Fabian v. KetteringFabian v. Kettering
Rendered on February 2, 2024
ROBERT C. FABIAN, Pro Se Appellant
CHRISTOPHER T. HERMAN & GABRIELLE E. KARL, Attorneys for Appellee
EPLEY, P.J.
{¶ 1} Appellant Robert C. Fabian appeals from a judgment of the Montgomery County Court of Common Pleas that granted the City of Kettering and James Tillotson‘s motion for judgment on the pleadings. (We will refer to the City of Kettering and Tillotson collectively as “Kettering.“) For the reasons that follow, the judgment of the trial court will
I. Facts and Procedural History
{¶ 2} The City of Kettering condemned Fabian‘s home at 2721 W. Bataan Drive in early 2019 for failure to have power or water. After the house was condemned, Fabian received regular notices of abatement. These notices informed him that the house continued to be uninhabitable due to the lack of power and water and the large amount of trash, lumber, household items, and inoperable vehicles on the property.
{¶ 3} To monitor Fabian‘s compliance with the condemnation and notices, Kettering code enforcement officer James Tillotson acquired an administrative search warrant in July 2021. Kettering officials found the condition of the home to be unchanged, and Fabian was cited for non-compliance. A second warrant was obtained and executed on September 2, 2021. Finding the property still in an uninhabitable condition, Fabian was issued a notice of intent to demolish.
{¶ 4} On September 24, 2021, Fabian filed suit pro se in the United States District Court for the Southern District of Ohio. See Fabian v. Tillotson, S.D.Ohio No. 3:21-CV-265, 2022 WL 3446346 (Aug. 17, 2022) (”Fabian I“). He alleged the City of Kettering and its officials (including Tillotson) had engaged in an unconstitutional pattern of harassment and interference with his property in relation to the condemnation. The suit alleged violations to his Fourth, Fifth, Sixth, and Ninth Amendment rights and sought both damages and injunctive relief.
{¶ 5} The district court granted the defendants’ motions to dismiss and for judgment on the pleadings, denied Fabian a certificate of appealability, and certified that
{¶ 6} After filing a pro se complaint in the Montgomery County Court of Common Pleas on January 10, 2023, Fabian filed several irregular motions, including a “motion to rule” and a “motion to stay and protection order previously asked for to be ruled on.” On February 27, Fabian filed his first amended complaint, which asserted state law claims for slander, fraud, and “abuse of power” and made constitutional claims pertaining to the Fourth and Fifth Amendments. It was followed by more novel motions on March 3 and March 8. Kettering filed its answer on March 13 and then a motion for judgment on the pleadings on May 2.
{¶ 7} On May 4, 2023, the court held an in-person scheduling conference at which the parties reviewed the pending judgment on the pleadings motion. Despite the discussion about the pending motion, Fabian failed to file a brief in opposition, and on June 5, the trial court granted Kettering‘s motion for judgment on the pleadings.
{¶ 8} Fabian has filed a timely appeal.
II. Judgment on the Pleadings
{¶ 9} As Kettering points out, Fabian‘s pro se brief does not comply with
{¶ 10}
{¶ 11} “Unlike a
{¶ 12} A motion for judgment on the pleadings presents only questions of law, hence our review is de novo. Powlette v. Carlson, 2022-Ohio-3257, 197 N.E.3d 1, ¶ 20 (2d Dist.). That means we will independently examine the complaint to determine whether the dismissal was appropriate. Boyd v. Archdiocese of Cincinnati, 2d Dist. Montgomery No. 25950, 2015-Ohio-1394, ¶ 13.
{¶ 13} In Fabian‘s case, there are multiple reasons the trial court‘s decision to grant the motion for judgment on the pleadings was appropriate. We begin with res judicata.
{¶ 14} The doctrine of res judicata consists of two parts: (1) claim preclusion (res judicata) and (2) issue preclusion (collateral estoppel). Claim preclusion prevents later actions by the same parties based on a claim arising out of a transaction that was the subject of a previous lawsuit. O‘Nesti v. DeBartolo Realty Corp., 113 Ohio St.3d 59, 2007-Ohio-1102, 862 N.E.2d 803, ¶ 6; Brown v. City of Dayton, 89 Ohio St.3d 245, 247, 730 N.E.2d 958 (2000); Grava v. Parkman Twp., 73 Ohio St.3d 379, 382, 653 N.E.2d 226 (1995) (“a valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action“).
{¶ 15} Issue preclusion stops re-litigation of any fact or point that was determined by the court in a previous suit between the same parties. O‘Nesti at ¶ 7. “Issue preclusion applies even if the causes of action differ.” Id.
{¶ 16} In this case, Fabian‘s constitutional claims are barred by res judicata. Fabian‘s Fourth and Fifth Amendment claims were raised in Fabian I and dismissed with prejudice by the federal court, which went so far as to certify that an appeal of the suit would be “objectively frivolous.” Because those claims were previously adjudicated between the same parties, arising from the same transaction, they could not be brought in state court. The trial court did not err by granting the judgment on the pleadings as to those claims.
