COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59590 : JIM'S STEAK HOUSE, INC. : : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION CITY OF CLEVELAND : : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 19, 1991 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 153556 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: NICHOLAS M. DeVITO, ESQ. CRAIG S. MILLER, ESQ. Nicholas M. DeVito & Assoc. Director of Law 1000 Terminal Tower BARBARA R. MARBURGER, ESQ. Cleveland, Ohio 44113 Asst. Director of Law Room 106 - City Hall 601 Lakeside Avenue Cleveland, Ohio 44114 - 1 - HARPER, J.: I. Appellant, Jim's Steak House, Inc. (Jim's) appeals from the judgment of the Cuyahoga County Court of Common Pleas which dismissed its action against appellee, City of Cleveland (city), pursuant to Civ. R. 12(B). For the reasons that follow, we affirm. II. Jim's owns a restaurant, Jim's Steak House, located at 1800 Scranton Road in the Cleveland, Ohio, area known as the "Flats". The Eagle Avenue bridge connects the eastern side of the Cuyahoga River Peninsula with the City of Cleveland. The bridge is used by the public at large for easy access to Jim's Steak House. Sometime in April 1987, the city ordered the closing of the Eagle Avenue bridge for repairs. Jim's alleged that the city failed to provide the public with a "reasonable available means of access" to its restaurant. Jim's further alleged that it had "a reason to believe" that the city's time table for its completion of the bridge is indefinite. Jim's, therefore, demanded a judgment of $300,000 from the city due to a $50,000 per year loss or interference with its business. III. Appellant's sole assignment of error is as follows: "THE TRIAL COURT PREJUDICIALLY ERRED BY GRANTING THE CITY'S RULE 12(B)(6) MOTION TO DISMISS, BECAUSE JIM'S - 2 - STEAK HOUSE COULD ESTABLISH A SET OF FACTS WHICH WOULD ENTITLE IT TO RELIEF UNDER AT LEAST ONE OF THE FOLLOWING LEGAL THEORIES: NEGLIGENCE, TAKING OR NUISANCE. "A. The City Is Liable To Jim's Steak House For Its Unreasonable And Negligent Delay In Effecting Repairs Which Has Caused Jim's Steak House To Suffer Substantial Damages." When presented with a motion to dismiss pursuant to Civ. R. 12(B)(6), the trial court's consideration should only be on the facts as stated on the four corners of the complaint, unless the motion is being converted to a motion for summary judgment, at which time the trial court could look at other matters outside the pleading. See Fraternal Order of Police v. D'Amico (1982), 4 Ohio App. 3d 15. A party's motion to dismiss made pursuant to Civ. R. 12(B)(6) tests only the sufficiency of the plaintiff's complaint and should not be used to terminate litigation upon its merits. Pearl Hunter v. Allright Parking Co. of Cleveland, Inc., et al. (Apr. 30, 1987), Cuyahoga App. No. 53078, unreported. Civ. R. 12(B)(6) only requires a short plain statement of the claim which gives a fair notice to the defendant and states upon which grounds the plaintiff's complaint is based. Kelly v. City of East Cleveland (Oct. 28, 1982), Cuyahoga App. No. 44448, unreported. In the within case, this court is called upon to determine whether appellant's complaint contained a statement of facts which demonstrated entitlement to relief. "For a court to dismiss a complaint for failing to state a claim upon which relief can be granted pursuant to Civ. R. 12(B)(6), it must appear beyond a reasonable doubt that the allegations in the complaint can prove - 3 - no set of facts which when construed most favorably to the plaintiff would entitle him to relief." Zuber v. Ohio Dept. of Insurance (1986), 34 Ohio App. 3d 42. Appellant, in its brief, argues that it alleged sufficient facts upon which relief could be granted. Specifically, appellant argues that it alleged sufficient facts to give appellee notice that its complaint is based on "Negligence, Taking or Nuisance." We disagree. We will decline to review the issues on appellant's brief that were not on its complaint and motion in opposition to appellee's motion to dismiss. Because the trial court was not given the opportunity to address appellant's allegations of "Negligence, Taking or Nuisance", it cannot be raised for the first time on appeal. Thus, we turn to the four corners of appellant's complaint and its motion in opposition to appellee's motion to dismiss. The nucleus of appellant's complaint is as follows: "Defendants failed to provide other reasonable available means of access to the plaintiffs restaurant concurrent with, or subsequent to, the closing of the Eagle Avenue bridge. "Due to the conduct of the defendants, the general public does not have easy or reasonable access to the plaintiffs restaurant. "Plaintiffs have learned or have reason to believe that the defendants will continue with this course of conduct for an indefinite period of time in the future. "The defendants' conduct has created a severe loss or interference with the plaintiffs' business in excess of $50,000.00 per year, and other attendant damages. "WHEREFORE, plaintiffs pray for judgment against the defendants in the amount of THREE HUNDRED THOUSAND - 4 - AND 00/100 DOLLARS ($300,000.00) for their Compensatory damages plus all costs, interest and attorney fees and for such other damages and relief as this Court deems just and equitable." Appellant, in its motion in opposition to appellee's motion to dismiss, made this argument: "Initially, the Plaintiff states that upon construing all allegations in the Plaintiff's Complaint as true the Complaint, in and of itself, sets forth sufficient grounds upon which relief can be granted. Further, Plaintiff specifically directs this court's attention to paragraph 8 of the Complaint. In that paragraph it is alleged: "'Plaintiffs have learned or have reason to believe that the defendants will continue with this course of conduct for an indefinite period of time in the future.'" We fail to determine from the four corners of appellant's complaint, sufficient facts it alleged which constituted the elements of "Negligence, Taking or Nuisance". Appellant's action would have been more understanding if it had invoked the law of equity by filing an equitable injunction, not that the facts plainly call for such action, but it would have been a better legal theory. Having failed to allege any set of facts on its complaint which when proved can entitle it to recovery (Conley v. Gibson (1957), 355 U.S. 41 followed); O'Brien v. University Community Tenants Union (1975), 42 Ohio St. 2d 242, appellant's appeal fails. Appellant's assignment of error is overruled. Judgment affirmed. - 5 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. ANN McMANAMON, P.J., and LEO SPELLACY, J., CONCUR. SARA J. HARPER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .