Petrey v. Simon

447 N.E.2d 1285, 4 Ohio St. 3d 154, 4 Ohio B. 396, 1983 Ohio LEXIS 685

• Court: Ohio Supreme Court
• Decided: April 20, 1983
• Docket: No. 82-270
• Status: Published

Opinions

Locher, J.

Civ. R. 12(B) provides, in part: “When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56.” In this case, the court of common pleas expressly relied on appellee’s affidavit. The court of appeals, therefore, correctly concluded that the disposition of this case had actually been a summary judgment rather than a dismissal.

I

Civ. R. 12(B) further provides: “All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56.” Appellant argues, however, that he did not have a “reasonable opportunity to present” pertinent materials, because the court of common pleas did not notify him that it would convert appellee’s motion to dismiss into a motion for summary judgment. We agree. “If the conversion occurs unexpectedly, the non-moving party is left at the disadvantage of being unprepared to respond; hence notice is required. * * * The primary vice of unexpected conversion to summary judgment is that it denies the surprised party sufficient opportunity to discover and bring forward factual matters which may become relevant only in the summary judgment, and not the dismissal, context.” (Citation omitted.) Portland Retail Druggists Assn. v. Kaiser Found. Health Plan (C.A. 9, 1981), 662 F. 2d 641, 645, analyzing comparable provisions in Fed. R. Civ. P. 12(b).¹

A comparison of the standard for reviewing motions to dismiss for failure to state a claim with that for reviewing motions for summary judgment demonstrates the importance of providing notice to the parties. “In order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted (Civ. R. 12[B][6]), it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery. (Conley v. Gibson [1957], 355 U.S. 41, followed.)” O’Brien v. University Community Tenants Union (1975), 42 Ohio St. 2d 242 [71 O.O.2d 223].

Although the court considers the sufficiency of the complaint before ruling on a Civ. R. 12(B)(6) motion, a motion for summary judgment requires the court to examine the “evidence.” See Civ. R. 56(C); Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 327 [4 O.O.3d 466]. “* * * When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” Civ. R. 56(E). The risk of judgment on the merits is a severe consequence. Parties deserve a reasonable opportunity to demonstrate whether a genuine issue of fact exists. Notice is a negligible burden whose virtues outweigh the “vice of unexpected conversion.”

II

Civ. R. 12(B) also requires that “the motion shall be * * * disposed of as provided in Rule 56.” Civ. R. 56(C) provides, in part: “The motion shall be served at least fourteen days before the time fixed for hearing.” Commentators on the comparable provision in Fed. R. Civ. P. 56² have noted the importance of this requirement: “* * * In theory, the additional time ought to produce a well-prepared and complete presentation on the motion to facilitate its disposition by the court. In addition, since opposition to a summary judgment motion often is a difficult task, usually involving preparation of both legal and factual arguments as well as affidavits, and since the results of failure are drastic, it is felt that the additional time is needed to assure that the summary judgment process is fair.” 10A Wright, Miller & Kane, Federal Practice and Procedure (1983) 6-7, Section 2719. The fairness of this additional time is no less important when the motion for summary judgment is a converted motion to dismiss for failure to state a claim.

Accordingly, we reverse the judgment of the court of appeals and remand the cause for further proceedings consistent with this opinion.³

Judgment reversed and cause remanded.

Sweeney, Holmes and C. Brown, JJ., concur. Celebrezze, C.J., and W. Brown, J., dissent. J.P. Celebrezze, J., not participating.

