David Krohn v. Charlene A. Ostafi, et al.
Court of Appeals No. L-19-1002
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
April 17, 2020
2020-Ohio-1536
OSOWIK, J.
Triаl Court No. CI0201804046; [Cite as Krohn v. Ostafi, 2020-Ohio-1536.]
Nicolas A. Linares and Matthew T. Kemp, for appellees.
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DECISION AND JUDGMENT
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common Pleas which granted appellees’ motion to dismiss with prejudice. For the reasons set forth below, this court affirms, in part, and reverses, in part, the judgment of the trial court.
{¶ 3} Appellant alleged that in June 2008, he entered into a written agreement with his father where appellant sold to Charles two properties in Swanton, Ohio, in exchange for Charles’ promises to grant transfer on death deeds for appellant‘s benefit to not only the two properties in Swanton, but also a third property in Toledo, Ohio, located on Swanbrook Court. Appellant alleged Charles further promised to sign two promissory notes for the Swanton properties where “Charles agreed that he would not change or revoke” what appellant called the “TOD Designations” on the Swanton properties without first paying appellant large sums of money. Appellant did not allege this agreement encompassed a fourth property in Toledo located on DelMonte Drive.
{¶ 4} Appellant further alleged that in 2012 and 2015, his father violated their agreement when he signed new transfer on death deeds for the two Swanton properties
{¶ 5} Charles Krohn died on March 28, 2017, at the age of 97.
{¶ 6} Then on November 14, 2018, defendants-appellees Charlene A. Ostafi, individually and as Administratrix of the Estate of Charles Krohn, filed a motion to dismiss the complaint pursuant to
{¶ 7} On December 4, 2018, appellant filed his opposition to the motion to dismiss. His pleading attached unauthenticated copies of certain documents, including three transfer on death deeds: a deed signed by Charles on June 5, 2008, granting title to himself and then transfer on death to appellant filed in Lucas County for real property described on the face of the deed; a deed signed by Charles and appellant on June 5, 2008, granting title to Charles and then transfer on death to appellant filed in Fulton County for real property described in an Exhibit A not attached to the deеd; and a third deed signed by Charles and appellant on June 20, 2008, granting title to Charles and then transfer on death to appellant, this time filed in Lucas County for real property also described in an Exhibit A not attached to that deed. His pleading also attached two “promissory notes,” each dated July 2, 2008, in which Charles Krohn, as “Borrower,” and appellant, as “Witness,” agreed that upon Charles receiving title to two properties in Swanton, Charles will pay appellant $500,000 and $250,000, respectively, or transfer
{¶ 8} Minutes later on December 4, 2018, the trial court filed its order and judgment entry granting appellees’ motion to dismiss. The trial court‘s judgment entry is brief:
This matter is before the Court on Defendant‘s Motion to dismiss the Plaintiff‘s Complaint, under
Ohio Rules of Civil Procedure 9(B) ,10(D)(1) ,12(B)(1) ,12(B)(6) , theOhio Revised Code §2117.12 , res judicata, and the relevant Statutes of Limitations. After considering the Motion and pleadings on file, Court finds the Motion well taken and GRANTS the same. Accordingly, it is hereby ORDERED, ADJUDGED, and DECREED that Counts One through Ten against Defendants are dismissed with prejudice.
{¶ 9} Appellant hired counsel and filed this appeal setting forth two assignments of error, which we will address together:
- The trial court erred in granting Defendants’ Motion to Dismiss.
The trial court erred in failing to consider any further filings made by Plaintiff-Appellant after Defendant-Appellees’ Motion to Dismiss.
I. Standard of Review
{¶ 10} Despite appellant alleging otherwise, there is no indication in the record the trial court converted the motion to dismiss under
{¶ 11}
{¶ 12} A trial court‘s grant of
A. Claims Dismissed Without Prejudice
1. Incompetency
{¶ 13} Appellant alleged as Count 1 incompetency by stating, “At the time of the purported execution of the TOD Changes, Charles was incompetent and of unsound mind and memory and therefore incapable of conveying any interest in the properties or making the TOD Changes.”
