[Cite as White v. Cuyahoga Falls, 2016-Ohio-1200.]


STATE OF OHIO                    )                        IN THE COURT OF APPEALS
                                 )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

JEFFREY K. WHITE d/b/a/ J.K. WHITE                        C.A. No.   27807
CONSTRUCTION

        Appellant
                                                          APPEAL FROM JUDGMENT
        v.                                                ENTERED IN THE
                                                          COURT OF COMMON PLEAS
CITY OF CUYAHOGA FALLS, OHIO                              COUNTY OF SUMMIT, OHIO
                                                          CASE No.   CV2013-03-1266
        Appellee

                                DECISION AND JOURNAL ENTRY

Dated: March 23, 2016



        MOORE, Judge.

        {¶1}    Plaintiff-Appellant, Jeffrey White d/b/a J.K. White Construction, appeals from the

judgment of the Summit County Court of Common Pleas, granting summary judgment in favor

of Defendant-Appellee, the City of Cuyahoga Falls (“the City”). This Court affirms.

                                                     I.

        {¶2}    In December 2010, Samuel and Amanda Ellis (“the Ellises”) filed an application

to participate in the City’s Community Development Block Grant Housing Program (“the Grant

Program”). The federally-funded program allowed the City to match, up to $10,000, the cost of

certain improvements that qualifying residents made to their homes. As a part of the application

process, the Ellises elicited an estimate from Mr. White, a home construction and remodeling

contractor. Mr. White estimated that the improvements to the Ellises’ home would cost $17,122.

He submitted his proposal to the City, and the City’s Board of Control determined that the

Ellises qualified for the Grant Program. The City’s mayor authorized the placement of funds in
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an escrow account on behalf of the Ellises, for the work to be performed on their property. The

City also notified Mr. White that, to participate in the Grant Program, he would have to submit

several registration forms.

       {¶3}    After Mr. White submitted his registration forms, he started working on the

Ellises’ property. He was unable to finish, however, because the Ellises became dissatisfied with

the quality of his work. They refused to allow him back into their home and sought the help of

another construction company by the name of Innovative Construction, Inc. (“Innovative”).

Innovative identified multiple instances of substandard work in the Ellises’ home and provided

them with an estimate for repairing those items and finishing the improvements they desired.

The Ellises then agreed to hire Innovative. Upon Innovative’s completion of the work, the City

issued it a check from the funds it had escrowed on behalf of the Ellises. The City refused to

disburse any funds to Mr. White.

       {¶4}    Mr. White brought suit against the City based on its refusal to pay him in

accordance with the Grant Program. His complaint set forth two claims for breach of contract

and one claim for unjust enrichment. In his first breach of contract claim, he sought relief based

upon the contract that he allegedly had with the City. In his second breach of contract claim, he

sought relief as a third-party beneficiary, based upon the contract that the City allegedly had with

the Ellises. His complaint requested damages from the City in the amount of $8,561; one-half of

the $17,122 estimate that he had submitted on behalf of the Ellises.

       {¶5}    The City responded to Mr. White’s complaint by filing a motion to dismiss for

failure to state a claim. Mr. White opposed the motion, in part, on the basis that it relied on

evidentiary materials outside of the complaint. Upon review, the trial court notified the parties

that it was converting the City’s motion to dismiss into a motion for summary judgment. The
                                                 3


court ordered the City to file its motion for summary judgment by a specific date and noted that

Mr. White would be afforded time to respond to the motion. The court later granted the parties

extensions to conduct discovery and to file their respective motions.

       {¶6}    Thereafter, the City filed a motion for summary judgment, and Mr. White filed a

brief in opposition. The trial court then instructed the City to file an answer and, after resolving

several issues that arose, granted the parties leave to supplement their respective summary

judgment filings. Both parties filed supplements to their original filings, and the court entered

summary judgment in favor of the City. The court determined that, because there was no

evidence that a binding contract existed between either the City and Mr. White or the City and

the Ellises, Mr. White could not prevail on his breach of contract claims against the City. The

court further determined that Mr. White’s unjust enrichment claim failed as a matter of law.

       {¶7}    Mr. White now appeals from the court’s judgment and raises four assignments of

error for our review. For ease of analysis, we consolidate several of the assignments of error.

                                                II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED TO THE PREJUDICE OF [MR. WHITE] BY
       CONVERTING [THE CITY’S] MOTION TO DISMISS INTO A MOTION FOR
       SUMMARY JUDGMENT UNDER THE BELIEF THAT IT WAS
       AUTOMATICALLY REQUIRED TO BECAUSE [THE CITY] ATTACHED
       MATERIALS OUTSIDE THE PLEADINGS CONTRARY TO CIV. R. 12 AND
       CIV. R. 56.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED TO THE PREJUDICE OF [MR. WHITE] BY
       CONVERTING [THE CITY’S] MOTION TO DISMISS INTO A MOTION FOR
       SUMMARY JUDGMENT THEN FAILING TO TREAT THE MOTION TO
       DISMISS AS THE MOTION FOR SUMMARY JUDGMENT AND SUA
       SPONTE GRANTING [THE CITY’S] LEAVE TO FILE A MOTION FOR
       SUMMARY JUDGMENT, CONTRARY TO CIV. R. 12 AND CIV. R. 56.
                                                  4


                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED TO THE PREJUDICE OF [MR. WHITE] IN
       GRANTING [THE CITY’S] MOTION FOR SUMMARY JUDGMENT BY
       CONSIDERING [THE CITY’S] CLAIM THAT THERE WAS NO WRITTEN
       CONTRACT AS REQUIRED BY [THE CITY’S] MUNICIPAL CHARTER,
       SUCH CONSTITUTING THE DEFENSE OF IMMUNITY, THAT WAS
       RAISED ONLY IN [THE CITY’S] MOTION TO DISMISS AND
       CONVERTED MOTION FOR SUMMARY JUDGMENT, AND NOT RAISED
       IN [THE CITY’S] ANSWER TO [MR. WHITE’S] COMPLAINT, AND IS
       THEREFORE CONSIDERED WAIVED.

       {¶8}    In each of the foregoing assignments of error, Mr. White challenges several

procedural rulings that resulted in the trial court granting the City’s motion for summary

judgment.     Because he has not demonstrated prejudice as a result of the rulings that he

challenges, however, we reject his assignments of error.

       {¶9}    Mr. White argues that the trial court erred when it converted the City’s motion to

dismiss into a motion for summary judgment. His argument is twofold. First, he argues that the

court erred because it failed to realize that it could still treat the City’s motion as one to dismiss

and simply refuse to consider the evidentiary materials attached to the motion. Mr. White notes

that many of the items were not proper Civ.R. 56(C) materials, so the court should not have

permitted their introduction. See Civ.R. 12(B) (court, in treating motion to dismiss as one for

summary judgment, “shall consider only such matters outside the pleadings as are specifically

enumerated in Rule 56”). Instead, he argues, the court should have treated the City’s motion as

one to dismiss and confined its review to the factual allegations contained in Mr. White’s

complaint. See id.

       {¶10} Second, Mr. White argues that the court erred when it allowed the City to file a

separate motion for summary judgment. He argues that, once the court converted the City’s

motion to dismiss into a motion for summary judgment, the filing of a separate summary
                                                 5


judgment motion was unnecessary. According to Mr. White, “although stating it was converting

[the City’s] Motion to Dismiss into a Motion for Summary Judgment, [the trial court] was in fact

ignoring the motion to dismiss and granting [the City] leave to file a motion for summary

judgment.” He argues that, once the court converted the City’s motion to dismiss, it should have

proceeded under Civ.R. 56(C). See Civ.R. 12(B). By allowing the City to file another motion,

Mr. White argues, the court gave the City the opportunity to raise new arguments. Specifically,

he argues that the City was able to raise for the first time the affirmative defense of sovereign

immunity.

       {¶11} In reviewing a Civ.R. 12(B)(6) motion to dismiss, a trial court may not consider

matters outside of the pleadings. Savoy v. Kramer, 9th Dist. Summit No. 27418, 2015-Ohio-437,

¶ 9. “Where the trial court chooses to consider evidence or materials outside the complaint, the

court must convert the motion to dismiss into a motion for summary judgment and give the

parties notice and a reasonable opportunity to present all materials made pertinent to such motion

by Civ.R. 56.” Cotton v. Anderson, 9th Dist. Lorain No. 06CA008984, 2007-Ohio-6548, ¶ 5.

Notice is required so as not to place the non-moving party at a disadvantage. See Haley v.

Nomad Preservation, Inc., 9th Dist. Summit No. 26990, 2014-Ohio-181, ¶ 8, quoting Petrey v.

Simon, 4 Ohio St.3d 154, 155 (1983). “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 at 155, quoting Portland Retail Druggists Assn. v. Kaiser Found.

Health Plan, 662 F.2d 641, 645 (9th Cir.1981).

