State ex rel. Cuyahoga Cty. v. Jones Lang LaSalle Great Lakes Corporate Real Estate Partners, L.L.C. , 2017 Ohio 4066 ( 2017 )

[Cite as State ex rel. Cuyahoga Cty. v. Jones Lang LaSalle Great Lakes Corporate Real Estate Partners, L.L.C.,
2017-Ohio-4066.]
IN THE COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
CUYAHOGA COUNTY
State ex rel. County of Cuyahoga Court of Appeals No. CA-16-104157
Appellant Trial Court No. CV-14-827651
v.
Jones Lang LaSalle Great Lakes Corporate
Real Estate Partners LLC, et al. DECISION AND JUDGMENT
Appellees Decided: June 1, 2017
*****
Robert J. Triozzi, Director, Cuyahoga County Department of Law,
Robin M. Wilson and Joseph W. Boatwright, IV, Assistant Directors
of Law, for appellant.
James R. Wooley, Justin E. Herdman, Michael S. Quinlan and
Stephen G. Sozio, for appellee Jones Lang LaSalle Great Lakes Corporate
Real Estate Partners.
Ross M. Babbitt, for appellees Midwestern Entertainment Venture, LLC
and its d/b/a Anatomy Nightclub.
Richard T. Hamilton, Jr., for appellees Harvey G. Oppmann and
944 Prospect Avenue LLC.
John J. Spellacy, for appellee M2J1, LLC.
Roger M. Synenberg, Dominic J. Coletta and Clare C. Moran, for
Appellees Vincent A. Russo, Vincore, LLC and Garibaldi Holdings.
*****
PIETRYKOWSKI, J.
{¶ 1} Appellant, Cuyahoga County (“the County”), appeals the judgment of the
Cuyahoga County Court of Common Pleas, dismissing its complaint. For the reasons
that follow, we affirm.
I. Facts and Procedural Background
{¶ 2} The facts in this matter are taken from the County’s complaint, filed on
May 30, 2014, which asserted 13 counts against ten different defendants stemming from
fraudulent and corrupt dealings regarding two separate but related transactions.
{¶ 3} The first transaction concerned the County’s purchase of the Ameritrust
building site.
{¶ 4} In its complaint, the County alleged that Great Lakes1 desired to provide real
estate services for the County but had been unsuccessful in getting the business. In
January 2003, Great Lakes hired Anthony Calabrese, III, and his law firm to represent it.
Shortly thereafter, Calabrese began arranging meetings between Great Lakes and County
officials.
{¶ 5} In November 2003, the County issued a request for proposal for real estate
services related to the consolidation of the County’s agencies into one building or
campus. Great Lakes submitted a proposal, which indicated that its fee would range
1
“Great Lakes” refers to appellees Jones Lang LaSalle Great Lakes Corporate Real
Estate Partners, LLC, and Jones Lang LaSalle, Inc.
2.
between two and four percent of the gross aggregate value of the lease if the County
leased the property, or between $5 and $7 per square foot of the gross building area if the
County purchased the property. In April 2004, Great Lakes was selected as one of five
finalists. The other four finalists proposed a fixed fee of between $300,000 and $400,000
for consulting and strategic planning services on Phases I and II of the project. In July
2004, Great Lakes clarified its proposal such that it would be paid a lump sum of
$396,000 for the services provided on Phases I and II, with that amount to be credited
back to the County once the County entered into a lease or purchase agreement under
Phase III. As to Phase III, Great Lakes proposed that it receive a fee of $5.85 per gross
building square foot regardless of whether the County leased or purchased the building.
{¶ 6} While the County was going through the selection process, Great Lakes
hired Vincore, LLC, to provide “certain government relations and similar consulting
services.” Great Lakes paid Vincore, LLC, $2,000 in June 2004 and $2,000 in July 2004.
Great Lakes and Calabrese had additional meetings with County officials during this
time.
{¶ 7} In September 2004, Great Lakes’ proposal was selected, and Calabrese
began negotiating the contract between Great Lakes and the County (the “Cuyahoga
County Contract”). The Cuyahoga County Contract was not signed until October 5,
2004.
{¶ 8} On October 1, 2004, Great Lakes entered into a contract with Garibaldi
Holdings pursuant to which Garibaldi Holdings would provide government relations
3.
work relative to the Cuyahoga County Contract in exchange for $150,000. On
November 1, 2004, Great Lakes entered into another agreement with Garibaldi Holdings,
this time agreeing to pay $140,000 for governmental and marketing services in “regard to
assisting, advising and counseling [Great Lakes] in regard to any of its contracts with
Cuyahoga County, Ohio.”
{¶ 9} Similarly, on October 1, 2004, Great Lakes entered into a contract with the
R.P. Carbone Company (“R.P. Carbone”) pursuant to which R.P. Carbone would provide
government relations work relative to the Cuyahoga County Contract in exchange for a
percentage of the amount made by Great Lakes. Vincent Carbone is alleged to be the
president of R.P. Carbone. On November 1, 2004, Great Lakes entered into a second
contract with R.P. Carbone, agreeing to pay it $30,000 for its time and services in relation
to Phase I and II of the Cuyahoga County Contract.
{¶ 10} By November 19, 2004, Great Lakes had completed the initial phase of the
work under the Cuyahoga County Contract, and presented its results to the County. In
the report, Great Lakes ranked the Ameritrust property as the fourth best option as a
potential location for the consolidated county offices.
{¶ 11} On January 21, 2005, Great Lakes, Calabrese, and Cuyahoga County
Commissioner Jimmy Dimora met at a Holiday Inn on Rockside Road. On January 25,
2005, Great Lakes reported that it had completed Phases I and II, and recommended that
the County proceed with the Ameritrust site.
4.
{¶ 12} On March 31, 2005, Great Lakes sought the county commissioners’
approval to move into Phase III of the Cuyahoga County Contract. Great Lakes never
received such approval. Instead, the County and Great Lakes executed a second contract
(“Cease Work Contract”), under which Great Lakes would cease work under the
Cuyahoga County Contract. The parties agreed that Great Lakes would be entitled to
keep the $385,000 retainer, and that Great Lakes would receive an additional $2,615,000.
The County paid Great Lakes upon the County’s purchase of the Ameritrust site as
required by the Cease Work Contract.
{¶ 13} In October 2005, Vincent Carbone formed M2J1, LLC (“M2J1”). Great
Lakes was requested to pay, and did pay, its obligation to R.P. Carbone for a percentage
of the money made by Great Lakes on the Cuyahoga County Contract to M2J1. This
amount totaled $324,800. From that amount, M2J1 made three distributions: it
distributed $99,000 to Burlwood Holdings, LLC, an entity owned by Calabrese; it
distributed $70,000 to a Calabrese friend; and it indirectly distributed $70,000 to J. Kevin
Kelley, an employee in the Cuyahoga County Treasurer’s Office and a member of
Dimora’s inner circle.
{¶ 14} The County alleged that Great Lakes has no records of what services
Garibaldi Holdings or R.P. Carbone provided under the agreements. Further, the
amounts paid to Garibaldi Holdings and R.P. Carbone were charged as a cost to the
Cuyahoga County Contract. Vincent Russo, the owner of Vincore, LLC and Garibaldi
Holdings, was later indicted and pled guilty to bribery, aiding and abetting, conspiracy to
5.
commit bribery, and HOBBS Act conspiracy charges related to federal funds. Vincent
Carbone was indicted and pled guilty to conspiracy and money laundering related to
bribery to gain governmental contracts. Great Lakes, Vincore, LLC, Garibaldi Holdings,
and R.P. Carbone were all represented by Calabrese.
{¶ 15} On July 16, 2013, Calabrese was indicted based on his actions relative to
the Ameritrust site and the $99,000 payment from Great Lakes through M2J1. Calabrese
pled guilty to federal charges, including multiple counts of RICO conspiracy, bribery and
conspiracy to commit bribery concerning programs receiving federal funds, Hobbs Act
conspiracy, mail fraud, and conspiracy to commit mail fraud. As part of his plea,
Calabrese admitted that the payment to J. Kevin Kelley was an unlawful bribe related to
the Ameritrust project. Notably, the County alleged that it did not become aware of the
fraud and corruption until Calabrese was indicted.
{¶ 16} In its complaint, the County alleged that Great Lakes hired Vincore LLC,
Garibaldi Holdings, Vincent Carbone, and Calabrese because it knew they could
influence the decision makers in Cuyahoga County. Further, the County alleged that
Great Lakes paid those entities and individuals an inflated amount of money because
Great Lakes knew that they needed that money to give to public officials to influence
them in Great Lakes’ favor. Great Lakes benefitted from those corrupt activities by being
selected for the Ameritrust project and being paid $3,000,000 for work worth
substantially less. The County alleged that, but for the corruption in its dealings with the
County, Great Lakes would not have been selected for the project and would have been
6.
paid less, and the County would not have selected the Ameritrust site, which cost the
County millions of extra dollars. Based on these allegations, the County asserted the
following counts:
{¶ 17} Against Great Lakes:
 Violation of R.C. 309.12 (Count 1)
 Breach of Contract (Count 2)
 Unjust Enrichment (Count 3)
 Fraud (Count 4)
 Breach of Fiduciary Duty (Count 5)
 Fraud in the Inducement (Count 6)
 Declaratory Judgment (Count 7)
 Violation of the Ohio Corrupt Practices Act (Count 9)
 Civil Conspiracy (Count 10)
 Civil Liability for Criminal Acts (Count 13)
{¶ 18} Against Vincent A. Russo, Vincore, LLC, and Garibaldi Holdings
(collectively the “Russo” appellees):2
 Violation of R.C. 309.12 (Count 1)
 Unjust Enrichment (Count 3)
 Violation of the Ohio Corrupt Practices Act (Count 9)
2
Russo is alleged to be a member and manager of both Vincore, LLC, and Garibaldi
Holdings.
7.
 Civil Conspiracy (Count 10)
 Civil Liability for Criminal Acts (Count 13)
{¶ 19} Against M2J1:
 Violation of R.C. 309.12 (Count 1)
 Unjust Enrichment (Count 3)
 Violation of the Ohio Corrupt Practices Act (Count 9)
 Civil Conspiracy (Count 10)
 Civil Liability for Criminal Acts (Count 13)
{¶ 20} The second transaction giving rise to the complaint involved the purchase
of a parking garage near the Ameritrust site. The parking garage was owned by 944
Prospect Avenue, LLC, of which Harvey G. Oppmann was allegedly a member and
manager. The County alleged that Oppmann was aware that Steven Pumper was part of
Dimora’s inner circle. Oppmann contacted Pumper and told him that he wanted to sell
the parking garage but the County was dragging its feet. Oppmann orally agreed to pay
Pumper $250,000 from the proceeds if Pumper got the County to close the sale. Pumper
contacted Dimora on behalf of Oppmann, and offered to pay Dimora $35,000 to get the
deal moving. The sale of the parking garage was completed on May 29, 2007, for
$5,145,000, which was higher than the County’s appraised value of the property.
