[Cite as PNC Bank, N.A. v. Lewis, 2013-Ohio-5308.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

                                                             JUDGES:
PNC BANK, N.A.                                       :       Hon. W. Scott Gwin, P.J.
                                                     :       Hon. William B. Hoffman, J.
                       Plaintiff-Appellant           :       Hon. Patricia A. Delaney, J.
                                                     :
-vs-                                                 :
                                                     :       Case No. 2013CA00062
THEODORE LEWIS, ET AL                                :
                                                     :
                  Defendants-Appellees               :       OPINION




CHARACTER OF PROCEEDING:                                 Civil appeal from the Stark County Court of
                                                         Common Pleas, Case No.2012CV03791

JUDGMENT:                                                Affirmed



DATE OF JUDGMENT ENTRY:                                  December 2, 2013

APPEARANCES:



For Plaintiff-Appellant                                  For Defendants-Appellees

DAVID BROWN                                              ROBERT PRESTON III
ROBERT WELTMAN                                           Black, McCuskey, Souers & Arbaugh
Lakeside Place, Suite 200                                220 Market Avenue South, Ste. 1000
323 W. Lakeside Avenue                                   Canton, OH 44702
Canton, OH 44702
[Cite as PNC Bank, N.A. v. Lewis, 2013-Ohio-5308.]


Gwin, P.J.

        {¶1}    Appellant appeals the February 28, 2013 judgment entry of the Stark

County Court of Common Pleas granting appellees’ motion to dismiss complaint

pursuant to Civil Rule 12(B)(6).

                                        Facts and Procedural History

        {¶2}    On December 7, 2012, appellant PNC Bank, N.A., successor in interest to

National City Bank, filed a complaint captioned “complaint for fraudulent conveyance, to

impose lien, and for purchase money resulting trust” against appellees Theodore and

Linda Lewis. In 2000, appellee Theodore Lewis obtained an unsecured line of credit for

his small business from National City Bank in which he listed his home at 327 Poplar

Avenue N.W., Canton, Ohio, as an asset. In 2003, Theodore transferred the 327 Poplar

Avenue N.W., Canton, Ohio property to his wife, appellee Linda Lewis, by quitclaim

deed. The deed was recorded on April 22, 2003. On October 31, 2006, appellant, as

successor in interest to National City Bank, was granted judgment against appellee

Theodore Lewis in the amount of $31,573.74 after he failed to pay on the small

business line of credit. Appellant filed this judgment as a judgment lien in December of

2006 and again in September of 2010.

        {¶3}    Appellant alleged in the 2012 complaint that Theodore contributed to the

purchase price of the 327 Poplar Avenue property and has an equitable interest in the

property.      Further, that Theodore’s representation to appellant that he owned the

property in 2000 was for the purpose of obtaining credit under false pretenses and false

misrepresentation. Appellant averred the titling of the property in Linda’s name was

fraudulent and violated Sections 1336.01 through 1336.09 of the Ohio Revised Uniform
Stark County, Case No. 2013CA00062                                                        3


Fraudulent Transfer Act. Finally, that Theodore is the equitable owner of the 327 Poplar

Avenue property because Linda holds the title for his benefit and he exercises control

over the property. In the 2012 complaint, Appellant sought a judgment against Linda

Lewis for $37,558.62 and a lien against any equitable interest of Theodore in the 327

Poplar Avenue property.

       {¶4}   On January 31, 2013, appellees filed a motion to dismiss complaint

pursuant to Civil Rule 12(B)(6). The trial court granted appellees’ motion on February

28, 2013, finding that appellant failed to bring the action within the applicable statute of

limitations for a fraudulent transfer pursuant to R.C. 1336.09(A)(1).

       {¶5}   Appellant appeals the February 28, 2013 judgment entry of the trial court

granting appellees’ motion to dismiss and assigns the following error:

       {¶6}   “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

DISMISSING      CASE      NUMBER       2012CV03791       IN   FULL      WITHOUT      FIRST

CONSIDERING PLAINTIFF-APPELLANT’S CLAIM FOR A PURCHASE MONEY

RESULTING TRUST.”

       {¶7}   We review a trial court order granting a motion to dismiss pursuant to Civil

Rule 12(B)(6) under a de novo standard of review.               Greeley v. Miami Valley

Maintenance Contrs., Inc., 49 Ohio St.3d 228, 551 N.E.2d 981 (1990). In a de novo

analysis, we must accept all factual allegations of the complaint as true and all

reasonable inferences must be drawn in favor of the nonmoving party. Byrd v. Faber,

57 Ohio St.3d 56, 565 N.E.2d 584 (1991).

       {¶8}   Appellant does not contend the trial court erred in dismissing the

fraudulent conveyance action.       Rather, appellant argues the trial court erred by
Stark County, Case No. 2013CA00062                                                       4


dismissing the cause of action for a purchase money resulting trust as they had ten (10)

years from the establishment of the trust to file an action for purchase money trust

pursuant to the statute of limitations contained in R.C. 2305.14. We disagree.

      {¶9}   A resulting trust is an “equitable remedy arising in favor of a grantor when

circumstances of a transfer raise the inference that the grantor did not intend to transfer

beneficial interest to the holder of legal title.” Summers v. Summers, 121 Ohio App.3d

263, 699 N.E.2d 958 (4th Dist. 1997). The intent of the parties is the determining factor

in imposing a resulting trust and a court seeks to enforce the parties’ intentions when

utilizing a resulting trust. Brate v. Hurt, 174 Ohio App.3d 101, 880 N.E.2d 980 (12th

Dist. 2007). A resulting trust differs from a constructive trust because a resulting trust

does not involve fraud or wrongdoing, but is an equitable result based upon obtaining

the intent of the parties. Murdock v. Murchison, 6th Dist. Lucas No. L-80-166, 1981 WL

5550 (April 17, 1981).