{¶ 14} “Mental incapacity means not partial but complete incapacity to formulate an intention to convey one‘s property measured at the time the conveyance was made. Even an imperfect assent given by an insane person has been held to be mental capacity.” Vesy v. Giles, 108 N.E.2d 300, 302 (C.P.1952), citing Fissel v. Gordon, 83 Ohio App. 349, 350, 83 N.E.2d 525 (1st Dist.1948). “Moreover, feebleness of body, periods of mental confusion, and a memory not as sound as it once was are not enough to deprive a grantor of the right to dispose of his property in any way he may wish or deem best, a subject upon which he may have reflected much when in full vigor of mind and body.” Id.
{¶ 15} After reviewing de novo the four corners of the complaint we find there is no prima facie showing that when Charles was 92 and 95, respectively, he was completely incapable of formulating an intention to convey his properties as he deemed best. Willis v. Baker, 75 Ohio St. 291, 300, 79 N.E. 466 (1906). We are left to speculate that due to age alone, Charles was incompetent and of unsound mind and memory in
2. Unjust Enrichment
{¶ 16} Appellant alleged as Count 6 unjust enrichment by stating, “The actions of Charlene as herefore (sic.) described have unjustly enriched her. It would be inequitable for Charlene to retain the benefits and not return them to David or at least the Charles Krohn estate.”
{¶ 17} To make a prima facie showing of Charlene‘s unjust enrichment, appellant must state facts in his complaint that Charlene retained money or benefits “which in justice and equity belong to another.” (Citation omitted.) Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 2005-Ohio-4985, 834 N.E.2d 791, ¶ 20. Restitution is the common law remedy to a claim of unjust enrichment. Id. Restitution only compensates a plaintiff for the benefit the plaintiff conferred on the defendant. Id. at ¶ 21.
{¶ 18} For purposes of
3. Tortious Interference with Contract and with Business Relationship
{¶ 19} Appellant alleged as Counts 9 and 10 the related claims of tortious interference with contract and with business relationship, respectively, by stating:
David and Charles entered into a contractual arrangement regarding the Swanton Properties under which David would receive a substantial payment from Charles during his lifetime or receive the Swanton and Swanbrook Properties at Charles’ death by operation of the TOD Designation. Charlene had knowledge of the existence of the TOD Designations. Charlene intentionally procured Charles’ breach of the contracts by virtue of the TOD Changes. Chаrlene‘s intentional procurement of Charles’ breach of the contract lacked justification. * * *
[And] David and Charles entered into a business relationship regarding the Swanton Properties under which David would receive a substantial payment from Charles during his lifetime or receive the Swanton and Swanbrook Properties at Charles’ death by operation of the TOD Designation. Charlene had knowledge of the existence of the relationship. Charlene intentionally caused Charles to breach or terminate the relationship.
{¶ 21} For purposes of
{¶ 22} Even if we accept for
{¶ 23} We recognize that appellant attached to his appellate brief an exhibit purporting, “In September of 2017, Plaintiff-Appellant made a claim for breach of contract against the estate of Charles Krohn (Lucas County [Court of Common Pleas, Probate Division,] Case No. 2017 EST 802). (A copy of the filed claim is attached herеto as Appendix ‘A‘.)” That exhibit, which did not append to it any of the written documents upon which appellant relies in this case, is not in the record before us.
{¶ 24} From our de novo review of appellant‘s causes of action for tortious interference with contract and with business relationship, we find the trial court‘s dismissal of these claims was proper, but erred when it dismissed the claim with prejudice. The claim should have been dismissed without prejudice.
B. Claims Dismissed With Prejudice
1. Undue influence
{¶ 25} Appellant alleged as Count 2 undue influence by stating, “At the time of the purported execution of the TOD Changes, Charles was susceptible to undue influence due to his mental incompetency and dependence upon Charlene and therefore incapable of conveying any interest in the Properties or making the TOD Changes.”
