Krohn v. Ostafi , 2020 Ohio 1536 ( 2020 )

[Cite as Krohn v. Ostafi, 2020-Ohio-1536.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
David Krohn Court of Appeals No. L-19-1002
Appellant Trial Court No. CI0201804046
v.
Charlene A. Ostafi, et al. DECISION AND JUDGMENT
Appellees Decided: April 17, 2020
*****
Erik G. Chappell and Lacey L. Riley, for appellant.
Nicolas A. Linares and Matthew T. Kemp, for appellees.
*****
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common
Pleas which granted appellees’ motion to dismiss with prejudice. For the reasons set
forth below, this court affirms, in part, and reverses, in part, the judgment of the trial
court.
{¶ 2} The following facts are relevant to this appeal. On October 11, 2018, pro se
plaintiff-appellant, David Krohn, filed a complaint against six defendants-appellees: his
three siblings, individually; his sister, Charlene A. Ostafi, as Administratrix of the Estate
of his father, Charles Krohn; his sister’s unnamed husband; and First Federal Savings and
Loan of Delta. Appellant claimed ten causes of action in his complaint for which he
sought equitable relief and monetary damages of over $1 million: incompetency, undue
influence, fraud, breach of fiduciary duty, constructive trust, unjust enrichment,
accounting, tortious interference with inheritance, tortious interference with contract, and
tortious interference with business relationship. The complaint referenced as exhibits two
transfer on death deeds and two promissory notes, but no exhibits were attached.
{¶ 3} Appellant alleged that in June 2008, he entered into a written agreement with
his father where appellant sold to Charles two properties in Swanton, Ohio, in exchange
for Charles’ promises to grant transfer on death deeds for appellant’s benefit to not only
the two properties in Swanton, but also a third property in Toledo. Ohio, located on
Swanbrook Court. Appellant alleged Charles further promised to sign two promissory
notes for the Swanton properties where “Charles agreed that he would not change or
revoke” what appellant called the “TOD Designations” on the Swanton properties
without first paying appellant large sums of money. Appellant did not allege this
agreement encompassed a fourth property in Toledo located on DelMonte Drive.
{¶ 4} Appellant further alleged that in 2012 and 2015, his father violated their
agreement when he signed new transfer on death deeds for the two Swanton properties
2.
and the Swanbrook property replacing appellant as the sole beneficiary with his sister,
Charlene. Appellant collectively called these the “TOD Changes.” The complaint did
not reference as exhibits these “TOD Changes,” and no exhibits were attached.
{¶ 5} Charles Krohn died on March 28, 2017, at the age of 97.
{¶ 6} Then on November 14, 2018, defendants-appellees Charlene A. Ostafi,
individually and as Administratrix of the Estate of Charles Krohn, filed a motion to
dismiss the complaint pursuant to Civ.R. 9(B), 10(D)(1), 12(B)(1), and 12(B)(6), R.C.
2117.12, res judicata, “and the relevant Statutes of Limitations.”
{¶ 7} On December 4, 2018, appellant filed his opposition to the motion to
dismiss. His pleading attached unauthenticated copies of certain documents, including
three transfer on death deeds: a deed signed by Charles on June 5, 2008, granting title to
himself and then transfer on death to appellant filed in Lucas County for real property
described on the face of the deed; a deed signed by Charles and appellant on June 5,
2008, granting title to Charles and then transfer on death to appellant filed in Fulton
County for real property described in an Exhibit A not attached to the deed; and a third
deed signed by Charles and appellant on June 20, 2008, granting title to Charles and then
transfer on death to appellant, this time filed in Lucas County for real property also
described in an Exhibit A not attached to that deed. His pleading also attached two
“promissory notes,” each dated July 2, 2008, in which Charles Krohn, as “Borrower,” and
appellant, as “Witness,” agreed that upon Charles receiving title to two properties in
Swanton, Charles will pay appellant $500,000 and $250,000, respectively, or transfer
3.
“full interest to the property” to appellant upon Charles’ death. Each “promissory note”
stated that Charles executed the transfer on death deeds prior to July 2, 2008, and that
each deed was “irrevocable unless full payment has been made to David L. Krohn.” The
“promissory note” purported to have the signature of a notary, but without the notary’s
acknowledgment. Appellant did not attach any evidence of the alleged 2012 and 2015
“TOD Changes.”
{¶ 8} Minutes later on December 4, 2018, the trial court filed its order and
judgment entry granting appellees’ motion to dismiss. The trial court’s judgment entry is
brief:
This matter is before the Court on Defendant’s Motion to dismiss the
Plaintiff’s Complaint, under Ohio Rules of Civil Procedure 9(B), 10(D)(1),
12(B)(1), 12(B)(6), the Ohio Revised Code §2117.12, res judicata, and the
relevant Statutes of Limitations. After considering the Motion and
pleadings on file, Court finds the Motion well taken and GRANTS the
same. Accordingly, it is hereby ORDERED, ADJUDGED, and DECREED
that Counts One through Ten against Defendants are dismissed with
prejudice.
{¶ 9} Appellant hired counsel and filed this appeal setting forth two assignments
of error, which we will address together:
I. The trial court erred in granting Defendants’ Motion to Dismiss.
4.
II. The trial court erred in failing to consider any further filings
made by Plaintiff-Appellant after Defendant-Appellees’ Motion to Dismiss.
I. Standard of Review
{¶ 10} Despite appellant alleging otherwise, there is no indication in the record the
trial court converted the motion to dismiss under Civ.R. 12(B)(6) to a motion for
summary judgment under Civ.R. 56. We review de novo a trial court’s decision granting
a motion to dismiss pursuant to Civ.R. 12(B)(6) by accepting as true all factual
allegations in the complaint. Alford v. Collins-McGregor Operating Co., 152 Ohio St.3d
303, 2018-Ohio-8, 95 N.E.3d 382, ¶ 10. “‘[T]hose allegations and any reasonable
inferences drawn from them must be construed in the nonmoving party’s favor.’ To
grant the motion, ‘it must appear beyond doubt that the plaintiff can prove no set of facts
in support of the claim that would entitle the plaintiff to the relief sought.’” (Citation
omitted.) Id. Where documents are attached or incorporated in the complaint, they may
be considered under Civ.R. 12(B)(6), but the court is not required to accept as true factual
allegations in the complaint contradicted by those documents. State ex rel. Washington v.
D’Apolito, 156 Ohio St.3d 77, 2018-Ohio-5135, 123 N.E.3d 947, ¶ 10. We are not
required on a motion to dismiss to accept as true appellant’s unsupported conclusions or a
mere recitation of the elements of a cause of action. Fletcher v. Univ. Hosps. of
Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147, ¶ 14. Conclusions not
supported by factual allegations in the complaint cannot be deemed admitted and are
5.
insufficient to withstand a motion to dismiss. State ex rel. Hickman v. Capots, 45 Ohio
St.3d 324, 544 N.E.2d 639 (1989).
