Estate of Szabrak v. Ley

2026 Ohio 991

• Court: Ohio Court of Appeals
• Decided: March 23, 2026
• Docket: 2025 CA 0080
• Status: Published

Opinion

[Cite as Estate of Szabrak v. Ley, 2026-Ohio-991.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

ESTATE OF LAWRENCE SZABRAK, ET AL. Case No. 2025 CA 0080

Plaintiffs - Appellants Opinion And Judgment Entry

-vs- Appeal from the Richland County Court of Common Pleas, CAROLYN S. LEY, ET AL. Case No. 2024 CV 394N

Defendants – Appellees Judgment: Affirmed

Date of Judgment Entry: March 23, 2026

BEFORE: CRAIG R. BALDWIN, P.J., ROBERT G. MONTGOMERY, J., & KEVIN W. POPHAM, J.; Appellate Judges

APPEARANCES: CHARLES M. ELSEA, DANIEL J. FRUTH, KATHRYN M. MCILROY, for Plaintiffs-Appellants; DAVID N. HARING for Defendants-Appellees

OPINION

Popham, J.,

{¶1} Appellants in this case are the Estate of Lawerence E. Szabrak and Lawrence

Szabrak’s children, Donna Allen, Laura Gallagher, Diane Middeke, William Szabrak, and

Richard Szabrak (collectively, “the Szabrak Plaintiffs”). Appellees are Carolyn Ley and

her son Michael Vogel. Appellants appeal the judgment entries of the Richland County

Court of Common Pleas granting Ley and Vogel’s motion to strike and granting Ley and

Vogel’s motion for summary judgment. For the reasons below, we affirm. Facts & Procedural History

{¶2} Decedent Lawrence Szabrak (“Decedent”) and Ley met in 2005, developed

a friendship, and later began dating. Their romantic relationship continued until

Decedent’s death on December 24, 2023.

{¶3} In 2012, Decedent purchased a home located at 1385 Royal Oak Trail in

Mansfield, Ohio (the “Property”). He purchased the home using his own funds. Decedent

and Ley continued living in their separate homes until 2013, at which time Ley moved

into the Royal Oak home with Decedent and remained there until February of 2024.

{¶4} In October 2013, Decedent consulted with Attorney Jon Burton (“Burton”).

Decedent informed Burton that he wanted to leave his estate to his children, but wanted

Ley to have a present interest in the Property so she would feel that his home was also her

home. Burton and Decedent discussed granting Ley a life estate and preparing transfer-

on-death affidavits benefiting Decedent’s children. However, instead of granting Ley a

life estate, Decedent chose to convey a one-half interest in the Property to Ley by quit-

claim deed.

{¶5} Burton prepared the estate planning documents for Decedent. On October

31, 2013, Decedent executed the following documents at Burton’s office: (1) A Last Will

and Testament leaving his entire estate to his children; (2) A quit-claim deed conveying

an undivided one-half interest in the Property to Decedent and Ley, which was recorded

with the Richland County Recorder on November 4, 2013; (3) an “explanatory affidavit,”

which was not recorded, stating that Decedent’s conveyance of a one-half interest in the

Property to Ley was not intended as a gift but rather to provide Ley with a residence for

her lifetime and that Decedent intended for Ley’s half-interest to transfer to his children

upon her death or upon her ceasing to reside at the Property; and (4) a Transfer on Death Affidavit designating Decedent’s children as beneficiaries of his one-half interest in the

Property, which was recorded on November 4, 2013.

{¶6} On the same day, Ley executed a Transfer on Death Affidavit designating

Decedent’s children as beneficiaries of her respective future interests in her undivided

one-half interest in the Property. This affidavit was also recorded on November 4, 2013.

{¶7} Ley testified that she and Decedent never discussed the Transfer of Death

affidavits as part of the agreement for Decedent to transfer her an interest in the Property

and that she simply signed the documents Burton provided to her in October of 2013.

{¶8} In 2015, Ley engaged in her own estate planning with Burton. On February

11, 2015, Ley executed a second Transfer on Death Affidavit (“Second TOD Affidavit”).

The affidavit was recorded with the Richland County Recorder on February 17, 2015. This

affidavit revoked any prior beneficiary designations and instead designated Vogel as the

beneficiary who would receive title to Ley’s one-half interest in the Property upon her

death.

{¶9} In her deposition, Ley testified that Decedent told her he did not care what

she did with her interest in the Property and that Decedent knew that she executed the

Second TOD Affidavit. The Szabrak Plaintiffs dispute this testimony.

{¶10} Decedent died on December 24, 2023. The Estate of Lawrence Szabrak was

opened on May 16, 2024, and Richard was appointed executor of the estate on May 18,

2024.

{¶11} On August 8, 2024, Decedent’s estate, and each one of Decedent’s children

individually, filed a complaint against Ley and Vogel – asserting the following claims:

Count 1 – Fraudulent Inducement; Count 2 – Constructive Trust; Count 3 – Resulting

Trust; and Count 4 – Partition. {¶12} Ley and Vogel filed a motion for summary judgment. The Szabrak Plaintiffs

filed their own motion for summary judgment. The parties subsequently filed responses

and replies.

{¶13} Attached to the Szabrak Plaintiffs’ motion for summary judgment were

transcriptions of two conversations - dated November 23 and 28, 2023 - purportedly

involving Decedent and recorded on cell phones. Richard executed an affidavit stating

that the individuals present during the November 23, 2023, conversation were himself,

Decedent, William, and Ley. Richard further stated that he recorded the conversation on

his phone and that the audio recording accurately portrays the conversation.

{¶14} William executed an affidavit stating that the individuals present during the

November 28, 2023, conversation were himself and Decedent. William likewise stated

that he recorded the conversation on his phone and that the audio recording accurately

portrays the conversation.

{¶15} Ley and Vogel filed a motion to strike unsworn statements of Decedent. On

August 5, 2025, the trial court granted the motion – striking the Decedent’s recorded

statements1.

