State ex rel. Shemo v. Mayfield Hts. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State ex rel. Shemo v. Mayfield Hts., 92 Ohio St.3d 324, 2001-Ohio-203.]

THE STATE EX REL. SHEMO, TRUSTEE, ET AL. v. CITY OF MAYFIELD HEIGHTS
ET AL.
[Cite as State ex rel. Shemo v. Mayfield Hts. (2001), 92 Ohio St.3d 324.]
Mandamus sought to compel city of Mayfield Heights et al. to approve relators'
application for road improvement plans -- Motion for expedited
consideration granted -- Motion for peremptory writ denied and cause
dismissed without prejudice.
(No. 01-929 -- Submitted May 30, 2001 -- Decided July 18, 2001.)
IN MANDAMUS.
ON MOTION FOR EXPEDITED CONSIDERATION.
__________________

On consideration of relators' motion for expedited consideration of their
motion for peremptory writ,

IT IS ORDERED that the motion for expedited consideration be, and
hereby is, granted.

IT IS FURTHER ORDERED that relators' motion for peremptory writ be,
and hereby is, denied, and that the cause be, and hereby is, dismissed without
prejudice for failure to comply with S.Ct.Prac.R. X(4)(B).

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY and COOK, JJ., concur.

PFEIFER, J., concurs separately.

LUNDBERG STRATTON, J., dissents, would grant the peremptory writ, and
concurs in the analysis of the nature of the defect in relators' complaint found in
the concurring opinion of Pfeifer, J.
__________________

PFEIFER, J., concurring. I concur in the judgment denying relators'
motion for peremptory writ and in the dismissal of the cause without prejudice. I

SUPREME COURT OF OHIO
write separately, however, to specify the nature of the defect in relators'
complaint in order to limit its recurrence in this and future cases.

Relators failed to comply with S.Ct.Prac.R. X(4)(B), which requires that
"[a]ll complaints * * * shall be supported by an affidavit of the relator or counsel
specifying the details of the claim." That affidavit must be " `based on personal
knowledge.' " (Emphasis sic.) State ex rel. Sekermestrovich v. Akron (2001), 90
Ohio St.3d 536, 538, 740 N.E.2d 252, 254, quoting State ex rel. Nix v. Cleveland
(1998), 83 Ohio St.3d 379, 384, 700 N.E.2d 12, 17. Relator Shemo's verification
of the complaint does not state that it is based on personal knowledge, and an
affidavit of relator Shemo contained in relators' compendium of exhibits that is
based on his personal knowledge does not cover all of the necessary details of
relators' claim for extraordinary relief in mandamus. Dismissal of relators' case
is thus required. See Sekermestrovich, 90 Ohio St.3d at 538-539, 740 N.E.2d at
254-255; Logan v. Ohio Adult Parole Auth. (1998), 84 Ohio St.3d 1423, 702
N.E.2d 433; Goist v. Seventh Dist. Court (1997), 79 Ohio St.3d 1452, 680 N.E.2d
1024.

Nevertheless, I agree that the dismissal should be without prejudice.
Pursuant to Civ.R. 41(B)(3), as made applicable to this case by S.Ct.Prac.R. X(2),
this court has the discretion to make an involuntary dismissal with or without
prejudice for failure to comply with rules like S.Ct.Prac.R. X(4)(B). See
Pembaur v. Leis (1982), 1 Ohio St.3d 89, 1 OBR 125, 437 N.E.2d 1199. We need
not automatically dismiss with prejudice all original actions that fail to comply
with the affidavit requirement of S.Ct.Prac.R. X(4)(B).

In exercising our discretion here, it is evident that relators' noncompliance
with S.Ct.Prac.R. X(4)(B) did not involve a complete failure to file an affidavit.
Relators did attempt to verify their complaint and additionally filed an affidavit
based on personal knowledge that supported some of the details of their
mandamus claim. And relators' allegations, if ultimately established, specify
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January Term, 2001
respondents' violation of a 1997 common pleas court order that we unanimously
reinstated last year. Shemo v. Mayfield Hts. (2000), 88 Ohio St.3d 7, 722 N.E.2d
1018.

Therefore, under these unique circumstances, relators should not be
forever barred from raising their claim for extraordinary relief based on their
partial noncompliance with S.Ct.Prac.R. X(4)(B). See State ex rel. Montgomery
v. R & D Chem. Co. (1995), 72 Ohio St.3d 202, 204, 648 N.E.2d 821, 823,
quoting DeHart v. Aetna Life Ins. Co. (1982), 69 Ohio St.2d 189, 193, 23 O.O.3d
210, 213, 431 N.E.2d 644, 647 (" `Fairness and justice are best served when a
court disposes of a case on the merits' ").

However, I would further caution relators, as well as other prospective
relators, that future violations of S.Ct.Prac.R. X(4)(B) may be subject to dismissal
with prejudice. See Sekermestrovich, Logan, and Goist. Flagrant, substantial
disregard for court rules justifies a dismissal with prejudice. See Quonset Hut,
Inc. v. Ford Motor Co. (1997), 80 Ohio St.3d 46, 48, 684 N.E.2d 319, 321, citing
DeHart, 69 Ohio St.2d at 193, 23 O.O.3d at 213, 431 N.E.2d at 647. This case
should provide prospective relators with sufficient warning regarding the potential
consequences of not fully complying with the affidavit requirement of
S.Ct.Prac.R. X(4)(B). Much like an umpire giving a pitcher a warning that the
next pitch aimed at a batter's head may lead to his ejection, attorneys are similarly
warned here.
__________________

Kahn, Kleinman, Yanowitz & Arnson Co., L.P.A., Sheldon Berns,
Benjamin J. Ockner and Robert A. Zimmerman, for relators.
__________________
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