Williams v. Dayton

Oct 11, 2019
28318
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O P I N I O N

Rendered on the 11th day of October, 2019.

TRAVIS WILLIAMS, 1955 Kipling Drive, Dayton, Ohio 45406
Plaintiff-Appellant, Pro Se

MARTIN GEHRES, Atty. Reg. No. 0096711, 101 West Third Street, P.O. Box 22, Dayton, Ohio 45402
Attorney for Defendant-Appellee

WELBAUM, P.J.

{¶ 1} Plaintiff-appellant, Travis Williams, appeals pro se from a judgment of the Montgomery County Court of Common Pleas dismissing his complaint filed against defendant-appellee, the City of Dayton. For the reasons outlined below, the judgment of the trial court will be affirmed.

Facts and Course of Proceedings

{¶ 2} On December 20, 2018, Williams filed a pro se “Notice of Claim of Lawsuit” against the City of Dayton (“the City“) with an accompanying “Affidavit for Injunction for Notice of Claim.” The trial court treated the filing as a civil complaint for damages against the City.

{¶ 3} In the complaint, Williams alleged that he held a lien on real property located at 1628 Philadelphia Drive in Dayton, Ohio (“the property“). Williams also alleged that he had left many tree limbs at the back of the property and that, on December 18, 2018, two agents from the City approached him about the tree limbs. Williams further alleged that he had asked the City‘s agents for 30 days to comply with the City‘s ordinances (presumably those relating to the tree limbs), and that the agents simply left the property following his request. In the affidavit accompanying his complaint, Williams averred that he took the agents’ silence as accepting his 30-day request for compliance.

{¶ 4} Williams‘s complaint also alleged that agents from the City returned to the property the following day and “started working in the back of the home.” Although Williams‘s complaint did not specify what work the City‘s agents performed, based on the context of the complaint, the trial court inferred that the agents began removing the tree limbs on the property. Due to the agents’ actions, Williams alleged that the City was liable for violating R.C. 715.26 because the City failed to send him a 30-day notice by certified mail “before any such removal or repair.” Williams also alleged that the City was liable for breach of oral contract because the City failed to give him 30 days to comply with the City‘s ordinances.

{¶ 5} On January 15, 2019, the City moved to dismiss Williams‘s complaint pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief may be granted. On February 27, 2019, the trial court issued a written decision granting the City‘s motion to dismiss and dismissing Williams‘s complaint without prejudice. Williams now appeals from the dismissal of his complaint.

Law and Analysis

{¶ 6} As a preliminary matter, we note that Williams‘s appellate brief does not comply with the Rules of Appellate Procedure, as Williams did not directly assign error to the lower court or meet many of the other requirements of App.R. 16. In Ohio, “[l]itigants who choose to proceed pro se are presumed to know the law and correct procedure, and are held to the same standards as other litigants.” (Citation omitted.) Yocum v. Means, 2d Dist. Darke No. 1576, 2002-Ohio-3803, ¶ 20. “[A] pro se litigant ‘cannot expect or demand special treatment from the judge, who is to sit as impartial arbiter.’ ” Id., quoting Kilroy v. B.H. Lakeshore Co., 111 Ohio App.3d 357, 363, 676 N.E.2d 171 (8th Dist.1996). However, since it is a “basic tenant of Ohio jurisprudence that cases should be decided on their merits[,]” Perotti v. Ferguson, 7 Ohio St.3d 1, 3, 454 N.E.2d 951 (1983), in the interest of justice, we will review the merits of Williams‘s appeal despite the deficiencies in his appellate brief.

{¶ 7} As noted above, Williams has appealed from the trial court‘s judgment granting the City‘s Civ.R. 12(B)(6) motion to dismiss his complaint. A Civ.R. 12(B)(6) motion to dismiss is a procedural motion that tests the sufficiency of a complaint as a matter of law. Zeller v. Farmers Group, Inc., 2d Dist. Montgomery No. 28013, 2019-Ohio-3297, ¶ 20, citing State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992). “When a court considers a motion to dismiss, it ‘must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the non-moving party.’ ” Id., quoting Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). “Given the purpose of a motion to dismiss, the moving party ‘may not rely on allegations or evidence outside the complaint.’ ” Id., quoting Hanson at 548.

