2018 Ohio 4484
Ohio Ct. App.2018Background
- Calinda Anglin sued Douglas L. Donohoo and his CPA firm alleging breach of contract and fraud for fees charged in preparing IRS Form 706 for her mother’s estate; engagement letters were referenced but not attached to the complaint.
- Anglin alleged Donohoo did little work, sent invoices totaling $393,724.85, and refused to return estate documents after being discharged; she sought damages over $400,000.
- After initial filing and discovery in Hamilton County, defendants moved to dismiss or transfer venue; the case was transferred to Clermont County where defendants moved to dismiss under Civ.R. 12(B)(6) and Civ.R. 10(D)(1), attaching the engagement letters.
- The trial court denied dismissal: (1) failure to attach the engagement letters was not grounds for dismissal under Civ.R. 10(D)(1); (2) under Civ.R. 12(B)(6) it would not consider the letters attached to the motion (would convert to summary judgment) and thus applied the four-year statute of limitations; (3) the court recast defendants’ arbitration argument as a Civ.R. 12(B)(1) jurisdictional challenge but found defendants waived arbitration by litigating and failing to timely demand arbitration.
- Defendants appealed the denial of dismissal and the trial court’s waiver-of-arbitration ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of Civ.R. 12(B)(6) dismissal is appealable | Anglin: dismissal improper because complaint states viable claims and letters weren’t part of the pleadings | Donohoo: court could consider engagement letters attached to motion and enforce one-year limitations/arbitration clauses | Denied appealability: order denying 12(B)(6) is not a final appealable order; appellate court dismissed that portion for lack of jurisdiction |
| Whether trial court could consider engagement letters on 12(B)(6) motion without converting to summary judgment | Anglin: court should look only to complaint; letters not before court | Donohoo: letters are incorporated or subject to judicial notice and can be considered | Trial court correctly refused to consider letters on 12(B)(6) without converting to summary judgment; appellate court lacked jurisdiction to review denial |
| Whether claims are barred by one-year limitation in engagement letters | Anglin: complaint alleges a longer limitations period (four years) and letters weren’t part of complaint | Donohoo: engagement letters limit to one year, barring claims | Court declined to resolve on 12(B)(6) (would require considering letters); appellate court could not review denial because not final |
| Whether defendants waived arbitration and whether denial is appealable | Anglin: defendants litigated and waived arbitration by motions and discovery stay; thus court should deny arbitration | Donohoo: they preserved arbitration rights and dismissal/compel/arbitration should apply | Trial court found waiver; appellate court held denial of a dismissal for lack of subject-matter jurisdiction based on arbitration is not a final appealable order absent a ruling on a stay under R.C. 2711.02(B), so appellate court lacked jurisdiction and dismissed the appeal |
Key Cases Cited
- General Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17 (Ohio 1989) (appellate jurisdiction requires a final order)
- Titanium Metals Corp. v. State Auto. Mut. Ins. Co., 108 Ohio St.3d 540 (Ohio 2006) (orders denying motions to dismiss are generally not final appealable orders)
- Polikoff v. Adam, 67 Ohio St.3d 100 (Ohio 1993) (motion to dismiss tests legal sufficiency of complaint; denial usually not final)
- State ex rel. Scruggs v. Sadler, 97 Ohio St.3d 78 (Ohio 2002) (final appealable order must satisfy R.C. 2505.02 and Civ.R. 54(B) if applicable)
- Wisintainer v. Elcen Power Strut Co., 67 Ohio St.3d 352 (Ohio 1993) (adding Civ.R. 54(B) language does not make a nonfinal order final)
- Ferrell v. Standard Oil Co., 11 Ohio St.3d 169 (Ohio 1984) (denial of motion to dismiss does not decide merits and is not a final determination)