Krohn v. Ostafi
2020 Ohio 1536
Ohio Ct. App.2020Background
- In October 2018 David Krohn (pro se) sued his siblings, his sister Charlene Ostafi (individually and as administratrix of their father Charles Krohn’s estate), Charlene’s unnamed spouse, and First Federal, alleging that Charles had promised Krohn transfer-on-death (TOD) benefits and promissory-note payments in 2008 but made new TOD deeds in 2012 and 2015 designating Charlene. Charles died March 28, 2017.
- Krohn pleaded ten counts (incompetency, undue influence, fraud, breach of fiduciary duty, constructive trust, unjust enrichment, accounting, tortious interference with inheritance, with contract, and with business relationship) and sought > $1M. His original complaint did not attach the deeds/notes; he later filed an untimely opposition attaching unauthenticated copies.
- Charlene moved to dismiss under Civ.R. 9(B), 10(D)(1), 12(B)(1), 12(B)(6), R.C. 2117.12, res judicata, and statutes of limitations. The trial court granted dismissal the same day and entered dismissal with prejudice for Counts 1–10.
- On appeal the Sixth District reviewed the 12(B)(6) dismissal de novo and considered whether claims were time‑barred. The court affirmed in part and reversed in part: it affirmed dismissal with prejudice for undue influence, fraud, breach of fiduciary duty, intentional interference with expectancy of inheritance, constructive trust, and accounting; it reversed as to incompetency, unjust enrichment, tortious interference with contract, and tortious interference with business relationship and remanded to enter those dismissals without prejudice.
- Judge Zmuda concurred in part and dissented in part, arguing the majority wrongly credited statute‑of‑limitations and other defenses on the face of the complaint, erred in treating Civ.R. 9 and 10(D) (and res judicata) as bases for dismissal, and improperly dismissed claims against non‑moving defendants without notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether fraud/undue‑influence/breach‑of‑fiduciary/intentional‑interference claims are time‑barred | Krohn: TOD changes were concealed; statute runs when fraud/changes were discovered (after Charles’ 2017 death) | Charlene: Constructive knowledge arose in 2012 at first TOD change; claims filed in 2018 are untimely | Court: Majority found constructive knowledge in 2012 and dismissed those claims with prejudice for being time‑barred; dissent disagreed (concealment alleged) |
| Sufficiency of pleadings for incompetency, unjust enrichment, tortious interference | Krohn: Alleged father was of unsound mind and promissory notes / TOD designations supported interference/unjust enrichment | Charlene: Allegations are conclusory; documents (as presented) undercut claims | Court: Dismissal proper under 12(B)(6) but four claims should have been dismissed without prejudice (incompetency, unjust enrichment, tortious interference with contract and business relations) |
| Effect of failing to attach written instruments and rule‑9 particularity | Krohn: Late opposition included the deeds/notes; notice pleading and equitable considerations should allow claims to proceed | Charlene: Failure to attach and lack of particularity justify dismissal | Court: Majority evaluated attached documents minimally and dismissed claims on merits/statute; dissent emphasized Civ.R.9/10(D) do not independently authorize dismissal and a 12(E) remedy would be proper |
| Dismissal as to non‑moving defendants and late opposition timing | Krohn: Late filing excused by clerk misunderstanding; dismissal of non‑movants improper without notice | Charlene: Motion ripe; Krohn missed deadline; court not required to grant extension | Court: Majority held Krohn failed to timely oppose and court did not abuse discretion; remanded to change some dismissals to without prejudice; dissent said dismissing non‑moving defendants without notice was improper |
Key Cases Cited
- Alford v. Collins‑McGregor Operating Co., 152 Ohio St.3d 303, 95 N.E.3d 382 (Ohio 2018) (de novo review and standard for affirming 12(B)(6) dismissal)
- Fletcher v. Univ. Hospitals of Cleveland, 120 Ohio St.3d 167, 897 N.E.2d 147 (Ohio 2008) (complaint must contain factual allegations; courts need not accept conclusions)
- Cundall v. U.S. Bank, 122 Ohio St.3d 188, 909 N.E.2d 1244 (Ohio 2009) (fraud and fiduciary‑breach accrual under discovery rule)
- Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio St.2d 376, 433 N.E.2d 147 (Ohio 1982) (face‑of‑complaint rule for timeliness dismissals)
- Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 532 N.E.2d 753 (Ohio 1988) (presume factual allegations true and construe in plaintiff’s favor on 12(B)(6))
- A & B‑Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio St.3d 1, 651 N.E.2d 1283 (Ohio 1995) (elements of tortious interference)
- Peterson v. Teodosio, 34 Ohio St.2d 161, 297 N.E.2d 113 (Ohio 1973) (statute of limitations bars equitable remedies when underlying cause is time‑barred)
- State ex rel. Washington v. D’Apolito, 156 Ohio St.3d 77, 123 N.E.3d 947 (Ohio 2018) (documents attached to a complaint may defeat allegations that contradict them)