons had a mortgage interest on the property, 

and HNB subsequently named them as defendants. In the instant case, the Dixons 

 1

 The six individual Weltman attorneys were voluntarily dismissed from the action on 

September 16, 2013. 
alleged they were unlawfully deprived of their interest in the property when defendants 

obtained a default judgment against them and their daughter, because the Dixons allege 

that the defendants failed to properly serve them with the complaint. 

{¶4} The Dixons subsequently filed an amended complaint, removing the RICO 

claims alleged in Counts 3 and 4. On July 25, 2013, defendant HNB filed a motion to 

dismiss the Dixons’ amended complaint, pursuant to Civ.R. 13(A). The motion was ripe 

for ruling on August 5, 2013, and the trial court granted the motion on August 8, 2013. 

As of August 8, 2013, the Dixons had not filed a brief in opposition. 

{¶5} On August 2, 2013, the Dixons filed a motion for enlargement of time to 

respond to all pending motions. The Dixons’ motion was not granted until August 9, 

2013, one day after HNB’s motion was granted. 

{¶6} On July 26, 2013, defendant Third Federal also filed a motion to dismiss, 

which the Dixons opposed. On August 23, 2013, the Dixons filed a motion for 

reconsideration of the court’s judgment granting HNB’s motion to dismiss, which HNB 

opposed. On September 17, 2013, the court held a hearing to address all outstanding 

motions. The transcript of that hearing was not filed in the instant case. 

{¶7} On September 26, 2013, the trial court denied the Dixons’ motion to 

reconsider its order granting HNB’s motion to dismiss and also granted Third Federal’s 

motion to dismiss. The Dixons now appeal from the trial court’s judgments granting 

Third Federal’s motion to dismiss and denying their motion for reconsideration. They 

raise seven assignments of error. 
Third Federal’s Motion to Dismiss

{¶8} In their first assignment of error, the Dixons argue the trial court erred in 

granting Third Federal’s motion to dismiss. In their third assignment of error, they 

argue the trial court erred in dismissing the OCPA claim against Third Federal. These 

two assignments of error are interrelated and shall be addressed together. 

{¶9} We review an order dismissing a complaint for failure to state a claim for 

relief de novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 

N.E.2d 44. In O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 

N.E.2d 753 (1975), the Ohio Supreme Court established the standard of review that is to 

be applied to a motion to dismiss pursuant to Civ.R. 12(B)(6), holding that: 

[i]n order for a court to dismiss a complaint for failure to state a claim upon 

which relief can be granted (Civ.R. 12(B)(6)), it must appear beyond doubt 

from the complaint that the plaintiff can prove no set of facts entitling him 

to recovery. (Conley v. Gibson, 355 U.S. 41 [78 S.Ct. 99, 2 L.Ed.2d 80], 

followed.) 

Id. at the syllabus. When reviewing a Civ.R. 12(B)(6) motion to dismiss, we must 

accept the material allegations of the complaint as true and make all reasonable inferences 

in favor of the plaintiff. Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 

2005-Ohio-4985, 834 N.E.2d 791. 

{¶10} However, “unsupported conclusions of a complaint are not considered 

admitted * * * and are not sufficient to withstand a motion to dismiss.” State ex rel. 

Hickman v. Capots, 45 Ohio St.3d 324, 324, 544 N.E.2d 639 (1989). To prevail on the 
motion, it must appear from the face of the complaint that the plaintiff can prove no set of 

facts that would justify a court granting relief. O’Brien at paragraph one of the syllabus. 

{¶11} The Dixons argue the trial court erred in relying on Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 

556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), in dismissing their claims. They 

contend that based on these cases, the trial court erroneously held their amended 

complaint to stricter standards and requirements than necessary. We disagree. 

{¶12} In Tuleta v. Med. Mut. Of Ohio, 8th Dist. Cuyahoga No. 100050, 

2014-Ohio-396, ¶ 30, this court reversed the trial court’s judgment in which the trial court 

relied upon Bell Atlantic and Iqbal, finding that neither the Ohio Supreme Court nor this 

court had adopted the heightened federal pleading standards set forth in these two cases. 

{¶13} Whereas this court has not adopted the stricter federal pleading standards for

all cases, case law clearly establishes that this court has adopted stricter standards for 

cases in which RICO and/or OCPA claims are alleged. The complaint in Tuleta did not 

contain RICO or OCPA claims, and therefore was not subject to the more stringent 

requirements under which the pleading in the instant case is reviewed. 

{¶14} In Universal Coach, Inc. v. New York City Transit Auth., Inc., 90 Ohio 

App.3d 284, 629 N.E.2d 28 (8th Dist.1993), this court discussed the degree of specificity 

required in pleadings alleging OCPA violations, and set forth a stricter standard of 

pleading for RICO and OCPA claims. This court pointed out that OCPA is directly 

adopted from RICO, and despite some minor differences, this court is in no way 
prohibited from applying federal requirements of pleading specificity when addressing 

OCPA claims before the court. Id. at 292. 

