[Cite as Haley v. Nomad Preservation, Inc., 2014-Ohio-181.]


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

STEPHEN T. HALEY                                              C.A. No.   26990

        Appellant

        v.                                                    APPEAL FROM JUDGMENT
                                                              ENTERED IN THE
NOMAD PRESERVATION, INC, et al.                               COURT OF COMMON PLEAS
                                                              COUNTY OF SUMMIT, OHIO
        Appellees                                             CASE No.   CV 2010 11 7619

                                 DECISION AND JOURNAL ENTRY

Dated: January 22, 2014



        HENSAL, Judge.

        {¶1}    Stephen Haley appeals two judgments of the Summit County Court of Common

Pleas. For the following reasons, this Court affirms.

                                                      I.

        {¶2}    Most of the facts of this case were outlined by this Court in Haley v. Nomad

Preservation, Inc., 9th Dist. Summit No. 26492, 2013-Ohio-159. Mr. Haley obtained a judgment

against Nomad Preservation, Inc., which included the attachment of several vehicles that the

company had fraudulently transferred.           In 2010, Mr. Haley sued the present owner of the

vehicles, including Hassan Dabaja, Afife Makki, and Hussein Ayache.

        {¶3}    After Mr. Ayache filed his Answer, Mr. Haley moved for summary judgment

against him. Mr. Ayache, however, moved to dismiss the claim, arguing that a judge in another

case had already determined that he was an innocent buyer under Revised Code Section

1336.08(A) and, therefore, was not liable to Mr. Haley. The trial court granted Mr. Ayache’s
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motion. On appeal, this Court reversed, concluding that the trial court should have construed

Mr. Ayache’s motion to dismiss as a motion for summary judgment and provided Mr. Haley an

opportunity to respond before ruling on it. On remand, Mr. Haley filed a response to Mr.

Ayache’s motion. Upon consideration of the motion and Mr. Haley’s response, the trial court

granted the motion again. Mr. Haley has appealed the court’s judgment in favor of Mr. Ayache.

        {¶4}    Meanwhile, Ms. Makki and Mr. Dabaja did not answer Mr. Haley’s complaint.

Instead, they moved to dismiss the claims against them for lack of personal jurisdiction. The

attorney who filed their motions, however, was not authorized to practice law in Ohio, so the

trial court struck the pleadings. Mr. Haley subsequently moved for a default judgment and for

summary judgment against Ms. Makki and Mr. Dabaja. After the court granted Mr. Haley’s

motion for summary judgment, Ms. Makki moved to vacate the court’s judgment, arguing that it

was void against her for lack of personal jurisdiction. Following a hearing, the trial court granted

her motion. On appeal, this Court affirmed, concluding that Ms. Makki had never waived her

right to challenge the trial court’s jurisdiction.

        {¶5}    While Mr. Haley’s appeal on Ms. Makki’s motion to vacate was pending, Mr.

Dabaja also moved to vacate the trial court’s judgment for lack of personal jurisdiction.

According to Mr. Dabaja, the vehicle was sold and titled in Michigan, he does not own any

property in Ohio, he has never transacted any business in Ohio, he has never caused any tortious

injury in Ohio, he has never contracted to supply any goods or services in Ohio, he has never

contracted to insure any person or property in Ohio, he has no agents that operate in Ohio, and he

has never resided in Ohio. After this Court affirmed the trial court’s judgment regarding Ms.

Makki, the trial court reviewed Mr. Dabaja’s motion to vacate and Mr. Haley’s opposition. It

determined that, like Ms. Makki, Mr. Dabaja had not waived his right to contest the court’s
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jurisdiction over him. Noting Mr. Dabaja’s motion’s similarity to Ms. Makki’s motion, the court

found that it did not have personal jurisdiction over Mr. Dabaja, and granted his motion. Mr.

Haley has appealed the trial court’s judgment granting Mr. Dabaja’s motion to vacate.

