[Cite as Alspach v. Swartzmiller, 2020-Ohio-428.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
CYNTHIA A. ALSPACH, ET AL., CASE NO. 13-19-33 PLAINTIFFS-APPELLANTS,
v.
DAVID E. SWARTZMILLER, ET AL., OPINION
DEFENDANTS-APPELLEES.
Appeal from Seneca County Common Pleas Court Trial Court No. 18-CV-0301
Judgment Affirmed in Part, Reversed in Part
Date of Decision: February 10, 2020
APPEARANCES:
Terry L. Gernert for Appellants
David J. Claus and Bryan C. Rannigan for Appellees Case No. 13-19-33
WILLAMOWSKI, J.
{¶1} Plaintiffs-appellants Cynthia A. Alspach, Rebecca L. Mason, Trudy L.
Kauffman, Terri J. Drosky, Cheri R. Swartzmiller, and Douglas P. Swartzmiller
(collectively known as “Appellants”) bring this appeal from the judgment of the
Court of Common Pleas of Seneca County dismissing with prejudice their complaint
against defendants-appellees David E. Swartzmiller and Cory Swartzmiller
(collectively known as “Appellees”). Appellants argue on appeal that the trial court
erred by finding their claim to be barred by the statute of limitations. For the reasons
set forth below, the judgment is affirmed in part and reversed in part.
{¶2} This case arises from a claim by Appellants that Appellees, particularly
David E. Swartzmiller (“David”), engaged in fraudulent behavior to deprive them
of the value of the real property that they otherwise would have inherited. Doc. 2.
Appellants and David are siblings and Cory Swartzmiller is David’s son who may
have an interest in the property at this time. Id. Appellants filed a complaint on
December 5, 2018, alleging that David, through fraud and coercion, enticed their
parents into transferring the real estate at issue to him on June 5, 2012. Id. at 2. The
complaint also contains an allegation that David on June 5, 2012, fraudulently
converted $20,000 to himself although that money had been set aside by their
parents for Appellants. Id. Appellees filed their answer on Jan. 17, 2019, denying
fraudulent behavior and listing several affirmative defenses, including the statute of
-2- Case No. 13-19-33
limitations and requesting that the complaint be dismissed with prejudice. Doc. 7.
On January 31, 2019, Appellees filed a motion to dismiss based upon the statute of
limitations and the failure to plead fraud with specificity. Doc. 8. Appellants filed
a response to the motion on April 19, 2019. Doc. 11. On May 17, 2019, the trial
court held a hearing on the motion. The trial court issued its judgment on August
7, 2019, granting the motion to dismiss with prejudice. Doc. 17. Appellants filed a
timely notice of appeal and raise the following assignment of error on appeal. Doc.
18.
The trial court erred in dismissing [Appellants’] complaint finding that the action is barred by the statute of limitations.
{¶3} Appellants claim that the trial court erred in granting the motion to
dismiss. The granting of a motion to dismiss is subject to de novo review.
Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, ¶ 5, 814 N.E.2d
44. “In reviewing whether a motion to dismiss should be granted, we accept as true
all factual allegations in the complaint.” Id.
{¶4} Here, the complaint alleges two fraudulent actions. The first is the
transfer of ownership of the real estate and the second is the conversion of $20,000
cash. In Ohio, most claims for fraud must be brought within four years. R.C.
2305.09(C).1 “A cause of action for fraud or conversion accrues either when the
fraud is discovered, or [when] in the exercise of reasonable diligence, the fraud
1 The only exception would be in the case of identity fraud, which has a five year statute of limitations.
-3- Case No. 13-19-33
should have been discovered.” Cundall v. U.S. Bank, 122 Ohio St.3d 188, 2009-
Ohio-2523, ¶ 29, 909 N.E.2d 1244, 1250. Thus, constructive knowledge, rather
than actual knowledge, is sufficient to start the statute of limitations under the
discovery rule. Id. at ¶ 30.
{¶5} The first claim is that the real estate transfer was the result of fraud.
“Any person contesting the validity or effectiveness of any transaction referred to
in a public record is considered to have discovered that public record and any
transaction referred to in the record as of the time that the record was first filed with
the secretary of state or tendered to a county recorder for recording.” R.C.
1301.401(C). The effective date of this statute was March 27, 2013. The filing date
of the deed at issue in this case was alleged to be on or about June 5, 2012. Doc. 2.
Although the statute went into effect after the deed was filed, this does not mean
that the statute has no effect on the notice. Even assuming that Appellants can
successfully argue that the filing of the deed did not provide constructive notice in
2012, the statute put everyone on notice as of March 27, 2013 (the effective date),
that all deeds were now constructive notice for purposes of the discovery rule. Thus,
appellants would be presumed to have discovered the transfer of the real estate as
of March 27, 2013, at the latest. The statute of limitations would have expired on
March 27, 2017. The complaint was not filed until December 5, 2018. This is
outside of the statute of limitations. The trial court did not err in dismissing this
claim with prejudice.
-4- Case No. 13-19-33
{¶6} The second claim is that Appellees fraudulently converted $20,000.
