Hecht v. Equity Trust Co. ( 2022 )

[Cite as Hecht v. Equity Trust Co., 2022-Ohio-198.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
DOUGLAS HECHT, :
Plaintiff-Appellant, :
Nos. 110380 and 110650
v. :
EQUITY TRUST COMPANY, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED
RELEASED AND JOURNALIZED: January 27, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-20-941979
Appearances:
Matthew Gilmartin, Attorney at Law, LLC, and Matthew
Gilmartin, for appellant.
Ulmer & Berne LLP, Paul R. Harris, and Kathryn
Bartolomucci, for appellee.
MARY J. BOYLE, J.:
Plaintiff-appellant, Douglas Hecht (“Hecht”), appeals the trial court’s
orders (1) denying Hecht’s motion for an extension of time to respond to defendant-
appellee, Equity Trust Company’s (“Equity Trust”), motion to dismiss Hecht’s
complaint for failure to state a claim upon which relief can be granted; (2) granting
Equity Trust’s motion to dismiss Hecht’s complaint; and (3) denying Hecht’s motion
for relief from judgment.
For the reasons set forth below, we affirm the trial court’s order
denying Hecht’s motion for an extension of time to respond to Equity Trust’s motion
to dismiss, reverse the trial court’s order granting Equity Trust’s motion to dismiss,
and remand to the trial court to convert the motion to dismiss to a motion for
summary judgment, after giving the parties notice.
On December 23, 2020, Hecht filed a complaint against Equity Trust,
alleging breach of contract (Count 1) and breach-of-fiduciary duty (Count 2). Hecht
avers that Equity Trust, the custodian of Hecht’s individual retirement account
(“IRA”), did not timely or correctly process Hecht’s deposit and payment directives,
which resulted in late fees and diminished value of the IRA. Hecht avers that these
oversights constituted a breach of the parties’ custodial-account agreement and a
breach of Equity Trust’s fiduciary duty to Hecht.
On February 1, 2021, Equity Trust filed a motion to dismiss Hecht’s
complaint pursuant to Civ.R. 12(B)(6). Equity Trust attached to its motion two
copies of the custodial-account agreement, one signed and dated
December 21, 2012, (“2012 Agreement”) and the other unsigned and bearing a
revision date of December 2017 (“2017 Agreement”). A provision of the
2012 Agreement provides for periodic amendment:
We have the right to amend this Agreement at any time. Any
amendment we make to comply with the Code and related Regulations
does not require your consent. You will be deemed to have consented
to any other amendment unless, within 30 days from the date we mail
the amendment, you notify us in writing that you do not consent.
Equity Trust points to the 2017 Agreement as one such amendment. The
2017 Agreement provides in pertinent part:
You agree that any claim or cause of action against custodian arising
out of or relating in any way to this agreement or our role as custodian
must be file[d] within one (1) year after the claim or cause of action
accrued, or the shortest duration permitted under applicable law if
such period is greater than one (1) year. You agree to waive any statute
of limitation[s] to the contrary.
(Emphasis deleted.) Equity Trust contends that this one-year limitations provision
bars Hecht’s claims because Hecht alleged in his complaint that the parties’
contractual relationship ended in March 2018, yet Hecht filed his complaint in
December 2020, outside the agreed-upon limitations period. Equity Trust also
argues that Hecht’s complaint fails to allege the essential elements of breach of
contract and breach-of-fiduciary duty.
On February 19, 2021, Hecht moved for an extension of time to
respond to Equity Trust’s motion to dismiss, which contained a stipulation by both
parties that Hecht would have until February 22, 2021, to respond to Equity Trust’s
motion to dismiss and that the parties had agreed to stay discovery until the trial
court ruled on Equity Trust’s motion.
On February 23, 2021, the trial court granted Equity Trust’s motion
as “unopposed in its entirety.” In its journal entry, the trial court acknowledged that
“in resolving a Civ.R. 12(B)(6) motion, a court is confined to the averments set forth
in the complaint and cannot consider outside evidentiary materials unless the
motion is converted into one for summary judgment under Civ.R. 56.” The trial
court found that Hecht “can prove no set of facts in support of his claim[s] which
would entitle him to relief.” The trial court dismissed Hecht’s complaint with
prejudice.
