Krohn v. Ostafi
| Decision Date | 17 April 2020 |
| Docket Number | Court of Appeals No. L-19-1002 |
| Parties | David Krohn Appellant v. Charlene A. Ostafi, et al. Appellees |
| Court | Ohio Court of Appeals |
DECISION AND JUDGMENT
Erik G. Chappell and Lacey L. Riley, for appellant.
Nicolas A. Linares and Matthew T. Kemp, for appellees.
{¶ 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.
{¶ 2} The following facts are relevant to this appeal. On October 11, 2018, pro se plaintiff-appellant, David Krohn, filed a complaint against six defendants-appellees: his three siblings, individually; his sister, Charlene A. Ostafi, as Administratrix of the Estate of his father, Charles Krohn; his sister's unnamed husband; and First Federal Savings and Loan of Delta. Appellant claimed ten causes of action in his complaint for which he sought equitable relief and monetary damages of over $1 million: incompetency, undue influence, fraud, breach of fiduciary duty, constructive trust, unjust enrichment, accounting, tortious interference with inheritance, tortious interference with contract, and tortious interference with business relationship. The complaint referenced as exhibits two transfer on death deeds and two promissory notes, but no exhibits were attached.
{¶ 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 propertiesand the Swanbrook property replacing appellant as the sole beneficiary with his sister, Charlene. Appellant collectively called these the "TOD Changes." The complaint did not reference as exhibits these "TOD Changes," and no exhibits were attached.
{¶ 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 Civ.R. 9(B), 10(D)(1), 12(B)(1), and 12(B)(6), R.C. 2117.12, res judicata, "and the relevant Statutes of Limitations."
{¶ 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 deed; 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"full interest to the property" to appellant upon Charles' death. Each "promissory note" stated that Charles executed the transfer on death deeds prior to July 2, 2008, and that each deed was "irrevocable unless full payment has been made to David L. Krohn." The "promissory note" purported to have the signature of a notary, but without the notary's acknowledgment. Appellant did not attach any evidence of the alleged 2012 and 2015 "TOD Changes."
{¶ 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), the Ohio 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:
{¶ 10} Despite appellant alleging otherwise, there is no indication in the record the trial court converted the motion to dismiss under Civ.R. 12(B)(6) to a motion for summary judgment under Civ.R. 56. We review de novo a trial court's decision granting a motion to dismiss pursuant to Civ.R. 12(B)(6) by accepting as true all factual allegations in the complaint. Alford v. Collins-McGregor Operating Co., 152 Ohio St.3d 303, 2018-Ohio-8, 95 N.E.3d 382, ¶ 10. (Citation omitted.) Id. Where documents are attached or incorporated in the complaint, they may be considered under Civ.R. 12(B)(6), but the court is not required to accept as true factual allegations in the complaint contradicted by those documents. State ex rel. Washington v. D'Apolito, 156 Ohio St.3d 77, 2018-Ohio-5135, 123 N.E.3d 947, ¶ 10. We are not required on a motion to dismiss to accept as true appellant's unsupported conclusions or a mere recitation of the elements of a cause of action. Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147, ¶ 14. Conclusions not supported by factual allegations in the complaint cannot be deemed admitted and areinsufficient to withstand a motion to dismiss. State ex rel. Hickman v. Capots, 45 Ohio St.3d 324, 544 N.E.2d 639 (1989).
{¶ 11} Civ.R. 12(B)(6) states, "Every defense, in law or fact, to a claim for relief in any pleading * * * may at the option of the pleader be made by motion: * * * (6) failure to state a claim upon which relief can be granted * * *."
{¶ 12} A trial court's grant of Civ.R. 12(B)(6) dismissal is without prejudice except in those cases where the claim cannot be pled in any other way. Fletcher at ¶ 17. Failure to commence an action within the applicable statute of limitations warrants a dismissal on the merits of the case and constitutes a dismissal with prejudice. LaBarbera v. Batsch, 10 Ohio St.2d 106, 116, 227 N.E.2d 55 (1967). A court has subject-matter jurisdiction to decide whether the statute of limitations should bar a cause of action. State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 76, 701 N.E.2d 1002 (1998). The existence and duration of a statute of limitations is determined by the legislature as a matter of substantive law. Erwin v. Bryan, 125 Ohio St.3d 519, 2010-Ohio-2202, 929 N.E.2d 1019, ¶ 29. A court does not possess the authority to extend the statute of limitations, either through the Rules of Civil Procedure or case law. Harris v. Firelands Regional Med. Ctr., 6th Dist. Erie No. E-17-053, 2018-Ohio-3085, ¶ 38, citing Erwin at ¶ 4. "A motion to dismiss based upon a statute of limitations may be granted only when the complaint shows conclusively on its face that the action is time-barred." LGR Realty, Inc. v. Frank & London Ins. Agency, 152 Ohio St.3d 517, 2018-Ohio-334, 98 N.E.3d 241, ¶ 10.
{¶ 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} 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...
To continue reading
Request your trial