Unlike the real estate, there is no easily discernible time for determining when
Appellants discovered the alleged conversion. In their response to Appellees’
motion to dismiss, Appellants claim they did not discover the conversion until 2017.
Viewing this evidence in a light most favorable to Appellants, we cannot find that
the claim is outside the statute of limitations. However, Appellees also argued that
Appellants failed to plead the claim of fraud with specificity. “In all averments of
fraud or mistake, the circumstances constituting fraud or mistake shall be stated with
particularity.” Civ.R. 9(B). “Generally, to satisfy the particularity requirement of
Civ.R. 9(B), a plaintiff should plead the time, place, and content of the false
representation, the fact misrepresented, and the nature of what was obtained or given
as a consequence of the fraud.” Meehan v. Mardis, 1st Dist. Hamilton No. C-
180406, 2019-Ohio-4075, ¶ 20. Here, the complaint merely stated that “[o]n or
about June 5, 2012, [David], through fraud converted $20,000.00 which had been
set aside by Newton E. Swartzmiller and Betty A. Swartzmiller for [Appellants].”
Doc. 2 at 2. No specificity was given as to what actions comprised the fraud. Thus,
it was not pled with specificity. A review of the judgment entry does not show that
the trial court specifically ruled on this question. As this is a de novo review, this
court can determine that the claim of fraudulent conversion of the cash could be
dismissed for failure to state a claim upon which relief could be granted. Sutton
-5- Case No. 13-19-33
Funding, LLC v. Herres, 188 Ohio App.3d 686, 2010-Ohio-3645, ¶ 50, 936 N.E.2d
574. “[A] failure to specifically plead the operative facts that form the basis of a
fraud claim renders the claim defective.” Wick v. Ach, 1st Dist. Hamilton No. C-
180243, 2019-Ohio-2405, ¶ 12.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as Alspach v. Swartzmiller, 2020-Ohio-428.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
CYNTHIA A. ALSPACH, ET AL., CASE NO. 13-19-33 PLAINTIFFS-APPELLANTS,
v.
DAVID E. SWARTZMILLER, ET AL., OPINION
DEFENDANTS-APPELLEES.
Appeal from Seneca County Common Pleas Court Trial Court No. 18-CV-0301
Judgment Affirmed in Part, Reversed in Part
Date of Decision: February 10, 2020
APPEARANCES:
Terry L. Gernert for Appellants
David J. Claus and Bryan C. Rannigan for Appellees Case No. 13-19-33
WILLAMOWSKI, J.
{¶1} Plaintiffs-appellants Cynthia A. Alspach, Rebecca L. Mason, Trudy L.
Kauffman, Terri J. Drosky, Cheri R. Swartzmiller, and Douglas P. Swartzmiller
(collectively known as “Appellants”) bring this appeal from the judgment of the
Court of Common Pleas of Seneca County dismissing with prejudice their complaint
against defendants-appellees David E. Swartzmiller and Cory Swartzmiller
(collectively known as “Appellees”). Appellants argue on appeal that the trial court
erred by finding their claim to be barred by the statute of limitations. For the reasons
set forth below, the judgment is affirmed in part and reversed in part.
{¶2} This case arises from a claim by Appellants that Appellees, particularly
David E. Swartzmiller (“David”), engaged in fraudulent behavior to deprive them
of the value of the real property that they otherwise would have inherited. Doc. 2.
Appellants and David are siblings and Cory Swartzmiller is David’s son who may
have an interest in the property at this time. Id. Appellants filed a complaint on
December 5, 2018, alleging that David, through fraud and coercion, enticed their
parents into transferring the real estate at issue to him on June 5, 2012. Id. at 2. The
complaint also contains an allegation that David on June 5, 2012, fraudulently
converted $20,000 to himself although that money had been set aside by their
parents for Appellants. Id. Appellees filed their answer on Jan. 17, 2019, denying
fraudulent behavior and listing several affirmative defenses, including the statute of
-2- Case No. 13-19-33
limitations and requesting that the complaint be dismissed with prejudice. Doc. 7.
On January 31, 2019, Appellees filed a motion to dismiss based upon the statute of
limitations and the failure to plead fraud with specificity. Doc. 8. Appellants filed
a response to the motion on April 19, 2019. Doc. 11. On May 17, 2019, the trial
court held a hearing on the motion. The trial court issued its judgment on August
7, 2019, granting the motion to dismiss with prejudice. Doc. 17. Appellants filed a
timely notice of appeal and raise the following assignment of error on appeal. Doc.
18.
The trial court erred in dismissing [Appellants’] complaint finding that the action is barred by the statute of limitations.
{¶3} Appellants claim that the trial court erred in granting the motion to
dismiss. The granting of a motion to dismiss is subject to de novo review.
Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, ¶ 5, 814 N.E.2d
44. “In reviewing whether a motion to dismiss should be granted, we accept as true
all factual allegations in the complaint.” Id.
{¶4} Here, the complaint alleges two fraudulent actions. The first is the
transfer of ownership of the real estate and the second is the conversion of $20,000
cash. In Ohio, most claims for fraud must be brought within four years. R.C.
