Pollock v. Kanter

• Decision Date: 23 July 1990
• Docket Number: No. 57212,57212
• Citation: 68 Ohio App.3d 673,589 N.E.2d 443
• Parties: POLLOCK, Appellant, v. KANTER et al., Appellees.
• Court: Ohio Court of Appeals

Page 673

68 Ohio App.3d 673

589 N.E.2d 443

POLLOCK, Appellant, v. KANTER et al., Appellees.

No. 57212.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided July 23, 1990.

Harold Pollock Co., L.P.A., and Harold Pollock, Cleveland, for appellant.

Climaco, Climaco, Seminatore, Lefkowitz & Garofoli Co., L.P.A., and Roger M. Synenberg; Gerald Messerman and Gale S. Messerman, Cleveland, for appellees.

KRUPANSKY, Presiding Judge.

On April 26, 1988 plaintiff-appellant Harold Pollock, an attorney, filed a complaint in the Cuyahoga County Court of Common Pleas alleging malicious prosecution and fraud against defendant attorneys Frederick D. Kanter and David Linick, also naming in said complaint Diane Linick, the spouse of defendant David Linick. The trial court granted defendants-appellees' motions to dismiss pursuant to Civ.R. 12(B)(6), from which plaintiff-appellant timely appeals.

Relevant facts follow.

Appellant was retained in August 1986 to represent William Dolin, who is not a party to this action. Appellant avers that in connection with his representation of Dolin, he became convinced appellees were wrongfully withholding title to a property located at 4340 Orange Dale Road, Orange, Ohio, from Dolin who leased from the Linicks, ¹ the owners of record. Appellant avers in his complaint that he was indicted for extortion by the Cuyahoga County Grand Jury on November 13, 1986 as a direct result of the appellees' instigation and request. ² Appellees admit they forwarded a letter dated August 6, 1985, to the county prosecutor's office which appellant had sent to them. This letter, written by appellant, comprises the crux of the charges since it apparently contains some threats directed at appellees.

Appellant further alleges the indictment was wrongful based upon the intentional lies and malicious misrepresentations of appellees constituting fraud. Appellant alleges the indictment was nolled in May 1987, indicating he was completely exonerated. Appellant also alleges he was arrested and subjected to fingerprinting as a common criminal without probable cause, he sustained serious physical, mental and emotional injury, damage to reputation and he also suffered damages for expenses incurred in defending himself. In addition, appellant alleges appellees perpetrated a fraud upon appellant by misrepresentation of facts to the Cuyahoga County Grand Jury.

Appellees filed motions with the court pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted. Attached to each Civ.R. 12(B)(6) motion was the following: (1) the letter appellant wrote to appellee Linick on August 6, 1985; ³ (2) a letter appellee Kanter sent to the prosecutor dated October 15, 1986 with an affidavit of appellee Kanter swearing its contents to be accurate; (3) the lease appellant's client Dolin signed and an addendum to lease; (4) copies of two purchase agreements: (a) purchase agreement from Stella Dingus to Ellen Rosen and (b) purchase agreement from Ellen Rosen to the Linicks; (5) the mortgage deed to the Orange residence in the name of the Linicks; (6) a letter from David Linick to the Dolins and signed by them confirming the residential purchase; and (7) a settlement agreement between the Dolins and Linicks purporting to release each other from all claims and continue rental payments from the Dolins to the Linicks.

The affidavit of appellee Kanter sworn to by him and signed July 6, 1988, and included with appellees' motions, avers the truth and accuracy of only the letter Kanter transmitted to the Cuyahoga County Prosecutor "with the appropriate attachments."

Based on the above motions, the trial court dismissed the appellant's complaint for failure to state a claim upon which relief can be granted.

Appellant's five assignments of error follow:

"I. The trial court erred in dismissing plaintiff-appellant's claim for malicious prosecution where plaintiff-appellant, an attorney-at-law, could not have been legally charged with the crime of extortion for allegedly making threats of criminal prosecution in connection with his representation of a client on a justifiable civil claim where there had been tortious conduct by the alleged extortion victims which may have also constituted a crime.

"II. The trial court erred in granting defendant-appellees' motions to dismiss the complaint where the question of whether probable cause existed for the indictment of plaintiff-appellant was an evidentiary issue requiring the establishment through evidence and testimony of all facts admitted by or known to the alleged extortion victims at the time the alleged act of extortion occurred, with the existence or lack of probable cause being an issue of fact for a jury to determine.

