Hicks v. Cadle Co.
2016 Ohio 4728
Ohio Ct. App.2016Background
- Kerry R. Hicks (plaintiff/appellee) obtained arbitration awards against Daniel Cadle and affiliates arising from prior interstate debt-collection litigation; Hicks later registered the awards in Ohio and filed suit to enforce them.
- Cadle, The Cadle Company (TCC), and United Joint Venture (defendants/appellants) filed an amended counterclaim alleging RICO (Ohio PCAA), intentional infliction of emotional distress (IIED), and tortious interference related to conduct from 2007–2011.
- Hicks moved to dismiss the amended counterclaim under Civ.R. 12(B)(6). The trial court converted the motion to one for summary judgment because Hicks attached many outside materials, set deadlines for supplemental briefs, and later denied defendants’ motion to strike evidence in Hicks’ supplemental reply.
- The trial court granted summary judgment for Hicks on all three counterclaims. Defendants appealed, arguing the court abused its discretion by denying the motion to strike and by improperly granting summary judgment.
- The appellate court held the trial court did not abuse its discretion in denying the motion to strike, but reversed the grant of summary judgment because the conversion/briefing sequence improperly shifted the initial burden of production to defendants and defendants were not given a reasonable opportunity to respond to newly-filed evidentiary material.
- The appellate court declined to resolve Hicks’ alternative defenses (litigation privilege; statute of limitations for IIED) because those too depended on evidentiary fact-finding that must be addressed on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred in denying motion to strike portions of Hicks’ supplemental reply | Hicks contended the supplemental reply merely replied to matters raised in opposition and was permitted | Defendants said reply raised new arguments and produced new affidavits, causing "summary judgment by ambush" and requiring strike or surreply | Court: No abuse of discretion in denying strike because trial court ultimately considered only proper evidence, but procedural fairness concerns remained |
| Whether conversion of 12(B)(6) motion to summary judgment and the briefing schedule improperly shifted the initial Civ.R. 56 burden | Hicks argued conversion and deadlines gave both sides opportunity to present Rule 56 materials | Defendants argued conversion + allowing Hicks to file last deprived them a reasonable chance to respond to new, authenticated affidavits, shifting the moving-party burden to them | Court: Error — conversion/sequence effectively placed initial burden on defendants; they deserved additional opportunity to respond; summary judgment reversed in part |
| Whether summary judgment was properly granted on defendants’ counterclaims (PCAA, IIED, tortious interference) | Hicks argued defendants had no evidentiary support and were barred by privileges/limitations (alternative defenses) | Defendants argued factual disputes and need for evidence (continuous course of conduct, venue, location of acts) | Court: Grant of summary judgment was improper due to procedural error; remanded for further proceedings; did not decide merits of claims |
| Whether alternative grounds (litigation privilege; IIED statute of limitations) independently support affirmance | Hicks urged litigation privilege and that IIED claims were time-barred | Defendants disputed applicability and factual predicates (when/where acts occurred; continuous-conduct tolling) | Court: Declined to uphold on alternative grounds because resolution would require factual development; cross-assignments denied |
Key Cases Cited
- Temple v. Wean United, 50 Ohio St.2d 317 (1977) (standard for summary judgment)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (moving party’s initial burden under Civ.R. 56 and reciprocal burden of nonmoving party)
- Hester v. Dwivedi, 89 Ohio St.3d 575 (2000) (limitations on courts considering matters outside the pleadings on a Civ.R. 12(B)(6) motion)
- Keller v. Columbus, 100 Ohio St.3d 192 (2003) (when a court may convert a 12(B)(6) motion to summary judgment and the need to notify parties)
- State ex rel. Baran v. Fuerst, 55 Ohio St.3d 94 (1990) (requirement of actual notice and an opportunity to respond before conversion to summary judgment)
- Murphy v. Reynoldsburg, 65 Ohio St.3d 356 (1992) (appellate courts should avoid resolving factual disputes that require evidentiary development)