Borthwick v. Dept. of Bldg. & Inspections

[Cite as Borthwick v. Dept. of Bldg. & Inspections, 2022-Ohio-1335.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
RICHARD BORTHWICK, : APPEAL NO. C-210315
TRIAL NO. A-2101362
Plaintiff-Appellant, :
vs.
: O P I N I O N.
DEPARTMENT OF BUILDINGS
AND INSPECTIONS, CUNNINGHAM, :
BRUNNER, TAYLOR, DALBURG,
:
and
:
LITTER AND WEED PATROL
EMSLANDER, et al., :
and :
OFFICER GIBSON, :
and :
DISTRICT 3 POLICE, :
and :
HAMILTON COUNTY LAND BANK, :
Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: April 22, 2022
OHIO FIRST DISTRICT COURT OF APPEALS
Richard Borthwick, pro se,
Andrew Garth, City Solicitor, and Jacklyn Gonzales Martin, Assistant City Solicitor, for
Defendants-Appellees.
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OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Plaintiff-appellant Richard Borthwick appeals the trial court’s
judgment, which “terminated” his claims against defendants-appellees Department of
Buildings and Inspections, Cunningham, Brunner, Dalburg, Litter and Weed Patrol,
Emslander, Officer Gibson, District Three Police, and Hamilton County Land Bank
(collectively, “city defendants”). Because Borthwick’s complaint states no facts upon
which he can recover, we affirm the trial court’s judgment.
I. Facts and Procedure
{¶2} Borthwick owns a house located at 1727 Montrose Street (“house”) in
Cincinnati, Ohio. In April 2021, the house caught fire. Later that day, the city
defendants began demolishing the house.
{¶3} Borthwick quickly filed a “Stay of Demolition[,] Demand for Monetary
Relief.” Borthwick sought $750,000 “for stress, legal fees, and emotional turmoil
caused over the last 12 years,” “relief from multiple citations by litter and high weed
ordinances,” “[r]eturn of funds associated with towing of his vehicle from a defunct
bus stop where others are allowed to park,” “[r]estitution for the discrimination by
Officer (G?) Gibson,” and “to acquire (land bank lands) that are lands next to adjoining
properties.”
{¶4} Days later, the trial court held a preliminary injunction hearing with the
consent of the parties. Borthwick and the city defendants presented evidence to the
court. Following the hearing, the trial court denied injunctive relief because Borthwick
was unlikely to succeed on the merits, his harm was not “irreparable,” third parties
would be harmed, and the public interest weighed against issuing a temporary
injunction. In the same entry, the trial court “terminated” his claims for damages
because Borthwick “no longer has any viable causes of action.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} Borthwick has appealed.
II. Law and Analysis
{¶6} Borthwick, proceeding pro se, raises a single assignment of error.
Borthwick does not challenge the trial court’s denial of injunctive relief. Rather, he
maintains that the trial court erred when it “terminated” his lawsuit.
{¶7} We start with the principle that “some leniency toward pro se litigants
might be appropriate at times.” Chase Manhattan Mtge. Corp. v. Smith, 1st Dist.
Hamilton No. C-061069, 2007-Ohio-5874, ¶ 30. At the same time, “pro se litigants are
bound by the same rules and procedures as” parties represented by counsel. Kidz Bop
LLC v. Broadhead, 1st Dist. Hamilton No. C-140686, 2015-Ohio-3744, ¶ 13. As an
appellate court, “we will consider all cognizable contentions presented but will not
create an argument if a pro se litigant fails to develop one.” Marreez v. Jim Collins
Auto Body, Inc., 1st Dist. Hamilton No. C-210192, 2021-Ohio-4075, ¶ 4. And leniency
does “not require courts to conjure up questions never squarely asked or construct
full-blown claims from convoluted reasoning.” State ex rel. Karmasu v. Tate, 83 Ohio
App.3d 199, 206, 614 N.E.2d 827 (4th Dist.1992).
{¶8} Borthwick challenges the trial court’s “termination” of his claims for
damages. The trial court, on its own, “terminated” the claims because Borthwick had
no “viable causes of action.” The trial court essentially dismissed Borthwick’s claims
for “fail[ing] to state a claim upon which relief can be granted.” See Civ.R. 12(B)(6). In
response, the city defendants maintain that Borthwick obviously could not prevail on
the facts alleged in his complaint. We agree.
{¶9} While Civ.R. 12(B)(6) makes no reference to a sua sponte dismissal, a
trial court may dismiss a complaint on its own accord “only after the parties are given
notice of the court’s intention to dismiss and an opportunity to respond.” State ex rel.
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OHIO FIRST DISTRICT COURT OF APPEALS
Edwards v. Toledo City School Dist. Bd. of Edn., 72 Ohio St.3d 106, 108, 647 N.E.2d
799 (10th Dist.1995). Dismissing a complaint sua sponte, without notice to the parties
or an opportunity to respond, is both unfair and prejudicial. Robinson v. Vanex Tube
Corp., 2016-Ohio-268, 58 N.E.3d 430, ¶ 20-21 (11th Dist.), citing Mayrides v.
