COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59205 MADELYN C. KOLTCZ : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION ALCHEM CORP., ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 7, 1991 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 171551 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: RONALD L. ROSENFIELD, ESQ. ALAN G. STARKOFF, ESQ. SPERO & ROSENFIELD CO., RENEE Z. GUMMOE, ESQ. 113 St. Clair Avenue, Suite 500 GAINES & STERN CO., L.P.A. Cleveland, Ohio 44114-1211 1700 Ohio Savings Plaza Cleveland, Ohio 44114 - 1 - DYKE, J.: Appellant, Madelyn C. Koltcz, f.k.a. Madelyn C. Sowinski, and appellee, Roger W. Sowinski, were divorced after a trial in which the value of Roger Sowinski's business, Alchem Corp. was material to the amount of the award to appellant. (Case No. 87- 166964.) In 1988 appellant filed a Civ. R. 60(B) motion for relief from judgment and in 1989 instituted this action for fraud against appellees, Roger Sowinski and Alchem Corp. After appellees filed a motion to dismiss the fraud action because the 60(B) motion to vacate allegedly made the same allegations appellant withdrew the motion to vacate and responded to the motion to dismiss. Appellees received leave to file a reply to appellant's response. In their reply, filed eight days late, they argued for the first time that the complaint failed to plead fraud with particularity as required by Civ. R. 9(B) and that the domestic relations case determined Alchem's value and res judicata applied. The trial court granted appellees' motion to dismiss but cited only the failure to plead fraud with particularity as the reason for the dismissal. Appellant filed a Civ. R. 60(B) motion but then filed her notice of appeal from the dismissal. This court denied appellant's motion to have this case remanded to the trial court for a ruling on the motion to vacate. On appeal appellant assigns five errors for review. I THE TRIAL COURT ERRED IN DISMISSING PLAINTIFF-APPELLANT'S AMENDED COMPLAINT FOR - 2 - FAILING TO MEET THE REQUISITES OF OHIO CIVIL RULE OF PROCEDURE 9(B) WHERE THE DEFENDANTS- APPELLEES WAIVED SAID 9(B) OBJECTION BY NOT RAISING IT AT THE FIRST AVAILABLE TIME AS REQUIRED BY OHIO CIVIL RULE OF PROCEDURE 12(G). Appellant cites Civ. R. 12(G) which states as follows: G. Consolidation of defenses and objections. A party who makes a motion under this rule must join with it the other motions herein provided for and then available to him. If a party makes a motion under this rule and does not include therein all defenses and objections then available to him which this rule permits to be raised by motion, he shall not thereafter assert by motion or responsive pleading, any of the defenses or objections so omitted, except as provided in subdivision (H) of this rule. (Emphasis added.) Civ. R. 12(H)(2) states as follows: (2) A defense of failure to state a claim upon which relief can be granted ... may be made in any pleading permitted or ordered under Rule 7(A), or by motion for judgment on the pleadings, or at the trial on the merits. Res judicata and the failure to comply with 9(B) are properly asserted in a Civ. R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted. Appellees filed a motion to dismiss which argued only about the pending motion in domestic relations. After appellant responded appellees filed a reply brief but instead of replying to appellant's response appellees asserted two new grounds for dismissal. The reply was a second motion to dismiss. When appellees' first motion failed to argue 9(B) or res judicata, under Civil R. 12(H) those 12(B)(6) defenses were waived. 12(H) states that even if the Civ. R. 12(B)(6) defense - 3 - of failure to state a claim was not raised in the motion to dismiss it may be nevertheless subsequently made but the rule specifies the three ways in which it may be made: in a pleading allowed by Civ. R. 7(A) (in this case, only an answer); in a Civ. R. 12(C) motion for judgment on the pleadings; or at trial. Civ. R. 12(C) states, "After the pleadings are closed but within such times as not to delay the trial, any party may move for judgment on the pleadings." Appellees' reply was not a motion for judgment on the pleadings since the pleadings had not closed. Piersant v. Bryngelson (1989), 61 Ohio App. 3d 359 (paragraph three of the syllabus). Appellees had not yet answered. Thus appellees could not raise the defense in a second motion to dismiss (their reply) since it failed to do so at the first opportunity. Assignment of error No. I is sustained. Civ. R. 12(G). The motion to dismiss should have been denied. We address the remaining assignments of error pursuant to App. R. 12(A). II THE TRIAL COURT ERRED IN DISMISSING PLAINTIFF-APPELLANT'S AMENDED COMPLAINT UNDER RULE 9(B) WHERE PLAINTIFF-APPELLANT'S AMENDED COMPLAINT WAS IN COMPLIANCE WITH OHIO RULE OF CIVIL PROCEDURE 9(B) IN THAT THE CIRCUMSTANCES