[Cite as White v. Cuyahoga Falls, 2016-Ohio-1200.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

JEFFREY K. WHITE d/b/a/ J.K. WHITE 

CONSTRUCTION 

 Appellant 

 v. 

CITY OF CUYAHOGA FALLS, OHIO 

 Appellee 

C.A. No. 27807 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. CV2013-03-1266 

DECISION AND JOURNAL ENTRY 

Dated: March 23, 2016 

 

MOORE, Judge. 

{¶1} Plaintiff-Appellant, Jeffrey White d/b/a J.K. White Construction, appeals from the 

judgment of the Summit County Court of Common Pleas, granting summary judgment in favor 

of Defendant-Appellee, the City of Cuyahoga Falls (“the City”). This Court affirms. 

I. 

{¶2} In December 2010, Samuel and Amanda Ellis (“the Ellises”) filed an application 

to participate in the City’s Community Development Block Grant Housing Program (“the Grant 

Program”). The federally-funded program allowed the City to match, up to $10,000, the cost of 

certain improvements that qualifying residents made to their homes. As a part of the application 

process, the Ellises elicited an estimate from Mr. White, a home construction and remodeling 

contractor. Mr. White estimated that the improvements to the Ellises’ home would cost $17,122. 

He submitted his proposal to the City, and the City’s Board of Control determined that the 

Ellises qualified for the Grant Program. The City’s mayor authorized the placement of funds in 
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an escrow account on behalf of the Ellises, for the work to be performed on their property. The 

City also notified Mr. White that, to participate in the Grant Program, he would have to submit 

several registration forms. 

{¶3} After Mr. White submitted his registration forms, he started working on the 

Ellises’ property. He was unable to finish, however, because the Ellises became dissatisfied with 

the quality of his work. They refused to allow him back into their home and sought the help of 

another construction company by the name of Innovative Construction, Inc. (“Innovative”). 

Innovative identified multiple instances of substandard work in the Ellises’ home and provided 

them with an estimate for repairing those items and finishing the improvements they desired. 

The Ellises then agreed to hire Innovative. Upon Innovative’s completion of the work, the City 

issued it a check from the funds it had escrowed on behalf of the Ellises. The City refused to 

disburse any funds to Mr. White. 

{¶4} Mr. White brought suit against the City based on its refusal to pay him in 

accordance with the Grant Program. His complaint set forth two claims for breach of contract 

and one claim for unjust enrichment. In his first breach of contract claim, he sought relief based 

upon the contract that he allegedly had with the City. In his second breach of contract claim, he 

sought relief as a third-party beneficiary, based upon the contract that the City allegedly had with 

the Ellises. His complaint requested damages from the City in the amount of $8,561; one-half of 

the $17,122 estimate that he had submitted on behalf of the Ellises. 

{¶5} The City responded to Mr. White’s complaint by filing a motion to dismiss for 

failure to state a claim. Mr. White opposed the motion, in part, on the basis that it relied on 

evidentiary materials outside of the complaint. Upon review, the trial court notified the parties 

that it was converting the City’s motion to dismiss into a motion for summary judgment. The 
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court ordered the City to file its motion for summary judgment by a specific date and noted that 

Mr. White would be afforded time to respond to the motion. The court later granted the parties 

extensions to conduct discovery and to file their respective motions. 

{¶6} Thereafter, the City filed a motion for summary judgment, and Mr. White filed a 

brief in opposition. The trial court then instructed the City to file an answer and, after resolving 

several issues that arose, granted the parties leave to supplement their respective summary 

judgment filings. Both parties filed supplements to their original filings, and the court entered 

summary judgment in favor of the City. The court determined that, because there was no 

evidence that a binding contract existed between either the City and Mr. White or the City and 

the Ellises, Mr. White could not prevail on his breach of contract claims against the City. The 

court further determined that Mr. White’s unjust enrichment claim failed as a matter of law. 

{¶7} Mr. White now appeals from the court’s judgment and raises four assignments of 

error for our review. For ease of analysis, we consolidate several of the assignments of error. 

II. 

ASSIGNMENT OF ERROR I 

THE TRIAL COURT ERRED TO THE PREJUDICE OF [MR. WHITE] BY 

CONVERTING [THE CITY’S] MOTION TO DISMISS INTO A MOTION FOR 

SUMMARY JUDGMENT UNDER THE BELIEF THAT IT WAS 

AUTOMATICALLY REQUIRED TO BECAUSE [THE CITY] ATTACHED 

MATERIALS OUTSIDE THE PLEADINGS CONTRARY TO CIV. R. 12 AND 

CIV. R. 56. 

ASSIGNMENT OF ERROR II 

THE TRIAL COURT ERRED TO THE PREJUDICE OF [MR. WHITE] BY 

CONVERTING [THE CITY’S] MOTION TO DISMISS INTO A MOTION FOR 

SUMMARY JUDGMENT THEN FAILING TO TREAT THE MOTION TO 

DISMISS AS THE MOTION FOR SUMMARY JUDGMENT AND SUA 

SPONTE GRANTING [THE CITY’S] LEAVE TO FILE A MOTION FOR 

SUMMARY JUDGMENT, CONTRARY TO CIV. R. 12 AND CIV. R. 56. 
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ASSIGNMENT OF ERROR III 

THE TRIAL COURT ERRED TO THE PREJUDICE OF [MR. WHITE] IN 

GRANTING [THE CITY’S] MOTION FOR SUMMARY JUDGMENT BY 

CONSIDERING [THE CITY’S] CLAIM THAT THERE WAS NO WRITTEN 

CONTRACT AS REQUIRED BY [THE CITY’S] MUNICIPAL CHARTER, 

SUCH CONSTITUTING THE DEFENSE OF IMMUNITY, THAT WAS 

RAISED ONLY IN [THE CITY’S] MOTION TO DISMISS AND 

CONVERTED MOTION FOR SUMMARY JUDGMENT, AND NOT RAISED 

IN [THE CITY’S] ANSWER TO [MR. WHITE’S] COMPLAINT, AND IS 

THEREFORE CONSIDERED WAIVED. 

{¶8} In each of the foregoing assignments of error, Mr. White challenges several 

procedural rulings that resulted in the trial court granting the City’s motion for summary 

judgment. Because he has not demonstrated prejudice as a result of the rulings that he 

challenges, however, we reject his assignments of error. 

{¶9} Mr. White argues that the trial court erred when it converted the City’s motion to 

dismiss into a motion for summary judgment. His argument is twofold. First, he argues that the 

court erred because it failed to realize that it could still treat the City’s motion as one to dismiss 

and simply refuse to consider the evidentiary materials attached to the motion. Mr. White notes 

that many of the items were not proper Civ.R. 56(C) materials, so the court should not have 

permitted their introduction. See Civ.R. 12(B) (court, in treating motion to dismiss as one for 

summary judgment, “shall consider only such matters outside the pleadings as are specifically 

enumerated in Rule 56”). Instead, he argues, the court should have treated the City’s motion as 

one to dismiss and confined its review to the factual allegations contained in Mr. White’s 

complaint. See id. 

{¶10} Second, Mr. White argues that the court erred when it allowed the City to file a 

separate motion for summary judgment. He argues that, once the court converted the City’s 

motion to dismiss into a motion for summary judgment, the filing of a separate summary 
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judgment motion was unnecessary. According to Mr. White, “although stating it was converting 

[the City’s] Motion to Dismiss into a Motion for Summary Judgment, [the trial court] was in fact 

ignoring the motion to dismiss and granting [the City] leave to file a motion for summary 

judgment.” He argues that, once the court converted the City’s motion to dismiss, it should have 

proceeded under Civ.R. 56(C). See Civ.R. 12(B). By allowing the City to file another motion, 

Mr. White argues, the court gave the City the opportunity to raise new arguments. Specifically, 

he argues that the City was able to raise for the first time the affirmative defense of sovereign 

immunity. 

{¶11} In reviewing a Civ.R. 12(B)(6) motion to dismiss, a trial court may not consider 

matters outside of the pleadings. Savoy v. Kramer, 9th Dist. Summit No. 27418, 2015-Ohio-437, 

¶ 9. “Where the trial court chooses to consider evidence or materials outside the complaint, the 

court must convert the motion to dismiss into a motion for summary judgment and give the 

parties notice and a reasonable opportunity to present all materials made pertinent to such motion 

by Civ.R. 56.” Cotton v. Anderson, 9th Dist. Lorain No. 06CA008984, 2007-Ohio-6548, ¶ 5. 

Notice is required so as not to place the non-moving party at a disadvantage. See Haley v. 

Nomad Preservation, Inc., 9th Dist. Summit No. 26990, 2014-Ohio-181, ¶ 8, quoting Petrey v. 

Simon, 4 Ohio St.3d 154, 155 (1983). “The primary vice of unexpected conversion to summary 

judgment is that it denies the surprised party sufficient opportunity to discover and bring forward 

factual matters which may become relevant only in the summary judgment, and not the 

dismissal, context.” Petrey at 155, quoting Portland Retail Druggists Assn. v. Kaiser Found. 

Health Plan, 662 F.2d 641, 645 (9th Cir.1981). 