Later that same day, February 23, the trial court denied Hecht’s
motion for extension of time to respond to Equity Trust’s motion to dismiss. The
trial court observed that Hecht had until February 16, 2021, to file his response to
the motion or request leave for additional time to respond and had “failed to do
either.”1
On March 24, 2021, Hecht moved for relief from judgment and filed
a notice of appeal in Hecht v. Equity Trust Co., 8th Dist. Cuyahoga No. 110380, the
following day. On March 26, 2021, the trial court stayed proceedings pending the
appeal. On April 26, 2021, this court remanded the matter to the trial court for the
sole purpose of ruling on Hecht’s motion for relief from judgment. On
June 23, 2021, the trial court denied the motion stating that Hecht missed both the
initial February 16, 2021 and stipulated February 22, 2021 deadlines to respond to
Equity Trust’s motion to dismiss and had failed to request leave to respond. On
July 12, 2021, Hecht filed a second notice of appeal, which is the matter currently
before the court.
1The trial court was closed on February 15, 2021, 14 days after service, in
observance of Presidents’ Day.
Hecht’s March 25 and July 12 appeals were consolidated for
disposition. Hecht raises the following five assignments of error, which we shall
discuss together where appropriate:
ASSIGNMENT OF ERROR ONE
The Common Pleas Court erred in denying Douglas A. Hecht an
extension to respond to [Equity Trust’s] 12(B)(6) Motion because
Hecht was still within his time to oppose the motion.
ASSIGNMENT OF EROR TWO
The Common Pleas Court erred in granting [Equity Trust’s] 12(B)(6)
Motion because it relied on matters outside of the record and thus
violated Civ.R. 12(B).
ASSIGNMENT OF ERROR THREE
The Common Pleas Court erred in denying Hecht’s motion for relief
from judgment to set aside the judgment per Civ.R. 60(B) because
counsel to Hecht was not neglectful in filing for an extension of time or
in filing a brief in opposition to [Equity Trust’s] motion to dismiss.
ASSIGNMENT OF ERROR FOUR
The Common Pleas Court erred in denying Hecht’s motion to set aside
the judgment pursuant to Civ.R. 60(B) because even had counsel to
Hecht been neglectful in filing for an extension of time or in filing an
opposition to [Equity Trust’s] 12(B)(6) motion to dismiss, the neglect
was excusable.
ASSIGNMENT OF ERROR FIVE
The Common Pleas Court erred in denying Hecht’s motion to set aside
the judgment pursuant to Civ.R. 60(B) because Hecht had multiple
meritorious claims and defenses to assert against [Equity Trust’s]
12(B)(6) motion to dismiss.
Extension of Time
In his first assignment of error, Hecht claims that the trial court erred
in denying his request for an extension of time to respond to Equity Trust’s motion
to dismiss. In his third and fourth assignments of error, Hecht contends that the
trial court erred in denying his Civ.R. 60(B) motion for relief from judgment because
Hecht was not neglectful in requesting an extension of time to respond to Equity
Trust’s motion to dismiss or, if Hecht was neglectful, the neglect was excusable.
We review a trial court’s order denying a motion for an extension of
time for an abuse of discretion. Provident Bank v. Hartman, 8th Dist. Cuyahoga
No. 78292, 2001 Ohio App. LEXIS 2329, 6-7 (May 24, 2001). A court abuses its
discretion when its decision is unreasonable, arbitrary, or unconscionable.
Blackmore v. Blackmore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). A decision
is unreasonable when “‘no sound reasoning process * * * would support that
decision.’” AAAA Ents., Inc. v. River Place Community Urban Redevelopment
Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
Civ.R. 6(C)(1) provides for service of a response to a written motion
within 14 days after service of the motion. In the instant case, because the trial court
was closed February 15, 2021, in observance of Presidents’ Day, Hecht’s response
was due on or before February 16, 2021. On February 19, 2021, three days after the
deadline, Hecht filed a stipulation signed by counsel for both parties providing that
Hecht would have until February 22, 2021, to file his response. Hecht captioned the
stipulation “Motion for Extension of Time to Respond to [Equity Trust’s] Motion to
Dismiss.”
Hecht contends that he missed the filing deadline in reliance on
Loc.R. 8(C) of the Court of Common Pleas of Cuyahoga County, General Division
(“Loc.R. 8(C)”) as “self-executing, requiring no judicial action.” Loc.R. 8(C)
provides:
Civil Rule 12, prescribing time requirements for pleadings, will be
enforced. However, parties may obtain an extension of time, not to
exceed thirty (30) days in which to answer, plead or otherwise move,
when no prior extension has been granted, by filing with the Clerk a
written stipulation approved by all counsel providing for an extension.
The stipulation shall affirmatively state that no prior extension has
been granted. Neither the stipulation nor any entry shall be submitted
to the Court for the initial extension. If no stipulation is obtained or if
an additional extension beyond the initial stipulated period is
requested, the party desiring an extension must obtain the approval of
the Court.
Hecht argues that Loc.R. 8(C) does not provide that a stipulation for
an extension of time must be filed before the filing deadline passes. We disagree.
Loc.R. 8(C) states that the “parties may obtain an extension of time * * * by filing
with the Clerk a written stipulation approved by all counsel providing for an
extension.” The rule requires filing the written stipulation before obtaining the
extension. Hecht misinterprets what he terms the “self-executing” nature of the rule
that “[n]either the stipulation nor any entry shall be submitted to the Court for the
initial extension.” The first stipulated extension does not require court approval.
However, the rule neither states nor implies that the first stipulated extension does
not need to be filed or that it may be filed after the deadline that the parties seek to
extend by the stipulation. See Ferreri v. Plain Dealer Publishing Co., 142 Ohio
App.3d 629, 637-638, 756 N.E.2d 712 (8th Dist.2001) (the parties have no authority
to extend a filing deadline by stipulation after the deadline has passed).
Hecht then turns to Civ.R. 6(B), which provides the procedure for
obtaining an extension after expiration of a deadline:
When by these rules or by a notice given thereunder or by order of court
an act is required or allowed to be done at or within a specified time,
the court for cause shown may at any time in its discretion * * * upon
motion made after the expiration of the specific period permit the act
to be done where the failure to act was the result of excusable neglect[.]
Ferreri at 637. Hecht argues that Civ.R. 6(B) permits the filing of a motion for
extension of time after a deadline has passed if it is the result of excusable neglect.
Hecht offers two reasons for missing the deadline.
First, counsel for Hecht maintains that his belief that the stipulation
extended the deadline without judicial approval excuses his failure to meet the
deadline. However, as explained above, the parties no longer had authority to
stipulate to an extended deadline once the deadline passed. Only the trial court
could extend the deadline. “[O]btaining a stipulation from [an] opposing party in
lieu of filing the proper motion for additional time does not constitute excusable
neglect” within the scope of Civ.R. 6(B). Ferreri at 638, citing Ronald Markowitz
Real Estate, Inc. v. Sherwin-Williams Co., 8th Dist. Cuyahoga No. 63379, 1993 Ohio
App. LEXIS 3793, 7 (Aug. 5, 1993).
Second, counsel for Hecht states that he was still recovering from an
open-heart surgery six months before, had to deal with other health complications
during that time, and had a medical procedure scheduled February 19, 2021, the day
he filed the stipulation. However, the first time counsel for Hecht raised these health
concerns was in his March 24, 2021 motion for relief from judgment, which he filed
more than a month after the filing deadline for his response to Equity Trust’s motion
to dismiss. Also, assuming the stipulation was a motion to extend Hecht’s time to
respond to Equity Trust’s motion to dismiss, Hecht requested that the deadline be
extended to February 22, 2021, and then missed the deadline. The court ruled on
Equity Trust’s motion to dismiss the next day, February 23, 2021.
