COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73903 JEROME A. BRENTAR : JOURNAL ENTRY : AND Plaintiff-appellant : OPINION : -vs- : : MARA SLAVIC RUPERT, AKA : MARA SLAVIC : : Defendant-appellee : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 17, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Cleveland Municipal Court Case No. 96-CVF-23905 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: JOSEPH T. MCGINNESS, ESQ. 1260 Illuminating Building 55 Public Square Cleveland, Ohio 44113-1992 For Defendant-Appellee: GREGORY E. HOOVER, ESQ. U.A.W. Legal Services Plan 707 Brookpark Road Brooklyn Hts., Ohio 44109 DYKE, J.: -2- Plaintiff Jerome Brentar appeals from the judgment of the trial court entered in favor of defendant Mara Slavic Rupert in plaintiff's action for conversion of a check. For the reasons set forth below, we affirm. This action concerns the April 1992, negotiation of a check for $708 which plaintiff made payable to Raphael Primorac. The check appears to contain the endorsement of Primorac and was also endorsed by defendant, then deposited into defendant's checking account. On November 8, 1996, plaintiff filed this action against defendant, alleging that he had given the check to defendant and asked her to forward it to Primorac. Plaintiff further alleged that defendant forged Primorac's signature and retained the $708 for her own use. Defendant denied forging Primorac's signature and denied retaining the proceeds of plaintiff's check. She also affirmatively averred that the claim was barred by the statute of limitations. The matter came to trial on December 3, 1997. Plaintiff presented the testimony of defendant as if upon cross-examination. Defendant stated that she received plaintiff's check to Primorac from her late husband who was involved in various Croatian organizations. At his request, she endorsed the check below the endorsement which purports to be the signature of Raphael Primorac. She then deposited it at her bank in Richmond Heights. Defendant could not recall what had happened to the proceeds and she stated that it was possible that she gave Primorac cash or a second check which he could negotiate in Europe. Defendant denied forging -3- Primorac's signature on the check and stated that she did not retain the proceeds from any check which did not belong to her. Plaintiff testified that he made the check payable to Primorac to repay him for tickets for a LADO activity. Plaintiff then gave the check to defendant to send to Primorac who was living in California. The evidence demonstrates that the check contains a signature in the name of Primorac and a second endorsement in defendant's name. The evidence further demonstrates that the check was negotiated on April 22, 1992 in Richmond Heights and the canceled check was then returned to plaintiff with his May 1992 bank statement. To explain his delay in filing suit, plaintiff stated that in 1996, Primorac gave him a check in an unrelated transaction, and this check was returned for insufficient funds. As a result of discussions with Primorac concerning that transaction, plaintiff suspected, for the first time, that Primorac did not receive the check which plaintiff asked defendant to forward to Primorac. In 1996, plaintiff examined his bank statement and determined that defendant had endorsed the check. Plaintiff opined that defendant had signed Primorac's signature on the check, as well as her own, and he presented a letter which he had received from Primorac and Marko Rudela which bears a signature that is unlike the purported Primorac endorsement on the subject check. The Rudela and Primorac signatures appear to have some similarities, however, and there was no definitive evidence indicating in whose hand they were written. Primorac did not testify and there was no testimony to -4- substantiate plaintiff's claim that Primorac received none of the proceeds of the 1992 check. In addition, no handwriting analysis was performed and there was no evidence concerning the characteristics of Primorac's genuine signature. On January 2, 1998, the trial court issued judgment for defen- dant. In separate findings of fact and conclusions of law, the court stated in relevant part as follows: The court finds that the basis of plaintiff's action is one for conversion. The court further finds that the defendant failed to prove that there was an unlawful conversion because there is no way to determine the true signature of Primorac. It is possible that Primorac did endorse the check to defendant based on her testimony that Primorac stayed at her house several times. The court further finds that if the plaintiff could make a case for conversion, such cause of action would be barred by the