[Cite as Hicks v. Cadle Co., 2016-Ohio-4728.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


KERRY R. HICKS,                                 :     OPINION

        Plaintiff-Appellee,                     :
                                                      CASE NO. 2014-T-0103
                 - vs -                         :

THE CADLE COMPANY, et al.,                      :

        Defendants-Appellants,                  :

THE HOME SAVINGS AND LOAN                       :
COMPANY OF YOUNGSTOWN, OHIO,
                                                :
        Intervening Defendant.


Civil Appeal from the Trumbull County Court of Common Pleas.
Case No. 2011 CV 01148.

Judgment: Affirmed in part, reversed in part, and remanded.


Christopher S. Williams and Ronald M. McMillan, Calfee, Halter & Griswold, LLP, The
Calfee Building, 1405 East Sixth Street, Cleveland, OH 44114; Kris J. Kostolansky,
Lewis Roca Rothgerber Christie LLP, One Tabor Center, Suite 3000, 1200
Seventeenth Street, Denver, CO 80202; John T. Dellick, Harrington, Hoppe & Mitchell,
Ltd., 26 Market Street, Suite 1200, P.O. Box 6077, Youngstown, OH 44501-6077 (For
Plaintiff-Appellee).

Victor O. Buente, Jr., Cadle Company, 100 North Center Street, Newton Falls, OH
44444-1321; F. Dean Armstrong, Armstrong Law Firm, 1324 Dartmouth Road,
Flossmoor, IL, 60422 (For Defendants-Appellants).


TIMOTHY P. CANNON, J.

        {¶1}     Appellants, The Cadle Company (“TCC”), Daniel C. Cadle (“Cadle”), and

United Joint Venture Limited Partnership (“United”), appeal the November 3, 2014
judgment of the Trumbull County Court of Common Pleas granting summary judgment

in favor of appellee, Kerry R. Hicks (“Hicks”), with respect to appellants’ amended

counterclaim. The counterclaim at issue set forth three causes of action alleging Hicks

caused damage to Cadle by violating Ohio’s Pattern of Corrupt Activities Act (R.C.

2923.31, et seq.), intentionally inflicted emotional distress with regard to Cadle, and

tortiously interfered with the business relations between all appellants and The Home

Savings and Loan Company of Youngstown, Ohio (“Home Savings”).

      {¶2}   Cadle is the former president and current owner and director of TCC, a

debt collection company.    TCC is the only general partner and registered agent of

United, which is also a debt collection company. Litigation between the parties began in

September 2003 when Buckeye Retirement Co., LLC (“Buckeye”) sued Hicks and his

business partner. Buckeye is apparently another debt collection company and an alter

ego of TCC and Cadle.

      {¶3}   The suit was brought in federal district court in Tennessee and sought to

collect the outstanding debt on a promissory note. Allegations of tortious misconduct

were asserted by both sides. A history of litigation between the parties is detailed in

three opinions of the United States Court of Appeals for the Tenth Circuit: Hicks v. Bank

of Am., N.A., 218 Fed.Appx. 739 (10th Cir.2007); Hicks v. Cadle Co., 355 Fed.Appx.

186 (10th Cir.2009); Hicks v. Cadle, 436 Fed.Appx. 874 (10th Cir.2011).

      {¶4}   Hicks and others obtained a loan from Bank of America in 1999; Hicks

was one of the signators on the note and two renewed versions thereof. However,

Hicks contended he was not liable on the balance of $1,000,000.00 pursuant to an oral,

collateral agreement with Bank of America—this was the amount outstanding when




                                           2
Buckeye purchased the note from Bank of America in 2002. The note contained a

provision requiring binding arbitration of

              [a]ny controversy or claim between or among the parties hereto
              including but not limited to those arising out of or relating to this
              instrument, agreement or document or any related instruments,
              agreements or documents, including any claim based on or arising
              from an alleged tort[.]

The note also contained a venue provision that any litigation would take place in

Tennessee. In proceedings before the Tenth Circuit, the parties agreed that Tennessee

law governed.