{¶ 26} Appellant‘s undue influence claim is time-barred for
2. Fraud and Breach of Fiduciary Duty
{¶ 27} Appellant alleges as Counts 3 and 4 fraud and breach of fiduciary duty, respectively, are related matters we will address together.
{¶ 28} Appellant alleged fraud by stating,
Upon Plaintiffs information and belief, Charles did not want nor intended for Charlene to receive the entire fee simple in the interest in the properties when he purportedly made the TOD Changes. * * * The TOD Changes were procured by fraud and misrepresentations of Charlene as evidenced partially by her receiving the entire fee simple interest in all of the Properties upon Charles’ death to the complete exclusion of her siblings and her concealment of the TOD Changes from her siblings.
Appellant alleged breach of fiduciary duty by stating:
Charlene was an agent of Charles under a financial power of attorney. At the time of the TOD Changes, Charlene held a relationship of special trust with Charles. Charlene owed a duty of utmost loyalty and good faith to Charles regarding the transfer and conveyance of any of his assets. Charlene breached this duty by causing Charles to change the TOD designations of the Properties to herself for her own personal benefit.
3. Intentional Interference with Expectancy of Inheritance
{¶ 30} Appellant alleged as Count 8 tortious interference with inheritance by stating:
At all times material hereto David [had] a reasonable expectation of an inheritance from his father, Charles, that included the properties. As
evidenced by the TOD Designations by Charles for the purchase of the Properties. Charlene wrongfully, intentionally and maliciously interfered with that reasonable expectation by causing Charles to allegedly make the TOD Changes.
{¶ 31} Dismissal under
4. Remedies
{¶ 32} Dismissal under
{¶ 33} Appellant alleged as Count 5 constructive trust by stating:
As a result of the actions of Charlene as set forth herein, a constructive trust should be imposed upon the Swanton, Swanbrook, and DelMonte Properties, or the proceeds thereof, received upon the death of Charles Krohn for the benefit of David Krohn and said assets should be returned to David as rightful beneficiary.
{¶ 34} “A constructive trust is an equitable remedy that protects against unjust enrichment and is usually invoked when property has been obtained by fraud.” Estate of Cowling v. Estate of Cowling, 109 Ohio St.3d 276, 2006-Ohio-2418, 847 N.E.2d 405, ¶ 19. “In Ohio, statutes of limitation attach to causes of action and not to the remedial form in which the action is brought. If the cause of action in which imposition of a constructive trust is sought as a remedy is barred by a statute of limitation, the imposition of a constructive trust is likewise barred.” Peterson v. Teodosio, 34 Ohio St.2d 161, 172, 297 N.E.2d 113 (1973).
{¶ 35} Having previously determined appellant‘s claims for fraud and breach of fiduciary duty are barred by the four-year statute of limitations under
{¶ 36} Appellant alleged as Count 7 accounting by stating, “Based upon all of the foregoing, Plaintiff requests a full and accurate accounting of what Charlene has done with the Properties or the proceeds thereof since the death of Charles.”
{¶ 37} An accounting, like a constructive trust, is an equitable remedy, not a cause of action, and the claim for an accounting remedy is properly dismissed under
{¶ 38} Appellant‘s first assignment of error is well-taken in part, and not well-taken in part.
C. Untimely Response
{¶ 39} Appellant admitted he filed late his pro se opposition to appellees’ motion to dismiss, but argued his delay was excused by his misunderstanding of information he received from the clerk of courts regarding the timing for his response.
