[Cite as Smith v. Lurie, 2012-Ohio-499.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97360
SAMUEL L. SMITH D.B.A. SMITH LIMOUSINE & TRANSPORTATION CO. PLAINTIFF-APPELLANT
vs.
JOYCE LURIE DEFENDANT-APPELLEE
JUDGMENT: REVERSED AND REMANDED
Civil Appeal from the Lyndhurst Municipal Court Case No. 10 CVF 00944
BEFORE: Keough, J., Boyle, P.J., and Sweeney, J.
RELEASED AND JOURNALIZED: February 9, 2012 ATTORNEY FOR APPELLANT
Robert M. Fertel Zashin & Rich Co., LPA 55 Public Square, 4th Floor Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Kenneth J. Fisher Dennis Nevar Kenneth J. Fisher Co., LPA 2100 Terminal Tower 50 Public Square Cleveland, OH 44113-2204 KATHLEEN ANN KEOUGH, J.:
{¶ 1} Plaintiff-appellant, Samuel L. Smith d.b.a. Smith Limousine &
Transportation Co. (“Smith”), appeals the trial court’s decision granting the motion to
dismiss filed by defendant-appellee, Joyce Lurie (“Lurie”). For the reasons that follow,
we reverse and remand.
{¶ 2} In 2010, Smith filed an amended complaint against Lurie seeking payment
for transportation services rendered to Lurie. The complaint alleged causes of action for
breach of contract, action on an account, unjust enrichment and/or quantum meruit, and
promissory and/or equitable estoppel. In Lurie’s amended answer, “she promised to
compensated [sic] [Smith] for services provided as alleged * * * but states the invoiced
amounts do not accurately reflect the services actually provided.” Included in the
amended answer, Lurie listed as an affirmative defense, “failure to state a claim upon
which relief may be granted.”
{¶ 3} The trial court coordinated a case management schedule with the parties,
establishing the dispositive motion deadline as March 15, 2011. On April 14, 2011,
Lurie requested leave from the trial court to file a Motion to Dismiss pursuant to Civ.R.
12(B)(6). Over objection, the trial court granted Lurie leave. The motion to dismiss
asserted that Smith was not legally permitted to operate a motor vehicle for the
transportation of persons on the public highways of the state of Ohio because Smith was
not properly registered with the Public Utilities Commission of Ohio (“PUCO”) pursuant
to R.C. 4923.04. In support of this argument, Lurie attached purported email correspondence between her attorney and an individual from the PUCO indicating that
the PUCO Motor Carrier Section had no record of the companies “Samuel L. Smith” and
“Smith Limousine & Transportation Company.”
{¶ 4} After exhaustive briefing and a hearing on the motion, the trial court
granted Lurie’s motion and dismissed Smith’s complaint. Smith appeals this decision
raising five assignments of error.
{¶ 5} In his first assignment of error, Smith argues that the trial court erred in
granting Lurie’s motion to dismiss because the motion for leave was filed after the trial
court’s deadline for dispositive motions and failed to allege any facts supporting
excusable neglect under Civ.R. 6(B)(2).
{¶ 6} The decision to grant or deny a motion for leave to file a dispositive motion
will not be disturbed absent an abuse of discretion. See Slack v. Cropper, 143 Ohio
App.3d 74, 83, 757 N.E.2d 404 (11th Dist.2001). As such, we will not reverse the trial
court’s decision granting Lurie’s motion for leave unless we determine the trial court’s
decision was unreasonable, arbitrary, or unconscionable and not merely an error of law or
judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 7} In this case, the trial court did not abuse its discretion in granting Lurie
leave to file her motion to dismiss. The motion was based on newly discovered evidence
that raised a possible dispositive issue to the case. In the interest of judicial economy, we
find that the trial court acted within its discretion.
{¶ 8} Accordingly, Smith’s first assignment of error is overruled. {¶ 9} In his second assignment of error, Smith argues that the trial court erred in
granting Lurie’s Civ.R. 12(B)(6) motion to dismiss based on a document containing
matters not included in the complaint.
{¶ 10} We review the trial court’s decision granting a motion to dismiss de novo.
Hughes v. Miller, 181 Ohio App.3d 440, 2009-Ohio-963, 909 N.E.2d 642, ¶ 17 (8th
Dist.). A Civ.R. 12(B)(6) motion to dismiss a complaint for failure to state a claim for
relief tests the sufficiency of the complaint. State ex rel. Horwitz v. Cuyahoga Cty.
Court of Common Pleas, Probate Div., 65 Ohio St.3d 323, 325, 603 N.E.2d 1005 (1992).
