I respectfully dissent from the majority's finding that appellant lacks standing to bring this appeal.
I agree with the appellant's contention that he is the complainant-appellant and that the assistant prosecutor is the statutory representative of the complainant who is supposed to represent him pursuant to R.C. 733.73, which provides:
"On the day fixed by the probate judge for the return of the citation issued pursuant to 733.72 of the Revised Code, thevillage solicitor or city director of law shall appear on behalfof the complainant to conduct the prosecution, and the accused may also appear by counsel. A time shall be set for hearing the case, which shall not be more than ten days after such return. If a jury is demanded by either party, the probate judge shall direct the summoning of twelve men [jurors] in the manner provided by sections 2313.19 to 2313.26 of the Revised Code. In a municipal corporation having no village solicitor or city director of law, or in case the village solicitor or city director of law is accused of any misfeasance or malfeasance in his office, the prosecuting attorney shall appear on behalf ofthe complainant to conduct the prosecution." (Emphasis added.)
The majority opinion and both appellees contend that complainant-appellant does not have standing to bring this appeal and is not a party to this action. Based on the clear language of R.C. 733.73, I cannot agree.
The instant action was filed pursuant to R.C. 733.72 by the complainant-appellant ex relatione. R.C. 733.72 provides: "* * * Before acting upon such complaint, the judge shall require the party complaining to furnish sufficient security for costs." "Ex relatione" proceedings are defined in Black's Law Dictionary as: *Page 497
"Legal proceedings which are instituted by the attorney general (or other proper person) in the name and behalf of the state, but on the information and at the instigation of an individual who has a private interest in the matter, are said to be taken `on the relation' (ex relatione) of such person, who is called the `relator.' * * *"
Appellant, along with the other four electors who instituted this action, is the "relator" herein who has a private interest in the matter. Without appellant's relation of the information and his instigation, there is no case. Appellant, as the complainant, had to post sufficient security for costs below. Thus, appellant was clearly a party to this action below and has standing to bring this appeal. In State ex rel. Stokes v.Cuyahoga Cty. Probate Court (1969), 17 Ohio App.2d 247, 46 O.O.2d 416, 246 N.E.2d 607, the court rejected the contention that a complainant is denied the right to appeal under R.C.733.72 et seq. At 17 Ohio App.2d 261, 46 O.O.2d at 424,246 N.E.2d at 617, the court construed R.C. 733.77, entitled "Payment of costs," and concluded: "* * * However, the mere mention of the possibility that the officer might appealcannot be said to forbid an appeal by the complaining party." (Emphasis added.) The complaining party herein is appellant.
Although the trial court appointed the prosecuting attorney to represent complainant-appellant pursuant to R.C. 733.73, the prosecuting attorney obviously considered himself as counsel for the village of Mantua and not the complainant. Thus, complainant-appellant was not provided with the statutory representation intended by R.C. 733.73 and had to appear pro se.
Thus, I conclude appellant has standing to bring the action and this appeal.
Based on the exhibits and briefs submitted by the parties, the court found, as a matter of law, that the actions of the village officials did not constitute malfeasance or misfeasance requiring the removal of such officials. Accordingly, the court granted the motions to dismiss filed on behalf of the village and village officials on all counts against all defendants-appellees.
The motion to dismiss filed by the village was made pursuant to Civ.R. 41, wherein the prosecutor, on behalf of the village, alleged that there was no factual basis upon which the claims contained in the complaint could be sustained. The village officials filed a motion to dismiss or, in the alternative, for summary judgment, wherein they alleged that the complaint failed to state a claim upon which relief could be granted or, in the alternative, that the defendant officials were entitled to judgment as a matter of law because there was no genuine issue of fact in dispute.
It appears from the trial court's judgment that the court granted the motions to dismiss but actually engaged in a summary judgment exercise. *Page 498
In construing a motion to dismiss for failure to state a claim, the court must presume that all factual allegations of the complaint are true and must make all reasonable inferences in favor of the plaintiff. Civ.R. 12(B)(6); Mitchell v. LawsonMilk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753, 755. In other words, in order for the court to dismiss the complaint for failure to state a claim, 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, Inc. (1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753, syllabus.
Applying the foregoing rule of law to the instant case, it must be presumed that all factual allegations are true and all reasonable inferences must be made in favor of the complainant-appellant. Assuming the truth of the allegations, it does not appear beyond doubt that complainant-appellant can prove no set of facts entitling him to the recovery sought,i.e., removal of the village officials. Therefore, dismissal of the complaint was improper.
Furthermore, the trial court engaged in a summary judgment exercise without giving the parties the notice required by Civ.R. 12(B)(6). The court may convert a motion to dismiss for failure to state a claim into a motion for summary judgment. However, the court must notify all parties of the conversion and allow at least fourteen days from such notification for the parties to present any materials they deem pertinent pursuant to Civ.R. 56. See Petrey v. Simon (1983), 4 Ohio St.3d 154, 4 OBR 396, 447 N.E.2d 1285.
Based on the following facts, that complainant-appellant has standing and is a proper party who did not receive the statutory representation to which he was entitled, that the dismissal was improper, and that the conversion of the motions to dismiss into a summary judgment exercise without giving the required notice of the conversion was improper, I would reverse the trial court's judgment and remand the matter for further proceedings.