COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71284 ROBERT J. HIBLER : : ACCELERATED DOCKET : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : VIKING PROPERTIES LTD., ET AL. : OPINION : : PER CURIAM DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: APRIL 3, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-308688. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Anthony J. Aveni, Esq. Stanley R. Gorom, Esq. Cannon, Stern, Aveni, Loiacono 41 E. Erie Street Painesville, OH 44077 For Defendants-Appellees: Steven A. Goldfarb, Esq. Gregory H. Melick, Esq. Hahn, Loeser & Parks 3300 BP America Building 200 Public Square Cleveland, OH 44114-2301 -2- PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.App.R. 25, the record from the Cuyahoga County Court of Common Pleas and the briefs of counsel. Robert J. Hibler, plaintiff-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, General Division, which granted the motion to dismiss of Viking Properties Ltd. and James F. Hibler, defendants-appellees. Plaintiff-appellant assigns one error for this court's review. Plaintiff-appellant's appeal is not well taken. James Hibler, defendant-appellee, is the general partner of Viking Properties Ltd., defendant-appellee, and brother to Robert Hibler, plaintiff-appellant. Viking Properties Ltd. was the owner of townhouse unit number 173 located at The Harbour in Sandusky, Ohio. On May 16, 1996, plaintiff-appellant filed a complaint in the Cuyahoga County Court of Common Pleas against Viking Properties Ltd. and Robert Hibler alleging breach of contract and unjust enrichment. Plaintiff-appellant maintained that on or about June 1, 1989, Robert Hibler approached plaintiff-appellant on behalf of Viking Properties Ltd. and attempted to induce plaintiff- appellant to purchase the aforementioned townhouse unit number 173. Initially, plaintiff-appellant declined the offer; however, after further discussion, the parties purportedly entered into the following oral agreement: -3- (a) Sale price to be $141,500. (b) Downpayment of $41,500 to be paid by August 1, 1989. (c) Plaintiff to receive immediate possession and occupancy of the premises with plaintiff's sole financial obligations being the payment of all utilities and the townhouse association's monthly and quarterly fees. (d) Plaintiff to have until July 1, 1991 to either: (1) complete the purchase of the premises by paying the $100,000 balance (without interest), or (2) advise JFH that plaintiff declined to purchase the premises and JFH would immediately return plaintiff's $41,500 downpayment (without interest). On June 13, 1989, plaintiff-appellant made an initial payment of $11,500 followed by two additional payments of $5,000 and $25,000 respectively thereby satisfying the downpayment obligation. Plaintiff-appellant took possession and occupancy of the premises in July, 1989 and began payment of the utilities and association fees for the property. Plaintiff-appellant maintained further that sometime in late November or early December, 1989, a representative of Viking Properties Ltd. informed plaintiff-appellant that payment of the $100,000 balance was demanded by December 31, 1989. Plaintiff- appellant immediately contacted his brother, James Hibler, and advised that the premature demand for payment was contrary to the terms of the purchase agreement. In addition, plaintiff- appellant informed James Hibler that he was upset with the -4- premature demand for payment and "wanted out of the deal" (plaintiff-appellant's complaint, paragraph eight). At this time, plaintiff-appellant demanded the return of his $41,500 downpayment. Lastly, plaintiff-appellant alleged that, despite repeated demands to Viking Properties Ltd. and James Hibler since December, 1989, no return of plaintiff-appellant's downpayment nor any portion thereof has occurred. In the spring of 1990, the property in question was restored to the possession of Viking Properties Ltd. and rented to a third party to the complete exclusion of plaintiff-appellant. On July 3, 1996, defendants-appellees filed their motion to dismiss plaintiff-appellant's complaint pursuant to Civ.R. 12(B)(6). Defendants-appellees maintained that plaintiff- appellant's complaint was barred by the applicable statute of limitations, R.C. 2305.07, since it was not filed within six years of the alleged breach of the oral contract in December, 1989. Plaintiff-appellant argued that his complaint was not barred by the six-year statute of limitations for oral contracts. It was plaintiff-appellant's position that the underlying breach of contract did not occur until July 1, 1991, the date plaintiff- appellant was to have decided whether to tender the remaining $100,000 of the purchase price or request the return of his $41,500 downpayment from defendants-appellees. On August 20, 1996, the trial court issued the following -5- judgment entry: Defendants' Rule 12(B)(6) Motion to Dismiss Plaintiff's Complaint (filed 7-3-96) is granted. Plaintiff's claims are barred by statute of limitations, 2305.07. On September 18, 1996, plaintiff-appellant filed a timely notice of appeal from the judgment of the trial court. On appeal, plaintiff-appellant's sole assignment of error states: THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION TO DISMISS WITH PREJUDICE, PURSUANT TO OHIO RULE OF CIVIL PROCEDURE 12(B)(6) AS THE COMPLAINT INFERRED FACTS WHICH WOULD SUPPORT THE PLAINTIFF'S CLAIMS. Plaintiff-appellant argues, through his sole assignment of error, that the trial court incorrectly granted defendants- appellees' motion to dismiss the complaint pursuant to Civ.R. 12(B)(6). Specifically, plaintiff-appellant maintains that the actual breach of contract