      [Cite as Meehan v. Mardis, 2019-Ohio-4075.]

                       IN THE COURT OF APPEALS
              FIRST APPELLATE DISTRICT OF OHIO
                        HAMILTON COUNTY, OHIO




LAWRENCE E. MEEHAN,                           :     APPEAL NO. C-180406
                                                    TRIAL NO. A-1602670
        Plaintiff-Appellant,
                                                       O P I N I O N.
      vs.
                                              :
JOHN HOWARD MARDIS,

      and                                     :

LONNIE G. HORN,

      Defendants-Appellees,                   :

      and
                                              :
TBG PROPERTIES, L.L.C., et al.,

      Defendants.                            :


Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                           Remanded

Date of Judgment Entry on Appeal: October 4, 2019




Hemmer DeFrank Wessels, P.L.L.C., and Scott R. Thomas, for Plaintiff-Appellant,

Wood & Lamping, L.L.P., and Dale Stalf, for Defendant-Appellee John Howard
Mardis,

Mulvey & Muller, L.L.C., and William J. Mulvey, for Defendant-Appellee Lonnie G.
Horn.
                      OHIO FIRST DISTRICT COURT OF APPEALS




CROUSE, Judge.

       {¶1}    Plaintiff-appellant Lawrence E. Meehan has appealed the judgment of

the trial court, arguing in one assignment of error that the court erred in granting

partial summary judgment in favor of defendants-appellees John Howard Mardis

and Lonnie G. Horn. For the following reasons, we affirm in part, reverse in part,

and remand the cause for further proceedings.

                                 Factual Background


       {¶2}    Lawrence Meehan and John Mardis were 50 percent co-owners of

Mardis and Meehan Construction, Inc., (“MMCI”). Lonnie Horn is a member of

Artistic Tile and Marble LLC (“Artistic Tile”). Meehan alleges that Mardis diverted

MMCI money and property to Horn and Artistic Tile, as part of a secret profit-

sharing agreement between Mardis and Horn.

       {¶3}    Meehan initially filed suit against the defendants on November 16,

2012. On May 8, 2015, the parties agreed to dismiss the suit without prejudice.

Meehan filed the current complaint on May 6, 2016.

       {¶4}    Civ.R. 54(B) provides that when more than one claim for relief is

presented in an action, the court may enter final judgment on fewer than all of the

claims if it determines that there is no just cause for delay.

       {¶5}    The trial court granted partial summary judgment in favor of Mardis

and Horn, ruling that any claims premised upon actions or omissions that occurred




                                                2
                        OHIO FIRST DISTRICT COURT OF APPEALS



prior to November 16, 20081, were barred by the four-year statute of limitations

contained in R.C. 2305.09.

        {¶6}    The court found there was “no just cause for delay,” and that even if

Meehan succeeded at trial on his remaining claims (those claims premised on acts or

omissions which occurred after November 16, 2008) he would likely appeal the

court’s grant of partial summary judgment because the damages sought for the

claims prior to November 16, 2008, far exceeded the damages sought for the claims

after November 16, 2008. In order to avoid duplicative trials should Meehan win his

appeal of the partial summary judgment, and for the interests of judicial economy,

the trial court certified the grant of partial summary judgment as final and

appealable, pursuant to Civ.R. 54(B).

                                      Causes of Action


        {¶7}    Meehan’s complaint lists eight counts: (1) breach of fiduciary duty, (2)

usurpation of business opportunities, (3) conflict-of-interests transactions, (4)

accounting—self-dealing, (5) conversion, (6) civil conspiracy, (7) alter ego (piercing

the corporate veil), and (8) punitive damages.

        {¶8}    Accounting and punitive damages are remedies, and not causes of

action. See McNulty v. PLS Acquisition Corp., 8th Dist Cuyahoga No. 79025, 2002-

Ohio-7220, ¶ 80. Similarly, piercing the corporate veil is not a claim, it is a remedy

encompassed within a claim, whereby liability for a particular tort may be imposed

upon a particular individual. Geier v. Nat’l. GG Industries, Inc., 11th Dist. Lake No.

98-L-172, 1999 WL 1313640, *4 (Dec. 23, 1999).



1 This date is four years prior to the date Meehan initially filed suit, and so sets the benchmark
from which to calculate the statute of limitations.


                                                    3
                       OHIO FIRST DISTRICT COURT OF APPEALS



        {¶9}   Usurpation of business opportunities, conflict-of-interest transactions,

and self-dealing are all breaches of fiduciary duty, and so will be analyzed as such for

purposes of determining whether the statute of limitations applies. See Prodan v.

Hemeyer, 80 Ohio App.3d 735, 744, 610 N.E.2d 600 (8th Dist.1992); see also In re

Trusteeship of Stone, 138 Ohio St. 293, 302, 34 N.E.2d 755 (1941).                 When

determining which statute-of-limitations period to apply, the court looks to the

nature of the case, rather than the form in which it was pled. Cohen v. Dulay, 2017-

Ohio-6973, 94 N.E.3d 1167, ¶ 15 (9th Dist.), appeal not allowed, 152 Ohio St.3d

1408, 2018-Ohio-723, 92 N.E.3d 879.

        {¶10} This leaves three causes of action for our analysis—breach of fiduciary

duty, conversion, and civil conspiracy.

                                 Standard of Review

        {¶11} We review a grant of summary judgment de novo, and will uphold it

when

       (1) no genuine issue as to any material fact remains 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.

Pelletier v. Campbell, 153 Ohio St.3d 611, 2018-Ohio-2121, 109 N.E.3d 1210, ¶ 13.




                                                4
                     OHIO FIRST DISTRICT COURT OF APPEALS



              Breach-of-Fiduciary-Duty Claims Based on Fraud

       {¶12} R.C. 2305.09 provides a four-year statute of limitations for breach-of-

fiduciary-duty claims. See Chateau Estate Homes, LLC v. Fifth Third Bank, 2017-

Ohio-6985, 95 N.E.3d 693, ¶ 25 (1st Dist.).

       {¶13} Since Meehan initially filed his complaint on November 16, 2012, any

of his claims based on acts or omissions from before November 16, 2008, would be

barred by the statute of limitations. However, Meehan argues that his claims for

breach of fiduciary duty “sound in fraud,” and so the discovery rule of R.C. 2305.09

saves his claims from being barred.

       {¶14} This court previously held that the discovery rule did not apply to

claims for breach of fiduciary duty. Herbert v. Banc One Brokerage Corp., 93 Ohio

App.3d 271, 274-275, 638 N.E.2d 161 (1st Dist.1994). But, the Ohio Supreme Court,

in Cundall v. U.S. Bank, 122 Ohio St.3d 188, 2009-Ohio-2523, 909 N.E.2d 1244, ¶

24, subsequently extended the discovery rule to include claims for breach of fiduciary

duty “based on fraud,” overruling Herbert to that extent.

       {¶15} Under the discovery rule, claims for breach of fiduciary duty based on

fraud are governed by the same four-year statute-of-limitations period, but the

period does not begin to run until the plaintiff discovered, or should have discovered

through due diligence, the matters giving rise to the cause of action. (Emphasis

added.) Id.

       {¶16} Civ.R. 9(B) requires that “all averments of fraud” be pled with

particularity. In Cohen, 2017-Ohio-6973, 94 N.E.3d 1167, at ¶ 14, the plaintiff argued

that his breach-of-fiduciary-duty claims were premised on allegations of fraud, and




                                              5
                      OHIO FIRST DISTRICT COURT OF APPEALS



so were subject to the discovery rule. The defendants argued that the plaintiff had

failed to plead fraud with particularity. Id.

       {¶17} The plaintiff in Cohen did allege that the defendants’ conduct

constituting breaches of fiduciary duty were either “knowing, willful, intentional or

fraudulent, or were grossly negligent, reckless or in bad faith, and without

justification or excuse.” Id. at ¶ 17. But, the court found this type of “catch-all”

language to be insufficient to satisfy Civ.R. 9(B). Id. Therefore, the court was unable

to discern from the plaintiff’s complaint which actions of the defendants he was

claiming to be fraudulent. Id. It held that the plaintiff had failed to properly plead

fraud as a cause of action, and so the discovery rule did not apply to the breach-of-

fiduciary-duty claims. Id.

