Judd Shearer v. Elizabeth Echelberger, 00-LW-4887
| Decision Date | 30 October 2000 |
| Docket Number | 00-LW-4887,00-COA-01368 |
| Parties | JUDD SHEARER, et al, Plaintiffs-Appellants v. ELIZABETH ECHELBERGER, et al, Defendants-Appellees Case |
| Court | Ohio Court of Appeals |
Civil Appeal from Ashland County Court of Common Pleas Case 99-CIV-36076
For Plaintiffs-Appellants: JAMES E. ROOK, 50 West Broad St Suite 1800 Columbus, OH 43215_For Defendants-Appellees
RUSSELL L. HARPSTER, P. O. Box 127 Ashland, OH 44805
MARIA BOCCARDI 1360 East Ninth Street, Suite 500 Cleveland, OH 44114
Edwards J.
Plaintiffs-appellants Judd and Laura Shearer appeal the August 11, 1999, Judgment Entry and the May 10, 2000, Judgment Entry of the Ashland County Court of Common Pleas. Defendants-appellees are Elizabeth Echelberger, in her individual capacity and her capacity as the Executrix of the Estate of Glenn W. Smetzer, Sr., Darrell Echelberger, First American Title Insurance Company and Midland Title Security, Inc.
On June 15, 1999, plaintiffs-appellants Judd and Laura Shearer [hereinafter appellants] filed a Complaint against defendant-appellees Elizabeth Echelberger, as an individual and as Executrix of the Estate of Glenn W. Smetzer, Sr. Darrell Echelberger, First American Title Insurance Company and Midland Title Security, Inc. [hereinafter Midland/First American] in the Ashland County Court of Common Pleas. Appellants alleged that the Echelbergers had (1) committed fraud when describing a piece of property held by the Estate of Glenn W. Smetzer, Sr.; (2) breached a contract to convey 39.2578 acres free and clear of all liens and encumbrances; and (3) negligently misrepresented the actual acreage and boundaries of the property. Further, appellants alleged that Midland/First American breached a contract to provide a title commitment and lenders title policy to secure the purchase of the property and/or committed "gross negligence or at least negligence" when Midland/First American failed to disclose a 10 acre Interstate 71 right of way across the property. On July 6, 1999, appellees Elizabeth Echelberger, individually and as Executrix of the Estate, and Darrell Echelberger motioned the trial court to dismiss the Complaint against them. The Echelbergers alleged that appellants' Complaint should be dismissed for failure to state a claim upon which relief may be granted, was barred by the applicable statute of limitations and, further, that the dismissal was appropriate pursuant to Civ. R. 21 on the grounds that appellees had been improperly joined as parties to the action. The Echelbergers attached a copy of a proof of contingent claim and the Executrix's rejection/denial of that claim both of which had been filed in the Probate Court of Ashland County. On August 11, 1999, the Ashland County Court of Common Pleas issued a Judgment Entry which granted the Echelbergers' Motion to Dismiss. The trial court considered the Echelbergers' motion as a Civ. R. 12(B)(6) motion, failure to state a claim upon which relief can be granted. The trial court stated that it had considered the copies of the documents attached to appellees' memoranda in support of the Motion to Dismiss, as they were matters of record in the County Probate Court. The trial court went on to find that appellants had not brought this action within the specific time limits which applied to this matter, and, therefore, granted appellees' Motion to Dismiss. The case proceeded in regard to defendants-appellees Midland/First American. However, on March 6, 2000, Midland/First American filed a joint motion for summary judgment. On May 10, 2000, the trial court granted summary judgment in favor of Midland/ First American. Since the other defendants-appellees, the Echelbergers, had been dismissed previously, the action was dismissed upon the grant of summary judgment in favor of Midland/First American. It is from the August 11, 1999, and May 10, 2000, Judgment Entries that appellants prosecute this appeal, raising the following assignments of error:
In the first assignment of error, appellants argue that the trial court erred when it granted a Civ. R. 12(B)(6) dismissal in favor of appellees Darrell Echelberger and Elizabeth Echelberger, in her individual capacity and as executrix of the Estate of Glenn W. Smetzer, Sr. Civil Rule 12(B)(6) states: 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. Provided however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56. All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56.
The appellees argued that the claims against them were barred by the applicable statute of limitations. To support their argument, appellees attached copies of documents that had been filed in the Ashland County Probate Court in regard to appellant's claim. The trial court, while explicitly stating that it was treating this matter under Civ. R. 12(B)(6), acknowledged that it had considered the documents submitted by appellees, as they were matters of record in the Probate Court. In considering a Civ. R. 12(B)(6) motion for failure to state a claim, a trial court cannot rely upon evidence or materials outside of the complaint. The State ex rel. Fuqua v. Alexander (1997), 79 Ohio St.3d 206, 207, 680 N.E.2d 985. It is possible for a trial court, under the conditions and restrictions imposed by Civ. R. 12, to convert a motion to dismiss into a motion for summary judgment, thereby permitting review of matters outside of the complaint. However, in the case sub judice, the trial court did not convert this matter to a motion for summary judgment and expressly stated that this matter was being considered as a motion pursuant to Civ. R. 12(B)(6). It is apparent from the Judgment Entry of the trial court that it considered matters outside of the Complaint. In order to consider matters outside of the Complaint, the trial court should have converted this matter to a motion for summary judgment. In that the trial court did not do so, the trial court erred in granting appellees' motion to dismiss on the basis of Civ. R. 12(B)(6) and documentation outside of the Complaint. Appellants' first assignment of error is sustained.
In the second assignment of error, appellants argue that the trial court erred when it granted summary judgment in favor of appellees Midland/First American. In their Complaint appellants contended that appellees Midland/First American breached a contract and committed negligence when they failed to disclose to the appellants the existence of the Interstate 71 right of way, which covers approximately 10 acres of the 39.2578 acres appellants purchased from the Estate of Glenn W. Smetzer, Sr. Midland/First American contend that the appellants' claims must fail, as a matter of law. We agree with Midland/First American. Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As such, we must refer to Civ.R. 56 which provides, in pertinent part:
Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case and written stipulations of fact, if any, timely filed in the action show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor.
Pursuant to the above rule, a trial court may not enter summary judgment if it appears a material fact is genuinely disputed. The party moving for summary judgment bears the initial burden of informing the trial court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. The moving party may not make a conclusory assertion that the non-moving party has no evidence to prove its case. The moving party must specifically point to some evidence which demonstrates the non-moving party cannot support its claim. If the moving party satisfies this requirement, the burden shifts to the non-moving party to set forth...
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