660 N.E.2d 520 | Ohio Ct. App. | 1995
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *579 Appellant, Robert Woodman, is appealing the trial court's ruling in favor of appellee, Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, on her motion to dismiss the complaint, or in the alternative, motion for summary judgment. For the following reasons, we affirm.
Plaintiff-appellant's complaint alleged that more than one year ago, the State Auditor submitted an audit report to the Prosecutor for the city of Lakewood *580
covering the period from January 1, 1986 to December 31, 1991. A copy of this sixty-page report was attached to the complaint. Plaintiff alleged that the report set forth numerous instances of malfeasance or gross neglect of duty by various public officials for which a criminal penalty is provided. As of the date of filing of the complaint, May 18, 1994, the defendant-appellee had not commenced criminal proceedings against any of the Lakewood officials. According to the complaint, the failure to commence criminal proceedings within one hundred twenty days after receiving the audit report violated R.C.
After the case was set for a hearing, appellee moved to dismiss the complaint, or in the alternative, for summary judgment. The motion stated that on August 3, 1994, indictments were returned against eight individuals from the city of Lakewood, in Cuyahoga Common Pleas Court case Nos. CR-312806 through CR-312812. No affidavits and documentary evidence were attached to the motion. The appellant's brief in opposition states that according to newspaper accounts, the prosecutor's office began presenting evidence to the grand jury in mid-June 1994.
Appellee moved to supplement the record on appeal pursuant to App.R. 9(E), with copies of the indictments against the Lakewood officials. We must deny this motion, because App.R. 9(E) can only be used to correct or modify what occurred on the trial court record. The indictments were never filed with the trial court in this case. A court cannot take judicial notice of court proceedings in another case. Diversified Mtge. Investors, Inc. v.Athens Cty. Bd. of Revision (1982),
"The trial court denied appellant due process by granting appellee's 12(B)(6) motion without a hearing."
A hearing on a Civ.R. 12(B)(6) motion is required only if a party requests such a hearing. Civ.R. 12(D); Bratton v. May Co. (Mar. 9, 1994), Summit App. No. 16230, unreported, 1994 WL 68156. In this case, no party requested a hearing.
Accordingly, this assignment of error is overruled. *581
"The court erred in holding that the complaint of appellant failed to state a claim upon which relief could be granted."
"In order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery." O'Brien v. Univ.Community Tenants Union (1975),
Here, appellant's complaint states that the prosecutor willfully and wantonly neglected her duty and/or engaged in gross misconduct by failing to indict the Lakewood officials within one hundred twenty days, in violation of R.C.
Although R.C.
This reasoning was applied in an analogous case. 1962 Ohio Atty.Gen.Ops. No. 3062. The Attorney General concluded that R.C.
Appellant cannot have the prosecutor removed for violating R.C.
Appellant's complaint did not state a claim upon which relief could be granted. Even if the complaint did state a claim entitling appellant to relief, appellee was entitled to summary judgment, as will be discussed below.
Accordingly, this assignment of error is overruled.
"The court erred in granting appellee's motion for summary judgment which was filed without leave of court after the case had been set for trial."
It is within the discretion of the trial court to grant leave to file summary judgment, even if the case is set for trial.Paramount Supply Co. v. Sherlin Corp. (1984),
Accordingly, this assignment of error is overruled.
"The court erred in granting appellee's motion for summary judgment where appellee was not entitled to judgment as a matter of law."
A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which the party bears the burden of production *583
at trial. Wing v. Anchor Media, Ltd. of Texas (1991),
Alternatively, appellant had to produce some evidence of gross misconduct. R.C.
"Any person holding office in this state, or in any municipal corporation, county, or subdivision thereof, coming within the official classification in Section
There was no evidence that the prosecutor exercised authority not authorized by law, refused or willfully neglected to enforce the law, neglected her duty, etc. There was no evidence proving that the prosecutor willfully and wantonly neglected her duties or committed gross misconduct. Reasonable minds could only conclude that the appellant was not entitled to have the prosecutor removed pursuant to R.C.
Accordingly, this assignment of error is overruled.
"Appellant's complaint was a special statutory proceeding requiring a hearing and the granting of appellee's motion to dismiss/for summary judgment without a hearing was a denial of due process."
A hearing for a claim under R.C.
Accordingly, this assignment of error is overruled.
The decision of the trial court is affirmed.
Judgment affirmed.
BLACKMON, P.J., and HARPER, J., concur.