[Cite as Cohen v. Dulay, 2017-Ohio-6973.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

ROBERT L. COHEN, As Receiver for PEI 

Liquidation, Inc. 

 Appellant 

 v. 

LAWRENCE J. DULAY, et al. 

 Appellees 

C.A. No. 28071 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. CV 2014-01-0009 

DECISION AND JOURNAL ENTRY 

Dated: July 26, 2017 

 

SCHAFER, Judge. 

{¶1} Plaintiff-Appellant, Robert L. Cohen, in his capacity as the court-appointed 

receiver for the dissolved corporation, PEI Liquidation, Inc. (“PEI”), appeals the judgment of the 

Summit County Court of Common Pleas granting summary judgment in favor of DefendantsAppellees, Lawrence J. Dulay, Thomas W. Edger, Robert Schneider, Kenneth S. Sekley, 

Frederick Van Reames, Craig Cox, Jeffery Rohrs, Robert Zelinski, Mary Lee Pilla, and Kevin 

Dow (collectively, “Defendants”).1

 For the reasons set forth below, we affirm in part, reverse in 

part, and remand. 

I. 

{¶2} This appeal arises out of the corporate dissolution proceeding for PEI and the 

related lawsuit that followed Cohen’s investigation into the causes of the company’s liquidation. 

 1

 The Defendants were members of PEI’s board of directors at some point between 2006 

and 2010. 
2 

 

PEI, formerly known as Patio Enclosures, Inc., was an Ohio for-profit corporation that was 

incorporated in 1966 and whose principal place of business was located in Macedonia, Ohio. 

PEI was in the business of manufacturing, distributing, and retailing sunrooms and other related 

products in both the residential and commercial markets. In 1967, Defendant Schneider, the son 

of one of the company’s co-founders, entered the business and took over his father’s interest. 

Schneider thereafter became PEI’s longtime CEO and chairman of the board of directors. 

{¶3} In 1996, PEI established an employee stock ownership plan (“ESOP”) with the 

goal of making the company entirely employee-owned by 2006. As part of the initial ESOP 

transaction, PEI divided its common stock into two classes, Class A and Class B. These two 

classes of common stock were equal in all respects except that the Class A shares had 

preferential dividend rights. The ESOP owned all of the outstanding Class A common shares, 

while Schneider controlled all of the outstanding Class B common shares. Starting in 1997, the 

ESOP gradually began purchasing shares of Schneider’s stock until the ESOP eventually 

controlled 100% of the outstanding shares of PEI common stock. The final transaction occurred 

in 2006, when the ESOP purchased the remaining 30% of the company’s common stock from 

Schneider for $6,494,850.00. The ESOP funded this final transaction of Schneider’s remaining 

stock with a multi-million dollar legal judgment that PEI was awarded in 2004. See Patio 

Enclosures, Inc. v. Four Seasons Marketing Corp., 9th Dist. Summit No. 22458, 2005-Ohio4933. After purchasing the company’s remaining stock from Schneider, PEI used the balance of 

the legal judgment to satisfy the debt of all of the company’s secured creditors. Cohen’s 

subsequent investigation into PEI’s financials revealed that from 1996 to 2006, while the ESOP 

was actively purchasing Schneider’s shares of common stock, PEI “consistently experienced 
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declining operating profitability, ultimately resulting in net operating losses of $3.9 million in 

2005 and $4.3 million in 2006.” 

{¶4} Schneider retired as CEO of PEI in late 2006 and resigned his position as 

chairman of the board of directors in May 2007. However, after successive years of net 

operating losses, PEI’s board of directors entered into negotiations with Schneider to obtain 

financial assistance in an effort to provide the company with access to additional working 

capital. In 2009, Schneider proposed a loan guaranty to increase PEI’s line of credit by up to six 

million dollars, but only if the board agreed to certain terms and conditions. The negotiations 

between Schneider and the board ultimately broke down and Schneider provided no additional 

funding or loan guarantees to PEI. 