       {¶18} We agree with the Cohen court’s application of Civ.R. 9(B)’s

particularity requirement to breach-of-fiduciary-duty claims that sound in fraud.

Since Cundall extended the discovery rule to include claims for breach of fiduciary

duty sounding in fraud, it logically follows that Civ.R. 9(B)’s particularity

requirement should apply to these claims.           Thus, in order to determine if the

discovery rule applies, we must make the prerequisite determination of whether

Meehan met the particularity requirement in pleading his claims for breach of

fiduciary duty.

                     Civ.R. 9(B)’s Particularity Requirement

       {¶19} The elements of fraud are:

      (a) a representation or, where there is a duty to disclose, concealment of a

      fact, (b) which is material to the transaction at hand, (c) made falsely,

      with knowledge of its falsity, or with such utter disregard and




                                                6
                      OHIO FIRST DISTRICT COURT OF APPEALS



     recklessness as to whether it is true or false that knowledge may be

     inferred, (d) with the intent of misleading another into relying upon it, (e)

     justifiable reliance upon the representation or concealment, and (f) a

     resulting injury proximately caused by the reliance.

Cohen v. Lamko, Inc., 10 Ohio St.3d 167, 169, 462 N.E.2d 407 (1984).

       {¶20} 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.   Baker v. Conlan, 66 Ohio App.3d 454, 458, 585 N.E.2d 543 (1st

Dist.1990). The identity of the alleged fraudster is also relevant. Wright v. Bank of

New York, 9th Dist. Summit No. 25842, 2012-Ohio-2289, ¶ 19.

       {¶21} The particularity requirement in Fed.R.Civ.P. 9(B) (which is nearly

identical to Ohio’s Civ.R. 9(B)) has been relaxed in situations where the facts are

known only by the defendant. United Liberty Life Ins. Co. v. Pinnacle W. Capital

Corp., 149 F.R.D. 558, 561 (S.D.Ohio 1993) (citing Michaels Bldg. Co. v. Ameritrust

Co. N.A., 848 F.2d 674, 680 (6th Cir.1988).

       {¶22} The Civ.R. 9(B) particularity requirement must be applied in

conjunction with Civ.R. 8’s directives that the pleadings contain a short and plain

statement of the claim, and that each averment should be “simple, concise, and

direct.” F & J Roofing Co. v. McGinley & Sons, Inc., 35 Ohio App.3d 16, 17, 518

N.E.2d 1218 (9th Dist.1987); see Baker at 458.

     The underlying determination in each case is whether the allegation is

     specific enough to inform the defendant of the act of which the plaintiff




                                               7
                      OHIO FIRST DISTRICT COURT OF APPEALS



     complains, and to enable the defendant to prepare an effective response

     and defense.

Baker at 458.

       {¶23} Nowhere in his complaint does Meehan allege fraud as a cause of

action, nor does he separately and specifically allege the elements of fraud.

Nevertheless, unlike in Cohen, where the court could not discern what conduct the

plaintiff was claiming to be fraudulent, it is clear throughout the complaint what

conduct Meehan claims to be fraudulent. For example, in his complaint, Meehan

alleges that Mardis

       -   diverted MMCI’s money to third persons and entities in which Meehan

           had no interest,

       -   created a separate company with a similar name (MMC Group)