{¶ 21} After the sale of the parking garage, Pumper requested that Oppmann pay
him by distributing part of the money in three different ways. One distribution went to
8.
Pumper’s father, who generated a false invoice for $50,000 for government relations
work. Another distribution went to DAS Construction Company—where Pumper
worked—which did not provide any services for the payment. The final distribution went
to Midwest Entertainment Venture, LLC (“MEV”), which operated Anatomy Nightclub.
Pumper is alleged to be a silent partner in Anatomy Nightclub. The distribution to MEV
was passed along to Anatomy Nightclub in exchange for a promissory note, which the
County alleged was fake and an attempt to hide the payments to Pumper for his role in
the corruption scheme.
{¶ 22} The County alleged that as a result of the bribes paid to Pumper and others,
it paid more for the parking garage than it should have. Based on these allegations, the
County asserted the following counts:
{¶ 23} Against Harvey G. Oppmann and 944 Prospect Avenue, LLC
(collectively the “Oppmann” appellees):
 Violation of R.C. 309.12 (Count 1)
 Unjust Enrichment (Count 3)
 Fraud (Count 8)
 Violation of the Ohio Corrupt Practices Act (Count 11)
 Civil Conspiracy (Count 12)
 Civil Liability for Criminal Acts (Count 13)
9.
{¶ 24} Against Midwest Entertainment Venture, LLC, and Anatomy
Nightclub (collectively the “MEV” appellees):3
 Violation of R.C. 309.12 (Count 1)
 Unjust Enrichment (Count 3)
 Violation of the Ohio Corrupt Practices Act (Count 11)
 Civil Conspiracy (Count 12)
 Civil Liability for Criminal Acts (Count 13)
{¶ 25} In response to the complaint, the various groups of appellees filed Civ.R.
12(B)(6) motions to dismiss.
{¶ 26} On July 3, 2014, Great Lakes moved to dismiss the claims against it on the
grounds that they (1) were barred by a contractual release contained in the Cease Work
Contract, (2) were not sufficiently pled under Civ.R. 8(A) and 9(B), and (3) were outside
of the statute of limitations because the County knew of, or reasonably should have
discovered, the claims as early as July 29, 2008, when an article in the Cleveland Plain
Dealer reported that a search warrant was executed upon Dimora, seeking in part, “For
any time period, documents reflecting James ‘Jimmy’ Dimora’s deliberative process,
discussions, analysis or actions regarding the following: * * * 2. Ameritrust project
(Cuyahoga County Administration Building).” Attached to Great Lakes’ motion to
dismiss were a copy of the Cease Work Contract and a copy of the online article from the
Cleveland Plain Dealer, with an attached link to a copy of the search warrant.
3
Anatomy Nightclub is alleged to be a “dba” of Midwest Entertainment Venture, LLC.
10.
{¶ 27} The Russo appellees moved to dismiss the complaint on the grounds that
the claims (1) were not sufficiently pled under Civ.R. 8(A) and 9(B), and (2) were barred
by the statute of limitations. In its motion, the Russo appellees also sought to adopt the
corresponding arguments raised by Great Lakes.
{¶ 28} Likewise, M2J1 moved to dismiss the complaint on the grounds that the
claims (1) were not sufficiently pled under Civ.R. 8(A) and 9(B), and (2) were barred by
the statute of limitations. M2J1 sought to incorporate the arguments made by Great
Lakes and the Russo appellees.
{¶ 29} Like the other defendants, the Oppmann appellees moved to dismiss the
complaint on the grounds that the claims (1) were not sufficiently pled under Civ.R. 8(A)
and 9(B), and (2) were barred by the statute of limitations. As to the statute of limitations
argument, the Oppmann appellees reasoned that the County’s alleged discovery date of
July 16, 2013, corresponding to Calabrese’s indictment, was inapplicable to them because
Calabrese did not represent the Oppmann appellees and had no involvement in the
transaction. Thus, the Oppmann appellees concluded that the only applicable date for
purposes of the statute of limitations that was alleged in the complaint was the date of the
sale of the parking garage on May 29, 2007, which would result in the County’s claims
being time-barred.
{¶ 30} Finally, the MEV appellees moved to dismiss the complaint, arguing that
the County has not alleged any facts that would subject them to liability. In addition, the
MEV appellees joined in the arguments made by Great Lakes and the Oppmann appellees
11.
relative to the statute of limitations and the sufficiency of the pleading under Civ.R. 8(A)
and 9(B).
{¶ 31} The County filed responses to each of the motions to dismiss, and each
group of appellees filed replies.
{¶ 32} On May 26, 2015, the judges of the Cuyahoga County Court of Common
Pleas were recused, and the Ohio Supreme Court assigned the case to a visiting judge. In
a pretrial conference held on August 18, 2015, the trial court notified the parties that it
would be converting all of the motions to dismiss into motions for summary judgment
since they referenced matters outside of the complaint. The court stated in its
corresponding October 1, 2015 order that all of the appellees were required to refile their
motions as motions for summary judgment “in order for the Court to consider the merits
of the Defendants’ claims.”
{¶ 33} In accordance with the trial court’s order, the parties filed the motions
described below.
{¶ 34} In Great Lakes’ motion for summary judgment, Great Lakes limited its
argument to whether the claims were barred by the contractual release contained in the
Cease Work Contract. However, Great Lakes indicated that it was reserving its right to
assert any counterclaims or affirmative defenses, including the defenses of statute of
limitations, estoppel, unclean hands, release, and laches. Further, Great Lakes asserted
that counsel for the County agreed that the County would not argue that the motion for
summary judgment waived any of Great Lakes’ affirmative defenses or counterclaims.
12.
Attached to Great Lakes’ motion for summary judgment was an affidavit from Robert
Roe, a managing director of Great Lakes. Roe stated that under the Cuyahoga County
Contract, Great Lakes was entitled to fees totaling $4,400,000. He testified that Great
Lakes performed a substantial amount of services for the County, but that the County
wished to terminate the Cuyahoga County Contract. As a result, the parties entered into
the Cease Work Contract under which Great Lakes agreed to accept the reduced fee of
$2,615,000 plus the initial $385,000, and would forgo payment of the remaining
$1,400,000. A copy of the Cease Work Contract was included as an exhibit to Roe’s
affidavit.
{¶ 35} The County filed a response to Great Lakes’ motion for summary
judgment, in which it argued that the release contained in the Cease Work Contract does
not bar the present claims. Alternatively, the County moved pursuant to Civ.R. 56(F) for
additional time to conduct discovery before responding to the motion for summary
judgment.
{¶ 36} The Russo appellees, on the other hand, filed a motion notifying the court
that they were withdrawing their arguments relative to the statute of limitations, and were
requesting that the court rule on their motion to dismiss as it pertains to the sufficiency of
the pleading pursuant to Civ.R. 8(A) and 9(B). The Russo appellees noted that they were
reserving their rights to raise the issue of the statute of limitations once discovery was
completed. The County did not respond to the Russo appellees’ motion.
13.
{¶ 37} M2J1 filed a motion for summary judgment asserting that the statute of
limitations barred the County’s claims. Attached to M2J1’s motion were copies of two
articles from the Cleveland Plain Dealer regarding the Ameritrust bribery and corruption
scandal, as well as the linked Dimora search warrant.
{¶ 38} Initially, the County moved to strike M2J1’s motion for summary judgment
because it was not timely filed. Alternatively, the County opposed M2J1’s motion for
summary judgment, asserting that the claims were not barred by the statute of limitations.
Further, the County moved to strike the exhibits attached to M2J1’s motion for summary
judgment because they were not authenticated by an affidavit.
{¶ 39} The Oppmann appellees’ motion for summary judgment raised the issue of
the statute of limitations, and argued that the claims were barred because the County was
on notice as of July 28, 2008, of possible fraudulent conduct and wrongdoing. Attached
to the Oppmann appellees’ motion for summary judgment was an affidavit from the
Oppmann appellees’ counsel stating that he discovered several news articles pertaining to
the allegations of fraud concerning the Ameritrust site by simply using the search term
“Dimora Search Warrant.” Those articles were incorporated as exhibits to his affidavit,
and included the July 29, 2008 article from the Cleveland Plain Dealer containing the link
to the Dimora search warrant. Also attached to the motion for summary judgment was an
affidavit from Barbara Allen, the office manager for the Oppmann appellees. Allen
testified as to the circumstances surrounding the sale of the parking garage, and
authenticated several documents related to such sale.
14.
{¶ 40} The County filed its opposition to the Oppmann appellees’ motion for
summary judgment. In addition, the County moved to strike the affidavits attached to the
motion for summary judgment on the grounds that the affidavits were not made on
personal knowledge. The Oppmann appellees opposed the motion to strike, and the
County filed a reply in support of its motion.
{¶ 41} Finally, the MEV appellees renewed their motion to dismiss, noting that it
did not require reference to any outside materials. As with their previous motion, the
MEV appellees argued that the County had not alleged any facts that would subject them
to liability.
{¶ 42} The County opposed the MEV appellees’ motion to dismiss, arguing that
the complaint was sufficient to state claims against the MEV appellees.
{¶ 43} On January 26, 2016, the trial court entered its judgment upon all of the
motions. The court began with the Oppmann appellees’ motion for summary judgment
and the County’s motion to strike the attached affidavits. Regarding the motion to strike,
the trial court found that Allen’s affidavit satisfied the personal knowledge requirement
by virtue of her position as the records custodian for the Oppmann appellees, as well as
her statement that she has personal knowledge of the Oppmann appellees’ business
records. Thus, the trial court overruled the County’s motion to strike Allen’s affidavit.
As to the affidavit from the Oppmann appellees’ counsel, the trial court found that it was
made on personal knowledge. Further, the court found that the two articles from the
Cleveland Plain Dealer were self-authenticating under Evid.R. 902(6), and noted that the
15.
Oppmann appellees were not admitting them to prove the truth of the matter asserted in
the article, but rather to show that newspaper outlets were reporting on the existence and
execution of the search warrant and its targeting of the Ameritrust project. However, the
court found that the other three articles4 were not self-authenticating under Evid.R.
902(6), and therefore struck them.
