134 Ohio App. 3d 668 | Ohio Ct. App. | 1999
On March 5, 1998, Dean Witter moved to dismiss the complaint on several bases, including that the action was barred by the limitations period set forth in R.C.
The investors raise two assignments of error on appeal, which address the same substantive issue and will be considered together.
I. THE TRIAL COURT ERRED IN FINDING THAT THE SUBJECT MATTER OF THE PLAINTIFFS' COMPLAINT WAS ONE FOR FRAUD AND NOT BREACH OF CONTRACT.
II. THE TRIAL COURT ERRED IN APPLYING OHIO REVISED CODE § 1707.07.43 [SIC] TO THE PLAINTIFFS' BREACH OF CONTRACT CLAIMS.
The investors claim that Dean Witter failed to make required disclosures, engaged in self-dealing, acted without due diligence, and improperly managed the investment accounts in question. The investors contend that such conduct was prohibited by the contract and the rules and regulations incorporated therein and that Dean Witter engaged in such conduct to their detriment after they had purchased their interests in the securities. The investors claim that these acts were outside the scope of R.C.
The statute of limitations for breach of a written contract is fifteen years. R.C.
No action for the recovery of the purchase price * * * and no other action for any recovery based upon or arising out of a sale or contract for sale made in violation of [the Securities Act] shall be brought more than two years after the plaintiff knew, or had reason to know, of the facts by reason of which the actions of the person * * * were unlawful, or more than four years from the date of such sale or contract for sale, whichever is the shorter period.
The investors do not dispute that their claim would be governed by the limitations period set forth in R.C.
We agree with the investors that an action for the unlawful sale of a security pursuant to R.C. Chapter 1707 and a common law action for breach of contract relating to how a security is managed are not necessarily mutually exclusive. Nonetheless, these causes of action are distinct, and we must look to the actual nature or subject matter of a case, rather than the form in which an action is pleaded, to determine the applicable limitations period. Lawyers Coop. Publishing Co. v. Muething
(1992),
In resolving a Civ.R. 12(B)(6) motion to dismiss, all of the factual allegations in the complaint must be taken as true and all reasonable inferences must be drawn in favor of the non-moving party.Mitchell v. Lawson Milk Co. (1988),
Specific statutory provisions prevail over conflicting general provisions unless the legislature's intent that the general provision prevail is clear. R.C.
The investors' allegations of misconduct on the part of Dean Witter were set forth in paragraphs fifteen and sixteen of the complaint. Paragraph sixteen of the complaint contained several subparts alleging that Dean Witter had breached its contract. The investors' first three allegations in paragraph sixteen were that Dean Witter sales materials had "contain[ed] systematic misrepresentations and/or omissions of material facts," that Dean Witter had created a market for its partnership securities through the use of false or misleading information, and that Dean Witter had failed to disclose the risks and illiquidity of the securities in its account statements and reports, the securities' "actual value over time," the likelihood of a return, and the nature of Dean Witter's compensation scheme. Because these allegations relate to Dean Witter's sales practices, its marketing, and representations on which the investors would have relied in deciding whether to purchase the securities, these matters clearly arose out of the sale or contract for sale of the securities. Paragraph sixteen further alleged that Dean Witter had failed to disclose its self dealing and its exercise of some control over the partnership interests. Although it is evident that any misperception or misrepresentation about the nature of the partnership interests under which the investors acted at the time of their initial investment might also have colored their judgments about whether to retain the securities after the purchase, these claims are nevertheless related to the purchase of the securities, not the management of the securities after the sale. Thus, the claims set forth in *672
paragraph sixteen of the investors' complaint fell within the scope of R.C.
In paragraph fifteen of the complaint, the investors generally alleged that Dean Witter had repeatedly breached its contracts and violated the customs, usages, laws, rules and regulations incorporated into its contracts by failing to make required disclosures and by engaging in prohibited conduct. By way of example, the investors claimed that Dean Witter's "sales scheme" and marketing were characterized by serious misrepresentations, lack of disclosure, and self-dealing. As discussed supra, allegations relating to improper sales practices clearly fall within the ambit of R.C.
The case is very similar to Hater v. Gradison Div. ofMcDonald Co. Securities, Inc. (1995),
In sum, we agree with the trial court's conclusion that, although styled as a breach of contract claim arising after the purchase of the securities, the investors' *673
claims actually related to the purchase of the securities and therefore fell within the ambit of R.C.
The judgment of the trial court will be affirmed.
FAIN, J. and KOEHLER, J., concur.
(Hon. Richard N. Koehler sitting by assignment of the Chief Justice of the Supreme Court of Ohio).