           unbeknownst to Meehan for the purpose of diverting money,

       -   diverted money to Horn that should have been paid to MMCI,

       -   paid Horn $900,000 for “additional supervision” even though Horn was

           not qualified to do, and never actually did, the work,

       -   transferred money to Horn indirectly by making fraudulent payments to

           Artistic Tile,

       -   paid a customer’s representative $20,000 to approve fraudulent change

           orders to existing contracts resulting in gross overcharges which were paid

           by the customer, shared with the customer’s representative, and shared

           with Horn,

       -   instructed a customer to reissue a check for approximately $80,000 that

           was payable to MMCI, and make it payable to MMC Group,




                                               8
                       OHIO FIRST DISTRICT COURT OF APPEALS



         -   improperly transferred money and other assets to Horn, MMC Group,

             Artistic Tile, and TBG Properties L.L.C. worth over $1.75 million,

         -   drew over $150,000 on the company line of credit, despite an agreement

             between Meehan and Mardis not to do so, and used the money for non-

             business purposes, including transferring some or all of the funds to Horn,

             MMC Group, Artistic Tile, or TBG,

         -   formed TBG for the express purpose of purchasing a piece of foreclosed

             MMCI-owned real property using money from the line of credit, and

         -   exercised control over TBG, MMC Group, and Artistic Tile in a manner as

             to commit fraud upon Meehan.

         {¶24} Looking at the Civ.R. 9(B) particularity requirements as laid out by

Baker and Wright, Meehan pled the content of the false representation (the secret

profit-sharing agreement, payments to Horn and Horn’s companies, and diversion of

MMCI funds under false pretenses),         the facts misrepresented (the reasons for

paying Horn and drawing down the MMCI line of credit without Meehan’s

knowledge or consent), the identity of the fraudster (Mardis, TBG, MMC Group, and

Artistic Tile), and what was obtained as a result of the fraud (MMCI’s money and

property transferred to Horn, TBG, MMC Group, and Artistic Tile).

         {¶25} It is undisputed that as co-owners of MMCI, Meehan and Mardis owed

each other a fiduciary duty, which includes a duty to disclose. Therefore, Mardis’s

failure to disclose the profit-sharing agreement, the existence of MMC Group, and

the existence of TBG could, if believed by a jury, amount to concealment of material

facts.




                                                 9
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶26} Although he does not allege with as much precision the time and place

of the fraud, Meehan appears to allege to the best of his ability the facts known to

him at the time. He alleges in the complaint that in 2007 Mardis began diverting

MMCI money. He also alleges that Mardis paid Horn $900,000 for “additional

supervision” in connection with a Mariott hotel project in Atlanta, Georgia in 2008.

He further alleges that Mardis formed MMC Group in 2009 for the express purpose

of diverting MMCI’s money and assets.

       {¶27} The court in Cundall, 122 Ohio St.3d 188, 2009-Ohio-2523, 909

N.E.2d 1244, at ¶ 24, found the discovery rule to apply where the plaintiff had

“clearly asserted claims grounded in fraud and breach of fiduciary duty.” Similarly,

Meehan has clearly asserted claims for breach of fiduciary duty grounded in fraud,

and has done so with sufficient particularity so as to put Mardis on notice of what

conduct Meehan claims to be fraudulent. Therefore, the discovery rule applies.

                                The Discovery Rule

       {¶28} Next, we must determine whether a genuine dispute of material fact

remains as to when Meehan, through reasonable diligence, should have discovered

the fraud.

       {¶29} To start the clock on the statute of limitations, it is not necessary that

the victim possess “concrete and detailed knowledge, down to the exact penny of

damages, of the alleged fraud.” Cundall at ¶ 30. Rather, the inquiry is whether the

facts known would lead a “fair and prudent man, using ordinary care and

thoughtfulness, to make further inquiry.” Id. at ¶ 29. Constructive knowledge of

facts is sufficient to start the clock under the discovery rule. Id. at ¶ 30. In the

Cundall case, the court found that the four-year statute of limitations began to run




                                             10
                      OHIO FIRST DISTRICT COURT OF APPEALS



when the beneficiaries first learned of the trustee’s misconduct, since that is when

the beneficiaries acquired a cause of action. Id. at ¶ 27-28. The court noted that

theirs was “not a case of covert wrongdoing committed against unsuspecting

beneficiaries.” Id. at ¶ 34.

       {¶30} Meehan claims that his case is a case of covert wrongdoing. He argues

that he and Mardis were responsible for their own projects, that he did not have the

ability to audit the expenditures of Mardis’s projects, and that Mardis covered up his

payments to Horn by labeling them as “additional supervision.”

       {¶31} Meehan claims that Mardis began diverting MMCI funds as early as

2007. There is conflicting evidence as to when Meehan knew, or should have known,

of the alleged fraud. Mardis wrote an affidavit on January 24, 2018, in which he

stated that Meehan’s primary role within the company was to manage the financial

affairs and the books and records of MMCI, oversee the bidding/estimating process,

and obtain funding. Mardis was responsible for securing new projects and serving as

project manager on existing projects. According to Mardis, beginning in 2006 or

2007, Meehan agreed to the arrangement with Horn in which Horn would refer

construction projects to MMCI in exchange for half of the net profits generated on

any of the projects Horn referred. Meehan further agreed that the money from those

projects would be deposited into checking accounts separate from MMCI’s general

checking account, with the revenue then paid out to Horn and MMCI separately.

       {¶32} Also, Mardis stated that Meehan was familiar with MMCI’s accounting

system and all entries made until he left the company in 2010, and that, at all times,

MMCI’s books were fully available to Meehan, and that with due diligence he should

have discovered the alleged fraud much earlier.




                                             11
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶33} Nancy Guilkey, the inside accountant for MMCI, signed an affidavit on

January 23, 2018. She was primarily responsible for maintaining accurate and

complete financial records of MMCI’s operations. She stated that she reported to

Meehan, and regularly met with him to review MMCI’s financial status. She was

directed by Meehan and Mardis to create separate bank accounts for the Horn

projects, and to distribute half of any net profits to Horn.

       {¶34} Guilkey attached to her affidavit a “general ledger” from December

2007, which illustrates the flow of money for two projects referred by Horn. The

general ledger shows that on December 18, 2007, MMCI wrote two checks—one to

Horn and one to MMCI—splitting the estimated profits generated to date on the

Atlanta project. The ledger shows a similar transaction for a project in Hilton Head

on December 4, 2007. Guilkey further stated that Meehan’s assertion that he was

unaware of the profit-sharing arrangement with Horn is “completely false,” that she

fully documented in MMCI’s accounting system all financial transactions involving

Horn projects, and that Meehan routinely reviewed those financial transactions.

       {¶35} James Kolbinsky provided outside accounting services to MMCI. He

signed an affidavit on January 23, 2018. He stated that Meehan was his principal

point of contact at MMCI, and that he regularly interacted with him to gather

accounting information about MMCI.           Meehan was “intimately familiar” with

MMCI’s accounting system and its books and records. It was Meehan who informed

Kolbinsky about the arrangement to pay Horn 50 percent of the profits for referring

projects to MMCI, and who directed that separate bank accounts be set up for the

Horn projects.




                                               12
                     OHIO FIRST DISTRICT COURT OF APPEALS



        {¶36} Kolbinsky’s affidavit further follows Guilkey’s affidavit nearly

identically, as he points out the disbursements made to Horn for both the Atlanta

and Hilton Head projects contained in the general ledger. Similarly, he stated that

Meehan’s claim that he was unaware of the profit-sharing arrangement with Horn is

“completely false,” and that Meehan had “full and complete knowledge of all of the

company’s financial transactions involving Horn * * *.”

        {¶37} Kolbinsky later gave a deposition on March 14, 2018, during which he

made several statements that contradicted his affidavit. Although he eventually

stated that he stood by his affidavit, he also backed away from some of the

statements he made in his affidavit. For example, Kolbinsky stated that he had not

become aware of the profit-sharing agreement with Horn until “recently,” and that

he was not aware of it during the timeframe in which the alleged fraud occurred.

Later in his deposition, Kolbinsky stated that he “would think [Meehan] would have

some information about somebody writing a check for a couple hundred thousand

dollars,” and that he would “assume that [Meehan] would be aware of the

circumstances justifying that payment.”     (Emphasis added.)    These statements

contradict his affidavit, in which he stated that Meehan knew of the payments to

Horn.