       {¶5}   Shortly after Buckeye purchased the note, TCC, acting on behalf of

Buckeye, attempted to collect the debt from Hicks in an action filed in Tennessee. It

was alleged that the debt collection activities of TCC and Buckeye are intertwined: TCC

employees were, at times, also Buckeye employees; TCC employees, including Cadle,

made collection calls and participated in collection-related correspondence in Buckeye’s

name; and TCC computer systems and phones were also used in Buckeye’s name.

Three separate arbitrations in Colorado followed Buckeye’s efforts to collect from Hicks.

Hicks was successful in all three arbitrations and obtained significant damage awards

against Cadle. The amount due on the note itself, if any, was assigned back to Bank of

America in 2003.

       {¶6}   This Ohio action between Hicks and appellants began in May 2011 when

Hicks sought declaratory judgment and injunctive relief to prevent appellants from

transferring assets belonging to Cadle, a principal of TCC and United. Appellants were

in negotiations with Home Savings to refinance an outstanding debt.           Hicks was

apparently concerned that funds from Cadle’s IRA account would be used to pay Home




                                             3
Savings and would therefore not be available to satisfy the arbitration award. Hicks

registered his arbitration award in the United States District Court for the Northern

District of Ohio and brought suit in Trumbull County seeking to enforce the award. A

temporary restraining order was issued, and the matter was set for hearing on Hicks’

request for a preliminary injunction. Appellants then filed an answer, a counterclaim,

and a jury demand.

       {¶7}     At a June 28, 2011 hearing, Hicks’ request for a preliminary injunction was

denied, and the temporary restraining order was dissolved. Thereafter, the arbitration

award was paid, and Hicks voluntarily dismissed his claims.

       {¶8}     After dismissal of Hicks’ complaint, appellants’ counterclaim remained

pending. With regard to appellants’ counterclaim, Hicks filed a motion to stay litigation

and compel arbitration or, in the alternative, to dismiss all counts pursuant to Civ.R.

12(B)(6) for failure to state a claim upon which relief could be granted. While the motion

was pending, appellants filed an amended counterclaim regarding conduct alleged to

have occurred between 2007 and 2011. Cadle alleged violations of Ohio’s Pattern of

Corrupt Activities Act (R.C. 2923.31, et seq.) and intentional infliction of emotional

distress; all three appellants jointly alleged tortious interference with a business

relationship.    The trial court denied Hicks’ motion to compel arbitration, finding

appellants’ counterclaim was not subject to the note’s arbitration provision.

       {¶9}     Hicks then filed a motion to dismiss the amended counterclaim.        This

motion contained numerous exhibits, copies of court orders, and excerpts from

depositions and arbitration testimony. Because the motion was supported by materials

outside of the pleadings, the trial court converted it to a motion for summary judgment




                                              4
pursuant to Civ.R. 12(B). The trial court gave the following instructions: “Defendant[s]

may file a supplemental Opposition to Motion for Summary Judgment by no later than

March 08, 2013. Plaintiff may file a supplemental Reply by no later than March 22,

2013.”

         {¶10} After appellants filed their supplemental Opposition, but prior to Hicks filing

a supplemental Reply, Hicks appealed the trial court’s denial of his motion to compel

arbitration, and the trial court proceedings were stayed pending our decision. This court

affirmed the trial court’s ruling, holding Hicks could not compel arbitration, and the

matter proceeded below. Hicks v. Cadle Co., 11th Dist. Trumbull No. 2013-T-0017,

2014-Ohio-872.

         {¶11} After the stay was lifted, Hicks filed a supplemental Reply in support of his

converted motion for summary judgment. Appellants moved the trial court to strike

portions of the reply primarily due to the fact it contained additional evidentiary material

in the form of affidavits and additional arguments. The trial court overruled appellants’

motion to strike and granted Hicks’ motion for summary judgment on all three counts of

appellants’ counterclaim.

         {¶12} Appellants filed a timely notice of appeal and raise the following

assignments of error for our review:

                [1.] The Trial Court erred in denying the Cadle Parties’ Motion to
                Strike the portions of Hicks’ Supplemental Brief that went beyond
                the arguments and evidence submitted in Hicks’ Motion for
                Summary Judgment.

                [2.] The Trial Court erred in granting Summary Judgment in favor of
                Hicks on the Cadle Parties’ Counterclaims.




