dissenting. Because I am convinced that this court’s holding in State, ex rel. Peake, v. Bd. of Edn. (1975), 44 Ohio St. 2d 119 [73 O.O.2d 437], is not dispositive of the factual dispute at issue in the case sub judiee, I must dissent from today’s majority opinion.
Although Peake, supra, in effect held that failure to. receive a written notice of non-renewal by April 30th constitutes a right to continued employment under R.C. 3119.11, nothing in Peake abolished the school board’s defense that a teacher thwarted an attempted notice of non-renewal. In fact, in a decision written after the announcement of Peake, this court stated that it “recognizes that the statutory protection afforded teachers under R.C. 3319.11 will not obtain in situations where a teacher is shown to have deliberately evaded receipt of the written notice of non-reemployment.” State, ex rel. Curry, v. Bd. of Edn. (1978), 54 Ohio St. 2d 67, 70 [8 O.O.3d 75]. One reason this defense was rejected in Peake was that the school board had not pled or tried the issue in the trial court. Here, however, the school board timely raised this defense, in its answer and the issue was clearly before the court below.
The other reason that the defense was rejected in Peake was that the court found at 120 that “there is nothing whatsoever in the record or the agreed statement of fqcts to support that position.” In Peake, there was also no evidence that the teacher was home when the mail was delivered, and no evidence of when the letter giving notice of non-renewal was delivered. Here, however, the appellee’s own testimony established that he was home when the mailman came on April 28, 1984 and left a notice that a certified mail letter was at the post office. This is sufficient evidence to raise a genuine question of material fact as to whether the appellee deliberately evaded receipt of notice. Civ. R. 56(C) prohibits summary *354judgment when there is a genuine issue of material fact; therefore, summary judgment was inappropriate in the circumstances of this case. Only if the facts herein had been identical to the facts in Peake, supra, or if the appellant’s version of the facts, when taken as true, could not have led reasonable minds to conclude that its defense existed, would a resolution of this factual question have been appropriate as a matter of law. As neither situation exists here, trial on the issue of appellee’s avoidance of notice is in order.
Accordingly, I would reverse the court of appeals and remand the cause for further proceedings in accordance with this opinion.
Wright, J., concurs in the foregoing dissenting opinion.