                                               II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERR[ED] AS A MATTER OF LAW BY DENYING
       HALEY’S MOTION FOR SUMMARY JUDGMENT AGAINST DEFENDANT
       HUSSEIN AYACHE (“AYACHE”) AND DISMISSING THE COMPLAINT
       AGAINST AYACHE PURSUANT TO AN UNTIMELY MOTION TO
       DISMISS WHICH CONTAINED MATERIAL OUTSIDE [THE] FOUR
       CORNERS OF THE COMPLAINT WHILE FAILING TO CONSTRUE THE
       MOTION TO DISMISS AS A MOTION FOR SUMMARY JUDGMENT.

       {¶6}   Mr. Haley argues that the trial court incorrectly considered a document that

Ayache attached to his motion to dismiss instead of only examining the motion itself. He also

argues that, since a motion to dismiss can only be filed before a party answers, the motion to

dismiss was untimely.

       {¶7}   In this Court’s previous decision, we noted that, regardless of how it was

captioned, Mr. Ayache’s motion to dismiss “was not a proper motion to dismiss because it

sought to have the trial court consider materials beyond the complaint.” Haley, 2013-Ohio-159

at ¶ 17. We explained that such motions should be construed as motions for summary judgment.

Id. We also noted that the trial court had ruled on Mr. Ayache’s motion only one hour after Mr.

Ayache filed it. We, therefore, remanded the case back to the trial court to “allow Mr. Haley a

reasonable opportunity to respond to Mr. Ayache’s motion.” Id. at ¶ 19. On April 10, 2013, the

trial court entered an order explaining that, in light of this Court’s decision, Mr. Haley would

have until April 30, 2013, to respond to Mr. Ayache’s motion. Mr. Haley filed a timely

response, arguing, exclusively, that the motion was untimely under Civil Rule 12(B).
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        {¶8}    Regarding Mr. Haley’s argument that the trial court could not consider the

document Mr. Ayache attached to his motion, Civil Rule 12(B) provides, in part, that, “[if] a

motion to dismiss for failure to state a claim upon which relief can be granted presents matters

outside the pleading * * *, the motion shall be treated as a motion for summary judgment and

disposed of as provided in Rule 56.” The rule also provides that “[a]ll parties shall be given

reasonable opportunity to present all materials made pertinent to such a motion by Rule 56.” In

Petrey v. Simon, 4 Ohio St.3d 154, 155 (1983), the Ohio Supreme Court recognized the

importance of notifying a party that the court was going to convert a motion to dismiss into a

motion for summary judgment.

        If the conversion occurs unexpectedly, the non-moving party is left at the
        disadvantage of being 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.

Id., quoting Portland Retail Druggists Assn. v. Kaiser Found. Health Plan, 662 F.2d 641, 645

(9th Cir.1981). “Parties deserve a reasonable opportunity to demonstrate whether a genuine

issue of fact exists.” Id. at 156.

        {¶9}    In this case, Mr. Haley had ample notice that the trial court was going to consider

evidence outside the four corners of the pleadings when ruling on Mr. Ayache’s motion. Not

only had the trial court considered other evidence the first time it ruled on the motion, this Court

explained in its decision that it was proper for the trial court to consider other evidence so long as

notice was given. In light of the procedural history of this particular case, we cannot say that the

trial court’s consideration of Mr. Ayache’s affidavit was unexpected or that Mr. Haley did not

have an adequate opportunity to oppose the evidence.
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       {¶10} Regarding Mr. Haley’s argument that Mr. Ayache’s motion was untimely, his

argument focuses on the timing of motions to dismiss under Civil Rule 12(B)(6). As this Court

pointed out in its prior decision, Mr. Ayache’s motion was not a motion to dismiss, but a motion

for summary judgment “because it sought to have the trial court consider materials beyond the

complaint.” Haley, 2013-Ohio-159 at ¶ 17. Accordingly, the motion was not subject to the

timing requirements under Rule 12(B). Mr. Haley’s assignment of error is overruled.

