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

[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.
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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.
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