Based on the foregoing, we find the trial court did not abuse its
discretion in denying Hecht’s request for an extension of time to respond to Equity
Trust’s motion to dismiss.
Hecht’s first assignment of error is overruled. We find Hecht’s third
and fourth assignments of error seeking the same relief under Civ.R. 60(B) are
moot. App.R. 12(A)(1)(c).
Civ.R. 12(B)(6)
In his second assignment of error, Hecht argues that the trial court
erred in granting Equity Trust’s motion to dismiss because the trial court relied on
evidence outside the complaint and resolved an issue of fact in favor of Equity Trust.
In his fifth assignment of error, Hecht argues that the trial court erred in denying
his Civ.R. 60(B) motion for relief from judgment because he had meritorious
defenses to assert against Equity Trust’s motion to dismiss.
A motion to dismiss a complaint under Civ.R. 12(B)(6) for failure to
state a claim upon which relief can be granted is procedural and tests the sufficiency
of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio
St.3d 545, 548, 605 N.E.2d 378 (1992). “The mov[ing party] may not rely on
allegations or evidence outside the complaint; otherwise, the motion must be
treated, with reasonable notice, as a Civ.R. 56 motion for summary judgment.” Id.In order to dismiss a complaint for failure to state a claim upon which relief can be
granted, the trial court must find beyond doubt that the plaintiff can prove no set of
facts warranting relief after it presumes all factual allegations in the complaint are
true and construes all reasonable inferences in the plaintiff’s favor. State ex rel.
Fuqua v. Alexander, 79 Ohio St.3d 206, 207, 680 N.E.2d 985 (1997). We review a
trial court’s decision to dismiss a complaint pursuant to Civ.R. 12(B)(6) de novo.
Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44,
¶ 5.
Because Hecht missed the deadline for filing a response to Equity
Trust’s motion to dismiss, the trial court reviewed Equity Trust’s motion as
unopposed. Nevertheless, the trial court still had to comply with Civ.R. 12(B)
standards for dismissal and could not grant the motion solely because it was
unopposed. Henderson v. State, 8th Dist. Cuyahoga No. 101862, 2015-Ohio-1742,
¶ 31. In the motion, Equity Trust argues that Hecht bases his claims for breach of
contract and breach-of-fiduciary duty on the parties’ custodial-account agreement
but failed to attach a copy of the agreement to the complaint. In the complaint,
Hecht states that he did not attach a copy of the agreement because the agreement
(1) “contains [Hecht’s] personal and confidential financial information” and (2) “is
already in the possession of * * * Equity Trust.”
Civ.R. 10(D)(1) provides that “[w]hen any claim or defense is founded
on an account or other written instrument, a copy of the account or written
instrument must be attached to the pleading. If the account or written instrument
is not attached, the reason for the omission must be stated in the pleading.” Hecht’s
claims were based on the parties’ custodial-account agreement. Hecht could have
redacted his personal and confidential financial information from the agreement’s
pertinent provisions, and Hecht’s belief that Equity Trust has a copy of the
agreement was not an adequate reason for failing to attach it to the complaint. See
Point Rental Co. v. Posani, 52 Ohio App.2d 183, 185, 368 N.E.2d 1267 (10th
Dist.1976) (stating a belief that the defendant has a copy of an agreement is an
insufficient reason for failing to attach a copy of the agreement to the complaint).
However, Hecht’s failure to attach a copy of the agreement to the
complaint is not fatal for that reason alone. The proper procedure for responding to
a plaintiff’s failure to attach a copy of the written instrument to the complaint or
state a valid reason for failing to do so is to move for a more definite statement
pursuant to Civ.R. 12(E). Id.; Castelli v. Patmon, 8th Dist. Cuyahoga Nos. 90103
and 90104, 2008-Ohio-6468, ¶ 19. Further, the language of Civ.R. 10(D)(1) does
not state that the account or written agreement is required to establish the adequacy
of the complaint. Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 2008-
Ohio-5379, 897 N.E.2d 147, ¶ 12. “[A] party can still plead a prima facie case in such
circumstances even without attaching the account or written agreement to the
complaint [and] the complaint will survive a motion to dismiss for failure to state a
claim.” Id., citing Point Rental Co. at 185-186; Reese v. Ameritrust Co. Natl. Assn.,
8th Dist. Cuyahoga No. 57936, 1991 Ohio App. LEXIS 1043, 8 (Mar. 14, 1991).
