STATE OF OHIO EX REL. BANKER’S CHOICE, LLC, Relator-Appellant, and BANKER’S CHOICE, LLC, and STOUGH DEVELOPMENT CORP., Plaintiffs-Appellants, vs. CITY OF CINCINNATI, and SHAWN PATTON, P.E., Respondents/Defendants-Appellees.
APPEAL NO. C-200017
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
December 23, 2020
2020-Ohio-6864
Civil Appeal From: Hamilton County Court of Common Pleas (TRIAL NO. A-1902350)
Paula Boggs Muething, City Solicitor, Kevin M. Tidd and Shuva J. Paul, Assistant City Solicitors, for Respondents/Defendants-Appellees.
O P I N I O N.
{¶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.
Takings Complaint Dismissed
{¶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
- Exhibit A, Simes, Randy. “Streetcar’s promise attracts occupants to OTR property.” Cincinnati Business Courier, July 17, 2013;
Exhibit B, Email from Scott Stough, “Streetcar Stop-Main Street,” to Chris Eilerman dated February 11, 2013; - Exhibit C, City of Cincinnati Zoning Board of Appeals (“ZBA”) Decision, April 8, 2015;
- Exhibit D, City of Cincinnati Department of Transportation and Engineering (“DOTE”), Cincinnati Streetcar, First Segment Vicinity Partial Plan Submittal, dated May 1, 2011;
- Exhibit E, City of Cincinnati, Cincinnati Streetcar Project Supplemental Environmental Assessment dated May 16, 2011;
- Exhibit F, Email from Scott Stough, “Information,” to John Deatrick dated November 21, 2013;
- Exhibit G, Email from Scott Stough, “Main Street Stop,” to John Deatrick dated January 7, 2014;
- Exhibit H, Email from Scott Stough, “Main Street Stop,” to John Deatrick (Cc: Michael Stough, Michael Paul, Michael Moore, John Brazina) dated January 20, 2014;
- Exhibit I, Email from Scott Stough, “Main Street Streetcar Stop,” to John Deatrick (Cc: Michael Paul, Michael Moore, Kate Leiniger) dated May 6, 2014;
- Exhibit J, Email from John Deitrick, “Main Street Stop,” to Scott Stough (Cc: Michael Stough, Michael Paul, Michael Moore, John Brazina) dated January 9, 2014;
- Exhibit K, DOTE Inspector Daily Report dated May 6, 2015;
- Exhibit L, DOTE Inspector Daily Report dated May 8, 2015.
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.”
{¶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
{¶8} The city has cited one case in support of the trial court considering its attachments. States Resources Corp. v. Hendy, 9th Dist. Summit No. 25423, 2011-Ohio-1900. In that case, the court concluded that the trial court could take judicial notice of the fact of a party’s tax debt by looking at official tax records, stating that
Evid.R. 201 governs judicial notice of facts of the case, or “adjudicative facts.” See, also, Smith v. McLaughlin, 9th Dist. No. 24890, 2010-Ohio-2739, ¶ 51. A court may take judicial notice of a fact not subject to reasonable dispute that is “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”Evid.R. 201(B) . Further, “[j]udicial notice may be taken at any stage of the proceeding.”Evid.R. 201(F) . Once judicial notice of a fact is taken, a “party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.”Evid.R. 201(E) .* * *
“Public records and government documents are generally considered ‘not to be subject to reasonable dispute.’ This includes public records and government documents available from reliable sources on the Internet.” (Internal citation omitted.) [U.S. ex rel. Dingle v. BioPort Corp., 270 F.Supp.2d 968, 972 (W.D.Mich.2003)], aff‘d sub nom. [Dingle v. Bioport Corp., 388 F.3d 209 (6th Cir.2004)]. See also, [Grimes v. Navigant Consulting, Inc., 185 F.Supp.2d 906, 913 (N.D.Ill.2002)] (taking judicial notice of stock prices posted on a website); [Cali v. E. Coast Aviation Servs., Ltd., 178 F.Supp.2d 276, 287 (E.D.N.Y.2001)] (taking judicial notice of documents from Pennsylvania state agencies and Federal Aviation Administration); [Segle v. PNC Mtge., W.D.Wash. No. 10-5655RJB, 2011 WL 1098936, at *2 (Mar. 25, 2011)] (taking judicial notice of a notice of sale and deed because they were recorded with the auditor and appear on the county’s website). As a result, the delinquency of Hendy’s tax obligations was subject to judicial notice under Evid.R. 201(B)(2) .
