[This opinion has been published in Ohio Official Reports at 

.]




            SHAPER, APPELLANT, v. TRACY, TAX COMMR., APPELLEE.
                      [Cite as Shaper v. Tracy, 

.]
Civil procedure—Court may not dismiss a case, via a motion to dismiss, on res
        judicata grounds—Res judicata raises merit questions that are to be
        resolved in a merit decision.
       (No. 95-389—Submitted July 26, 1995—Decided October 11, 1995.)
              APPEAL from the Board of Tax Appeals, No. 93-X-1032.
                          ON MOTION to DISMISS or AFFIRM.
                                  __________________
        {¶ 1} Serene G. Shaper, appellant, filed a declaratory judgment action in
Cuyahoga County Common Pleas Court, later venued in the Franklin County
Common Pleas Court, seeking to declare R.C. 5747.01(A)(1) to be in violation of
the federal Commerce Clause for particular income she received from 1988 through
1991. The common pleas court found the statute to be constitutional, and Shaper
appealed to the Franklin County Court of Appeals. The appellate court affirmed
the lower court’s decision, and Shaper filed a motion for a writ of certiorari with
this court. This court declined jurisdiction on March 1, 1995.
        {¶ 2} Shaper also filed amended income tax returns for tax years 1988
through 1991 with the Tax Commissioner, appellee, challenging the
constitutionality of the statute. The commissioner, after Shaper had later filed
applications for personal income tax refunds for these years, denied the refunds.
Shaper appealed to the Board of Tax Appeals (“BTA”), and the BTA affirmed the
commissioner’s order. Shaper filed an appeal of this decision to this court on
February 17, 1995, twelve days before the court declined jurisdiction in the
declaratory judgment appeal.
                              SUPREME COURT OF OHIO




          {¶ 3} This cause is before this court upon the commissioner’s motion to
dismiss or affirm the BTA’s decision on res judicata and/or collateral estoppel
grounds.
                                __________________
          Krislov & Associates Ltd. and Clinton A Krislov; Moses Krislov Co., L.P.A.,
and Moses Krislov; Benesch, Friedlander, Coplan & Aronoff and Leon Friedberg,
for appellant.
          Betty D. Montgomery, Attorney General, and Lawrence D. Pratt, Assistant
Attorney General, for appellee.
                                __________________
          Per Curiam.
          {¶ 4} The commissioner argues that this court’s decision to decline
jurisdiction in the declaratory judgment action is conclusive as to the issues in the
BTA 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.
          {¶ 5} 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),

, 

, res judicata is an affirmative
defense. According to State ex rel. Koren v. Grogan (1994), 

, 

, 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.
          {¶ 6} Accordingly, we deny the “motion to dismiss or affirm.”
                                                                     Motion denied.
          MOYER, C.J., WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER AND COOK, JJ.,
CONCUR.




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                         January Term, 1995




DOUGLAS, J., dissents.
                         __________________




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