{¶ 8} “Dismissal under Civ.R. 12(B)(6) is warranted only if the plaintiff can prove no set of facts in support of the claim or claims asserted in the complaint that would entitle the plaintiff to the relief requested.” Id. at ¶ 21, citing Ohio Bur. of Workers’ Comp. v. McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, 956 N.E.2d 814, ¶ 12. (Other citations omitted.) “[S]ince Ohio is a notice-pleading state, Ohio law does not ordinarily require a plaintiff to plead operative facts with particularity.” (Footnote omitted.) Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136, ¶ 29. Instead, under Civ.R. 8(A), “a complaint need only contain ‘a short and plain statement of the claim showing that the [plaintiff] is entitled to relief.’ ” Id., quoting Civ.R. 8(A)(1). ” ‘Consequently, as long as there is a set of facts, consistent with the plaintiff‘s complaint, which would allow the plaintiff to recover, the court may not grant a defendant‘s motion to dismiss.’ ” Sacksteder v. Senney, 2d Dist. Montgomery No. 24993, 2012-Ohio-4452, ¶ 50, quoting York v. Ohio State Highway Patrol, 60 Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991).

{¶ 9} Appellate review of a trial court‘s decision on a Civ.R. 12(B)(6) motion to dismiss is de novo. Zeller at ¶ 21, citing McKinley at ¶ 12. “De novo review requires an ‘independent review of the trial court‘s decision without any deference to the trial court‘s determination.’ ” Jackson v. Internatl. Fiber, 169 Ohio App.3d 395, 2006-Ohio-5799, 863 N.E.2d 189, ¶ 17 (2d Dist.), quoting State ex rel. AFSCME v. Taft, 156 Ohio App.3d 37, 2004-Ohio-493, 804 N.E.2d 88, ¶ 27 (3d Dist.). In other words, this court ” ‘must independently review the complaint to determine whether dismissal is appropriate.’ ” Ajibola v. Ohio Medical Career College, Ltd., 2018-Ohio-4449, 122 N.E.3d 660, ¶ 11 (2d Dist.), quoting Boyd v. Archdiocese of Cincinnati, 2d Dist. Montgomery No. 25950, 2015-Ohio-1394, ¶ 13. (Other citation omitted.)

{¶ 10} In this case, Williams raised two claims in his complaint. Williams first claimed that the City was liable for violating R.C. 715.26

Alleged Violation of R.C. 715.26

{¶ 11} As noted above, Williams alleged in his complaint that the City was liable for violating R.C. 715.26. Section (B) of that statute provides that any municipal corporation may “[p]rovide for the inspection of buildings or other structures and for the removal and repair of insecure, unsafe, or structurally defective buildings or other structures under this section or section 715.261 of the Revised Code.” (Emphasis added.) R.C. 715.26(B). The statute further provides that:

At least thirty days prior to the removal or repair of any insecure, unsafe, or structurally defective building, the municipal corporation, or its agent pursuant to an agreement entered into under division (E) of section 715.261 of the Revised Code, shall give notice by certified mail of its intention with respect to such removal or repair to the holders of legal or equitable liens of record upon the real property on which such building is located and to owners of record of such property.

(Emphasis added.) R.C. 715.26(B).

{¶ 12} Based on the foregoing statutory language, it is clear that the 30-day notice in R.C. 715.26(B) is only required when a municipal corporation is removing or repairing an “insecure, unsafe, or structurally defective building.” In this case, Williams did not allege in his complaint that the City removed or repaired any building on the property. Instead, Williams indicated that the City had an issue with the tree limbs on the property and that the City‘s agents “started working in the back of the home” without the notice required by R.C. 715.26(B).

{¶ 13} When considering the context of the entire complaint, it is clear that Williams‘s allegation that the City‘s agents “started working in the back of the home” relates to action taken by the City with respect to the tree limbs. Furthermore, Williams did not make a specific allegation relating to the removal or repair of any building on the property. Therefore, the 30-day notice requirement in R.C. 715.26(B) does not apply to the facts alleged in Williams‘s complaint. Because the 30-day notice requirement in R.C. 715.26(B) does not apply to the City‘s removal of the tree limbs, and because Williams has failed to state how the actions of the City caused him any injury or harm, we find that Williams‘s complaint fails to allege any facts that entitle him to relief under R.C. 715.26(B).