{¶16} On August 21, 2025, the trial court issued a judgment entry granting Ley

and Vogel’s motion for summary judgment and denying the Szabrak Plaintiffs’ motion for

summary judgment. The trial court provided four reasons why the Szabrak Plaintiffs’

fraudulent inducement claim failed: (1) the claim was barred by the statute of limitations;

(2) the Szabrak Plaintiffs failed to plead fraud with particularity as required by Civil Rule

9(B); (3) the allegedly fraudulent representations were not made to any of the plaintiffs

1The cell phone recordings were presented to a court reporter, who prepared transcripts of the recordings, which were submitted with the affidavits. to induce them to act; and (4) the Szabrak Plaintiffs failed to produce any Civil Rule 56

evidence to rebut the Civil Rule 56 evidence presented by Ley and Vogel.

{¶17} The trial court also found that, because the Szabrak Plaintiffs, Ley, and

Vogel had all been divested of their interests in the Property due to its subsequent sale to

a third-party purchaser, no cause of action for partition would lie.

{¶18} Finally, the trial court found that the resulting trust and constructive trust

claims asserted in the Szabrak Plaintiffs’ complaint were equitable remedies rather than

stand-alone causes of action and were premised on the fraudulent inducement claim.

Because the fraudulent inducement claim was time-barred, those equitable remedies

were likewise time-barred. The court therefore concluded that, with no remaining claims

upon which to impose an equitable remedy, Ley and Vogel were entitled to summary

judgment on those claims.

{¶19} The Szabrak Plaintiffs appeal the judgment entries of the Richland County

Court of Common Pleas and assign the following as error:

{¶20} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY FINDING

THAT REASONABLE MINDS COULD NOT CONCLUDE THAT DEFENDANT-

APPELLEE CAROLYN S. LEY TOOK THE SUBJECT REAL ESTATE BY LEGAL TITLE

ONLY, WITH BENEFICIAL OWNERSHIP SUBJECT TO A RESULTING TRUST.”

{¶21} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW BY GRANTING

DEFENDANTS-APPELLEES’ MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS-

APPELLANTS’ CLAIM FOR FRAUDULENT INDUCEMENT BECAUSE PROPER AND

SUFFICIENT EVIDENCE EXISTS OF CONTINUOUS ACTS OF FRAUDULENT

ACTIVITY WITHIN FOUR YEARS BEFORE THE UNDERLYING ACTION WAS

INITIATED IN THE TRIAL COURT.” {¶22} “III. THE TRIAL COURT ERRED AS A MATTER OF LAW BY GRANTING

DEFENDANTS-APPELLEES’ MOTION FOR SUMMARY JUDGMENT ON

PLAINTIFFS’-APPELLANTS’ CLAIM FOR PARTITION BECAUSE THE TRIAL COURT

RETAINED JURISDICTION TO EQUITABLY DIVIDE THE PROCEEDS OF THE SALE

OF THE PROPERTY.”

{¶23} “IV. THE TRIAL COURT ERRED AS A MATTER OF LAW BY GRANTING

DEFENDANTS-APPELLEES’ MOTION TO STRIKE UNSWORN STATEMENTS OF

LAWERENCE SZABRAK BECAUSE THE STATEMENTS WERE ADMISSIBLE

EVIDENCE OF LAWRENCE SZRABRAK’S INTENT.”

{¶24} For ease of discussion, we will address the assignments of error out of order.

In the Szabrak Plaintiffs’ first, second, and third assignment of errors, they contend the

trial court committed error in granting Ley and Vogel’s motion for summary judgment.

Summary Judgment Standard

{¶25} Civil Rule 56 states, in pertinent part:

Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits,

transcripts of evidence, and written stipulations of fact, if any, timely filed

in the action, show that there is no genuine issue of material fact and that

the moving party is entitled to judgment as a matter of law. No evidence or

stipulation may be considered except as stated in this rule. A summary

judgment shall not be rendered unless it appears from the evidence or

stipulation, and only from the evidence or stipulation, that reasonable

minds can come to but one conclusion and that conclusion is adverse to the

party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly

in the party’s favor. A summary judgment, interlocutory in character, may

be rendered on the issue of liability alone although there is a genuine issue

as to the amount of damages.

{¶26} Summary judgment may be granted only after the trial court determines

that: (1) no genuine issues as to any material fact remain to be litigated; (2) the moving

party is entitled to judgment as a matter of law; and (3) it appears from the evidence that

reasonable minds can come to but one conclusion and, viewing such evidence most

strongly in favor of the party against whom the motion for summary judgment is made,

that conclusion is adverse to that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317

(1977). A court may not resolve any ambiguities in the evidence presented. Inland Refuse

Transfer Co. v. Browning-Ferris Inds. Of Ohio, Inc., 15 Ohio St.3d 321, 322 (1984).

{¶27} A genuine issue of fact exists when “the evidence is such that a reasonable

jury could return a verdict for the non-moving party.” DayCab Co., Inc. v. Prairie

Technology, LLC, 67 F.4th 837, 846 (6th Cir. 2023) (quotations omitted); Lang v. THK

Mfg. of Am., Inc., 2025-Ohio-4811 (5th Dist.). Summary judgment consists of a burden-

shifting framework. Dresher v. Burt, 75 Ohio St.3d 280, 294 (1996). The movant bears

the initial burden of demonstrating the absence of genuine issues of material fact

concerning the essential elements of the nonmoving party’s case. Id. Once this burden is

met, the burden shifts to the nonmoving party. Id. According to Civil Rule 56(E), the

nonmoving party may not rest on mere allegations or denials in their pleadings but must

set forth specific facts showing a genuine issue for trial. Id. at 293.

{¶28} When reviewing a trial court’s decision to grant summary judgment, an

appellate court applies the same standard used by the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 35 (1987). This means we review the matter de novo. Doe

v. Shaffer, 90 Ohio St.3d 388, 390 (2000).

II.

{¶29} In their second assignment of error, the Szabrak Plaintiffs argue the trial

court erred in granting summary judgment to Ley and Vogel on their claim for fraudulent

inducement. We disagree.