{¶ 11} Civ.R. 12(B)(6) states, “Every defense, in law or fact, to a claim for relief
in any pleading * * * may at the option of the pleader be made by motion: * * *
(6) failure to state a claim upon which relief can be granted * * *.”
{¶ 12} A trial court’s grant of Civ.R. 12(B)(6) dismissal is without prejudice
except in those cases where the claim cannot be pled in any other way. Fletcher at ¶ 17.
Failure to commence an action within the applicable statute of limitations warrants a
dismissal on the merits of the case and constitutes a dismissal with prejudice. LaBarbera
v. Batsch, 10 Ohio St.2d 106, 116, 227 N.E.2d 55 (1967). A court has subject-matter
jurisdiction to decide whether the statute of limitations should bar a cause of action. State
ex rel. Jones v. Suster, 84 Ohio St.3d 70, 76, 701 N.E.2d 1002 (1998). The existence and
duration of a statute of limitations is determined by the legislature as a matter of
substantive law. Erwin v. Bryan, 125 Ohio St.3d 519, 2010-Ohio-2202, 929 N.E.2d
1019, ¶ 29. A court does not possess the authority to extend the statute of limitations,
either through the Rules of Civil Procedure or case law. Harris v. Firelands Regional
Med. Ctr., 6th Dist. Erie No. E-17-053, 2018-Ohio-3085, ¶ 38, citing Erwin at ¶ 4. “A
motion to dismiss based upon a statute of limitations may be granted only when the
complaint shows conclusively on its face that the action is time-barred.” LGR Realty,
Inc. v. Frank & London Ins. Agency, 152 Ohio St.3d 517, 2018-Ohio-334, 98 N.E.3d 241,
¶ 10.
6.
II. Causes of Action
A. Claims Dismissed Without Prejudice
1. Incompetency
{¶ 13} Appellant alleged as Count 1 incompetency by stating, “At the time of the
purported execution of the TOD Changes, Charles was incompetent and of unsound mind
and memory and therefore incapable of conveying any interest in the properties or
making the TOD Changes.”
{¶ 14} “Mental incapacity means not partial but complete incapacity to formulate
an intention to convey one’s property measured at the time the conveyance was made.
Even an imperfect assent given by an insane person has been held to be mental capacity.”
Vesy v. Giles, 108 N.E.2d 300, 302 (C.P.1952), citing Fissel v. Gordon, 83 Ohio App.
349, 350, 83 N.E.2d 525 (1st Dist.1948). “Moreover, feebleness of body, periods of
mental confusion, and a memory not as sound as it once was are not enough to deprive a
grantor of the right to dispose of his property in any way he may wish or deem best, a
subject upon which he may have reflected much when in full vigor of mind and body.”
Id.{¶ 15} After reviewing de novo the four corners of the complaint we find there is
no prima facie showing that when Charles was 92 and 95, respectively, he was
completely incapable of formulating an intention to convey his properties as he deemed
best. Willis v. Baker, 75 Ohio St. 291, 300, 79 N.E. 466 (1906). We are left to speculate
that due to age alone, Charles was incompetent and of unsound mind and memory in
7.
2012 and 2015, which is insufficient to withstand Civ.R. 12(B)(6) dismissal. See In re
Guardianship of Breece, 173 Ohio St. 542, 545-46, 184 N.E.2d 386 (1962). We find the
trial court properly dismissed the claim of incompetency, but erred when it dismissed the
claim with prejudice. The claim should have been dismissed without prejudice.
2. Unjust Enrichment
{¶ 16} Appellant alleged as Count 6 unjust enrichment by stating, “The actions of
Charlene as herefore (sic.) described have unjustly enriched her. It would be inequitable
for Charlene to retain the benefits and not return them to David or at least the Charles
Krohn estate.”
{¶ 17} To make a prima facie showing of Charlene’s unjust enrichment, appellant
must state facts in his complaint that Charlene retained money or benefits “‘which in
justice and equity belong to another.’” (Citation omitted.) Johnson v. Microsoft Corp.,
106 Ohio St.3d 278, 2005-Ohio-4985, 834 N.E.2d 791, ¶ 20. Restitution is the common
law remedy to a claim of unjust enrichment. Id. Restitution only compensates a plaintiff
for the benefit the plaintiff conferred on the defendant. Id. at ¶ 21.
{¶ 18} For purposes of Civ.R. 12(B)(6) we accept as true appellant’s allegations of
“[t]he actions of Charlene as herefore (sic.) described,” but we cannot accept as true
appellant’s unsupported conclusion that “it would be inequitable for Charlene to retain
the benefits and not return them to David or at least the Charles Krohn estate.” Where
appellant does not allege that he directly conferred a benefit to his sister that she unjustly
retained, his unjust enrichment claim fails under Civ.R. 12(B)(6). Id. at ¶ 22. From our
8.
de novo review of this cause of action, we find the trial court’s dismissal was proper, but
erred when it dismissed the claim with prejudice. The claim should have been dismissed
without prejudice.
3. Tortious Interference with Contract and with Business Relationship
{¶ 19} Appellant alleged as Counts 9 and 10 the related claims of tortious
interference with contract and with business relationship, respectively, by stating:
David and Charles entered into a contractual arrangement regarding
the Swanton Properties under which David would receive a substantial
payment from Charles during his lifetime or receive the Swanton and
Swanbrook Properties at Charles’ death by operation of the TOD
Designation. Charlene had knowledge of the existence of the TOD
Designations. Charlene intentionally procured Charles’ breach of the
contracts by virtue of the TOD Changes. Charlene’s intentional
procurement of Charles’ breach of the contract lacked justification. * * *
[And] David and Charles entered into a business relationship regarding the
Swanton Properties under which David would receive a substantial
payment from Charles during his lifetime or receive the Swanton and
Swanbrook Properties at Charles’ death by operation of the TOD
Designation. Charlene had knowledge of the existence of the relationship.
Charlene intentionally caused Charles to breach or terminate the
relationship.
9.
{¶ 20} For Civ.R. 12(B)(6) purposes, to make a prima facie showing of Charlene’s
tortious interference with business relationships and contract rights, appellant must state
facts in his complaint, that, “a person, without a privilege to do so, induces or otherwise
purposely causes a third person not to enter into or continue a business relation with
another, or not to perform a contract with another.” A & B-Abell Elevator Co. v.
Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio St.3d 1, 14, 651 N.E.2d
1283 (1995). The elements of these torts are similar: (1) the existence of a business or
contractual relationship; (2) the wrongdoer’s knowledge thereof; (3) an intentional
interference causing a breach or termination of the relationship or contract without
justification; and (4) damages resulting therefrom. Firestone v. Galbreath, 895 F.Supp.
