Luburgh v. Bishop
2014 Ohio 236
Ohio Ct. App.2014Background
- Plaintiff Wesley Luburgh was a part owner of Jamestown Transportation, Inc. (JTI). From 2005–2008 Clifford Bishop (Brady Ware) served as JTI’s primary financial advisor.
- In July 2008 Bishop told Luburgh creditors could reach Luburgh’s personal retirement assets if JTI or Luburgh filed bankruptcy and advised Luburgh to close retirement accounts and invest ~ $220,000 into JTI.
- Shortly after that investment JTI became insolvent and Luburgh’s invested funds were lost or their whereabouts became unknown.
- Luburgh sued (Oct. 23, 2012) for professional negligence, negligent misrepresentation, and fraud. He conceded the negligence claims were time-barred but alleged fraud governed by the discovery rule.
- Defendants moved to dismiss under Civ.R. 12(B)(6) as barred by the statute of limitations; the trial court dismissed all claims. Luburgh obtained Civ.R. 60(B) relief for failure to respond and re-briefed. The trial court again dismissed; Luburgh appealed the fraud dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the complaint on its face shows the fraud claim is time-barred under Civ.R. 12(B)(6) | Luburgh: complaint does not conclusively show the fraud was discovered more than four years before filing; discovery could have occurred at end of 2008, within four-year window | Defendants: July 2008 representations and later insolvency place accrual outside four-year limit; court may dismiss on statute-of-limitations at pleading stage | Reversed as to fraud: complaint does not conclusively show the claim is time-barred, so dismissal under Civ.R. 12(B)(6) was erroneous |
Key Cases Cited
- O'Brien v. University Community Tenants Union, Inc., 42 Ohio St.2d 242 (pleading standard for 12(B)(6))
- Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190 (construing complaint in plaintiff's favor for 12(B)(6) review)
- Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491 (statute-of-limitations dismissal permitted when complaint conclusively shows claim is time-barred)
- Investors REIT One v. Jacobs, 46 Ohio St.3d 176 (fraud accrual governed by discovery rule)
- Collins v. Sotka, 81 Ohio St.3d 506 (general accrual rule)
- Jackson v. Sunnyside Toyota, Inc., 175 Ohio App.3d 370 (discussion of pleading silence re: discovery/tolling and dismissal)