       {¶12} Because the City’s motion to dismiss relied upon matters outside the scope of the

pleadings, the trial court chose to convert the motion to a motion for summary judgment.
                                               6


Consistent with our precedent, the court gave both parties notice of its intention to proceed to

summary judgment and an opportunity to present additional materials. Indeed, the court granted

Mr. White’s motion for discovery, provided the parties with several filing extensions, and later

allowed them to supplement their filings. There is no indication in the record that Mr. White was

surprised by the court’s decision or lacked sufficient opportunity to discover the materials upon

which he needed to rely. See Petry at 155, quoting Portland Retail Druggists Assn. at 645.

       {¶13} Although the City’s motion to dismiss relied upon improper Civ.R. 56(C)

materials, Mr. White cannot show that the trial court’s procedural rulings prejudiced him. The

trial court, while stating that it was converting the City’s motion to dismiss into a motion for

summary judgment, ordered the City to file a motion for summary judgment. By Mr. White’s

own admission, the effect of the court’s ruling was essentially to bypass the motion to dismiss

and grant the City leave to file summary judgment. Moreover, when the City later filed its

motion for summary judgment, Mr. White did not object to the City’s evidentiary materials in his

brief in opposition. Even assuming that the City relied upon improperly introduced evidentiary

materials in its motion for summary judgment, the trial court had the discretion to consider them

in the absence of an objection. Wolford v. Sanchez, 9th Dist. Lorain No. 05CA008674, 2005-

Ohio-6992, ¶ 20, quoting Christie v. GMS Mgt. Co., Inc., 124 Ohio App.3d 84, 90 (9th

Dist.1997).

       {¶14} To the extent Mr. White argues that the procedure the court employed here

improperly allowed the City to raise the defense of sovereign immunity, the record does not

support his argument. Even assuming that the City could defend against Mr. White’s claims on

the basis of sovereign immunity, but see R.C. 2744.09(A), the City never argued sovereign

immunity in its motion for summary judgment. Its argument was that Mr. White’s claims should
                                                  7


fail as a matter of law due to the absence of a binding contract. As such, Mr. White has not

shown that the court’s rulings provided the City with an opportunity to raise a new affirmative

defense.

       {¶15} Even if the procedure that the court here employed did not directly align with the

procedure outlined in Civ.R. 12(B), Mr. White has not shown that he was prejudiced as a result.

The trial court gave both parties advanced notice of its intention to treat the issues the City raised

as issues for summary judgment. It also gave them an opportunity for discovery, several filing

continuances, and the ability to supplement their respective filings at a later date. Had the court

denied the City’s initial motion to dismiss, nothing would have prevented the City from filing a

motion for summary judgment and raising the same arguments at a later date. Mr. White has not

shown that the procedure the court employed affected the outcome in this matter. See Princess

Kim, L.L.C. v. U.S. Bank, N.A., 9th Dist. Summit No. 27401, 2015-Ohio-4472, ¶ 18 (“Only error

which affects or presumptively affects the final outcome of the case is prejudicial.”). As such,

his first, second, and third assignments of error are overruled.

                                 ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED TO THE PREJUDICE OF [MR. WHITE] BY
       GRANTING [THE CITY’S] MOTION FOR SUMMARY JUDGMENT IN
       FAVOR OF [THE CITY] BY DETERMINING THAT THERE WAS NO
       EXISTING WRITTEN CONTRACT BETWEEN [MR. WHITE] AND [THE
       CITY], WHO WERE PARTICIPANTS IN THE U.S. DEPARTMENT OF
       HOUSING AND URBAN DEVELOPMENT’S RESIDENTIAL HOUSING
       REHABILITATION MATCHING GRANT PROGRAM, REQUIRING [THE
       CITY] TO COMPENSATE [MR. WHITE] FOR SERVICES PROVIDED
       PURSUANT TO SUCH PROGRAM.

       {¶16} In his fourth assignment of error, Mr. White argues that the trial court erred when

it granted the City’s motion for summary judgment. Specifically, he argues that genuine issues
                                                 8


of material fact remain for trial on the issue of whether there was a binding contract between

either himself and the City or the City and the Ellises. We disagree.

        {¶17} We review an award of summary judgment de novo. Grafton v. Ohio Edison Co.,

77 Ohio St.3d 102, 105 (1996). We apply the same standard as the trial court, viewing the facts

of the case in the light most favorable to the non-moving party and resolving any doubt in favor

of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983).