1 Our holding today coincides with those of most of the federal circuit courts of appeals. See, e.g., Gould, Inc. v. Chafee (C.A.D.C. 1971), 450 F. 2d 667, 669; Dale v. Hahn (C.A. 2, 1971), 440 F. 2d 633, 638; Crown Central Petroleum Corp. v. Waldman (C.A. 3, 1980), 634 F. 2d 127, 129; Davis v. Zahradnick (C.A. 4, 1979), 600 F. 2d 458, 460; Oaxaca v. Roscoe (C.A. 5, 1981), 641 F. 2d 386, 392; Kistner v. Califano (C.A. 6, 1978), 579 F. 2d 1004, 1006; Chicago-Midwest Meat Assn. v. Evanston (C.A. 7, 1978), 589 F. 2d 278, 282, certiorari denied (1979), 442 U.S. 946; Winfrey v. Brewer (C.A. 8, 1978), 570 F. 2d 761, 764; Portland Retail Druggists Assn. v. Kaiser Found. Health Plan (C.A. 9, 1981), 662 F. 2d 641, 645; Franklin v. Oklahoma City Abstr. & Title Co. (C.A. 10, 1978), 584 F. 2d 964, 967; Newman Oil Co. v. Atlantic Richfield Co. (Temp. Emer. Ct. App. 1979), 597 F. 2d 275, 278, certiorari denied (1979), 444 U.S. 842. Likewise, several courts of last resort have construed similar provisions as requiring notice. See, e.g., Hales v. First Natl. Bank of Mobile (Ala. 1980), 380 So. 2d 797, 799; Bernay v. Sales (D.C. App. 1981), 435 A. 2d 398, 402, at fn. 4; Nadeau v. State (Me. 1978), 395 A. 2d 107, 115; White v. Peabody Constr. Co. (1982), 386 Mass. 121, 434 N.E. 2d 1015, 1018-1019; State, ex rel. Dept. of Health and Environ. Sciences, v. Livingston (1976), 169 Mont. 431, 435-436, 548 P. 2d 155; Bekins Bar V Ranch v. Utah Farm Prod. Credit Assn. (Utah 1978), 587 P. 2d 151, 152; Bennett Estate v. Travelers Ins. Co. (1980), 138 Vt. 189, 191, 413 A. 2d 1208; Kimbley v. Green River (Wyo. 1982), 642 P. 2d 443, 445. Two reported Ohio cases have the same holding. See W.D.G., Inc. v. Mutual Mfg. & Supply Co. (Franklin App. 1976), 5 O.O. 3d 397, 399; and Fraternal Order of Police v. D’Amico (1982), 4 Ohio App. 3d 15.

2 Our conclusion regarding the application of the time requirement in Civ. R. 56(C) is the same as that reached by several federal circuit courts. See, e.g., Crown Central, supra, at 129; Oaxaca, supra, at 391-392; Dayco Corp. v. Goodyear Tire & Rubber Co. (C.A. 6, 1975), 523 F. 2d 389, 392; Winfrey, supra, at 764; Adams v. Campbell Cty. School Dist. (C.A. 10, 1973), 483 F. 2d 1351, 1353. Likewise, some state courts of last resort have answered this question similarly. See, e.g., Hales, supra, at 799; Nadeau, supra, at 115-116.

3 We express no opinion, however, as to: (1) whether appellee acted with immunity from suit by appellant, (2) whether the entry of summary judgment by the trial court was appropriate on the merits, and (3) whether dismissal under Civ. R. 12(BX6) would be appropriate under the present posture of this case.

Rather, we note that appellant specifically raised the issue of notice regarding the conversion of a motion to dismiss to a motion for summary judgment at page 16 of his brief in this court: “Rule 12(BX6) of the Ohio Rules of Civil Procedure, places an affirmative duty upon the Court in matters where a Motion to Dismiss for failure to state a claim is made, and where such Motion presents ‘matters outside the pleading,’ to ‘consider only such matters outside the pleadings as are specifically enumerated in Rule 56.’ Further, all parties are to be given reasonable opportunity to present materials made pertinent to the Motion by Rule 56. This requires advance notice that the Motion will be treated as a Motion for Summary Judgment under Rule 56 (see W.D.G., Inc. v. Mutual Manufacturing and Supply Company (1976), 5 O.O. 3d 397; Adams v. Campbell County School District (U.S.C.A. 10, 1973), 483 F. 2d 1351, 1353, interpreting the requirements of the Federal Rules of Civil Procedure, Rule 12(b) and holding that simple presence of Affidavits does not constitute notice that a Rule (b)(6) Motion will be treated as a Motion for'Summary Judgment because ‘under Rule 12(b)(6) the Court could have excluded the Affidavits from consideration.’ ” Appellee responded to these assertions with his fourth proposition of law and accompanying arguments at pages 23(a) et seq. Furthermore, the court of appeals dealt in its opinion at pages 7-8 with the relationship of Civ. R. 12(B) and 56(C) on which we base this decision.