Landskroner v. Landskroner
| Decision Date | 18 September 2003 |
| Docket Number | No. 82375.,82375. |
| Citation | 797 NE 2d 1002,154 Ohio App.3d 471 |
| Parties | LANDSKRONER, Appellant, v. LANDSKRONER et al., Appellees. |
| Court | Ohio Court of Appeals |
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Lawrence Landskroner & Associates and Charles Bennett, for appellant.
Levy Paul W. Flowers Co., L.P.A., and Paul W. Flowers, for appellees.
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{¶ 1} Plaintiff-appellant, Lawrence Landskroner, appeals from the order of the Cuyahoga County Common Pleas Court that granted the motion to dismiss filed by defendants-appellees, Jack Landskroner and The Landskroner Law Firm, Ltd., and dismissed appellant's complaint. For the reasons that follow, we affirm in part, reverse in part, and remand.
{¶ 2} Appellant is the father of defendant-appellee, Jack Landskroner ("Jack"). Both are licensed attorneys and, at one time, practiced together in the law firm of defendant-appellee, The Landskroner Law Firm, Ltd. ("LLF"). In June 1952, according to appellant's complaint, appellant and attorney Robert M. Phillips ("Phillips") formed the predecessor to LLF, a legal professional association known as Landskroner & Phillips. Jack joined the law firm in 1989, first as a law clerk and then as an attorney in 1992. Sometime in 1996, Phillips became disassociated with the predecessor law firm, and the organizational form changed from a legal professional association to that of a limited liability company known as LLF, with appellant as the sole owner of all 100 membership units.
{¶ 3} Appellant alleges that, sometime in 1997, he agreed to transfer 99 of the membership units to Jack. According to appellant's complaint, the parties also agreed on a compensation schedule that varied in percentage of retained profit based on the source of the income. No written document was appended to appellant's complaint memorializing the terms of this agreement in the detail averred in appellant's complaint, and it appears from the record that no such document was executed by the parties. A document dated December 24, 1997, and captioned "Agreement" was, however, attached to appellant's complaint. This document was hand-written by Jack, appears to be addressed to appellant, and outlined what Jack and appellant "discussed about LLF." Succinctly, the document states that, inter alia, Jack "is 100% shareholder" of LLF and that appellant "is entitled to 2/3 profits" while Jack "is entitled to 1/3 profits." Sometime thereafter appellant transferred the remaining membership unit to Jack, and Jack became the sole shareholder of LLF.
{¶ 4} In March 2002, Jack advised appellant that he was terminating their business relationship and, in April 2002, vacated the office space they shared, taking with him all of the employees and business equipment of LLF. In May 2002, appellant instituted a 15-count complaint against Jack and LLF (collectively referred to as "LLF" where appropriate for ease of discussion), seeking declaratory, injunctive, and equitable relief, as well as damages for breach of contract, conversion, and breach of fiduciary duties, among others. In particular, appellant alleges that LLF failed to compensate him according to the parties' agreement and, despite repeated requests for an accounting, he received none. LLF moved to dismiss the complaint under Civ.R. 12(B)(6) for failure to state a claim upon which relief could be granted, which the trial court granted without opinion.
{¶ 5} Appellant is now before this court and, in his sole assignment of error, contends that the trial court erred when it granted the motion to dismiss.
{¶ 6} When reviewing a judgment granting a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted, an appellate court must independently review the complaint to determine whether dismissal is appropriate. McGlone v. Grimshaw (1993), 86 Ohio App.3d 279, 285, 620 N.E.2d 935. The reviewing court need not defer to the trial court's ruling on such a motion. Id. Dismissal is appropriate only where it appears beyond a doubt that the complainant can prove no set of facts sufficient to support the asserted claim that would entitle the complainant to relief. Cleveland Elec. Ilium. Co. v. Pub. Util. Comm. (1996), 76 Ohio St.3d 521, 524, 668 N.E.2d 889, citing O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 245, 71 O.O.2d 223, 327 N.E.2d 753; see, also, York v. Ohio State Hwy. Patrol (1991), 60 Ohio St.3d 143, 144, 573 N.E.2d 1063. In construing the complaint in response to a Civ.R. 12(B)(6) motion, a court must presume all factual allegations contained in the complaint to be true and make all reasonable inferences in favor of the nonmoving party. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753. With this standard in mind, we address each of appellant's claims for relief and the corresponding arguments for and against dismissal.1
{¶ 7} Appellant sought a declaration that he is the sole owner of all the membership units because the transfer of the membership units from appellant to Jack was not in compliance with R.C. Chapter 1705. LLF argued in its motion to dismiss that there was no controversy entitling appellant to declaratory relief because it is clear from appellant's complaint that Jack is the sole owner of all the membership units.
{¶ 8} In order to be entitled to declaratory relief, there must exist a real controversy between adverse parties that is both justiciable in character and requires speedy relief in order to preserve rights that may be otherwise impaired or lost. Herrick v. Kosydar (1975), 44 Ohio St.2d 128, 130, 73 O.O.2d 442, 339 N.E.2d 626; see, also, Haig v. Ohio State Bd. ofEdn. (1992), 62 Ohio St.3d 507, 511, 584 N.E.2d 704.
{¶ 9} Although appellant contends that there exists a controversy as to who owns the membership units of LLF, appellant avers in his complaint that he transferred all of the membership units to Jack. Appellant argues that the transfer of units to Jack was contingent on his receiving "fair distributions" from LLF. Appellant's complaint makes no such allegation nor is such a contingency contained in the handwritten agreement appended to appellant's complaint. Accepting the allegations contained in the complaint as true as we must in reviewing a decision to grant or deny a motion to dismiss under Civ.R. 12(B)(6), we see no justiciable controversy justifying declaratory relief. The trial court, therefore, did not err in granting LLF's motion in this regard.
{¶ 10} Appellant sought a judicial dissolution of LLF as authorized by R.C. 1705.47. This statute provides that a court of common pleas "may decree" the dissolution of a limited liability company "if it is not reasonably practicable to carry on the business of the company in conformity with its articles of organization and operating agreement." Judicial dissolution is available, however, upon the application of "any member" of the company. As stated previously, appellant's complaint makes clear that appellant has relinquished his membership units in the company and is, therefore, no longer a member. Consequently, it was not error for the trial court to grant LLF's motion as it pertained to appellant's claim for judicial dissolution.
{¶ 11} Appellant sought an accounting and damages for breach of contract under Counts III and IV of his complaint. Succinctly, appellant claimed that LLF had wrongfully withheld compensation due him under the parties' agreement and sought an accounting of the law firm's profits. LLF argued that appellant's claim for breach of contract was subject to dismissal because appellant failed to comply with Civ.R. 8(A) and (10)(D), as well as the writing requirements of the Statute of Frauds2 as codified at R.C. Chapter 1335.
{¶ 12} Civ.R. 8(A) provides, inter alia, that a pleading shall contain a short and plain statement of the claim showing the party is entitled to relief. A party is not required to plead the legal theory of recovery and must only set forth facts that, if proven, establish its claim for relief. Illinois Controls, Inc. v. Langham (1994), 70 Ohio St.3d 512, 639 N.E.2d 771. Generally, a breach-ofcontract action is pleaded by stating the terms of the contract, performance of plaintiffs obligations under the contract, breach by the defendant, consideration, and damages. Harper v. Miller (1957), 109 Ohio App. 269, 11 O.O.2d 17, 164 N.E.2d 754; see, also, Cairns v. Ohio Sav. Bank (1996), 109 Ohio App.3d 644, 647, 672 N.E.2d 1058.
{¶ 13} We see no pleading infirmity as it pertains to his cause of action for breach of contract under Civ.R. 8(A). It is true that Count IV of appellant's complaint itself merely states that "the conduct of Defendant Landskroner as described in this Complaint constitutes a breach of the terms of the Agreement." Nonetheless, appellant incorporated paragraphs 1 through 42 under this particular count, which detailed the conduct and history among the parties. In particular, it stated that appellant transferred ownership of LLF to Jack in exchange for certain compensation, which he claims he has not fully received. Nothing further was required in order to put LLF on notice that appellant was asserting a breach-of-contract claim, other than to comply with Civ.R. 10(D).
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