Equity Trust did not move for a more definite statement pursuant to
Civ.R. 12(E). Instead, Equity Trust attached both the 2012 Agreement and
2017 Agreement to its motion to dismiss. In the motion, Equity Trust argues that
because Hecht asserted breach of contract and alleged that the parties’ contractual
relationship started in December 2012, the trial court could properly consider the
2012 Agreement as incorporated by reference and part of the complaint. See, e.g.,
Richardson v. Clinical Computing PLC, 2016-Ohio-8065, 69 N.E.3d 754, ¶ 34 (1st
Dist.) (holding that the agreement attached to defendants’ motion to dismiss but not
attached to plaintiff’s complaint was the “contract” referenced in the complaint as
“Exhibit A” and therefore proper for the court to review pursuant to Civ.R. 10(C)).
Civ.R. 10(C) provides that “[s]tatements in a pleading may be adopted by reference
in a different part of the same pleading or in another pleading or in any motion [and]
a copy of any written instrument attached to a pleading is a part of the pleading for
all purposes.” Equity Trust argues that Hecht’s reference in the complaint to a
custodial-account agreement into which Hecht entered with Equity Trust “on or
about December 2012” is enough to identify the 2012 Agreement that Equity Trust
attached to its motion to dismiss. Equity Trust thus treats the complaint’s reference
to an agreement as tantamount to the agreement itself, to be considered as “part of
the pleading for all purposes,” including a motion to dismiss.
Equity Trust, however, cites no law to support this interpretation of
Civ.R. 10(C). Equity Trust relies on State ex rel. Crabtree v. Franklin Cty. Bd. of
Health, 77 Ohio St.3d 247, 249, 673 N.E.2d 1281 (1997) (materials, including a news
article, attached to the complaint); Irvin v. Am. Gen. Fin., Inc., 5th Dist. Muskingum
No. CT2004-0046, 2005-Ohio-3523, ¶ 16, fn. 6 (“The disclosures provided by
appellees had been incorporated into the complaint by appellants when they
referred to signing disclosures and provided copies of the accompanying loan
documents as attachments”); and Fillmore v. Brush Wellman, Inc., 6th Dist. Ottawa
No. OT-03-029, 2004-Ohio-3448, ¶ 9 (documents, including settlement
agreements and a company policy, attached to the complaint). In each of these
cases, the plaintiff attached a writing to the complaint. Therefore, they are
distinguishable.
Equity Trust also relies on Lisboa v. Lisboa, 8th Dist. Cuyahoga No.
95673, 2011-Ohio-351, which in turn cites State ex rel. Crabtree, Irvin, and
Fillmore, for the proposition that “[t]he court may review documents that were
incorporated into the complaint, even if not attached to the complaint.” Id. at ¶ 38.
However, in Lisboa, the trial court’s jurisdiction to review plaintiff’s breach-of-
contract claim hinged on a separation agreement and court docket attached to
defendants’ motions to dismiss the complaint under Civ.R. 12(B)(1) and (6). As this
court explained, “[T]he court may consider material pertinent to jurisdictional
issues without converting the motion into one for summary judgment.” Id. Here,
Equity Trust did not allege that the trial court’s jurisdiction hinged on its review of
the custodial-account agreement. As a result, the trial court could not consider the
2012 Agreement attached to Equity Trust’s motion to dismiss without first
converting the motion into a motion for summary judgment.
Equity Trust further argues that reading the 2012 Agreement and
2017 Agreement together establishes that Hecht’s claims are time barred. The
2012 Agreement provides for periodic amendment:
We have the right to amend this Agreement at any time. Any
amendment we make to comply with the Code and related Regulations
does not require your consent. You will be deemed to have consented
to any other amendment unless, within 30 days from the date we mail
the amendment, you notify us in writing that you do not consent.