statute of limitations. Plaintiff now appeals and assigns three errors for our review. As we have determined that the second assignment of error is dispositive of this matter, we shall address it first. Defendant's second assignment of error states: THE TRIAL COURT ERRED IN DETERMINING THE STATUTE OF LIMITATIONS, FAILING TO CONSIDER THE IDENTITY OF THE WRONGDOER AS STATED IN R.C. 2305.09. Within this assignment of error, plaintiff asserts that the statute of limitations did not begin to run until 1996 when he learned the identity of the wrongdoer, pursuant to R.C. 2305.09. R.C. 2305.09(B) sets forth a four year statute of limitations for conversion. This period is also applicable when the plain- -5- tiff's claim involves conversion of commercial paper. See Palmer Mfg. & Supply, Inc. v. BancOhio Natl. Bank (1994), 93 Ohio App.3d 17, 21-22. R.C. 2305.09 additionally provides as follows: If the action is for trespassing under ground or injury to mines, or for the wrongful taking of personal property, the causes thereof shall not accrue until the wrongdoer is discovered; nor, if it is for fraud, until the fraud is discovered. This provision is simply a codification of the discovery rule which tolls the running of the statute of limitations for conversion. Herbert v. Banc One Brokerage Corp. (1994), 93 Ohio App.3d 271, 275; Crosby v. Beam (1992), 83 Ohio App.3d 501, 510. Discovery includes actual discovery and also includes what might, with due diligence, have been discovered. Kettering v. Berger (1982), 4 Ohio App.3d 254, 261; Investors REIT One v. Jacobs (1989), 46 Ohio St.3d 176, 179-180; Riedel v. Houser (1992), 79 Ohio App.3d 546, 549. Thus, the date of discovery may toll the running of the statute of limitations until the plaintiff dis- covers, or in the exercise of reasonable care, should have discovered the claimed injury. Investors REIT One v. Jacobs, supra. In Palmer Mfg. & Supply, Inc. v. BancOhio Natl. Bank, supra, however, the court held that in light of the articulated objectives of the Uniform Commercial Code, including negotiability, finality, and uniformity, the statute of limitations is not tolled pending plaintiff's discovery of the claimed conversion where the subject of the conversion is a negotiable instrument, unless fraudulent concealment is demonstrated. Indeed, under previous enactments of -6- R.C. 1304.29, pertaining to actions filed by customers against their banks to recover sums allegedly debited from the customer's account on the basis of a forged endorsement, the bank may raise as an affirmative defense the customer's failure to report the unauthorized signature within three years from the time when the statement is available to the customer. Cf. Stauffer v. Oakwood Deposit Bank (1969), 19 Ohio App.2d 68, 71 (construing a one year limitation set forth in former R.C. 1304.29). In this instance, we note that there was no evidence that defendant fraudulently concealed her endorsement of the check as it appeared directly on the back of the check which was returned to plaintiff in his May 1992 bank statement. Thus, consistent with the holding of Palmer Mfg. & Supply, Inc. v. BancOhio Natl. Bank, supra, the discovery rule should not be applied herein and this action is clearly barred by the statute of limitations. In any event, we conclude that even if the discovery rule were applied herein, plaintiff, with due diligence should have discovered his alleged cause of action in May 1992 when he received a statement from his bank and the canceled check. These documents clearly indicate that defendant endorsed the subject check beneath the purported signature of Primorac and further indicate that the check was cashed in Richmond Heights, and not negotiated in California where Primorac lived. Accordingly, the trial court properly concluded that this cause of action was barred by R.C. 2305.09. The assignment of error is without merit. -7- Defendant's first and third assignments of error state: THE TRIAL COURT FAILED TO GIVE WEIGHT TO THE NON-EXPERT HANDWRITING OPINION TESTIMONY OF THE PLAINTIFF. THE TRIAL COURT'S JUDGMENT IS CONTRARY TO THE EVIDENCE. In light of our determination that the second assignment of error is well-taken, these claims are moot and will not be addres- sed herein. App.R. 12 (A)(1)(c). Moreover, we note that there was no competent evidence establishing that Primorac did not receive the money due him. These claims therefore lack merit. Affirmed. -8- It is ordered that appellee recover of appellant her 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 Cleveland Municipal 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. PORTER, P.J., AND SPELLACY, J., CONCUR. ANN DYKE JUDGE 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 .