Ramon Kelley, Dba East Cleveland Auto Clinic v. City of East Cleveland

• Court: Ohio Court of Appeals
• Writing for the Court: PATTON, P.J.
• Decision Date: 28 October 1982
• Docket Number: 82-LW-3217,44448
• Citation: Ramon Kelley, Dba East Cleveland Auto Clinic v. City of East Cleveland, 44448, 82-LW-3217 (Ohio App. Oct 28, 1982)
• Parties: RAMON KELLEY, dba EAST CLEVELAND AUTO CLINIC APPELLANT, v. CITY OF EAST CLEVELAND, ET AL APPELLEES.

RAMON KELLEY, dba EAST CLEVELAND AUTO CLINIC APPELLANT, v. CITY OF EAST CLEVELAND, ET AL APPELLEES.

No. 44448.

82-LW-3217 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

October 28, 1982

APPEAL FROM COMMON PLEAS COURT No. 026,303.

For plaintiff-appellant: Lester Potash.

For defendant-appellees: John T. Corrigan and James Mancino.

JOURNAL ENTRY AND OPINION

PATTON P.J.

This cause came on to be heard upon the pleadings and the transcript of the evidence and the record in the Common Pleas Court, and was argued by counsel for the parties; and upon consideration, the court finds one error prejudicial to the appellant and therefore the judgment of the Common Pleas Court is affirmed. in part, reversed in part, and remanded. Each assignment of error was reviewed and upon review the following disposition made:

This is an appeal from the Court of Common Pleas of Cuyahoga County granting defendants' motions for dismissal and summary judgment against plaintiff. From this determination of the trial court, appellant has perfected his appeal.

The record reflects that appellant, Ramon Kelley, was charged with receiving stolen property. Oursuant to this charge three automobiles found on appellant's premises were confiscated by the City of East Cleveland Police for use as evidence. One of the automobiles confiscated, a 1978 Oldsmobile coupe, is the subject of appellant's conversion action presently on appeal to this court.

Appellant was tried by a jury and found not guilty on the charges pertaining to the 1978 Oldsmobile coupe. It is alleged by appellant that a demand was made upon the appellees of this action, The City of East Cleveland and the office of John T. Corrigan, for release of said vehicle. Contrary to appellant's demand, however, the vehicle in question was released by the East Cleveland Police Department to the Federal Insurance Company.

On April 13, 1981, appellant commenced this action by filing a complaint in conversion against appellees. The complaint alleged that appellant did business as the East Cleveland Auto Clinic. A certificate of title was attached to the complaint, which showed that the automobile in question was owned by East Cleveland Auto Clinic.

Appellee, City of East Cleveland, filed a motion to dismiss on grounds that the appellant was not, pursuant to R.C. 4505.04, a proper party to sue for conversion of the automobile. On August 19, 1981, appellant filed a motion for summary judgment upon the issue of liability. On August 21, 1981, appellant further filed a memorandum in opposition to appellee City of East Cleveland's motion to dismiss. Included in appellant's memorandum was reference to the August 19, 1981 affidavit submitted to the trial court in support of appellant's motion for summary judgment.

On September 8, 1981, appellant's motion for summary judgment concerning liability was overruled. On that same date, the trial court granted appellee's motion to dismiss.

Appellee John T. Corrigan filed a motion for summary judgment in response to the allegations in appellant's complaint. Attached to this motion was an affidavit of John Doheny, Assistant Prosecuting Attorney. Mr. Doheny stated that he was the prosecutor for the criminal charges which had been brought against the appellant. He further stated that after learning that the 1978 Oldsmobile coupe had been seized, he attempted to trace its whereabouts. He discovered that the automobile was released by the East Cleveland Police Department on April 14, 1980 to the Federal Insurance Company. Mr. Doheny stated that the automobile went directly to the Federal Insurance Company from the East Cleveland Police Department and that at no time did the automobile in question come within the possession or control of John T. Corrigan or any agents or employees of the Cuyahoga County Prosecutor's Office.

A brief in opposition to the appellee's motion for summary judgment was filed by appellant. Attached to this motion was an affidavit of the appellant's attorney. The affidavit stated that the appellant was indicted and subsequently acquitted on the charge of receiving stolen property with regard to the 1978 Oldsmobile coupe. Appellee's motion for summary judgment was granted by the trial court. Upon the foregoing, appellant filed his notice of appeal with this court.

