COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72731 CLERAC, INC. : : JOURNAL ENTRY Plaintiff-appellant : : AND vs. : : OPINION GEORGE SHIEKH, ET AL. : : Defendant-appellees : : DATE OF ANNOUNCEMENT : MAY 14, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CV-307353 : JUDGMENT : REVERSED AND REMANDED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellees: DAN A. MORRELL, ESQ. SCOTT N. OPINCAR, ESQ. DAVID J. FAGNILLI, ESQ. 250 Spectrum Office Bldg. TIMOTHY L. KERWIN, ESQ. 6060 Rockside Woods Blvd. Davis & Young Independence, OH 44131-7300 1700 Midland Bldg. 101 Prospect Avenue, West Cleveland, OH 44115 ROBERT A. LURIA, ESQ. 20600 Chagrin Blvd., #1111 Shaker Heights, OH 44122 NICHOLAS J. FILLO, ESQ. Fillo & Siskovic 1520 Standard Bldg. 1370 Ontario Street Cleveland, OH 44113 JOHN T. PATTON, J.: Plaintiff Clerac, Inc., doing business as Enterprise Rent-A- Car, sued defendant George Shiekh for damages resulting to one of -2- its rental cars that he rented after defendant's son demolished the car in an accident. Defendant filed a motion to dismiss the complaint for failure to state a claim upon which relief could be granted, claiming the demolished car was not the car he rented, but was in fact a replacement car his son independently rented upon being dissatisfied with the first car. The court granted the motion to dismiss without opinion, and the assigned errors contest the dismissal. Because this matter comes to us on a Civ.R. 12(B)(6) motion to dismiss, we must accept the factual allegations of the complaint as true. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192. Clerac's complaint rested upon a rental agreement that had been attached to complaint, See Civ.R. 10(D), so that agreement forms part of the facts we consider when reviewing the motion to dismiss. Point Rental Co. v. Posani (1976), 52 Ohio App.2d 183. Clerac alleged defendant agreed to rent a Buick Park Avenue and listed his son as his authorized driver and agent. Twelve days later, defendant's son exchanged the Buick for a Lexus GS300 under the same rental agreement. Clerac went on to allege that during the rental period, the Lexus sustained damage in the amount of $38,265.20 and that defendant was liable for the amount of damages (plus interest, attorney fees, and expenses of collection) (1) under the rental contract, (2) as a bailee responsible for safekeeping the vehicle during its entrustment to him, and (3) under a theory of negligent entrustment. -3- Accepting these allegations as true, the court erred by dismissing the complaint. A court may dismiss a complaint under Civ.R. 12(B)(6) only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief. O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, syllabus; Greenwood v. Taft, Stettinius & Hollister (1995), 105 Ohio App.3d 295, 297. When a claim is grounded on a written instrument and a copy thereof is attached to the complaint in accordance with Civ.R. 10(D), the action should not be dismissed "unless the complaint and the written instrument on their face show to a certainty some insuperable bar to relief as a matter of law." Slife v. Kundtz Properties (1974), 40 Ohio App.2d 179. Defendant signed the rental agreement and listed his son as an additional driver, with the proviso that additional drivers are under my control and direction to drive the rented vehicle for me and in my behalf. I am responsible for their acts while they're driving, and for fulfilling terms and conditions of this agree- ment. The agreement lists the Lexus as a replacement vehicle and extends the return date. The complaint, fairly read in conjunction with the rental agreement, sets forth causes of action under the rental agreement based on defendant's liability as the person renting the car and, by implication, to his entrustment of the vehicle to his son. Defendant argues he has no liability since he rented the Buick, not the Lexus. He claims his son returned the Buick, paid -4- a new deposit, and received the Lexus in exchange. Defendant claims he had no knowledge of the exchange nor did he authorize the exchange. These facts are not apparent from the face of the complaint and the attached rental agreement. Nowhere on the face of the agreement does the son's signature appear, nor is it apparent that the son paid the down payment as argued by defendant. The only signature appearing on the agreement belongs to defendant. There is simply no way to look at the complaint and conclude the son made the exchange as part of another car rental transaction. Other facts may exist that prove the substance of defendant's argument, but those facts are not contained in the complaint and are therefore outside our narrow scope of review on a Civ.R. 12(B)(6) motion to dismiss.1 We therefore sustain the first assignment of error and remand for further proceedings. Judgment reversed and remanded. 1 The second and third assignments of error claim the court erred by converting the motion to dismiss into a motion for summary judgment without first giving notice to the parties of its intent to do so. We reject this contention for two reasons. First, the court's journal entry clearly indicates it dismissed the claim rather than grant summary judgment. Since the court speaks only through its journal, State v. King (1994), 70 Ohio St.3d 158, 162, we are bound by the court's decision to dismiss the action. Second, if the court did intend to convert the motion to dismiss into a motion for summary judgment, its failure to notify the parties of its intent to do so was, itself, reversible error. State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn. (1995), 72 Ohio St.3d 94 96; State ex rel. Baran v. Fuerst (1990), 55 Ohio St.3d 94, 97. -5- This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellees their 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. DYKE, P.J. ROCCO, J., CONCURS. JUDGE JOHN T. PATTON 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 .