Tabbaa v. Nouraldin
2022 Ohio 1172
Ohio Ct. App.2022Background
- Tabbaa and the Nouraldins co-owned commercial properties/businesses; Tabbaa allegedly transferred his membership interests to the Nouraldins to conceal assets from creditors but retained voting rights and profit-sharing, with an agreement the Nouraldins would return the interests on request.
- The operative agreement was described as both oral and written in the complaint; Tabbaa stated the written contract was in the defendants’ possession and did not attach it to the complaint.
- Tabbaa made repeated demands (2010–2016) for return of his interests; he alleges he did not receive proceeds from a 2011 property sale.
- Tabbaa filed suit (2016), voluntarily dismissed, refiled (2018) dismissed for want of prosecution, then filed the instant complaint on September 30, 2019.
- Trial court granted summary judgment for the Nouraldins, holding Tabbaa pled only an oral contract so the shorter statute of limitations applied and the claims were time-barred.
- The appellate court reversed and remanded: it held Tabbaa sufficiently alleged a written contract (and produced one in opposition to summary judgment), found the longer pre-2012 statute of limitations for written contracts applies so the written-contract claim was timely, and found the oral-contract claim (Doctor Realty) could not be resolved on summary judgment because accrual timing was unclear.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff pled a written contract and complied with Civ.R. 10(D) | Tabbaa: complaint references a written contract and explains omission because defendant retained the documents; thus written-contract claim was pled | Nouraldins: complaint pleads only oral contracts and no written instrument was attached, so Civ.R.10(D) not satisfied; written-contract limitations irrelevant | Court: pleadings and opposition showed a written contract and explained omission; trial court erred in finding no written-contract claim |
| Whether breach-of-written-contract claim is time-barred | Tabbaa: written-contract claim accrued ≤2011 but pre-2012 15-year limitations (or post-amendment rules) make 2019 filing timely | Nouraldins: applied shorter limitations (treat claim as oral) and argued claim was untimely | Court: pre-2012 15-year limitations (applicable to written contracts that accrued before amendments) govern; written-contract claim timely; summary judgment improper |
| Whether oral-contract claim re: Doctor Realty is time-barred/accrued | Tabbaa: may not have accrued because property not sold and proceeds not yet deprived; accrual date unclear | Nouraldins: oral-contract claim accrued by Tabbaa’s repeated demands (2010–2016); apply pre-2021 six-year limitations and deem claim time-barred | Court: accrual date for Doctor Realty claim is unclear from the record; because material facts are unresolved, summary judgment on that claim was improper |
| Whether other claims (fraud, conversion, promissory estoppel, unjust enrichment, declaratory judgment) survive | Tabbaa did not challenge summary judgment dismissal of these claims on appeal | Nouraldins: argued statutes of limitations bar these tort/quasi-contract claims | Court: appellant did not contest those rulings on appeal; trial court’s summary judgment dismissal of those claims remains intact |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (de novo standard for appellate review of summary judgment)
- Dresher v. Burt, 75 Ohio St.3d 280 (moving party’s burden in summary judgment and shifting burdens)
- Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367 (summary judgment requires construing evidence most strongly for nonmoving party)
- Cincinnati v. Beretta USA Corp., 95 Ohio St.3d 416 (Ohio is a notice-pleading jurisdiction; Civ.R. 8(A) suffices)
- Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491 (discovery rule for accrual of causes of action)
- Collins v. Sotka, 81 Ohio St.3d 506 (general accrual principles quoted)
- Kincaid v. Erie Ins. Co., 128 Ohio St.3d 322 (breach-of-contract accrues when plaintiff suffers actual damages)