{¶5} Due to the company’s inability to secure additional working capital, coupled with 

the collapse of the national housing market, PEI terminated all of its employees and its business 

operations on December 31, 2010. On January 20, 2011, PEI’s board of directors adopted a 

resolution of dissolution to voluntarily dissolve the corporation under Ohio law. The corporation 

filed its complaint for judicial administration of its dissolution and the winding up of its 

corporate affairs on February 22, 2011. The trial court subsequently appointed Cohen as receiver 

to administer PEI’s estate and its dissolution case. 

{¶6} On January 2, 2014, following his investigation into PEI’s affairs, Cohen filed 

suit against Defendants in the Summit County Court of Common Pleas, pleading the following 

five claims against the Defendants: (1) breach of fiduciary duty; (2) aiding, abetting, inducing, or 

participating in breach of fiduciary duty; (3) waste; (4) deepening insolvency and wrongful 

prolongation of corporate existence; and (5) breach of fiduciary duty owed to creditors. On 

March 14, 2014, all Defendants except Schneider filed a Civ.R. 12(B)(6) motion to dismiss 
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Cohen’s complaint for failure to state a claim upon which relief can be granted, arguing that 

Counts One and Five are time-barred by the applicable statute of limitations under R.C. 2305.09 

and that Counts Two through Five are legally defective. On April 4, 2014, Schneider filed a 

Civ.R. 12(C) motion for judgment on the pleadings. The trial court denied Defendants’ 

respective Civ.R. 12 motions. The trial court also denied Defendants’ subsequent motions to 

reconsider the denial of their respective Civ.R. 12 motions. Defendants ultimately filed answers 

denying the allegations set forth in Cohen’s complaint. The matter then proceeded through the 

discovery phase of the litigation. 

{¶7} On September 10, 2015, Defendants filed motions for summary judgment. Cohen 

filed an omnibus brief in opposition to Defendants’ motions for summary judgment, to which 

Defendants filed reply briefs in support of their respective summary judgment motions. On 

December 31, 2015, the trial court issued a judgment entry granting summary judgment in favor 

of Defendants. In so doing, the trial court specifically determined that Count One and Count 

Five contained within Cohen’s complaint were time-barred by the statute of limitations set forth 

in R.C. 2305.09. The trial court also concluded that Count Two, Count Three, and Count Four 

contained in Cohen’s complaint are not cognizable causes of action under Ohio Law. 

{¶8} Cohen filed this timely appeal and raises one assignment of error for our review. 

II. 

Assignment of Error 

The trial court erred in granting summary judgment in favor of the Board 

Members by (a) finding that there was no genuine issue of material fact and 

(b), after viewing the evidence most strongly in favor of the Receiver, 

concluding that the Board Members were entitled to judgment as a matter of 

law on the grounds that: (i) the Receiver’s claims for breach of fiduciary 

duty are subject to the four (4) year statute of limitations set forth in R.C. [] 

2305.09 and are not subject to the discovery rule; and (ii) the Receiver’s 

claims for aiding and abetting breaches of fiduciary duty, waste and 
5 

 

deepening insolvency (collectively, the “Additional Claims”) are not 

cognizable causes of action under Ohio law. 

{¶9} In his sole assignment of error, Cohen argues that the trial court erred by granting 

summary judgment completely in favor of the Defendants. 

A. Standard of Review 

{¶10} We review an award of summary judgment de novo. Grafton v. Ohio Edison Co.,

77 Ohio St.3d 102, 105 (1996). Summary judgment is only appropriate where (1) no genuine 

issue of material fact exists; (2) the movant is entitled to judgment as a matter of law; and (3) the 

evidence can only produce a finding that is contrary to the non-moving party. Civ.R. 56(C). 

Before making such a contrary finding, however, a court must view the facts in the light most 

favorable to the non-moving party and must resolve any doubt in favor of the non-moving party. 

Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359 (1992). 

