594 N.E.2d 48 | Ohio Ct. App. | 1991
Appellant appeals pro se from the judgment of the Franklin County Court of Common Pleas dismissing his complaint, pursuant to Civ.R. 12(B)(6).
In 1985, appellant, Edward M. Mayrides, was tried and convicted on charges of rape and kidnapping. He is currently incarcerated at the London Correctional Institute. Appellant brought this suit in replevin against appellees, the Franklin County Prosecutor's Office et al., seeking to obtain possession of an investigative file compiled by a private investigator. The complaint asserted that appellant had a property right in the file as the private investigator was hired and paid by his brother and father to conduct an investigation on his behalf. Prior to appellant's criminal trial, appellees acquired the file by subpoena with the intent of using it at trial. Appellant now seeks possession of the file to prepare a petition for post-conviction relief.
One day after the complaint was filed, and before appellees had answered the complaint, the complaint was dismissed suasponte without notice to any party in an entry which states, in pertinent part:
"All motions are overruled and this case is dismissed without costs as plaintiff is indigent. *383
"* * *
"It appears the file plaintiff seeks to have the Court order the prosecutor to give him was obtained by the prosecutor by subpoena. This fact was stipulated by the prosecutor and defense counsel in Case No. 84CR-04-1047 and Judge Tommy L. Thompson ruled on what use could be made of the subject file in that case."
Although the judgment entry does not specifically recite the reason for the dismissal, we will construe it as a dismissal for failure to state a claim pursuant to Civ.R. 12(B)(6).
From this judgment, appellant appeals, asserting two assignments of error:
"I. The Court of Common Pleas erred when that court failed to recognize the validity of appellant's entitlement to possession of personal property through an action in replevin.
"II. The Court of Common Pleas erred when that court failed to sustain the following motions filed by the appellant:
"1) Motion for Order of Possession without Notice.
"2) Motion to Waive Bond Requirements.
"3) Motion for Injunctive Relief.
"4) Motion for Order of Discovery.
"5) Motion for Order of Appearance for Incarcerated Person.
"6) Motion for Appointment of Counsel."
We first address whether the trial court properly dismissed this case. A number of provisions in the Ohio Rules of Civil Procedure authorize a court to dismiss an action on its own motion. Civ.R. 4(E) and 41(B)(1). Nevertheless, such a dismissal may be entered only after the affected party is given notice of the court's intention. Perotti v. Ferguson (1983),
Like dismissals under Civ.R. 41(B)(1), a dismissal under Civ.R. 12(B)(6) operates as an adjudication on the merits. Civ.R. 41(B)(3). Moreover, a dismissal, sua sponte, and without notice to the parties is fundamentally unfair to litigants. It places the court in the role of a "proponent rather than an independent entity." Franklin v. Oregon, State Welfare Division
(C.A.9, *384
1981),
For these reasons, a majority of the United States Courts of Appeals have held that a court may dismiss a complaint on its own motion pursuant to Civ.R. 12(B)(6) only after the parties are given notice of the court's intention to dismiss and an opportunity to respond. Ricketts v. Midwest Natl. Bank (C.A.7, 1989),
We thus conclude that the court erred when it dismissed appellant's complaint under Civ.R. 12(B)(6), sua sponte, without first notifying all parties of its intent and giving appellant an opportunity to amend his complaint or respond to the insufficiencies raised by the court.
Appellant's first assignment of error is well taken.
In the second assignment of error, appellant maintains that the trial court erred in overruling his motions for injunctive relief, for an order permitting him to personally appear in the action, and for an order compelling discovery. This assignment of error is not well taken, as we find no error of the court in this regard. The court did not abuse its discretion in denying injunctive relief or appellant's request to appear personally, at least at this stage in the proceedings. See Mancino v.Lakewood (1987),
Appellant's second assignment of error is not well taken.
Appellant's first assignment of error is sustained and the second assignment of error is overruled. The judgment of the trial court is reversed and the cause is remanded for further proceedings consistent with this opinion.
Judgment reversedand cause remanded.
BOWMAN, P.J., and PEGGY BRYANT, J., concur. *385