State ex rel. Banker's Choice, L.L.C. v. Cincinnati

2020 Ohio 6864

• Court: Ohio Court of Appeals
• Decided: December 23, 2020
• Docket: C-200017
• Status: Published

Opinion

[Cite as State ex rel. Banker's Choice, L.L.C. v. Cincinnati, 2020-Ohio-6864.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO EX REL. BANKER’S : APPEAL NO. C-200017 CHOICE, LLC, TRIAL NO. A-1902350 : Relator-Appellant, O P I N I O N. : and : BANKER’S CHOICE, LLC, : and : STOUGH DEVELOPMENT CORP., : Plaintiffs-Appellants, : vs. : CITY OF CINCINNATI, : and : SHAWN PATTON, P.E., : Respondents/Defendants- Appellees. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: December 23, 2020

Barrett & Weber, C. Francis Barrett and Scott A. Sollmann, for Relator-Appellant and Plaintiffs-Appellants,

Paula Boggs Muething, City Solicitor, Kevin M. Tidd and Shuva J. Paul, Assistant City Solicitors, for Respondents/Defendants-Appellees. O HIO F IRST D ISTRICT C OURT OF A PPEALS

M OCK , Presiding Judge.

{¶1} Because the trial court prematurely determined that the complaint

filed in this cause was untimely, we reverse the decision and remand the cause to the

trial court for further proceedings.

Takings Complaint Dismissed

{¶2} In May 2019, relator/plaintiff-appellant Banker’s Choice, LLC, and

plaintiff-appellant Stough Development Corp. (hereinafter collectively “Banker’s

Choice”) filed a complaint for a claimed physical taking by respondents-appellees

city of Cincinnati and Shawn Patton, P.E., (hereinafter collectively “the city”). The

substance of the complaint set forth that, because of the construction of a stop for the

city’s streetcar system along the side of Banker’s Choice’s property, Banker’s Choice

lost access from the property to the public right-of-way. According to the complaint,

Banker’s Choice applied for right-of-way access in September 2017. That application

had been denied in January 2018. The action sought a writ of mandamus to compel

the city to initiate appropriation proceedings for taking the property rights of

Banker’s Choice and to compel the issuance of permits for access to its property from

the abutting public right-of way.

{¶3} The city filed a motion to dismiss the complaint pursuant to Civ.R.

12(B)(6), claiming that the suit was barred by the four-year statute of limitations for

takings. In its motion, the city relied upon additional facts not alleged in the

complaint. The motion was supported with copies of unverified documents attached

to the motion. These documents, according to the footnote identifying them,

included:

 Exhibit A, Simes, Randy. “Streetcar’s promise attracts occupants

to OTR property.” Cincinnati Business Courier, July 17, 2013;

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 Exhibit B, Email from Scott Stough, “Streetcar Stop-Main

Street,” to Chris Eilerman dated February 11, 2013;

 Exhibit C, City of Cincinnati Zoning Board of Appeals (“ZBA”)

Decision, April 8, 2015;

 Exhibit D, City of Cincinnati Department of Transportation and

Engineering (“DOTE”), Cincinnati Streetcar, First Segment

Vicinity Partial Plan Submittal, dated May 1, 2011;

 Exhibit E, City of Cincinnati, Cincinnati Streetcar Project

Supplemental Environmental Assessment dated May 16, 2011;

 Exhibit F, Email from Scott Stough, “Information,” to John

Deatrick dated November 21, 2013;

 Exhibit G, Email from Scott Stough, “Main Street Stop,” to John

Deatrick dated January 7, 2014;

 Exhibit H, Email from Scott Stough, “Main Street Stop,” to John

Deatrick (Cc: Michael Stough, Michael Paul, Michael Moore, John

Brazina) dated January 20, 2014;

 Exhibit I, Email from Scott Stough, “Main Street Streetcar Stop,”

to John Deatrick (Cc: Michael Paul, Michael Moore, Kate

Leiniger) dated May 6, 2014;

 Exhibit J, Email from John Deitrick, “Main Street Stop,” to Scott

Stough (Cc: Michael Stough, Michael Paul, Michael Moore, John

Brazina) dated January 9, 2014;

 Exhibit K, DOTE Inspector Daily Report dated May 6, 2015;

 Exhibit L, DOTE Inspector Daily Report dated May 8, 2015.