CONSTITUTING FRAUD WERE STATED WITH PARTICULARITY. Civ. R. 9(B) states, "In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." - 4 - As noted, a Civ. R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted is an appropriate motion when a defendant asserts that a complaint fails to plead with particularity as required by Civ. R. 9(B). Before a court may grant a 12(B)(6) motion it must appear "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." York v. Ohio St. Highway Patrol (1991), 60 Ohio St. 3d 143, 144, quoting O'Brien v. University Community Tenants Union, Inc. (1975), 42 Ohio St. 2d 242. A claim of common-law fraud requires proof of the following elements: (a) a representation or, where there is a duty to disclose, concealment of a fact. (b) which is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury proximately caused by the reliance. Russ v. TRW, Inc. (1991), 59 Ohio St. 3d 42, 49. Appellant's amended complaint stated as follows (in pertinent part): 4. Defendants did produce data and information regarding their respective financial positions intending Plaintiff, her agents and employees, to rely thereupon for the purpose of presenting evidence as to - 5 - the value of Alchem Corp. to the Court of Common Pleas of Cuyahoga County. 5. Defendants conspired to produce and create the said data and information regarding their respective financial positions in a fraudulent manner and did provide the said data and information regarding their respective financial positions which were false and known by Defendants when provided, made and/or issued to be false in at least the following regards: a. That accounts receivable including, without limitation, accounts receivable from Abrite Company, Dallas, Texas, and Erieview Metal Treating of Cleveland, Ohio, were misclassified, misdescribed, materially understated and undervalued. b. That certain accounts payable were overstated; c. That the results of operations were materially understated. 6. That as a result, the assets of Alchem Corp., as reflected in said financial statements, were understated, the liabilities of Alchem Corp. as reflected in said financial statements, were overstated and the results of operations of Alchem Corp., as reflected in said financial statements, were understated and as a consequence determinations as to the value of the corporation's stock made with reference to these considerations were based upon said fraudulent information. 7. Plaintiff, her agents and employees, did rely upon the representations of accuracy made by Defendants without knowledge of the falsity thereof or of the deliberate misstatement of material facts by Defendants in that her agents and employees relied upon, expressed opinions based upon and testified at the time of trial of the divorce action as to the value of said Alchem Corp. based upon said false information. 8. Further, Defendants caused the same false information to be provided to the agents and employees of Defendant, Roger W. Sowinski, for their use at time of trial with the affect that Sowinski's own agents and employees relied upon said fraudulent information in - 6 - their rendering their opinions and giving testimony, a result intended by Defendants. 9. Had Plaintiff or Plaintiff's agents and employees known of the falsity of Defendants' misrepresentations, all testimony at time of trial concerning the value of Defendant, Alchem Corp., would have been substantially different and both Plaintiff's agents and Defendants' agents would have testified that the value of Alchem Corp. would have been substantially greater and Plaintiff would have received a substantially larger award as a result thereof. 10. As a further result, Plaintiff believes that she has been damaged by undervaluation and that her proportionate distribution of the assets of the marriage was reduced by the sum of Two Hundred Thousand Dollars ($200,000.00). (Emphasis added.) Civ. R. 9(B) states, "Malice, intent, knowledge, and other condition of mind of a person may be averred generally." (Emphasis added.) Thus, appellant had to plead with particularity (1) appellees' material representation or concealment; (2) justifiable reliance; and (3) the injury proximately caused. Appellant's general averments of knowledge of falsity and intent to mislead into reliance are sufficient under Civ. R. 9(B). Normally, 'the circumstances constituting fraud' within the meaning of Civ. R. 9(B) means the pleader must state the time, place and content of the false representation, the fact misrepresented, and what was obtained or given as a consequence of the fraud. The Civ. R. 9 requirement of particularity in the pleading of fraud must be applied in conjunction with the general directives in Civ. R. 8 that the pleadings should contain a 'short and plain statement of the claim' and that each averment should be 'simple, concise, and direct.' Where it is apparent that