                                               5
       {¶13} Under their first assignment of error, appellants assert the trial court erred

when it denied their motion to strike portions of Hicks’ supplemental brief. They claim it

improperly raised new arguments not previously asserted and contained supporting

evidentiary material not previously attached to his converted motion for summary

judgment. Their second assignment of error asserts the trial court erred in granting

Hicks’ motion for summary judgment.

       {¶14} A trial court’s decision to grant or deny a motion to strike is reviewed

under an abuse of discretion standard. Johnsonite, Inc. v. Welch, 11th Dist. Geauga

No. 2011-G-3012, 2011-Ohio-6858, ¶21, citing State ex rel. Mora v. Wilkinson, 105

Ohio St.3d 272, 2005-Ohio-1509, ¶10. An abuse of discretion is the trial court’s “‘failure

to exercise sound, reasonable, and legal decision-making.’” State v. Beechler, 2d Dist.

Clark No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary 11 (8th

Ed.2004).

       {¶15} On the other hand, we review a trial court’s decision on a motion for

summary judgment de novo. Fed. Home Loan Mtge. Corp. v. Zuga, 11th Dist. Trumbull

No. 2012-T-0038, 2013-Ohio-2838, ¶13, citing Grafton v. Ohio Edison Co., 77 Ohio

St.3d 102, 105 (1996). Pursuant to Civil Rule 56(C), summary judgment is proper when

               (1) [n]o genuine issue as to any material fact remains to be
               litigated; (2) the moving party is entitled to judgment as a matter of
               law; and (3) it appears from the evidence that reasonable minds
               can come to but one conclusion, and viewing such evidence most
               strongly in favor of the party against whom the motion for summary
               judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).                “Since summary

judgment denies the party his or her ‘day in court’ it is not to be viewed lightly as docket

control or as a ‘little trial.’   The jurisprudence of summary judgment standards has



                                              6
placed burdens on both the moving and the nonmoving party.” Welch v. Ziccarelli, 11th

Dist. Lake No. 2006-L-229, 2007-Ohio-4374, ¶40, citing Dresher v. Burt, 75 Ohio St.3d

280 (1996). Therefore, if a ruling on a motion to strike has prejudicially interfered with

the summary judgment exercise, such ruling must be viewed as an abuse of discretion.

       {¶16} Civ.R. 12(B) states that “[w]hen 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.” There are limitations,

however, in treating a motion to dismiss as a motion for summary judgment. First, the

trial court must only consider “such matters outside the pleadings as are specifically

enumerated in Rule 56.” Id. Second, all parties must “be given reasonable opportunity

to present all materials made pertinent to such a motion by Rule 56.” Id. Pertinent

evidentiary material, as enumerated in Civil Rule 56, are “pleadings, depositions,

answers to interrogatories, written admissions, affidavits, transcripts of evidence, and

written stipulations of fact, if any[.]”

       {¶17} Here, Hicks filed a motion to dismiss appellants’ amended counterclaim

for failure to state a claim. The trial court issued an entry converting Hicks’ motion to

one of summary judgment and first instructed appellants, the nonmoving parties, to file

a “supplemental Opposition to Motion for Summary Judgment by no later than March

08, 2013.” It then instructed that Hicks, the moving party, may file a “supplemental

Reply by no later than March 22, 2013.” Both parties eventually filed as instructed, and

appellants moved to strike portions of Hicks’ supplemental reply.




                                            7
       {¶18} In its motion to strike, appellants argued that Hicks raised new arguments

and included new evidentiary materials in his supplemental reply brief, which subjected

them to “summary judgment by ambush.” The trial court disagreed and stated the

cases cited by appellants in support were distinguishable because they “involved

conventional summary judgment motions, not motions to dismiss which were then

converted to summary judgment motions pursuant to Civ.R. 12(B).” We agree with

appellants that this is a distinction without a difference. In fact, under the circumstances

of this case, it seems that unless the conversion procedure allowed the nonmoving

party a reasonable opportunity to respond, there is even more of an opportunity for

“summary judgment by ambush” than with a conventional summary judgment motion.