{¶30} A claim for fraudulent inducement arises when a party is induced to enter

into an agreement through fraud or misrepresentation. Abm Farms v. Woods, 81 Ohio

St.3d 498 502 (1997). “The fraud relates not to the nature or the purport of the [contract],

but to the facts inducing its execution …”. Id.

Statute of Limitations

{¶31} Claims for fraudulent inducement are governed by the four-year statute of

limitations set forth in R.C. 2305.09.

{¶32} Under Ohio law, the “discovery rule” generally provides that a cause of

action accrues when the plaintiff discovers, or in the exercise of reasonable diligence

should have discovered, the injury. Investors Reit One v. Jacobs, 46 Ohio St.3d 176, 179

(1989). In determining whether fraud should have been discovered through reasonable

diligence, the relevant inquiry is whether the facts known would lead a fair and prudent

person, exercising ordinary care and thoughtfulness, to make further inquiry. Cundall v.

U.S. Bank., 122 Ohio St.3d 188, 194 (2009).

{¶33} Constructive knowledge of facts, rather than actual knowledge of their legal

significance, is sufficient to trigger the running of the statute of limitations. Id. It is the

knowledge of the facts – not knowledge of legal theories – that begins the limitations

period. Id. {¶34} The Szabrak Plaintiffs were placed on constructive notice when the Second

TOD Affidavit was recorded in 2015. Emrick v. Multicon Builders, 57 Ohio St.3d 107, 109

(1991). “Recordation gives constructive notice to all persons dealing with the land of

properly recorded instruments in the chain of title.” Wilson Court 2, LLC v. Suarez,

2020-Ohio-5074, ¶ 38 (5th Dist.); Deutsche Bank Nat’l Trust Co. v. Hill, 2015-Ohio-1575,

¶ 29 (5th Dist.). “It is the object and purpose of recording . . . to furnish notice to the

world of the existence of the instrument.” U.S. Bank, N.A. v. Mitchell, 2018-Ohio-4887,

¶ 17 (2nd Dist.).

{¶35} Because the Second TOD Affidavit was recorded in February of 2015, the

Szabrak Plaintiffs were charged with constructive notice at that time. The complaint, filed

in 2024, was, therefore, filed well beyond the expiration of the four-year statute of

limitations, R.C. 2305.09, in 2019.

Continuing Violation

{¶36} The Szabrak Plaintiffs argue their claim falls within the continuing violation

exception to the four-year statute of limitations.

{¶37} When a continuing violation is alleged, a cause of action accrues each time

the plaintiff is injured by an act of the defendant, and the statute of limitations does not

begin to run until the tortious conduct ceases. Mason v. Bowman, 2010-Ohio-2325, ¶ 12

(10th Dist.). A continuing violation requires continual unlawful acts that cause ongoing

damage until the conduct stops. Craver v. Doogan, 2006-Ohio-1783, ¶ 11 (12th Dist.).

{¶38} However, even when a continuing violation is alleged, an overt act by the

defendant is required to restart the statute of limitations. Grand Rapids Plastics, Inc. v.

Lakian, 188 F.3d 401, 406 (6th Cir. 1999). Such an overt act must: (1) constitute a new

and independent act, rather than merely a reaffirmation of a prior act, and (2) inflict new and accumulating injury upon the plaintiff. Id. A continuing violation exists when there

are ongoing unlawful acts; it does not exist when there are merely ill effects from an earlier

violation. Ashiegbu v. Purviance, 74 F.Supp.2d 740, 748 (S.D. Ohio 1998).

{¶39} The Szabrak Plaintiffs contend their complaint sufficiently alleges a

continuous tort theory, with continual fraudulent activity by Ley, the latest of which

occurred in November of 2023. The problem with this argument is that the Szabrak

Plaintiffs failed to allege any continuing fraud or continuing tort activity in their

complaint. Likewise, the complaint does not contain the November 2023 date. Rather,

the complaint only references three time periods: (1) the execution of the quit-claim deed

and related estate documents in 2013; (2) the execution of the Second TOD Affidavit in

2015; and (3) the date of Decedent’s death in December of 2023.

{¶40} The allegations in the complaint demonstrate that the fraudulent

inducement claim is based entirely on events occurring in 2013 or 2015. The Szabrak

Plaintiffs allege that Decedent granted Ley an interest in the Property in 2013 based upon

her representation that she would pass her interest to his children upon her death, and

that Decedent relied upon her representation and otherwise would not have granted Ley

an interest in the Property had he known about her intention to transfer her interest to

Vogel. They further allege that Ley “surreptitiously” executed the Second TOD Affidavit

in 2015 naming Vogel as beneficiary.

{¶41} The remedy the Szabrak Plaintiffs seek confirms this timeline. They request

that the quit-claim deed recorded in 2013 be voided and that the Second TOD Affidavit

be declared invalid.

{¶42} The only allegation in the complaint regarding Ley’s actions after 2015 is

that, during his “final illness”, Decedent “confronted Ley about the deal they had relative to the Property requiring Ley to further convey her interest to each of Lawrence Szabrak’s

children upon her death.”

{¶43} As detailed below, any alleged fraud stemming from this incident is not pled

with particularity. Further, this allegation does not establish a continuing violation

because it does not allege a new or independent act by Ley. Rather, it merely references

the alleged agreement made in 2013. Nor does this allegation demonstrate any new or

accumulating injury. The alleged injury – the loss of Decedent’s children’s interest in

Ley’s one-half interest in the Property – occurred, at the latest, when Ley executed and

recorded the Second TOD Affidavit in 2015.

{¶44} Accordingly, the trial court did not err in concluding that no continuing

fraud or continuing tort existed to extend the four-year statute of limitations.

Deposition Testimony

{¶45} The depositions of Decedent’s children further confirm that the fraudulent

inducement claim is based on events occurring in 2013 or 2015.

{¶46} William testified that the fraudulent inducement claim arises from Ley’s

alleged agreement that her one-half interest in the Property would pass to Decedent’s

children and her subsequent decision to change the TOD beneficiary in 2015. Richard

testified that the alleged fraudulent act occurred when Ley completed the estate planning

paperwork with Decedent in 2013 and later changed the TOD beneficiary in 2015.

