Opinion
No. 73-570
Decided May 15, 1974.
Criminal law — Exhibition of obscene motion picture film — Nuisances — Action to abate — R.C. 3767.01 et seq. — Remedies — Forfeiture of receipts not permitted — Lessor not under mandatory duty to cancel lease — R.C. 3767.10 — Defenses — Motion to dismiss — Civ. R. 12.
APPEAL from the Court of Appeals for Hamilton County.
On November 17, 1971, appellant instituted this nuisance abatement action under R.C. 3767.01 et seq. against the Cinema X Theater, the manager and the corporate operator of the theater, certain individuals and corporations holding distribution rights in the films exhibited at the theater, and appellee, the owner and lessor of the real property upon which the theater was located. Appellant's petition alleges that obscene motion pictures were being exhibited at the theater and that the defendants were thus maintaining a nuisance in violation of the obscenity and nuisance laws of the state.
On November 24, 1971, hearings were begun in the Court of Common Pleas on appellant's motion for a temporary injunction. At that time, appellee filed a motion to dismiss. Appellee contended that, as to her, the petition failed to state a claim upon which relief could be granted. The trial court deferred ruling on appellee's motion and proceeded with the hearing on the preliminary injunction issue.
In its opinion of January 12, 1972, the trial court concluded that the theater was a nuisance, and issued a temporary injunction against its continuance. The court made the injunction permanent on October 30, 1972. The court further ordered the forfeiture of box office receipts received from the first week of October 1971, to the closing of the theater on January 12, 1972, and the forfeiture of payments received by appellee as rent during the same period. Also, on October 30, 1972, the trial court overruled the motion to dismiss filed by appellee in November 1971.
Of the defendants, only appellee appealed. The Court of Appeals, reversing, found that the trial court had erred in deferring determination of appellee's motion to dismiss. The court also held that there was insufficient evidence adduced to establish appellee's knowledge of the maintenance of the nuisance by her lessees and that an allegation of such scienter was necessary to the statement of a cause of action against her. Finally, the Court of Appeals concluded that appellee was under no duty to cancel the lease with her tenants and that the trial court erred in ordering a forfeiture of the rental payments received by appellee prior to the time a nuisance was found to exist.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Mr. James J. Clancy, Mr. Louis F. Gilligan and Mr. A.S. Johnston, III, for appellant.
Messrs. Aronoff, Rosen Lerner and Mr. Irving H. Rosen, for appellee.
Appellant contends that when a trial court determines that a theater is exhibiting obscene films, and is therefore a nuisance under R.C. 3767.01 et seq., the court may order a forfeiture of the rental payments received by the lessor of the premises on which the theater is located for the period during which such nuisance was maintained.
In State, ex rel. Ewing, v. Without A Stitch (1974), 37 Ohio St.2d 95, 307 N.E.2d 911, this court held that R.C. 3767.01 et seq. do not permit the forfeiture of box office receipts derived from the exhibition of obscene motion pictures. Those sections also do not authorize the forfeiture of rental payments received by the lessor of the premises in which the nuisance was conducted.
Appellant next argues that, under R.C. 3767.10, appellee was under a mandatory duty to cancel her lease when she received a copy of the petition to abate the premises as a nuisance, or was otherwise put on notice that her lessees were using the premises to conduct a nuisance.
R.C. 3767.10 provides:
"If a tenant or occupant of a building or tenement, under a lawful title, uses such place for the purposes of lewdness, assignation, or prostitution, such use makes void the lease or other title under which he holds, at the option of the owner, and, without any act of the owner, causes the right of possession to revert and vest in such owner * * *." (Emphasis added.)
The language of the statute does not contemplate that a mandatory duty of cancellation is imposed upon the lessor. The obvious effect of R.C. 3767.10 is to confer upon a lessor the "option" to cancel his lease upon a proper determination that the premises are being used for the purpose of conducting a nuisance.
The Court of Appeals held that the trial court erred when it failed to rule upon appellee's motion to dismiss before the trial. That motion was based upon the ground that appellant's petition failed to state a claim against appellee upon which relief could be granted. Civ.R. 12(B)(6) specifically provides that a defense based upon that ground may be made by motion. Civ.R. 12(D), which prescribes the time for hearing and determination of a Civ.R. 12(B) (6) motion to dismiss, provides:
"The defenses specifically enumerated (1) to (7) in subdivision (B) of this rule, whether made in a pleading or by motion * * * shall be heard and determined before trial on application of any party."
Thus, Civ.R. 12(D) withholds from the trial court the power to defer hearing and determination of a Civ.R. 12 (B)(6) motion to dismiss until after commencement of trial. "On application of any party," the trial court must hear and determine a motion to dismiss for failure to state a claim upon which relief can be granted, before proceeding to the trial of the cause.
Additionally, the motion to dismiss, of itself, represents a request for a ruling of the court and it need not be reiterated by subsequent motions. In the case at bar, appellee made an "application," within the meaning of Civ.R. 12(D), when she filed her motion and orally requested the court to rule upon the merits thereof.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.