{¶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 (“States Resources submitted a certified copy of Hendy’s tax statement issued by Summit County.”). 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 merely
{¶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 “judicial notice” of facts that had been testified about in a transcript in another proceeding, stating that “the facts that Sager urges us to conclude from the May 2014 transcript are not the type of facts, ‘not subject to reasonable dispute’ and ‘capable of accurate and ready determination,’ cognizable by judicial notice.” State v. Sager, 2019-Ohio-135, 131 N.E.3d 335, ¶ 21 (1st Dist.); see Pollard v. Elber, 2018-Ohio-4538, 123 N.E.3d 359, ¶ 16 (6th Dist.) (a court can take judicial notice of the fact that another proceeding had taken place but cannot take judicial notice of facts established in that litigation). As the Second Appellate District noted, “[w]hile it is true that a court may take judicial notice of matters of public record, it may not take judicial notice of disputed facts stated in those public records.” McKenzie v. Davies, 2d Dist. Montgomery No. 22932, 2009-Ohio-1960, ¶ 24.
{¶11} The problem in this case arises from the city’s misunderstanding of the fundamental nature of judicial notice. A court may take notice of “adjudicative facts; i.e., the facts of the case.”
{¶12} Since the documents attached to the motion were not authenticated, the facts the city sought to have the trial court take judicial notice of were not of the type for which judicial notice is proper, and since the request did not actually direct the trial court which judicial facts were at issue, the trial court erred when it relied on the attachments when granting the city’s motion to dismiss.
Motion Could Not Be Considered a Motion for Summary Judgment
{¶13} There are other circumstances under which a trial court may consider evidence not contained within the initial pleading. But if a trial court does so, it must convert the motion to dismiss to a motion for summary judgment and give the parties notice of its intent to do so.
[w]hen a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. Provided however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56. All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56.
But, in this case, the trial court did not use this procedure—it neither gave notice to the parties that it was considering the matter pursuant to
“ ‘The primary vice of unexpected conversion to summary judgment is that it denies the surprised party sufficient opportunity to discover and bring forward factual matters which may become relevant only in the summary judgment, and not the dismissal, context.’ ” Petrey v. Simon (1983), 4 Ohio St.3d 154, 155, 447 N.E.2d 1285, quoting Portland Retail Druggists Assn. v. Kaiser Found. Health Plan (C.A.9, 1981), 662 F.2d 641, 645, analyzing comparable provisions of
Fed.R.Civ.P. 12(b) . The purpose of providing the parties with notice of a court’s conversion of a motion to dismiss to a motion for summary judgment is to afford the parties a reasonable opportunity to submit evidence. Dietelbach v. Ohio Edison Co., Trumbull App. No. 2004-T-0063, 2005-Ohio-4902, 2005 WL 2269006, at ¶ 12. Unexpected conversion may leave the non-moving party at the disadvantage of being unprepared to reply. Petrey, 4 Ohio St.3d at 155.
EMC Mtge. Corp. v. Jenkins, 164 Ohio App.3d 240, 2005-Ohio-5799, 841 N.E.2d 855, ¶ 13 (10th Dist.).
{¶14} And even if it had done so, the documents attached to the motion to dismiss filed by the city did not constitute evidence recognized by
Conclusion
{¶15} A motion to dismiss a complaint under
Judgment reversed and cause remanded.
BERGERON and CROUSE, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.