COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68944 JOHN T. JAEGER, JR. : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION EUGENE LaCROIX, ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 11, 1996 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-261510 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: WILLIAM J. NOVAK (#0014029) NANCY J. FLEMING (#0042190) Rubenstein, Novak, Einbund & Pavlik Skylight Office Tower - #270 1660 West Second Street Cleveland, Ohio 44113-1498 For Defendant-Appellee, Eugene E. LaCroix, Jr.: LEONARD W. YELSKY (#0034277) JEFFREY W. YELSKY (#0055477) Yelsky & Lenardo Co., L.P.A. 1050 Leader Building Cleveland, Ohio 44114 For Defendant-Appellee, Carol Downs: STEVEN B. POTTER (#0001513) Dinn, Hochman & Potter 5885 Landerbrook Drive, Suite 205 Cleveland, Ohio 44124 (Continued on next page) -ii- For Defendant-Appellee, Oscar Zimmerman: MARK B. COHN (#0027878) JEFFREY A. HUTH (#0041991) McCarthy, Lebit, Crystal & Haiman Co., L.P.A. 1800 Midland Building 101 Prospect Avenue, W. Cleveland, Ohio 44150-1088 Also listed: GREGORY ZIMMERMAN (P00008041) 10915 East ElRancho Drive Scottsdale, Arizona 85259-3007 - 3 - 3 LEO M. SPELLACY, C.J.: Plaintiff-appellant John T. Jaeger, Jr. ("appellant") appeals the grant of summary judgment in favor of the defendants. Appellant filed a claim alleging fraud and abuse of process against the defendants. Appellant assigns the following errors for review: I. THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT BECAUSE PLAIN- TIFF'S CLAIMS ARE NOT BARRED BY THE STIPULATED ORDER OF SETTLEMENT AND THE RELEASE CONTAINED THEREIN. II. THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT BECAUSE PLAINTIFF'S CLAIMS FOR FRAUD ARE NOT BARRED BY THE STATUTORY LIMITATION PERIOD FOR FRAUD. III. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANT LaCROIX BECAUSE LaCROIX'S FALSE APPRAISAL CONSTITUTES FRAUD. IV. THE TRIAL COURT ERRED IN GRANTING THE SUPERIOR DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BE- CAUSE THERE WAS AN ULTERIOR PURPOSE TO THE FILING OF THE LEGAL ACTIONS AGAINST PLAINTIFFS BY THE SUPERIOR DEFENDANTS . V. THE TRIAL COURT ERRED IN NOT GRANTING PLAIN- TIFF'S MOTION TO AMEND HIS COMPLAINT INSTANTER AFTER THE COURT GRANTED THE USE IN THE PRO- CEEDINGS OF THE SETTLEMENT AGREEMENT AND RE- LEASE FILED UNDER SEAL IN THE FEDERAL COURT. Finding none of the assignments of error to have merit, the judgment of the trial court is affirmed. I. In 1984, the Pattrone Trust was formed in order to purchase a Russian Arabian horse named *Pattrone. Appellant was the business manager of Hillcrest Equities, Inc., a beneficiary of the Pattrone - 4 - 4 Trust. On July 31, 1984, the horse was purchased by the Pattrone Trust from KEG Arabians, Inc. for $4,500,000. A chattel mortgage note in the amount of $4,000,000 was executed and delivered to KEG Arabians, Inc. The note was guaranteed by appellant. On August 21, 1984, the note was purchased by Superior Savings Association. That fall, Eugene LaCroix, appraised the horse for Superior Savings as having a value of between $4,000,000 and $6,000,000. The Pattrone Trust failed to make the first payment on the loan. Superior Savings accelerated the note and filed suit against appellant and others in the United States District Court for the Northern District of Ohio. On July 27, 1988, Superior Savings and appellant entered into a settlement agreement in order to resolve all of the claims of the parties against each other. As a part of the settlement, appellant executed a release over any claims he had or might have in the future against Superior Savings and its officers and directors. On November 21, 1989, appellant pled guilty in Federal Court. He was charged with knowingly and willfully making a false finan- cial statement to Superior Savings in an effort to influence the bank in making the loan for *Pattrone. On July 15, 1990, appellant filed a Civ.R. 60(b) motion with the District Court. In his motion, appellant charged that LaCroix had deliberately overvalued *Pattrone's worth. Appellant averred that until July of 1989, he had been not aware *Pattrone's value was artificially inflated in an effort to increase the value of - 5 - 5 another Arabian horse. At the time the Pattrone Trust purchased *Pattrone, its true value was no more than $1,000,000. Appellant argued Gregory Zimmerman, Superior Savings' President, knew *Pattrone was overvalued yet concealed this from the Pattrone Trust. Appellant averred he relied on the loan expertise of Superior Savings