COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68793 GARY G. HABEEB, ET AL. : : Plaintiff-appellants : : JOURNAL ENTRY -vs- : AND : OPINION STANLEY MAGIC DOOR, INC. : : Defendant-appellee : : DATE OF ANNOUNCEMENT : DECEMBER 14, 1995 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-281107 JUDGMENT : AFFIRM DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants: For defendant-appellee: PAUL MANCINO, JR., ESQ. JACK A. PETSCHE, III, ESQ. Suite 1016 2305 E. Aurora Road, Unit A-9 75 Public Square Twinsburg, OH 44087 Cleveland, OH 44113-2098 - 2 - PATTON, C.J. Plaintiff Gary Habeeb leased property to a dry cleaning business. The dry cleaner contracted with defendant Stanley Magic Door, Inc. to install a door on the property. When a dispute arose over the performance of the contract, Stanley placed a mechanic's lien against the property. Plaintiff then brought this action for slander of title, alleging the mechanic's lien placed a cloud over his title. Plaintiff sought compensatory and punitive damages of $50,000. Stanley did not answer the complaint, but filed a motion to dismiss the complaint pursuant to Civ.R. 12(B)(6). In the motion, Stanley detailed the underlying contract dispute between it and the dry cleaner, submitting documents showing it had obtained a judgment, the dry cleaner had satisfied the judgment, and the lien had been removed from plaintiff's title. Finally, Stanley argued plaintiff failed to state a claim for relief since he did not plead real pecuniary damages and failed to allege Stanley filed its lien fraudulently, maliciously or falsely. Plaintiff opposed the motion to dismiss, arguing Stanley submitted evidentiary materials going beyond a legal challenge to the sufficiency of the complaint under Civ.R. 12(B)(6). Stanley then filed "a motion to dismiss and/or for summary judgment," incorporating the same evidentiary materials. Plaintiff asked the court to strike the motion to dismiss and/or summary judgment claiming it had been filed out of rule and relied on a legally - 3 - insufficient affidavit. The trial court did not address the motion to strike, but treated the motion to dismiss as a motion for summary judgment and granted judgment for Stanley. In this appeal, plaintiff does not challenge the substance of the summary judgment; rather, he raises three issues that are procedural in nature. The first assignment of error is the trial court erred by converting the motion to dismiss into a motion for summary judgment without giving proper notice. Although the trial court must notify all parties when it converts a motion to dismiss into a motion for summary judgment, Petrey v. Simon (1983), 4 Ohio St.3d 154, in this case the trial court had no need to notify plaintiff since Stanley styled its motion in the alternative. Applegate v. Fund for Constitutional Govt. (1990), 70 Ohio App.3d 813, 816. Indeed, plaintiff opposed the alternatively styled motion in part by claiming Stanley's affidavit was improper under Civ.R. 56(E). Under the circumstances, plaintiff's opposition to the summary judgment belies any claim that he lacked notice of the court's intent to render judgment pursuant to Civ.R. 56. The first assignment of error is overruled. The second assignment of error is the trial court erred by accepting Stanley's motion to dismiss and/or summary judgment without granting leave pursuant to Loc.R. 11(D) of the Court of Common Pleas of Cuyahoga County, General Division. Loc.R. 11(D) states, "[r]eply or additional briefs upon motions and submissions may be filed with leave of the court only upon a showing of good - 4 - cause." Because the motion for summary judgment had been raised for the first time in the alternatively styled brief, it was not a "reply or additional brief" upon a motion and Loc.R. 11(D) did not expressly apply. In any event, the trial court impliedly granted leave to file the motion for summary judgment when it granted the motion for summary judgment. See Roszak v. Princess Cruises, Inc. (1993), 90 Ohio App.3d 109, at fn.1; Farmer v. Luntz Corporation (Jan. 21, 1993), Cuyahoga App. No. 61873, unreported. Because we find the court did not abuse its discretion by considering the alternatively styled motion, we overrule the second assignment of error. The third assignment of error complains the trial court erred by granting summary judgment on the basis of an attached affidavit of counsel which failed to state the counsel's personal knowledge of the subject matter. We have reviewed the affidavit in question and find it comports with Civ.R. 56(E). Counsel submitted the affidavit in order to satisfy the requirements of Civ.R. 56(E) that sworn or certified copies of all papers referred to in the affidavit be attached with a statement that all copies are true copies and reproductions. See Biskupich v. Westbay Manor Nursing Home (1986), 33 Ohio App.3d 220, 222. Read liberally, counsel's affidavit fulfills that requirement and the trial court did not abuse its discretion by accepting the affidavit. State ex rel. - 5 - Corrigan v. Seminatore (1981), 66 Ohio St.2d 459, 467-468. The third assignment of error is overruled. Judgment affirmed. - 6 - It is ordered that appellee recover of appellants its 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 Court of Common Pleas 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. JAMES D. SWEENEY, J. DAVID T. MATIA, J., CONCUR CHIEF JUSTICE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .