COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59315 PETER TRYKOFF : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : CORRADO CONSTRUCTION CO., ET AL. : OPINION : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 24, 1991 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. 140979. JUDGMENT: REVERSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: Charles G. Deeb Interstate Square Bldg. I 4230 State Route 306 Willoughby, Ohio 44094 For Defendants-appellees: Keith D. Weiner Co., L.P.A. 75 Public Square, Suite 920 Cleveland, Ohio 44113 -2- SWEENEY, JAMES D., J.: Plaintiff-appellant Peter Trykoff files this appeal pursuant to the trial court's granting of defendant-appellee Corrado Construction Co. (Corrado) and Ken Corrado's motion to dismiss. This case arises out of a mechanic's lien filed by appellee Corrado Construction upon appellant. On October 23, 1987, Corrado filed an affidavit to obtain a mechanic's lien on three of appellant's sublots. Affidavit 0490901 was filed on sublot 28, and affidavit 0490904 was filed on sublot 31. The legal description of each parcel was broad enough so that lots 23 and 26 were also included. Affidavit 04090903 was filed on sublot 29. On November 17, 1987, appellee Corrado released the liens on sublots 23 and 26 with release 0501917 on affidavit 0490901, and release 0501918 on affidavit 040904. On December 21, 1987, appellant sent appellees a check for $1,808.33, the amount appellees claim was owing on sublot 29. On January 5, 1988, appellee Corrado released the lien on sublot 29 with release 0521450. Appellant filed suit against appellees on December 9, 1987, for declaratory judgment to determine the validity of the liens and for slander of title. Appellee filed a motion to dismiss pursuant to Civ. R.12(B)(6). In appellant's reply brief to the motion to dismiss, it was conceded that the declaratory judgment action was moot as the liens had been paid and released. -3- Before discussing the merits of this appeal, we note that although appellees flied a motion to dismiss pursuant to Civ. R.12(B)(6), documentary evidence was attached. Civ. R.12(B)(6) states in pertinent part: When 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. Provided, however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56. All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56. Civil Rule 56 specifies the types of evidence that the trial court may consider: *** Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. *** In the case sub judice, the trial judge did not convert the motion to dismiss into a motion for summary judgment. The evidence attached to the motion to dismiss and the reply brief consisted of copies of the mechanic's liens, the contract between appellee and Conrick construction, letters, and a copy of the cashier's check made out to appellee in the sum of $1,808.38. -4- This evidence does not fall within the parameters of Civ. R. 56, and was properly disregarded by the trial judge. Appellant has presented one assignment of error for review. THE COURT OF COMMON PLEAS ERRED IN HOLDING THE MECHANIC'S LIENS ISSUED WERE VALID. The standard for granting a motion to dismiss was recently set out by this court in Pollock v. Kantee (July 12, 1990), Cuyahoga App. 57212, unreported: The Ohio Supreme Court held in O'Brien v. University Community Tenants Union (1975), 42 Ohio St. 2d 242, as follows: for a court to dismiss a complaint for failing to state a claim upon which relief can be granted, it must appear beyond a doubt that the allegations in the complaint can prove no set of facts, which when construed most favorably to the plaintiff-appellant would entitle him to relief. Zuber v. Ohio Dept. of Insurance (1986), 34 Ohio App. 3d 42, 44. We must presume the truth of any factual allegations made by the plaintiff-appellant in his complaint. Clermont Environmental Reclamation Co. v. Hancock (1984), 16 Ohio App. 3d 9, citing Royce v. Smith (1981), 68 Ohio St. 2d 106, 108; State, ex rel. Alford v. Willoughby (1979), 58 Ohio St. 2d 221. Appellant filed this suit on two theories, one a declaratory judgment action to determine the validity of the appellee's mechanic's lien, and secondly, as a slander of title action. In order to determine whether or not the trial court properly granted appellee's motion, we must first examine R.C.1311.01- 1311.22, the statutes governing mechanic's liens on private construction. In order to properly file a mechanic's lien, the appellee had to file an affidavit pursuant to R.C. 1311.06, and then -5- pursuant to R.C. 1311.07, serve it on the owner or his agent. In the case at bar, appellee filed his affidavits, and served them on the general contractor, Conrick Construction Company (Conrick), and not on the actual owner, appellant. Appellant argues that as he was not served, the mechanic's lien did not properly come into existence. Appellee counters that Conrick signed the construction contract as the property owner, and was therefore the agent of the owner for purposes of service under the mechanic's lien laws. Although R.C. 1311.22 mandates liberal construction, courts have repeatedly held that mechanic's lien statutes should be strictly construed as to whether or not the lien attaches. Bowk v. Kratzer (1942), 140 Ohio St. 100. In order to determine whether or not the liens attached, the issue of whether or not Conrick was appellant's agent for purposes of service must first be examined. Agency, for the purposes of mechanic's lien law, was defined by the supreme court as "one who is the representative of the owner, part owner or lessee of the building under construction or repair and is his agent with reference to erection or repair of the structure upon which a mechanic's lien is attempted to be asserted." Mahoning Park Co. v. Warren Hom. Sev. Co. (1924), 109 Ohio St. 358. Here, it does not appear beyond doubt that the allegations in the complaint can prove no set of facts, which, when construed most favorably to the appellant, would entitle him to relief. -6- Whether or not Conrick was appellant's agent for purposes of receiving service under Mahoning, supra, cannot be determined on the pleadings alone. Under the circumstances here, the existence of an agency relationship should be determined on the presentation of competent factual evidence delineating the relationships of all of the parties. Appellant's assignment of error is well taken. Judgment reversed. -7- This cause is reversed for further proceedings consistent with this opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) his costs herein. It is ordered that a special mandate be sent to said 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. Exceptions. DAVID T. MATIA, P.J., and NAHRA, J., CONCUR. JAMES D. SWEENEY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .