Point Rental Co. v. Posani

• Decision Date: 21 October 1976
• Citation: 368 N.E.2d 1267,6 O.O.3d 171,52 Ohio App.2d 183
• Parties: , 6 O.O.3d 171 POINT RENTAL COMPANY, Appellant, v. POSANI et al., Appellees.
• Court: Ohio Court of Appeals

Page 183

52 Ohio App.2d 183

368 N.E.2d 1267, 6 O.O.3d 171

POINT RENTAL COMPANY, Appellant, v. POSANI et al., Appellees.

Court of Appeals of Ohio, Tenth District, Franklin County.

Oct. 21, 1976.

Syllabus by the Court

Where a complaint filed in a civil action is founded upon a written instrument and the plaintiff fails to attach a copy of such to the pleading, pursuant to Civ.R. 10(D), but allegations therein would, if found true, establish a basis for relief, it is error for the court to dismiss the action on the theory that no claim for relief has been presented.

George Q. Vaile, Columbus, for appellant.

Michael M. Edwards, Cincinnati, for appellees.

McCORMAC, Judge.

Plaintiff, appellant herein, filed a complaint against defendants, the appellees, in Franklin County Municipal Court which reads in pertinent part as follows:

"First Cause of Action:

"1. Plaintiff says that on the 3rd day of April, 1974, Defendants signed a lease agreement with the Plaintiff for living quarters located at 1879-D Oakland Park, Columbus, Ohio 43224 for a period of one year, commencing on the 15th day of April, 1974 (a copy of the lease agreement is not attached hereto it being the belief of the Plaintiff that a copy of said document is in the hands of the Defendants).

"2. Plaintiff further says that during the term of said lease agreement, Defendants failed to pay $140.00 in rent and late charges which was due the Plaintiff and that the Plaintiff was damaged thereby after all legal setoffs in the amount of $40.00, which sum Plaintiff claims with interest thereon at the rate of 8% per annum from the 1st day of September, 1974.

"Second Cause of Action:

"3. Plaintiff herein restates the allegations contained in Paragraph 1 above and states further that during Defendants' occupancy of said living quarters they did damage thereto over and above normal wear and tear resulting in costs to the Plaintiff in the amount of $203.22, which sum Plaintiff claims with interest thereon at the rate of 8% per annum from the 1st day of September, 1974.

"4. Wherefore, Plaintiff prays for judgment against the Defendants in the amount of $40.00 on its First Cause of Action and $203.22 on its Second Cause of Action, for a total judgment of $243.22, interest thereon at the rate of 8% per annum from the 1st of September, 1974, it's (sic ) costs herein and reasonable attorney's fees."

To this complaint defendants filed a motion for an order dismissing the complaint for a failure to attach a copy of the lease, as required by Civ.R. 10(D).

The court sustained the motion to dismiss, ruling as follows:

"It appearing to the court that the complaint herein is founded upon a written instrument, a copy of which is not attached to the pleading as required by Rule 10(D), Ohio Rules of Civil Procedures, and is (sic ) further appearing that plaintiff's statement of belief that defendant has a copy of said instrument is an unsufficient (sic ) basis for proceedings upon the merits, defendant's motion to dismiss is well taken, and the complaint is hereby dismissed without prejudice."

From the judgment of the trial court, plaintiff has filed a timely notice of appeal, setting forth the following assignment of error:

"The court erred in dismissing the complaint of plaintiff-appellant for the failure to attach the written instrument upon which the complaint was grounded. The plaintiff gave a sufficient reason for failure to attach the written instrument, thereby complying with Ohio Civil Rule 10(D)."

Civ.R. 10(D) provides as follows:

"Copy must be attached. When any claim or defense is founded on an account or other written instrument, a copy thereof must be attached to the pleading. If not so attached, the reason for the omission must be stated in the pleading."

Clearly, plaintiff's claim is founded upon a written instrument, to wit, a lease, so that plaintiff was required to comply with Civ.R. 10(D). Plaintiff attempted to comply with the rule by stating a reason for failing to attach a copy of the lease rather than attaching the copy. The trial court was correct...