that is the subject of the underlying action did not occur until July 1, 1991, the original date plaintiff-appellant was to have decided whether to tender the remaining purchase price of $100,000 or request the return of the $41,500 downpayment and forfeit the right to purchase the property. Defendants-appellees contend that the actual date upon which the underlying breach of contract occurred was, at the absolute latest, December 31, 1989. This assertion is based upon the alleged demand by Viking Properties Ltd. for payment of the remaining purchase price for the property in question by December 31, 1989 combined with plaintiff-appellant's demand for the -6- immediate return of the downpayment and stated intention that he "wanted out of the deal." For the following reasons, plaintiff-appellant's sole assignment of error is not well taken. In Fahnbulleh v. Strahan (1995), 73 Ohio St.3d 666, 667, 653 N.E.2d 1186, the Ohio Supreme Court, in dealing with the standard of review to be applied to a Civ.R. 12(B)(6) motion to dismiss, stated: [*512] A complaint should not be dismissed for failure to state a claim merely because the allegations do not support the legal theory on which the plaintiff relies. Instead, a trial court must examine the complaint to determine if the allegations provide for relief on any possible theory. See Patriarca v. Federal Bur. of Investigation (D.R.I. 1986), 639 F. Supp. 1193. A court must construe all material allegations in the complaint and all inferences that may be reasonably drawn therefrom in favor of the nonmoving party. Phung v. Waste Mgt., Inc. (1986), 23 Ohio St.3d 100, 23 Ohio B. Rep. 260, 491 N.E.2d 1114. Thus, a court must presume all factual allegations in the complaint are true for purpose of the motion. Bridges v. Natl. Eng. & Contracting Co. (1990), 49 Ohio St.3d 108, 551 N.E.2d 163. See also, Edward Biro, et al. v. Hartman Funeral Home (Nov. 16, 1995), Cuyahoga App. No. 69085, unreported. In Katyk v. Rebovich (1993), 87 Ohio App.3d 116, this court set forth the standard when reviewing a Civ.R. 12(B)(6) motion to dismiss a complaint based upon the expiration of the statute of limitations: A motion to dismiss a complaint per Civ.R. 12(B)(6), which is based upon a failure to -7- state a claim upon which relief can be granted, should be granted by a trial court when a complaint on its face indicates that a claim is barred by an applicable statute of limitations. Mills v. Whitehouse Trucking Co. (1974), 40 Ohio St.2d 55, 69 O.O.2d 350, 320 N.E.2d 668; Goad v. Cuyahoga Cty. Bd. of Commrs. (1992), 79 Ohio App.3d 521, 607 N.E.2d 878. Id. at 119. This court found further that a cause of action for breach of contract accrued when the party discovered the omission to perform as agreed. Id. at 121; Cleveland Bd. of Edn. v. Lesko (April 12, 1990), Cuyahoga App. No. 56592, unreported. R.C. 2305.07, which sets forth the statute of limitations for an oral contract, provides: Except as provided in sections 126.301 and 1302.98 of the Revised Code, an action upon a contract not in writing, express or implied, or upon a liability created by statute other than a forfeiture or penalty, shall be brought within six years after the cause thereof accrued. In the case sub judice, presuming all factual allegations contained in plaintiff-appellant's complaint as true, a review of plaintiff-appellant's complaint on its face demonstrates that plaintiff-appellant's claims for breach of oral contract and unjust enrichment are barred by the applicable six-year statute of limitations for oral contracts set forth in R.C. 2305.07. Paragraph seven of the underlying complaint clearly states that in late November or early December plaintiff-appellant was informed that Viking Properties Ltd. was demanding payment of the full purchase price by December 31, 1989. Paragraph eight of the complaint then states that plaintiff-appellant immediately -8- contacted Viking Properties Ltd., informed the company that it did not have the right to demand full payment of the purchase price -9- until July 1, 1991 and demanded the return of the $41,500 downpayment stating at that time that he "wanted out of the deal." Plaintiff-appellant maintains that since the downpayment was not promptly returned (paragraph ten of the complaint), the only reasonable inference which can be drawn from the complaint is that the parties took no action as a result of their discussions and the oral contract remained in full force and effect allowing plaintiff-appellant until July 1, 1991 to decide whether to purchase the property. However, plaintiff- appellant's assertion ignores paragraph nine of the complaint in which plaintiff-appellant admits that Viking Properties Ltd. was restored to full possession of the subject property in the spring of 1990 at which time the property was rented to a third-party to the exclusion of plaintiff-appellant. Clearly, the parties did in fact take action as a result of the December, 1989 discussions indicating that the breach of the oral contract took place at that time. Katyk v. Rebovich, supra; Cleveland Bd. of Edn. v. Lesko, supra. Accordingly, the trial court properly granted defendants-appellees' motion to dismiss the complaint pursuant to Civ.R. 12(B)(6) since plaintiff-appellant's cause of action was barred by the six-year statute of limitations set forth in R.C. 2305.07. Plaintiff-appellant's sole assignment of error is not well taken. Judgment of the trial court is affirmed. -10- -11- It is ordered that appellees recover of appellant his 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, C.J. DAVID T. MATIA, J. DIANE KARPINSKI, J. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct. Prac.R. II, Section 2(A)(1). .