even though the pleadings may be vague the defendant does in fact have notice of the matters of which plaintiff - 7 - complains, a strict application of Civ. R. 9(B) can serve no useful purpose. F & J Roofing Co. v. McGinley & Sons, Inc. (1987), 35 Ohio App. 3d 16 (paragraph one and two of the syllabus). An allegation in a complaint that defendant made misstatements and omissions of information relied upon by plaintiff satisfied Civ. R. 9(B)'s requirement that the representation or concealment be pleaded with particularity. Haddon View Investment Co. v. Coopers & Lybrand (1982), 70 Ohio St. 2d 154, 159. In Haddon the complaint stated the material information omitted and the inaccurate statements made. Id. Here, the complaint did not merely say that misrepresentations or omissions were made. It specified that appellees falsified information regarding appellees' financial positions by including misclassified, misdescribed and understated accounts receivable, overstated accounts payable and understated results of operations. As a result the assets were understated, liabilities were understated and results of operations were understated and the apparent value of Alchem's stock was based on fraudulent information. At trial the witnesses testified accordingly and appellant's award was effected. Haddon stated that the complaint stated fraud with particularity because defendant was "sufficiently apprised of the specific claims to be required to answer." Id. Appellant's complaint sufficiently apprised appellees of the specific claims - 8 - and the motion to dismiss was improperly granted. Assignment of error No. II is sustained. III THE TRIAL COURT COMMITTED A REVERSIBLE ABUSE OF DISCRETION BY DISMISSING PLAINTIFF- APPELLANT'S AMENDED COMPLAINT RATHER THAN ORDERING PLAINTIFF-APPELLANT TO AMEND HER COMPLAINT SO AS TO CONFORM WITH RULE 9(B). Appellee argues that appellant had full discovery in the divorce case and had a prior opportunity to plead (in the original complaint and in the motion to vacate filed in the domestic relations case) and failed to add anything to the amended complaint except the names of two of the accounts that were allegedly misrepresented. Discovery that relied upon information from appellees would not be "full" if, as appellant alleges, the information provided was false. As to the prior attempts to allege fraud as noted earlier the complaint is sufficient to defeat the motion to dismiss. Appellees also argue that res judicata bars the fraud action when the value of Alchem was established in the domestic relations action. Appellees failed to properly assert that defense in their motion. (See discussion of assignment of error No. I.) Appellant has conceded that a proper response to a failure to comply with Civ. R. 9(B) is a motion to dismiss. Appellant cites no dispositive authority for the proposition that a trial court abuse its discretion when it grants the relief requested (dismissal) upon finding that a motion to dismiss is well taken. - 9 - However, as noted in the discussion of assignment of error No. IV a trial court must provide notice of the intent to dismiss a claim with prejudice. This will enable a plaintiff to amend the complaint, if it can, and reach the merits of the case. Assignment of error No. III is overruled. IV THE TRIAL COURT ERRED IN DISMISSING PLAINTIFF-APPELLANT'S AMENDED COMPLAINT WITHOUT NOTICE. Appellant contends that Civ. R. 41(B)(1) requires notice of a possible dismissal and 41(B)(1) applies to a dismissal under Civ. R. 12(B)(6) (failure to state a claim upon which relief can be granted). Civ. R. 41(B)(1) states as follows: (B) Involuntary dismissal: effect thereof (1) Failure to prosecute. Where the plaintiff fails to prosecute, or comply with these rules or any court order, the court upon motion of a defendant or on its own motion may, after notice to the plaintiff's counsel, dismiss an action or claim. (Emphasis added.) Appellant cites Ohio Furniture Co. v. Mindala (1986), 22 Ohio St. 3d 99 which held that "the notice requirement of Civ. R. 41(B)(1) applies to all dismissals with prejudice, including those entered pursuant to Civ. R. 37(B)(2) for failure to comply with discovery orders." Id. at 101. (Emphasis in original.) Here, the dismissal was with prejudice since the judgment failed to provide otherwise. Civ. R. 41(B)(3). Appellees argue that the motion itself supplied the notice required but that conclusion belies the wording of the rule which - 10 - requires a motion and notice. The rule states that if plaintiff fails to do certain things the court upon motion after notice, may dismiss the claim or action. As Ohio Furniture noted "a dismissal is a harsh remedy that calls for the due process guarantee of prior notice." Ohio Furniture Co., 22 Ohio St. 3d at 101. Thus, something more than the filing of a motion is necessary. Therefore the trial court erred when it dismissed, with