[Cite as Krohn v. Ostafi,

.]

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.,

,

,

. “‘[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.)

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,

,

,

. 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,

,

,

. 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,

,

(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,

,

(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,

,

(1998). The existence and

duration of a statute of limitations is determined by the legislature as a matter of

substantive law. Erwin v. Bryan,

,

,

. 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,

, citing

. “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,

,

,

.

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,

(C.P. 1952), citing Fissel v. Gordon,

,

(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.”

{¶ 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,

, 300,

(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,

, 545-46,

(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.,

,

,

, ¶ 20. Restitution is the common

law remedy to a claim of unjust enrichment.

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,

,

(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,

(S.D.Ohio 1995); Wauseon Plaza Ltd. Partnership v. Wauseon Hardware Co.,

6th Dist. No. F-02-029,

,

,

;

Fred Siegel Co., L.P.A. v. Arter & Hadden,

,

(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,

,

,

¶ 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,

,

,

. 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,

,

, ¶ 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,

,

(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,

.

“‘[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,

,

(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,

,

,

, ¶ 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,

,

,

. 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,

, citing Firestone v. Galbreath,

,

(1993); Marks v. KeyBank N.A., 8th Dist. Cuyahoga No.

84691,

; Orvets v. Natl. City Bank, Northeast,

,

(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,

,

(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,

. 299, 309,

(1943), overruled on other grounds by Grava v. Parkman Twp.,

,

(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,

,

,

,

¶ 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,

,

(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.

. 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,

,

(6th Dist. 1934); see

also Weinberger v. Weinberger,

,

(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.

.

{¶ 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,

, ¶ 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,

, *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,

,

(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.,

,

(2000); see

18. also State ex rel. Lindenschmidt v. Butler Cty. Bd. of Commrs.,

,

(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.,

,

(1982), citing Scheer v. Air-Shields, Inc.,

,

(1979) and Durham v. Anka Research Limited,

,

(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,

.

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,

,

,

(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.

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,

,

, --

N.E.3d --, ¶ 6, citing State ex rel. Freeman v. Morris,

,

(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,

,

. 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,

,

,

; 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.,

,

(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.

.

{¶ 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,

,

,

. “A court’s subject matter

jurisdiction is determined without regard to the rights of the individual parties involved in

a particular case.”

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,

,

,

. 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,

, 2019-Ohio-

4228,

, 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,

, 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,

, 545-546,

(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,

,

(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.,

,

, ¶ 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,

, citing Piispanen v.

Carter, 11th Dist. Lake No. 2005-L-133,

, quoting York v. Ohio

State Hwy. Patrol,

,

(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.

. 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,

(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.”

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.,

,

(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.