COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71821 CARPET BARN & TILE HOUSE : ACCELERATED DOCKET : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION CSH, INC., dba CORNERSTONE : HOMES, INC. : : Defendant-Appellee : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION JUNE 5, 1997 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 303344 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: LEONARD S. GREENWALD, ESQ. RONALD J. PERRIN, ESQ. 1617 Superior Building 2860 Bonny Boulevard 815 Superior Ave., N.E. Cleveland, Ohio 44134 Cleveland, Ohio 44114 - 2 - PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 25. Plaintiff-appellant Carpet Barn and Tile House ("Carpet Barn") appeals from the trial court's granting defendant-appellee's, CSH, Inc.'s, motion for summary judgment. For the reasons set forth below, we affirm the trial court's judgment. On February 14, 1996, plaintiff filed a complaint against defendant for the balance due for goods and services, i.e., for the sale and installation of carpeting. Plaintiff claimed that the balance of $5,300 was outstanding on defendant-appellee's account. Attached to the plaintiff's complaint was a copy of a purchase order for the carpeting which showed that a Mr. James was the customer. On May 23, 1996, the defendant filed a one page motion to dismiss the plaintiff's complaint for failure to state a claim. The trial court subsequently denied this motion on June 17, 1996. Defendant then filed an answer on July 2, 1996. A pretrial was held on July 22, 1996 and at this time the trial court set a discovery cut off date of October 22, 1996 and referred the matter to arbitration. On October 21, 1996, defendant filed a motion for summary judgment pursuant to Civ.R. 56. Defendant argued that the contract for carpeting and installation attached to the complaint was not entered into by CSH. As such, plaintiff failed to state a cause of - 3 - action against defendant. On November 7, 1996, plaintiff filed a motion to strike defendant's motion for summary judgment as it was filed without leave of the trial court. On November 29, 1996, the trial court vacated its order referring the matter to arbitration; denied the plaintiff's motion to strike; and granted the defendant's motion for summary judgment. Defendant subsequently appealed assigning three assignments of error. I. THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BECAUSE A PRE-TRIAL HAD ALREADY BEEN HELD AND THE DEFENDANT DID NOT OBTAIN A LEAVE FROM THE LOWER COURT TO FILE THE MOTION AS REQUIRED BY OHIO CIVIL RULE 56(A). In its first assignment of error, plaintiff argues the trial court erred in not striking the defendant's motion for summary judgment as it was filed without leave of court. Plaintiff argues that leave of court was required as the matter was set for pretrial. Civ.R. 56(A) states in pertinent part, "if the action has been set for pretrial or trial, a motion for summary judgment may be made only with leave of court." This assignment of error has no merit. Although the defendant failed to file a motion to leave to file its motion for summary judgment, the trial court implicitly granted leave to defendant by overruling plaintiff's motion to strike the defendant's motion. See National City Bank v. Fleming (1981), 2 Ohio App.3d 50, 54 (trial court implicitly granted leave to file a counterclaim when it overruled appellant's motion to strike); - 4 - Dokes v. Cunningham & Motorists Ins. Co. (Jan. 18, 1995), Summit App. No. 16842, unreported (by overruling motion to strike, trial court granted, "sub silentio" defendant leave to file a motion for summary judgment). Furthermore, this Court has held in the past that a trial court's granting a motion for summary judgment filed without leave indicates its implicit granting of leave. Juergens v. Strang, Klubnik & Assoc., Inc.(1994), 96 Ohio App.3d 223, 234; Habeeb v. Stanley Magic Door, Inc. (Dec. 14, 1995), Cuyahoga App. No. 68793, unreported. See, also, Smith v. Cincinnati Gas & Elec. Co. (1991), 75 Ohio App.3d 567, 572; Lucas v. Automanage, Inc. (April 6, 1992), Butler App. No. CA-91-05-100, unreported; Bade v. General Motors Corp. (Dec. 20, 1991), Geauga App. No. 90-G-1599, unreported. Assignment of Error I is overruled. II. THE DEFENDANT'S ARGUMENT THAT PLAINTIFF'S COMPLAINT WAS ON AN ALLEGED ACCOUNT IS IMPROPER AND DESTROYS ANY LEGAL BASIS FOR THE GRANTING OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Plaintiff contends that the trial court erred in granting defendant's motion for summary judgment as the purchase order was merely to show a description of what was sold and not as evidence of the alleged account. This assignment of error has no merit. Under Civ.R. 56, summary judgment is proper when: (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 nonmoving party, that conclusion is adverse to the party - 5 - against whom the motion for summary judgment is made. State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. It is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. However, the nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108, 111; Celotex, supra, at 322-323. In accordance with Civ.R. 56(E), "a nonmovant may not rest upon the mere allegations or denials of his pleadings, but must set forth specific facts showing there is a genuine issue for trial." Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Supreme Court of Ohio modified the summary judgment standard as was applied under Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108. Presently, under the new standard, "*** the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact or a material element of the nonmoving party's claim." Dresher at 296. - 6 - This Court reviews the lower court's granting of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711 ("We review the judgment independently and without deference to the trial court's determination"). An appellate court reviewing the grant of summary judgment must follow the standards set forth in Civ.R. 56(C). "The reviewing court evaluates the record *** in a light most favorable to the nonmoving party. *** [T]he motion must be overruled if reasonable minds could find for the party opposing the motion." Saunders v. McFaul (1990), 71 Ohio App.3d 46, 50; Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741. Although plaintiff named defendant in its complaint, the purchase order attached to its complaint indicates a Mr. James is the customer who purchased the carpeting. There is no indication that defendant is the customer responsible for the payment of the purchased carpeting. Although plaintiff argues that the purchase order was not evidence of the account, they provided no evidence indicating otherwise. Since plaintiff provided no information connecting defendant to Mr. James, summary judgment was properly entered in defendant's favor. Assignment of Error II is overruled. III. THE APPELLEE'S CLAIM THAT THE APPELLANT FAILED TO STATE A CAUSE OF ACTION IN HIS COMPLAINT WAS DENIED WHEN HIS MOTION TO DISMISS WAS DENIED. Plaintiff argues that since the defendant raised the same argument in its motion to dismiss as in its motion for summary - 7 - judgment, that the court erred in granting the summary judgment as it denied defendant's motion to dismiss. This assignment of error has no merit. The standard for determining whether to grant a motion to dismiss and motion for summary judgment are different. As the court in Pyle v. Ledex, Inc. (1988), 49 Ohio App.3d 139, 143 held: The standard involved in granting a motion to dismiss under Civ.R. 12 cannot be compared to that involved in a summary judgment motion. A Civ. R. 12(B)(6) motion only determines whether the pleader's allegations set forth an actionable claim. The trial court's denial of defendant's motion to dismiss only showed that the facts in the complaint, if proven, could entitle the plaintiff to recovery. O'Brien v. University Community Tenants Union (1975), 42 Ohio St.2d 242, syllabus. This is an entirely different test from that applied under a motion for summary judgment because the material allegations of the complaint are taken as admitted. Loveland Properties v. Ten Jays (1988), 57 Ohio App.3d 79,84. Since different standards apply to each motion, the trial court did not err in denying defendant's motion to dismiss the plaintiff's complaint and granting defendant's motion for summary judgment. Assignment of Error III is overruled. Judgment is affirmed. - 8 - It is ordered that appellee recover of appellant 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 M. PORTER, JUDGE KENNETH A. ROCCO, JUDGE DAVID T. MATIA, PRESIDING JUDGE, DISSENTS. (See attached dissenting opinion) N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71821 CARPET BARN & TILE HOUSE : : PLAINTIFF-APPELLANT : : : v. : D I S S E N T : CSH, INC. DBA CORNERSTONE : HOMES, INC. : : DEFENDANT-APPELLEE : DATE: JUNE 5, 1997 MATIA, P.J., DISSENTS: While I agree with the majority that, on the merits, the trial court correctly granted defendant-appellee's motion for summary judgment, I cannot agree that defendant-appellee sought and obtained "leave of court" as required by Crim.R. 56. It is well established that Civ.R. 56 permits a motion for summary judgment "only with leave of court" if the case has been set for trial or pretrial, not as a matter of course. See State ex rel. Lantz v. Indus. (1993), 66 Ohio St.3d 29; Brinkman v. City of Toledo (1992), 81 Ohio App.3d 429. In this case, defendant-appellee filed a motion to dismiss on May 23, 1996. A pretrial was conducted on July 22, 1996. The only instruction from the court was that discovery was to be finished by October 22, 1996. Defendant-appellee's motion for summary judgment was then filed on October 21, 1996. Plaintiff- appellant filed a motion to strike but did not file a motion in -2- opposition to defendant-appellee's motion for summary judgment. On November 29, 1996, the trial court granted the motion for summary judgment and denied plaintiff-appellant's motion to strike. It cannot be disputed that defendant-appellee did not motion for leave of court to file its motion for summary judgment. Moreover, this case is unlike many situations where the trial court grants leave to file any and all motions by a certain date and the movant files a motion for summary judgment within that period. See Taylor v. Microdot, Inc. (1992), 79 Ohio App.3d 485; East Ohio Gas Company v. Ric Developers, Inc. (Dec. 5, 1996), Cuyahoga App. No. 70569, unreported. In this case, the majority relies upon cases which stand for the proposition that the trial court's actions on the 29th of November establish leave of court was implicitly granted. However, I believe State ex rel. Lantz, supra, stands for the proposition that leave must be obtained before filing a motion for summary judgment after a pretrial has been conducted. Moreover, in this case, the majority's ruling effectively denies the non-moving party of the opportunity to respond to the motion .