{¶ 44} Turning to the merits of the Oppmann appellees’ motion for summary
judgment, the trial court found that the County’s claims against the Oppmann appellees
were barred by the statute of limitations. The court found that there was no genuine issue
of material fact that the “discovery rule” for claims related to the Ameritrust project was
triggered on July 29, 2008, with the publication of the Cleveland Plain Dealer article that
referenced the execution of the search warrant for Dimora’s records. Further, the court
noted that when faced with a properly supported motion for summary judgment, the
County did not meet its reciprocal burden to demonstrate a genuine issue of material fact,
but instead merely relied upon the allegations in its complaint.
{¶ 45} The court then applied the discovery date of July 29, 2008, to determine
that the claims for fraud (Count 8), violation of the Ohio Corrupt Practices Act (Count
11), and civil conspiracy (Count 12) were barred by the statute of limitations.
4
Jones expects Dimora to resume county work, Crain’s Business (July 29, 2008); Dimora
search warrant: What the FBI/IRS were looking for, WKYC.com (July 30, 2008); and
FBI executing search warrants in public corruption investigation, WTAM 1100 AM
(July 28, 2008).
16.
{¶ 46} Regarding the claim for unjust enrichment (Count 3), the court found that
the sale of the parking garage was governed by an express written contract, which
therefore precluded the County’s unjust enrichment claim as a matter of law.
Alternatively, the court found that the benefit to the Oppmann appellees was conferred on
May 29, 2007, when the contract was executed, and the discovery rule does not apply to
unjust enrichment claims. Thus, the County’s complaint that was filed on May 30, 2014,
was beyond the six-year statute of limitations.
{¶ 47} Regarding the claim for liability for criminal acts under R.C. 2307.60
(Count 13), the trial court found that R.C. 2307.60 does not create a cognizable civil
cause of action. Alternatively, the court found that the complaint failed to state a claim
upon which relief could be granted pursuant to Civ.R. 12(B)(6) because the complaint
merely listed different criminal acts by citation only (R.C. 2921.02 [Bribery]; R.C.
2921.03[Intimidation]; R.C. 1315.55 [Money Laundering]; R.C. 2923.31(I)(1)
[Racketeering]; and R.C. 2921.32 [Obstructing Justice]), and failed to set forth elements
to put the Oppmann appellees on notice as required by law. Finally, the court found that
even if a cause of action existed under R.C. 2307.60, the claim is barred by a one-year
statute of limitations.
{¶ 48} Lastly, regarding the claim for violation of R.C. 309.12 for the protection
of public funds (Count 1), the court noted that R.C. 309.12 does not have a statute of
limitations. However, finding that the complaint sounded in fraud, the trial court applied
the four-year statute of limitations for fraud claims and found that the claim was
17.
time-barred. Alternatively, the trial court found that the doctrine of laches applied to bar
the claim because the County waited an unreasonable amount of time after the discovery
of the public corruption associated with the Ameritrust project to bring the claim. As an
additional alternative, the trial court found that the Cuyahoga County Department of Law
lacked standing to prosecute the claim because under R.C. 309.12 only the “prosecuting
attorney” may bring a civil action for damages in the name of the county. Although the
County asserted in its complaint that it referenced an agreement governing the division of
duties between the Cuyahoga County Prosecutor’s Office and Department of Law, the
court found that the County did not include a copy of that agreement in the record.
“Thus, it is not at all clear that the Complaint was filed with the authorization of the
Prosecuting Attorney.” Therefore, the trial court found that the claim should be
dismissed pursuant to Civ.R. 12(B)(6) for a lack of standing.
{¶ 49} The trial court next addressed Great Lakes’ motion for summary judgment
and the County’s motion for a continuance for further discovery under Civ.R. 56(F).
Initially, the trial court found that the County’s Civ.R. 56(F) motion sought additional
time to explore the statements of opinion or intent of the parties regarding the Cease
Work Contract offered by Roe in his affidavit. However, the court ruled that the Roe
affidavit was necessary only to authenticate the Cease Work Contract, and because the
language of the contractual release was clear and unambiguous, the court would disregard
any statement of opinion or intention contained in the affidavit. Thus, the trial court
18.
found that there was no need for a continuance under Civ.R. 56(F) and denied the
County’s motion.
{¶ 50} As to the contractual release, the relevant provision in the Cease Work
Contract provides,
4. The County and [Great Lakes] agree and acknowledge that upon
the payment in full of the compensation due to [Great Lakes] pursuant to
Paragraph 3, above, that the County will have fully performed all of its
contractual obligations under this Amendment to Prior Agreement and that
the County shall have performed or shall have been excused from
performing all of its prior obligations under the Prior Agreement. Each
party agrees that upon payment, a full release of any and all claims, of
every nature and type whatsoever, shall be executed, and any claim or
potential claim then outstanding between the Parties shall be deemed either
satisfied or waived in full forever.
{¶ 51} Based on this broad language, the trial court found that the “plain and
unambiguous terms of the Release bar all of the claims asserted in this lawsuit against the
Great Lakes Defendants.” In reaching its conclusion, the trial court rejected the County’s
arguments that (1) the release was not effective because it was not executed, (2) the
release was not effective because it was not supported by valid consideration, and (3) the
release was not effective because it was procured by fraud. As to the County’s assertion
of fraud, the trial court found that the argument was without merit because the County did
19.
not plead its fraud claims with particularity as required by Civ.R. 9(B). In addition, the
court found that the County was precluded from arguing that the release was procured by
fraud because the County had not tendered back or offered to return the consideration in
the form of Great Lakes’ forborne entitlement to the full $4,400,000 under the Cuyahoga
County Contract. Therefore, the trial court held that Great Lakes was entitled to
summary judgment on all of the County’s claims against it.
{¶ 52} Alternatively, the trial court found that all of the claims against Great Lakes
should be dismissed pursuant to Civ.R. 12(B)(6). Specifically, the claim for violation of
R.C. 309.12 for the protection of public funds (Count 1) must be dismissed for a lack of
standing, on the statute of limitations, and under the doctrine of laches, as discussed in
the analysis of the Oppmann appellees’ motion for summary judgment; the claim for
breach of contract (Count 2) must be dismissed for failure to allege the terms of the
contract that were breached; the claim for unjust enrichment (Count 3) must be dismissed
as barred by an express contract; the claim for fraud (Count 4) must be dismissed for
failure to comply with the heightened pleading standard under Civ.R. 9(B); the claim for
breach of fiduciary duty (Count 5) must be dismissed for merely relying on an incantation
of legal standards instead of pleading a breach of any duty with facts in support; the
claims for fraud in the inducement (Count 6), declaratory judgment (Count 7), violation
of the Ohio Corrupt Practices Act (Count 9), and civil conspiracy (Count 10) must be
dismissed for failure to comply with the heightened pleading standard under Civ.R. 9(B)
as they are all fraud-related; and the claim for civil liability for criminal acts under R.C.
20.
2307.60 (Count 13) must be dismissed for failing to meet the standard of notice pleading
pursuant to Civ.R. 8(A).
{¶ 53} As a final alternative, the trial court found that “as far as the Court can tell
all but one of the County’s claims are barred by the applicable statute of limitations based
upon the ‘discovery date’ of July 29, 2008,” referencing its analysis of the Oppmann
appellees’ motion for summary judgment.
{¶ 54} The trial court then addressed the remaining groups of appellees.
{¶ 55} As to M2J1, the trial court found that its motion for summary judgment
was untimely, and therefore granted the County’s motion to strike M2J1’s motion for
summary judgment. However, the court took judicial notice of M2J1’s previously filed
motion to dismiss, which was based upon the statute of limitations and the discovery date
of July 29, 2008. For all the reasons set forth in its analysis of the County’s claims
against the Oppmann appellees, the court held that the claims against M2J1 were time-
barred. Further, the court held that the claim for violation of R.C. 309.12 for the
protection of public funds (Count 1) was dismissed under Civ.R. 12(B)(6) for lack of
standing.
{¶ 56} Likewise, the trial court found that all of the claims against the Russo
appellees and the MEV appellees were barred by the statute of limitations, and that
Count 1 was dismissed for lack of standing.
{¶ 57} Accordingly, the trial court dismissed the County’s complaint in its entirety
with prejudice.
21.
II. Assignments of Error
{¶ 58} The County has timely appealed the trial court’s January 26, 2016
judgment, and now asserts 18 assignments of error for our review:
1. The Trial Court erred in dismissing all claims against all
Appellees as being time barred and finding that the “discovery rule” was
triggered “at least as early as July 29, 2008” based on the “evidence”
appended to the Motion for Summary Judgment filed by [the Oppmann
Appellees].
2. The Trial Court erred in finding that Appellant knew or should
have discovered the fraud beginning “at least as early as July 29, 2008”
where Appellant, the new Charter County government, was not effective as
a governmental entity until January 1, 2011.
3, The Trial Court erred in finding the date of the sale of the parking
garage on May 29, 2007 is the date the statute of limitations began to run
on Appellant’s claims against the Oppmann Appellees where Appellant’s
claims were based on corruption, fraud and conspiracy and not on a breach
of contract.
4. The Trial Court erred in determining that all but one of the claims
were time barred against [Great Lakes] pursuant to Ohio Civ.R. 12(B)(6)
because it impermissibly considered evidence outside the four corners of
the Complaint (i.e., unauthenticated, unreliable, impermissible evidence
22.
attached to the Oppmann Motion for Summary Judgment as to the July 29,
2008 “discovery date”).
5. The Trial Court erred in dismissing Appellant’s claims against
[M2J1], [the Russo appellees], and [the MEV appellees] pursuant to Ohio
Civ.R. 12(B)(6) as being time barred because it improperly took “judicial
notice” of impermissible evidence outside the four corners of the Complaint
in determining the “discovery date.”
6. The Trial Court erred in dismissing Appellant’s claims against
[M2J1], [the Russo appellees], and [the MEV appellees] pursuant to Rule
12(B)(6) in direct contravention of its order of October 1, 2015 wherein the
court gave notice that Appellees were required to re-file their motions as
motions for summary judgment in order for the Court to consider the merits
“since the Court cannot consider matters outside of the pleadings” as none
of their Motions to Dismiss were in fact converted and properly supported
by evidence.
7. The Trial Court erred in finding that all ten (10) claims brought
against [Great Lakes] were barred by the “terms of the Contract and its
Release Clause.”
8. The Trial Court erred in determining that Appellant failed to
plead its fraud claims against [Great Lakes] with sufficient particularity so
as to set aside the purported “release.”
23.