when he signed the personal guarantee for the note. He claimed that if he had known of this fraud, he would not have entered into the settlement agreement. Appellant later dismissed his motion with prejudice. On November 22, 1993, appellant filed a complaint in the Cuyahoga County Court of Common Pleas against Eugene LaCroix, Oscar Zimmerman, Gregory Zimmerman, Carol Davis, and the administrator of the Estate of Almis Stempuzis. The Zimmermans, Downs, and Stempuzis were members of the Board of Directors of Superior Sav- ings. The claim against Stempuzis was dismissed with prejudice. Appellant brought a claim of fraud against LaCroix for making a false appraisal of *Pattrone. He had a count of fraud against the Zimmermans and Downs based on the allegedly false appraisal. Appellant stated the defendants had a duty to inform him the loan was undercollateralized. He also brought a claim of abuse of process against the Zimmermans and Downs. After the settlement agreement was brought to the attention of the trial court, the defendants filed motions for summary judg- ment. Appellant filed a motion to amend his complaint seeking to add a count that he was fraudulently induced into entering into the - 6 - 6 settlement agreement. The trial court denied appellant's motion and granted the defendant's motions for summary judgment. In his first assignment of error, appellant contends the trial court erred in granting the motions for summary judgment of Oscar Zimmerman, Gregory Zimmerman and Carol Downs because the release only applied to all of appellant's claims against the officers and directors of Superior Savings. However, appellant did not release any claims against the officers in their individual capacity. This case was disposed of by summary judgment. Civ.R. 56(C) provides that summary judgment is proper if the trial court determines that: (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 con- clusion, 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. (1977), 50 Ohio St.2d 317, 327. Sum- mary judgment is a procedural device designed to terminate litiga- tion and to avoid a formal trial where there is nothing to try. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. Summary judgment is not appropriate where the facts are subject to reason- able dispute when viewed in a light favorable to the nonmoving - 7 - 7 party. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 104. It should be awarded with caution only after doubts are resolved and evidence construed in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356. The nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media Ltd. of Texas (1991), 59 Ohio St.3d 108, paragraph three of the syllabus. The release in question stated as follows: KNOW ALL PERSONS BY THESE PRESENTS, THAT the undersigned John T. Jaeger, Jr., and Jaeger & Associates, Inc., a Texas corporation, [here- inafter referred to collectively as "Jaeger"], for and in consideration of the execution by Superior Savings Association of a "Settlement Agreement" dated July 27, 1988, and for other good and valuable consideration, receipt of which is hereby acknowledged, do hereby, for themselves, their predecessors and successors, and each of their past, present and future officers, partners, principals, employees, parents, subsidiaries, successors, assigns, affiliates, trustees, beneficiaries, attor- neys, insurers, agents, successors, heirs, administrators, suretys and bonding companies, release, remise, acquit, and forever discharge Superior Savings Association, its parents, subsidiaries, affiliates, successors, assigns, legal representatives, directors, officers, employees, agents, and insureds from any and all claims, causes of action, setoffs, debts, demands or choses in action whatsoever, in law or in equity, known or unknown, which Jaeger now has, ever had, or may ever have against Superior Savings Association for, upon or by reason of any matter, cause or thing whatso- ever, done, existing or in being on or at any time prior to execution of the Settlement Agreement. The release is similar in language to that in Pakulski v. Garber (1983), 6 Ohio St.3d 252. The purpose of the release in - 8 - 8 Pakulski was to settle all possible legal claims which existed between the parties. In return for monetary consideration, the appellant agreed to surrender any claims he had against the appellees arising prior to the date of the release. The release also discharged any liability for the appellees' successors, assigns, officers, directors, agents, and employees. The court found the release to pertain to a law firm as an agent of the appellees. A release procured by fraud in the inducement or through duress by threat is voidable. Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103. A release obtained by fraud in the factum is void ab initio. Pizzino v. Lightning Rod Mut. Ins. Co. (1994), 93 Ohio App.3d 246. If the release is voidable, any consideration paid must be tendered back before the release will be subject to attack. Otherwise, a releasor would retain the benefit of his act of compromise while attacking its validity. Id. at 251. A release also may be set aside because of a mutual mistake. Id. at 252. In his complaint, appellant stated that the Zimmermans and Downs were members of the Board of Directors of Superior Savings. He charged the Superior defendants had a duty to inform him that the loan was undercollateralized and used the civil and criminal court systems to hide their own misconduct as members of the Board of Directors of Superior Savings. - 9 - 9 In the release, appellant, in return for the execution of a settlement agreement by Superior Savings and other consideration, forever discharged Superior Savings and its directors and officers from any and all claims he might have had or may ever have against Superior Savings. The only actions of the Superior defendants appellant brought up in his complaint related to activities by the defendants in their capacity as officers and directors of Superior Savings, not as individuals. This is squarely within the language of the release and appellant gave up any such claims when he signed the release. Further, appellant has not alleged the release was obtained by fraud in the inducement, fraud in the factum, or as a result of mutual mistake. Appellant received the benefit of the release when Superior Savings entered into a settlement agreement. Appellant cannot retain the benefit he received from entering into the release while depriving Superior and its officers and directors of the benefit they received from the release. Appellant's first assignment of error lacks merit. III. In his second assignment of error, appellant contends his claims for fraud against Downs and the Zimmermans are not barred by the statute of limitations. Appellant asserts he did not discover that the value of *Pattrone was not more than $1,000,000 at the time of the sale until June of 1990. Pursuant to R.C. 2305.09(C), an action for fraud must be brought within four years after the cause of action accrued. The - 10 - cause of action does not accrue until the fraud is discovered. Appellant filed his complaint on November 22, 1993. In his affidavit of 1994 filed with his brief in opposition to LaCroix's motion for summary judgment, appellant claimed he did not become aware of the true value of *Pattrone until June of 1990. Yet in his Civ.R. 60(b) motion filed before the United States District Court on June 15, 1990, appellant stated he discovered *Pattrone's value in July of 1989. Appellant cannot now contradict his earlier assertion in order to avoid the application of the statute of limitations. At the latest, appellant knew of the alleged value of *Pattrone in July of 1989. Appellant did not bring suit until November 22, 1993, past the four-year limit of R.C. 2305.09(C). Appellant's cause of action is barred by the statute of limitations. Appellant's second assignment of error is meritless. IV. In his third assignment of error, appellant argues the trial court erred in granting summary judgment to Eugene LaCroix. He maintains LaCroix's appraisal was false and LaCroix should be held liable for the fraudulent appraisal. Appellant argues he was a member of the class upon whose reliance on the appraisal could be foreseen. LaCroix appraised *Pattrone as having a value between $4,000,000 and $6,000,000. Appellant states the animal only had a value of no more than $1,000,000 at the time of the loan. - 11 - Appellant asserts this valuation was material to the transaction and made with the intention of misleading others. The elements of an action in actual 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 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. Gaines v. Preterm-Cleveland, Inc. (1987), 33 Ohio App.3d 54, 55. Appellant relies on Perpetual Fed. S. & L. Assn. v. Porter & Peck, Inc. (1992), 80 Ohio App.3d 569, to support his argument that LaCroix can be held liable to appellant for making a false valuation even though the representation was not made directly to appellant by LaCroix. In Perpetual, the defendant prepared an appraisal report regarding real property for a mortgage broker. The appraisal was made in contemplation of the bank lending money to a buyer of the property. After the loan was made, the bank dis- covered the property did not conform to zoning regulations, contrary to the information in the appraisal. The court found summary judgment to be inappropriate as there were disputed material facts as to whether the bank was a member of the limited group of persons for whose benefit the information was supplied and the bank's reliance on the supplied information. In Perpetual, there was evidence the mortgage broker knew the bank would rely on the appraisal in making its decision regarding - 12 - the loan on the property. There was evidence the bank did indeed rely on the appraisal. In the instant case, the trial court granted LaCroix's motion for summary judgment, in part, because it found appellant's affi- davit, attached to his brief in opposition to LaCroix's motion, did not indicate appellant relied in any fashion on LaCroix's appraisal and/or representations. In his affidavit, appellant claims he did not know *Pattrone had a value of no more than $1,000,000 until June of 1990. He says nothing regarding any reliance on his part on LaCroix's appraisal. Unlike Perpetual, there is no evidence LaCroix knew his appraisal would be relied upon by appellant. Further, the appraisal was done after *Pattrone was purchased. There is no evidence in the record supporting appellant's contention that the appraisal was material to his decision to purchase the horse or even that he relied at all on representation. Appellant's third assignment of error is overruled. V. In his fourth assignment of error, appellant argues the trial court should not have granted the motions for summary judgment of Oscar Zimmerman, Gregory Zimmerman, and Carol Downs. He avers they had an ulterior purpose in causing Superior Savings to file civil actions against appellant and in participating in the filing of criminal actions against him. - 13 - The release signed by appellant covers any and all claims of appellant against these defendants known or unknown in law and equity which appellant had or would have in the future. The tort of abuse of process is included in the claims released by appel- lant. Appellant's fourth assignment of error is not well taken. VI. In his fifth assignment of error, appellant contends the trial court abused its discretion in not permitting him to amend his complaint. After the settlement agreement and release were introduced in this case by the defendants, appellant sought to amend his complaint to add a claim for fraud in the inducement for entering into the settlement and release. Appellant argues he did not make such a claim initially because the settlement was confidential. A party may amend his pleading after a responsive pleading is served only by leave of court or by written consent of the adverse party. Leave of court shall be freely given when justice so requires. Civ.R. 15(A). The denial of leave to amend a pleading is discretionary with the trial court. DiPaolo v. DeVictor (1988), 51 Ohio App.3d 166. It is an abuse of discretion for a court to deny a motion, timely filed, seeking leave to file an amended complaint, where it is possi- ble that plaintiff may state a claim upon which relief may be granted and no reason otherwise justifying denial of the motion is disclosed. - 14 - Peterson v. Teodosio (1973), 34 Ohio St.2d 161, paragraph six of the syllabus. Appellant sought to add a claim that he was fraudulently induced into entering into the stipulated order of settlement and release. These agreements were entered into to settle a case before the United States District Court. Appellant already raised this exact same issue by way of a Fed.R. Civ.P. 60(b) motion before that court but then withdrew his motion. If appellant believes he was enticed into entering the agreements due to fraud, his recourse is before the United States District Courts and not the courts of the state of Ohio. The claim is not one upon which the trial court could have granted relief. The trial court did not abuse its discretion in denying appellant's motion to amend his complaint. Appellant's fifth assignment of error lacks merit. Judgment affirmed. - 15 - It is ordered that appellees recover of appellant their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, J. and JOHN R. PATTON, J. CONCUR. LEO M. SPELLACY CHIEF JUSTICE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .