2020 Ohio 6864
Ohio Ct. App.2020Background
- Banker’s Choice, LLC and Stough Development sued the City of Cincinnati and an engineer in May 2019, alleging a physical taking: a streetcar stop built adjacent to their property deprived the property of access to the public right-of-way.
- Banker’s Choice alleged it applied for right-of-way access in September 2017 and that access was denied in January 2018; they sought mandamus compelling appropriation proceedings and access permits.
- The city moved to dismiss under Civ.R. 12(B)(6) as time-barred by the four-year takings statute of limitations and attached numerous unauthenticated documents (news article, emails, project reports, inspector logs), asking the court to take judicial notice of them.
- The trial court relied on those attachments (concluding accrual occurred by 2014 or 2015) and granted dismissal as untimely.
- On appeal the First District reversed and remanded, holding the trial court erred by relying on the unauthenticated attachments and misapplying judicial notice rules; the complaint did not conclusively show the claim was time-barred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Judicial notice of attachments on a 12(B)(6) motion | City improperly sought judicial notice of entire documents and disputed facts; attachments were unauthenticated | Documents were public records/news and court could judicially notice them | Court: trial court erred; attachments were not proper for judicial notice of disputed facts and were unauthenticated |
| Use of extra-pleading materials without converting to summary judgment | Trial court should have given notice and converted the motion before considering extra-pleading materials | Court could consider the materials without conversion (or city asked court not to convert) | Court: conversion required under Civ.R.12(B) when considering matters outside the pleadings and parties must be given opportunity under Civ.R.56 |
| Admissibility of attached documents as summary-judgment evidence | Unaudited materials are not within Civ.R.56(C) list and thus not proper evidence | Attachments qualify as public documents or otherwise are reliable | Court: attachments were unauthenticated and not proper summary-judgment evidence under Civ.R.56(C) |
| Whether complaint was barred by the four-year statute of limitations | Complaint does not conclusively establish accrual date, so dismissal under 12(B)(6) is improper | Accrual occurred by 2014 (certificate denial) or 2015 (construction start), making 2019 filing untimely | Court: complaint failed to establish accrual date on its face; dismissal premature — reverse and remand |
Key Cases Cited
- Thomas v. Othman, 99 N.E.3d 1189 (1st Dist. 2017) (standard and de novo review for Civ.R. 12(B)(6) motions)
- State ex rel. Neff v. Corrigan, 661 N.E.2d 170 (Ohio 1996) (permissible scope of judicial notice on motions to dismiss)
- Velotta v. Leo Petronzio Landscaping, Inc., 433 N.E.2d 147 (Ohio 1982) (complaint must conclusively show statute-of-limitations bar to dismiss under 12(B)(6))
- State v. Sager, 131 N.E.3d 335 (1st Dist. 2019) (limits on taking judicial notice of disputed facts in public documents)
- Petrey v. Simon, 447 N.E.2d 1285 (Ohio 1983) (unexpected conversion to summary judgment denies the nonmoving party opportunity to present evidence)
- EMC Mtge. Corp. v. Jenkins, 841 N.E.2d 855 (Ohio App.) (discussion of procedural requirements when a court treats a dismissal motion as summary judgment)