[Cite as Radcliff v. Tucker, 2016-Ohio-5908.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

ERNEST L. RADCLIFF, et al.                           C.A. No.      28072

        Appellants

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
TRENNA WRIGHT TUCKER                                 AKRON MUNICIPAL COURT
                                                     COUNTY OF SUMMIT, OHIO
        Appellee                                     CASE No.   15 CVF 08152

                                 DECISION AND JOURNAL ENTRY

Dated: September 21, 2016



        WHITMORE, Judge.

        {¶1}     Plaintiff-Appellants, Ernest Radcliff and Anderson Wilkerson (collectively, “the

Owners”), appeal from the judgment of the Akron Municipal Court, dismissing their complaint

against Defendant-Appellee, Trenna Wright Tucker. This Court reverses.

                                                 I

        {¶2}     On November 5, 2015, the Owners filed a complaint for breach of contract

against Tucker. The complaint alleged that Tucker had become the Owners’ tenant pursuant to

an oral lease. According to the Owners, Tucker failed to pay any rent and left the property in

poor condition when she vacated it. Their complaint also alleged that, following Tucker’s

departure, they incurred expenses removing a vehicle that she left on the property.          The

complaint contained three counts against Tucker in which the Owners sought (1) damages for the

unpaid rent and various cleaning and repair costs; (2) damages for the cost of the vehicle
                                                  2


removal; and (3) attorney fees. Tucker filed an answer to the Owners’ complaint, as well as a

counterclaim for conversion.

       {¶3}    Following the filing of the Owners’ answer to Tucker’s counterclaim, the trial

court issued a judgment entry. Absent a hearing or other opportunity for the parties to respond,

the court sua sponte ordered the dismissal of the Owners’ complaint. The court indicated that,

based on its own research, it had discovered that Radcliff had previously filed a forcible entry

and detainer action against Tucker. Because the court in the prior action had determined that the

parties did not have a written lease agreement and had dismissed the Owners’ writ, the trial court

found that the Owners’ action for breach of contract was barred by res judicata. The court

further found that a dismissal was appropriate under its Local Rules because the Owners had

failed to caption their initial filing “as a Complaint or other pleading.”

       {¶4}    The Owners now appeal from the trial court’s judgment and raise four

assignments of error for our review. For ease of analysis, we rearrange and consolidate several

of the assignments of error.

                                                  II

                                Assignment of Error Number Three

       THE TRIAL COURT ERRED WHEN IT RELIED UPON MATERIALS NOT
       BEFORE IT IN DISMISSING THE CASE.

                                 Assignment of Error Number Four

       THE TRIAL COURT ERRED WHEN IT DISMISSED THE COMPLAINT SUA
       SPONTE.

       {¶5}    In their third and fourth assignments of error, the Owners argue that the trial court

erred when it sua sponte dismissed their complaint without notice or an opportunity to respond

and based on materials outside the record. We agree.
                                                3


       {¶6}   “Absent particularized circumstances, a trial court is required to notify a plaintiff

of its intention to dismiss a complaint sua sponte regardless of the basis for the dismissal.”

Capital One Bank, N.A. v. Harland, 9th Dist. Wayne No. 09CA0010, 2009-Ohio-5890, ¶ 7.

“The only instances [] when a sua sponte dismissal of complaint without notice is appropriate is

when the complaint is frivolous or the plaintiff cannot succeed on the facts stated in the

complaint.” Dunn v. Marthers, 9th Dist. Lorain No. 05CA008838, 2006-Ohio-4923, ¶ 11. “This

Court has repeatedly held that res judicata is not the proper subject of a motion to dismiss.”

Nosal v. Fairlawn Corporate Ctr., 9th Dist. Summit No. 23846, 2008-Ohio-414, ¶ 13. Further,

we have held “that a trial court ‘may only take judicial notice of prior proceedings in the

immediate case.’” Maiorana v. Maiorana, 9th Dist. Medina No. 10CA0060-M, 2011-Ohio-

4464, ¶ 9, quoting In re J.C., 186 Ohio App.3d 243, 2010-Ohio-637, ¶ 14 (9th Dist.). “A court

may not take judicial notice of the proceedings in other cases, ‘even though between the same

parties * * *.’” Clayton v. Walker, 9th Dist. Summit No. 26538, 2013-Ohio-2318, ¶ 11, quoting

In re J.C. at ¶ 14, quoting State v. Hill, 9th Dist. Lorain No. 92CA005358, 1993 WL 191972, *2

(June 9, 1993).