        {¶18} Pursuant to Civ.R. 56(C), summary judgment is proper only if:

        (1) No 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). The party moving for summary

judgment bears the initial burden of informing the trial court of the basis for the motion and

pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher

v. Burt, 75 Ohio St.3d 280, 292-93 (1996). “If the moving party fails to satisfy its initial burden,

the motion for summary judgment must be denied.” Id. at 293. If the moving party fulfills this

burden, then the burden shifts to the nonmoving party to prove that a genuine issue of material

fact exists. Id.

        {¶19} “It is a long-standing principle of Ohio law that ‘all governmental liability ex

contractu must be express and must be entered into in the prescribed manner * * *.’” NaphCare,

Inc. v. Cty. Council of Summit Cty., 9th Dist. Summit No. 24906, 2010-Ohio-4458, ¶ 23, quoting

Kraft Const. Co. v. Cuyahoga Cty. Bd. of Commrs., 128 Ohio App.3d 33, 44 (8th Dist.1998). “A

thread running throughout the many cases the [Ohio Supreme Court] has reviewed is that [a]

contractor must ascertain whether [a] contract complies with the Constitution, statutes, charters,
                                                 9


and ordinances so far as they are applicable. If he does not, he performs at his peril.” Lathrop

Co. v. Toledo, 5 Ohio St.2d 165, 173 (1966).

       {¶20} In support of its motion for summary judgment, the City introduced a copy of its

Charter and the affidavit of Denise Bell, the former Administrator of the Grant Program. The

City’s charter provides, in relevant part, that the City’s law director “shall prepare all contracts,

bonds, and other instruments in writing in which the City is concerned and endorse on each his

approval of the form and correctness thereof.” Charter of the City of Cuyahoga Falls, Ohio, Art.

III, Sec. 3 (2011). It further provides that “[a]ny contract, verbal or written, made in violation of

this Charter shall be null and void.” Charter of the City of Cuyahoga Falls, Ohio, Art. VI, Sec.

10 (2011).

       {¶21} In her affidavit, Bell averred that the Ellises were residents of the City and applied

for federal grant matching through the Grant Program. She stated that the City approved their

grant application, and the Ellises chose Mr. White as their contractor. Ms. Bell averred that the

City “ensured that [Mr.] White was registered properly to perform the work.” Mr. White did not

receive the Ellises’ grant money, however, because his “substandard” work caused the Ellises to

hire Innovative. Ms. Bell averred that the City paid Innovative the money that remained in the

grant set aside for the Ellises. She further averred that the City never “entered into written

agreements with either [Mr.] White or the Ellises.”

       {¶22} In opposing the City’s motion for summary judgment, Mr. White argued that

numerous documents, when read together, evidenced the existence of contract between himself

and the City as well as the City and the Ellises. He attached to his brief in opposition copies of

all the registration materials he submitted to the City, the Ellises’ application for funding, their

funding approval from the City, and many documents related to the City’s participation in the
                                               10


Grant Program. Mr. White never produced, however, a copy of a contract prepared and endorsed

by the City’s law director. See Charter of the City of Cuyahoga Falls, Ohio, Art. III, Sec. 3

(2011). The trial court determined that Mr. White could not prevail on his contract claims

because “the procedural prerequisites for the formation of a contract that could bind the City

were not met.” Upon review of the record, we agree with the trial court’s conclusion.

       {¶23} As previously noted, a contractor performs at his own peril when he fails to

ascertain whether his purported contract with a municipality “complies with the Constitution,

statutes, charters, and ordinances so far as they are applicable.” Lathrop Co., 5 Ohio St.2d at

173. The City set forth evidence that its Charter required its law director to prepare and endorse

all of the City’s contracts. It further set forth evidence that it never entered into a written

contract with either Mr. White or the Ellises. Accordingly, the City satisfied its initial Dresher

burden, and the burden shifted to Mr. White to produce evidence of a contract that complied with

the City’s charter. See Dresher, 75 Ohio St.3d at 293. Mr. White, however, failed to set forth

any such evidence. Because he did not produce any evidence of the existence of a binding

contract between himself and the City or the City and the Ellises, the court did not err by

granting summary judgment in favor of the City on his contract claims. His fourth assignment of

error is overruled.

                                               III.

       {¶24} Mr. White’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.
                                                11


       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     CARLA MOORE
                                                     FOR THE COURT



HENSAL, P. J.
WHITMORE, J.
CONCUR.


APPEARANCES:

PAUL R. HOFFER, Attorney at Law, for Appellant.

JAMES E. BANAS, Attorney at Law, for Appellant.

RUSSELL W. BALTHIS, Director of Law, JANET M. CIOTOLA, Deputy Law Director, and
MATTHEW A. DICKINSON, Assistant Director of Law, for Appellee.
