Petrey v. Simon

Civ. R. 12(B) provides, in 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.” In this case, the court of common pleas expressly relied on appellee’s affidavit. The court of appeals, therefore, correctly concluded that the disposition of this case had actually been a summary judgment rather than a dismissal.

I

Civ. R. 12(B) further provides: “All parties shall be given…