McGlone v. Grimshaw ( 1993 )

I concur in the majority judgment reversing the lower court and remanding this case for further proceedings. However, I write separately in order to express my disagreement with the conclusion that this case was properly dismissed on the basis of a request for dismissal included as part of appellee's answer.

Pursuant to Civ.R. 12(B)(6), the contention that a complaint "fail[s] to state a claim upon which relief can be granted" may be raised either as a defense in a responsive pleading or as the foundation of a motion to dismiss. Even if the defenses enumerated in Civ.R. 12(B)(1) through (7) are included as part of a responsive pleading, Civ.R. 12(D) still requires that an application in the form of a motion be filed in order to request an adjudication from the court on those defenses which could be disposed of preliminarily. 4 Anderson, Ohio Civil Practice (1989) 332, Section 152.07; see, also, 74 Ohio Jurisprudence 3d (1987) 434, Pleading, Section 159. There are sound reasons justifying this requirement. For instance, the rules of practice allow for memoranda in opposition to be filed in response to motions. See Civ.R. 7(B)(2); Scioto Co.L.R. V(D)(1). By contrast, there is no provision for responding to defenses asserted in a party's answer. If parties are confused as to the nature of the court filings, as appellant was in the cause sub judice, a plaintiff could easily misconstrue a motion to dismiss as a defense in an answer and, thereafter, forgo the filing of a memorandum in opposition on the mistaken belief that one was not permitted. These problems are easily avoided if we simply disregarded any requests for dismissal included within a responsive pleading.

The item filed by appellee below on March 20, 1992, is labeled as an "Answer" but then concludes by "mov[ing] the court for an order dismissing plaintiff's complaint." The inartful drafting of this "pleading" fails to put one on notice that a dismissal is being sought and, therefore, the request should be ignored. The action taken by the court below should be analyzed, essentially, as nothing more than a sua sponte dismissal pursuant to Civ.R. 12(B)(6). Although such action has been permitted where the parties are given both notice of the court's intention to dismiss and an opportunity to respond, seeMayrides v. Franklin Cty. Prosecutor's Office (1991), 71 Ohio App.3d 381,384, 594 N.E.2d 48, 50; see, also, Thomas v. Scully (C.A. 2, 1991), 943 F.2d 259, 260; Perez v. Ortiz (C.A. 2, 1988), 849 F.2d 793, 797, these were clearly not provided in the action below. Accordingly, I would reverse the case on this issue as well.