Edward M. Mayrides, Movant- v. Franklin County Prosecutor's Office, Michael Miller, Daniel Hogan and Timothy Merkle, -

• Decision Date: 19 March 1991
• Docket Number: 91-LW-5490,90AP-1371
• Parties: Edward M. Mayrides, Movant-Appellant, v. Franklin County Prosecutor's Office, Michael Miller, Daniel Hogan and Timothy Merkle, Respondents-Appellees. Case
• Court: Ohio Court of Appeals

Edward M. Mayrides, Movant-Appellant, v. Franklin County Prosecutor's Office, Michael Miller, Daniel Hogan and Timothy Merkle Respondents-Appellees.

No. 90AP-1371

91-LW-5490 (10th)

Court of Appeals of Ohio, Tenth District Franklin.

March 19, 1991

OPINION

MR EDWARD M. MAYRIDES, pro se.

MR MICHAEL MILLER, Prosecuting Attorney, and MR. SCOTT T. ZALENSKI, for appellees.

APPEAL from the Franklin County Court of Common Pleas.

PETREE J.

Appellant, appeals pro se from the judgment of the Franklin County Court of Common Pleas dismissing his complaint, pursuant to Civ. R. 12(B) (6).

In 1985, appellant was tried and convicted on charges of rape and kidnapping. He is currently incarcerated at the London Correctional Institute. Appellant brought this suit in replevin against appellees seeking to obtain possession of an investigative file compiled by a private investigator. The complaint asserted that appellant had a property right in the file as the private investigator was hired and paid by his brother and father to conduct an investigation on his behalf. Prior to appellant's criminal trial, appellees acquired the file by subpoena with the intent of using it at trial. Appellant now seeks possession of the file to prepare a petition for post-conviction relief.

One day after the complaint was filed, and before appellees had answered the complaint, the complaint was dismissed sua sponte without notice to any party in an entry which states, in pertinent part:

"All motions are overruled and this case is dismissed without costs as plaintiff is indigent.

"***

"It appears the file plaintiff seeks to have the Court order the prosecutor to give him was obtained by the prosecutor by subpoena. This fact was stipulated by the prosecutor and defense counsel in Case No. 84CR-04-1047 and Judge Tommy L. Thompson ruled on what use could be made of the subject file in that case."

Although the judgment entry does not specifically recite the reason for the dismissal, we will construe it as a dismissal for failure to state a claim pursuant to Civ. R. 12(B) (6).

From this judgment, appellant appeals, asserting two assignments of error:

"I. The Court of Common Pleas erred when that court failed to recognize the validity of appellant's entitlement to possession of personal property through an action in replevin.

"II. The Court of Common Pleas erred when that court failed to sustain the following motions filed by the appellant:

"1) Motion for Order of Possession without Notice.

"2) Motion to Waive Bond Requirements.

"3) Motion for Injunctive Relief.

"4) Motion for Order of Discovery.

"5) Motion for Order of Appearance for Incarcerated Person.

"6) Motion for Appointment of Counsel."

We first address whether the trial court properly dismissed this case. A number of provisions in the Ohio Rules of Civil Procedure authorize a court to dismiss an action on its own motion. Civ. R. 4(E) and 41(B) (1). Nevertheless, such a dismissal may be entered only after the affected party is given notice of the court's intention. Perotti v. Ferguson (1983), 7 Ohio St. 3d 1 (dismissal under Civ. R. 41[B][1]); Davis v. Holsinger (June 15, 1989), Franklin App. No. 89AP-79, unreported (1989 Opinions 2136) (dismissal under Civ. A. 4[E]). More recently, in Ohio Furniture Co. v. Mindala (1986), 22 Ohio St. 3d 99, the court concluded that "*** the notice requirement of Civ. R. 41(B) (1) applies to all dismissals with prejudice ***. A dismissal on the merits is a harsh remedy that calls for the due process guarantee of prior notice." Id. at 101.

Like dismissals under Civ. R. 41(B) (1), a dismissal under Civ. A. 12(B) (6) operates as an adjudication on the merits. Civ. A. 41(B) (3). Moreover, a dismissal, sua sponte, and without notice to the parties is fundamentally unfair to litigants It places the court in the role of a "proponent rather than an independent entity." Franklin v. State of Oregon, State Welfare Division (C.A.9, 1981), 662 F.2d 1337, 1342. Sua sponte dismissals also prejudice the appellant as they deny any opportunity to amend the complaint or otherwise respond to the alleged insufficiency. Finally, these dismissals frustrate appellate review. In this case, it is unclear from the court's terse order why the dismissal was granted and appellees make no effort to sustain the court's judgment on this ground, choosing instead to rely on an alternative theory. If the court had given the parties notice of its intent, the record would be more fully developed and this court could better determine the basis for the trial court's judgment.

For these reasons, a majority of the United States Courts of Appeals have held that a court may dismiss a complaint on its own motion pursuant to Civ. R. 12(B) (6) only after the parties are given notice of the court's intention to dismiss and an opportunity to respond. Ricketts v Midwest National Bank (C.A.7, 1989), 874 F.2d 1177; Perez v. Ortiz (C.A.2, 1988), 849 F.2d 793; Tingler v. Marshall (C.A.6, 1983), 716 F.2d 1109; Jefferson Fourteenth Assoc. v. Wometco De Puerto Rico, Inc. (C.A.11, 1983), 695 F.2d 524; Franklin v. State of Oregon, State Welfare Division (C.A.9, 1981), 662 F.2d 1337; Dougherty v. Harper's Magazine Co. (C.A.3, 1976), 537 F.2d 758; and ...