[Cite as Cavalry Invests., Inc. v. Ngari, 2012-Ohio-3577.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97908




                        CAVALRY INVESTMENTS, LLC
                                                             PLAINTIFF-APPELLEE

                                                       vs.

                                   CHARLES M. NGARI
                                                             DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                         Civil Appeal from the
                                       Cleveland Municipal Court
                                       Case No. 2010 CVF 006244

        BEFORE: Cooney, J., Boyle, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: August 9, 2012
ATTORNEYS FOR APPELLANT

Gary Cook
Michael Aten
The Leader Building
526 Superior Avenue, East
Suite 455
Cleveland, OH 44114


ATTORNEY FOR APPELLEE

Stuart Tobin
Immerman & Tobin Co., LPA
10810 Indeco Drive
Cincinnati, OH 45241
COLLEEN CONWAY COONEY, J.:

      {¶1} Defendant-appellant, Charles M. Ngari (“Ngari”), appeals the municipal

court’s granting summary judgment in favor of plaintiff-appellee, Cavalry Investments,

LLC (“Cavalry”).   Finding merit to the appeal, we reverse and remand.

      {¶2} In April 2010, Cavalry filed suit against Ngari, alleging breach of contract.

In October 2010, Cavalry filed a motion for summary judgment. Ngari filed his brief in

opposition in November 2010.       One month later, the docket reveals that Cavalry filed a

notice of withdrawal of its motion for summary judgment because it had received Ngari’s

response to discovery and it was clear that further discovery was needed.     The case was

set for trial in June 2011. Cavalry filed a motion to continue the trial because it had

reached a settlement with Ngari.    When the settlement entry was not filed with the court,

the judge signed a proposed entry granting summary judgment in favor of Cavalry in

November 2011.

      {¶3} Ngari now appeals, arguing in his sole assignment of error that the trial

court erred in granting summary judgment in favor of Cavalry, after Cavalry withdrew its

motion for summary judgment.       Cavalry has not filed an appellee brief.

      {¶4} Generally, Civ.R. 56 does not authorize the entry of summary judgment in

favor of a party who has not moved for judgment.          Klamert v. Cleveland, 186 Ohio
App.3d 268, 2010-Ohio-443, 927 N.E.2d 618 (8th Dist.), citing Marshall v. Aaron, 15

Ohio St.3d 48, 472 N.E.2d 335 (1984).

       {¶5} However, numerous courts have found that a court’s sua sponte granting of

summary judgment to a nonmoving party is appropriate where all relevant evidence is

before the court, no genuine issue as to any material fact exists, and the nonmoving party

is entitled to judgment as a matter of law. Moreover, a court that is considering granting

summary judgment to a nonmoving party must ensure that the party against whom it is

considering entering summary judgment has had a fair opportunity to present both

evidence and arguments against the grant of summary judgment. Byers v. Robinson,

10th Dist. No. 08AP-204, 2008-Ohio-4833, ¶36, citing Charvat v. Dish TV Now, Inc.,

10th Dist. No. 07AP-759, 2008-Ohio-2019, and State ex rel. Moyer v. Montgomery Cty.

Bd. of Commrs., 102 Ohio App.3d 257, 656 N.E.2d 1366 (2d Dist.1995). At the time

the court granted summary judgment in the instant case, there was no “moving party”;

however, Cavalry had been the moving party before withdrawing its motion.

       {¶6} In Byers, the Tenth District Court of Appeals concluded that:

       in this case where (1) defendants filed and later withdrew a motion for
       summary judgment, (2) both parties had a fair opportunity to present both
       evidence and arguments concerning the granting of summary judgment in
       favor of defendants, and (3) all relevant evidence was before the trial court,
       we cannot conclude that the trial court’s sua sponte granting of summary
       judgment in favor of defendants necessarily is per se procedural error.
       Accord Charvat, at ¶13-15.

Id. at ¶37.
       {¶7} However, the instant case is distinguishable because the motion was based on

the failure to respond to discovery requests.      Thus, the evidence had not been fully

developed for the court’s ruling nor had Ngari been given a fair opportunity to present

evidence. Cavalry’s subsequent withdrawal of its motion, in which it admitted that “the

case is not ripe for summary judgment,” was based on the fact that Ngari did ultimately

provide discovery and further discovery was needed.

       {¶8} Therefore, the trial court erred in sua sponte granting summary judgment to

Cavalry. Accordingly, Ngari’s sole assignment of error is sustained.

       {¶9} Judgment reversed and case remanded.

       It is ordered that appellant recover of said appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the municipal

court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


______________________________________________
COLLEEN CONWAY COONEY, JUDGE

MARY J. BOYLE, P.J., and
MARY EILEEN KILBANE, J., CONCUR
