dissenting. Although I concur wholeheartedly with the majority’s recognition of the defense of recoupment in this setting as contained in paragraph one of the syllabus, I find the affirmance of the *80summary judgment entered by the trial court against appellants to be most unjustified. I therefore dissent.
The majority has concluded that the appellee was entitled to summary judgment as a matter of law because appellants failed in their burden to respond in evidence to show that a genuine issue of material fact existed as to the defense of recoupment. This conclusion is remarkable for its rampant disregard of a basic principle relating to the remedy of summary judgment.
It is elementary that the non-moving party, when confronted with a properly supported motion for summary judgment, may not rest on the allegations in his pleadings. If he fails to come forward with evidence in opposition, summary judgment may be entered against him. Civ. R. 56(E); Savransky v. Cleveland (1983), 4 Ohio St. 3d 118.
However, it is also elementary that when the moving party presents evidentiary matter in support of the motion which does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidence is offered. In such a case, the adverse party may rest on the allegations in his pleadings and is not required to respond with any additional evidence whatsoever. Adickes v. S.H. Kress & Co. (1970), 398 U.S. 1441; Advisory Committee Note on 1963 Amendment to Fed. R. Civ. P. 56(e).
Civ. R. 56(E) expressly cautions that summary judgment should be granted when the non-moving party rests on his pleading only “if appropriate.” This phrase is intended to incorporate the standards for summary judgment contained in subdivision (C) of the rule, which requires that the evidence must demonstrate that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. See Thornton v. Evans (C.A. 7, 1982), 692 F. 2d 1064, 1074-1075.
It is of course only right that the burden of establishing that no genuine issue of fact exists is placed on the party moving for summary judgment. It is he, after all, who is attempting to demonstrate that his opponent is not entitled to his day in court. To require the non-moving party to respond in evidence to a motion for summary judgment where the movant has not sustained his burden, or suffer the extreme penalty of summary judgment, is hardly in keeping with logic or fair play.
Yet this is exactly what the majority has decided. The appellee in the cause sub judice presented an affidavit in support of his motion alleging that the statute of limitations barred appellants’ counterclaim. The trial court agreed and entered summary judgment in his favor. Today’s decision holds that the statute of limitations did not apply to appellants’ counterclaim because it was in the nature of the defense of recoupment. The majority then proceeds to rule that summary judgment was still proper because the appellants failed to support this defense with evidentiary materials in response to the appellee’s motion. But the appellee did not address this issue in his *81supporting affidavit, nor did he raise it in the hearing on the motion. The appellants, therefore, were perfectly free to simply rest on the allegations in their counterclaim.
In holding that summary judgment was proper in this case due to the appellants’ failure to support the defense of recoupment, this court is penalizing in the most severe manner the very party whose actions most closely adhered to the requirements of Civ. R. 56. The purported basis for this holding is irreconcilable with all notions of equity and sound judicial analysis.
Based on the foregoing, I would reverse the holding of the court of appeals and remand the cause for further proceedings.
Holmes, J., concurs in the foregoing dissenting opinion.The court in Adickes is interpreting Fed. R. Civ. P. 56(e) which is virtually identical to its Ohio counterpart, Civ. R. 56(E).