{¶47} Diane testified that the fraud claim was based on Ley’s failure to contribute

money toward the Property and Ley’s decision to change the TOD beneficiary in 2015.

Laura testified that she believes Ley committed fraud by executing the Second TOD

Affidavit naming her son as beneficiary in 2015. {¶48} This testimony confirms that the alleged fraudulent conduct occurred no

later than 2015.

{¶49} Because there is no genuine issue of material fact regarding the accrual date

of the fraudulent inducement claim, the trial court did not err in concluding the claim is

barred by the four-year statute of limitations.

Constructive Trust

{¶50} Contained within this assignment of error is an argument by the Szabrak

Plaintiffs that, because the trial court erred in barring their fraudulent inducement claim,

it likewise erred by denying their request for a constructive trust.

{¶51} The Supreme Court of Ohio has held, “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.” Cundall v. U.S. Bank, 122 Ohio

St.3d 188, 196 (2009).

{¶52} Because the underlying fraudulent inducement claim is time-barred, the

request for a constructive trust is likewise barred.

Pleading Fraud with Particularity

{¶53} A plaintiff alleging fraud must plead the circumstances constituting fraud

with particularity. Civ.R. 9(B); Ettayem v. H.E.R., LLC, 2020-Ohio-4647 (5th Dist.). The

circumstances constituting fraud include the time, place, and content of the false

representation; the fact misrepresented; the identity of the individual making the

representation; and the nature of what was obtained or given as a result of the fraud. Id.

{¶54} This Court has previously found that fraud complaints are not pled with

particularity when the allegations contained in the complaint are general. First-Knox

Nat’l Bank v. MSD Props., Ltd., 2015-Ohio-4574 (5th Dist.) (general allegation that appellants were misled when they entered a lease did not plead fraud with particularity);

Advanced Prod. Ctr., Inc. v. Emco Maier Corp., 2003-Ohio-6206 (5th Dist.) (complaint

failing to allege time or place of the false representation and failing to set forth the

individual who made the false representation was insufficient); Miller v. Med. Mut. of

Ohio, 2013-Ohio-3179 (5th Dist.) (fraud complaint not pled with particularity when failed

to identify contents of allegations, when allegations made, the falsity of the allegations).

{¶55} We agree with the Szabrak Plaintiffs that, when the allegations contained in

the “Facts Common to All Claims” section of the complaint are considered together with

the allegations contained in the “Fraudulent Inducement” section, the complaint

sufficiently pleads fraud with respect to the events occurring in 2013. However, as

discussed above, any claim arising from those events is barred by the four-year statute of

limitations.

{¶56} In an attempt to overcome the statute of limitations, the Szabrak Plaintiffs

argue that their complaint also pleads a theory of “continuing fraud” that extended into

November of 2023. The complaint, however, contains no allegation of a “continuing

fraud” and does not identify any specific instances of fraud or alleged misrepresentations

occurring in 2023. The November 2023 date cited by the Szabrak Plaintiffs likewise does

not appear in the complaint. Civil Rule 9(B) does not permit allegations of fraud by

inference. Wolff v. Dunning Motor Sales, 2021-Ohio-740, ¶ 46 (5th Dist.).

{¶57} The only allegation in the complaint referencing events occurring after 2013

or 2015 states: “[j]ust weeks prior to his death in his final illness, Lawerence Szabrak

confronted Defendant Ley about the deal they had relative to the Property requiring Ley

to further convey her interest to each of Lawrence Szabrak’s children upon her death.”

This allegation does not provide the time, place, or content of any false representation, identify the fact misrepresented, or describe what Ley obtained as a result of the alleged

fraud that occurred after Decedent deeded one-half interest in the Property to her.

Accordingly, the complaint does not plead any fraud occurring in 2023 or any “continuing

fraud” with the particularity required by Civil Rule 9(B).

{¶58} The complaint therefore fails to plead any fraudulent conduct beyond the

events occurring in 2013 or 2015. Because Civil Rule 9(B) requires fraud to be pled with

particularity, the Szabrak Plaintiffs cannot now assert new theories of fraud that were not

included in their complaint. Coleman v. Galati, 2017-Ohio-8034, ¶ 19 (5th Dist.).

Duty to Disclose and Damages

{¶59} The depositions of Decedent’s children confirm that Ley never made any

affirmative representations to them regarding what she intended to do with her one-half

interest in the Property. Nevertheless, Decedent’s children argue that Ley had a duty to

disclose that she executed the Second TOD Affidavit and that the alleged fraudulent

inducement arises from Ley’s intentional omission that she intended to change the

beneficiary of her undivided one-half interest in the Property. Whether a duty to disclose

exists is a question of law. Crawford v. Stan, 2012-Ohio-3624, ¶ 18 (5th Dist.).

{¶60} Fraud based on nondisclosure exists only where the defendant has a duty to

disclose. Advanced Prods. Ctr., 2003-Ohio-6206 at ¶ 14. “The duty to disclose arises

when one party has information that the other party is entitled to know because of a

fiduciary or another similar relation of trust and confidence between them.” Strategy

Group for Media v. Lowden, 2013-Ohio-1330, ¶ 28 (5th Dist.). While a fiduciary

relationship may arise from an informal relationship, such a relationship exists only

where both parties understand that a “special trust or confidence has been reposed.”

Umbaugh Pole Bldg. Co. v. Scott, 58 Ohio St.2d 282, 282 (1979). {¶61} The deposition testimony of Decedent’s children establishes that they did

not have such a relationship with Ley. Each described their relationship with her as “not

close” or “not good.” Accordingly, no fiduciary or confidential relationship existed that

would create a duty for Ley to disclose information to them.

{¶62} Moreover, a party cannot maintain a fraud action where the alleged

misrepresentations were not made directly to the party for the purpose of inducing that

party to act. Baddour v. Fox, 2004-Ohio-3059, ¶ 41 (5th Dist.). None of Decedent’s

children testified that Ley made any affirmative representations to them, let alone that

they were induced to act by any such representation. Accordingly, Decedent’s children

have failed to state a valid cause of action for fraudulent inducement. Wells v. Cook, 16

Ohio St. 67, 68 (1865); Sooy v. Ross Incineration Services, 1999 Ohio App. LEXIS 4889

(9th Dist.).

{¶63} The relationship between Decedent and Ley, however, was one that

arguably involved trust and confidence, potentially giving rise to a duty to disclose.

Decedent’s Fraudulent Inducement Claim

{¶64} The only party to whom Ley arguably owed a duty to disclose was Decedent.

Decedent is a party to this action through the inclusion of his estate as a plaintiff. Even

construing the evidence in the light most favorable to Decedent, we find no genuine issue

of material fact exists as to his fraudulent inducement claim.

{¶65} To prevail on a claim for fraudulent inducement, one must show, by clear

and convincing evidence: (1) a representation (or concealment of a fact when there is a

duty to disclose); (2) that is material to the transaction at hand; (3) made falsely, with

knowledge of its falsity or with such utter disregard and recklessness as to whether it is

true or false that knowledge may be inferred, (4) with intent to mislead another into relying upon it; (5) justifiable reliance; and (6) resulting injury proximately caused by the

reliance. Volbers-Klarich v. Middletown Mgmt., Inc., 2010-Ohio-2057, ¶ 27.

{¶66} A claim for fraudulent inducement arises when a party is induced to enter

into an agreement through fraud or misrepresentation. Abm Farms, 81 Ohio St.3d at

502. The only transaction executed by Decedent in this case was the quit-claim deed

conveying a one-half interest in the Property to Ley in 2013. As discussed above, any

claim arising from that transaction is barred by the four-year statute of limitations.

{¶67} During the November 28, 2023, conversation, Decedent discussed writing

Ley a $20,000 check for upkeep of the Property for the period during which Ley chose to

stay at the Property. It is undisputed, however, that Decedent never wrote such a check.

{¶68} Once the quit-claim deed was executed in 2013, the “transaction” was

complete. Any later statements or omissions by Ley could not have induced Decedent to

execute the deed. Decedent therefore could not have justifiably relied on any statements

or omissions by Ley occurring after October 31, 2013, because the act of transferring the

one-half interest in the Property had already been completed.

{¶69} Similarly, Ley’s allegedly “surreptitious” execution and recording of the

Second TOD Affidavit in 2015 cannot serve as the basis for a fraudulent inducement claim

by Decedent. That act occurred after the property interest had already been transferred

and, therefore, could not have induced the transfer.

{¶70} Nor have the Szabrak Plaintiffs demonstrated that Decedent suffered any

damages as a result of Ley’s alleged conduct. The only damages identified in the

complaint (“caused harm to the rightful beneficiaries of the Property by losing half of their

interest in said Property upon Decedent’s death”) and in the deposition testimony are that

Decedent’s children lost their expected interest in Ley’s one-half interest in the Property. However, a plaintiff “fails to state a valid cause of action for fraud when he alleges that a

third party relied on misrepresentations made by a defendant and that he suffered injury

from the third party’s reliance.” Moses v. Sterling Commerce Am., Inc., 2002-Ohio-4327,

¶ 15 (10th Dist.); Lucarell v. Nationwide Mut. Ins. Co., 2018-Ohio-15, ¶ 6. This is because

“the elements of fraud must be directed against the alleged victim.” Moses, 2002-Ohio-

4327 at ¶ 15. Because the alleged injury concerns the interests of Decedent’s children

rather than Decedent himself, Decedent, through his estate, cannot establish the required

elements of a fraudulent inducement claim.

{¶71} Accordingly, Decedent’s estate has failed to establish a prima facie case of

fraudulent inducement.

{¶72} For the above-detailed reasons, the Szabrak Plaintiffs’ second assignment

of error is overruled.

III.

{¶73} In their third assignment of error, the Szabrak Plaintiffs contend the trial

court erred in granting summary judgment to Ley on their partition claim. We disagree.

{¶74} “Under Ohio law, an owner in fee simple has the right, pursuant to R.C.

5307.01 through R.C. 5307.25, to seek partition of land in which he has an interest.”

Bryan v. Looker, 94 Ohio App.3d 228, 231 (3rd Dist. 1994). Although an action for

partition is equitable in nature, it is ultimately controlled by statute. Thrasher v. Watts,

2011-Ohio-2844, ¶ 24 (2nd Dist.); Russell v. Russell, 137 Ohio St. 153 (1940). While

courts may apply equitable principles in order to ensure an equitable partition, they must

still comply with the statutory procedures set forth in R.C. Chapter 5307. Id.

{¶75} R.C. 5307.01 provides that “tenants in common, survivorship tenants, and

coparceners, of any estate in lands . . . may be compelled to make or suffer partition thereof as provided in sections 5307.01 to 5307.25 of the Revised Code.” Here, Ley and

the Szabrak Plaintiffs are no longer tenants in common because the Property has been

sold to an unrelated, third-party purchaser.

{¶76} To obtain partition, the plaintiff must demonstrate: (1) title to some part of

the real estate and (2) possession of the property or an immediate right to possession.

Lauer v. Green, 99 Ohio St. 20, 20 (1918); Bryan, 94 Ohio App.3d at 231; Wyckoff v.

Wyckoff, 2009-Ohio-4740, ¶ 12 (5th Dist.). As this Court has previously held, only one

who has the right of entry has a right to seek partition. Wyckoff, 2009-Ohio-4740, ¶ 12,

citing Tabler v. Wiseman, 2 Ohio St. 207 (1853). “Possession or immediate right to

possession is essential to a right of partition.” Adkins v. Adkins, 97 Ohio App. 185, 186

(10th Dist. Feb. 8, 1954).

{¶77} To be sure, the Property was sold and deeded to an unrelated third-party

purchaser. As a result, neither the Szabrak Plaintiffs nor Ley possess the Property, nor do

they have an immediate right to possession or right of entry.

{¶78} Additionally, neither party retains title to any portion of the Property. The

parties’ co-tenancy was extinguished when the Property was conveyed to the third-party

purchaser. Because the co-tenancy has been extinguished, the Szabrak Plaintiffs no

longer have a right to seek partition. Alpers v. Alpers, 1993 Ohio App. LEXIS 6078, at *8

(11th Dist. Dec. 17, 1993) (once co-tenancy extinguished, appellant has no right to a

partition); Reel v. Reel, 2016-Ohio-8116 ¶ 41 (11th Dist.) (“the right to partition depends

solely upon the existence of the privity of estate, i.e., the existence of a cotenancy”); Mace

v. Mace, 2023-Ohio-2761 (4th Dist.).

{¶79} Because the Szabrak Plaintiffs have failed to demonstrate that they possess

both (1) title to some portion of the real estate and (2) possession or the immediate right to possession of the Property, they have not satisfied the threshold requirements

necessary to bring a partition action. Wyckoff, 2009-Ohio-4740 at ¶ 12.

Mootness

{¶80} The trial court also determined that the Szabrak Plaintiffs’ request for a writ

of partition was moot due to the sale of the property. We agree.

{¶81} Courts generally will not resolve issues that have become moot. In re

Brown, 2005-Ohio-2425, ¶ 15 (10th Dist.). Actions are moot “when they are or have

become fictitious, colorable, hypothetical, academic, or dead.” Grove City v. Clark, 2002-

Ohio-4549, ¶ 11 (10th Dist.). “A moot case is one which seeks to get a judgment on a

pretended controversy, when in reality there is none, or a decision in advance about a

right before it has been actually asserted and contested, or a judgment upon some matter

which, when rendered, for any reason cannot have any practical legal effect upon a then-

existing controversy.” Id.

{¶82} Mootness presents a jurisdictional issue because courts are tasked with

resolving adversarial legal disputes and issuing judgments capable of being carried into

effect. Cyran v. Cyran, 2018-Ohio-24, ¶ 9, citing Fortner v. Thomas, 22 Ohio St.2d 13,

14 (1970).

{¶83} The Supreme Court of Ohio has stated, “an event that causes a case to be

moot may be proved by extrinsic evidence outside the record.” State ex rel. Nelson v.

Russo, 89 Ohio St.3d 227, 228 (2000), quoting Pewitt v. Lorain Corr. Ins., 64 Ohio St.3d

470 (1992). Further, an issue or question can be found moot due to a new fact or change

in the circumstances of a case. State ex rel. Ryant Comm. v. Lorain Cty. Bd of Elections,

86 Ohio St.3d 107 (1999). {¶84} To issue a writ of partition, a trial court must determine that the plaintiff

has a legal interest in the property. R.C. 5307.04. Because the Property in this case has

already been sold to a third party, the Szabrak Plaintiffs no longer possess any legal

interest in the Property. Accordingly, the trial court cannot issue a writ of partition. In

their complaint, the Szabrak Plaintiffs request a “forced sale” of the Property. However,

because the Property has already been sold, a forced sale pursuant to R.C. Chapter 5307

is no longer possible.

{¶85} Moreover, once a court orders partition, several statutory procedures must

be followed before a sale may occur, including appraisal and sale procedures set forth in

R.C. 5307.09, 5307.11, and 5307.12. The Szabrak Plaintiffs essentially request that the

trial court equitably divide the proceeds from the completed sale pursuant to R.C. 5307.14

without complying with the remainder of R.C. Chapter 5307.

{¶86} Although courts possess certain equitable powers in partition actions, those

powers cannot override the statutory procedures governing partition. Redmon v. Surina,

2005-Ohio-2472, ¶ 13 (4th Dist.); Thrasher v. Watts, 2011-Ohio-2844, ¶ 24 (2nd Dist.).

Because the Property has already been sold, the statutory requirements for partition

cannot be satisfied, and the issuance of a writ of partition would have no practical effect.

{¶87} Accordingly, the trial court did not err in concluding that the Szabrak

Plaintiffs’ request for partition was moot.

Nature of the Claim

{¶88} In determining the applicable statute of limitations, courts examine the

actual nature of the claim rather than the form in which it is pled. Hambleton v. R.G.

Barry Corp., 12 Ohio St.3d 179, 183 (1984). “The grounds for bringing the action are the

determinative factors; the form is immaterial.” Id. It is well settled that a “party cannot transform one cause of action into another through clever pleading or an alternative

theory of law in order to avail itself of a more satisfactory statute of limitations.” Id.

{¶89} Here, the Szabrak Plaintiffs’ partition claim rests on the assertion that they

possess a legal or equitable interest in Ley’s one-half interest in the Property that must be

distributed to them pursuant to R.C. 5307.14. That asserted interest arises from the

alleged agreement in 2013 that Ley would transfer her interest to Decedent’s children

upon her death and from the claim that Ley fraudulently induced Decedent to convey the

property interest to her.

{¶90} Thus, the partition claim is predicated upon the same alleged fraudulent

conduct underlying the fraudulent inducement claim. The Szabrak Plaintiffs cannot

recast a fraud claim as a partition claim in order to avoid the applicable statute of

limitations, particularly where they also seek to bypass the statutory procedures

contained in R.C. Chapter 5307.

Equity

{¶91} Finally, this Court has recognized that, in partition actions, “where the

rights of the parties are not clearly defined in law, broad equitable principles of fairness

apply and will determine the outcome of each case individually.” Seese v. Clark, 2016-

Ohio-3443, ¶ 23 (5th Dist.). However, where the parties’ rights are clearly defined and

established by law, “the equity follows the law.” JPMorgan Chase Bank, N.A. v. Jackson,

2014-Ohio-320, ¶ 27 (5th Dist.).

{¶92} In this case, Decedent chose to convey to Ley an undivided one-half interest

in the Property through a quit-claim deed. Decedent’s attorney (Burton) avers that during

estate planning discussions in 2013, Decedent considered alternative arrangements,

including granting Ley a life estate and executing a transfer on death affidavit naming his children as beneficiaries. Instead, Decedent specifically elected to convey a one-half

interest to Ley through a quit-claim deed.

{¶93} A quit-claim deed “has the force and effect of a deed in fee simple to the

grantee, the grantee’s heirs, assigns, successors . . . without covenants of any kind on the

part of the grantor.” R.C. 5302.11. Because the parties’ rights were clearly established by

law, the trial court correctly determined that broad equitable principles do not alter the

legal effect of the deed.

{¶94} For these reasons, the trial court did not err in granting summary judgment

to Ley on the Szabrak Plaintiffs’ partition claim. The Szabrak Plaintiffs’ third assignment

I.

{¶95} In their first assignment of error, the Szabrak Plaintiffs argue the trial court

committed erred in granting summary judgment to Ley and Vogel on their resulting trust

claim. We disagree.

{¶96} A resulting trust is a type of implied trust that a court of equity declares to

exist when legal title to property is transferred or acquired by one under facts and

circumstances indicating that the beneficial interest was not intended to be enjoyed by

the holder of the legal title. Ohman v. Ohman, 2001-Ohio-7050, * 7 (5th Dist.). A

resulting trust “has historically been applied to three situations: (1) purchase-money

trusts; (2) instances where an express trust does not exhaust the res given to the trustee;

and (3) express trusts which fail, in whole or in part.” First Nat’l Bank of Cincinnati v.

Tenney, 165 Ohio St. 513. 516 (1956).

{¶97} The latter two circumstances are not present in this case, as there was no

attempt to create an express trust. Instead, the Szabrak Plaintiffs contend that a purchase-money resulting trust was created. A purchase-money resulting trust arises

“where a transfer of property is made to one person and the purchase price is paid by

another.” PNC Bank, N.A. v. Lewis, 2013-Ohio-5308, ¶ 10 (5th Dist.).

{¶98} The trial court determined that the Szabrak Plaintiffs’ resulting trust claim

is barred by the statute of limitations because it is based upon the same allegations of

fraud underlying the fraudulent inducement claim. We agree.

{¶99} The applicable statute of limitations is determined by the cause of action

rather than the form of remedy. Id at ¶ 12. “Statutes of limitation attach to causes of

action and not in the remedial form in which the action is brought.” Peterson v. Teodosio,

34 Ohio St.2d 161, 172 (1973). As discussed above, the Szabrak Plaintiffs’ claim for

fraudulent inducement is barred by the four-year statute of limitations set forth in R.C.

2305.09. The equitable remedy of a resulting trust is, therefore, also barred by the statute

of limitations.

{¶100} The Szabrak Plaintiffs argue that the trial court erred because fraud is not

required to impose a resulting trust. Although the Szabrak Plaintiffs included a separate

claim for resulting trust in their complaint, a resulting trust is an equitable remedy, not

an independent claim. PNC Bank, N.A. v. Lewis, 2013-Ohio-5308, ¶ 9 (5th Dist.);

Summers v. Summers, 121 Ohio App.3d 263 (4th Dist. 1997). While it is true that fraud

is not always required for a resulting trust, a resulting trust may only be imposed where

there exists an underlying cause of action that supports the equitable remedy. Id. The

fraudulent inducement claim is barred by the statute of limitations, so that claim no

longer exists. So, too, any equitable remedy arising from a resulting trust no longer exists.

{¶101} The primary case cited by the Szabrak Plaintiffs, Brate v. Hurt, 174 Ohio

App.3d 101 (12th Dist. 2007), involved the imposition of a resulting trust as a remedy for unjust enrichment. However, the Szabrak Plaintiffs did not assert an unjust enrichment

claim in their complaint.

{¶102} The Szabrak Plaintiffs further argue that a resulting trust may be imposed

in connection with the partition claim. As discussed above, the Szabrak Plaintiffs cannot

satisfy the threshold requirements necessary to maintain a partition action.

{¶103} As noted above, the partition action is based upon the same allegations of

fraud – namely, that Ley fraudulently induced Decedent to convey a one-half interest in

the Property in 2013 by promising to transfer the interest to Decedent’s children upon her

death. Because the resulting trust claim arises from the same alleged fraudulent conduct

that occurred in 2013, it is barred by the four-year statute of limitations.

{¶104} Further, an examination of paragraphs 42-45 of the complaint

demonstrates that the Szabrak Plaintiffs specifically sought a resulting trust over Vogel’s

future interest in the Property. They contend that Vogel’s future interest should not be

retained by him as a matter of equity and should instead be placed into a resulting trust

for the benefit of Decedent’s children.

{¶105} However, Vogel never acquired any interest in the Property because Ley was

still alive when the Property was sold. Under R.C. 5302.23(B)(4), “[t]he designation of a

transfer on death beneficiary has no effect on the present ownership of real property, and

a person designated as a transfer on death beneficiary has no interest in the real property

until the death of the owner of the interest.” The Second TOD Affidavit did not transfer

any interest to Vogel, because Vogel’s interest would have vested only upon Ley’s death.

Concord Village Skilled Nursing & Rehab., Ltd. v. Lundquist, 2025-Ohio-5097, ¶ 53 (11th

Dist.); Galavich v. Hales, 2022-Ohio-1121, ¶ 56 (7th Dist.). As a result, there is no

property interest upon which a resulting trust could be imposed. A resulting trust cannot be based on the partition action as it relates to Vogel’s interest because Vogel never had

an interest in the Property, never had title to any part of the Property, and never was in

possession or had the right to immediate possession of the Property.

{¶106} Because a resulting trust is an equitable remedy and there are no

independent claims upon which the Szabrak Plaintiffs could base their request for a

resulting trust, the trial court did not err in granting summary judgment on the Szabrak

Plaintiffs’ request to impose a resulting trust.

IV.

{¶107} In their fourth assignment of error, the Szabrak Plaintiffs argue the trial

court erred in granting Ley’s and Vogel’s motion to strike the unsworn statements

attached to their summary judgment filings. We disagree.

{¶108} The decision whether to grant or deny a motion to strike in the summary

judgment context is governed by the abuse of discretion standard of review. Thiemens v.

Grange Mut. Cas. Co., 2013-Ohio-1643 (5th Dist.); Oeffner v. Marc Glassman, 2025-

Ohio-1610, ¶ 77 (5th Dist.). To find an abuse of discretion, we must find the trial court’s

decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5

Ohio St.3d 217, 219 (1983).