917, 930 (S.D.Ohio 1995); Wauseon Plaza Ltd. Partnership v. Wauseon Hardware Co.,
6th Dist. No. F-02-029, 156 Ohio App.3d 575, 2004-Ohio-1661, 807 N.E.2d 953, ¶ 57;
Fred Siegel Co., L.P.A. v. Arter & Hadden, 85 Ohio St.3d 171, 176, 707 N.E.2d 853(1999). “Tortious interference with a business relationship is similar to tortious
interference with a contract, but the result of the interference does not require the breach
of contract.” Martin v. Jones, 4th Dist. No. 14CA992, 2015-Ohio-3168, 41 N.E.3d 123,
¶ 63.
{¶ 21} For purposes of Civ.R. 12(B)(6) we accept as true appellant’s allegations of
Charlene’s “knowledge of the existence of the TOD Designations” and “knowledge of
the existence of the [business and contractual] relationship,” but we do not accept as true
appellant’s unsupported conclusions that Charlene “intentionally procured” the “TOD
10.
Changes” and “intentionally caused Charles to breach or terminate the [business and
contractual] relationship.”
{¶ 22} Even if we accept for Civ.R. 12(B)(6) purposes the two “promissory notes”
attached to appellant’s response to appellees’ motion to dismiss as collectively
representing the written agreement between appellant and Charles, despite being hearsay
pursuant to Evid.R. 801(C), they fail to support appellant’s claims. A promissory note is
a contract subject to rules of contract interpretation. Cranberry Fin., L.L.C. v. S & V
Partnership, 6th Dist. No. H-09-004, 186 Ohio App.3d 275, 2010-Ohio-464, 927 N.E.2d
623, ¶ 9. It is well-settled that past performance, or a promise that has already been
performed, is not valid consideration to support a binding contract. Cuspide Properties,
Ltd. v. Earl Mechanical Servs., 6th Dist. No. L-14-1253, 2015-Ohio-5019, 53 N.E.3d
818, ¶ 46. Charles’ promises to appellant stated in the July 2, 2008 “promissory notes”
were conditioned upon performances that already occurred: transfer on death deeds
signed prior to July 2, 2008, rendering them non-binding contracts between appellant and
his father.
{¶ 23} We recognize that appellant attached to his appellate brief an exhibit
purporting, “In September of 2017, Plaintiff-Appellant made a claim for breach of
contract against the estate of Charles Krohn (Lucas County [Court of Common Pleas,
Probate Division,] Case No. 2017 EST 802). (A copy of the filed claim is attached hereto
as Appendix ‘A’.)” That exhibit, which did not append to it any of the written documents
upon which appellant relies in this case, is not in the record before us. App.R. 9(A)(1).
11.
We may not add matter to the record, which was not part of the trial proceedings, and
then decide the appeal on the basis of the new matter. State v. Ishmail, 54 Ohio St.2d
402, 406, 377 N.E.2d 500 (1978).
{¶ 24} From our de novo review of appellant’s causes of action for tortious
interference with contract and with business relationship, we find the trial court’s
dismissal of these claims was proper, but erred when it dismissed the claim with
prejudice. The claim should have been dismissed without prejudice.
B. Claims Dismissed With Prejudice
1. Undue influence
{¶ 25} Appellant alleged as Count 2 undue influence by stating, “At the time of
the purported execution of the TOD Changes, Charles was susceptible to undue influence
due to his mental incompetency and dependence upon Charlene and therefore incapable
of conveying any interest in the Properties or making the TOD Changes.”
{¶ 26} Appellant’s undue influence claim is time-barred for Civ.R. 12(B)(6)
purposes. The statute of limitations for undue influence is four years pursuant to R.C.
2305.09. Hicks v. Garrett, 5th Dist. Stark No. 2011CA00109, 2012-Ohio-3560, ¶ 115.
“‘[C]onstructive knowledge of facts, rather than actual knowledge of their legal
significance, is enough to start the statute of limitations running under the discovery
rule.’” (Emphasis sic.) Id. at ¶ 11, quoting Flowers v. Walker, 63 Ohio St.3d 546, 549,
589 N.E.2d 1284 (1992). Appellant’s complaint states the first “TOD Change” that
harmed him occurred in 2012. We find that appellant had constructive knowledge of his
12.
sister’s alleged undue influence in 2012, and the filing of his complaint in 2018 was
untimely under the four-year statute of limitations. We find the trial court properly
dismissed the claim of undue influence with prejudice.
2. Fraud and Breach of Fiduciary Duty
{¶ 27} Appellant alleges as Counts 3 and 4 fraud and breach of fiduciary duty,
respectively, are related matters we will address together.
{¶ 28} Appellant alleged fraud by stating,
Upon Plaintiffs information and belief, Charles did not want nor
intended for Charlene to receive the entire fee simple in the interest in the
properties when he purportedly made the TOD Changes. * * * The TOD
Changes were procured by fraud and misrepresentations of Charlene as
evidenced partially by her receiving the entire fee simple interest in all of
the Properties upon Charles’ death to the complete exclusion of her siblings
and her concealment of the TOD Changes from her siblings.
Appellant alleged breach of fiduciary duty by stating:
Charlene was an agent of Charles under a financial power of
attorney. At the time of the TOD Changes, Charlene held a relationship of
special trust with Charles. Charlene owed a duty of utmost loyalty and
good faith to Charles regarding the transfer and conveyance of any of his
assets. Charlene breached this duty by causing Charles to change the TOD
designations of the Properties to herself for her own personal benefit.
13.
{¶ 29} Dismissal under Civ.R. 12(B)(6) is warranted where the complaint on its
face conclusively indicates that appellant’s fraud and breach of fiduciary duty claims are
time-barred due to the applicable statute of limitations. Ohio Bur. of Workers’ Comp. v.
McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, 956 N.E.2d 814, ¶ 13. “Claims for
fraud and breach of fiduciary duty based on fraud are governed by the four-year statute of
limitations set forth in R.C. 2305.09, unless the claim is not discovered despite
reasonable diligence.” Cundall v. U.S. Bank, 122 Ohio St.3d 188, 2009-Ohio-2523, 909
N.E.2d 1244, ¶ 24. Appellant’s complaint states the first “TOD Change” that harmed
him occurred in 2012. “A cause of action for fraud * * * accrues either when the fraud is
discovered, or [when] in the exercise of reasonable diligence, the fraud should have been
discovered.” Id. at ¶ 29. The statute of limitations commences upon a showing of
sufficient facts to alert a reasonable person to the possibility of a fraud. Id. at ¶ 30. We
find that appellant had constructive knowledge of his sister’s alleged fraud and breach of
fiduciary duty in 2012, and the filing of his complaint in 2018 was untimely under the
four-year statute of limitations. We find the trial court properly dismissed these claims
with prejudice.
