State ex rel. Banker's Choice, LLC v. City of Cincinnati
Decision Date | 23 December 2020 |
Docket Number | APPEAL NO. C-200017 |
Parties | STATE OF OHIO EX REL. BANKER'S CHOICE, LLC, Relator-Appellant, and BANKER'S CHOICE, LLC, and STOUGH DEVELOPMENT CORP., Plaintiffs-Appellants, v. CITY OF CINCINNATI, and SHAWN PATTON, P.E., Respondents/Defendants-Appellees. |
Court | Ohio Court of Appeals |
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Barrett & Weber, C. Francis Barrett and Scott A. Sollmann, for Relator-Appellant and Plaintiffs-Appellants,
Paula Boggs Muething, City Solicitor, Kevin M. Tidd and Shuva J. Paul, Assistant City Solicitors, for Respondents/Defendants-Appellees.
{¶1} Because the trial court prematurely determined that the complaint filed in this cause was untimely, we reverse the decision and remand the cause to the trial court for further proceedings.
{¶2} In May 2019, relator/plaintiff-appellant Banker's Choice, LLC, and plaintiff-appellant Stough Development Corp. (hereinafter collectively "Banker's Choice") filed a complaint for a claimed physical taking by respondents-appellees city of Cincinnati and Shawn Patton, P.E., (hereinafter collectively "the city"). The substance of the complaint set forth that, because of the construction of a stop for the city's streetcar system along the side of Banker's Choice's property, Banker's Choice lost access from the property to the public right-of-way. According to the complaint, Banker's Choice applied for right-of-way access in September 2017. That application had been denied in January 2018. The action sought a writ of mandamus to compel the city to initiate appropriation proceedings for taking the property rights of Banker's Choice and to compel the issuance of permits for access to its property from the abutting public right-of way.
{¶3} The city filed a motion to dismiss the complaint pursuant to Civ.R. 12(B)(6), claiming that the suit was barred by the four-year statute of limitations for takings. In its motion, the city relied upon additional facts not alleged in the complaint. The motion was supported with copies of unverified documents attached to the motion. These documents, according to the footnote identifying them, included:
The footnote asked the trial court to take "judicial notice" of the facts in these documents, "without converting it to a motion for summary judgment."
{¶4} The motion set forth facts outside those alleged in the complaint, which were supported only by the unverified documents attached to the motion. The city claimed that Banker's Choice purchased the property in 2013 to benefit from the redevelopment in Over the Rhine and the streetcar once it was built. It also claimed that the location had been publicly announced in 2011 and that Banker's Choice knew the streetcar would run next to the property months before purchasing it. The city denied the request to move the stop to another location in 2014. The city closed the sidewalk and began construction of the stop in May 2015. Concurrently, Banker's Choice had also sought to have the building demolished. The request for a certificate of appropriateness for the demolition was denied in 2014, and that decision was affirmed by the Board of Zoning Appeals in 2015.
{¶5} The trial court granted the city's motion to dismiss the complaint. The trial court determined that using either the date of the denial of the certificate of appropriateness or the date when construction commenced, the four-year limitations period had expired. In one assignment of error, Banker's Choice claims that this decision was error.
Civ.R. 12(B)(6) and Judicial Notice
{¶6} A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted tests the sufficiency of the complaint. Thomas v. Othman, 2017-Ohio-8449, 99 N.E.3d 1189, ¶ 18 (1st Dist.). When ruling on a Civ.R. 12(B)(6) motion, the trial court is confined to the allegations in the complaint. Id. It must accept the complaint's factual allegations as true and must draw all reasonable inferences in favor of the nonmoving party. Id. We review the trial court's ruling on a Civ.R. 12(B)(6) motion de novo. Id. at ¶ 19. "A complaint should not be dismissed for failure to state an actionable claim unless it appears beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery." Id. {¶7} While generally limited to the allegations stated in a complaint, a trial court may take judicial notice of "appropriate matters" in considering a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim. State ex rel. Neff v. Corrigan, 75 Ohio St.3d 12, 16, 661 N.E.2d 170 (1996). "A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Evid.R. 201(B).
{¶9} States Resources is distinguishable from this case. First, the document in that case containing the information had been properly authenticated. See id. at ¶ 17 (). In this case, the city simply stapled unauthenticated documents to its motion to dismiss. None were attached to an affidavit authenticating them or explaining their relevance. The documents were merelyidentified in a footnote in the motion, which gave no more information than what the city claimed the documents to be.
{¶10} But more significantly, the nature of the "fact" that the court took notice of in States Resources is fundamentally different than those "facts" of which the city asked the trial court to take judicial notice below. The recording of a tax debt in a governmental database is a pure ministerial function, requiring no discretion or judgment. It is a simple fact of accounting and recording—the accuracy of which could not be reasonably questioned. On the other hand, the city attempted to present its entire factual argument in the form of emails, press releases, reports, and the like, constituting narrative accounts the recording of which are far from ministerial. In a recent case, this court rejected the request of a litigant to take ...
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