{¶109} Civil Rule 56(C) limits the types of evidence that may be considered on

summary judgment to depositions, answers to interrogatories, written admissions,

transcripts of evidence, and written stipulations of fact. If a document does not fall within

those categories, it may only be considered if it is properly incorporated into an affidavit

that satisfies Civ.R. 56(E). Doe v. Robinson, 2010-Ohio-5894 (6th Dist.) {¶110} The Szabrak Plaintiffs contend that the affidavits of the individuals who

recorded the conversations, in combination with the court reporter’s certification of the

transcripts, is sufficient to meet the requirements contained in Civ.R. 56(E).

{¶111} A creative evidentiary twist to be sure, however, Ohio law supports the trial

court’s determination that unauthenticated recordings and unsworn statements are not

proper Civil Rule 56 evidence. The Doe Court held that Civ.R. 56 does not permit the

submission of unauthenticated tape recordings or unsworn statements in support of

summary judgment. Doe at ¶ 64. Similarly, an affidavit from a person stating that they

were present during a recorded meeting, and that the conversation reflected in the

transcript was accurate, does not transform the recording into proper Civil Rule 56

evidence. Leibold v. City of Columbus, 1977 Ohio App. LEXIS 8173 (10th Dist.).

{¶112} In this case, none of the individuals involved in conversations with

Decedent were placed under oath during the conversations. The statements attributed to

Decedent were not sworn testimony, and Decedent himself did not authenticate the

transcripts. In fact, William testified that neither Decedent nor Ley knew the

conversations were being recorded. The court reporter’s certification does not render the

recordings admissible. The certification merely confirms that the reporter transcribed

the recording; it does not attest to the truth or veracity of the statements contained

therein.

{¶113} Similarly, the affidavits submitted by Decedent’s children do not cure the

defect. Civil Rule 56(E) requires affidavits to be based on “personal knowledge”, which

for purposes of a summary judgment affidavit is defined as “knowledge of truth in regard

to a particular fact or allegation that does not depend on information or hearsay, i.e., it is

knowledge that is original to the affiant.” Whitt v. Wolfinger, 2015-Ohio-2726, ¶ 25 (4th Dist.). Here, Richard and William, as affiants, were not offering their statements - their

own original knowledge – regarding Property issues. And, of course, they could not place

Decedent under oath or attest to the truth and veracity of Decedent’s statements, vis-à-

vis his original knowledge of issues surrounding the Property. Certainly, Richard and

William can attest that Decedent’s statements - made in 2023 while he was hospitalized -

were made in their presence and accurately portrayed the conversation, but they cannot

meet the Civ.R. 56(E) original knowledge requirement. This is nothing more than an

ineffective way to subvert a classic hearsay problem.

{¶114} Accordingly, the trial court did not abuse its discretion in striking the

transcripts of the audio recordings.

Harmless Error

{¶115} Even assuming the trial court erred in striking the transcripts of the

recordings, any such error is harmless.

{¶116} Pursuant to Civil Rule 61, an evidentiary error warrants reversal “only upon

a determination that its admission affected a substantial right or was inconsistent with

substantial justice.” Civil Rule 61; City of Cincinnati v. Banks, 143 Ohio App.3d 272, 290

(1st Dist. 2001). Where the trial court would have reached the same result regardless of

the challenged evidence, the error is harmless. Hallworth v. Republic Steel Corp., 153

Ohio St. 349, 349 (1950).

{¶117} The Szabrak Plaintiffs argue the transcripts of the recordings should have

been admitted because: (1) there is not a hearsay issue because Decedent’s statements are

not offered for the truth of the matter asserted, but are offered to show that Decedent was

not aware that Ley executed the Second TOD Affidavit; or (2) even if Decedent’s

statements are hearsay, they fall within the hearsay exception contained in Evid.R. 804(B)(5) because Decedent’s statements are being used to rebut the statements of Ley

that she told Decedent about the Second TOD Affidavit.

{¶118} However, whether Decedent knew about the Second TOD Affidavit is

ultimately immaterial. As discussed above, the alleged fraudulent inducement occurred

in connection with the 2013 quit-claim deed. By 2015, when the Second TOD Affidavit

was executed and recorded, the transfer of the property interest had already been

completed. Decedent did not take any action or make any agreement with Ley after 2013.

Thus, no subsequent statements or omissions by Ley could have induced Decedent to

execute the 2013 deed, and any error in excluding the transcripts of the recorded

conversations is harmless.

{¶119} The substance of the recorded conversations also confirms any error in the

exclusion of this evidence is harmless. The conversations reflect that the parties were

discussing the alleged agreement made in 2013, under which Decedent conveyed a one-

half interest in the Property to Ley based on her alleged promise to transfer that interest

to his children upon her death. There was no 2023 transaction, and Decedent did not

justifiably rely upon any actions or omissions of Ley at that point because the transfer of

the one-half interest in the Property to Ley was completed in 2013.

{¶120} Further, there were no omissions or material misrepresentations made by

Ley during these conversations. Ley was not present for the conversation on November

23, 2023. During the November 28, 2023, conversation, Ley clearly stated it was her

expectation that when Decedent died, she would get half the house because she has “been

there and done everything for 18 years.” Decedent discussed giving Ley $20,000 to help

pay for utilities if she chose to stay in the Property after his death, but informed Ley she

would have to pay for the utilities after that. Ley responded, “okay.” However, no new “transaction” occurred because Decedent never gave Ley any money. The recordings do

not establish any new act of fraud, any new transaction, or any justifiable reliance by

Decedent.

{¶121} For these reasons, any error in striking the transcripts of the recordings was

harmless. The Szabrak Plaintiffs’ fourth assignment of error is overruled.

{¶122} Based on the foregoing, the Szabrak Plaintiffs’ assignments of error are

overruled. The judgment entries of the Richland County Court of Common Pleas are

affirmed.

For the reasons stated in our Opinion, the judgment of the Richland County Court

of Common Pleas is affirmed.

Costs to Appellants, the Szabrak Plaintiffs.

By: Popham, J.

Baldwin, P.J. and

Montgomery, J., concur