Alleged Breach of Oral Contract

{¶ 14} Williams also alleged in his complaint that the City breached an oral contract by failing to give him 30 days to address the City‘s issues with the property. ” ‘Essential elements of a contract include an offer, acceptance, contractual capacity, consideration (the bargained for legal benefit and/or detriment), a manifestation of mutual assent and legality of object and of consideration.’ ” Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, ¶ 16, quoting Perlmuter Printing Co. v. Strome, Inc., 436 F.Supp. 409, 414 (N.D.Ohio 1976). ” ‘[W]hile mutual assent is usually manifested by offer and acceptance, in oral contracts, mutual assent may be manifested by other acts or failures to act.’ ” KeyBank Natl. Assn. v. Mazer Corp., 188 Ohio App.3d 278, 2010-Ohio-1508, 935 N.E.2d 428, ¶ 33, quoting LaPoint v. Templeton, 6th Dist. Fulton No. F-07-014, 2008-Ohio-1792, ¶ 25.

{¶ 15} “Generally, silence in response to an offer will not constitute an acceptance of the offer.” Nilavar v. Osborn, 137 Ohio App.3d 469, 488, 738 N.E.2d 1271 (2d Dist.2000), citing Richard A. Berjian, D.O., Inc. v. Ohio Bell Tel. Co., 54 Ohio St.2d 147, 152, 375 N.E.2d 410 (1978). “However, silence may constitute an acceptance when the relation between the parties justifies the offeror‘s expectation of a reply to reject the offer.” Blazavich v. CAN Ins. Cos., 10th Dist. Franklin Nos. 97APE09-1282, 97APE09-1283, 1998 WL 353870, *5 (June 30, 1998), citing Berjian at 152.

{¶ 16} Pursuant to the Restatement of the Law 2d, Contracts, Section 69(1) (1981):

Where an offeree fails to reply to an offer, his silence and inaction operate as an acceptance in the following cases only:

  1. Where an offeree takes the benefit of offered services with reasonable opportunity to reject them and reason to know that they were offered with the expectation of compensation.
  2. Where the offeror has stated or given the offeree reason to understand that assent may be manifested by silence or inaction, and the offeree in remaining silent and inactive intends to accept the offer.
  3. Where because of previous dealings or otherwise, it is reasonable that the offeree should notify the offeror if he does not intend to accept.

{¶ 17} In this case, Williams claimed that he had entered into an oral contract with the City whereby the City agreed to give him 30 days to address the issues with the property. However, the facts alleged in Williams‘s complaint merely indicate that Williams requested 30 days to address the issues, and the City‘s agents never responded. Although Williams claimed that he interpreted the agents’ silence as accepting his request, Williams‘s complaint fails to allege any facts indicating that the agents gave him reason to believe that their silence constituted acceptance. Williams‘s complaint also fails to allege that Williams had prior dealings with the City making it reasonable for him to believe that the agents’ silence constituted acceptance. Williams‘s complaint further fails to allege any facts showing that there was any bargained for legal benefit or detriment. Williams‘s complaint additionally fails to allege any facts showing how the alleged breach of oral contract caused him any injury or harm. Therefore, in light of these deficiencies in Williams‘s complaint, we find that the facts alleged therein do not entitle Williams to relief for breach of contract.

Conclusion

{¶ 18} Because Williams‘s complaint fails to allege any set of facts that would entitle him to relief under the claims asserted therein, we hold that the trial court properly dismissed Williams‘s complaint pursuant to Civ.R. 12(B)(6). Therefore, finding no error in the trial court‘s decision, the judgment of the trial court granting the State‘s motion to dismiss and dismissing Williams‘s case without prejudice is affirmed.

DONOVAN, J. and HALL, J., concur.

Copies sent to:

Travis Williams
Martin Gehres
Hon. Gregory F. Singer