The footnote asked the trial court to take “judicial notice” of the facts in these

documents, “without converting it to a motion for summary judgment.”

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{¶4} The motion set forth facts outside those alleged in the complaint,

which were supported only by the unverified documents attached to the motion. The

city claimed that Banker’s Choice purchased the property in 2013 to benefit from the

redevelopment in Over the Rhine and the streetcar once it was built. It also claimed

that the location had been publicly announced in 2011 and that Banker’s Choice

knew the streetcar would run next to the property months before purchasing it. The

city denied the request to move the stop to another location in 2014. The city closed

the sidewalk and began construction of the stop in May 2015. Concurrently,

Banker’s Choice had also sought to have the building demolished. The request for a

certificate of appropriateness for the demolition was denied in 2014, and that

decision was affirmed by the Board of Zoning Appeals in 2015.

{¶5} The trial court granted the city’s motion to dismiss the complaint.

The trial court determined that using either the date of the denial of the certificate of

appropriateness or the date when construction commenced, the four-year limitations

period had expired. In one assignment of error, Banker’s Choice claims that this

decision was error.

Civ.R. 12(B)(6) and Judicial Notice

{¶6} A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon

which relief can be granted tests the sufficiency of the complaint. Thomas v.

Othman, 2017-Ohio-8449, 99 N.E.3d 1189, ¶ 18 (1st Dist.). When ruling on a Civ.R.

12(B)(6) motion, the trial court is confined to the allegations in the complaint. Id. It

must accept the complaint’s factual allegations as true and must draw all reasonable

inferences in favor of the nonmoving party. Id. We review the trial court’s ruling on

a Civ.R. 12(B)(6) motion de novo. Id. at ¶ 19. “A complaint should not be dismissed

for failure to state an actionable claim unless it appears beyond doubt from the

complaint that the plaintiff can prove no set of facts entitling him to recovery.” Id.

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{¶7} While generally limited to the allegations stated in a complaint, a trial

court may take judicial notice of “appropriate matters” in considering a Civ.R.

12(B)(6) motion to dismiss for failure to state a claim. State ex rel. Neff v. Corrigan,

75 Ohio St.3d 12, 16, 661 N.E.2d 170 (1996). “A judicially noticed fact must be one

not subject to reasonable dispute in that it is either (1) generally known within the

territorial jurisdiction of the trial court or (2) capable of accurate and ready

determination by resort to sources whose accuracy cannot reasonably be

questioned.” Evid.R. 201(B).

{¶8} The city has cited one case in support of the trial court considering its

attachments. States Resources Corp. v. Hendy, 9th Dist. Summit No. 25423, 2011-

Ohio-1900. In that case, the court concluded that the trial court could take judicial

notice of the fact of a party’s tax debt by looking at official tax records, stating that

Evid.R. 201 governs judicial notice of facts of the case, or

“adjudicative facts.” See, also, Smith v. McLaughlin, 9th Dist. No.

24890, 2010-Ohio-2739, ¶ 51. A court may take judicial notice of

a fact not subject to reasonable dispute that is “capable of accurate

and ready determination by resort to sources whose accuracy

cannot reasonably be questioned.” Evid.R. 201(B). Further,

“[j]udicial notice may be taken at any stage of the proceeding.”

Evid.R. 201(F). Once judicial notice of a fact is taken, a “party is

entitled upon timely request to an opportunity to be heard as to

the propriety of taking judicial notice and the tenor of the matter

noticed. In the absence of prior notification, the request may be

made after judicial notice has been taken.” Evid.R. 201(E).

***

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“Public records and government documents are generally

considered ‘not to be subject to reasonable dispute.’ This includes

public records and government documents available from reliable

sources on the Internet.” (Internal citation omitted.) [U.S. ex rel.

Dingle v. BioPort Corp., 270 F.Supp.2d 968, 972

(W.D.Mich.2003)], aff’d sub nom. [Dingle v. Bioport Corp., 388

F.3d 209 (6th Cir.2004)]. See also, [Grimes v. Navigant

Consulting, Inc., 185 F.Supp.2d 906, 913 (N.D.Ill.2002)] (taking

judicial notice of stock prices posted on a website); [Cali v. E.

Coast Aviation Servs., Ltd., 178 F.Supp.2d 276, 287

(E.D.N.Y.2001)] (taking judicial notice of documents from

Pennsylvania state agencies and Federal Aviation Administration);

[Segle v. PNC Mtge., W.D.Wash. No. 10-5655RJB, 2011 WL

1098936, at *2 (Mar. 25, 2011)] (taking judicial notice of a notice

of sale and deed because they were recorded with the auditor and

appear on the county’s website). As a result, the delinquency of

Hendy’s tax obligations was subject to judicial notice under

Evid.R. 201(B)(2).

Id. at ¶ 18, 20.

{¶9} States Resources is distinguishable from this case. First, the

document in that case containing the information had been properly authenticated.

See id. at ¶ 17 (“States Resources submitted a certified copy of Hendy’s tax statement

issued by Summit County.”). In this case, the city simply stapled unauthenticated

documents to its motion to dismiss. None were attached to an affidavit

authenticating them or explaining their relevance. The documents were merely

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identified in a footnote in the motion, which gave no more information than what the

city claimed the documents to be.

{¶10} But more significantly, the nature of the “fact” that the court took

notice of in States Resources is fundamentally different than those “facts” of which

the city asked the trial court to take judicial notice below. The recording of a tax debt

in a governmental database is a pure ministerial function, requiring no discretion or

judgment. It is a simple fact of accounting and recording—the accuracy of which

could not be reasonably questioned. On the other hand, the city attempted to

present its entire factual argument in the form of emails, press releases, reports, and

the like, constituting narrative accounts the recording of which are far from

ministerial. In a recent case, this court rejected the request of a litigant to take

“judicial notice” of facts that had been testified about in a transcript in another

proceeding, stating that “the facts that Sager urges us to conclude from the May 2014

transcript are not the type of facts, ‘not subject to reasonable dispute’ and ‘capable of

accurate and ready determination,’ cognizable by judicial notice.” State v. Sager,

2019-Ohio-135, 131 N.E.3d 335, ¶ 21 (1st Dist.); see Pollard v. Elber, 2018-Ohio-

4538, 123 N.E.3d 359, ¶ 16 (6th Dist.) (a court can take judicial notice of the fact that

another proceeding had taken place but cannot take judicial notice of facts

established in that litigation). As the Second Appellate District noted, “[w]hile it is

true that a court may take judicial notice of matters of public record, it may not take

judicial notice of disputed facts stated in those public records.” McKenzie v. Davies,

2d Dist. Montgomery No. 22932, 2009-Ohio-1960, ¶ 24.

{¶11} The problem in this case arises from the city’s misunderstanding of

the fundamental nature of judicial notice. A court may take notice of “adjudicative

facts; i.e., the facts of the case.” Evid.R. 201(A). For example, a court can take

judicial notice that a particular date was a Sunday. See State ex rel. Richardson v.

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Gorman, 117 Ohio App. 244, 246, 187 N.E.2d 411 (1st Dist.1962). But the city did not

ask the trial court to take judicial notice of one or more “facts.” Instead, the city

asked the trial court to take judicial notice of the “public records and newspaper

article” it attached to its motion, and presumably all the content therein. This would

be an inappropriate application of Evid.R. 202.

{¶12} Since the documents attached to the motion were not authenticated,

the facts the city sought to have the trial court take judicial notice of were not of the

type for which judicial notice is proper, and since the request did not actually direct

the trial court which judicial facts were at issue, the trial court erred when it relied on

the attachments when granting the city’s motion to dismiss.