3. Intentional Interference with Expectancy of Inheritance
{¶ 30} Appellant alleged as Count 8 tortious interference with inheritance by
stating:
At all times material hereto David [had] a reasonable expectation of
an inheritance from his father, Charles, that included the properties. As
14.
evidenced by the TOD Designations by Charles for the purchase of the
Properties. Charlene wrongfully, intentionally and maliciously interfered
with that reasonable expectation by causing Charles to allegedly make the
TOD Changes.
{¶ 31} Dismissal under Civ.R. 12(B)(6) is warranted where the complaint on its
face conclusively indicates that appellant’s intentional interference with expectancy of
inheritance claim is time-barred. His claim is grounded in tortious conduct: fraud or
undue influence. Firestone, 895 F.Supp. at 930, citing Firestone v. Galbreath, 67 Ohio
St.3d 87, 88, 616 N.E.2d 202 (1993); Marks v. KeyBank N.A., 8th Dist. Cuyahoga No.
84691, 2005-Ohio-769, ¶ 23; Orvets v. Natl. City Bank, Northeast, 131 Ohio App.3d 180,
190, 722 N.E.2d 114 (9th Dist.1999). Having previously determined claims of fraud and
undue influence are time-barred by the applicable statute of limitation, we find that
appellant’s claim for intentional interference with expectancy of inheritance is similarly
time-barred, and the trial court properly dismissed this claim with prejudice.
4. Remedies
{¶ 32} Dismissal under Civ.R. 12(B)(6) is warranted where remedies claimed are
not independent causes of action. Franklin v. Gwinnett Cty. Pub. Schools, 503 U.S. 60,
73-74, 112 S.Ct. 1028 117 L.Ed.2d 208 (1992). “Although some confusion exists as to
the distinction between right of action and cause of action * * * a cause of action may be
defined as the fact or facts which establish or give rise to a right of action, the existence
of which affords a party a right to judicial relief.” Norwood v. McDonald, 142 Ohio St.
15.
299, 309, 52 N.E.2d 67 (1943), overruled on other grounds by Grava v. Parkman Twp.,
73 Ohio St.3d 379, 653 N.E.2d 226 (1995).
a. Constructive Trust
{¶ 33} Appellant alleged as Count 5 constructive trust by stating:
As a result of the actions of Charlene as set forth herein, a
constructive trust should be imposed upon the Swanton, Swanbrook, and
DelMonte Properties, or the proceeds thereof, received upon the death of
Charles Krohn for the benefit of David Krohn and said assets should be
returned to David as rightful beneficiary.
{¶ 34} “A constructive trust is an equitable remedy that protects against unjust
enrichment and is usually invoked when property has been obtained by fraud.” Estate of
Cowling v. Estate of Cowling, 109 Ohio St.3d 276, 2006-Ohio-2418, 847 N.E.2d 405,
¶ 19. “In Ohio, statutes of limitation attach to causes of action and not to the remedial
form in which the action is brought. If the cause of action in which imposition of a
constructive trust is sought as a remedy is barred by a statute of limitation, the imposition
of a constructive trust is likewise barred.” Peterson v. Teodosio, 34 Ohio St.2d 161, 172,
297 N.E.2d 113 (1973).
{¶ 35} Having previously determined appellant’s claims for fraud and breach of
fiduciary duty are barred by the four-year statute of limitations under R.C. 2305.09,
appellant’s remedy sought for a constructive trust is also time-barred. Id. at 173. We
find the trial court properly dismissed this claim with prejudice.
16.
b. Accounting
{¶ 36} Appellant alleged as Count 7 accounting by stating, “Based upon all of the
foregoing, Plaintiff requests a full and accurate accounting of what Charlene has done
with the Properties or the proceeds thereof since the death of Charles.”
{¶ 37} An accounting, like a constructive trust, is an equitable remedy, not a cause
of action, and the claim for an accounting remedy is properly dismissed under Civ.R.
12(B)(6). See Thatcher v. Meck, 49 Ohio App. 92, 93, 195 N.E. 254 (6th Dist.1934); see
also Weinberger v. Weinberger, 43 Ohio App.2d 129, 132, 334 N.E.2d 514 (9th
Dist.1974). The trial court properly dismissed this claim with prejudice where it was
grounded upon the time-barred allegations of Charlene’s alleged fraud and breach of
fiduciary duty. Peterson at 173.
{¶ 38} Appellant’s first assignment of error is well-taken in part, and not well-
taken in part.
C. Untimely Response
{¶ 39} Appellant admitted he filed late his pro se opposition to appellees’ motion
to dismiss, but argued his delay was excused by his misunderstanding of information he
received from the clerk of courts regarding the timing for his response.
{¶ 40} A pro se litigant must still follow the same rules and procedures as
attorneys. HSBC Bank USA, N.A. v. Takats, 6th Dist. Lucas No. L-14-1155, 2015-Ohio-
3077, ¶ 9. While we may afford appellant reasonable leeway in the construction of
pleadings in the interests of justice, ultimately, a pro se litigant may not be given any
17.
greater rights than a party represented by counsel and bears the consequences of any
litigation mistakes. HSBC Bank United States NA v. Bein, 6th Dist. Lucas No.
L-13-1067, 2014-Ohio-56, ¶ 7.
{¶ 41} Appellant failed to timely respond to appellees’ motion to dismiss pursuant
to the civil rules of procedure. According to the record, service of appellees’ motion to
dismiss was mailed to appellant on Wednesday, November 14, 2018. Pursuant to Civ.R.
6, we find appellant had the right to respond to the motion until Monday, December 3,
2018. Instead, without seeking an extension pursuant to Civ.R. 6(B), he filed a response
on December 4, 2018, at 4:14 pm. Minutes later, at 4:29 pm, the trial court filed its order
and judgment entry granting appellees’ motion to dismiss. We find appellant failed to
respond by the time allowed and, instead, without notice to the court requesting an
extension of time, responded late.
{¶ 42} “A trial court is vested with broad discretion in controlling its docket and
regulating the proceedings before it.” Pollock v. Block, 6th Dist. Lucas No. L-99-1106,
2000 WL 819276, *5. We are mindful that cases should be decided upon their merits,
where possible, rather than on procedural grounds. Marion Prod. Credit Ass'n. v.
