COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67774 ROBERT G. GIRTS : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION HEATHER RAAF, M.D., ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT : OF DECISION : MAY 4, 1995 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 272614 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANTS-APPELLEES: Robert G. Girts, Pro Se Stephanie Tubbs Jones Inmate #274-569 Cuyahoga County Prosecutor Trumbull Correctional Anthony Zampedro, Institution Assistant Prosecuting Attorney P. O. Box 901 The Justice Center Leavittsburg, Ohio 44430-0901 1200 Ontario Street Cleveland, Ohio 44113 -2- HARPER, J.: Diane Girts ("the decedent") died on September 2, 1992. Heather Raaf, M.D., a Deputy Coroner for Cuyahoga County, performed the decedent's autopsy on September 3, 1992, and thereafter listed "could not be determined" as her manner of death on a December 23, 1992 Supplemental Death Certificate. The manner of death was changed to "homicide" on February 9, 1993 when Dr. Raaf and Elizabeth Balraj, M.D., the Cuyahoga County Coroner, allegedly received calls, letters and visits from third parties, including members of the Parma Police Department. The Cuyahoga County Grand Jury indicted defendant-appellant, Robert Girts, on February 9, 1993 for the aggravated murder, R.C. 2903.01, of the decedent. The matter proceeded to trial on May 28, 1993, and the jury found appellant guilty of the charged offense. Appellant appealed his conviction to this court; our review was limited to whether the state denied appellant a fair trial in cross-examining him. We reversed and remanded the action for a new trial in State v. Girts (July 28, 1994), Cuyahoga App. No. 65750, unreported, finding that the trial court abused its discretion by failing to grant appellant's motion for a mistrial. The Supreme Court of Ohio denied jurisdiction of appellant's appeal to that court on February 3, 1995. Meanwhile, appellant commenced this declaratory action against defendants-appellees, Drs. Balraj and Raaf, on June 20, 1994 in the Court of Common Pleas of Cuyahoga County. Appellant sought a change in the "manner of death" of Diane Girts from "homicide" to -3- "could not be determined" pursuant to R.C. 313.19 and 2721.02. He charged that the prior change from "could not be determined" to "homicide" occurred without "further scientific, laboratory, or medical tests." The trial court dismissed the action without opinion on August 4, 1994. This appeal followed with appellant claiming as error: PLAINTIFF WAS DENIED SUBSTANTIVE AND PROCEDURAL DUE PROCESS WHEN THE TRIAL COURT DISMISSED PLAINTIFF'S ORIGINAL ACTION ASKING FOR A DECLARATORY JUDGMENT In his sole assignment of error, appellant submits that the trial court's dismissal of his declaratory action denied him due process. Specifically, he argues that once he was notified by the trial court regarding a scheduled Case Management Conference, the trial court's dismissal of the action denied him substantive and procedural due process because the defendants never filed a Civ.R. 12(B)(6) motion to dismiss. Civ.R. 12(B) reads in pertinent part: (B) How presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader may be made by motion: *** (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19 or Rule 19.1. *** (Emphasis added.) This rule requires a defendant to assert the defense of failure to state a claim for which relief can be granted either in the responsive pleading or, at the option of the pleader, by motion. See, Bridges v. Natl. Engineering & Contracting Co. (1990), 49 Ohio St.3d 108, 111; McGlone v. Grimshaw (1993), 86 Ohio -4- App.3d 279, 284. Herein, the defendants raised several affirmative defenses in their answer, including Civ.R. 12(B)(6) and (7) defenses. The trial court, therefore could rule on defendants' request for dismissal because defendants preserved their objection to the sufficiency of appellant's complaint. See, Bridges; McGlone. Moreover, appellant filed a reply to the defendants' "motion to dismiss" on July 29, 1994 prior to the trial court's dismissal of his complaint. Assuming arguendo, that the trial court should not have dismissed the case since defendants failed to file a written motion to dismiss, appellant was not denied due process because he responded to the "motion." See, McGlone, Judge Stephenson concurring (even if Civ.R. 12(B)(1) through (7) defenses included in responsive pleading, Civ.R. 12(D) still requires a motion unless parties are given notice of intention to dismiss and an opportunity to respond.) A trial court must presume the truth of all factual allegations in the complaint and must make all reasonable inferences in favor of the nonmoving party when it rules on a Civ.R. 12(B)(6) motion to dismiss a complaint for failure to state a claim upon which relief can be granted. Perez v. Cleveland (1993), 66 Ohio St.3d 397; Mitchell v. Lawson Milk Co. (1989), 40 Ohio St.3d 190; Phung v. Waste