9. The Trial Court erred in, alternatively, dismissing pursuant to
Civ.R. 12(B)(6) and Civ.R. 9(B) Appellant’s claims against [Great Lakes]
for breach of contract (Count 2), unjust enrichment (Count 3), fraud (Count
4), breach of fiduciary duty (Count 5), Fraud in the Inducement (Claim 6),
declaratory judgment (Count 7), Violation of Ohio Corrupt Practices Act
(“OCPA”) (Count 9), Civil Conspiracy (Count 10), and civil liability for
criminal acts (Count 13) because Great Lakes relied “solely upon the
contractual Release of claims” in converting their Motion to Dismiss into a
Motion for Summary Judgment and pleading deficiencies were therefore
not before the Court.
10. The Trial Court erred in granting the Motion for Summary
Judgment of the Oppmann Appellees where a motion to strike all evidence
in support of the Motion for Summary Judgment was pending.
11. The Trial Court erred in granting the Motions for Summary
Judgment of the Oppmann and Great Lakes Appellees where Motions to
continue a ruling on summary judgment pending Ohio Civ.R. 56(F)
discovery were pending.
12. The Trial Court abused its discretion in denying Appellant’s
Motion to Strike the Affidavit of Barbara Allen (“Allen”) and Exhibits
attached thereto utilized by the Oppmann Appellees to support their Motion
for Summary Judgment.
24.
13. The Trial Court abused its discretion in denying Appellant’s
Motion to Strike the Affidavit of Richard T. Hamilton, Jr. (“Hamilton Jr.”)
and Exhibits 1 and 2 attached thereto utilized by the Oppmann Appellees to
support their Motion for Summary Judgment.
14. The Trial Court abused its discretion in denying Appellant’s
request for a continuance on a ruling on the Oppmann Appellees’ Motion
for Summary Judgment pending Ohio Civ.R. 56(F) where the motion was
not simply a motion to dismiss converted to a motion for summary
judgment.
15. The Trial Court abused its discretion in denying Appellant’s
Ohio Civ.R. 56(F) motion for continuance filed October 1, 2015 asking that
the Court hold in abeyance a ruling on Appellees Great Lakes’ Motion for
Summary Judgment where the motion was not simply a motion to dismiss
converted to a motion for summary judgment.
16. The Trial Court erred in dismissing Appellant’s claim for
violation of Ohio Rev. Code § 309.12 (Count 1) (contract in contravention
of law) for lack of standing.
17. The Trial Court erred in creating a statute of limitations for
claims under Ohio Rev. Code §§ 309.12 and 309.13 (Count One) and
finding the claim to be time barred where Ohio law does not provide for a
statute of limitation for such claim.
25.
18. The Trial Court erred in finding Appellant’s Count 1 barred by
laches where laches is not found against a governmental entity under Ohio
law.
III. Analysis
{¶ 59} In its appellate brief, the County does not separately argue its assignments
of error, instead it organizes its brief around several issues. For ease of discussion, we
will address the issues presented by the County as they pertain to each of the County’s 13
claims.
A. Standard of Review
{¶ 60} We review the grant of a motion for summary judgment de novo, applying
the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d
127, 129, 572 N.E.2d 198 (9th Dist.1989); Grafton v. Ohio Edison Co., 77 Ohio St.3d
102, 105, 671 N.E.2d 241 (1996). Under Civ.R. 56(C), summary judgment is appropriate
where (1) no genuine issue as to any material fact exists; (2) the moving party is entitled
to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion,
and viewing the evidence most strongly in favor of the nonmoving party, that conclusion
is adverse to the nonmoving party. Harless v. Willis Day Warehousing Co., 54 Ohio
St.2d 64, 66, 375 N.E.2d 46 (1978).
{¶ 61} On a motion for summary judgment, the moving party has the burden of
demonstrating that no genuine issue of material fact exists. Dresher v. Burt, 75 Ohio
St.3d 280, 292, 662 N.E.2d 264 (1996). In doing so, the moving party must point to
26.
some evidence in the record in the form of “pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, timely filed in the action.” Civ.R. 56(C); Dresher at 292-293.
The burden then shifts to the nonmoving party to provide evidence showing that a
genuine issue of material fact does exist. Dresher at 293.
A. Count 1
{¶ 62} The first count in the complaint is for violation of R.C. 309.12, and it is
asserted against all the appellees. R.C. 309.12 states,
Upon being satisfied that funds of the county, or public moneys in
the hands of the county treasurer or belonging to the county, are about to be
or have been misapplied, or that any such public moneys have been
illegally drawn or withheld from the county treasury, or that a contract, in
contravention of law, has been executed or is about to be entered into, or
that such a contract was procured by fraud or corruption, or that any
property, real or personal, belonging to the county is being illegally used or
occupied, or that such property is being used or occupied in violation of
contract, or that the terms of a contract made by or on behalf of the county
are being or have been violated, or that money is due the county, the
prosecuting attorney may, by civil action in the name of the state, apply to a
court of competent jurisdiction, to restrain such contemplated
misapplication of funds, or the completion of such illegal contract, or to
27.
recover, for the use of the county, all public moneys so misapplied or
illegally drawn or withheld from the county treasury, or to recover
damages, for the benefit of the county, resulting from the execution of such
illegal contract, or to recover, for the benefit of the county, such real or
personal property so used or occupied, or to recover for the benefit of the
county, damages resulting from the nonperformance of the terms of such
contract, or to otherwise enforce it, or to recover such money as is due the
county.
{¶ 63} In its January 26, 2016 judgment, the trial court found in favor of the
appellees for three alternative reasons: (1) the claim was barred by the statute of
limitations, (2) the claim was barred by the equitable doctrine of laches, or (3) the County
lacked standing to pursue the claim because it was not brought by the county prosecutor.
On appeal, the County challenges each of these conclusions in three issues:
Issue No. 10: The trial court erred in creating a statute of limitations
for claims under Ohio Rev. Code §§309.12 and 309.13 (Count One) and
finding the claim to be time barred where Ohio law does not provide for a
statute of limitations for such claim.
Issue No. 11: The trial court erred in finding Appellant’s Count 1
barred by laches where laches is not found against a governmental entity
under Ohio law.
28.
Issue No. 9: The trial court erred in dismissing Appellant’s claim for
violation of Ohio Rev. Code § 309.12 (Count 1) (contract in contravention
of law) pursuant to Ohio Civ.R. 12(B)(6) for lack of standing where
Appellant showed it had the requisite standing.
Because we find that the trial court’s dismissal of the claim under Civ.R. 12(B)(6) for
lack of standing is dispositive, we will not address the County’s arguments relative to the
statute of limitations and laches as they are moot.
{¶ 64} Our review of a trial court’s decision to dismiss a complaint pursuant to
Civ.R. 12(B)(6) is de novo. Ohio Bur. of Workers’ Comp. v. McKinley, 130 Ohio St.3d
156, 2011-Ohio-4432, 956 N.E.2d 814, ¶ 12. In order for a court to dismiss a complaint
under Civ.R 12(B)(6) for failure to state a claim upon which relief can be granted, it must
appear beyond doubt that the plaintiff can prove no set of facts warranting relief, after all
factual allegations of the complaint are presumed true and all reasonable inferences are
made in the nonmoving party’s favor. State ex rel. Findlay Publishing Co. v. Schroeder,
76 Ohio St.3d 580, 581, 669 N.E.2d 835 (1996).
{¶ 65} The issue of who is entitled to bring a civil action under R.C. 309.12 for the
recovery of funds inappropriately paid by the county is not one of first impression. In a
nearly identical situation, the Summit County Prosecuting Attorney requested an opinion
from the Ohio Attorney General regarding whether the county executive or the county
council of Summit County may commence an action for the recovery of funds under R.C.
309.12. 1995 Ohio Atty.Gen.Ops. No. 95-035. The Ohio Attorney General reasoned that
29.
the Summit County charter imposed upon the county prosecutor those obligations placed
upon him by the general law of this state. One of those general laws is R.C. 309.09(A),
which provides,
The prosecuting attorney shall be the legal adviser of the board of
county commissioners, board of elections, all other county officers and
boards, and all tax-supported public libraries, and any of them may require
written opinions or instructions from the prosecuting attorney in matters
connected with their official duties. The prosecuting attorney shall
prosecute and defend all suits and actions that any such officer, board, or
tax-supported public library directs or to which it is a party, and no county
officer may employ any other counsel or attorney at the expense of the
county, except as provided in section 305.14 of the Revised Code.
{¶ 66} The Ohio Attorney General then cited County of Summit ex rel. Slaby v.
Morgan, 9th Dist. Summit No. 10270, 1981 Ohio App. LEXIS 11194, *13-14 (Nov. 25,
1981), where the court, in addressing the balance between the county prosecutor and the
general counsel stated,
We are of the opinion that the prosecuting attorney alone is the legal
representative of both the county council and executive within the
prescribed limits of the statutes of this state.
***
30.
To dispel any implication to the contrary, we must add that although
the prosecuting attorney is not the exclusive legal advisor to agencies of the
county government, general counsel by some implication arising by virtue
of the creation of a staff position is not empowered by law or charter to
represent any of these entities. (Emphasis sic.)
{¶ 67} Therefore, the Ohio Attorney General advised,
[I]t is the Summit County Prosecuting Attorney who has authority to
bring an action for the recovery of county funds [under R.C. 309.12]. The
only exceptions to the commencement of an action by the prosecuting
attorney on behalf of the county for the recovery of public funds are where
the court of common pleas approves the appointment of counsel, other than
the prosecuting attorney, in accordance with R.C. 305.14(A) or where the
prosecuting attorney fails to bring an action under R.C. 117.28 within a
certain period of time, in which case the Attorney General may bring an
action under that section for the recovery of such funds. I conclude,
therefore, that, in the absence of contrary provision in the Summit County
charter and absent approval by the court of common pleas of the
appointment of other counsel in accordance with R.C. 305.14(A), it is the
duty of the Summit County Prosecuting Attorney, rather than the county
executive or the county council, to bring an action for the recovery of funds
31.
found by the Auditor of State to be owing to the county. 1995 Ohio
Atty.Gen.Ops. No. 95-035.
{¶ 68} Similar to the Summit County Charter, Article IV, Section 4.01 of the
Cuyahoga County Charter states, “The Prosecuting Attorney shall be elected, and the
duties of that office, and the compensation therefor, including provision for the
employment of outside counsel, shall continue to be determined in the manner provided
by general law.” Thus, the prosecuting attorney “shall prosecute and defend all suits and
actions” for the county, and “no county officer may employ any other counsel or attorney
at the expense of the county, except as provided in section 305.14 of the Revised Code.”
R.C. 309.09(A). R.C. 305.14(A) provides, in turn,
The court of common pleas, upon the application of the prosecuting
attorney and the board of county commissioners, may authorize the board
to employ legal counsel to assist the prosecuting attorney, the board, or any
other county officer in any matter of public business coming before such
board or officer, and in the prosecution or defense of any action or
proceeding in which such board or officer is a party or has an interest, in its
official capacity.
{¶ 69} Here, there is no evidence in the record that the County and the prosecuting
attorney applied to the court of common pleas to authorize the County to employ other
legal counsel to represent the County in its official capacity. Instead, the County cites a
statement in the signature block of the complaint that “Representation and designation
32.
pursuant to August 27, 2013 Agreement governing the division of duties between the
Cuyahoga County Prosecutor’s Office and Department of Law.” We find that this
statement is not sufficient to comply with the procedure in R.C. 305.14, and therefore we
hold that the trial court did not err in determining that the county law department did not
have standing to bring this claim under R.C. 309.12.
{¶ 70} On appeal, the County now asserts, for the first time, that the “August 27,
2013 Agreement” provided that “The Cuyahoga County Prosecutor shall designate all
current and future attorneys in the law department doing litigation for the County as
Assistant Prosecuting attorneys, unless for good cause shown.” In addition, the County
argues in its reply brief on appeal, for the first time, that the August 27, 2013 Agreement
was adopted by resolution No. R-2013-0184, and thus the present situation falls outside
of the Attorney General’s opinion to Summit County, which was contingent on “the
absence of contrary provision in the Summit County charter.” 1995 Ohio Atty.Gen.Ops.
No. 95-035. However, “it is well established that a party cannot raise any new issues or
legal theories for the first time on appeal.” Cawley JV, L.L.C. v. Wall St. Recycling
L.L.C., 2015-Ohio-1846, 35 N.E.3d 30, ¶ 17 (8th Dist.). Furthermore, the “August 27,
2013 Agreement” is not in the record, and “[a] reviewing court cannot add matter to the
record before it, which was not a part of the trial court’s proceedings, and then decide the
appeal on the basis of the new matter.” State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d
500 (1978), paragraph one of the syllabus. Finally, even if we could consider it,
resolution No. R-2013-0184 is not an amendment to the county charter. See Article XII,
33.
Section 12.10 of the Cuyahoga County Charter (“Proposed amendments to this Charter
shall be submitted to the electors of the County in the manner provided for by the Ohio
Constitution.”).
{¶ 71} Because the county law director did not have standing to assert the claim
under R.C. 309.12, such claim must be dismissed. See State ex rel. Dreamer v. Mason,
8th Dist. Cuyahoga Nos. 89249 and 89250, 2007-Ohio-271, ¶ 10-12 (dismissing petition
for writ of mandamus because counsel was not authorized to bring the action on behalf of
the Cuyahoga County Board of Elections), rev’d in part on other grounds, State ex rel.
Dreamer v. Mason, 115 Ohio St.3d 190, 2007-Ohio-4789, 874 N.E.2d 510.
{¶ 72} Finally, we note that our decision on this issue is limited to the County’s
claim for recovery of funds under R.C. 309.12, because that is the only count for which
the statute exclusively authorizes the county prosecutor to bring the claim.
{¶ 73} Accordingly, we hold that the County’s ninth, tenth, and eleventh issues are
without merit, and summary judgment in favor of all the appellees on the County’s first
claim is appropriate.
C. Count 2
{¶ 74} In the second count of the complaint, the County asserts a claim against
Great Lakes for breach of the Cuyahoga County Contract. The trial court granted
judgment in favor of Great Lakes on the grounds that the claim was barred by a
contractual release in the Cease Work Contract. In its appellate brief, the County raises
three issues applicable to this claim.
34.
Issue No. 4: The trial court erred in dismissing all of Appellant’s
claims against Great Lakes finding them barred by a release particularly
where there were multiple issues of material fact as to whether the release
was signed, procured by fraud, and supported by consideration which
required a tender back from Appellant to Great Lakes.
Issue No. 6: The Trial court erred in granting summary judgment on
the Oppmann and Great Lakes’ Motions for Summary Judgment without
the benefit of any discovery where motions by Appellant to stay rulings on
summary judgment to allow time for discovery into areas not addressed in
the original motions to dismiss, and to strike evidence from the Oppmann
motion for summary judgment were pending.
Issue No. 7: The trial court abused its discretion in denying
Appellant’s motions to continue rulings on the Oppmann and Great Lakes
“converted” motions for summary judgment where those motions addressed
topics and evidence not relied upon in their original motions to dismiss.
{¶ 75} In support of these issues, the County first implies that the language of the
release is ambiguous and that it was error to award summary judgment based on the
release where there was a genuine issue of material fact as to the parties’ intention
regarding the release. The release contained in the Cease Work Contract states, in
pertinent part, “Each party agrees that upon payment, a full release of any and all claims,
of every nature and type whatsoever, shall be executed, and any claim or potential claim
35.
then outstanding between the Parties shall be deemed either satisfied or waived in full
forever.”
{¶ 76} “A release of a cause of action for damages is ordinarily an absolute bar to
a later action on any claim encompassed within the release.” Haller v. Borror Corp., 50
Ohio St.3d 10, 13, 552 N.E.2d 207 (1990). “A release is a contract, and, as such, the
overriding consideration in interpreting a release is to ascertain the intent of the parties,
which intent is presumed to reside in the language the parties chose to employ in the
agreement.” McBroom v. Safford, 10th Dist. Franklin No. 11AP-885, 2012-Ohio-1919,
¶ 12, citing Whitt v. Hutchison, 43 Ohio St.2d 53, 330 N.E.2d 678 (1975). “A court will
resort to extrinsic evidence in its effort to give effect to the parties’ intentions only where
the language is unclear or ambiguous, or where the circumstances surrounding the
agreement invest the language of the contract with a special meaning.” Kelly v. Medical
Life Ins. Co., 31 Ohio St.3d 130, 132, 509 N.E.2d 411 (1987).
{¶ 77} In its reply brief on appeal, the County argues that one cannot derive from a
plain reading of the release an intention on the part of the County to release all claims,
known and unknown. We disagree, at least as to the claim for a breach of the Cuyahoga
County Contract.5 The release encompasses “any and all claims, of every nature and type
whatsoever.” Further, “any claim or potential claim then outstanding” was deemed
satisfied or waived. We find that this language is unambiguous, and is sufficient to
5
The trial court granted summary judgment based on the release of all claims against
Great Lakes, even those claims that were based on breach of the Cease Work Contract in
which the release was contained. We will address those claims in due course.
36.
demonstrate the intent of the parties to waive claims for all injuries relating to a breach of
the Cuyahoga County Contract, whether known or unknown at the time. See Sloan v.
Standard Oil Co., 177 Ohio St. 149, 203 N.E.2d 237 (1964), paragraph one of the
syllabus (“A release may be avoided where the releasor can establish by clear and
convincing evidence that it was executed by mutual mistake, as between himself and the
releasee, of a past or present fact material to the release, as where there was a mutual
mistake as to the existence of any injury of the releasor, unless it appears further that the
parties intended that claims for all injuries, whether known or unknown at the time of the
execution of the release, be relinquished.” (Emphasis sic.)). Therefore, we hold that
Great Lakes has met its initial burden on summary judgment to demonstrate that no
material fact exists that the claim is barred by the contractual release.
{¶ 78} The burden then shifts to the County to demonstrate that a genuine issue of
material fact exists regarding whether the release is enforceable. Here, the County
alleges that the release in the Cease Work Contract was obtained by fraud in the
inducement. “To avoid [a bar on any claim encompassed within the release], the releasor
must allege that the release was obtained by fraud and that he has tendered back the
consideration received for his release.” Haller, 50 Ohio St.3d at 13, 552 N.E.2d 207.
“[A] release obtained by fraud in the inducement is merely voidable upon proof of
fraud.” Id. “A claim of fraud in the inducement arises when a party is induced to enter
into an agreement through fraud or misrepresentation, ‘The fraud relates not to the nature
or purport of the [contract], but to the facts inducing its execution * * *.’” Abm Farms v.
37.
Woods, 81 Ohio St.3d 498, 502, 692 N.E.2d 574 (1998), quoting Haller at 14. “In order
to prove fraud in the inducement, a plaintiff must prove that the defendant made a
knowing, material misrepresentation with the intent of inducing the plaintiff’s reliance,
and that the plaintiff relied upon that misrepresentation to her detriment.” Id., citing Beer
v. Griffith, 61 Ohio St.2d 119, 123, 399 N.E.2d 1227 (1980).
{¶ 79} Here, the County did not provide any evidence in response to Great Lakes’
motion for summary judgment to demonstrate that the Cease Work Contract was
procured by fraud. Instead, the County merely relied upon its allegations in the
complaint to argue that Great Lakes was “grossly overpaid” for the work that it did, and
that such gross overpayment demonstrated fraud in the inducement. However,
When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the mere
allegations or denials of the party’s pleadings, but the party’s response, by
affidavit or as otherwise provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial. If the party does not so
respond, summary judgment, if appropriate, shall be entered against the
party. Civ.R. 56(E).
Thus, because the County did not put forth any specific facts showing that a genuine
issue of material fact existed regarding whether the Cease Work Contract was procured
by fraud, the County has not met its burden and summary judgment in favor of Great
Lakes is appropriate.
38.
{¶ 80} The County, arguing against this result, asserts in its sixth and seventh
issues that the trial court erred in granting summary judgment without affording the
County an opportunity to conduct discovery under Civ.R. 56(F), which provides,
Should it appear from the affidavits of a party opposing the motion
for summary judgment that the party cannot for sufficient reasons stated
present by affidavit facts essential to justify the party’s opposition, the court
may refuse the application for judgment or may order a continuance to
permit affidavits to be obtained or discovery to be had or may make such
other order as is just.
{¶ 81} “The trial court has wide discretion to grant or deny a request for a
continuance pursuant to Civ.R. 56(F) and its decision will not be reversed absent an
abuse of that discretion.” Scanlon v. Scanlon, 2013-Ohio-2694, 993 N.E.2d 855, ¶ 24
(8th Dist.). An abuse of discretion connotes that the trial court’s attitude was
unreasonable, arbitrary, or unconscionable. Ruwe v. Bd. of Springfield Twp. Trustees, 29
Ohio St.3d 59, 61, 505 N.E.2d 957 (1987). While the trial court has discretion to
determine whether additional time to gather rebuttal evidence is appropriate, “that
discretion should be exercised liberally in favor of a nonmoving party who proposes any
reasonable interval for the production of [rebuttal evidence],” where there is a realistic
possibility that genuine issues of material fact will require jury consideration.
Whiteleather v. Yosowitz, 10 Ohio App.3d 272, 276, 461 N.E.2d 1331 (8th Dist.1983).
39.
{¶ 82} In this case, the County stated in its Civ.R. 56(F) affidavit that Great
Lakes’ motion for summary judgment included an affidavit from Robert Roe that, in
addition to authenticating the Cease Work Contract, asserted disputed facts, opinions, and
conclusions. The County further stated that it needed time to contradict the Roe affidavit,
and to “conduct discovery and depositions in order to adequately support its factual
Opposition to the Motion for Summary Judgment filed by [Great Lakes].” In addition to
these general statements, in the County’s Civ.R. 56(F) motion contained within its
opposition to Great Lakes’ motion for summary judgment, the County asserted that some
of the information necessary to oppose the Roe affidavit will come from Calabrese and
from his communications with Roe, which is made more difficult because Calabrese is
currently in federal prison. Further, the County stated that “many of the people who can
testify as to the intent of the County are either in Federal Prison or no longer in the
Cleveland area.” Finally, the County offered that the federal government had seized
thousands of documents for its use in prosecuting the corruption cases, and that those
files “have recently been returned” to the County but will take substantial time to review.
{¶ 83} In denying the County’s Civ.R. 56(F) motion, the trial court reasoned that
the County’s expressed need for discovery was to explore the statements of opinion or
intent contained in the Roe affidavit. Importantly, the main contention in the County’s
opposition to Great Lakes’ motion for summary judgment was that the parties did not
intend to release the claims that were based on Great Lakes’ purported corrupt and
fraudulent conduct. However, as noted above, the court found that the release was
40.
unambiguous, and thus the Roe affidavit was necessary only for purposes of
authenticating the Cease Work Contract. Accordingly, the trial court affirmatively
disregarded any ancillary statements of opinion or intention contained in the Roe
affidavit. Under those circumstances, the trial court found that there was no need for a
continuance for discovery of Great Lakes’ intent regarding the scope of the release in the
Cease Work Contract. In that context, we hold that the trial court’s denial of the
County’s Civ.R. 56(F) motion was not an abuse of discretion.
{¶ 84} To the extent that the County now emphasizes that discovery was needed to
show that the Cease Work Contract was procured by fraud, we still find that the trial
court’s denial was not an abuse of discretion. Although discovery had not yet begun, the
County filed its Civ.R. 56(F) motion 16 months after the complaint, and nearly 15
months after Great Lakes moved to dismiss the complaint on the grounds that it was
barred by the release in the Cease Work Contract. In that time, the County failed to
obtain an affidavit from any of its current or former agents to substantiate its claim that
the Cease Work Contract was procured by fraud.
{¶ 85} Therefore, we find that the County’s fourth, sixth, and seventh issues are
without merit. We hold that the trial court did not abuse its discretion in denying the
County’s Civ.R. 56(F) motion for a continuance for discovery, and that summary
judgment in favor of Great Lakes on Count 2 was appropriate.6
6
By virtue of our conclusion, we need not reach the County’s argument challenging the
trial court’s determination that the County is prevented from even asserting fraud in the
41.
D. Statute of Limitations
{¶ 86} The crux of the trial court’s dismissal of many claims in this lawsuit
concerns when the causes of action accrued for purposes of determining whether the
claims were filed within the respective statute of limitations. “Ordinarily, a cause of
action accrues and the statute of limitations begins to run at the time the wrongful act was
committed.” Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625,
849 N.E.2d 268, ¶ 21, quoting Collins v. Sotka, 81 Ohio St.3d 506, 507, 692 N.E.2d 581(1998). “Under the discovery rule, the statute of limitations begins to run when the
plaintiff discovers or, through the exercise of reasonable diligence, should have
discovered a possible cause of action.” Id.{¶ 87} The first three issues raised by the County in its appellate brief challenge
the trial court’s determination that July 29, 2008, is the starting point for determining
whether the claims fall outside of the respective statutes of limitations.
{¶ 88} In its first issue, the County asserts,
Issue No. 1: The Trial Court erred when it determined the
“discovery date” for fraud accrued on July 29, 2008 based on unreliable,
unauthenticated, improper documents attached to the Oppmann Motion for
Summary Judgment and took judicial notice of that date in dismissing all
claims against all other Appellees as being time barred because it
inducement without first tendering back the consideration it received for entering into the
Cease Work Contract.
42.
impermissibly considered evidence outside the four corners of the
complaint in ruling on their Ohio Civ.R. 12(B)(6) motions to dismiss.
{¶ 89} In support of its first issue, the County argues that the trial court erred in
finding that the discovery date for purposes of all of its claims was July 28, 2008, as
opposed to July 16, 2013, when Calabrese was indicted. The trial court’s conclusion that
July 29, 2008, is the relevant date is based upon two Cleveland Plain Dealer online
newspaper articles that were submitted in support of the Oppmann appellees’ motion for
summary judgment. Those articles, published on July 28 and 29, 2008, respectively,
reported on the allegations of public corruption levied against Dimora, as well as the
execution of a search warrant by federal authorities at Dimora’s office. Linked to the
July 29, 2008 article was a copy of the search warrant, which indicated that the federal
authorities were looking for, among other things, “documents reflecting James ‘Jimmy’
Dimora’s deliberative process, discussions, analysis or actions regarding the following:
* * * 2. Ameritrust project (Cuyahoga County Administration Building).”
{¶ 90} The County argues that the newspaper articles relied upon by the trial court
are inadmissible because they are hearsay and are inherently unreliable.7 Hearsay “is a
7
Notably, the County acknowledges in its appellate brief that the newspaper reports are
self-authenticating under Evid.R. 902(6), which provides, “Extrinsic evidence of
authenticity as a condition precedent to admissibility is not required with respect to the
following: * * * (6) Newspapers and periodicals. Printed materials purporting to be
newspapers or periodicals, including notices and advertisements contained therein.”
Contrarily, in its reply brief, the County raises, for the first time, the argument that the
articles are not self-authenticating because they were not printed. However, “[I]t is well
established that a party cannot raise any new issues or legal theories for the first time on
43.
statement, other than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.” Evid.R. 801(C). While it is
true that “newspaper articles are generally inadmissible as evidence of the facts stated in
them,” Plavecski v. Cleveland Clinic Found., 192 Ohio App.3d 533, 2010-Ohio-6016,
949 N.E.2d 1007, ¶ 19 (8th Dist.), here the newspaper articles were not offered to prove
the truth of the matter asserted. Rather, the newspaper articles were offered to establish
when the County, through reasonable diligence, should have discovered the possible
causes of action. Therefore, the newspaper articles are not hearsay.
{¶ 91} Additionally, the County notes, correctly, that nothing in the newspaper
articles mentioned the Ameritrust project or the purchase of the parking garage so as to put
it on notice of any potential wrongdoing regarding those deals. That detail is instead found
in the linked search warrant. However, the County argues that there is no indicia of
reliability that the search warrant was public and available on the internet at the time
claimed by the Oppmann appellees. We disagree. The July 29, 2008 article was published
at 1:14 p.m. It was last updated on July 29, 2008, at 10:54 p.m. The article itself states,
“See the attachment to the search warrant below or download these PDFs: Search
warrant [http://blog.cleveland.com/metro/2008/07/_dimorasearchwarrant.pdf].” The
Oppmann appellees’ attorney testified in his affidavit that he followed the link in the article
appeal.” Cawley JV, L.L.C. v. Wall St. Recycling L.L.C., 2015-Ohio-1846, 35 N.E.3d 30,
¶ 17 (8th Dist.), quoting Hollish v. Maners, 5th Dist. Knox No. 2011CA000005, 2011-
Ohio-4823, ¶ 44. Thus, the County has waived the argument that the newspaper articles
are not self-authenticating. Id.
44.
and attached the referenced search warrant. Thus, because the article has not been updated
since 10:54 p.m. on July 29, 2008, there is sufficient indicia of reliability that the search
warrant produced by following the link is the same search warrant that would have been
accessed by a person following the link on July 29, 2008. Therefore, we reject the
County’s unfounded speculation that the search warrant was not available at that time, and
hold that the trial court did not err in considering the newspaper articles and search warrant
on summary judgment.
{¶ 92} Relatedly, in its eighth issue, the County argues that the trial court erred in
denying its motion to strike the affidavits in support of the Oppmann appellees’ motion
for summary judgment:8
Issue No. 8: The trial court abused its discretion in denying
Appellant’s motions to strike the exhibits supporting the Oppmann
Appellees’ Motion for Summary Judgment where the exhibits contained
unreliable, unauthenticated impermissible Rule 56(C) material.
{¶ 93} “A trial court’s decision to grant or deny a motion to strike will not be
overturned on appeal absent a showing of abuse of discretion.” State ex rel. Mora v.
Wilkinson, 105 Ohio St.3d 272, 2005-Ohio-1509, 824 N.E.2d 1000, ¶ 10, quoting
Samadder v. DMF of Ohio, Inc., 154 Ohio App.3d 770, 2003-Ohio-5340, 798 N.E.2d
1141, ¶ 17 (10th Dist.). Here, the County moved to strike the affidavit of the Oppmann
8
In its appellate brief, the County challenges the trial court’s denial of its motion to strike
both the affidavit of Barbara Allen and the affidavit of the Oppmann appellees’ attorney.
At this point, our analysis is limited to the affidavit of the Oppmann appellees’ attorney.
45.
appellees’ attorney because he did not have personal knowledge of the creation or
maintenance of the documents, nor did he have personal knowledge of the facts contained
therein.9 The trial court disagreed, and found that the attorney had personal knowledge
because he was the individual that conducted the Google search that led him to discover
the attached exhibits.
{¶ 94} We do not find the trial court’s attitude in reaching its decision to be
arbitrary, unreasonable, or unconscionable. In this case, the affiant’s personal knowledge
of the facts contained in the newspaper articles is irrelevant; as discussed above, the
articles were not offered to prove the truth of the matter asserted, but rather were offered
to prove simply that the matter was being reported. In that regard, the affiant had
personal knowledge of the attached articles because he personally observed them.
Therefore, we hold that the trial court did not abuse its discretion when it denied the
County’s motion to strike, and the County’s eighth issue is without merit.