{¶15} To survive a motion to dismiss, the court in Universal held that the 

complaint must allege the following specific elements: 

The United States Supreme Court and numerous other federal courts have 

examined the elements required to establish a RICO violation: (1) conduct 

of the defendant which involves the commission of two or more of 

specifically prohibited state or federal criminal offenses; (2) the prohibited 

criminal conduct of the defendant constitutes a pattern of corrupt activity; 

and (3) the defendant has participated in the affairs of an enterprise or has 

acquired and maintained an interest in or control of an enterprise. Sedima 

S.P.R.L. v. Imrex Co. (1985), 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 

346. We hold that the failure of a plaintiff to plead any of the elements 

necessary to establish a RICO violation results in a defective complaint 

which cannot withstand a motion to dismiss as based upon a failure to state 

a claim upon which relief can be granted. Compare Van Dorn Co. Cent. 

States Can. Co. v. Howington, 623 F.Supp. 1548 (N.D.Ohio 1985). 

Id. at 291 (Emphasis added.). 

{¶16} In the instant case, the Dixons failed to allege that Third Federal’s conduct 

involved the commission of two or more of the specifically prohibited state criminal 

offenses and that such conduct constituted a pattern of corrupt activity, as required by 

R.C. 2923.31(E). In fact, the Dixons failed to set forth a single criminal offense on the 

part of Third Federal. Rather, the Dixons’ amended complaint listed the foreclosure 

default, which was taken by HNB, as an example of criminal activity. 

{¶17} Moreover, the Dixons failed to properly allege an enterprise as defined by 

R.C. 2923.31(C): 

[I]n order to establish the existence of an “enterprise” under Ohio’s RICO 

Act, there must be some evidence of: (1) an ongoing organization, formal or 
informal; (2) with associates that function as a continuing unit; and (3) with 

a structure separate and apart, or distinct, from the pattern of corrupt 

activity. 

State v. Warren, 10th Dist. Franklin No. 92AP-603, 1992 Ohio App. LEXIS 6755 (Dec. 

31, 1992); United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 

(1981). 

{¶18} In Patton v. Wilson, 8th Dist. Cuyahoga No. 82079, 2003-Ohio-3379, this 

court explained: 

This court has held that an enterprise must be a separate entity that acts 

apart from the pattern of activity in which it engages. U.S. Demolition & 

Contracting, Inc. v. O’Rourke Constr. Co. (1994), 94 Ohio App.3d 75, 640 

N.E.2d 235, citing Old Time Enterprises, Inc. v. Internatl. Coffee Corp., 

(C.A.5, 1989), 862 F.2d 1213. A pattern of racketeering activity alone is 

insufficient to establish an enterprise. Id. Although Patton is correct that 

a corporation may be part of an enterprise, the enterprise may not simply be 

composed of a corporation and its officers or employees. 

Id. at ¶ 20. 

{¶19} The Dixons failed to allege that Third Federal is an enterprise in their amended 

complaint. It is clear on the face of the complaint that the Dixons also failed to establish that 

Third Federal was a part of an entity separate and apart from itself. There is no specific 

allegation in the complaint that there was “structure, continuity, and separate existence from the 

corrupt pattern.” Herakovic v. Catholic Diocese of Cleveland, 8th Dist. Cuyahoga No. 85467, 

2005-Ohio-5985, ¶ 24. 

{¶20} Therefore, the Dixons’ failure to plead their OCPA claims with the specificity 

required for such claims resulted in a defective complaint against Third Federal. The trial court 

did not err in granting Third Federal’s motion to dismiss in its entirety. 
{¶21} Accordingly, the Dixons’ first and third assignments of error are overruled. 

Civil Conspiracy

{¶22} In their second assignment of error, the Dixons argue the trial court erred in 

dismissing the civil conspiracy claim against Third Federal. 

{¶23} A civil conspiracy is “a malicious combination of two or more persons to 

injure another person or property, in a way not competent for one alone, resulting in 

actual damages.” Kenty v. Transamerica Premium Ins. Co., 72 Ohio St.3d 415, 419, 650 

N.E.2d 863 (1995), quoting LeFort v. Century 21-Maitland Realty Co., 32 Ohio St.3d 

121, 126, 512 N.E.2d 640 (1987). 

{¶24} In order to prevail on a civil conspiracy claim, a plaintiff must demonstrate 

the existence of an underlying unlawful act. Williams v. Aetna Fin. Co., 83 Ohio St.3d 

464, 475, 700 N.E.2d 859 (1998), citing Gosden v. Louis, 116 Ohio App.3d 195, 219, 687 

N.E.2d 481 (9th Dist.1996). 