{¶ 17} Although the tort claims (slander, fraud, and “abuse of power“) raised by Fabian were not barred by res judicata, they, similarly, were properly dismissed by the trial court because Kettering was immune from liability.
{¶ 18} ”
{¶ 19} Immunity is also given to employees of political subdivisions.
{¶ 20} As to Kettering, no exceptions to immunity were implicated as there were
{¶ 21} Regarding Tillotson, Fabian made no allegations that his acts or omissions were outside the scope of his employment or that civil liability was imposed by statute. He did, however, make claims that could be construed as alleging Tillotson acted with malicious purpose or in bad faith. For instance, in his amended complaint, Fabian alleged that “Mr. Tillotson used photos of the property at a time when I did not own it” and that “he submitted photos of property that was not even the property in question in his report.” Based on those allegations in the amended complaint, it is possible that the claims against Tillotson could have survived the motion for judgment on the pleadings. The trial court, however, determined that it was proper to dismiss all of Fabian‘s claims for failure to prosecute. This was an error because, as a substantive matter, there was at least one live controversy for the court to consider.
{¶ 22} Under
{¶ 23} In finding that Fabian‘s complaint should be dismissed with prejudice for
{¶ 24}
(2.) Opposing Parties: All parties opposing motions shall file and serve a memorandum in opposition to the motion that has been filed and served against them. All memoranda shall:
(a.) be accompanied by copies of all photographs or documentary evidence that will be used in opposition to the motion, if the motion requires consideration of facts that do not appear in the record and
(b.) be filed and served within 14 days from the date on which the motion was served for all motions other than motions for summary judgment. Memoranda in opposition to motions for summary judgment shall be filed and served within 28 days from the date on which the motion for summary judgment was served. If no memorandum is filed within this time limit, the motion may be decided forthwith.
Notably, this rule does not say that cases will be dismissed if no opposing memorandum is filed; it says that the motion may be decided forthwith. This implies a decision will be
{¶ 25} In support of its decision, the trial court cited Estate of Hards v. Walton, 8th Dist. Cuyahoga No. 93185, 2010-Ohio-3596, ¶ 3. In Hards, although the Eighth District Court of Appeals noted that a party‘s motion for judgment on the pleadings had been “unopposed,” it also found no error in the trial court‘s substantive review. In this regard, the court of appeals stated:
Despite the court‘s notation that the motion had been unopposed, the court plainly undertook a substantive review of the motion as evidenced by its finding that motion was “well-taken.” By granting the motion under the applicable standard for granting a motion for judgment on the pleadings, the court must have taken the allegations of the complaint as true and found that the estate offered no set of facts that would entitle it to relief. So the failure to file a brief in opposition to the motion for judgment on the pleadings could not have been the sole reason that the court granted judgment on the pleadings.
{¶ 26} In this case, we have identified a viable claim, but the sole reason the trial court gave for the dismissal for failure to prosecute was the lack of response to the motion. The question, therefore, is whether failure to respond to the motion was a sufficient basis to dismiss the complaint with prejudice. We conclude that it was not. If we held otherwise, a precedent would be set allowing courts to dismiss cases where a party simply fails to respond to a motion, which is not the intent of the Civil Rules. As has often been stressed,
{¶ 27} Although we have concluded that the trial court erred in dismissing the case, there is one more issue to consider - waiver.
{¶ 28} By failing to file a memorandum in opposition, Fabian did not raise any issues for the trial court to consider. As a result, he has waived any potential errors in this appeal that could have been brought to the trial court‘s attention. E.g., McGovern Builders, Inc. v. Davis, 12 Ohio App.3d 153, 156, 468 N.E.2d 90 (2d Dist.1983). “However, the waiver doctrine is discretionary, and appellate courts may consider plain error where the rights and interests involved may warrant it.” Pruitt v. Haley, 2d Dist. Greene No. 1997-CA-60, 1998 WL 71787, *1 (Feb. 20, 1998), citing Hill v. Urbana, 79 Ohio St.3d 1492, 683 N.E.2d 793 (1997). Thus, in order to prevail, Fabian must establish plain error.
{¶ 29} “Although in criminal cases ‘[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court,’ no analogous provision exists in the Rules of Civil Procedure.” (Emphasis sic.) Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997), quoting
{¶ 30} While it is evident that the trial court erred by dismissing Fabian‘s entire case for failure to prosecute, that error does not rise to the level required to engage the civil plain error doctrine. Fabian‘s assignment of error (to the extent that he has one) is overruled.
III. Conclusion
{¶ 31} The judgment of the trial court will be affirmed.
LEWIS, J., concurs.
WELBAUM, J., dissents:
{¶ 32} “In appeals of civil cases, the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself.” Goldfuss, 79 Ohio St.3d 116, 679 N.E.2d 1099, at syllabus. While granting relief under a plain error analysis is heavily disfavored, I believe, under the circumstances of this case, that dismissing the complaint for judgment on the pleadings when a claim was clearly stated in the complaint was plain error. Consequently, I would reverse the trial court on the dismissal of the viable claim identified by the majority.
{¶ 33} I therefore respectfully dissent.