"III. The trial court erred in dismissing plaintiff-appellant's claim for malicious prosecution where it was clear from the facts presented to the trial court that the conduct of plaintiff-appellant could not have constituted the crime of extortion as the elements of the crime of extortion were not present.

"IV. The trial court erred in dismissing plaintiff-appellant's claim for fraud against defendant-appellees for the reason that a valid cause of action in fraud had been stated in plaintiff-appellant's complaint.

"V. The trial court erred in dismissing the complaint of plaintiff-appellant pursuant to Rule 12(B)(6) as the complaint of plaintiff-appellant stated a claim upon which relief could be granted."

Appellant's assignments of error one, two, three and five are meritorious.

Malicious Prosecution

Appellant argues the following:

(1) Appellees instituted the indictment against him out of malice and fraud;

(2) Appellees did so without probable cause;

(3) Appellant's time spent to defend himself constituted a seizure of property and his arraignment and fingerprinting constituted an arrest and seizure of his person;

(4) The dismissal of the indictment was a termination in appellant's favor.

Appellant's argument is persuasive.

Civ.R. 12(B)(6) provides for dismissal of a complaint where the pleader fails to state a claim upon which relief can be granted. However, when a motion to dismiss under Civ.R. 12(B)(6) is founded on matters outside the pleadings, the trial court is obligated "to treat the motion to dismiss as one for summary judgment and to dispose of it as provided in Rule 56." ⁴ Carter v. Stanton (1972), 405 U.S. 669, 671, 92 S.Ct. 1232, 1234, 31 L.Ed.2d 569, 572. In this event, the rule plainly states, "[a]ll parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56." Civ.R. 12(B)(6).

Civ.R. 56(C) specifies the evidence that may be presented to the trial court:

" * * * 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. No evidence or stipulation may be considered except as stated in this rule. * * * " (Emphasis added.)

What constitutes "reasonable opportunity" has been defined in a line of federal court decisions. See, e.g., Dale v. Hahn (C.A.2, 1971), 440 F.2d 633. Fed.R.Civ.P. 12(b)(6) is the same as and the counterpart to Ohio Civ.R. 12(B)(6). In 1982, precisely this issue of reasonable notice was decided in Ohio in Fraternal Order of Police v. D'Amico (1982), 4 Ohio App.3d 15, 4 OBR 36, 446 N.E.2d 198, which states as follows:

"Further, the Fourth Circuit addressed this issue in Davis v. Zahradnick (C.A.4, 1979), 600 F.2d 458, and concluded:

" 'The term "reasonable opportunity" in Rule 12(b) embraces the requirement that the court give some notice to all parties that it is treating the 12(b)(6) motion as one for summary judgment. Plante v. Shivar, 540 F.2d 1233, 1235 (4th Cir.1976); Johnson v. RAC Corp., 491 F.2d 510, 513-14 (4th Cir.1974); C. Wright & A. Miller, Federal Practice and Procedure § 1366 at 683 (1969).' Id. at 460."

The record sub judice reveals that appellees' motions to dismiss did attach a suitable affidavit with their motions for dismissal to allow the trial court to construe the dismissal as a summary judgment motion. The trial court failed to indicate as follows: (1) whether the affidavit was considered; (2) whether the trial court treated the 12(B)(6) motion as a Civ.R. 56 motion for summary judgment; and (3) whether actual notice of conversion was given by the trial court to the parties that it would treat the 12(B)(6) motion to dismiss as one for summary judgment.

The two separate judgment entries of January 10, 1989 simply entered each defendant's name but each stated: "Motion to Dismiss is granted." Clearly there is no notice to the parties of any intent to treat the motions to dismiss as motions for summary judgment. See D'Amico, supra, 4 Ohio App.3d at 17, 4 OBR at 37, 446 N.E.2d at 201. In fairness to the parties, the trial court must indicate its intention to treat a motion for dismissal as a motion for summary judgment and give actual notice to the parties of its intent so they may respond appropriately. If, in fact, the trial court considered the material attached to the 12(B)(6) motion, the omission of notice was procedural error and warrants reversal. Davis v. Zahradnick, supra; D'Amico, supra.

However, assuming arguendo the trial court did not consider the matters outside the pleadings, i.e., the affidavit and assorted documents attached to the 12(B)(6) motion, the issue then arises, was plaintiff-appellant's complaint alone sufficient to withstand a motion for dismissal?

The Ohio Supreme Court held in O'Brien v. Univ. Community Tenants Union (1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753, as follows: for a court to dismiss a complaint for failing to state a claim upon which...