I.

I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PLAINTIFF WHEN IT GRANTED THE MOTION TO DISMISS OF THE DEFENDANT CITY OF EAST CLEVELAND.

It is appellant's contention that the trial court erred in granting appellee City of East Cleveland's motion to dismiss. Appellant's first assignment of error is well taken.

Ohio law, interpreting Civ. R. 8(A) and 12(B)(6), clearly holds that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Slife v. Kundtz Properties (1974), 40 Ohio App. 2d 179, citing Conley v. Gibson (1957), 355 U.S. 41, 45-46. For purposes of a motion to dismiss, the complaint is to be liberally construed in a light most favorable to the plaintiff, and the material allegations are to be taken as admitted. Slife v. Kundtz Properties (1974), 40 Ohio App. 2d 179, citing Jenkins v. McKeithen (1969), 395 U.S. 411 at 421.

In ruling on a Civ. R. 12(B)(6) motion, the court need only to inquire whether the allegations constitute a statement of claim under Civ. R. 8(A). "All that the civil rules require is a short, plain statement of the claim that will give the defendant fair notice of the plaintiff's claim and the grounds upon which it is based." Slife v. Kundtz Properties, supra at 182, citing Conley v. Gibson, supra at 47.

In the present action, appellant's complaint stated that he did business as the East Cleveland Auto Clinic and that appellant was the owner of the 1978 Oldsmobile coupe confiscated on January 12, 1981 by the East Cleveland Police Department. Appellant further stated that a demand was made upon appellee for release of said vehicle upon his acquittal of an outstanding criminal charge relating to such vehicle and that appellee failed or refused to return such vehicle. Attached to appellant's complaint was a copy of the certificate of title for the vehicle in question, which showed East Cleveland Auto Clinic to be the owner of such vehicle.

Appellee's August 19, 1981 motion to dismiss was predicated upon the claim that appellant lacked sufficient standing to sue for conversion of the 1978 Oldsmobile coupe. Appellee City of East Cleveland premised this argument upon the provisions of R.C. 4505.04, which provides in pertinent part that:

No court in any case at law or in equity shall recognize the right, title, claim, or interest of any person in or to any motor vehicle sold or disposed of, or mortgaged or encumbered, unless evidenced:

(A) By a certificate of title or a manufacturer's or importer's certificate issued in accordance with sections 4505.01 to 4505.19, inclusive, of the Revised Code.

(B) By admission in the pleadings or stipulation of the parties.

Appellee claimed that due to the certificate of title naming East Cleveland Auto Clinic as the rightful owner of the vehicle, appellant failed to state a valid claim for relief.®1¯ Contrary to appellee's claim, however, R.C. 4505.04(B) clearly provides that a suit relating to ownership of a motor vehicle may be entertained by the courts if such ownership is admitted in the pleadings.

Footnote 1 It has been noted by this court that appellee also relies upon an admission regarding ownership of the vehicle in question. The journal entry indicates that the trial court disposed of this matter as a motion to dismiss and not as a motion for summary judgment. This court shall therefore not review any material submitted in disposing of this assignment of error other than that which appears on the face of the pleadings. See Stevens v. Boothby (1974), 40 Ohio App. 2d 197; Slife v. Kundtz Properties, supra.

For purposes of a motion to dismiss, the material allegations contained in appellant's complaint were to be taken as admitted. Appellant therefore fell within the purview of R.C. 4505.04(B), and the trial court erred in granting appellee City of East Cleveland's motion to dismiss.

II. & III.

II. THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF IN GRANTING THE MOTION FOR SUMMARY JUDGMENT OF THE DEFENDANT JOHN T. CORRIGAN, COUNTY PROSECUTOR.

III. THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF IN OVERRULING HIS MOTION FOR SUMMARY JUDGMENT UPON THE ISSUE OF LIABILITY.

On August 19, 1981, appellant filed a motion for summary judgment on the issue of liability against appellees. On August 20, 1981, John T. Corrigan filed a motion for summary judgment. Appellant's second and third assignments of error claim the trial court erred in granting appellee John T. Corrigan's motion for summary judgment and overruling appellant's motion for summary judgment upon the issue of liability.

Rule 56 of the Ohio Rules of Civil Procedure governs summary judgment and provides in pertinent part:

(B) For defending party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is

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