Dibert v. Carpenter
961 N.E.2d 1217
Ohio Ct. App.2011Background
- In 1980, Pickering created a trust funding the note and mortgage to the Dibert family; income benefited Lucille and eventually the Diberts after trust deaths.
- The Dibert Trust (1991) designated Gerald and Cynthia as cotrustees with a 90-day right-to-purchase contingent on donor death, and their beneficiaries included the Dibert children.
- In 1999, as cotrustees, Dibert and Carpenter conveyed two farms from the Dibert Trust to the Pickering Trust by fiduciary deed, reserving the purchase option language.
- Dibert alleged that Carpenter, as Pickering trustee, pressured repayment of debts and that Maurice induced him to believe the purchase option would still protect his interest.
- Lucille Pickering died in 2007; Dibert filed suit in 2007–2009 asserting fraud, conversion, unjust enrichment, and trustee-removal claims in Champaign County probate court.
- The probate court granted partial summary judgment on some claims, found lack of standing, and concluded the conveyance claim was time-barred; cross-appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the fraud claim is time-barred | Dibert argues tolling or later discovery should save the claim. | Carpenter contends RC 2305.09 bars the claim (four-year limit) and began when the deed was signed. | Fraud claim barred by RC 2305.09; statute began at signing of fiduciary deed. |
| Whether the right-to-purchase claim sounds in fraud and is time-barred | Dibert asserts breach/fiduciary duty theories extend claims. | Carpenter argues no timely claim; the claim is barred under RC 2305.09. | Claim sounds in fraud and is time-barred. |
| Whether Carpenter's cross-appeal is reviewable given lack of a final, appealable order | N/A | Cross-appeal should be reviewable despite partial denial. | Cross-appeal dismissed for lack of a final, appealable order. |
Key Cases Cited
- Rhodes v. Paragon Molding, Ltd., 2010-Ohio-6110 (Ohio App. 6th Dist. 2010) (denial of summary judgment not final appealable)
- Doe v. Choices, Inc., 2006-Ohio-05757 (Ohio App. 6th Dist. 2006) (denial of summary judgment generally not final appealable)
- State ex rel. Overmeyer v. Walinski, 1966- Ohio St.2d 23 (Ohio Supreme Court 1966) (finality requirement for appeals)