              It is well-established that a party moving for summary judgment
              must expressly delineate each basis on which it seeks summary
              judgment in its motion so as to provide the opposing party a
              meaningful opportunity to respond. The danger in allowing a new
              argument to be asserted in a reply or a supplemental motion is that
              the opposing party does not have an opportunity to respond and
              may be subjected to summary judgment by ambush. Therefore,
              when a new argument is raised in a reply or supplemental motion
              for summary judgment, the proper procedure is to strike the reply or
              supplemental motion or, alternatively, to allow the opposing party to
              file a surreply.

Baker v. Coast to Coast Manpower, LLC, 3d Dist. Hancock No. 5-11-36, 2012-Ohio-

2840, ¶35 (internal citations omitted).

       {¶19} The trial court further stated that the “pertinent portion” of Civ.R. 12(B)

requires the court to give the parties “‘reasonable opportunity to present all materials

made pertinent to such a [converted] motion by Rule 56’” and that it “did exactly that, by

permitting the parties to submit supplemental briefs.”        A review of the entry that

converted the motion to dismiss to a motion for summary judgment indicates, however,




                                             8
that the procedure employed by the trial court did not provide appellants a reasonable

opportunity to respond to new, supplemental evidence filed by Hicks.

      {¶20} To prevail on a motion for summary judgment, the moving party has the

initial burden to affirmatively demonstrate that there is no genuine issue of material fact

to be resolved in the case, relying on evidence in the record pursuant to Civ.R. 56(C).

Dresher, supra, at 292. If this initial burden is met, the nonmoving party then bears the

reciprocal burden to set forth specific facts which prove there remains a genuine issue

to be litigated, pursuant to Civ.R. 56(E). Id. at 293. It stands to reason that if the

moving party’s burden is not met in the first instance, the burden never shifts to the

nonmoving party, and the motion for summary judgment must be denied. Id.

      {¶21} When a conventional motion for summary judgment is filed, “[u]nless

otherwise provided by local rule or by order of the court, the adverse party may serve

responsive arguments and opposing affidavits within twenty-eight days after service of

the motion, and the movant may serve reply arguments within fourteen days after

service of the adverse party’s response.” Civ.R. 56(C). When a motion to dismiss is

converted into a motion for summary judgment, however, the parties are notified and

the moving party is initially given a reasonable opportunity to file any additional

arguments or evidence. See, e.g., WFM Acquisition, L.L.C. v. Sekeremestrovich, 9th

Dist. Summit No. 21610, 2004-Ohio-1238, ¶10. This is logical, as the moving party did

not seemingly intend its motion to dismiss to be reviewed as a motion for summary

judgment; it therefore must be given an opportunity to meet its initial burden. If the

moving party meets this burden, the burden then shifts to the nonmoving party who is

given an opportunity to respond to the original motion to dismiss, attached evidentiary




                                            9
materials, and any additional arguments or evidence filed after conversion of the

motion. Allowing the nonmoving party to respond to only a portion of the arguments

and evidence that the trial court will eventually permit the moving party to present

confounds the burden-shifting exercise.

      {¶22} Here, the trial court simultaneously overruled appellants’ motion to strike

the new evidence and granted Hicks’ motion for summary judgment. In its judgment

entry, the trial court acknowledged that Hicks included new supporting evidentiary

materials in his supplemental reply brief. The trial court stated, in part, that “while the

Court described the supplemental submission to be filed by Plaintiff as a ‘supplemental

Reply,’ this did not, as Defendants claim, preclude Plaintiff from submitting any

evidence beyond what had already been included in its original motion to dismiss.”

Perhaps not; but because the court instructed the moving party to file its supplemental

brief last in time, it should not then have prevented the nonmoving party a meaningful

opportunity to respond to new evidence presented by the moving party in that

supplemental reply.

      {¶23} In addition, the trial court’s decision to convert the motion was based on its

assertion that Hicks “submitted extensive outside evidentiary materials in support of his

motion” to dismiss. We note, however, that although Hicks did attach nearly 50 exhibits,

they were not of evidentiary quality as required by Civ.R. 56. While Hicks suggested

the trial court could take judicial notice of many of the attachments, the trial court

properly refused to do so. As a result, because there was no properly authenticated

evidentiary material filed in support, the burden never shifted to appellants. Thereafter,

the only evidentiary material submitted by Hicks in support of a motion for summary




                                            10
judgment were the new affidavits attached to his supplemental reply and items

incorporated therein. For the first time, the trial court had before it proper evidentiary

material it could consider in support of the motion for summary judgment. Therefore,

under the circumstances, we find that the trial court did not abuse its discretion in

denying appellants’ motion to strike.