The 2017 Agreement provides the following amendment:
You agree that any claim or cause of action against custodian arising
out of or relating in any way to this agreement or our role as custodian
must be file[d] within one (1) year after the claim or cause of action
accrued, or the shortest duration permitted under applicable law if
such period is greater than one (1) year. You agree to waive any statute
of limitation[s] to the contrary.
(Emphasis deleted.) Equity Trust contends that Hecht’s claims are time barred
because they are subject to the one-year limitations period provided in the 2017
Agreement. Equity Trust points to Hecht’s allegation that the parties’ contractual
relationship ended in March 2018, which, if true, any claim for breach of contract
would have accrued no later than March 2018, making Hecht’s December 2020
complaint untimely.
Even if the trial court could properly consider the 2012 Agreement as
part of the complaint by reference, it could not properly consider the
2017 Agreement because Equity Trust had not established that it had mailed the
amended agreement to Hecht or that Hecht consented to the amendment under the
terms of the 2012 Agreement. This is a fact inference that the trial court would have
to rely upon if dismissing Hecht’s complaint as time barred. Such evidence was
outside the complaint. In order to consider the 2012 Agreement and the
2017 Agreement, Civ.R. 12(B) requires that the trial court convert the motion to one
for summary judgment after notifying the parties. State ex rel. V Cos. v. Marshall,
81 Ohio St.3d 467, 470, 692 N.E.2d 198 (1998), citing Petrey v. Simon, 4 Ohio St.3d
154, 447 N.E.2d 1285 (1983), paragraphs one and two of the syllabus.
Equity Trust argues in the alternative that Hecht’s complaint fails to
plead the essential elements of breach of contract and breach-of-fiduciary duty. The
trial court dismissed Hecht’s complaint in its entirety on the “no set of facts”
standard. “Ohio is a notice-pleading state, [and] Ohio law does not ordinarily
require a plaintiff to plead operative facts with particularity.” Cincinnati v. Beretta
USA Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136, ¶ 29. Under the
requirements of Civ.R. 8(A)(1), a plaintiff need only plead sufficient, operative facts
supporting a claim for relief to survive a motion to dismiss. Id. Hecht’s complaint
meets this basic pleading requirement.
“A cause of action for breach of contract requires the claimant to
establish the existence of a contract, the failure without legal excuse of the other
party to perform when performance is due, and damages or loss resulting from the
breach.” Lucarell v. Nationwide Mut. Ins. Co., 152 Ohio St.3d 453, 2018-Ohio-15,
97 N.E.3d 458, ¶ 41. In his complaint, Hecht alleges that he “entered into an
agreement with [Equity Trust] to establish a self-directed IRA” “on or about
December 2012” “until at least March 1, 2018.” Hecht also alleges that Equity Trust
breached the agreement by making untimely deposits, late payments, and
inaccurate payments “due on a mortgage-back real estate loan, insurance and tax
obligations” associated with several properties forming the investment vehicle of
Hecht’s individual retirement account. Finally, Hecht alleges that as a result of these
late and untimely payments, his “IRA[s] incurred additional costs for late fees,
penalties and interest, which * * * diminish[ed] the net worth of the IRAs.” Hecht’s
complaint alleges enough facts to support his breach-of-contract claim to survive
Equity Trust’s motion to dismiss.
Therefore, Hecht’s second assignment of error is sustained, which
renders Hecht’s fifth assignment of error seeking the same relief under Civ.R. 60(B)
moot. App.R. 12(A)(1)(c).
Accordingly, we affirm the trial court’s judgment denying Hecht’s
untimely motion for an extension of the time, reverse the trial court’s judgment
dismissing Hecht’s complaint, and remand to trial court to convert Equity Trust’s
motion to dismiss to a motion for summary judgment, after notifying the parties.
It is ordered that appellant and appellee share costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_______________________
MARY J. BOYLE, JUDGE
EILEEN T. GALLAGHER, J., CONCURS;
SEAN C. GALLAGHER, A.J., CONCURS IN JUDGMENT ONLY