Cochran, 40 Ohio St.3d 265, 270-71, 533 N.E.2d 325, 331 (1988). Absent an abuse of
discretion, we will not reverse the trial court’s entry of dismissal where appellant opposed
dismissal outside the time frame allowed by the procedural rules of the court. See
Hillabrand v. Drypers Corp., 87 Ohio St.3d 517, 519-520, 721 N.E.2d 1029 (2000); see
18.
also State ex rel. Lindenschmidt v. Butler Cty. Bd. of Commrs., 72 Ohio St.3d 464, 465,
650 N.E.2d 1343 (1995).
{¶ 43} Even after considering appellant’s tardy opposition to appellees’ motion to
dismiss, we find appellant failed to withstand the Civ.R. 12(B)(6) challenges to his ten
causes of action stated in the complaint. We find the trial court did not abuse its
discretion when it filed its judgment entry of dismissal after the time for appellant’s
opposition had run.
{¶ 44} Appellant’s second assignment of error is not well-taken.
III. Conclusion
{¶ 45} We affirm the trial court’s judgment with prejudice on appellant’s claims of
undue influence, fraud, breach of fiduciary duty, intentional interference with expectancy
of inheritance, constructive trust, and accounting, and we remand solely for the purpose
of the trial court issuing its judgment without prejudice on appellant’s claims of
incompetency, unjust enrichment, tortious interference with contract, and tortious
interference with business relationship.
{¶ 46} On consideration whereof, the judgment of the Lucas County Court of
Common Pleas is affirmed, in part, and reversed, in part. Appellant is ordered to pay the
costs of this appeal pursuant to App.R. 24.
Judgment affirmed, in part,
reversed in part and remanded.
19.
Krohn v. Ostafi
C.A. No. L-19-1002
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.
CONCUR. _______________________________
JUDGE
Gene A. Zmuda, P.J. _______________________________
CONCURS, IN PART, JUDGE
DISSENTS IN PART, AND
WRITES SEPARATELY.
ZMUDA, P.J.
{¶ 47} Because I disagree with the majority’s application of the standards on
which the trial court dismissed appellant’s claims, I am compelled to dissent, in part,
from the majority’s decision. Specifically, I find the majority failed to accept the facts
alleged in the complaint as true, and failed to draw all reasonable inferences in favor of
appellant, as required when reviewing a dismissal pursuant to Civ.R. 12(B)(6). I also
find the majority improperly speculated as to facts which were not alleged in the
20.
complaint, and in turn relied on those speculated facts as evidence in determining that
some of appellant’s claims are barred by the applicable statute of limitations.
I. The Trial Court Erred in Dismissing Appellant’s
Claims on Grounds not Supported by Law.
{¶ 48} Appellee, Charlene Ostafi, both individually and in her capacity as
administratrix of her father’s estate, sought dismissal of appellant’s claims with her
November 14, 2018 motion to dismiss. Appellee sought dismissal under Civ.R. 9(B),
10(D)(1), 12(B)(1), 12(B)(6), R.C. 2117.12, res judicata, and the applicable statutes of
limitations. The trial court’s order granting the dismissal appears to have been prepared
by appellee’s counsel as it contains counsel’s identifying information in the caption. The
trial court’s entry contains no analysis and merely states that all claims are dismissed
based on each of the grounds identified in the motion to dismiss. The trial court provided
no rationale as to how it arrived at these conclusions. Without the trial court’s written
analysis, it is unclear on what grounds the trial court granted the motion other than the
specific arguments contained in appellee’s motion. This complicates our review as
several of the grounds on which appellee requested dismissal cannot as a matter of law be
the basis on which a motion to dismiss is granted. To properly frame our review, I would
first identify the grounds on which the trial court could have granted appellee’s motion as
a matter of law.1
1
Appellee’s brief argues only that the trial court properly dismissed each claim for failing
to state a claim under Civ.R. 12(B)(6) or based on the applicable statute of limitations.
Because I disagree with the majority’s conclusion as to these grounds and would not
21.
{¶ 49} Civ.R. 12(B) provides the general defenses to a complaint which may be
made by motion. Appellee sought dismissal of appellant’s claims pursuant to Civ.R.
12(B)(1) and Civ.R. 12(B)(6)—lack of subject-matter jurisdiction and failure to state a
claim upon which relief can be granted. Appellee properly raised these defenses by
motion with the trial court and the granting of the motion to dismiss on these grounds is
properly before us for review. Additionally, appellee sought a dismissal of appellant’s
claims as being time-barred under the generally applicable statute of limitations and R.C.
2117.12 which establishes a statute of limitations for actions against an estate under
certain procedural circumstances. While seeking a dismissal of a claim based on the
applicable statute of limitations is generally not appropriate at the pleadings stage, there
may be grounds for dismissing a claim as untimely filed if the face of the complaint
conclusively shows the claims are barred. Velotta v. Leo Petronzio Landscaping, Inc., 69
Ohio St. 2d 376, 379, 433 N.E.2d 147 (1982), citing Scheer v. Air-Shields, Inc., 61 Ohio
App.2d 205, 401 N.E.2d 478 (1979) and Durham v. Anka Research Limited, 60 Ohio
App.2d 239, 396 N.E.2d 799 (1978) (emphasis added). Since Velotta allows for a
defendant to seek the dismissal of claims as being time-barred by motion under these
limited circumstances, the trial court’s dismissal on statute of limitations grounds is also
properly before us for review.
affirm the trial court’s dismissal, I find it necessary to review all grounds on which the
trial court based its dismissal as set forth in the trial court’s entry granting appellee’s
motion.
22.
{¶ 50} However, the remaining grounds on which the trial court granted
judgment—Civ.R. 9(B), 10(D)(1), and res judicata—do not provide independent grounds
for dismissal at the pleadings stage and dismissal on these grounds is subject to reversal
as a matter of law. Civ.R. 9(B) requires a complaint alleging fraud be stated with
particularity. “Failure to plead the elements of fraud with particularity results in a
defective claim that cannot withstand a Civ.R. 12(B)(6) motions to dismiss.” Wells
Fargo Bank, N.A. v. Johnson, 6th Dist. Lucas No. L-15-1111, 2016-Ohio-1114, ¶ 17.
Therefore, whether a fraud claim is pled with sufficient particularity pursuant to Civ.R.
9(B) is encompassed within a court’s consideration on a motion to dismiss under Civ.R.
12(B)(6). Civ.R. 9(B) is merely the measure by which a trial court determines whether a
plaintiff has sufficiently alleged a fraud claim to survive a challenge under Civ.R.
12(B)(6). It does not create independent grounds for dismissal as the trial court’s
judgment entry states.
{¶ 51} Similarly, while Civ.R. 10(D)(1) requires a written instrument to be
attached to any claims arising from the terms of that instrument, the failure to attach the
instrument alone is not grounds for dismissal. Fletcher v. University Hospitals of
Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147 (holding “[b]ecause
there is no language in Civ.R.10(D)(1) that the account or written instrument is required
to establish the adequacy of the complaint, any failure to attach the required copies is
properly addressed by a motion for a more definite statement under Civ.R. 12(E). In
short, a party can still plead a prima facie case in such circumstances even without
23.
attaching the account or written agreement to the complaint. Thus, the complaint will
survive a motion to dismiss for failure to state a claim.”). Appellant clearly did not attach
any written instruments to his complaint.2 The trial court’s proper remedy for this failure
is the granting of a motion for a more definite statement, not the dismissal of appellant’s
claims. Id. The trial court’s use of Civ.R. 10(D)(1) as the basis for dismissal is therefore
contrary to law.
