dissenting. I respectfully dissent from the majority’s opinion and would reverse the court of appeals’ decision and remand this action. The case law in this area mandates a reversal for the reasons that follow.
On the preliminary question of whether by dismissing the complaint the court of appeals actually granted summary judgment, I agree with the majority’s opinion. There was no defect in the complaint on its face to justify a Civ. R. 12(B)(6) dismissal for failure to state a claim upon which relief can be granted. Rather, the court of appeals’ “dismissal” was based on the availability of Crim. R. 16 as an adequate alternative remedy at law, an issue raised outside the pleadings. Therefore, the court of appeals must have granted the respondent’s motion for summary judgment.
I cannot agree with the majority, however, that the court of appeals should have granted the motion. There is simply no evidence in the written record before the court of appeals that supports a grant of summary judgment for respondent. Not only is the issue of the availability of Crim. R. 16 *381absent from the pleadings, but also nowhere in the written record before the court of appeals is there even a mention of Crim. R. 16. The text of Civ. R. 56 makes it clear that a court must confine itself to the written record when considering a motion for summary judgment. The court may consider only “* * * the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact. * * *” Civ. R. 56(C). This list is exclusive: “No evidence or stipulation may be considered except as stated in this rule.” Id.
Apparently, the issue of the availability of Crim. R. 16 as a means of obtaining the records sought by the relator arose during oral argument on respondent’s motion for summary judgment. Appellee states that at oral argument, relator, in response to a question from the court, acknowledged that he could get a certain amount of criminal history data about his clients from the state prosecutor by means of Crim. R. 16. No affidavits were submitted on this question; there was merely an oral exchange. These oral remarks, whether raised by a party or sua sponte by the court, obviously do not fit any of the categories of written evidence a court is permitted to consider under Civ. R. 56(C).
This court ruled in Carrabine Constr. Co. v. Chrysler Realty Corp. (1986), 25 Ohio St. 3d 222, 25 OBR 283, 495 N.E. 2d 952, that Civ. R. 56 excludes from a judge’s consideration in deciding a summary judgment motion any evidence not in the written record: “A trial court is precluded from considering supplemental oral testimony introduced for the first time at a hearing on a motion for summary judgment under Civ. R. 56.” Id. at syllabus. See, also, Gessler v. Madigan (1974), 41 Ohio App. 2d 76, 70 O.O. 2d 68, 322 N.E. 2d 127; Morris v. First Natl. Bank & Trust Co. (1968), 15 Ohio St. 2d 184, 44 O.O. 2d 153, 239 N.E. 2d 94 (decided under R.C. 2311.041, the predecessor to Civ. R. 56; the two statutes are identical). Today’s case should be controlled by this court’s reading of Civ. R. 56(C) in Carrabine. Therefore, I would allow relator’s action to proceed to a full evidentiary hearing.
Douglas, J., concurs in the foregoing dissenting opinion.