Mgt., Inc. (1986), 23 Ohio St.3d 100. In order for a trial court to grant such a motion, it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recover. See, York v. Ohio State -5- Hwy. Patrol (1991), 60 Ohio St.3d 143; O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242; Bridges. The court nonetheless need not assume the truth of conclusions which are not supported by factual allegations. Mitchell. A reviewing court must independently review the complaint to determine if dismissal is appropriate when considering the propriety of a Civ.R. 12(B)(6) dismissal. Civ.R. 12(B)(6) rulings are after all based upon conclusions of law rather than findings of fact. See, State ex rel. Drake v. Athens Cty. Bd. of Elections (1988), 39 Ohio St.3d 40. A reviewing court, therefore, need not defer to a trial court's ruling in Civ.R. 12(B)(6) cases. In the present case, we stress that our review is limited to appellant's complaint for declaratory action. As stated supra, appellant asserts that the decedent's cause of death was changed from "could not be determined" to "homicide" without further analysis. He submits that this "homicide" determination caused him to suffer from adverse legal consequences regarding his conviction for murder, and will cause him the same consequences in a wrongful death action filed by the decedent's brother on September 3, 1993. Basically, appellant suggests that no evidence supports the "homicide" manner of death listing, but the listing prevents a potential juror from determining that the decedent, e.g., committed suicide. R.C. 313.19 states: The cause of death and the manner and mode in which the death occurred, as delivered by the coroner and incorporated in the coroner's verdict and in the death -6- certificate filed with the division of vital statistics, shall be the legally accepted manner and mode in which such death occurred, and the legally accepted cause of death, unless the court of common pleas of the county in which the death occurred, after hearing, directs the coroner to change his decision as to such cause and manner and mode of death. The Supreme Court of Ohio held in Vargo v. Travelers Ins. Co. (1987), 34 Ohio St.3d 27, paragraph two of the syllabus, that R.C. 313.19 does not require the acceptance of a coroner's factual findings concerning the manner, mode and cause of a decedent's death as a matter of law. The statute expressly allows for an alteration of the cause, manner and mode of death by a court of common pleas. The Vargo court identified declaratory judgment as a proper avenue to challenge a coroner's findings pursuant to R.C. 313.19. Vargo, 29-30, fn. 3; see, also, State ex rel. Blair v. Balraj (1994), 69 Ohio St.3d 310; Perez. In the instant case, appellant thus correctly asserts that declaratory judgment is a proper avenue to challenge a coroner's findings pursuant to R.C. 313.19. However, simply because he is correct in this assertion, it does not directly follow that he was entitled to either a declaration of his rights or, more specifically, the alteration of the decedent's cause of death. The Supreme Court of Ohio in Perez recognized that the appellants submitted a real and justiciable controversy under R.C. 313.19. Perez, 399. First, the reputation of appellants, as parents and physicians, were "sullied" by the coroner's determination of their infant daughter's death. Second, the appellants offered sworn testimony of three board-certified -7- pathologists which directly contradicted the coroner's determination of their child's cause of death. Id. The Perez case is quite distinguishable from the case presented in this appeal. Appellant offers no support for his allegation that the decedent's cause of death was changed without further scientific study. His conclusion is not supported by any factual allegations; we, therefore, need not accept it. Mitchell. Moreover, appellant does not submit any evidence which demonstrates the impropriety of the defendants' actions unlike in Perez. A "coroner's factual determinations concerning the manner, mode and cause of death, as expressed in the coroner's report and the death certificate, create a nonbinding rebuttable presumption concerning such facts in the absence of competent, credible evidence to the contrary." Vargo, paragraph one of the syllabus (construing R.C. 313.19). Appellant's complaint for declaratory judgment fails to even allege any factual allegations which would support his claim. Accordingly, the trial court properly dismissed the complaint pursuant to Civ.R. 12(B)(6). York; O'Brien; Vargo. Appellant's assignment of error is overruled. Judgment affirmed. -8- It is ordered that appellees recover of appellant 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 Cuyahoga County Court of Common Pleas 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. PATRICIA BLACKMON, P.J., AND JOSEPH J. NAHRA, J., CONCUR JUDGE SARA J. HARPER N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza-tion, .