        {¶38} During oral argument, there was some question as to whether

Kolbinsky’s deposition was a part of the record at the time the trial court granted

partial summary judgment.       The trial court initially granted partial summary

judgment as to only Mardis on April 9, 2018. The April 9 order was not final and

appealable. Kolbinsky gave his deposition on March 14, 2018, but it was not filed

with the court until June 14, 2018.      The court then granted partial summary




                                             13
                     OHIO FIRST DISTRICT COURT OF APPEALS



judgment as to both Horn and Mardis on June 19, 2018. The June 19 order was final

and appealable. Although the court granted partial summary judgment in favor of

Mardis twice, it was not final and appealable until June 19. Therefore, we conclude

that Kolbinsky’s deposition was properly before the trial court when it ordered

partial summary judgment, and so may be considered by this court on appeal.

       {¶39} Meehan gave his own affidavit on January 11, 2018. He swore that he

did not know of the payments to Horn until August 2009, when Guilkey provided

him with the job detail report for the Atlanta job. Through his affidavit, he also

swore to the truthfulness of all of the factual assertions made by his attorney in his

memorandum in opposition to the motion for summary judgment filed on January

11, 2018.

       {¶40} Through those factual assertions, Meehan claims that he did not know

of the profit-sharing arrangement until Horn and Mardis admitted to the

arrangement in their depositions taken in May 2017. He claimed that because the

parties were close friends who had been in business together for many years, they did

not employ the kinds of checks and balances one would see in a typical company. He

also says that he had no way of knowing of the profit-sharing arrangement with Horn

because he was working on other projects, Mardis left no paper trail memorializing

the payments except for the checks themselves, and Mardis mislabeled the payments

as “additional supervision” so as to not arouse suspicion.

       {¶41} There is strong evidence that Meehan had access to the financial

records of Mardis’s projects, but simply because a plaintiff has access to the financial

records does not mean that he should have, with due diligence, discovered the fraud.

See Miller, On Behalf of Miller v. McCann, 1st Dist. Hamilton No. C-970035, 1997




                                              14
                     OHIO FIRST DISTRICT COURT OF APPEALS



WL 789394, *2 (Dec. 26, 1997). On this record, the jury will have to make that call.

Meehan’s affidavit, the memorandum in opposition, Kolbinsky’s affidavit, and

Kolbinsky’s deposition testimony all combine to create genuine issues of material

fact as to when Meehan actually learned of the alleged fraud, his involvement in the

financial aspects of Mardis’s projects, and whether through reasonable diligence he

should have discovered the fraud prior to November 16, 2008.

       {¶42} Because there are genuine issues of material fact, the trial court erred

in granting partial summary judgment on all breach-of-fiduciary-duty claims against

Mardis arising from acts or omissions occurring before November 16, 2008.

However, it is undisputed that Horn did not owe Meehan any fiduciary duty.

Therefore, none of Meehan’s claims for breach of fiduciary duty apply to Horn. The

trial court did not err in granting partial summary judgment in favor of Horn on the

breach-of-fiduciary-duty claims.

                                    Conversion

       {¶43} The statute of limitations for conversion is four years, but the

discovery rule also applies to conversion claims.       R.C. 2305.09; Wilkerson v.

Hartings, 1st Dist. Hamilton No. C-081160, 2009-Ohio-4987, ¶ 11; Investors REIT

One v. Jacobs, 46 Ohio St.3d 176, 181, 546 N.E.2d 206 (1989).

       {¶44} As discussed above, there is a dispute of material fact as to when

Meehan knew or should have known of the fraud which led to the breach-of-

fiduciary-duty claims. Meehan’s conversion claim rests upon the same set of facts as

his claims for breach of fiduciary duty. Therefore, there is a dispute of material fact

as to when Meehan should have discovered the conversion. The trial court erred

when it granted partial summary judgment on all conversion claims against Mardis




                                              15
                       OHIO FIRST DISTRICT COURT OF APPEALS



arising from acts or omissions prior to November 16, 2008.                However, in his

complaint, Meehan does not allege conversion by Horn. He only alleges conversion

by Mardis. Accordingly, the trial court did not err in granting partial summary

judgment in favor of Horn on that claim. 2

                                    Civil Conspiracy

       {¶45} Meehan alleges that both Mardis and Horn engaged in a civil

conspiracy to deprive him of his rightful share of the profits of MMCI, and to reduce

the value of MMCI stock.