{¶ 52} The dismissal of appellant’s claims under res judicata is likewise improper.
Res judicata is an affirmative defense that “may not be raised by motion to dismiss under
Civ.R. 12(B).” State ex rel. Green v. Wetzel, 158 Ohio St.3d 104, 2019-Ohio-4228, --
N.E.3d --, ¶ 6, citing State ex rel. Freeman v. Morris, 62 Ohio St.3d 107, 109, 579 N.E.2d
702 (1991). Clearly, if the trial court’s dismissal was based on res judicata, that dismissal
is likewise in error.
{¶ 53} Appellant’s first assignment of error states, in part, that the trial court erred
in dismissing his claims pursuant to Civ.R. 9(B), 10(D)(1), and res judicata. Because
Civ.R. 9(B) and 10(D)(1) do not provide an independent basis on which a dismissal can
2
The record shows appellant filed an untimely opposition to appellee’s motion just prior
to the trial court signing the judgment entry. The opposition included the written
instruments on which appellant’s claims were based which were not included with the
complaint. While the inclusion of the written instruments with appellee’s opposition may
cure the complaint’s defects under Civ.R. 10(D)(1), it is unnecessary to review the
validity of the written instruments as the failure to include them with the complaint does
not provide an independent basis for dismissal. The trial court’s reliance on Civ.R.
10(D)(1) as a basis for dismissal warrants reversal without regard to whether the trial
court considered the instruments in dismissing appellant’s claims.
24.
be granted, and because res judicata is an affirmative defense that cannot be raised by
motion, I would find that the trial court’s dismissal on these grounds was error and that
appellant’s first assignment of error is found well-taken as to these issues.
II. The Face of Appellant’s Complaint does not Conclusively
Show any of his Claims are Barred by Applicable Statutes of Limitation.
{¶ 54} The majority determines that appellant’s claims of undue influence, fraud,
breach of fiduciary duty, intentional interference with expectancy of inheritance,
constructive trust, and an accounting are barred by the applicable statute of limitations.3
In doing so, the majority concluded that the face of appellant’s complaint conclusively
shows that these claims are time-barred, relying on Velotta, 69 Ohio St.2d at 379, 433
N.E.2d 147. I disagree.
{¶ 55} Appellant’s complaint alleges that in 2008, appellant’s father executed
transfer-on-death affidavits related to several parcels of land naming appellant as the
beneficiary. Appellant and his father also executed promissory notes which stated that
should his father change the transfer-on-death beneficiary on any of these parcels, that
appellant’s father would pay him $500,000 per parcel. In 2012 and 2015, appellant’s
father executed new transfer-on-death affidavits naming appellee Ostafi, appellant’s
sister, as the beneficiary (“TOD changes”). Appellant did not receive any payment from
3
I agree with the majority’s conclusion that appellant’s claims for constructive trust and
an accounting are remedies and not causes of action. I would dismiss these claims for
that reason without regard to whether the underlying claims for which those remedies
could be granted are barred by the applicable statute of limitations.
25.
his father upon the change in beneficiary. Appellant’s complaint alleges appellee Ostafi
committed fraud and exercised undue influence over their father in obtaining the TOD
changes, conduct which appellant alleges also supports his claim of intentional
interference with expectancy of inheritance.
{¶ 56} Appellant’s claims of undue influence, fraud, breach of fiduciary duty,
intentional interference with expectancy of inheritance each have a general statute of
limitations of four years. The majority correctly notes that these claims do not accrue,
and therefore the statute of limitations does not begin to run, until appellant discovered,
or in the exercise of reasonable diligence should have discovered, appellee’s conduct
giving rise to these claims. Cundall v. U.S. Bank, 122 Ohio St.3d 188, 2009-Ohio-2523,
909 N.E.2d 1244, ¶ 24; Hicks v. Garrett, 5th Dist. Stark No. 2011CA00109, 2012-Ohio-
3560, ¶ 11. The majority incorrectly concludes that the face of appellant’s complaint
conclusively shows that appellant should have discovered Ostafi’s conduct giving rise to
the underlying claims when it first occurred in 2012. As a result, the majority finds that
appellant’s claims filed in 2018, more than four years after Ostafi’s conduct first
occurred, were time-barred.
{¶ 57} It is undisputed that appellant’s complaint alleges Ostafi’s fraudulent
conduct began in 2012 because that is the date of the first TOD Change. There are no
allegations, however, that the 2012 TOD Change was recorded or otherwise made known
to appellant. In fact, appellant specifically alleges Ostafi actively concealed the 2012
TOD Change, along with the subsequent 2015 TOD Change, from him and any others
26.
who may have had an interest in his father’s estate. Appellant also alleges it was only
when his father died that the fraudulent conduct was revealed. There is simply no basis
to conclude that appellant should have discovered that conduct when it occurred in 2012
because the complaint specifically alleges this fact to have been hidden from his
discovery.
{¶ 58} When ruling on a motion to dismiss, “we must presume that all factual
allegations in the complaint are true and make all reasonable inferences in favor of the
non-moving party.” Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d
753 (1988). Application of this principle to the facts in this case requires us to presume
that appellant could not have discovered Ostafi’s concealed conduct until after his
father’s death on March 28, 2017. As his complaint was filed the following year, his
claims would not be time-barred under the applicable statute of limitations.
{¶ 59} Appellee Ostafi’s motion to dismiss also argues appellant’s claims are
time-barred under R.C. 2117.12 which sets a statute of limitations for claims against an
estate, regardless of their nature, under certain procedural circumstances. R.C. Chapter
2117 outlines the procedure by which a claim is made against an estate. R.C. 2117.06
requires anyone with a claim against an estate to present that claim to the administrator of
the estate within six months after the death of the decedent. If the final account of the
estate has already been filed, or a certificate of termination of the estate has been filed,
the notice of claim must be presented to the distributees of the terminated estate. R.C.
2117.06(A)(2). R.C. 2117.12 states that if a claim presented to the estate or its
27.
distributees pursuant to R.C. 2117.06(A)(2) is rejected, the claimant must file their civil
action seeking recovery within two months of that rejection. If the claim is not filed
within that two months, it is time-barred. Here, for the dismissal of appellant’s claims to
be properly dismissed under R.C. 2117.12, it must be conclusive from the face of the
complaint that his claims were filed outside the time allowed under these circumstances.
Velotta at 379.
