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EMC Mortgage Corp. v. Jenkins11/1/2005
n 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.
Thus, a court may consider matters outside the face of the complaint only if the court converts a Civ.R. 12(B)(6) motion into a motion for summary judgment and notifies the parties of its intention to do so.
{ } In his motion to dismiss, appellant referred the trial court to matters beyond the face of EMC's complaint, including Chase's dismissal of its second action against him. In fact, appellant premised his entire motion on the records of Chase's prior actions against him. In its memorandum in opposition, EMC likewise relied on matters outside its complaint and attached evidentiary material for the court's consideration. In its decision and entry denying appellant's motion, the trial court referred to the record of Chase's second foreclosure action and acknowledged its consideration of "the motions, memorand , arguments of counsel and the evidence presented[.]" Because the trial court considered matters beyond the face of EMC's complaint, the court, in effect, converted appellant's motion into a motion for summary judgment.
{ } The record contains no indication that the trial court gave the parties notice of its intention to convert appellant's motion into a motion for summary judgment. While a failure to give such notice of conversion constitutes error, any such error was not prejudicial because both parties had the opportunity to present evidence in support of their respective positions. See Reynolds v. Morris (Sept. 28, 1999), Franklin App. No. 99AP-64, citing Ins. Co. of N. Am. v. Reese Refrig. (1993), 89 Ohio App.3d 787, 793.
{ } " '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.' " Petrey v. Simon (1983),4 Ohio St.3d 154, 155, quoting Portland Retail Druggists Assn. v. Kaiser Found. Health Plan (C.A.9, 1981), 662 F.2d 641, 645, analyzing comparable provisions of Fed.R.Civ.P. 12(b). The purpose of providing the parties with notice of a court's conversion of a motion to dismiss to a motion for summary judgment is to afford the parties a reasonable opportunity to submit evidence. Dietelbach v. Ohio Edison Co., Trumbull App. No. 2004-T-0063, 2005-Ohio-4902, at . Unexpected conversion may leave the non-moving party at the disadvantage of being unprepared to reply. Petrey at 155.
{ } In this case, EMC had a reasonable opportunity to, and in fact did, present evidence outside its complaint in opposition to appellant's motion. In response to appellant's motion, EMC submitted an affidavit from its counsel, as well as copies of relevant documents from the prior foreclosure actions, in support of its position that Chase's second dismissal had no effect on EMC's claims. The trial court also conducted a hearing on appellant's motion, at which both parties were represented by counsel. When a party opposing a motion to dismiss based on matters outside the face of its complaint submits evidence outside the complaint in opposition to the motion, the need for notice of the court's conversion of the motion to one for summary judgment no longer exists. Dietelbach at . Therefore, the trial court's failure to give the parties notice of its conversion of appellant's motion from a moti
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