Franklin Cty. Prosecutor’s Office, 71 Ohio App.3d 381, 383-384, 594 N.E.2d 48 (10th
Dist.1991). However, there is an exception to that rule, “ ‘when the complaint is
frivolous or the claimant obviously cannot prevail on the facts alleged in the
complaint.’ ” Corrado v. Lowe, 11th Dist. Geauga No. 2014-G-3239, 2015-Ohio-1993,
¶ 22, quoting State ex rel. Brooks v. O’Malley, 117 Ohio St.3d 385, 2008-Ohio-1118,
884 N.E.2d 42, ¶ 5.
{¶10} Turning to the complaint, the essence of Borthwick’s claims are a series
of allegedly malicious actions taken by the city defendants. The nature of his claims is
unclear. In Ohio, a complaint must contain “a short and plain statement of the claim
showing that the party is entitled to relief and a demand for judgment for the relief to
which the party claims to be entitled.” Civ.R. 8(A). As best we can tell, Borthwick
appears to raise three separate claims for damages—intentional infliction of emotional
distress, malicious prosecution, and discrimination. To the extent that the complaint
sought permission “to acquire (land bank lands) that are lands next to adjoining
properties,” this fails to state a claim upon which relief can be granted.
{¶11} Borthwick’s factual allegations in support of these claims are difficult to
follow. Borthwick promises additional facts in a future addendum. But a complaint is
not a placeholder for additional factual allegations that state a claim for relief. Rather,
Ohio is a notice pleading state. Barger v. Elite Mgmt. Servs., 2018-Ohio-3755, 119
N.E.3d 953 ¶ 5 (1st Dist.). This requires a concise recitation of the “operative facts
sufficient to give ‘fair notice of the nature of the action.’ ” Ri’Chard v. Bank of Am., 1st
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OHIO FIRST DISTRICT COURT OF APPEALS
Dist. Hamilton No. C-190677, 2020-Ohio-4688, ¶ 8, quoting Wildi v. Hondros
College, 10th Dist. Franklin No. 09AP-346, 2009-Ohio-5205, ¶ 12.
{¶12} A court considering dismissal under Civ.R. 12(B)(6) “must presume that
all factual allegations of the complaint are true, and it must make all reasonable
inferences in favor of the nonmoving party.” Zalvin v. Ayers, 2020-Ohio-4021, 157
N.E.3d 256, ¶ 13 (1st Dist.). But conclusory statements lacking factual support will not
suffice. Id., citing Swint v. Auld, 1st Dist. Hamilton No. C-080067, 2009-Ohio-6799,
¶ 3; see Bullard v. McDonald’s, 10th Dist. Franklin No. 20AP-374, 2021-Ohio-1505, ¶
11 (“The court need not, however, accept as true any unsupported and conclusory legal
propositions advanced in the complaint.”).
{¶13} Here, the complaint alleged that the city defendants engaged in a
“pattern of harassment” and that Borthwick has experienced mental anguish and
anxiety. We construe this as a claim for intentional infliction of emotional distress. To
state a claim for intentional infliction of emotional distress, Borthwick must allege
conduct by the city defendants that was “so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.” Mann v. Cincinnati
Enquirer, 1st Dist. Hamilton No. C-090747, 2010-Ohio-3963, ¶ 25, quoting Yeager v.
Local Union 20, 6 Ohio St.3d 369, 453 N.E.2d 666 (1983), syllabus.
{¶14} Borthwick’s complaint contains no set of facts that would entitle him to
recover under this claim. Taking the facts in the complaint as true and all inferences
in his favor, the city defendants held a hearing on the demolition of his house. His
house caught fire and was subsequently demolished. In the process, his ladder and
cherry tree sustained damage. This fails to rise to the level of extreme conduct that
creates liability for intentional infliction of emotional distress.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} Next, the complaint asks for relief for “citations by litter and high weed
ordinances” and damages for towing his vehicle from a defunct bus stop. These claims
appear to attempt to state a cause of action for malicious prosecution. A malicious
prosecution claim provides “ ‘a right to recover in tort for the misuse of civil and
criminal actions as a means of causing harm.’ ” Foley v. Univ. of Dayton, 150 Ohio
St.3d 252, 2016-Ohio-7591, 81 N.E.3d 398, ¶ 14, quoting Trussell v. Gen. Motors
Corp., 53 Ohio St.3d 142, 144, 559 N.E.2d 732 (1990). To state a claim for malicious
prosecution, Borthwick must allege that the city defendants initiated proceedings with
malice and without probable cause, and the proceedings terminated in Borthwick’s
favor. Foley at ¶ 14, quoting Trussel at 144. The complaint lists three citations. Without
more, Borthwick cannot prevail on these facts.
{¶16} Next, the complaint sought restitution for discrimination by Officer
Gibson. The Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution forbids official conduct that invidiously discriminates on the basis
of race. The selective enforcement of a law violates the Equal Protection Clause when
it is “applied and administered by public authority with an evil eye and unequal hand,
so as to practically make unjust and illegal discriminations between persons in similar
circumstances.” Yick Wo v. Hopkins, 118 U.S. 356, 374, 6 S.Ct. 1064, 30 L.Ed. 220(1886). To succeed on a selective-enforcement claim, Borthwick must have alleged
discriminatory conduct traceable to a racially discriminatory purpose. See Batson v.
Kentucky, 476 U.S. 79, 93, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), quoting Washington
v. Davis, 426 U.S. 229, 240, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). The complaint
contained no factual allegations in support. With no factual allegations in support of
his claim, Borthwick failed to state a claim for discrimination. See Ri’Chard, 1st Dist.
Hamilton No. C-190677, 2020-Ohio-4688, at ¶ 8.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} Therefore, we overrule Borthwick’s sole assignment of error.
III. Conclusion
{¶18} The trial court did not err when it “terminated” Borthwick’s complaint
because Borthwick failed to present any cognizable claims for relief. Accordingly, we
affirm the judgment of the trial court.
Judgment affirmed.
BERGERON, P.J., and WINKLER, J., concur.
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