{¶ 95} The next issue we must confront is whether, based on the newspaper
articles and search warrant, the trial court erred when it concluded that the County should
have discovered the possible causes of action on July 29, 2008. In determining whether
the published documents were sufficient to alert a reasonable person to the possibility of
wrongdoing, we must be careful not to fall into the trap of relying on the truth of the
statements contained in the documents. Indeed, were we to rely on those statements, the
9
Civ.R. 56(E) mandates that affidavits “shall be made on personal knowledge, shall set
forth such facts as would be admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated in the affidavit.”
46.
obvious conclusion would be that the County was certainly aware of the possibility of
wrongdoing as it was county officials who released the details of the search warrant, and
the warrant was executed at the County Administrative Building. However, as discussed
above, the articles are relevant not because they are or are not true, but because they were
published.
{¶ 96} In that context, the narrow question before us is whether the evidence of
publication of news articles alleging public corruption involving the Ameritrust project
demonstrates that there is no genuine issue of material fact that the County should have
discovered the possibility of wrongdoing through the exercise of reasonable diligence.
Under these circumstances, we hold that it does.
{¶ 97} Initially, we note that there is no evidence in the record directly showing
that any agent of the County read the aforementioned articles. Thus, to impute
knowledge of the articles to the County we must infer that someone from the County read
or was aware of those articles. Although we must “construe the evidence and all
reasonable inferences drawn therefrom in a light most favorable to the party opposing the
motion,” Beder v. Cleveland Browns, 129 Ohio App.3d 188, 193, 717 N.E.2d 716 (8th
Dist.1998), citing Morris v. Ohio Cas. Ins. Co., 35 Ohio St.3d 45, 517 N.E.2d 904(1988), we hold that the only reasonable inference is that the County was aware of the
articles. Indeed, we conclude that it would be patently unreasonable to infer that the
County was completely ignorant of the salacious allegations of public corruption
involving a county commissioner, and the corresponding execution of the search warrant
47.
relative to the Ameritrust project, which were reported in the leading news publication in
the region.10 Thus, we hold that the Oppmann appellees have met their initial burden of
demonstrating that there are no genuine issues of material fact. See Harless v. Willis Day
Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978) (“The burden of showing
that no genuine issue exists as to any material fact falls upon the moving party in
requesting a summary judgment.”).
{¶ 98} “When a motion for summary judgment is made and supported as provided
in this rule, an adverse party may not rest upon the mere allegations or denials of the
party’s pleadings, but the party’s response, by affidavit or as otherwise provided in this
rule, must set forth specific facts showing that there is a genuine issue for trial.” Civ.R.
56(E); Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988). Here, the
County did not submit any affidavits or other evidence demonstrating that it was unaware
of the allegations contained in the newspaper articles. Therefore, we hold that there is no
genuine issue of material fact, and the discovery date for purposes of the County’s claims
was July 29, 2008.
{¶ 99} The County next argues under its first issue that the trial court erred when it
took “judicial notice” of the evidence attached to the Oppmann appellees’ motion for
summary judgment and used it to find that the claims against the other groups of
10
We are careful to emphasize that our holding is limited to the particular facts of this
case. We do not intend to hold that in every case the publication of a news article is
sufficient to alert a person exercising reasonable diligence of possible wrongdoing,
without evidence that the person was aware of the article.
48.
appellees also had a discovery date of July 29, 2008. To the contrary, “[a] court certainly
may take judicial notice of the record and proceedings in the case before it.” Davenport
v. Big Bros. & Big Sisters of the Greater Miami Valley, Inc., 2d Dist. Montgomery No.
23659, 2010-Ohio-2503, ¶ 24; Ghaster v. City of Rocky River, 8th Dist. Cuyahoga No.
99779, 2013-Ohio-5587, ¶ 19 (“A trial court may only take judicial notice of prior
proceedings in the immediate case.”). In addition, the County’s argument emphasizes
that the trial court impermissibly relied on matters outside of the complaint to grant the
appellees’ motion to dismiss. However, it is clear from the record that the trial court
converted the motions to dismiss into motions for summary judgment as provided under
Civ.R. 12(B).11 Further, to the extent the County argues that the trial court erred in
granting summary judgment to all of the appellees on the basis of the statute of
limitations, despite some of the parties not raising the issue in their motions for summary
judgment, or expressly withdrawing the issue for a later time, we find no prejudicial
error. In this case, the statute of limitations arguments were not unique to each individual
defendant, and the County had ample opportunity to respond to the arguments that the
claims were outside of the statute of limitations. See Civ.R. 61 (“The court at every stage
of the proceeding must disregard any error or defect in the proceeding which does not
affect the substantial rights of the parties.”); Luri v. Republic Servs., 2014-Ohio-3817, 18
11
“When a motion to dismiss for failure to state a claim upon which relief can be granted
presents matters outside the pleading and such matters are not excluded by the court, the
motion shall be treated as a motion for summary judgment and disposed of as provided in
Rule 56. * * * All parties shall be given reasonable opportunity to present all materials
made pertinent to such a motion by Rule 56.” Civ.R. 12(B).
49.
N.E.3d 844, ¶ 9 (8th Dist.) (“Under the concept of harmless error, it is neither prudent nor
appropriate for this court to order a trial court to remedy an error that does not affect the
outcome of the case.”). Thus, we hold that the trial court did not err in taking judicial
notice of the evidence attached to the Oppmann appellees’ motion for summary
judgment.
{¶ 100} Finally, the County argues that the trial court erred in taking judicial
notice without first providing the County with notice as required under Evid.R. 201.
However, Evid.R. 201(C) provides that “A court may take judicial notice, whether
requested or not,” and Evid.R. 201(E) states that “A party is entitled upon timely request
to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of
the matter noticed. In the absence of prior notification, the request may be made after
judicial notice has been taken.” (Emphasis added.) Thus, Evid.R. 201 does not require
prior notification before taking judicial notice. Further, the County did not request an
opportunity to be heard as to the propriety of taking judicial notice at any point before or
after the trial court granted the appellees’ motions for summary judgment. “If a party
fails to timely request an opportunity to be heard regarding judicial notice, the party
waives or forfeits any challenges to the judicially-noticed facts.” Fettro v. Rombach Ctr.,
LLC, 12th Dist. Clinton No. CA2012-07-018, 2013-Ohio-2279, ¶ 30. Therefore, the
County has waived this argument, and even if it had not, the argument is without merit.
{¶ 101} Accordingly, we hold that the County’s first issue is without merit.
50.
{¶ 102} The County next asserts the following issues:
Issue No. 2: The Trial Court erred in determining that Appellant had
the requisite knowledge for purposes of discovery of the possible fraud as
of July 29, 2008 where there was no evidence that Appellant knew the
contents of a search warrant, still admittedly sealed, proffered by the
Oppmann Appellees as support for their Motion for Summary Judgment.
Issue No. 3: The Trial Court erred in determining that Appellant, a
new charter executive/legislative form of government with home rule
authority knew or should have discovered the fraud of Appellees as of
July 29, 2008 where it was not in existence until January 1, 2011.
{¶ 103} In support of these issues, the County makes two arguments. First, the
County argues that the trial court erred in finding that the County should have reasonably
discovered the basis for the claims on July 29, 2008, when the new charter executive
form of county government was not even in existence until January 1, 2011. However,
the County’s argument presumes that the new form of government recreates Cuyahoga
County as a new entity entirely. Under the County’s argument any claim would not have
been “discovered” until January 1, 2011, regardless if the event occurred in 2005, 1995,
or 1905, which is an absurd result. Moreover, if the relationship between the former
county government and the current county government is so attenuated that the current
government cannot be imputed with the knowledge of the former, we find it inconsistent
51.
to hold that the current government could nevertheless assert the former government’s
claims for injuries.
{¶ 104} Second, the County argues that the trial court erred in finding the
discovery date to be July 29, 2008, because while Dimora may have been on notice of the
wrongdoing at the time, “[n]otice/knowledge of fraud by the purported bad actor does not
constitute notice/knowledge of fraud by the corporation.” In support of this proposition,
the County cites authority from the Iowa Supreme Court. In this case, we need not
examine whether Ohio law agrees with this proposition because the discovery date of
July 29, 2008, is not based on Dimora’s knowledge, but rather the publication of the
allegations and search warrant in the Cleveland Plain Dealer.
{¶ 105} Accordingly, we find the County’s second and third issues to be without
merit.
{¶ 106} The County also asserts in its sixth and seventh issues, articulated above,
that the trial court erred in granting summary judgment where there was a pending Civ.R.
56(F) motion in opposition to the Oppmann appellees’ motion for summary judgment.
However, the County did not file an affidavit in support of its motion as required by the
rule. “Where no affidavit is presented in support of a motion for extension under Civ.R.
56(F), a court may not grant an extension pursuant thereto.” Cook v. Toledo Hosp., 169
Ohio App.3d 180, 2006-Ohio-5278, 862 N.E.2d 181, ¶ 42 (6th Dist.); see also State ex
rel. Coulverson v. Ohio Adult Parole Auth., 62 Ohio St.3d 12, 14, 577 N.E.2d 352 (1991)
(where no valid affidavit was filed, the court “could not act under Civ.R. 56(F)”).
52.
{¶ 107} Therefore, we find the County’s sixth and seventh issues to be without
merit.
{¶ 108} Accordingly, we will use the discovery date of July 29, 2008, to determine
whether the County’s claims are outside of the statute of limitations. We will now
address each of the County’s remaining 11 claims in turn.
1. Count 3
{¶ 109} In its third count, the County asserts that all the appellees were unjustly
enriched by the amounts paid for the Cuyahoga County Contract, the Cease Work
Contract, and the purchase of the Oppmann parking garage. We find that the trial court
properly granted summary judgment on this claim because it is barred by the statute of
limitations.
{¶ 110} A claim for unjust enrichment is a claim in quasi-contract, and is therefore
subject to the six-year statute of limitations in R.C. 2305.07.12 Hambleton v. R.G. Barry
Corp., 12 Ohio St.3d 179, 182, 465 N.E.2d 1298 (1984). Thus, since the complaint was
filed on May 30, 2014, the claim is barred by the statute of limitations if the causes of
action accrued before May 30, 2008. Notably, “[t]he discovery rule does not apply to
unjust enrichment claims.” Drozeck v. Lawyers Title Ins. Corp., 140 Ohio App.3d 816,
749 N.E.2d 775 (8th Dist.2001). Rather, “[a] claim for unjust enrichment accrues on the
12
R.C. 2305.07 provides, “Except as provided in sections 126.301 and 1302.98 of the
Revised Code, an action upon a contract not in writing, express or implied, or upon a
liability created by statute other than a forfeiture or penalty, shall be brought within six
years after the cause thereof accrued.”