{¶ 60} Appellee argues that this entire process already took place in a prior action
and that appellant is barred from relitigating this issue here. While this argument appears
to be based on res judicata rather than the time limitations established in R.C. 2117.12,
clarification of appellee’s argument is unnecessary since appellant’s complaint is silent as
to these procedural requirements. Since the complaint is silent as to these procedural
requirements, there can be no reasonable finding that the complaint conclusively shows
appellant’s claims were filed outside the time permitted in R.C. 2117.12. I would find
the trial court’s conclusion otherwise was error.
{¶ 61} For these reasons, I dissent from the majority’s conclusion and would find
appellant’s first assignment of error well-taken regarding the dismissal of his claims as
time-barred. I would find appellant’s complaint does not conclusively show his claims
were filed outside the applicable statutes of limitations or the limits established in R.C.
2117.12 and would reverse the judgment of the trial court.
28.
III. The Trial Court’s Dismissal for lack of
Subject-Matter Jurisdiction was Improper.
{¶ 62} A trial court’s lack of subject-matter jurisdiction can be raised by motion
pursuant to Civ.R. 12(B)(1). “Subject matter jurisdiction is the power of a court to
entertain and adjudicate a particular class of cases.” Bank of Am., N.A. v. Kuchta, 141
Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 18. “A court’s subject matter
jurisdiction is determined without regard to the rights of the individual parties involved in
a particular case.” Id. Appellee Ostafi argues the trial court lacked subject-matter
jurisdiction over appellant’s claims solely because another court has already considered
the issues among the individual parties. This argument is not based on the trial court’s
subject-matter jurisdiction but on the doctrine of res judicata.
{¶ 63} “The doctrine of res judicata provides that a final judgment rendered on the
merits by a court of competent jurisdiction is a complete bar to any subsequent action on
the same claim between the same parties or those in privity with them.” State ex rel.
Oliver v. Turner, 153 Ohio St.3d 605, 2018-Ohio-2102, 109 N.E.3d 1204, ¶ 15. Appellee
argues that because the Wood County Court of Common Pleas had already issued a
judgment in a divorce action which resolved disputes related to the subject parcels that
appellant could not raise them again before the trial court here. This argument relates to
the rights of the individual parties and not the power of the trial court to hear these
claims. As a result, appellee’s argument is based on res judicata, not the trial court’s lack
of subject-matter jurisdiction over appellant’s claims. Since res judicata cannot be raised
29.
through a motion to dismiss under Civ.R. 12(B), Wetzel, 158 Ohio St.3d 104, 2019-Ohio-
4228, 140 N.E.3d 586, at ¶ 6, and appellee made no other argument regarding the trial
court’s subject-matter jurisdiction to hear appellant’s claims, I would find appellant’s first
assignment of error well-taken, in part, with regard to the trial court’s dismissal of his
claims based on a lack of subject-matter jurisdiction.
IV. Appellant Alleged Sufficient Facts to Support his Claims for
Incompetency, Tortious Interference with Contract, and Tortious
Interference with Business Relationship.
{¶ 64} The majority affirms the trial court’s dismissal of appellant’s claims of
incompetence, tortious interference with contract, and tortious interference with business
relationship finding appellant’s complaint failed to state a claim on which relief could be
granted. Once again, I find the majority’s conclusion is premised on an incorrect
application of law and would reverse the judgment of the trial court.
a. Incompetence
{¶ 65} Appellant’s complaint alleges facts which, when presumed to be true,
support a claim of incompetence. Specifically, appellant alleges that in 2008 he entered
into a series of agreements with his father which would have resulted in appellant either
remaining the transfer-on-death beneficiary for certain parcels of land or, in the
alternative, being compensated should his father change the beneficiary prior to his
father’s death. Appellant alleges that in 2012 and 2015, his father executed new “transfer
on death” designations related to the parcels in dispute. Appellant alleges, however, that
30.
his father was incompetent at the time of the TOD Changes rendering the transfers
invalid.
{¶ 66} Under Mitchell, 40 Ohio St.3d at 192, 532 N.E.2d 753, we must presume
the allegations of a complaint to be true on review of the trial court’s dismissal of
appellant’s claim. Rather than presuming these allegations to be true, however, the
majority performs a type of fact-finding and reaches its own conclusion that appellant
asserts only his father’s age as the basis for his incompetence. The majority then relies
on the 1962 statutory definition of incompetence as quoted in In re. Guardianship of
Breece, 173 Ohio St. 542, 545-546, 184 N.E.2d 386 (1962), to dismiss appellant’s claim
holding age alone is not sufficient to show incompetence.
{¶ 67} My disagreement here lies in the majority making a factual determination
that age was the sole basis for appellant’s father’s incompetence. Such an assertion is
based purely on speculation and not the allegations set forth in the complaint. Nowhere
in the complaint does appellant state his father’s incompetence is based solely on his age.
Instead, appellant alleges his father was of “unsound mind and memory and therefore
incapable of conveying any interest in the properties[.]” The law does not permit us to
speculate that appellant alleges his father was incompetent based on age alone as the
majority concludes. As with the statute of limitations arguments, we are to presume the
facts alleged by appellant that his father was of unsound mind and failing memory are
true and determine if those facts are sufficient to support his claim. To require anything
further would require a heightened standard of pleading similar to that described in
31.
Civ.R. 9, which is simply not required to allege a claim of incompetency under the civil
rules or any other case authority.
{¶ 68} In reaching its decision, the majority has inappropriately and prematurely
concluded that age is the only evidence of incompetence appellant could present at trial in
this matter. This presumption not only completely disregards the actual allegations in the
complaint, it forecloses appellant’s ability to present evidence of any non-age related
factors contributing to his father’s incompetence at trial. The majority’s weighing of its
own speculative facts drawn from the complaint is improper and precludes appellant from
pursuing his sufficiently alleged claim of incompetence. Because of this, I dissent from
the majority’s conclusion and would reverse the trial court’s dismissal of appellant’s
incompetence claim.
b. Tortious Interference with Contract and a Business Relationship
{¶ 69} A claim of tortious interference with contract requires interference with an
existing contract while interference with a business relationship requires the accused
party to have interfered with an existing or future business relationship in order to be held
liable for damages. A&B-Abell Elevator Co. v. Columbus/Central Ohio Building &
Construction Trades Council, 73 Ohio St.3d 1, 651 N.E.2d 1283 (1995). Due to the
similarity in the elements of each claim, the majority addresses these claims together.