2305.09(C).1 “A cause of action for fraud or conversion accrues either when the
fraud is discovered, or [when] in the exercise of reasonable diligence, the fraud
1 The only exception would be in the case of identity fraud, which has a five year statute of limitations.
-3- Case No. 13-19-33
should have been discovered.” Cundall v. U.S. Bank, 122 Ohio St.3d 188, 2009-
Ohio-2523, ¶ 29, 909 N.E.2d 1244, 1250. Thus, constructive knowledge, rather
than actual knowledge, is sufficient to start the statute of limitations under the
discovery rule. Id. at ¶ 30.
{¶5} The first claim is that the real estate transfer was the result of fraud.
“Any person contesting the validity or effectiveness of any transaction referred to
in a public record is considered to have discovered that public record and any
transaction referred to in the record as of the time that the record was first filed with
the secretary of state or tendered to a county recorder for recording.” R.C.
1301.401(C). The effective date of this statute was March 27, 2013. The filing date
of the deed at issue in this case was alleged to be on or about June 5, 2012. Doc. 2.
Although the statute went into effect after the deed was filed, this does not mean
that the statute has no effect on the notice. Even assuming that Appellants can
successfully argue that the filing of the deed did not provide constructive notice in
2012, the statute put everyone on notice as of March 27, 2013 (the effective date),
that all deeds were now constructive notice for purposes of the discovery rule. Thus,
appellants would be presumed to have discovered the transfer of the real estate as
of March 27, 2013, at the latest. The statute of limitations would have expired on
March 27, 2017. The complaint was not filed until December 5, 2018. This is
outside of the statute of limitations. The trial court did not err in dismissing this
claim with prejudice.
-4- Case No. 13-19-33
{¶6} The second claim is that Appellees fraudulently converted $20,000.
Unlike the real estate, there is no easily discernible time for determining when
Appellants discovered the alleged conversion. In their response to Appellees’
motion to dismiss, Appellants claim they did not discover the conversion until 2017.
Viewing this evidence in a light most favorable to Appellants, we cannot find that
the claim is outside the statute of limitations. However, Appellees also argued that
Appellants failed to plead the claim of fraud with specificity. “In all averments of
fraud or mistake, the circumstances constituting fraud or mistake shall be stated with
particularity.” Civ.R. 9(B). “Generally, to satisfy the particularity requirement of
Civ.R. 9(B), a plaintiff should plead the time, place, and content of the false
representation, the fact misrepresented, and the nature of what was obtained or given
as a consequence of the fraud.” Meehan v. Mardis, 1st Dist. Hamilton No. C-
180406, 2019-Ohio-4075, ¶ 20. Here, the complaint merely stated that “[o]n or
about June 5, 2012, [David], through fraud converted $20,000.00 which had been
set aside by Newton E. Swartzmiller and Betty A. Swartzmiller for [Appellants].”
Doc. 2 at 2. No specificity was given as to what actions comprised the fraud. Thus,
it was not pled with specificity. A review of the judgment entry does not show that
the trial court specifically ruled on this question. As this is a de novo review, this
court can determine that the claim of fraudulent conversion of the cash could be
dismissed for failure to state a claim upon which relief could be granted. Sutton
-5- Case No. 13-19-33
Funding, LLC v. Herres, 188 Ohio App.3d 686, 2010-Ohio-3645, ¶ 50, 936 N.E.2d
574. “[A] failure to specifically plead the operative facts that form the basis of a
fraud claim renders the claim defective.” Wick v. Ach, 1st Dist. Hamilton No. C-
180243, 2019-Ohio-2405, ¶ 12. Despite the dismissal for failure to state a claim
being appropriate, the dismissal with prejudice is not. “A dismissal for failure to
state a claim is not a dismissal with prejudice, but a dismissal without prejudice.”
Gallagher v. Borden, Inc., 84 Ohio App.3d 185, 190, 616 N.E.2d 577 (1992). A
dismissal with prejudice is an adjudication on the merits, so a dismissal otherwise
than on the merits is without prejudice. Fletcher v. Univ. Hosp. of Cleveland, 120
Ohio St.3d 167, 2008-Ohio-5379, ¶ 16, 897 N.E.2d 147. “To put this in concrete
terms, a dismissal for failure to state a claim is without prejudice except in those
cases where the claim cannot be pleaded in any other way.” Id. at ¶ 17. Thus, the
trial court erred by dismissing this claim in the complaint with prejudice.
{¶7} The sole assignment of error is affirmed as to the dismissal with
prejudice of the claim of fraudulent transfer of the real estate due to the claim being
outside the statute of limitations. The sole assignment of error is reversed as to the
dismissal with prejudice of the claim of fraudulent conversion of money. That claim
should have been dismissed without prejudice for failure to plead a fraud claim with
particularity.
-6- Case No. 13-19-33
{¶8} Having reviewed the particulars assigned and argued, the judgment of
the Court of Common Pleas of Seneca County is affirmed in part and reversed in
part and the matter is remanded for further proceedings in accord with this opinion.
Judgment Affirmed in Part And Reversed in Part
SHAW P.J. and ZIMMERMAN J., concur.
/hls
-7-