Motion Could Not Be Considered a Motion for Summary Judgment

{¶13} There are other circumstances under which a trial court may consider

evidence not contained within the initial pleading. But if a trial court does so, it must

convert the motion to dismiss to a motion for summary judgment and give the

parties notice of its intent to do so. Civ.R. 12(B) sets forth that

[w]hen a motion to dismiss for failure to state a claim upon which

relief can be granted presents matters outside the pleading and such

matters are not excluded by the court, the motion shall be treated as a

motion for summary judgment and disposed of as provided in Rule 56.

Provided however, that the court shall consider only such matters

outside the pleadings as are specifically enumerated in Rule 56. All

parties shall be given reasonable opportunity to present all materials

made pertinent to such a motion by Rule 56.

But, in this case, the trial court did not use this procedure—it neither gave notice to

the parties that it was considering the matter pursuant to Civ.R. 56, nor gave the

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parties an opportunity to present evidence in accordance with Civ.R. 56(C). See

Harris v. Pro-Lawn Landscaping, Inc., 8th Dist. Cuyahoga No. 97302, 2012-Ohio-

498, ¶ 10 (rejecting harmless-error claim where trial court gave no indication it was

considering a motion to dismiss as a motion for summary judgment and gave no

opportunity for the parties to submit appropriate evidence). As the Tenth Appellate

District noted:

“ ‘The primary vice of unexpected conversion to summary judgment is

that it denies the surprised party sufficient opportunity to discover and

bring forward factual matters which may become relevant only in the

summary judgment, and not the dismissal, context.’ ” Petrey v. Simon

(1983), 4 Ohio St.3d 154, 155, 447 N.E.2d 1285, quoting Portland

Retail Druggists Assn. v. Kaiser Found. Health Plan (C.A.9, 1981),

662 F.2d 641, 645, analyzing comparable provisions of Fed.R.Civ.P.

12(b). The purpose of providing the parties with notice of a court’s

conversion of a motion to dismiss to a motion for summary judgment

is to afford the parties a reasonable opportunity to submit evidence.

Dietelbach v. Ohio Edison Co., Trumbull App. No. 2004-T-0063,

2005-Ohio-4902, 2005 WL 2269006, at ¶ 12. Unexpected conversion

may leave the non-moving party at the disadvantage of being

unprepared to reply. Petrey, 4 Ohio St.3d at 155.

EMC Mtge. Corp. v. Jenkins, 164 Ohio App.3d 240, 2005-Ohio-5799, 841 N.E.2d

855, ¶ 13 (10th Dist.).

{¶14} And even if it had done so, the documents attached to the motion to

dismiss filed by the city did not constitute evidence recognized by Civ.R. 56(C).

Civ.R. 56(C) sets forth the evidence that can be considered: pleadings, depositions,

answers to interrogatories, written admissions, affidavits, transcripts of evidence,

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and written stipulations of fact, if any, timely filed in the action. The

unauthenticated documents attached to the city’s motion to dismiss are not within

that list.

Conclusion

{¶15} A motion to dismiss a complaint under Civ.R. 12(B), which is based

upon the statute of limitations, is erroneously granted where the complaint does not

conclusively show on its face the action is barred by the statute of limitations.

Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio St.2d 376, 379, 433 N.E.2d 147

(1982). The complaint in this case does not establish the accrual date for the running

of the limitations period, and the trial court could not properly rely on the contents

of the documents attached to the motion to dismiss to reach that result. The

documents supplied by the city were not authenticated, the city asked the trial court

to take judicial notice of documents and not “adjudicative facts,” and the facts

outlined in the city’s motion were not of the character where judicial notice was

appropriate. We therefore sustain Banker’s Choice’s sole assignment of error.

Because the trial court improperly granted the city’s motion to dismiss, we reverse

the decision below and remand this cause for further proceedings.

Judgment reversed and cause remanded.

BERGERON and CROUSE, JJ., concur.

Please note: The court has recorded its own entry on the date of the release of this opinion.