{¶11} Summary judgment consists of a burden-shifting framework. To prevail on a 

motion for summary judgment, the party moving for summary judgment must first be able to 

point to evidentiary materials that demonstrate there is no genuine issue as to any material fact, 

and that the moving party is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio 

St.3d 280, 293 (1996). Once a moving party satisfies its burden of supporting its motion for 

summary judgment with sufficient and acceptable evidence pursuant to Civ.R. 56(C), Civ.R. 

56(E) provides that the non-moving party may not rest upon the mere allegations or denials of 

the moving party’s pleadings. Rather, the non-moving party has a reciprocal burden of 

responding by setting forth specific facts, demonstrating that a “genuine triable issue” exists to 

be litigated for trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 449 (1996). 

 
6 

 

B. Breach of Fiduciary Duty Claims 

{¶12} Cohen asserts that the trial court erred by granting summary judgment in favor of 

the Defendants on the basis that his claims for breach of fiduciary duty and breach of fiduciary 

duty owed to creditors (Counts One and Five, respectively) are time-barred by the statute of 

limitations contained in R.C. 2305.09. Specifically, Cohen contends that since his breach of 

fiduciary duty claims are premised on allegations of fraud, the trial court erred by determining 

that the statute of limitations was not subject to “the discovery rule.” In the alternative, Cohen 

argues that even if R.C. 2305.09’s statute of limitations does apply to his breach of fiduciary 

duty claims, his claims are still not time-barred because the doctrines of equitable tolling and 

adverse domination apply. 

{¶13} Neither party disputes that the four-year statute of limitations contained in R.C. 

2305.09 governs Cohen’s breach of fiduciary duty claims. See Caghan v. Caghan, 5th Dist. 

Stark No. 2014 CA 00094, 2015-Ohio-1787, ¶ 45-46 (“The statute of limitations for both a fraud 

action or a breach of fiduciary duty action is four years as set forth in R.C. []2305.09. * * * R.C. 

[]2305.09(D) determines the statute of limitations for claims for breach of fiduciary duty.”); see 

also Cundall v. U.S. Bank, 122 Ohio St.3d 188, 2009-Ohio-2523, ¶ 24 (“Claims for fraud and 

breach of fiduciary duty based on fraud are governed by the four-year statute of limitations set 

forth in R.C. 2305.09, unless the claim is not discovered despite reasonable diligence.”). 

Therefore, the issues raised in this portion of Cohen’s argument are two-fold: (1) when did the 

four-year statute of limitations begin to accrue? and (2) did Cohen timely file his claims? 

{¶14} Cohen asserts that since his breach of fiduciary duty claims are based on alleged 

fraudulent conduct committed by the Defendants, that the “discovery rule” is applicable to his 

breach of fiduciary duty claims. “The ‘discovery rule’ generally provides that a cause of action 
7 

 

accrues for purposes of the governing statute of limitations at the time when the plaintiff 

discovers or, in the exercise of reasonable care, should have discovered the complained of 

injury.” Investors REIT One v. Jacobs, 46 Ohio St.3d 176, 179 (1989), citing Oliver v. Kaiser 

Community Health Found., 5 Ohio St.3d 111 (1983). Defendants, on the other hand, disagree 

and argue that the trial court correctly concluded that Cohen’s breach of fiduciary duty claims 

did not properly plead claims for fraud and, as such, are not subject to the discovery rule. 

Accordingly, Defendants argue that the statute of limitations accrued when the alleged acts or 

omissions constituting the breach of fiduciary duties actually occurred. The resolution of this 

purely legal question necessarily dictates whether Cohen’s claims are time-barred by R.C. 

2305.09’s four-year statute of limitation. 