{¶ 40} A pro se litigant must still follow the same rules and procedures as attorneys. HSBC Bank USA, N.A. v. Takats, 6th Dist. Lucas No. L-14-1155, 2015-Ohio-3077, ¶ 9. While we may afford appellant reasonable leeway in the construction of pleadings in the interests of justice, ultimately, a pro se litigant may not be given any
{¶ 41} Appellant failed to timely respond to appellees’ motion to dismiss pursuant to the civil rules of procedure. According to the record, service of appellees’ motion to dismiss was mailed to appellant on Wednesday, November 14, 2018. Pursuant to
{¶ 42} “A trial court is vested with broad discretion in controlling its docket and regulating the proceedings before it.” Pollock v. Block, 6th Dist. Lucas No. L-99-1106, 2000 WL 819276, *5. We are mindful that cases should be decided upon their merits, where possible, rather than on procedural grounds. Marion Prod. Credit Ass‘n. v. Cochran, 40 Ohio St.3d 265, 270-71, 533 N.E.2d 325, 331 (1988). Absent an abuse of discretion, we will not reverse the triаl court‘s entry of dismissal where appellant opposed dismissal outside the time frame allowed by the procedural rules of the court. See Hillabrand v. Drypers Corp., 87 Ohio St.3d 517, 519-520, 721 N.E.2d 1029 (2000); see
{¶ 43} Even after considering appellant‘s tardy opposition to appellees’ motion to dismiss, we find appellant failed to withstand the
{¶ 44} Appellant‘s second assignment of error is not well-taken.
III. Conclusion
{¶ 45} We affirm the trial court‘s judgment with prejudice on appellant‘s claims of undue influence, fraud, breach of fiduciary duty, intentional interference with expectancy of inheritance, constructive trust, and accounting, and we remand solely for the purpose of the trial court issuing its judgment without prejudice on appellant‘s claims of incompetency, unjust enrichment, tortious interference with contract, and tortious interference with business relationship.
{¶ 46} On consideration wherеof, the judgment of the Lucas County Court of Common Pleas is affirmed, in part, and reversed, in part. Appellant is ordered to pay the costs of this appeal pursuant to
Judgment affirmed, in part, reversed in part and remanded.
Mark L. Pietrykowski, J.
JUDGE
Thomas J. Osowik, J.
CONCUR.
JUDGE
Gene A. Zmuda, P.J.
CONCURS, IN PART, DISSENTS IN PART, AND WRITES SEPARATELY.
JUDGE
ZMUDA, P.J.
{¶ 47} Because I disagree with the majority‘s application of the standards on which the trial court dismissed appellant‘s claims, I am compelled to dissent, in part, from the majority‘s decision. Specifically, I find the majority failed to accept the facts alleged in the complaint as true, and failed to draw all reasonable inferences in favor of appellant, as required when reviewing a dismissal pursuant to
I. The Trial Court Erred in Dismissing Appellant‘s Claims on Grounds not Supported by Law.
{¶ 48} Appellee, Charlene Ostafi, both individually and in her capacity as administratrix of her father‘s estate, sought dismissal of appellant‘s claims with her November 14, 2018 motion to dismiss. Appellee sought dismissal under
{¶ 51} Similarly, while
{¶ 52} The dismissal of appellant‘s claims under res judicаta is likewise improper. Res judicata is an affirmative defense that “may not be raised by motion to dismiss under
{¶ 53} Appellant‘s first assignment of error states, in part, that the trial court erred in dismissing his claims pursuant to
II. The Face of Appellant‘s Complaint does not Conclusively Show any of his Claims are Barred by Applicable Statutes of Limitation.
{¶ 54} The majority determines that appellant‘s claims of undue influence, fraud, breach of fiduciary duty, intentional interference with expectancy of inheritance, constructive trust, and an accounting are barred by the applicable statute of limitations.3 In doing so, the majority concluded that the face of appellant‘s complaint conclusively shows that these claims are time-barred, relying on Velotta, 69 Ohio St.2d at 379, 433 N.E.2d 147. I disagree.