prejudice, the claim for failure to state a claim upon which relief could be granted without providing the notice required under Civ. R. 41(B)(1). Assignment of error No. IV is sustained. V THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO VACATE THE ORDER OF JANUARY 2, 1990, SUA SPONTE, UPON BEING ADVISED OF THE FACTS STATED IN PLAINTIFF-APPELLANT'S COUNSEL'S AFFIDAVIT IN SUPPORT OF HER 60(B) MOTION TO VACATE. Appellees' motion to dismiss was granted on January 4, 1990. On January 26, 1990 appellant filed a Civ. R. 60(B) motion to vacate but before the motion to vacate was ruled on appellant filed her notice of appeal on January 30, 1990. A trial court has no authority to sua sponte vacate a final order except when there are "clerical mistakes in judgments, orders or other parts of the record and errors arising from oversight or omission" (Civ. R. 60(A)) or when the court vacates a void judgment, Patton v. Diemer (1988), 35 Ohio St. 3d 68 - 11 - (paragraph four of the syllabus). The power to vacate a voidable judgment pursuant to Civ. R. 60 must be invoked by motion. Once the notice of appeal was filed the trial court lost jurisdiction to rule on appellant's motion to vacate. State v. McGettrick (1988), 40 Ohio App. 3d 25, 33 and Dempsey v. Chicago Title Ins. Co. (1985), 20 Ohio App. 3d 90. The general rule is that a trial court loses jurisdiction after an appeal, except to take action in aid of an appeal or when a remand is ordered for a ruling on a pending motion; the lower court retains only that jurisdiction not inconsistent with that of the appellate court to review, affirm, modify or reverse the order from which the appeal is perfected. Yee v. Erie County Sheriff's Dept. (1990), 51 Ohio St. 3d, 43, 44 and State, ex rel. Special Prosecutors v. Judges (1978), 55 Ohio St. 2d 94, 97, both citing In re Kurtzhalz (1943), 141 Ohio St. 432 (syllabus 2). Assignment of error No. V is overruled. The judgment of the trial court is reversed and this cause is remanded to the trial court. - 12 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellees her costs herein. It is ordered that a special mandate be sent to said 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. PATTON, J., CONCURS. SPELLACY, J., CONCURS WITH ATTACHED CONCURRING OPINION PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59205 MADELYN C. KOLTCZ : : : PLAINTIFF-APPELLANT : : v. : CONCURRING OPINION : ALCHEM CORP., ET AL. : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: SPELLACY, J., CONCURRING: I concur in the majority opinion that this case be reversed and remanded to the trial court for further proceedings. However, I am compelled to write further by what I perceive to be the fundamental reason for such a reversal, i.e., the trial court erred in dismissing appellant's complaint for failure to state a claim for fraud. In order for a trial court to dismiss a complaint for failure to state a claim upon which relief may be granted, it must appear "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." O'Brien v. University Tenants Union, Inc. (1975), 42 Ohio St. 2d 242, 245. In construing a complaint upon a motion to dismiss for -2- failure to state a claim, we must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the nonmoving party. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St. 3d 190. With regard to a claim for fraud, the standard for granting a motion to dismiss requires that the plaintiff plead operative facts with particularity. Civ. R. 9(B). Civ. R. 9(B) provides that all averments of fraud shall be stated with particularity. A claim for fraud requires proof of the following elements: a) a representation, or, where there is a duty to disclose, concealment of a fact; b) which is material to the transaction at hand; c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred; d) with the intent of mis- leading another into relying upon it; e) justifiable reliance upon the representation or concealment; and f) a resulting injury proximately caused by the reliance. Russ v. TRW (1991) 59 Ohio St. 3d 42, 49. A review of appellant's complaint indicates that she suffi- ciently described the circumstances constituting the fraud by identifying the occasion on which the alleged misstatements or omissions occurred and how. Appellant also identified by whom the statements were made and how she justifiably relied on said statements to her detriment. Presuming that appellant's factual allegations are true and making all reasonable inferences in her favor, I find that -3- appellant's complaint for fraud was sufficiently particular to satisfy the purposes of Civ. R. 9(B). Accordingly, I conclude that the trial court erred in dismissing her complaint for failure to state a claim pursuant to Civ. R. 12(B)(6). Thus, I concur with the majority opinion that the trial court's judgment must be reversed and this case remanded for further proceedings. .