Federated Department Stores, Inc. v. Lindley

The determinative issue in the instant appeal is whether a trial court may sua sponte convert a motion to dismiss, one of the grounds of which is the failure to state a claim upon which relief can be granted (Civ. R. 12[B][6]), into a motion for summary judgment (Civ. R. 56) without notice to the parties.

Civ. R. 12(B) provides:

“Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the…