COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 74906 ACCELERATED DOCKET RICHARD A. BIAS : : JOURNAL ENTRY Plaintiff-appellant : : AND vs. : : OPINION KATHLEEN L. HARRISON, ET AL. : : PER CURIAM Defendant-appellees : : : DATE OF ANNOUNCEMENT : DECEMBER 3, 1998 OF DECISION : _____________________ : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CV-353418 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: RICHARD A. BIAS, PRO SE 8105 Aetna Road Cleveland, OH 44105 For defendant-appellees: ELLYN T. TAMULEWICZ Licata & Associates 6480 Rockside Woods Blvd., #390 Independence, OH 44131 PER CURIAM: -2- This case came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Local Rule 25, the record from the Cuyahoga County Court of Common Pleas, and the briefs of counsel. Plaintiff-appellant Richard Bias, proceeding pro se, argues the trial court erred in failing to give him notice of its intention to dismiss his case pursuant to Civ.R. 41(B)(1). Defendant-appellee Kathleen Harrison, et al., maintains the trial court properly dismissed the case pursuant to Civ.R. 12(B)(6) and thus notice was not required. The record reveals defendant is a licensed attorney in Ohio who represented plaintiff's wife in a domestic relations action. Plaintiff filed a complaint against defendant based on legal malpractice alleging defendant filed frivolous motions to terminate visitation with his minor daughter and as a result he suffered the loss of his rightful companionship with his daughter and incurred legal and psychological expenses. Defendant responded by filing a Civ.R. 12(B)(6), motion to dismiss for failure to state a claim. Defendant argued she never represented plaintiff thereby nullifying any legal malpractice claim and the domestic relations court has jurisdiction over the action, not the court of common pleas. On June 22, 1998, the trial court granted defendant's motion to dismiss and issued a journal entry stating: Defendants Kathleen Harris, Louis J. Licata and Licata and Associate Co., L.P.A.'s combined `Motion to Dismiss for Failure to State a Claim' is unopposed, well taken and is granted. Even after taking all material allegations in the Complaint as true and construing all reasonable inferences in favor of Plaintiff, it neverthe- -3- less appears beyond doubt from the Complaint that Plaintiff can prove no set of facts entitling him to recovery. Accord O'Brienv. University Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242. It is so ordered. FINAL. The next day plaintiff filed a Motion for Leave to Amend Complaint. On July 14, 1998, the trial court denied plaintiff's motion to amend. A week later, plaintiff timely filed his notice of appeal. In his single assignment of error, plaintiff argues the trial court abused its discretion and committed prejudicial and revers- ible error by failing to notify him of its intention to dismiss his case as required by Civ.R. 41(B)(1). Plaintiff contends such a dismissal contravenes established case law which favors deciding a case on its merits rather than on a technical error. Defendant did not file a Civ.R. 41(B)(1) involuntary motion to dismiss rather she filed a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim. The actual motion is titled DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. The arguments within the brief assert that defendant can prove no set of facts which would entitle him to relief. Therefore, we must treat plaintiff's motion as a Civ.R. 12(B)(6) motion and determine whether a trial court has to give the non-movant notice of its intent to dismiss a claim based on a Civ.R. 12(B)(6) defense. Local Rule 11(C) of the Court of Common Pleas, Cuyahoga County states [e]ach party opposing the motion, except a motion for summary judgment, shall serve and file within seven (7) days thereafter, a brief written statement of reasons in opposition to -4- the motion and a list of citations of the authorities which are relied upon. On May 9, 1998, defendant filed her 12(B)(6) motion to dismiss. Over a month later, on June 22, 1998, the trial court granted defendant's motion and dismissed the case. Thus, plaintiff had more than seven days to respond to defendant's motion. We realize plaintiff was proceeding pro se but the rules make no distinction between counseled and uncounseled parties. Therefore, more than thirty (30) days was more than ample time for plaintiff to determine he had to respond to the motion or seek counsel to instruct him how to proceed. Moreover, neither case law nor the language of Civ.R. 12 reveals a trial court has to give the non- movant notice of its intent to dismiss a case pursuant to the rule. Because plaintiff failed to respond to defendant's Civ.R. 12(B)(6) motion to dismiss in the allotted seven (7) day period or file for an extension of time to respond, we find the trial court did not err in granting defendant's motion. Accordingly, plain- tiff's sole assignment of error is overruled. Judgment affirmed. -5- It is ordered that appellees recover of appellant their 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 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. JOHN T. PATTON, PRESIDING JUDGE KENNETH A. ROCCO, JUDGE JAMES D. SWEENEY, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .