State ex rel. Fuqua v. Alexander
680 N.E.2d 985
Ohio
1997
Check Treatment
Per Curiam.

Fuqua asserts that the court of appeals erred in dismissing his mandamus action. The court of appeals granted Alexander’s Civ.R. 12(B)(6) motion when it dismissed Fuqua’s complaint. In order to dismiss a complaint for failure to state a claim upon which relief can be granted under Civ.R. 12(B)(6), it must appear beyond doubt that relator can prove no set of facts warranting relief, after all factual allegations of the complaint are presumed true and all reasonable inferences are made in relator’s favor. State ex rel. Seikbert v. Wilkinson (1994), 69 Ohio St.3d 489, 490, 633 N.E.2d 1128, 1129.

To establish that he was entitled to dismissal, Alexander relied on unverified statements in his memorandum in support of the motion concerning the requested statements. The court of appeals relied on this “evidence.” But courts cannot rely on evidence or allegations outside the complaint to determine a Civ.R. 12(B)(6) motion. State ex rel. Findlay Publishing Co. v. Schroeder (1996), 76 Ohio St.3d 580, 581, 669 N.E.2d 835, 837; State ex rel. Boggs v. Springfield Loc. School Dist. Bd. of Edn. (1995), 72 Ohio St.3d 94, 96, 647 N.E.2d 788, 791. Therefore, the court of appeals erred in relying on this evidence, which was not contained in the allegations of Fuqua’s complaint.

*208Nevertheless, for the reasons that follow, the foregoing error does not warrant reversal of the judgment dismissing Fuqua’s mandamus action.

First, Fuqua now concedes that “R.C. 149.43 does not apply * * *.” Therefore, since his action in the court of appeals was based on R.C. 149.43, Fuqua admits that the court of appeals did not err in dismissing it on that basis.

Second, contrary to Fuqua’s contention in his first proposition of law, the court of appeals did not err in failing to address his entitlement to the requested statements pursuant to Crim.R. 16(B) instead of R.C. 149.43. Although Fuqua’s filings in the court of appeals mentioned Crim.R. 16(B), they indicated that he was requesting a writ of mandamus only through R.C. 149.43. Therefore, the court of appeals’ restriction of its analysis to R.C. 149.43 was justified by Fuqua’s own argument in that court. State ex rel. Bitter v. Missig (1995), 72 Ohio St.3d 249, 254, 648 N.E.2d 1355, 1358, citing State ex rel. Fowler v. Smith (1994), 68 Ohio St.3d 357, 359, 626 N.E.2d 950, 952 (“Under the invited-error doctrine, a party will not be permitted to take advantage of an error which he himself invited or induced the trial court to make.”).

Third, Fuqua errs in relying on State ex rel. Carpenter v. Tubbs Jones (1995), 72 Ohio St.3d 579, 651 N.E.2d 993, in support of his contention that records in the possession of Alexander are discoverable under Civ.R. 16(B) and therefore should be ordered released by a writ of mandamus. Carpenter is a public records case instituted under R.C. 149.43, which Fuqua now concedes is inapplicable. In addition, following Carpenter, we held that records which are discoverable under Crim.R. 16 are not thereby subject to release as a “public record” under R.C. 149.43. State ex rel. WHIO-TV-7 v. Lowe (1997), 77 Ohio St.3d 350, 673 N.E.2d 1360, syllabus.

Finally, Fuqua’s claim in his second proposition of law that the prosecuting attorney representing Alexander included fraudulent statements in his motion to dismiss is not supported by the record. Fuqua improperly attempts to support his claim of fraud with new materials attached to his appellate brief. State ex rel. Schwaben v. School Emp. Retirement Sys. (1996), 76 Ohio St.3d 280, 283, 667 N.E.2d 398, 401, fn. 4 (“[A]s a reviewing court, this court will not add matter to the record that was not part of the proceedings before the lower court.”).

Based on the foregoing, the court of appeals did not err in dismissing Fuqua’s mandamus action. Accordingly, the judgment of the court of appeals is affirmed.

Judgment affirmed.

Moyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer, Cook and Lundberg Stratton, JJ., concur.