Opinion
No. 87-924
Submitted July 27, 1988 —
Decided October 5, 1988.
Mandamus — Dismissal of complaint by court of appeals — Findings of fact and conclusions of law need not be prepared by court, when.
APPEAL from the Court of Appeals for Athens County, No. 1352.
Relator-appellant, Wilbur Drake, filed a complaint in mandamus in the court of appeals seeking essentially to require respondents-appellees to place a referendum issue on the ballot in regard to the creation of Trimble Township Wastewater Treatment District. The court granted respondents' Civ. R. 12(B)(6) motions to dismiss for failure to state a claim upon which relief can be granted on February 13, 1987. Appellant then filed a motion to reconsider on February 27, 1987, and a motion for separate findings of fact and conclusions of law on March 18, 1987. The motions were denied on March 12, 1987, and on April 9, 1987, respectively.
This cause is now before this court upon an appeal as of right.
Wilbur Drake, pro se. Michael Ward, prosecuting attorney, for appellee Athens County Board of Elections.
Lavelle, Carson, Lavelle Lavelle Co., L.P.A., and Frank A. Lavelle, for appellee Trimble Township Wastewater Treatment District.
Relator appeals the denial of his motion for separate findings of fact and conclusions of law with respect to the dismissal of his complaint in mandamus.
Initially, we note that relator's motion was filed out of rule. Civ. R. 52 requires a request for findings of fact and conclusions of law to be made "* * * before the journal entry of a final order, judgment, or decree has been approved by the court in writing and filed with the clerk of the court for journalization, or not later than seven days after the party filing the request has been given notice of the court's announcement of its decision * * *."
Relator's motion requesting findings of fact and conclusions of law was filed thirty-three days after his complaint in mandamus was dismissed. Clearly, the court of appeals could have dismissed the motion pursuant to Civ. R. 52 as being untimely filed. However, the court of appeals overruled the motion.
We, now, consider the merits of Drake's appeal as of right. When a court dismisses a complaint pursuant to Civ. R. 12(B)(6), it makes no factual findings beyond its legal conclusion that the complaint fails to state a claim upon which relief can be granted. Thus, the court does not assume the role of factfinder and has no duty to issue findings of fact and conclusions of law. Paramount Supply Co. v. Sherlin Corp. (1984), 16 Ohio App.3d 176, 180, 16 OBR 186, 190, 475 N.E.2d 197, 202. See, also, Civ. R. 52.
As relator's complaint in mandamus was dismissed pursuant to Civ. R. 12(B)(6), the court of appeals was not required to file separate findings of fact and conclusions of law when dismissing his complaint in mandamus.
The judgment is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.