{¶25} Further, the failure to successfully allege an OCPA violation negates a civil 

conspiracy cause of action. Herakovic, 2005-Ohio-5985 at ¶ 37, citing Stachon v. 

United Consumers Club Inc., 229 F.3d 673, 677 (7th Cir.2000); Miller v. Norfolk S. Ry. 

Co., 183 F.Supp.2d 996, 1002-03 (N.D.Ohio 2002). This court, in Herakovic, 

explained; 

Without these parameters, individual plaintiffs could fashion broad 

conspiracy claims that have the illusion of a pattern and of an enterprise, 

when, in fact, they have individual defendants acting in their own individual 

affairs and not that of an enterprise. This would nullify the mandate under 

OCPA that before one can claim conspiracy, one must allege with 

specificity an OCPA violation. 
Id. at ¶ 18. 

{¶26} As set forth above, the Dixons’ complaint failed to state a claim for an 

OCPA violation because they did not plead that claim with specificity. Having failed to 

properly plead the underlying tort, there can be no civil conspiracy, and the trial court 

properly dismissed the Dixons’ civil conspiracy claim. 

{¶27} Accordingly, the Dixons’ second assignment of error is overruled. 

Huntington National Bank’s Motion to Dismiss

{¶28} In their fourth assignment of error, the Dixons argue that the trial court erred 

in granting HNB’s motion to dismiss, arguing that the complaint alleged sufficient facts 

and legal theories upon which relief could be granted. 

{¶29} HNB sought dismissal pursuant to Civ.R. 13(A). In its motion to dismiss, 

HNB argued that the Dixons’ claims should be dismissed because they were already 

raised in separate litigation, as compulsory counterclaims in a foreclosure action that was 

still pending.2

{¶30} Civ.R. 13(A) provides: 

(A) Compulsory counterclaims. 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. 

 2

 The Huntington Natl. Bank v. Debra Dixon, et al., Cuyahoga C.P. No. CV-06-585873 

(Oct. 9, 2008). 
The Ohio Supreme Court has held that “[a]ll existing claims between opposing parties 

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

pursuant to Civ.R. 13(A), no matter which party initiates the action.” Rettig Ents., Inc. 

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

{¶31} In addition to promoting judicial economy, the rule is designed to assist 

courts with the “orderly delineation of res judicata.” Lewis v. Harding, 182 Ohio 

App.3d 588, 2009-Ohio-3071, 913 N.E.2d 1048, ¶ 12 (8th Dist.). A party who fails to 

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

a subsequent lawsuit. Id. 

{¶32} Ohio courts use the “logical relation” test to determine whether a claim is a 

compulsory counterclaim. Rettig Ents. at paragraph two of the syllabus. Under this 

test, a compulsory counterclaim exists if that claim “is logically related to the opposing 

party’s claim” such that “separate trials on each of their respective claims would involve a 

substantial duplication of effort and time by the parties and the courts.” Id. 

{¶33} Accordingly, “multiple 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. at 279, 

quoting Great Lakes Rubber Corp. v. Herbert Cooper Co., 286 F.2d 631, 634 (3d 

Cir.1961). “If both prongs are met, then the present claim was a compulsory 

counterclaim in the earlier action and is barred by virtue of Civ.R. 13(A).” Rettig Ents., 
Inc. v. Koehler, quoting Geauga Truck & Implement Co. v. Juskiewicz, 9 Ohio St.3d 12, 

14, 457 N.E.2d 827 (1984). 

{¶34} In the instant case, the Dixons’ claims meet both prongs of the logical 

relation test. The Dixons’ claims 1) existed at the time of HNB’s pleading in the 

foreclosure action, and 2) arose out of the transaction that is the subject matter of the 

foreclosure action. 

{¶35} The Dixons argue the trial court must have gone outside the four corners of 

the complaint to determine whether or not these claims were compulsory counterclaims in 

the foreclosure action. However, in the amended complaint, the Dixons themselves set 

forth the facts of the foreclosure action in great detail, referring to “the instant mortgage 

foreclosure action” multiple times. Indeed, it is evident from the face of the complaint 

that the Dixons’ claims not only existed at the time of HNB’s foreclosure action but also 

that their claims arose out of the transaction that was the subject of the foreclosure action. 

{¶36} Therefore, the trial court did not err in granting HNB’s motion to dismiss 

pursuant to Civ.R. 13(A). Accordingly, the Dixons’ fourth assignment of error is 

overruled. 

Time to Respond

{¶37} In their fifth assignment of error, the Dixons argue the trial court abused its 

discretion when it dismissed their claims against HNB without giving them an 

opportunity to respond. 
{¶38} Although an abuse of discretion is typically defined as an unreasonable, 

arbitrary, or unconscionable decision, State v. Beavers, 10th Dist. Franklin No. 

11AP-1064, 2012-Ohio-3654, ¶ 8, we note that no court has the authority, within its 

discretion, to commit an error of law. State v. Beechler, 2d Dist. Clark No. 09-CA-54, 

2010-Ohio-1900, ¶ 70; State v. Peterson, 10th Dist. Franklin No.12AP-646, 

2013-Ohio-1807, ¶ 21. 

{¶39} Loc.R. 11 of the Court of Common Pleas of Cuyahoga County, General 

Division, requires a party opposing a motion, other than a motion for summary judgment, 

to file their brief in opposition within seven calendar days after service by mail. Civ.R. 

6(D) extends the seven day window to 10 days, allowing additional time for service of the 

motion. 

{¶40} HNB filed it’s motion to dismiss on July 25, 2013. The trial court granted 

this motion 14 days later, on August 8, 2013. The motion was ripe for ruling as early as 

August 5, 2013. On August 2, 2013, The Dixons filed a motion for enlargement of time 

to respond to all pending motions. However, plaintiffs’ motion was not granted until 

August 9, 2013, a day after the trial court granted HNB’s motion to dismiss. 

{¶41} On August 23, 2013, after the court had granted HNB’s motion to dismiss, 

the Dixons filed a motion for reconsideration of the court’s dismissal. HNB filed a brief 

in opposition on September 6, 2013. On September 26, 2013, the trial court denied the 

Dixons’ motion for reconsideration, finding that the Dixons were afforded more than ten 

days in which to respond to the motion to dismiss. 
{¶42} The record clearly supports the fact that the court ruled on HNB’s motion 

after the motion became ripe for ruling. The court’s decision to grant the Dixons an 

enlargement of time to respond to remaining pending motions is separate from the fact 

that it did not extend the response time to HNB’s motion prior to ruling on it. 

{¶43} The court’s denial of the Dixons’ motion for reconsideration supports the 

conclusion that the court’s granting of HNB’s motion and the subsequent granting of the 

Dixons’ motion for enlargement of time was not a mistake or coincidence. We find no 

abuse of discretion in the denying of the Dixons’ motion to reconsider. 

{¶44} Accordingly, the Dixons’ fifth assignment of error is overruled. 

Due Process

{¶45} In their sixth assignment of error, the Dixons argue that the trial court 

denied them their due process rights when the court granted HNB’s motion to dismiss 

before the Dixons filed a response. 

{¶46} Due process requires that an individual be given notice and an opportunity 

to be heard at a meaningful time and in a meaningful manner. Fuentes v. Shevin, 407 U.S. 

67, 80, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). To establish either a procedural or 

substantive due process claim, a plaintiff must first identify the constitutionally protected 

interest of which he was deprived. Bd. of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 

33 L.Ed.2d 548 (1972). 

{¶47} The Dixons fail to cite to any case law or evidence in the record to support 

their contention that the trial court’s judgment granting HNB’s motion to dismiss violated 
their due process rights. As discussed above, the Dixons had an opportunity to respond 

and failed to respond before the response deadline had passed. This is not a case where 

the court granted a motion to dismiss before a response was due. The Dixons had an 

opportunity to be heard. Therefore, we find that the Dixons’ due process rights were in 

no way violated by the court’s order. 

{¶48} Accordingly, the Dixons’ sixth assignment of error is overruled. 

Conversion of HNB’s Motion

{¶49} In the seventh assignment of error, the Dixons argue the trial court erred in 

granting HNB’s motion to dismiss, when the motion should have been converted to a 

motion for summary judgment. 

{¶50} Again, the Dixons argue the trial court looked outside of the four corners of 

the complaint in order to make its decision to grant HNB’s motion to dismiss. They 

contend the motion should have been converted to a motion for summary judgment. 

There is simply no evidence to support this claim. 

{¶51} In reviewing the amended complaint, the Dixons themselves admitted that 

HNB had filed a foreclosure action against them that was still pending. The Dixons 

specified in the amended complaint that they had a $100,000 mortgage lien on their 

daughter’s property and that their daughter’s property was the subject of an ongoing 

foreclosure action. The court did not need to confirm these allegations; it simply 

accepted these admissions as true. It follows that the trial court need not have converted 
HNB’s motion to dismiss to a motion for summary judgment in order to properly rule 

upon it. 

{¶52} Accordingly, the Dixons’ seventh assignment of error is overruled. 

{¶53} Judgment affirmed. 

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

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to 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. 

EILEEN T. GALLAGHER, JUDGE 

EILEEN A. GALLAGHER, P.J., and 

MELODY J. STEWART, J., CONCUR