                                  ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED AS A MATTER OF LAW BY GRANTING
       HASSAN DABAJA’S (“DABAJA”) MOTION TO VACATE JUDGMENT
       AND DISMISSING APPELLANT-PLAINTIFF STEPHEN T. HALEY’S
       (“HALEY”) COMPLAINT TWENTY-SIX (26) MONTHS AFTER IT WAS
       FILED AND PROPERLY SERVED UPON DABAJA WHEN THE DEFENSE
       OF PERSONAL JURISDICTION WAS WAIVED PURSUANT TO CIV.R.
       12(A)(B))(H) (SIC) AND DABAJA SUBSEQUENTLY FAILED TO APPEAL
       THE JUDGMENT ENTERED AGAINST HIM.

       {¶11} Mr. Haley argues that the trial court incorrectly determined that Mr. Dabaja did

not waive his right to contest personal jurisdiction. He argues that it was not proper for Mr.

Dabaja to use a motion to vacate to contest the trial court’s jurisdiction, but, instead, should have

filed a timely appeal after the court entered judgment against him. He also argues that the

circumstances are not the same as they were with respect to Ms. Makki’s motion to vacate, so the

court improperly relied on this Court’s decision as to Ms. Makki’s motion when ruling on Mr.

Dabaja’s motion.

       {¶12} In this Court’s previous decision, we noted that Ms. Makki had filed a motion to

dismiss and a motion to vacate, and had challenged the trial court’s jurisdiction in both motions.

Haley, 2013-Ohio-159 at ¶ 12. We rejected Mr. Haley’s argument that Ms. Makki had entered

an appearance by filing a motion to dismiss that was later struck, concluding that there was “no

way to construe Ms. Makki’s attempt to file a motion to dismiss for lack of personal jurisdiction
                                                  6


as anything other than a challenge to the trial court’s jurisdiction.” Id. “Thus, we cannot

conclude that Ms. Makki waived the issue of the trial court’s jurisdiction.” Id.

       {¶13} Similar to Ms. Makki, Mr. Dabaja filed a motion to dismiss for lack of personal

jurisdiction that the trial court struck because it was not filed by a lawyer who was licensed to

practice in the State of Ohio. Like Ms. Makki, after the trial court entered judgment, he filed a

motion to vacate that challenged the trial court’s personal jurisdiction. The only difference is

that Mr. Dabaja filed his motion to vacate more than a year after Ms. Makki filed her motion.

Mr. Haley has not cited any authority suggesting that a party forfeits his right to move to vacate a

judgment that was rendered without personal jurisdiction merely because of the passage of time.

See Civ.R. 12(H)(1) (setting out specific conditions under which a party waives the defense of

lack of jurisdiction over the person); Timekeeping Sys., Inc. v. Safety Protection Universal Ltd.,

8th Dist. Cuyahoga No. 99714, 2013-Ohio-3919, ¶ 12 (concluding that defendant had right to

assert the defense of personal jurisdiction in her motion to vacate the default judgment).

Although Mr. Haley argues that Mr. Dabaja’s motion to vacate is distinguishable from Ms.

Makki’s motion because Mr. Dabaja did not file his motion until after the trial court entered a

final appealable order, it is typical for a party not to file a motion to vacate until after the court

enters final judgment    Accordingly, as with Ms. Makki, we conclude that Mr. Dabaja did not

waive his right to challenge the trial court’s personal jurisdiction.

       {¶14} We note that Mr. Haley has not contested the merits of the trial court’s decision

regarding whether the court had personal jurisdiction over Mr. Dabaja. Mr. Haley’s second

assignment of error is overruled.
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                                                III.

       {¶15} The trial court correctly granted Mr. Ayache’s and Mr. Dabaja’s motions. The

judgments of the Summit County Common Pleas Court are affirmed.

                                                                             Judgments affirmed.




       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.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT



BELFANCE, J.
CONCURS.

MOORE, P. J.
CONCURS IN JUDGMENT ONLY.
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APPEARANCES:

STEPHEN T. HALEY, pro se, Appellant.

JAMES W. SLATER and ANDREW J. PULLEKINS, Attorneys at Law, for Appellee.

HUSSEIN A. AYACHE, pro se, Appellee.
