Petrey v. Simon, 82-270

• Court: United States State Supreme Court of Ohio
• Writing for the Court: LOCHER; FRANK D. CELEBREZZE, C.J., and WILLIAM B. BROWN; JAMES P. CELEBREZZE; FRANK D. CELEBREZZE; WILLIAM B. BROWN
• Citation: 447 N.E.2d 1285,4 OBR 396,4 Ohio St.3d 154
• Parties: , 4 O.B.R. 396 PETREY, Appellant, v. SIMON, Appellee.
• Docket Number: No. 82-270,82-270
• Decision Date: 20 April 1983

Page 154

4 Ohio St.3d 154 447 N.E.2d 1285, 4 O.B.R. 396 PETREY, Appellant,
v.
SIMON, Appellee. No. 82-270. Supreme Court of Ohio. April 20, 1983. Syllabus by the Court

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 parties that it has converted a motion to dismiss for failure to state a claim into a motion for summary judgment "at least fourteen days before the time fixed for hearing." (Civ.R. 12[B] and 56[C], applied and construed.)

Greet & Fisse and Lawrence R. Fisse, Batavia, for appellant.

Simon, Anninos & Namanworth Co., L.P.A., Eli Namanworth and Eve Biskind Klothen, Cincinnati, for appellee.

LOCHER, Justice.

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 [447 N.E.2d 1287] 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

Page 156

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] ), 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, 78 S.Ct. 99, 2 L.Ed.2d 80, followed.)" O'Brien v. University Community Tenants Union (1975), 42 Ohio St.2d 242, 327 N.E.2d 753 [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, 364 N.E.2d 267 [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. 56 ² have noted [447 N.E.2d 1288] the importance

Page 157

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 CLIFFORD F. BROWN, JJ., concur.

FRANK D. CELEBREZZE, C.J., and WILLIAM B. BROWN, J., dissent.

JAMES P. CELEBREZZE, J., not participating.

FRANK D. CELEBREZZE, Chief Justice, dissenting.

Inasmuch as the majority reverses the judgment of the court of appeals on a theory neither raised by the parties nor considered by any court below and fails to address the issue squarely presented in this appeal, I must respectfully dissent.

Page 158

The real issue presented to this court is whether an attorney is immune from liability to third persons while representing a client and acting within the authority granted by the client. I would affirm the judgment of the court below and hold that, under the circumstances of the case at bar, appellee is immune from liability in the suit brought by appellant. The following facts as set forth in the pleadings obliged this dissent.

Appellant alleged that appellee was contacted by one Ruth Petrey who hired appellee to collect back child support from William Petrey, Ruth Petrey's ex-husband. Ruth Petrey provided appellee with what she believed to be William Petrey's Social Security number,...