{¶ 55} Appellant‘s complaint alleges that in 2008, appellant‘s father executed transfer-on-death affidavits related to several parcels of land naming appellant as the beneficiary. Appellant and his father also executed promissory notes which stated that should his father change the transfer-on-death beneficiary on any of these parcels, that appellant‘s father would pay him $500,000 per parcel. In 2012 and 2015, appellant‘s father executed new transfer-on-death affidavits naming appellee Ostafi, appellant‘s sister, as the beneficiary (“TOD changes“). Appellant did not receive any payment from
{¶ 56} Appellant‘s claims of undue influence, fraud, breach of fiduciary duty, intentional interference with expectancy of inheritance each have a general statute of limitations of four years. The majority correctly notes that these claims do not accrue, and therefore the statute of limitations does not begin to run, until appellant discovered, or in the exercise of reasonable diligence should have discovered, appellee‘s conduct giving rise to these claims. Cundall v. U.S. Bank, 122 Ohio St.3d 188, 2009-Ohio-2523, 909 N.E.2d 1244, ¶ 24; Hicks v. Garrett, 5th Dist. Stark No. 2011CA00109, 2012-Ohio-3560, ¶ 11. The majority incorrectly concludes that the face of appellant‘s complaint conclusively shows that appellant should have discovered Ostafi‘s conduct giving rise to the underlying claims when it first occurred in 2012. As a result, the majority finds that appellant‘s claims filed in 2018, more than four years after Ostafi‘s conduct first occurred, were time-barred.
{¶ 57} It is undisputed that appellant‘s complaint alleges Ostafi‘s fraudulent conduct began in 2012 because that is the date of the first TOD Change. There are no allegations, however, that the 2012 TOD Change was recorded or otherwise made known to appellant. In fact, appellant specifically alleges Ostafi actively concealed the 2012 TOD Change, along with the subsequent 2015 TOD Change, from him and any others
{¶ 58} When ruling on a motion to dismiss, “we must presume that all factual allegations in the complaint are true and make all reasonable inferences in favor of the non-moving party.” Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). Application of this principle to the facts in this case requires us to presume that appellant could not have discovered Ostafi‘s concealed conduct until after his father‘s death on March 28, 2017. As his complaint was filed the following year, his claims would not be time-barred under the applicable statute of limitations.
{¶ 59} Appellee Ostafi‘s motion to dismiss also argues appellant‘s claims are time-barred under
{¶ 60} Appellee argues that this entire process already took place in a prior action and that appellant is barred from relitigating this issue here. While this argument appears to be based on res judicata rather than the time limitations established in
{¶ 61} For these reasons, I dissent from the majority‘s conclusion and would find appellant‘s first assignment of error well-taken regarding the dismissal of his claims as time-barred. I would find appellant‘s complaint does not conclusively show his claims were filed outside the applicable statutes of limitations or the limits established in
{¶ 62} A trial court‘s lack of subject-matter jurisdiction can be raised by motion pursuant to
{¶ 63} “The doctrine of res judicata provides that a final judgment rendered on the merits by a court of competent jurisdiction is a complete bar to any subsequent action on the same claim between the same parties or those in privity with them.” State ex rel. Oliver v. Turner, 153 Ohio St.3d 605, 2018-Ohio-2102, 109 N.E.3d 1204, ¶ 15. Appellee argues that because the Wood County Court of Common Pleas had already issued a judgment in a divorce action which resolved disputes related to the subject parcels that appellant could not raise them again before the trial court here. This argument relates to the rights of the individual parties and not the power of the trial court to hear these claims. As a result, appellee‘s argument is based on res judicata, not the trial court‘s lack of subject-matter jurisdiction over appellant‘s claims. Since res judicata cannot be raised
IV. Appellant Alleged Sufficient Facts to Support his Claims for Incompetency, Tortious Interference with Contract, and Tortious Interference with Business Relationship.
