Colvin v. Ctr. for Dev. & Property Solutions ( 2021 )

[Cite as Colvin v. Ctr. for Dev. & Property Solutions, 2021-Ohio-4392.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Jeffrey A. Colvin, :
Plaintiff-Appellant, :
No. 20AP-535
v. : (C.P.C. No. 20CV-4044)
[The Center for Development and : (REGULAR CALENDAR)
Property Solutions, L.L.C.] et al.
:
Defendants-Appellees,
:
D E C I S I O N
Rendered on December 14, 2021
On brief: Jeffrey A. Colvin, pro se. Argued: Jeffrey A.
Colvin.
On brief: Lardiere McNair DiNicola & Stonebrook, LTD,
LPA, Darrin A. McNair, and Chan M. Stonebrook, for
appellee Center for Development and Property Solutions,
L.L.C. Argued: Chan M. Stonebrook.
On brief: Goldstein Law, and Robert R. Goldstein, for
appellee Yaakov Schulman. Argued: Michael J. Cassone.
APPEAL from the Franklin County Court of Common Pleas
BEATTY BLUNT, J.
{¶ 1} Plaintiff-appellant, Jeffrey A. Colvin, pro se, appeals the October 19, 2020
judgment of the Franklin County Court of Common Pleas granting the motions filed by
defendant-appellee, The Center for Development and Property Solutions, L.L.C. ("CDPS"),
and defendant-appellee, Yaakov Schulman, to dismiss his case pursuant to Civ.R. 12(B)(6).
Appellant asserts a single assignment of error:
The trial court erred and abused its discretion in dismissing the
appellant action (sic) without ruling and granting the plaintiff
a motion for Default Judgement (sic) when the Defendant
No. 20AP-535 2
failed to respond within the 30 days required by Civil Rule 55.
There was not even a hearing or answer to the plaintiff's motion
for default judgement.
{¶ 2} Appellant's complaint, filed on June 22, 2020, is handwritten and difficult to
read, but requests actual and punitive damages from the appellees (one of whom was
misidentified as "Property Management") for "being a slum lord." The complaint lists a
number of alleged deficiencies with appellant's apartment and also asserts that the appellee
Schulman has "committed sexual harassment." The complaint does not reference any lease
agreement, nor does it reference any statutory duties that the appellees failed to perform.
The complaint also fails to specify the dates of any alleged lease, or even the address of the
property with which the appellant alleges deficiencies.
{¶ 3} Appellees did not file answers to the complaint; instead, both filed motions
to dismiss appellant's complaint pursuant to Civ.R. 12(B)(6) for failure to state a claim upon
which relief can be granted. Appellee Schulman's motion to dismiss was not within rule,
but on September 13, 2020 he filed a motion for leave to file out of rule, and on
September 14, 2020 the trial court granted that motion, allowing him to file both an answer
and a motion to dismiss.
{¶ 4} But prior to the filing of appellee Schulman's motion, appellant filed a motion
for default judgment, arguing that neither defendant had responded within the 30 days
required by rule. Appellant's argument apparently rested on the fact that appellee
Schulman had not yet filed an answer and also his claim that he had not been personally
served with appellee CDPS' motion to dismiss, although the clerk's record indicates that
certified mail service was completed within rule.
{¶ 5} Notwithstanding any procedural confusion, the trial court chose to defer a
ruling on appellant's motion for default judgment. Instead, it chose to first consider the
appellees' Civ.R. 12(B)(6) motions to dismiss, and on October 19, 2020 issued a judgment
granting those motions and dismissing appellant's complaint:
These motions were properly served. Although Plaintiff did file
a response to Defendant Yaakov Schulman's Motion for leave
to file late pleadings, after the Motion had been granted,
Plaintiff has not filed any response at all to either of the
Defendant's [sic] Motions to Dismiss. The Motions to Dismiss
are deemed submitted to the Court pursuant to Local Rule
21.01.
No. 20AP-535 3
***
The Court has reviewed the Motions filed by Defendants CDPS
(incorrectly named as "Property Management" in the
complaint) and Yaakov Schulman. The Court finds Plaintiff has
failed to present any evidence or argument in response. For the
reasons set forth in the Motion[s], the Court finds that there are
no claims upon which relief can be granted and the Motions to
Dismiss are GRANTED.
(Emphasis sic.) (Decision & Entry at 1-2.)
{¶ 6} To begin our analysis, we first observe that although appellant's assignment
of error addresses only the trial court's failure to rule on his motion for default judgment,
the real issue to be determined on appeal is whether the trial court correctly ruled that his
complaint failed to state a claim. Notably, the trial court did not issue a ruling upon
appellant's motion for Civ.R. 55 default judgment, and the record clearly demonstrates that
appellee CDPS filed its motion to dismiss within 15 days after service of the complaint was
issued, which is well within Civ.R. 12(A)(1)'s 28-day response period. Moreover, the trial
court subsequently granted appellee Schulman's properly filed motion for leave to file a
motion to dismiss out of rule, and appellant has not alleged that the trial court's decision
was erroneous. Accordingly, any basis for a default judgment has been seriously
undermined if not eliminated entirely.
