Williams v. City of Dayton

2019 Ohio 4190

TRAVIS WILLIAMS Plaintiff-Appellant v. CITY OF DAYTON Defendant-Appellee

Appellate Case No. 28318

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

October 11, 2019

Trial Court Case No. 2018-CV-5867

(Civil Appeal from Common Pleas Court)

OPINION

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 because it did not send him a 30-day notice by certified mail before it started working on his property. Williams also claimed that the City was liable for breach of oral contract because it did not give him 30 days to comply with the City's ordinances. For the following reasons, we find that Williams's complaint fails to allege a set of facts that would entitle him to relief under either claim.

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...