{¶ 64} The majority affirms the trial court‘s dismissal of appellant‘s claims of incompetence, tortious interference with contract, and tortious interference with business relationship finding appellant‘s complaint failed to state a claim on which relief could be granted. Once again, I find the majority‘s conclusion is premised on an incorrect application of law and would reverse the judgment of the trial court.
a. Incompetence
{¶ 65} Appellant‘s complaint alleges facts which, when presumed to be true, support a claim of incompetence. Specifically, appellant alleges that in 2008 he entered into a series of agreements with his father which would have resulted in appellant either remaining the transfer-on-death beneficiary for certain parcels of land or, in the alternative, being compensated should his father change the beneficiary prior to his father‘s death. Appellant alleges that in 2012 and 2015, his father executed new “transfer on death” designations related to the parcels in dispute. Appellant alleges, however, that
{¶ 66} Under Mitchell, 40 Ohio St.3d at 192, 532 N.E.2d 753, we must presume the allegations of a complaint to be true on review of the trial court‘s dismissal of appellant‘s claim. Rather than presuming these allegations to be true, however, the majority performs a type of fact-finding and reaches its own conclusion that appellant asserts only his father‘s age as the basis for his incompetence. The majority then relies on the 1962 statutory definition of incompetence as quoted in In re. Guardianship of Breece, 173 Ohio St. 542, 545-546, 184 N.E.2d 386 (1962), to dismiss appellant‘s claim holding age alone is not sufficient to show incompetence.
{¶ 67} My disagreement here lies in the majority making a faсtual determination that age was the sole basis for appellant‘s father‘s incompetence. Such an assertion is based purely on speculation and not the allegations set forth in the complaint. Nowhere in the complaint does appellant state his father‘s incompetence is based solely on his age. Instead, appellant alleges his father was of “unsound mind and memory and therefore incapable of conveying any interest in the properties[.]” The law does not permit us to speculate that appellant alleges his father was incompetent based on age alone as the majority concludes. As with the statute of limitations arguments, we are to presume the facts alleged by appellant that his father was of unsound mind and failing memory are true and determine if those facts are sufficient to support his claim. To require anything further would require a heightened standard of pleading similar to that described in
{¶ 68} In reaching its decision, the majority has inappropriately and prematurely concluded that age is the only evidence of incompetence appellant could present at trial in this matter. This presumption not only completely disregards the actual allegations in the complaint, it forecloses appellant‘s ability to present evidence of any non-age related factors contributing to his father‘s incompetence at trial. The majority‘s weighing of its own speculative facts drawn from the complaint is improper and precludes appellant from pursuing his sufficiently alleged claim of incompetence. Because of this, I dissent from the majority‘s conclusion and would reverse the trial court‘s dismissal of appellant‘s incompetence claim.
b. Tortious Interference with Contract and a Business Relationship
{¶ 69} A claim of tortious interference with contract requires interference with an existing contract while interference with a business relationship requires the accused party to have interfered with an existing or future business relationship in order to be held liable for damages. A&B-Abell Elevator Co. v. Columbus/Central Ohio Building & Construction Trades Council, 73 Ohio St.3d 1, 651 N.E.2d 1283 (1995). Due to the similarity in the elements of each claim, the majority addresses these claims together.
{¶ 70} In affirming the trial court‘s dismissal of these claims, the majority once again weighs the merits of appellant‘s claims rather than simply determining whether the complaint alleges sufficient facts to support the claim. Specifically, the majority finds
{¶ 71} The majority‘s conclusion improperly determines the enforceability of the notes in affirming the dismissal of these claims. When reviewing a motion to dismiss for failure to state a claim on which relief can be granted, “the principles of notice pleading apply and ‘a plaintiff is not required to prove his or her case at the pleading stage.‘” David v. Matter, 6th Dist. Lucas No. S-17-006, 2017-Ohio-7351, ¶ 8, citing Piispanen v. Carter, 11th Dist. Lake No. 2005-L-133, 2006-Ohio-2382, ¶ 10, quoting York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 144, 573 N.E.2d 1063 (1991). Thus, it is only the allegations in the complaint which can be utilized in reviewing the trial court‘s dismissal of appellant‘s claims. Mitchell at 192. By determining the existence and enforceability of a contract when no evidence has been introduced, the majority has expanded its review of the record far beyond the limited scope of review
{¶ 72} Even assuming our review allowed us to look beyond the allegations in the complaint to determine whether the contracts are enforceable, the majority‘s conclusion that they are not enforceable is not supported in the complaint. The majority concludes that the transfer-on-death affidavit and the promissory note are entirely separate agreements and, therefore, since appellant‘s father had already obligated himself to appellant through the affidavit that the transfer-on-death benefit cannot serve as consideration for the promissory note. That a promisor‘s prior obligation to perform under a contract cannot serve as consideration for a new agreement is a proper statement of law. Cuspide Properties at ¶ 46. However, the majority‘s conclusion that the transfer-on-death affidavit cannot serve as consideratiоn for the promissory notes is based on the majority‘s improper speculation that these instruments are entirely separate and unrelated.
{¶ 73} For over a century, Ohio has recognized that execution of an agreement does not require simultaneous execution of all aspects of the contract. Thayer v. Luce, 22 Ohio St. 62 (1871) “Several writings, though made at different times, may be construed together, for the purpose of ascertaining the terms of a contract required, by the statute of frauds, to be in writing and signed by the party to be charged therewith.” Id. The allegations in the complaint suggests that these two instruments are part of the same agreement between the parties. The fact that one of the instruments was executed several weeks prior to the other does not necessarily require, or even permit at the pleadings stage, a finding that they are not part of the same agreement. For the majority to
{¶ 74} Put simply, the majority‘s conclusion could prove to be true. Such a conclusion, however, is reserved for the appropriate stage of the proceedings, after the parties have conducted discovery and after all relevant evidence has been weighed. This matter is still in the pleading phase, which is not the appropriate stage to determine the enforceability of the notes. I therefore dissent from the majority. I would reverse the trial court‘s dismissal of appellant‘s tortious interference with contract and business relations claims.
V. Appellant‘s Claims Against Remaining Defendants Should not be Dismissed When Those Parties did not Request Dismissal.
{¶ 75} Finally, I would reverse the trial court‘s dismissal of any of appellant‘s claims against defendants that did not move for dismissal. Appellant‘s complaint names as defendants Charlene Ostafi, both individually and as the administratrix of the estate of Charles Krohn, Charlene‘s unnamed spouse,4 Randall Krohn, Robert Krohn, and First Federal Savings & Loan of Delta. Only defendant Charlene Ostafi, in her individual and administrative capacities, filed a motion to dismiss pursuant to
{¶ 76} “The Rules of Civil Procedure neither expressly permit nor forbid courts to sua sponte dismiss complaints. Generally, a court may dismiss a complaint on its own motion pursuant to
VI. Conclusion
{¶ 77} Based on the foregoing, I respectfully do the following:
{¶ 78} I concur with the majority in affirming the trial court‘s dismissal of appellant‘s claim for unjust enrichment and would find assignment of error No. 1 not well-taken, in part, and would affirm the dismissal of this claim without prejudice.
{¶ 79} I dissent from the majority‘s finding that appellant‘s claims of undue influence, fraud, breach of fiduciary duty, and intentional interference with expectancy of inheritance are barred by the applicable statute of limitations. I would find appellant‘s
{¶ 80} I dissent from the majority‘s finding that appellant‘s complaint failed to state a claim on which relief could be granted on his claims of incompetence, tortious interference with contract, and tortious interference with business relationship. I would find appellant‘s first assignment of error well-taken and would reverse the judgment of the trial court dismissing these claims.
{¶ 81} Finally, I dissent from the majority‘s affirmance of the trial court‘s dismissal of appellant‘s claims against appellee Ostafi‘s unnamed spouse, Randall Krohn, Robert Krohn, and First Federal Savings & Loan of Delta. The trial court had no basis on which to grant dismissal against these non-moving parties without first providing notice to appellant. I would reverse the judgment of the trial court and remand this matter for further proceedings against these defendants.
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.