{¶12} Because the City’s motion to dismiss relied upon matters outside the scope of the 

pleadings, the trial court chose to convert the motion to a motion for summary judgment. 
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Consistent with our precedent, the court gave both parties notice of its intention to proceed to 

summary judgment and an opportunity to present additional materials. Indeed, the court granted 

Mr. White’s motion for discovery, provided the parties with several filing extensions, and later 

allowed them to supplement their filings. There is no indication in the record that Mr. White was 

surprised by the court’s decision or lacked sufficient opportunity to discover the materials upon 

which he needed to rely. See Petry at 155, quoting Portland Retail Druggists Assn. at 645. 

{¶13} Although the City’s motion to dismiss relied upon improper Civ.R. 56(C) 

materials, Mr. White cannot show that the trial court’s procedural rulings prejudiced him. The 

trial court, while stating that it was converting the City’s motion to dismiss into a motion for 

summary judgment, ordered the City to file a motion for summary judgment. By Mr. White’s 

own admission, the effect of the court’s ruling was essentially to bypass the motion to dismiss 

and grant the City leave to file summary judgment. Moreover, when the City later filed its 

motion for summary judgment, Mr. White did not object to the City’s evidentiary materials in his 

brief in opposition. Even assuming that the City relied upon improperly introduced evidentiary 

materials in its motion for summary judgment, the trial court had the discretion to consider them 

in the absence of an objection. Wolford v. Sanchez, 9th Dist. Lorain No. 05CA008674, 2005-

Ohio-6992, ¶ 20, quoting Christie v. GMS Mgt. Co., Inc., 124 Ohio App.3d 84, 90 (9th 

Dist.1997). 

{¶14} To the extent Mr. White argues that the procedure the court employed here 

improperly allowed the City to raise the defense of sovereign immunity, the record does not 

support his argument. Even assuming that the City could defend against Mr. White’s claims on 

the basis of sovereign immunity, but see R.C. 2744.09(A), the City never argued sovereign 

immunity in its motion for summary judgment. Its argument was that Mr. White’s claims should 
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fail as a matter of law due to the absence of a binding contract. As such, Mr. White has not 

shown that the court’s rulings provided the City with an opportunity to raise a new affirmative 

defense. 

{¶15} Even if the procedure that the court here employed did not directly align with the 

procedure outlined in Civ.R. 12(B), Mr. White has not shown that he was prejudiced as a result. 

The trial court gave both parties advanced notice of its intention to treat the issues the City raised 

as issues for summary judgment. It also gave them an opportunity for discovery, several filing 

continuances, and the ability to supplement their respective filings at a later date. Had the court 

denied the City’s initial motion to dismiss, nothing would have prevented the City from filing a 

motion for summary judgment and raising the same arguments at a later date. Mr. White has not 

shown that the procedure the court employed affected the outcome in this matter. See Princess 

Kim, L.L.C. v. U.S. Bank, N.A., 9th Dist. Summit No. 27401, 2015-Ohio-4472, ¶ 18 (“Only error 

which affects or presumptively affects the final outcome of the case is prejudicial.”). As such, 

his first, second, and third assignments of error are overruled. 

ASSIGNMENT OF ERROR IV 

THE TRIAL COURT ERRED TO THE PREJUDICE OF [MR. WHITE] BY 

GRANTING [THE CITY’S] MOTION FOR SUMMARY JUDGMENT IN 

FAVOR OF [THE CITY] BY DETERMINING THAT THERE WAS NO 

EXISTING WRITTEN CONTRACT BETWEEN [MR. WHITE] AND [THE 

CITY], WHO WERE PARTICIPANTS IN THE U.S. DEPARTMENT OF 

HOUSING AND URBAN DEVELOPMENT’S RESIDENTIAL HOUSING 

REHABILITATION MATCHING GRANT PROGRAM, REQUIRING [THE 

CITY] TO COMPENSATE [MR. WHITE] FOR SERVICES PROVIDED 

PURSUANT TO SUCH PROGRAM. 

{¶16} In his fourth assignment of error, Mr. White argues that the trial court erred when 

it granted the City’s motion for summary judgment. Specifically, he argues that genuine issues 
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of material fact remain for trial on the issue of whether there was a binding contract between 

either himself and the City or the City and the Ellises. We disagree. 

{¶17} We review an award of summary judgment de novo. Grafton v. Ohio Edison Co., 

77 Ohio St.3d 102, 105 (1996). We apply the same standard as the trial court, viewing the facts 

of the case in the light most favorable to the non-moving party and resolving any doubt in favor 

of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983). 

{¶18} Pursuant to Civ.R. 56(C), summary judgment is proper only if: 

(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 party against whom the motion for 

summary judgment is made, that conclusion is adverse to that party. 