{¶15} “In determining the proper statute of limitations for a cause of action, the court 

must review the complaint to determine the essential character of the claim: ‘[I]n determining 

which limitation period will apply, courts must look to the actual nature or subject matter of the 

case, rather than to the form in which the action is pleaded. The grounds for bringing the action 

are the determinative factors, the form is immaterial.’” Caghan at ¶ 43, quoting Love v. Port 

Clinton, 37 Ohio St.3d 98, 99 (1988); see also Doe v. First United Methodist Church, 68 Ohio 

St.3d 531 (1994). “[W]hen pleading fraud * * *, the circumstances constituting fraud * * * shall 

be pleaded with particularity.” Bear v. Bear, 9th Dist. Summit No. 26810, 2014–Ohio–2919, ¶ 

23, citing Civ.R. 9(B). 

{¶16} In the present case, Cohen’s complaint contains the following five counts: (1) 

breach of fiduciary duty; (2) aiding, abetting, inducing, or participating in breach of fiduciary 

duty; (3) waste; (4) deepening insolvency and wrongful prolongation of corporate existence; and 

(5) breach of fiduciary duty owed to creditors. Relevant to this portion of Cohen’s argument, the 
8 

 

trial court explicitly determined that counts 1 (breach of fiduciary duty) and 5 (breach of 

fiduciary duty owed to creditors) are not subject to the discovery rule. 

{¶17} After a careful review of Cohen’s complaint, we agree that Cohen failed to plead 

a cause of action for fraud with particularity as required by Civ.R. 9(B). Crucial to this 

determination is the fact that, upon thorough review of Cohen’s 105-paragraph complaint, this 

Court simply cannot discern which of the Defendants’ acts or omissions Cohen is alleging to be 

fraudulent. Additionally, although Cohen utilized headings within his complaint for each claim, 

Cohen failed to caption his breach of fiduciary duty claims with a heading indicating that those 

claims were based on fraudulent conduct. Lastly, although Cohen’s complaint does assert that 

the Defendants’ conduct constituting breaches of fiduciary duties “were either knowing, willful, 

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

justification or excuse,” we conclude that this sort of “catch-all” language fails to meet the 

heightened pleading requirements that Civ.R. 9(B) mandates. Accordingly, we determine that 

Cohen has failed to properly plead a cause of action for fraud in this matter. Thus, we conclude 

that the trial court did not err by determining that the discovery rule was inapplicable to Cohen’s 

breach of fiduciary duty claims. 

{¶18} However, our determination that the discovery rule does not apply to Cohen’s 

breach of fiduciary duty claims does not end our analysis. Cohen argues on appeal that the trial 

court’s decision that his claims are time-barred by the statute of limitations contained in R.C. 

2305.09 violates the law of the case doctrine where the trial court previously rejected this exact 

argument in its denial of Defendants’ respective Civ.R. 12 motions and in its denial of the 

subsequent motion for reconsideration. 
9 

 

{¶19} The law of the case doctrine provides that “the decision of a reviewing court in a 

case remains the law of that case on the legal questions involved for all subsequent proceedings 

in the case at both the trial and reviewing levels.” (Emphasis added.) Nolan v. Nolan, 11 Ohio 

St.3d 1, 3 (1984). “[T]he law of the case doctrine does not mean that a trial court may not 

reconsider its prior rulings.” Creauro v. Duko, 7th Dist. Columbiana No. 04 CO 1, 2005-Ohio1342, ¶ 25, citing Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378, 380, fn. 1 (1981) and Poluse 

v. Youngstown, 135 Ohio App.3d 720, 725 (7th Dist.1999). Indeed, Civ.R. 54(B) explicitly 

states that any order which is not a final appealable order “is subject to revision at any time 

before the entry of judgment adjudicating all the claims and the right and liabilities of all the 

parties.” Accordingly, because the trial court’s denial of the Defendants’ respective Civ.R. 12 

motions and subsequent motion for reconsideration were not final appealable orders, see Sumskis 

v. Medina Cty. Bd. of Mental Retardation and Dev., 9th Dist. Medina Nos. 2886-M, 2887-M, 

2000 WL 141078, *1 (Feb. 2, 2000), we determine that the trial court did not err by later revising 

its decision and concluding that Cohen’s breach of fiduciary duty claims were time-barred. See 

Creauro at ¶ 26-28 (holding that the law of the case doctrine did not apply to appellees’ motion 

for summary judgment since: (1) a motion to dismiss for failure to state a claim upon which 

relief can be granted and a motion for summary judgment involve different legal standards, and 

(2) the denial of a motion to dismiss is an interlocutory order). Accordingly, Cohen’s argument 

on this point is without merit. 