{¶ 7} Appellant has not presented any argument or cited any law to this court to
establish that the trial court's decision to address the motions to dismiss prior to his motion
for default judgment was an error or abuse of the trial court's discretion. Further, appellee
Schulman suggests that because appellee CDPS had timely filed a motion to dismiss in lieu
of an answer, appellant's motion for default judgment was not yet ripe at the time the trial
court ruled on the motions to dismiss. Moreover, it has long been the rule that the trial
court would have been required to examine appellant's complaint under Civ.R. 12 prior to
granting the appellant a default judgment, and we have reversed the judgment of trial
courts who have failed to do so. " '[W]hen a plaintiff fails to state a claim, a court cannot
grant default judgment with regard to that alleged claim.' " Gibbs v. Burley, 10th Dist. No.
19AP-141, 2020-Ohio-38, ¶ 9, quoting Huntington Natl. Bank v. R Kids Count Learning
Ctr., LLC, 10th Dist. No. 16AP-688, 2017-Ohio-7837, ¶ 15.
No. 20AP-535 4
{¶ 8} In any event, given that it is "a basic tenet of Ohio jurisprudence that cases
should be decided on their merits," e.g., Perotti v. Ferguson, 7 Ohio St.3d 1, 3 (1983), we
conclude that it was wholly appropriate for the trial court to review the motions to dismiss
and appellant's complaint in general to determine whether a claim for relief had been stated
prior to considering a default judgment. And upon our own review of appellant's complaint,
we agree with the trial court that it fails to state a claim under Civ.R. 12(B)(6).
A Civ.R. 12(B)(6) motion to dismiss tests the sufficiency of the
complaint. O'Brien v. Univ. Community Tenants Union, Inc.,
42 Ohio St.2d 242, 245, (1975). A court may dismiss a
complaint pursuant to Civ.R. 12(B)(6) only if it appears beyond
a doubt that the plaintiff can prove no set of facts entitling the
plaintiff to recovery. O'Brien at syllabus. The court must
presume all factual allegations contained in the complaint to be
true and must make all reasonable inferences in favor of the
plaintiff. Jones v. Greyhound Lines, Inc., 10th Dist. No. 11AP-
518, 2012-Ohio-4409, ¶ 31, citing Mitchell v. Lawson Milk Co.,
40 Ohio St.3d 190 (1988). The court need not, however, accept
as true any unsupported and conclusory legal propositions
advanced in the complaint. Morrow v. Reminger & Reminger
Co. L.P.A., 183 Ohio App.3d 40, 2009-Ohio-2665, ¶ 7 (10th
Dist.). When reviewing a Civ.R. 12(B)(6) dismissal, this court's
standard of review is de novo. Foreman v. Ohio Dept. of Rehab.
& Corr., 10th Dist. No. 14AP-15, 2014-Ohio-2793, ¶ 9.
Bullard v. McDonald's, 10th Dist. No. 20AP-374, 2021-Ohio-1505, ¶ 11.
{¶ 9} Generously interpreted, appellant's claim that appellees were "slum
landlord[s]" could be construed as a landlord-tenant claim under R.C. 5321.07, but
appellant's complaint does not show or even assert that he has complied with the notice
and request-to-remedy provisions of that statute, and the statute does not permit the
damages he has requested. Compare Civ.R. 13(A) (compulsory counterclaims). And we
must again observe that appellant's complaint does not assert or establish the existence of
any lease or identify the allegedly leased residential property at issue. These basic omissions
render his "slum landlord" claim impossible to adjudicate.
{¶ 10} Appellant's "sexual harassment" claim fails in the same fashion. Appellant
specifies his statutory or common-law cause of action and does not allege any of the
elements of either a "quid pro quo" claim or a "hostile environment" claim under 42
U.S.C.A. 3604(b) (which forbids discrimination "against any person in the terms,
No. 20AP-535 5
conditions, or privileges of sale or rental of a dwelling, or in the provision of services or
facilities in connection therewith, because of * * * sex * * *."). Compare New York v.
Merlino, 694 F.Supp. 1101, 1104-05 (S.D.N.Y.1988) and Grieger v. Sheets, N.D. Illinois No.
87 C 6567, 1989 U.S. Dist. LEXIS 3906, **5-7 (Apr. 7, 1989) (collecting cases). In fact, the
complaint asserts only that "[d]efendant" committed sexual harassment as to the plaintiff
and 10 other tenants"—the complaint does not allege any specific acts, it does not identify
the time and date or place that any such acts are alleged to have occurred and does not
identify any of the other tenants who were allegedly harassed. The claim is woefully
insufficient to survive Civ.R. 12(B)(6) analysis, and as the trial court observed, the appellant
did not respond to the appellees' motions to dismiss for failure to state a claim.
{¶ 11} For the foregoing reasons, we overrule the appellant's sole assignment of
error. The trial court's decision granting judgment to the appellees on their motions to
dismiss was not erroneous and is affirmed.
Judgment affirmed.
MENTEL and NELSON, JJ., concur.
NELSON, J., retired, of the Tenth Appellate District, assigned
to active duty under the authority of the Ohio Constitution,
Article IV, Section 6(C).