       {¶7}   The trial court here sua sponte dismissed the Owners’ complaint without notice on

the basis of res judicata. Res judicata, however, is not a proper basis for the dismissal of a

complaint. See Nosal at ¶ 13 (trial court erred by “sua sponte dismissing the complaint based on

res judicata”). Moreover, the facts on which the court based its conclusion that this matter was

barred by res judicata were discovered when the court went beyond the record and conducted its

own independent research. The court wrote that, “[u]pon review of the Civil Clerk’s files, the

Court discovered that, in fact, the parties have previously litigated this matter.” It was not

permitted, however, to take judicial notice of a different proceeding. Clayton at ¶ 11. The court
                                                 4


erred by sua sponte dismissing the Owners’ complaint on an inappropriate basis and with

reference to matters outside of the record before it. Consequently, the Owners’ third and fourth

assignments of error are sustained.

                                Assignment of Error Number Two

         THE TRIAL COURT ERRED WHEN IT DISMISSED PLAINTIFFS’
         COMPLAINT FOR FAILURE TO COMPLY WITH LOC. R. 11 (A)(d).

         {¶8}   In their second assignment of error, the Owners argue that the trial court erred by

dismissing their complaint because it did not comply with one of the court’s Local Rules. We

agree.

         {¶9}   “We review the trial court’s interpretation or application of its local rules for an

abuse of discretion.” Meador v. Bath Twp., 9th Dist. Summit No. 25007, 2010-Ohio-2570, ¶ 8.

An abuse of discretion implies that the trial court was unreasonable, arbitrary, or unconscionable

in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

         {¶10} The Local Rules of the Akron Municipal Court require all papers filed with the

court to include “a short description of the pleading or motion being filed.”          AMCR No.

11(A)(d). Yet, the Local Rules do not include any sanction that might apply should a litigant fail

to comply with the foregoing requirement. Moreover, the Civil Rules favor the amendment of

pleadings. See Civ.R. 15(A) (permitting timely amendments as a matter of course and providing

that leave for untimely amendments “shall freely [be] give[n] when justice so requires”).

         {¶11} In addition to dismissing the Owners’ complaint on the basis of res judicata, the

trial court dismissed their complaint because it did not comply with AMCR No. 11(A)(d).

Specifically, the court found that the complaint was “simply styled as ‘Breach of Contract’” and

was not captioned “as a Complaint or other pleading.” Presumably, because the court also was
                                                5


dismissing the matter on the basis of res judicata, it failed to give the Owners an opportunity to

amend their complaint so as to add the word “Complaint” to its caption.

       {¶12} Even assuming that the Owners’ complaint was procedurally deficient, “[f]airness

and justice are best served when a court disposes of a case on the merits. Only a flagrant,

substantial disregard for the court rules can justify a dismissal on procedural grounds.” DeHart

v. Aetna Life Ins. Co., 69 Ohio St.2d 189, 193 (1982). The Owners’ error, if any, fell far short of

a flagrant, substantial disregard of the court’s rules. Tucker would not have been prejudiced by

allowing the Owners to amend their complaint, and a dismissal was a sanction that was

disproportionate to the nature of their mistake. See id. at syllabus. Consequently, we must

conclude that, under these particular circumstances, the court abused its discretion by dismissing

the Owners’ complaint due to a purported violation of its Local Rules. See, e.g., Richerson v.

Patten, 83 Ohio App.3d 895, 897 (9th Dist.1992). The Owners’ second assignment of error is

sustained.

                                Assignment of Error Number One

       THE TRIAL COURT ERRED WHEN IT RULED THAT PLAINTIFFS’
       BREACH OF CONTRACT CLAIM WAS BARRED BY THE DOCTRINE OF
       RES JUDICATA.

       {¶13} In their first assignment of error, the Owners argue that the court erred when it

determined that their breach of contract claim was barred by res judicata.          Based on our

resolution of the Owners’ third and fourth assignments of error, this assignment of error is moot,

and we decline to address it. See App.R. 12(A)(1)(c).

                                                III

       {¶14} The Owners’ second, third, and fourth assignments of error are sustained. Their

first assignment of error is moot, and we decline to address it. The judgment of the Akron
                                                 6


Municipal Court is reversed, and the cause is remanded for further proceedings consistent with

the foregoing opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Akron Municipal

Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     BETH WHITMORE
                                                     FOR THE COURT


MOORE, P. J.
HENSAL, J.
CONCUR.

APPEARANCES:

EDWARD L. GILBERT, Attorney at Law, for Appellants.

TYLER J. WHITNEY, Attorney at Law, for Appellee.