{¶20} Cohen also alleges on appeal that he is entitled to an equitable accounting “on 

account of the Board Members’ breach of their fiduciary duty beginning in 2006 and continuing 

through 2009 up to the date of their resignation.” Cohen contends that he is not time-barred from 

seeking an equitable accounting since R.C. 2305.14 “establishes a ten-year statute of limitations 
10 

 

for equitable claims.” We note, however, that Cohen failed to raise this argument in his omnibus 

brief in opposition to the Defendants’ summary judgment motions. Accordingly, we decline to 

address this argument. See Roberts v. Reyes, 9th Dist. Lorain No. 10CA009821, 2011-Ohio2608, ¶ 9 (“Although this Court conducts a de novo review of summary judgment, it is 

nonetheless a review that is confined to the trial court record. The parties are not given a second 

chance to raise arguments that they should have raised below.”), quoting Owens v. French 

Village Co., 9th Dist. Wayne No. 98CA0038, 1999 WL 635722, *1 (Aug. 18, 1999). 

{¶21} Cohen further alleged in his omnibus brief in opposition to Defendants’ respective 

motions for summary judgment that even if R.C. 2305.09’s statute of limitations does apply to 

his breach of fiduciary duty claims, his claims are still not time-barred because various 

“equitable tolling principles” and the doctrine of adverse domination apply. After a 

comprehensive review of the record, we note that the trial court did not explicitly rule upon the 

various doctrines raised in Cohen’s opposition brief. Due to our role as a reviewing court, we 

cannot make a determination regarding the merits of an argument in the first instance. 

Catalanotto v. Byrd, 9th Dist. Summit No. 27824, 2016-Ohio-2815, ¶ 12. Rather, we must 

reverse the trial court’s grant of summary judgment in favor of the Defendants. As such, we 

remand this matter for the trial court to address in the first instance the merits of the various 

tolling arguments that are raised in Cohen’s omnibus brief in opposition to Defendants’ motions 

for summary judgment. This Court takes no position on the merits of these arguments at this 

time. 

{¶22} Lastly, Cohen argues that the Defendants breached their fiduciary duties by 

failing to take remedial action. Specifically, Cohen argued in his omnibus brief in opposition 

that “as PEI underwent its inevitable resulting failure, all Defendants continued in their failure to 
11 

 

take subsequent corrective action with respect to the foregoing, resulting in a secured party 

foreclosure in January 2011[.]” Cohen contends that this portion of his breach of fiduciary duty 

claims is not barred by the statute of limitations, even without applying tolling principles. 

However, we again note that the trial court did not address this specific argument below. 

Accordingly, we also instruct the trial court to consider the merits of this argument in the first 

instance on remand. See id. Like Cohen’s equitable tolling arguments, we take no position on 

the merits of this argument at this time. 

C. Remaining Claims 

{¶23} Additionally, Cohen argues that the trial court erred by granting summary 

judgment in favor of the Defendants on the basis that his remaining claims (“aiding, abetting, 

inducing, or participating in breaches of fiduciary duties,” “waste,” and “deepening insolvency 

and wrongful prolongation of corporate existence”) are not cognizable causes of action under 

Ohio law. We disagree. 

{¶24} “In determining which statute of limitations should be applied to a particular 

cause of action, * * * ‘courts must look to the actual nature or subject matter of the case, rather 

than to the form in which the action is pleaded. The grounds for bringing the action are the 

determinative factors[;] the form is immaterial.’” Bear, 9th Dist. Summit No. 26810, 2014-

Ohio-2919, at ¶ 18, quoting Lawyers Cooperative Publishing Co. v. Muething, 65 Ohio St.3d 

273, 277-278 (1992), quoting Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 183 (1984). 

{¶25} Our review of Cohen’s remaining claims reveals that they are based upon the 

2006 stock transaction and the Defendants’ failure to secure a loan guaranty from Schneider in 

2009. Cohen alleges that these two events constituted corporate waste, deepened PEI’s 

insolvency, wrongfully prolonged PEI’s corporate existence, and aided, abetted, induced, or 
12 

 

participated in a breach of fiduciary duty and other misconduct. Although the respective 

headings utilized in Cohen’s complaint on these claims are not independent causes of action 

under Ohio law, the nature of the waste and deepening insolvency claims, if true, may still 

constitute a breach of fiduciary duty. See In re Gas Natural, Inc., N.D. Ohio No. 1:13 CV 

02805, 2015 WL 3557207, fn. 12 (June 4, 2015) (“Under Ohio law, corporate waste is a way in 

which a corporate director’s fiduciary duty can be breached, not a separate cause of action 

independent of a fiduciary breach.”), citing In re Keithley Instruments, Inc., 599 F.Supp.2d 875, 

903 (N.D. Ohio 2008); see also In re National Century Financial Enterprises, Inc., 604 

F.Supp.2d 1128, 1153 (S.D. Ohio 2009), citing In re Amcast Indus. Corp., 365 B.R. 91, 115-117 

(S.D. Ohio 2007) (recognizing that deepening insolvency is not an independent tort under Ohio 

law since it is “duplicative of a claim for breach of fiduciary duty.”). 

{¶26} However, as noted earlier in this opinion, Cohen clearly pled causes of action for 

breach of fiduciary duty stemming from the 2006 stock transaction and the Defendants’ failure to 

secure a loan guaranty from Schneider in 2009. As such, due to the redundancy of Cohen’s 

waste and deepening insolvency claims, we cannot say that it was improper for the trial court to 

dismiss those causes of action. See In re Amcast at 118 (dismissing plaintiff’s redundant claim 

for deepening insolvency after determining that the claim was identical to the breach of fiduciary 

duty claim); see also Cook Family Invests. v. Billings, 9th Dist. Lorain Nos. 05CA008689, 

05CA008691, 2006–Ohio–764, ¶ 19 (“[A]n appellate court shall affirm a trial court’s judgment 

that is legally correct on other grounds, that is, one that achieves the right result for the wrong 

reason, because such an error is not prejudicial.”). 

{¶27} Lastly, with respect to Cohen’s aiding, abetting, inducing or participating in 

breaches of fiduciary duties claim, we conclude that such a cause of action is not cognizable 
13 

 

under Ohio law. See Sacksteder v. Senney, 2d Dist. Montgomery No. 24993, 2012-Ohio-4452, ¶ 

73-76 (holding that Ohio courts have not recognized a cause of action for participation in a 

breach of fiduciary duty), citing DeVries Dairy, L.L.C. v. White Eagle Coop. Assn., Inc., 132 

Ohio St.3d 516, 2012-Ohio-3828, ¶ 2 (holding that Ohio has never recognized a cause of action 

for tortious acts in concert under 4 Restatement (2d) of Torts, § 876 (1979)). Accordingly, we 

determine that the trial court did not err by dismissing Cohen’s claim for aiding, abetting, 

inducing or participating in breaches of fiduciary duties. 

{¶28} Cohen’s assignment of error is sustained to the extent that the trial court erred by 

granting summary judgment in favor of the Defendants without first addressing Cohen’s tolling 

arguments. The remainder of Cohen’s assignment of error is overruled. 

III. 

{¶29} Cohen’s sole assignment of error is sustained in part and overruled in part. The 

judgment of the Summit County Court of Common Pleas is affirmed in part, reversed in part, and 

the matter is remanded for further proceedings consistent with this opinion. 