       {¶24} Appellants’ first assignment of error is without merit.

       {¶25} As noted, the trial court granted summary judgment in the same entry in

which it denied the motion to strike.     The trial court stated appellants should have

“requested an opportunity” to “offer additional evidentiary materials.”         We agree.

However, under the particular circumstances of this case, allowing the affidavits in the

supplemental reply effectively shifted the burden to appellants, for the first time, to

submit evidentiary material in response. Once the trial court, in its discretion, denied

the motion to strike, it should have allowed additional time for appellants to respond. As

a result, we find the trial court erred in granting summary judgment in favor of Hicks

without first providing appellants a reasonable opportunity to respond to the evidentiary

material after overruling the motion to strike. Additionally, we find the procedure utilized

by the trial court in converting the motion to dismiss and the standard it applied in ruling

on the motion for summary judgment improperly placed the initial burden of production

on appellants.

       {¶26} “The moving party cannot discharge its initial burden under Civ.R. 56

simply by making a conclusory assertion that the nonmoving party has no evidence to

prove its case but must be able to specifically point to some evidence of the type listed

in Civ.R. 56(C) that affirmatively demonstrates that the nonmoving party has no




                                            11
evidence to support the nonmoving party’s claims.”       Welch, supra, at ¶40.      “If the

moving party fails to satisfy its initial burden, the motion for summary judgment must be

denied.” Id.

      {¶27} Here, the trial court stated: “Thus, it is clear from the foregoing that

Plaintiff, prior to conversion of his motion, expressly argued that Defendants could prove

no facts which would support any of their Amended Counterclaims. Defendants were

then given the full opportunity to respond to these arguments and submit evidentiary

materials of their own[.]”   This reflects an improper placement of the burden on

appellants. Hicks did argue in his motion to dismiss that appellants could prove no facts

to support their counterclaim. However, this is not a proper argument in support of a

Civ.R. 12(B)(6) motion to dismiss; the issue is whether a cause of action is properly

alleged. Once that motion to dismiss was converted to a motion for summary judgment,

however, Hicks had the burden to demonstrate that, construing the evidence in a light

most favorable to appellants, there was no genuine issue of material fact to be resolved

in the case and that he was entitled to judgment as a matter of law.

      {¶28} Contrary to the trial court’s entry, appellants should not have had the initial

burden of coming forward with facts to support their counterclaim based solely on an

allegation that no supporting facts existed. Nevertheless, the first evidentiary material

submitted to the court regarding summary judgment was submitted by appellants, the

nonmoving parties.     A review of the record indicates that, prior to appellants’

submission, Hicks had not presented evidentiary material sufficient to shift the burden to

appellants to overcome the motion for summary judgment. Parenthetically, we note that

Hicks’ counsel conceded this fact at oral argument and also acknowledged that the




                                           12
sequence created by the trial court’s entry was a “procedural anomaly.”           Counsel

argued, however, that this “did not deprive the parties of their rights” and “there was no

prejudicial error.” We simply do not agree. If the nonmoving party had not responded

at all, summary judgment still would not have been proper. Because Hicks did not meet

his initial evidentiary burden, even if it was only due to the “procedural anomaly,” the

trial court erred in granting summary judgment in favor of Hicks.

       {¶29} We note that the dissenting opinion mischaracterizes our basis for finding

error. The trial court’s decision to convert the motion to dismiss to one for summary

judgment was based on the fact that Hicks attached numerous exhibits to his motion.

The trial court did not rely on those exhibits, however, in reaching its decision to grant

summary judgment. Whether appellants objected to the trial court relying on those

exhibits is therefore irrelevant. The trial court relied only on the proper evidentiary

material before it.   The procedure it employed to receive that evidentiary material

improperly placed the initial burden of production on the nonmoving party. Therein lies

the error.

       {¶30} Appellants’ second assignment of error has merit.

       {¶31} This does not end our analysis, however, as Hicks has also raised two

cross-assignments of error for our review:

             [1]. In addition to the grounds relied on by the Trial Court, the Trial
             Court’s decision to grant Plaintiff’s motion for summary judgment
             should also be upheld on the basis of the litigation privilege.