53.
date that money is retained under circumstances that make it unjust to do so.” Pomeroy
v. Schwartz, 8th Dist. Cuyahoga No. 99638, 2013-Ohio-4920, ¶ 41, quoting Palm Beach
Co. v. Dun & Bradstreet, 106 Ohio App.3d 167, 175, 665 N.E.2d 718 (1st Dist.1995).
{¶ 111} Here, according to the complaint, the Cuyahoga County Contract was
entered into in 2004, the Cease Work Contract was entered into in 2005, and the sale of
the Oppmann parking garage was completed in 2007. Thus, all of the causes of action
accrued before May 30, 2008. Therefore, we hold that the trial court did not err in
awarding summary judgment to all appellees on the count of unjust enrichment as the
claim was barred by the statute of limitations.
2. Count 4
{¶ 112} In the fourth count, the County asserts a claim of fraud against Great
Lakes. A claim of fraud is subject to the four-year statute of limitations in R.C. 2305.09.
Cundall v. U.S. Bank, 122 Ohio St.3d 188, 2009-Ohio-2523, 909 N.E.2d 1244, ¶ 24.
Applying the discovery date of July 29, 2008, the claim filed on May 30, 2014, is time-
barred. Therefore, we hold that the trial court did not err in granting summary judgment
to Great Lakes on Count 4 on the grounds that it was barred by the statute of limitations.
3. Count 5
{¶ 113} In the fifth count, the County asserts a claim for breach of fiduciary duty
against Great Lakes. A claim for breach of fiduciary duty is subject to the four-year
statute of limitations in R.C. 2305.09. Cleveland Indus. Square, Inc. v. Dzina, 8th Dist.
Cuyahoga Nos. 85336, 85337, 85422, 85423, 85441, 2006-Ohio-1095, ¶ 45, fn. 1. “A
54.
cause of action for breach of fiduciary duty arises when the act or commission
constituting the breach of fiduciary duty occurred. The discovery rule does not toll the
statute of limitations for a breach of fiduciary duty claim.” Id., citing Helman v. EPL
Prolong, Inc., 139 Ohio App.3d 231, 249, 743 N.E.2d 484 (7th Dist.2000). Here, it is
unclear whether the County is alleging breach of fiduciary duty in Great Lakes’
performance under the Cuyahoga County Contract or its negotiations under the Cease
Work Contract, but in either event, the cause of action would have accrued at the latest in
2005 when the Cease Work Contract was completed. Therefore, we hold that the trial
court did not err in awarding summary judgment to Great Lakes on Count 5 as being
barred by the statute of limitations.
4. Count 6
{¶ 114} In the sixth count, the County brings a claim of fraud in the inducement
against Great Lakes, relating to the Cease Work Contract. Like the fraud claim in Count
4, the County’s claim of fraud in the inducement is subject to the four-year statute of
limitations in R.C. 2305.09. Thus, it is similarly time-barred, and we hold that the trial
court did not err in awarding summary judgment on this count in favor of Great Lakes.
5. Count 7
{¶ 115} In Count 7, the County asserts a claim for declaratory judgment against
Great Lakes, declaring that the Cease Work Contract was induced by fraud and is
therefore void. Although styled as seeking declaratory relief, the underlying claim is for
fraud in the inducement. Thus, Count 7 is also subject to the four-year statute of
55.
limitations in R.C. 2305.09. See Ricketts v. Everflow E., Inc., 2016-Ohio-4807, 68
N.E.3d 165, ¶ 15 (7th Dist.) (declaratory judgment action revolved around breach of an
oil and gas lease contract, and was therefore subject to the statute of limitations in R.C.
2305.041). Therefore, we hold that the trial court did not err in granting summary
judgment in favor of Great Lakes on Count 7, as it was barred by the statute of
limitations.
6. Count 8
{¶ 116} In the eighth count, the County asserts a claim for fraud against the
Oppmann appellees based on their conduct surrounding the sale of the parking garage.
As stated above, claims of fraud are subject to a four-year statute of limitations under
R.C. 2305.09. Thus, applying the discovery date of July 29, 2008, this count is time-
barred, and we hold that the trial court did not err in awarding summary judgment in
favor of the Oppmann appellees on Count 8.
7. Count 9
{¶ 117} In Count 9, the County asserts that Great Lakes, the Russo appellees, and
M2J1 violated the Ohio Corrupt Practices Act under R.C. 2923.31 et seq. Pursuant to
R.C. 2923.34(J), “a civil proceeding or action under this section may be commenced at
any time within five years after the unlawful conduct terminates or the cause of action
accrues or within any longer statutory period of limitations that may be applicable.” In
this case, the cause of action accrued at the latest on July 29, 2008, but the complaint was
not filed until May 30, 2014. Therefore, the claim is outside of the five-year statute of
56.
limitations, and we hold that the trial court properly granted summary judgment to Great
Lakes, the Russo appellees, and M2J1 on this claim.
8. Count 10
{¶ 118} Count 10 of the complaint asserts a claim of civil conspiracy against Great
Lakes, the Russo appellees, and M2J1. “[A] claim for conspiracy cannot be made subject
of a civil action unless something is done which, in the absence of the conspiracy
allegation, would give rise to an independent cause of action.” Cully v. St. Augustine
Manor, 8th Dist. Cuyahoga No. 67601, 1995 Ohio App. LEXIS 1643, *10 (Apr. 20,
1995), citing Katz v. Banning, 84 Ohio App.3d 543, 552, 617 N.E.2d 729 (10th
Dist.1992). “Thus, the applicable statute of limitations for the underlying cause of action
applies to the civil conspiracy charge.” Id. at *11.
{¶ 119} Here, the County alleges that the named defendants conspired to obtain
and inflate the price of the Cuyahoga County Contract and the Cease Work Contract for
their own personal gain. We find that the underlying allegation sounds in fraud, and is
therefore subject to the four-year statute of limitations in R.C. 2305.09. Consequently,
like the other fraud claims, the County’s claim for civil conspiracy in Count 10 was filed
outside of the statute of limitations, and we hold that the trial court did not err in
awarding summary judgment to Great Lakes, the Russo appellees, and M2J1 on this
count.
57.
9. Count 11
{¶ 120} In Count 11 the County alleges that the Oppmann appellees and the MEV
appellees violated the Ohio Corrupt Practices Act under R.C. 2923.31 et seq. For the
same reasons articulated in our discussion of Count 9, the County’s claim under Count 11
is barred by the five-year statute of limitations pursuant to R.C. 2923.34(J). Accordingly,
we hold that the trial court did not err when it awarded summary judgment to the
Oppmann appellees and the MEV appellees on this count.
10. Count 12
{¶ 121} In the twelfth count, the County asserts a claim of civil conspiracy against
the Oppmann appellees and the MEV appellees. The complaint alleges that the Oppmann
appellees and the MEV appellees conspired to insure the sale of the parking garage, and
to obtain and inflate the sale price. Similar to Count 10, we find that the underlying
allegations sound in fraud, and we therefore apply the four-year statute of limitations in
R.C. 2305.09. Using the discovery date of July 29, 2008, we find that this claim is time
barred, and we hold that the trial court did not err in awarding summary judgment on this
count in favor of the Oppmann appellees and the MEV appellees.
11. Count 13
{¶ 122} In its thirteenth and final count, the County asserts a claim against all
appellees for civil liability for criminal acts pursuant to R.C. 2307.60(A)(1), which
provides,
58.
Anyone injured in person or property by a criminal act has, and may
recover full damages in, a civil action unless specifically excepted by law,
may recover the costs of maintaining the civil action and attorney’s fees if
authorized by any provision of the Rules of Civil Procedure or another
section of the Revised Code or under the common law of this state, and
may recover punitive or exemplary damages if authorized by section
2315.21 or another section of the Revised Code.
Here, the County alleged that all appellees engaged in criminal acts including,
bribery, intimidation, money laundering, racketeering, and obstructing justice.
{¶ 123} R.C. 2307.60 contemplates a penalty, therefore it is subject to the one-
year statute of limitations in R.C. 2305.11(A).13 Steinbrick v. Cleveland Elec.
Illuminating Co., 8th Dist. Cuyahoga No. 66035, 1994 Ohio App. LEXIS 3756, *5 (Aug.
25, 1994). Thus, applying the discovery date of July 29, 2008, we find that the claim for
civil liability for criminal acts is barred by the statute of limitations. Therefore, we hold
that the trial court did not err in awarding summary judgment in favor of all appellees on
this claim.14
13
“[A]n action upon a statute for a penalty or forfeiture shall be commenced within one
year after the cause of action accrued.” R.C. 2305.11(A).
14
Notably, the trial court also held that a claim under R.C. 2307.60 is not a cognizable
civil cause of action. However, during the pendency of this appeal, the Ohio Supreme
Court has clarified that “By its plain and unambiguous language, R.C. 2307.60 creates a
civil cause of action for damages resulting from any criminal act, unless otherwise
prohibited by law.” Jacobson v. Kaforey, Slip Opinion No. 2016-Ohio-8434, ¶ 13.
59.
E. Other Arguments Moot
{¶ 124} In addition to the above arguments, the County also raises as its fifth
issue:
Issue No. 5: The trial court erred in alternatively dismissing
pursuant to Civ.R. 12(B)(6) and 9(B) Appellant’s claims against Appellees
Great Lakes for breach of contract (Count 2), unjust enrichment (Count 3),
fraud (Count 4), breach of fiduciary duty (Count 5), fraud in the
inducement (Count 6), declaratory judgment (Count 7), violation of the
Ohio Corrupt Practices Act (“OCPA”) (Count 9), civil conspiracy (Count
10), and civil liability for criminal acts (Count 13) pursuant to Civ.R.
12(B)(6) and 9(B) based on pleading deficiencies where Great Lakes relied
“solely upon a [purported] contractual release” in its “converted” motion
for summary [judgment].
{¶ 125} In light of our analysis above, finding that Great Lakes is entitled to
summary judgment on all of the claims against it, we find the County’s argument
challenging the trial court’s alternative reason for awarding summary judgment to be
moot. Therefore, we find the County’s fifth assignment of error to be without merit.
60.
IV. Conclusion
{¶ 126} For the foregoing reasons, the County’s 18 assignments of error are not
well-taken. Moreover, we find that substantial justice has been done the party
complaining, and the judgment of the Cuyahoga County Court of Common Pleas is
affirmed. The County is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
Judges Mark L. Pietrykowski, Thomas J. Osowik and James D. Jensen, Sixth District
Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of
Ohio.
61.