{¶ 70} In affirming the trial court’s dismissal of these claims, the majority once
again weighs the merits of appellant’s claims rather than simply determining whether the
complaint alleges sufficient facts to support the claim. Specifically, the majority finds
32.
that the promissory notes filed by appellant are unenforceable. The promissory notes
supporting the basic allegations of appellant’s claims were executed on July 2, 2008. The
notes reference the June 20, 2008 execution of “transfer on death” naming appellant as
the transferee of the subject properties. The majority concludes that because the transfer
on death deeds occurred before the promissory notes were executed that those deeds
cannot serve as the consideration for the promissory notes. See Cuspide Properties Ltd.
v. Earl Mechanical Servs., 2015-Ohio-5019, 53 N.E.3d 818, ¶ 46 (6th Dist.) (holding that
“[a] promise to do what one is already bound to do is not sufficient consideration for a
new contract”). As a result, the majority concludes the promissory notes are
unenforceable and appellant’s claims were properly dismissed.
{¶ 71} The majority’s conclusion improperly determines the enforceability of the
notes in affirming the dismissal of these claims. When reviewing a motion to dismiss for
failure to state a claim on which relief can be granted, “the principles of notice pleading
apply and ‘a plaintiff is not required to prove his or her case at the pleading stage.’”
David v. Matter, 6th Dist. Lucas No. S-17-006, 2017-Ohio-7351, ¶ 8, citing Piispanen v.
Carter, 11th Dist. Lake No. 2005-L-133, 2006-Ohio-2382, ¶ 10, quoting York v. Ohio
State Hwy. Patrol, 60 Ohio St.3d 143, 144, 573 N.E.2d 1063 (1991). Thus, it is only the
allegations in the complaint which can be utilized in reviewing the trial court’s dismissal
of appellant’s claims. Mitchell at 192. By determining the existence and enforceability
of a contract when no evidence has been introduced, the majority has expanded its review
of the record far beyond the limited scope of review applicable to motions to dismiss.
33.
{¶ 72} Even assuming our review allowed us to look beyond the allegations in the
complaint to determine whether the contracts are enforceable, the majority’s conclusion
that they are not enforceable is not supported in the complaint. The majority concludes
that the transfer-on-death affidavit and the promissory note are entirely separate
agreements and, therefore, since appellant’s father had already obligated himself to
appellant through the affidavit that the transfer-on-death benefit cannot serve as
consideration for the promissory note. That a promisor’s prior obligation to perform
under a contract cannot serve as consideration for a new agreement is a proper statement
of law. Cuspide Properties at ¶ 46. However, the majority’s conclusion that the transfer-
on-death affidavit cannot serve as consideration for the promissory notes is based on the
majority’s improper speculation that these instruments are entirely separate and
unrelated.
{¶ 73} For over a century, Ohio has recognized that execution of an agreement
does not require simultaneous execution of all aspects of the contract. Thayer v. Luce, 22
Ohio St. 62 (1871) “Several writings, though made at different times, may be construed
together, for the purpose of ascertaining the terms of a contract required, by the statute of
frauds, to be in writing and signed by the party to be charged therewith.” Id. The
allegations in the complaint suggests that these two instruments are part of the same
agreement between the parties. The fact that one of the instruments was executed several
weeks prior to the other does not necessarily require, or even permit at the pleadings
stage, a finding that they are not part of the same agreement. For the majority to
34.
conclude, without any evidence or testimony explaining how the agreement came into
existence, that the notes are not enforceable again disregards any evidence appellant may
be able to introduce at trial in support of his claims.
{¶ 74} Put simply, the majority’s conclusion could prove to be true. Such a
conclusion, however, is reserved for the appropriate stage of the proceedings, after the
parties have conducted discovery and after all relevant evidence has been weighed. This
matter is still in the pleading phase, which is not the appropriate stage to determine the
enforceability of the notes. I therefore dissent from the majority. I would reverse the
trial court’s dismissal of appellant’s tortious interference with contract and business
relations claims.
V. Appellant’s Claims Against Remaining Defendants Should
not be Dismissed When Those Parties did not Request Dismissal.
{¶ 75} Finally, I would reverse the trial court’s dismissal of any of appellant’s
claims against defendants that did not move for dismissal. Appellant’s complaint names
as defendants Charlene Ostafi, both individually and as the administratrix of the estate of
Charles Krohn, Charlene’s unnamed spouse,4 Randall Krohn, Robert Krohn, and First
Federal Savings & Loan of Delta. Only defendant Charlene Ostafi, in her individual and
administrative capacities, filed a motion to dismiss pursuant to Civ.R. 12(B). The trial
4
Whether appellant complied with Civ.R. 3(A) and 15(D) in commencing an action
against a fictitiously-named defendant is beyond the scope of this dissent.
35.
court dismissed appellant’s claims as to all defendants despite the remaining defendants’
failure to file a responsive pleading or a motion to dismiss.
{¶ 76} “The Rules of Civil Procedure neither expressly permit nor forbid courts to
sua sponte dismiss complaints. Generally, a court may dismiss a complaint on its own
motion pursuant to Civ.R. 12(B)(6), failure to state a claim upon which relief may be
granted, only after the parties are given notice of the court’s intention to dismiss and an
opportunity to respond.” Edwards v. Toledo City School Dist. Bd. Of Edn., 72 Ohio St.3d
106, 108, 647 N.E.2d 799 (1995). Here, the trial court did not provide appellant with
notice of its intent to dismiss his claims against the remaining defendants. Without such
notice, I find the dismissal of claims against the remaining defendants was improper. I
would reverse the judgment of the trial court dismissing the claims against appellee
Ostafi’s unnamed spouse, Randall Krohn, Robert Krohn, and First Federal Savings &
Loan of Delta.
VI. Conclusion
{¶ 77} Based on the foregoing, I respectfully do the following:
{¶ 78} I concur with the majority in affirming the trial court’s dismissal of
appellant’s claim for unjust enrichment and would find assignment of error No. 1 not
well-taken, in part, and would affirm the dismissal of this claim without prejudice.
{¶ 79} I dissent from the majority’s finding that appellant’s claims of undue
influence, fraud, breach of fiduciary duty, and intentional interference with expectancy of
inheritance are barred by the applicable statute of limitations. I would find appellant’s
36.
first assignment of error well-taken and would reverse the judgment of the trial court
dismissing these claims.
{¶ 80} I dissent from the majority’s finding that appellant’s complaint failed to
state a claim on which relief could be granted on his claims of incompetence, tortious
interference with contract, and tortious interference with business relationship. I would
find appellant’s first assignment of error well-taken and would reverse the judgment of
the trial court dismissing these claims.
{¶ 81} Finally, I dissent from the majority’s affirmance of the trial court’s
dismissal of appellant’s claims against appellee Ostafi’s unnamed spouse, Randall Krohn,
Robert Krohn, and First Federal Savings & Loan of Delta. The trial court had no basis on
which to grant dismissal against these non-moving parties without first providing notice
to appellant. I would reverse the judgment of the trial court and remand this matter for
further proceedings against these defendants.
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
37.