             [2.] In addition to the grounds relied on by the Trial Court, the Trial
             Court’s decision to grant Plaintiff’s motion for summary judgment as
             to the IIED claim should also be upheld on the basis that it is
             outside the statute of limitations.




                                             13
       {¶32} “In connection with an appeal of a final order, judgment, or decree of a

court, assignments of error may be filed by an appellee who does not appeal, which

assignments shall be passed upon by a reviewing court before the final order, judgment,

or decree is reversed in whole or in part.” R.C. 2505.22. See also Rzeszotarski v.

Sanborn, 11th Dist. Geauga No. 95-G-1906, 1996 Ohio App. LEXIS 2372, *25 (June 7,

1996) (“Cross-assignments of error are asserted for the purpose of preserving the relief

granted in the trial court’s judgment generally for reasons not advanced by the trial

court, to further guard against reversal * * *.”).

       {¶33} Hicks first argues the grant of summary judgment on all counts should be

upheld “on the alternative grounds that all conduct alleged by Defendants is protected

conduct under the litigation privilege.”      Because of the outcome under appellants’

second assignment of error—i.e., that the trial court improperly placed the initial burden

of production on appellants—we cannot uphold the grant of summary judgment on

alternative grounds that also require supporting evidentiary material.

       {¶34} Hicks’ first cross-assignment of error is without merit.

       {¶35} Hicks also asserts that the grant of summary judgment on the count of

intentional infliction of emotional distress should be upheld because it is barred by the

statute of limitations. In his brief on appeal, Hicks makes the following arguments: “[t]he

vast majority of [his] alleged wrongful conduct relates to [his] allegedly defamatory

statements, thus requiring application of the one year limitations period for defamation”;

certain other claims “are subject to the one-year statute of limitations for false

imprisonment or malicious prosecution”; and “[a]ll of this conduct occurred in the

summer of 2007.” In response, Cadle asserts that “under the continuous course of




                                              14
conduct doctrine * * * and with Hicks being a Colorado resident with limited excursions

into Ohio,” Hicks has not met his burden with regard to summary judgment being

warranted in his favor on the alternative grounds that Cadle was time-barred.

       {¶36} As a result, a determination as to whether Cadle’s intentional infliction of

emotional distress claim was barred by the statute of limitations is fact-intensive. The

trial court did not reach this issue in its entry and thus made no findings as to whether,

inter alia, the alleged wrongful conduct amounted to defamation, false imprisonment, or

malicious prosecution; whether it all occurred in the summer of 2007; whether the

conduct took place in Colorado or Ohio; and whether the continuous course of doctrine

applies. On remand, Cadle will have an opportunity to submit evidentiary material in

support of his position with regard to this cause of action. It would be inappropriate for

this court to address these factual allegations and legal arguments for the first time on

appeal. We therefore decline to address the statute of limitations issue until the trial

court has first engaged in a review of the issue. See, e.g., McDonald v. Corning, 5th

Dist. Perry No. 13-CA-00011, 2014-Ohio-1614, ¶26; Schmucker v. Kurzenberger, 9th

Dist. Wayne No. 10CA0045, 2011-Ohio-3741, ¶14; Lang v. Holly Hill Motel, Inc., 4th

Dist. Jackson No. 05CA6, 2005-Ohio-6766, ¶22; see also Murphy v. Reynoldsburg, 65

Ohio St.3d 356, 360 (1992).

       {¶37} Hicks’ second cross-assignment of error is without merit.

       {¶38} The judgment of the Trumbull County Court of Common Pleas is affirmed

in part and reversed in part, and the matter is remanded for further proceedings

consistent with this opinion.




                                           15
DIANE V. GRENDELL, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.


                                ____________________


COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

       {¶39} I would affirm the trial court’s grant of summary judgment to Mr. Hicks.

       {¶40} Initially, the majority contends the trial court relied on evidence outside the

bounds of Civil Rule 56 when it converted Mr. Hicks’ motion to dismiss to one for

summary judgment, thus improperly shifting the initial burden of proof in the summary

judgment exercise to appellants. I respectfully disagree. Improper summary judgment

evidence may be considered by a trial court if no objection is made to it. Millstone

Condos. Unit Owners Assn. v. 270 Main St., 11th Dist. Lake No. 2011-L-078, 2012-

Ohio-2562, ¶62. It does not appear appellants did object to the trial court relying on the

evidence submitted initially by Mr. Hicks.