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). The party moving for summary 

judgment bears the initial burden of informing the trial court of the basis for the motion and 

pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher 

v. Burt, 75 Ohio St.3d 280, 292-93 (1996). “If the moving party fails to satisfy its initial burden, 

the motion for summary judgment must be denied.” Id. at 293. If the moving party fulfills this 

burden, then the burden shifts to the nonmoving party to prove that a genuine issue of material 

fact exists. Id. 

{¶19} “It is a long-standing principle of Ohio law that ‘all governmental liability ex 

contractu must be express and must be entered into in the prescribed manner * * *.’” NaphCare, 

Inc. v. Cty. Council of Summit Cty., 9th Dist. Summit No. 24906, 2010-Ohio-4458, ¶ 23, quoting 

Kraft Const. Co. v. Cuyahoga Cty. Bd. of Commrs., 128 Ohio App.3d 33, 44 (8th Dist.1998). “A 

thread running throughout the many cases the [Ohio Supreme Court] has reviewed is that [a] 

contractor must ascertain whether [a] contract complies with the Constitution, statutes, charters, 
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and ordinances so far as they are applicable. If he does not, he performs at his peril.” Lathrop 

Co. v. Toledo, 5 Ohio St.2d 165, 173 (1966). 

{¶20} In support of its motion for summary judgment, the City introduced a copy of its 

Charter and the affidavit of Denise Bell, the former Administrator of the Grant Program. The 

City’s charter provides, in relevant part, that the City’s law director “shall prepare all contracts, 

bonds, and other instruments in writing in which the City is concerned and endorse on each his 

approval of the form and correctness thereof.” Charter of the City of Cuyahoga Falls, Ohio, Art. 

III, Sec. 3 (2011). It further provides that “[a]ny contract, verbal or written, made in violation of 

this Charter shall be null and void.” Charter of the City of Cuyahoga Falls, Ohio, Art. VI, Sec. 

10 (2011). 

{¶21} In her affidavit, Bell averred that the Ellises were residents of the City and applied 

for federal grant matching through the Grant Program. She stated that the City approved their 

grant application, and the Ellises chose Mr. White as their contractor. Ms. Bell averred that the 

City “ensured that [Mr.] White was registered properly to perform the work.” Mr. White did not 

receive the Ellises’ grant money, however, because his “substandard” work caused the Ellises to 

hire Innovative. Ms. Bell averred that the City paid Innovative the money that remained in the 

grant set aside for the Ellises. She further averred that the City never “entered into written 

agreements with either [Mr.] White or the Ellises.” 

{¶22} In opposing the City’s motion for summary judgment, Mr. White argued that 

numerous documents, when read together, evidenced the existence of contract between himself 

and the City as well as the City and the Ellises. He attached to his brief in opposition copies of 

all the registration materials he submitted to the City, the Ellises’ application for funding, their 

funding approval from the City, and many documents related to the City’s participation in the 
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Grant Program. Mr. White never produced, however, a copy of a contract prepared and endorsed 

by the City’s law director. See Charter of the City of Cuyahoga Falls, Ohio, Art. III, Sec. 3 

(2011). The trial court determined that Mr. White could not prevail on his contract claims 

because “the procedural prerequisites for the formation of a contract that could bind the City 

were not met.” Upon review of the record, we agree with the trial court’s conclusion. 

{¶23} As previously noted, a contractor performs at his own peril when he fails to 

ascertain whether his purported contract with a municipality “complies with the Constitution, 

statutes, charters, and ordinances so far as they are applicable.” Lathrop Co., 5 Ohio St.2d at 

173. The City set forth evidence that its Charter required its law director to prepare and endorse 

all of the City’s contracts. It further set forth evidence that it never entered into a written 

contract with either Mr. White or the Ellises. Accordingly, the City satisfied its initial Dresher

burden, and the burden shifted to Mr. White to produce evidence of a contract that complied with 

the City’s charter. See Dresher, 75 Ohio St.3d at 293. Mr. White, however, failed to set forth 

any such evidence. Because he did not produce any evidence of the existence of a binding 

contract between himself and the City or the City and the Ellises, the court did not err by 

granting summary judgment in favor of the City on his contract claims. His fourth assignment of 

error is overruled. 

III. 

{¶24} Mr. White’s assignments of error are overruled. The judgment of the Summit 

County Court of Common Pleas is affirmed. 

Judgment affirmed. 

 
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 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellant. 

 

 CARLA MOORE 

 FOR THE COURT 

HENSAL, P. J. 

WHITMORE, J. 

CONCUR. 

APPEARANCES: 

PAUL R. HOFFER, Attorney at Law, for Appellant. 

JAMES E. BANAS, Attorney at Law, for Appellant. 

RUSSELL W. BALTHIS, Director of Law, JANET M. CIOTOLA, Deputy Law Director, and 

MATTHEW A. DICKINSON, Assistant Director of Law, for Appellee.