In order for a court to dismiss a complaint under Civ.R. 12(B)(6), it must appear beyond
doubt that the moving party can prove no set of facts in support of his claim that would
entitle him to relief. Taylor v. London, 88 Ohio St.3d 137, 139, 2000-Ohio-278, 723
N.E.2d 1089, citing O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242,
327 N.E.2d 753 (1975), syllabus.
{¶ 11} When reviewing a motion to dismiss for failure to state a claim, a court
must accept the facts stated in the complaint as true and must construe all reasonable
inferences in favor of the nonmoving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d
190, 192, 532 N.E.2d 753 (1988). The court may not consider “matters outside the
pleadings” unless the court converts the motion to dismiss into a motion for summary
judgment. Civ.R. 12(B) provides that, “[w]hen 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.” “The matters outside the pleadings
are specifically enumerated in Rule 56,” and all parties must be “given reasonable
opportunity to present all materials made pertinent to such a motion by Rule 56.” Civ.R.
12(B); S. Christian Leadership Conference v. Combined Health Dist., 191 Ohio App.3d
405, 2010-Ohio-6550, 946 N.E.2d 282, ¶ 30 (2d Dist.).
{¶ 12} In this case, Lurie moved to dismiss Smith’s amended complaint pursuant
to Civ.R. 12(B)(6), failure to state a claim upon which relief can be granted.
Specifically, Lurie argued that Smith was not a registered PUCO motor carrier, and
therefore, not entitled to compensation as a motor carrier. In support of this argument,
Lurie attached to her motion a purported email from a PUCO representative stating that it
had no record of Smith as a registered motor carrier. Because this email was the only
document supporting Lurie’s assertion that Smith was not a registered PUCO motor
carrier and thus unable to assert his cause of action, it is clear that the trial court
considered matters outside the amended complaint in determining Smith’s motion to
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[Cite as Smith v. Lurie, 2012-Ohio-499.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97360
SAMUEL L. SMITH D.B.A. SMITH LIMOUSINE & TRANSPORTATION CO. PLAINTIFF-APPELLANT
vs.
JOYCE LURIE DEFENDANT-APPELLEE
JUDGMENT: REVERSED AND REMANDED
Civil Appeal from the Lyndhurst Municipal Court Case No. 10 CVF 00944
BEFORE: Keough, J., Boyle, P.J., and Sweeney, J.
RELEASED AND JOURNALIZED: February 9, 2012 ATTORNEY FOR APPELLANT
Robert M. Fertel Zashin & Rich Co., LPA 55 Public Square, 4th Floor Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Kenneth J. Fisher Dennis Nevar Kenneth J. Fisher Co., LPA 2100 Terminal Tower 50 Public Square Cleveland, OH 44113-2204 KATHLEEN ANN KEOUGH, J.:
{¶ 1} Plaintiff-appellant, Samuel L. Smith d.b.a. Smith Limousine &
Transportation Co. (“Smith”), appeals the trial court’s decision granting the motion to
dismiss filed by defendant-appellee, Joyce Lurie (“Lurie”). For the reasons that follow,
we reverse and remand.
{¶ 2} In 2010, Smith filed an amended complaint against Lurie seeking payment
for transportation services rendered to Lurie. The complaint alleged causes of action for
breach of contract, action on an account, unjust enrichment and/or quantum meruit, and
promissory and/or equitable estoppel. In Lurie’s amended answer, “she promised to
compensated [sic] [Smith] for services provided as alleged * * * but states the invoiced
amounts do not accurately reflect the services actually provided.” Included in the
amended answer, Lurie listed as an affirmative defense, “failure to state a claim upon
which relief may be granted.”
{¶ 3} The trial court coordinated a case management schedule with the parties,
establishing the dispositive motion deadline as March 15, 2011. On April 14, 2011,
Lurie requested leave from the trial court to file a Motion to Dismiss pursuant to Civ.R.
12(B)(6). Over objection, the trial court granted Lurie leave. The motion to dismiss
asserted that Smith was not legally permitted to operate a motor vehicle for the
transportation of persons on the public highways of the state of Ohio because Smith was
not properly registered with the Public Utilities Commission of Ohio (“PUCO”) pursuant
to R.C. 4923.04. In support of this argument, Lurie attached purported email correspondence between her attorney and an individual from the PUCO indicating that
the PUCO Motor Carrier Section had no record of the companies “Samuel L. Smith” and
“Smith Limousine & Transportation Company.”
{¶ 4} After exhaustive briefing and a hearing on the motion, the trial court
granted Lurie’s motion and dismissed Smith’s complaint. Smith appeals this decision
raising five assignments of error.