      {¶10} The resulting trust device “has historically been applied in 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.” Summers

v. Summers, 121 Ohio App.3d 263, 699 N.E.2d 958 (4th Dist. 1997).             A purchase

money trust is implicated “[w]here a transfer of property is made to one person and the

purchase price is paid by another.” Restatement of the Law 2d, Trusts, Section 44

(1959). Central to the determination of whether a purchase money trust exists are the

issues of: (1) who paid for the purchase and (2) who was intended to beneficially enjoy

the property. Rardin v. Estate of Bain, 7th Dist. Carroll No. 08CA853, 2009-Ohio-3332.
Stark County, Case No. 2013CA00062                                                          5


         {¶11} We first note that there is a question of whether appellant properly pled a

purchase money resulting trust as the only mention of a purchase money resulting trust

is in the caption of the complaint and the complaint contains no allegations as to the

intention that existed on the part of Theodore or Linda in the purchase or transfer of the

327 Poplar Avenue property.

         {¶12} However, we find that even if appellant sufficiently alleged facts in the

complaint necessary for the imposition of a purchase money resulting trust, the trial

court did not err in finding appellant’s complaint to be barred by the statute of limitations.

In this case, appellant seeks a judgment against Linda Lewis based on a violation of the

Ohio Revised Uniform Fraudulent Transfer Act and seeks to place a lien on the 327

Poplar Avenue property through the equitable creation of a resulting or purchase money

trust.   Although judgment in appellant’s favor rests on the equitable creation of a

resulting trust, the applicable statute of limitations is determined by the cause of action

rather than the form of remedy. Bergholtz Coal Holding Co. v Dunning, 11th Dist. Lake

No. 2004-L-209, 2006-Ohio-3401. “Statutes of limitation attach to causes of action and

not the remedial form in which the action is brought.” Peterson v. Teodosio, 34 Ohio

St.2d 161, 172, 297 N.E.2d 113 (1973).

         {¶13} Appellant’s complaint states that Theodore’s representation to appellant in

2000 and the titling of the property in Linda’s name in 2003 is fraudulent, violating

Sections 1336.01 through 1336.09 of the Ohio Revised Uniform Fraudulent Transfer Act

and that Theodore is the equitable owner of the 327 Poplar Avenue property because

Linda holds the title for his benefit and he exercises control over the property.

Reviewing the allegations contained in appellant’s complaint, it is clear the underlying
Stark County, Case No. 2013CA00062                                                       6


cause of action is fraudulent transfer.      R.C. 1336.09(A)(1) provides the statute of

limitations for appellant’s fraudulent transfer claim and states a claim for fraudulent

transfer must be filed within four years of the transfer or within one year after the

transfer was discovered or could have reasonably been discovered.                     R.C.

1336.09(A)(1). The trial court found, and appellant does not contest, that appellant

would have had to file the fraudulent transfer action in 2011 to be within the applicable

statute of limitations.

       {¶14} In this case, the purchase money resulting trust that appellant asks the

court to impose is an equitable remedy. See Summers v. Summers, 121 Ohio App.3d

263, 699 N.E.2d 958 (4th Dist. 1997) (stating “a resulting trust is an equitable remedy * *

*”); In re Eccles, 12th Dist. Clermont No. CA99-05-041, 2000 WL 431365 (April 17,

2000) (finding the imposition of a resulting trust is not an appropriate remedy based on

the facts of the case); Robinson v. Robinson, 6th Dist. Lucas No. L-97-1131, 1997 WL

728631 (Nov. 21, 1997) (finding the equitable remedy of a resulting, purchase money

trust was not appropriate because there was no evidence of the intent of the parties).

The complaint in this case is based upon fraudulent transfer and, being so grounded,

the period in which relief could be granted by way of the equitable imposition of a

resulting trust is the four-year provision contained in R.C. 1336.09(A)(1). Accordingly,

we find the trial court did not err in granting appellees’ motion to dismiss and in

dismissing appellant’s complaint in its entirety.
Stark County, Case No. 2013CA00062                                             7


      {¶15} Appellant’s assignment of error is overruled.   The February 28, 2013

judgment entry of the Stark County Common Pleas Court is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Delaney, J., concur



                                           _________________________________
                                           HON. W. SCOTT GWIN


                                           _________________________________
                                           HON. WILLIAM B. HOFFMAN


                                           _________________________________
                                           HON. PATRICIA A. DELANEY


WSG:clw 1112
[Cite as PNC Bank, N.A. v. Lewis, 2013-Ohio-5308.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT


PNC BANK, N.A.                                       :
                                                     :
                           Plaintiff-Appellant       :
                                                     :
                                                     :
-vs-                                                 :       JUDGMENT ENTRY
                                                     :
THEODORE LEWIS, ET AL                                :
                                                     :
                                                     :
                     Defendants-Appellees            :       CASE NO. 2013CA00062




       For the reasons stated in our accompanying Memorandum-Opinion, the February

28, 2013 judgment entry of the Stark County Common Pleas Court is affirmed. Costs to

appellant.




                                                         _________________________________
                                                         HON. W. SCOTT GWIN


                                                         _________________________________
                                                         HON. WILLIAM B. HOFFMAN


                                                         _________________________________
                                                         HON. PATRICIA A. DELANEY