Judgment affirmed in part, 

reversed in part, 

and cause remanded. 

 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 
14 

 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed equally to both parties. 

 

 JULIE A. SCHAFER 

 FOR THE COURT 

HENSAL, J. 

CONCURS. 

CARR, P. J. 

CONCURRING IN PART, AND DISSENTING IN PART. 

{¶30} Cohen has argued on appeal that the trial court erred in granting summary 

judgment to the Defendants because the discovery rule in R.C. 2305.09 applies to counts one and 

five of his complaint for breach of fiduciary duty based upon fraud. See Cundall v. U.S. Bank, 

122 Ohio St.3d 188, 2009-Ohio-2523, ¶ 24. Thus, he asserts that his litigation of those claims is 

not barred by the statute of limitations. 

{¶31} The relevant portion of R.C. 2305.09 provides that, “[i]f 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.” (Emphasis added.) The trial court concluded that the discovery rule did 

not apply to counts one and five because Cohen failed to comply with Civ.R. 9(B) as he did not 

plead fraud with particularity. Cohen has argued that he demonstrated that “the Board Members 

committed fraud and thereby breached their duty[]” and that he complied with the requirements 
15 

 

of Civ.R. 9(B). Cohen has not argued that the requirements of Civ.R. 9(B) do not apply to his 

claims and accordingly that issue is not before the Court. Assuming without deciding that the 

requirements of Civ.R. 9(B) do apply to these claims, the trial court did not err in concluding that 

he failed to satisfy those requirements. 

{¶32} To the extent Cohen has argued that his claims include allegations that Board 

Members failed to take remedial action with respect to the 2006 transaction, and thus, that a 

portion of those claims would not be barred even absent application of the discovery rule, he did 

not make that specific argument below. While he did mention in his briefing below that certain 

Board Members failed to take remedial action, he did not reference that action in terms of how it 

would affect the statute of limitations. Therefore, I would not address that argument on appeal. 

See Copen v. CRW, Inc., 9th Dist. Wayne No. 15AP0034, 2017-Ohio-349, ¶ 20. 

{¶33} As to Cohen’s remaining claims, I agree that aiding, abetting, inducing, or 

participating in breach of fiduciary duty is not a recognized cause of action in Ohio. See DeVries 

Dairy, L.L.C., v. White Eagle Coop. Assn., Inc., 132 Ohio St.3d 516, 2012-Ohio-3828. As to the 

claims for waste and deepening insolvency/wrongful prolongation of corporate existence, I 

would conclude that the trial court’s statement that they were not cognizable under Ohio law is 

insufficient to allow this Court to properly review the issue. It is unclear if the trial court 

examined the allegations and determined that the substance of those two claims was not 

cognizable irrespective of how they were characterized, or if the trial court simply concluded 

that, as labeled, the causes of action were not cognizable and failed to consider whether the 

substance of the allegations was sufficient to state cognizable causes of action. In other words, 

did the trial court find the causes of action were not sufficiently pled or that Ohio does not 

recognize these causes of action under any set of facts. Further, the trial court offered no 
16 

 

analysis as to why Ohio should not recognize the causes of action as labeled. Accordingly, I 

would remand the issue to the trial court for it to clarify its decision. See Hunt v. Alderman, 9th 

Dist. Summit No. 27416, 2015-Ohio-4667, ¶ 19. 

APPEARANCES: 

JEFFREY M. LEVINSON, Attorney at Law, for Appellant. 

RANDY J. HART, Attorney at Law, for Appellant. 

RONALD S. KOPP, Attorney at Law, for Appellee. 

ORVILLE L. REED, Attorney at Law, for Appellee. 

MARVIN SICHERMAN, Attorney at Law, for Appellee. 

F. DANIEL BALMERT, DAVID J. TOCCO, and HYUN YOON, Attorneys at Law, for 

Appellees.