       {¶41} Second, the majority contends the trial court improperly denied appellants

the opportunity to respond to new affidavits and evidentiary material appended by Mr.

Hicks to his reply brief. As the trial court noted, the new materials submitted by Mr.

Hicks responded to new materials submitted by appellants with their brief in opposition.

Thus, the materials submitted by Mr. Hicks with his reply brief were perfectly proper.

See, e.g., Capital One Bank (USA), NA v. Reese, 11th Dist. Portage No. 2014-P-0034,

2015-Ohio-4023, ¶98. However, as the trial court observed, appellants never sought to

submit further materials on the allegedly new issues set forth by Mr. Hicks, by way of




                                             16
supplemental affidavits (or a surreply): they simply sought to strike those materials and

arguments. The trial court could not err by failing to grant relief never requested.

       {¶42} The majority takes umbrage for an alleged mischaracterization of the

basis for its opinion. It asserts the trial court did not rely on the numerous exhibits

attached to Mr. Hicks’ motion to dismiss, once the trial court made the decision to

convert the motion to one for summary judgment. I disagree for two reasons.

       {¶43} First, why would the trial court convert the motion, if it did not intend to rely

on the evidentiary materials attached to it? Under Civ.R. 12(B)(6), the trial court had the

discretion simply to ignore those materials.

       {¶44} Second, the majority inaccurately relates what the trial court stated in its

February 22, 2013 judgment entry converting the motion to dismiss. To quote:

       {¶45} “In order to prevail on a Civ.R. 12(B)(6) motion, it must appear beyond

doubt from the complaint that the plaintiff can prove no set of facts entitling plaintiff to

recover. Hester v. Dwivedi, 89 Ohio St.3d 575, * * * (2000). A court is confined to the

averments set forth in the complaint and cannot consider outside evidentiary materials.

Id. If outside evidentiary materials are submitted, it is the trial court’s ‘responsibility

either to disregard extraneous material or to convert a motion to dismiss into a motion

for summary judgment when additional materials are submitted.’ Keller v. Columbus,

100 Ohio St.3d 192, 2003-Ohio-5599, * * *, ¶18; Monroe v. Forum Health, 11th Dist. No.

2012-T-0026, 2012-Ohio-6133, ¶36.         Further, if a Civ.R. 12(B)(6) motion presents

matters outside the pleadings, ‘and such matters are not excluded by the court, the

motion shall be treated as a motion for summary judgment.’ Civ.R. 12(B)(6). Prior to

converting a motion to dismiss for failure to state a claim into a motion for summary




                                               17
judgment, a trial court must give actual notice to the parties and provide an opportunity

to respond. State ex rel. Baran v. Fuerst, 55 Ohio St.3d 94, 97, * * * (1990).

       {¶46} “Here, Plaintiff has submitted extensive outside evidentiary materials in

support of his motion, and the Court finds it proper to convert Plaintiff’s Civ.R. 12(B)(6)

motion into a motion for summary judgment. The Court hereby provides notice that it is

converting Plaintiff’s Motion to Dismiss Amended Counterclaim for Failure to State a

Claim into a Motion for Summary Judgment.            Defendant may file a supplemental

Opposition to Motion for Summary Judgment by no later than March 08, 2013. Plaintiff

may file a supplemental Reply by no later than March 22, 2013.”

       {¶47} Further, in its November 3, 2014 judgment entry granting summary

judgment to Mr. Hicks, the trial court reiterated it had converted his motion to dismiss

into one for summary judgment specifically because of the “extensive outside

evidentiary materials” submitted in conjunction with that motion, then allowed the parties

to fully respond and submit any other relevant materials.

       {¶48} It belies the facts set forth in the trial court’s judgment entries, as well as

the trial court’s duty to review the record before it, to assume the trial court did not give

full consideration to the relevant evidentiary materials presented to it, and apply

summary judgment procedures properly.

       {¶49} I respectfully dissent.




                                             18
