Robert Campbell v. Ohio Adult Parole Authority

• Decision Date: 28 October 1997
• Docket Number: 97-LW-4608,97APE05-616
• Parties: Robert Campbell, Plaintiff-Appellant, v. Ohio Adult Parole Authority, Defendant-Appellee.
• Court: Ohio Court of Appeals

Robert Campbell, Plaintiff-Appellant, v. Ohio Adult Parole Authority Defendant-Appellee.

No. 97APE05-616

97-LW-4608 (10th)

Court of Appeals of Ohio, Tenth District Franklin.

October 28, 1997

APPEAL from the Franklin County Court of Common Pleas.

Robert Campbell, pro se.

Betty D. Montgomery, Attorney General, and Mary Anne Reese, for appellee.

OPINION

TYACK P.J.

On May 15, 1996, Robert Campbell, an inmate at Lorain Correctional Institution, filed a complaint in mandamus against the Ohio Adult Parole Authority ("APA"). Mr. Campbell seeks a writ compelling the APA to credit him with two hundred sixty-three days for time served while he awaited a final parole revocation hearing. On October 28, 1996, the APA filed a motion to dismiss pursuant to Civ.R. 12(B)(6). Attached to this motion was a copy of the affidavit of Floyd Dickens III, Chief of the Bureau of Sentence Calculation with the Ohio Department of Rehabilitation and Correction. Mr. Dickens set forth Mr. Campbell's convictions, sentences, paroles and re-arrests and the final parole revocation hearing date at issue. The affidavit also contained Mr. Dickens' explanation of credits given to Mr. Campbell and why Mr Campbell was not given credit at other times.

On April 22, 1997, the trial court rendered a decision. The trial court noted first that it was not treating the motion to dismiss as a motion for summary judgment and was striking the Dickens' affidavit from the record. The trial court made reference to "court records" regarding credits given Mr. Campbell. The trial court also stated that it was able to take judicial notice of such judicial documents. Based on these records/documents, the trial court concluded that Mr. Campbell did not have a clear legal right to the credit alleged and granted the motion to dismiss.

Mr. Campbell (hereinafter "appellant") has appealed to this court, assigning two errors for our consideration:

"FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED WHERE IT TREATED A MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AS A MOTION FOR SUMMARY JUDGEMENT [sic] AND RULED ON THE MERITS OF THE COMPLAINT WITHOUT NOTIFYING APPELLANT OF IT'S [sic] INTENTION TO DO SO AND GIVE APPELLANT AN OPPORTUNITY TO RESPOND.

"SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN GRANTING A MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM WITHOUT FIRST ALLOWING DISCOVERY WHICH WOULD PROVE APPELLANT'S CLAIM."

In his first assignment of error, appellant contends the trial court improperly treated the motion to dismiss as a motion for summary judgment. A Civ.R. 12(B)(6) motion to dismiss tests the sufficiency of the complaint. State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn. (1995), 72 Ohio St.3d 94, 95, citing State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. (1992), 65 Ohio St.3d 545, 548. For purposes of such a motion, the material allegations in the complaint are taken as admitted. Assn. for the Defense of the Washington Local School Dist. v. Kiger (1989), 42 Ohio St.3d 116, 117, citing State ex rel. Alford v. Willoughby Civil Serv. Comm. (1979), 58 Ohio St.2d 221, 223.

As such, the movant may not rely on allegations or evidence outside the complaint. State ex rel. Boggs at 96, quoting State ex rel. Hanson at 548. Such allegations, evidence and other matters outside the pleadings are permissible only if the court treats the motion to dismiss as a motion for summary judgment. State ex rel. Scanlon v. Deters (1989), 45 Ohio St.3d 376, 377.

Here, the trial court took judicial notice of and relied on "court records" and "judicial documents" apparently submitted by the APA (see trial court decision at 2). The APA contends that the trial court could take judicial notice of such court records. This argument is flawed for several reasons.

In general, courts may take judicial notice of appropriate matters in determining a Civ.R. 12(B)(6) motion without converting such into a motion for summary judgment. State ex rel. Findlay Publishing Co. v. Schroeder (1996), 76 Ohio St.3d 580, 581, citing State ex rel. Neff v. Corrigan (1996), 75 Ohio St.3d 12, 16. However, the "court records" apparently relied on here were not appropriate matters of which to take judicial notice.

First, a court cannot take judicial notice of court proceedings in another case. Woodman v. Tubbs Jones (1995), 103 Ohio App.3d 577, 580, citing Diversified Mtge. Investors, Inc. v. Athens Cty. Bd. of Revision (1982), 7 Ohio App.3d 157, and State v. Velez (1991), 72 Ohio App.3d 836; The Deli Table, Inc. v. Great Lakes Mall (Dec. 31, 1996), Lake App. No. 95-L-012, unreported; Phillips v. Rayburn (Aug. 9, 1996), Hocking App. No. 95CA26, unreported. Perhaps even more important, however, is the fact that neither this court nor appellant is aware of what such "court records" and "judicial documents" are. The rationale for the rule that a trial court cannot take judicial notice of proceedings in a separate action is that the appellate court cannot review the propriety of the trial court's reliance on such prior proceedings because that record is not before the appellate court. The Deli Table, Inc., supra.

For these reasons, the trial court could not take judicial notice of these "court records" an...