       {¶46} Under Ohio law, a claim for civil conspiracy requires “a malicious

combination of two or more persons to injure another in person or property, in a way

not competent for one alone, resulting in actual damages.” Doane v. Givaudan

Flavors Corp., 184 Ohio App.3d 26, 2009-Ohio-4989, 919 N.E.2d 290, ¶ 32 (1st

Dist.). A civil-conspiracy claim is derivative and cannot be maintained absent an

underlying tort that is actionable without the conspiracy. Id.

       {¶47} In a conspiracy, the acts of coconspirators are attributable to each

other. Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 476, 700 N.E.2d 859 (1998).

      All those who, in pursuance of a common plan or design to commit a

      tortious act, actively take part in it, or further it by cooperation or

      request, or who lend aid or encouragement to the wrongdoer, or ratify

      and adopt the wrongdoer's act done for their benefit, are equally liable.

Id. (quoting Keeton, Dobbs, Keeton & Owen, Prosser and Keeton on the Law of

Torts, Section 46, 323 (5th Ed.1984)); see Minarik v. Nagy, 8 Ohio App.2d 194, 195,



2 Although it is unclear whether any claims for conversion or breach of fiduciary duty remain
against Horn for acts or omissions after November 16, 2008, Horn only moved for summary
judgment on the claims arising out of acts or omissions prior to November 16, 2008, and so we
only address those claims.


                                                 16
                      OHIO FIRST DISTRICT COURT OF APPEALS



193 N.E.2d 280 (8th Dist.1963) (“the significance of the conspiracy consists,

therefore, in this: that it gives the person injured a remedy against parties not

otherwise connected with the wrong.”).

       {¶48} Simply by accepting the money from Mardis, knowing that Mardis

converted the funds or obtained the funds through a breach of fiduciary duty, Horn

could be found to have entered into a conspiracy with Mardis to deprive Meehan of

his money and property.

       {¶49} Nevertheless, Meehan has not presented any evidence that Horn knew

that Mardis converted the funds or obtained the funds through a breach of fiduciary

duty. Also, Meehan has not presented any evidence that Horn otherwise furthered,

aided, encouraged, or adopted any of the wrongful acts of Mardis. Therefore, there

is no genuine issue of material fact, and the trial court did not err in granting partial

summary judgment in favor of Horn on this claim.

       {¶50} Meehan has not presented any evidence of other coconspirators. Since

Mardis cannot conspire with himself, the trial court did not err in granting partial

summary judgment in favor of Mardis on this claim.

                                     Conclusion


       {¶51} Meehan’s sole assignment of error is sustained as to the claims of

breach of fiduciary duty and conversion against Mardis, and is overruled as to all

other claims. Genuine issues of material fact remain as to when Meehan knew, or

should have known, about the acts or omissions giving rise to his claims for breach of

fiduciary duty and conversion against Mardis, and so the trial court erred when it

granted partial summary judgment on those claims. Since we reverse on the grounds




                                               17
                      OHIO FIRST DISTRICT COURT OF APPEALS



of the discovery rule and the statute of limitations, we do not reach the issue of

whether equitable tolling applies.

       {¶52} Horn owed no fiduciary duty to Meehan, and Meehan did not allege a

claim of conversion against Horn, so the trial court did not err in granting partial

summary judgment as to the claims for breach of fiduciary duty and conversion

against Horn. Since Meehan failed to present sufficient evidence of a civil conspiracy

between Horn and Mardis, the trial court did not err in granting partial summary

judgment on those claims. The trial court’s judgment is reversed as to the claims for

breach of fiduciary duty and conversion against Mardis, and is affirmed in all other

respects. This cause is remanded for further proceedings consistent with the law and

this opinion.

                    Judgment affirmed in part, reversed in part, and cause remanded.



BERGERON, P.J., and WINKLER, J., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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