Federated Dept. Stores, Inc. v. Lindley, 86-695

• Decision Date: 20 May 1987
• Docket Number: No. 86-695,86-695
• Citation: 30 Ohio St.3d 135,30 OBR 447,507 N.E.2d 1114
• Parties: , 30 O.B.R. 447 FEDERATED DEPARTMENT STORES, INC., Appellant, v. LINDLEY, Tax Commr., et al., Appellees.
• Court: Ohio Supreme Court

Page 135

30 Ohio St.3d 135

507 N.E.2d 1114, 30 O.B.R. 447

FEDERATED DEPARTMENT STORES, INC., Appellant, v. LINDLEY, Tax Commr., et al., Appellees.

No. 86-695.

Supreme Court of Ohio.

May 20, 1987.

Syllabus by the Court

When a motion to dismiss, one of the grounds of which is the failure to state a claim upon which relief can be granted (Civ.R. 12[B] ), is treated by a court as a motion for summary judgment, the court must notify all parties that it has done so "at least fourteen days before the time fixed for hearing." (Civ.R. 12[B] and 56[C], applied and construed.)

Appellant, Federated Department Stores, Inc., filed an action for declaratory judgment, seeking a finding that appellee Edgar L. Lindley, then Tax Commissioner, is without authority to obtain certain business records by subpoena pursuant to R.C. 5703.20 for the purpose of determining appellant's sales and use tax liability. Specifically, appellant alleged appellee had no authority to subpoena " * * * [its] general and subsidiary ledgers and the journal entries thereto and the tax collected (215) account * * * " of its F & R Lazarus Company Division and Rike-Kumler Division because these records are irrelevant as to any determination of appellant's sales and use tax liability. Appellant also alleged the subpoenas were improperly served and employees of appellant could not be required to appear and give testimony. Appellant further sought to have R.C. 5703.20 declared unconstitutional, naming the then-Attorney General of Ohio as a party defendant.

Appellees filed a motion pursuant to Civ.R. 12(B)(1) and (6) to dismiss appellant's complaint on the grounds that the court had no jurisdiction of the subject matter and that the complaint did not state a claim upon which relief can be granted. Subsequently, appellant filed a motion for summary judgment declaring that appellee Tax Commissioner cannot obtain by subpoena issued pursuant to R.C. 5703.20 appellant's general and subsidiary ledgers and journal entries thereto and its tax collected (215) account. The parties attached various exhibits to their respective motions.

On June 13, 1985, the court granted appellant's motion for summary judgment "with reference to the general and subsidiary ledgers, which clearly are not applicable to calculating sales tax liability." The court, treating appellees' motion to dismiss as a motion for summary judgment "for the purposes of this decision," granted said motion as to "Account # 215, and to those general and subsidiary ledgers which clearly are applicable to calculating sales tax liability."

The trial court's judgment was appealed to the court of appeals which, as to the merits of the appeal, affirmed it in part and vacated it in part and remanded for further proceedings. In its opinion, the court of appeals stated that the trial court had incorrectly sua sponte converted appellees' motion to dismiss to a motion for summary judgment but nevertheless proceeded to rule on the merits of the appeal.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Jones, Day, Reavis & Pogue, Maryann B. Gall, Jane A. Rue, Columbus, Smith & Schnacke and Leon L. Wolf, Cincinnati, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., and Mark A. Engel, Columbus, for appellees.

COOK, Justice.

The determinative issue in the instant appeal is whether a trial court may sua sponte convert a motion to dismiss, one of the grounds of which is the failure to state a claim upon which relief can be granted (Civ.R. 12[B] ), into a motion for summary judgment (Civ.R. 56) without notice to the parties.

Civ.R. 12(B) provides:

"Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: * * * (6) failure to state a claim upon which relief can be granted * * *. 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. * * * All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56."

Civ.R. 56(C), as to a motion for summary judgment, requires that "[t]he motion shall be served at least fourteen days before the time fixed for hearing. * * * "

In Petrey v. Simon (1983), 4 Ohio St.3d 154, 4 OBR 396, 447 N.E.2d 1285, syllabus, this court held:

"1. A court must notify all parties when it converts a motion to dismiss for failure to state a claim into a motion for summary judgment. (Civ.R. 12[B], applied and construed.)

"2. A court must notify all part...