State ex rel. Keller v. Cox

707 N.E.2d 931, 85 Ohio St. 3d 279

Opinions

Per Curiam.

Keller asserts in his various propositions of law that the court of appeals erred in granting appellees’ Civ.R. 12(B)(6) motion and dismissing his mandamus action for failure to state a claim upon which relief can be granted.

Keller initially contends that the court of appeals erred in failing to grant his motion to strike and relying on improper evidence to dismiss his complaint. The court of appeals in effect overruled Keller’s motion to strike by failing to rule on it. “[W]hen a trial court fails to rule on a pretrial motion, it may ordinarily be presumed that the court overruled it.” State ex rel. The V Cos. v. Marshall (1998), 81 Ohio St.3d 467, 469, 692 N.E.2d 198, 201.

However, we do find that the court of appeals erred in overruling Keller’s motion to strike the attached affidavit and unsworn factual allegations in appellees’ memorandum in support of their Civ.R. 12(B)(6) dismissal motion. Civ.R. 12(B)(6) movants like appellees cannot rely on allegations or evidence outside the complaint to support their motion. State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn. (1995), 72 Ohio St.3d 94, 96, 647 N.E.2d 788, 791.

Nevertheless, the court of appeals’ error in overruling Keller’s motion to strike did not prejudice Keller. See State ex rel. Fuqua v. Alexander (1997), 79 Ohio St.3d 206, 208, 680 N.E.2d 985, 987. Although the court of appeals cited some of the unsworn factual allegations contained in appellees’ memorandum in its decision, it did not rely on these allegations to resolve its Civ.R. 12(B)(6) legal determination, and the allegations cited were also contained in the government motion attached as an exhibit to Keller’s complaint. Cf. State ex rel. Findlay Publishing Co. v. Schroeder (1996), 76 Ohio St.3d 580, 581, 669 N.E.2d 835, 837, where we held that courts “cannot rely on allegations or evidence outside [a] complaint in determining [a] Civ.R. 12(B)(6) motion”; see, also, State ex rel. Crabtree v. Franklin Cty. Bd. of Health (1997), 77 Ohio St.3d 247, 249, 673 N.E.2d 1281, 1283, fn. 1 (“Material incorporated in a complaint may be considered part of the complaint for purposes of determining a Civ.R. 12[B][6] motion to dismiss”).

Regarding Keller’s main contentions attacking the court of appeals’ decision to dismiss pursuant to Civ.R. 12(B)(6) his complaint for a writ of mandamus, we disagree with the court of appeals that Steckman applies to this case. The records sought by appellant are not part of “criminal discovery” because they have nothing to do with the crime or the criminal case itself.

But based on Kallstrom v. Columbus (C.A.6, 1998), 136 F.3d 1055, the requested records are exempt because they are protected by the constitutional right of privacy. Police officers’ files that contain the names of the officers’ children, spouses, parents, home addresses, telephone numbers, beneficiaries, medical information, and the like should not be available to a defendant who might use the information to achieve nefarious ends. This information should be protected not only by the constitutional right of privacy, but, also, we are persuaded that there must be a “good sense” rule when such information about a law enforcement officer is sought by a defendant in a criminal case. On the other hand, any records needed by a defendant in a criminal case that reflect on discipline, citizen complaints, or how an officer does her or his job can be obtained, if any exist, through internal affairs files in accordance with previous decisions of this court.

Accordingly, based on the foregoing, we affirm the judgment of the court of appeals.

Judgment affirmed.

Moyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer and Lundberg Stratton, JJ., concur. Cook, J., dissents.