{¶ 5} In his first assignment of error, Smith argues that the trial court erred in
granting Lurie’s motion to dismiss because the motion for leave was filed after the trial
court’s deadline for dispositive motions and failed to allege any facts supporting
excusable neglect under Civ.R. 6(B)(2).
{¶ 6} The decision to grant or deny a motion for leave to file a dispositive motion
will not be disturbed absent an abuse of discretion. See Slack v. Cropper, 143 Ohio
App.3d 74, 83, 757 N.E.2d 404 (11th Dist.2001). As such, we will not reverse the trial
court’s decision granting Lurie’s motion for leave unless we determine the trial court’s
decision was unreasonable, arbitrary, or unconscionable and not merely an error of law or
judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 7} In this case, the trial court did not abuse its discretion in granting Lurie
leave to file her motion to dismiss. The motion was based on newly discovered evidence
that raised a possible dispositive issue to the case. In the interest of judicial economy, we
find that the trial court acted within its discretion.
{¶ 8} Accordingly, Smith’s first assignment of error is overruled. {¶ 9} In his second assignment of error, Smith argues that the trial court erred in
granting Lurie’s Civ.R. 12(B)(6) motion to dismiss based on a document containing
matters not included in the complaint.
{¶ 10} We review the trial court’s decision granting a motion to dismiss de novo.
Hughes v. Miller, 181 Ohio App.3d 440, 2009-Ohio-963, 909 N.E.2d 642, ¶ 17 (8th
Dist.). A Civ.R. 12(B)(6) motion to dismiss a complaint for failure to state a claim for
relief tests the sufficiency of the complaint. State ex rel. Horwitz v. Cuyahoga Cty.
Court of Common Pleas, Probate Div., 65 Ohio St.3d 323, 325, 603 N.E.2d 1005 (1992).
In order for a court to dismiss a complaint under Civ.R. 12(B)(6), it must appear beyond
doubt that the moving party can prove no set of facts in support of his claim that would
entitle him to relief. Taylor v. London, 88 Ohio St.3d 137, 139, 2000-Ohio-278, 723
N.E.2d 1089, citing O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242,
327 N.E.2d 753 (1975), syllabus.
{¶ 11} When reviewing a motion to dismiss for failure to state a claim, a court
must accept the facts stated in the complaint as true and must construe all reasonable
inferences in favor of the nonmoving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d
190, 192, 532 N.E.2d 753 (1988). The court may not consider “matters outside the
pleadings” unless the court converts the motion to dismiss into a motion for summary
judgment. Civ.R. 12(B) provides that, “[w]hen 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.” “The matters outside the pleadings
are specifically enumerated in Rule 56,” and all parties must be “given reasonable
opportunity to present all materials made pertinent to such a motion by Rule 56.” Civ.R.
12(B); S. Christian Leadership Conference v. Combined Health Dist., 191 Ohio App.3d
405, 2010-Ohio-6550, 946 N.E.2d 282, ¶ 30 (2d Dist.).
{¶ 12} In this case, Lurie moved to dismiss Smith’s amended complaint pursuant
to Civ.R. 12(B)(6), failure to state a claim upon which relief can be granted.
Specifically, Lurie argued that Smith was not a registered PUCO motor carrier, and
therefore, not entitled to compensation as a motor carrier. In support of this argument,
Lurie attached to her motion a purported email from a PUCO representative stating that it
had no record of Smith as a registered motor carrier. Because this email was the only
document supporting Lurie’s assertion that Smith was not a registered PUCO motor
carrier and thus unable to assert his cause of action, it is clear that the trial court
considered matters outside the amended complaint in determining Smith’s motion to
dismiss.
{¶ 13} Smith contends on appeal that the trial court “clearly” converted the motion
to a motion for summary judgment; however, our review of the record does not support
this argument. The record before us does not demonstrate that the trial court
affirmatively converted or intended to convert the motion to dismiss into one for
summary judgment or that it provided notice to the parties of such conversion. See Petrey v. Simon, 4 Ohio St.3d 154, 447 N.E.2d 1285 (1983), paragraph one of the
syllabus.
{¶ 14} Accordingly, we find that the trial court erred in granting Lurie’s motion to
dismiss because it considered matters outside the pleadings. Smith’s second assignment
of error is sustained.
{¶ 15} Finding merit to Smith’s second assignment of error renders the remaining
assignments of error also challenging the trial court’s decision dismissing Smith’s
amended complaint moot. App.R. 12(A)(1)(c).
{¶ 16} Judgment reversed and remanded for further proceedings consistent with
this opinion.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court 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.
KATHLEEN ANN KEOUGH, JUDGE
MARY J. BOYLE, P.J., and JAMES J. SWEENEY, J., CONCUR