Armatas v. Haws

[Cite as Armatas v. Haws, 2018-Ohio-1371.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STEVEN A. ARMATAS : Hon. John W. Wise, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellant : Hon. Craig R. Baldwin, J
:
-vs- :
: Case No. 2017CA00186
SCOTT MICHAEL HAWS, ET AL :
:
Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Case No.2017CV01212
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 9, 2018
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
STEVEN ARMATAS JAMES MATHEWS
7690 Bucknell Circle N.W. 400 South Main Street
North Canton, OH 44720 North Canton, OH 44720
[Cite as Armatas v. Haws, 2018-Ohio-1371.]
Gwin, J.,
{¶1} Appellant appeals the September 19, 2017 judgment entry of the Stark
County Court of Common Pleas granting appellees’ motion to dismiss.
Facts & Procedural History
{¶2} In Plain Township, Zoning Regulation Section 602.10 provides, in pertinent
part, “fences, walls and hedges shall be permitted in any required yard or along the edge
of any yard * * * except that a fence, wall, or hedge located in or along the sides or front
of a front yard shall not exceed three (3) feet in height. The maximum height of a fence,
wall, or hedge in any Residential District shall be eight (8) feet.” Appellant Steven
Armatas resides in Plain Township and contends his neighbor has a row of evergreen
trees which are above eight feet in height and thus violate Section 602.10.
{¶3} Appellant filed a writ of mandamus against the Plain Township Board of
Trustees (“Trustees”) and asked this Court to order the Trustees to enforce Section
602.10 against his neighbor. In the mandamus action, appellant provided the Court with
a copy of the Plain Township appeal form which reads, in pertinent part, “Appeal from
Order, Requirement, Decision, or Determination of Zoning Director.” The Trustees filed
a motion to dismiss the mandamus for failure to state a claim upon which relief could be
granted. In State ex rel. Armatas v. Plain Twp. Bd. of Trustees, 5th Dist. Stark No.
2016CA00188, 2017-Ohio-2645, we granted the Trustees’ motion to dismiss. We found
appellant had an adequate remedy at law by way of utilizing the township’s appellate
process and that appellant was in possession of the appeals form as evidenced by the
fact that he attached it to his mandamus complaint. Appellant appealed the decision to
Stark County, Case No. 2017CA00186 3
the Ohio Supreme Court on June 9, 2017. However, on August 23, 2017, the Ohio
Supreme Court dismissed the case for want of prosecution.
{¶4} On June 13, 2017, appellant filed the instant case against appellees Scott
Haws (“Haws”) and Thomas Ferrara (“Ferrara”). In his complaint, appellant avers that he
is a resident of Plain Township and owns the home at 7690 Bucknell Circle N.W. in North
Canton. Appellant also alleges Haws is a member of the Board of Trustees of Plain
Township and Ferrara is the appointed Zoning Director for Plain Township. Appellant
avers that on September 8, 2016, he visited the Administrative Offices of Plain Township
and spoke with Ferrara, who was working in the zoning office at the time. Further, that
he informed Ferrara he believed a row of twenty foot high evergreen trees planted by his
neighbor along the property line violated the hedge ordinance because the barrier
constituted a “fence, wall, or hedge” along a boundary in excess of eight feet tall; however,
Ferrara told him the ordinance is not applicable to the situation and he was not going to
do anything because he felt trees and hedges were different things.
{¶5} Appellant alleges he then asked Ferrara if there was any procedure
available to appeal his decision within Plain Township and that Ferrara, “falsely
represented to [him] that neither the Plain Township Zoning Commission nor the Board
of Zoning Appeals would have jurisdiction over the matter since no permit or variance
was sought, but he could take up the matter with the Board of Trustees.” Appellant
asserts that Ferrara’s actions in falsely informing him that neither had jurisdiction to hear
an appeal constituted fraudulent or recklessly negligent conduct outside the scope of his
employment and Ferrara acted with malicious purpose, in bad faith, or in a wanton and
reckless manner.
Stark County, Case No. 2017CA00186 4
{¶6} Also in his complaint, appellant avers that after he left a message for Haws
about the situation, Haws visited the property and told appellant the legal interpretation
of the zoning office was factually correct, as trees do not meet the criteria of a bush,
hedge, wall, or fence. Appellant also alleges Haws made the false representation to
appellant that the matter could only be resolved between neighboring homeowners by
mediation, small claims court, or civil litigation, and that there was no avenue of appeal
through Plain Township. Appellant contends that Haws’ conduct in falsely informing him
there was no further course of appeal through Plain Township constituted fraudulent or
recklessly negligent conduct outside the scope of his employment and Haws acted with
malicious purpose, in bad faith, or in a wanton and reckless manner.
{¶7} In Count 1, fraud, appellant alleges both Ferrara and Haws made
misstatements of material fact that they knew to be false, on which they intended
appellant to rely, appellant did justifiably rely on these statements, and appellant was
harmed. In Count 2, appellant alleges the statements were “recklessly negligent.”
{¶8} Ferrara and Haws filed a Civil Rule 12(B)(6) motion to dismiss on July 14,
2017. Appellant filed a memorandum contra to the motion to dismiss on July 31, 2017.
The trial court issued a judgment entry granting the motion to dismiss on September 19,
2017. The trial court noted the complaint lists the fraudulent statements as Ferrara’s false
statement that appellant had no other formal avenues of appeal and Haws’ false
statement that appellant had no other avenue for appeal in Plain Township. The trial
court found appellant had not pled a false misrepresentation of fact that could form the
basis of a fraud claim because a representation of law is an opinion and cannot form the
basis of an action for fraud in the absence of a fiduciary relationship. The trial court cited
Stark County, Case No. 2017CA00186 5
Mueller v. City of Vandalia, 2nd Dist. Montgomery No. 16158, 1997 WL 102013 (March
7, 1997) in support of its decision. The trial court found appellant could not have
reasonably relied on a representation concerning the law because the law was equally
open and available to him. The trial court stated since appellant could have not
reasonably relied on these representations, he had not sufficiently pled the fraud element
of reasonable reliance.
{¶9} Appellant appeals the September 19, 2017 judgment entry of the Stark
County Court of Common Pleas and assigns the following as error:
{¶10} “I. THE TRIAL COURT COMMITTED ERROR BY GRANTING
DEFENDANTS’ CIVIL RULE 12(B)(6) MOTION TO DISMISS PLAINTIFF’S COMPLAINT
FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED.”
{¶11} We review a trial court order granting a motion to dismiss pursuant to Civil
Rule 12(B)(6) de novo. Greeley v. Miami Valley Maintenance Contractors, Inc., 49 Ohio
St.3d 228, 551 N.E.2d 981 (1990). A motion to dismiss for failure to state a claim upon
which relief can be granted tests the sufficiency of the complaint. State ex rel. Hanson v.
Guernsey County Bd. of Commrs., 65 Ohio St. 3d 545, 605 N.E.2d 378 (1989). Under a
de novo analysis, we must accept all factual allegations of the complaint as true and all
reasonable inferences must be drawn in favor the nonmoving party. Byrd v. Faber, 57
Ohio St. 3d 56, 565 N.E.2d 584 (1991). In order for a court to grant a motion to dismiss
for failure to state a claim, it must appear “beyond a doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to relief.” O’Brien v. Univ.
Community Tenants Union, Inc., 42 Ohio St. 2d 242, 327 N.E.2d 753 (1975).
Stark County, Case No. 2017CA00186 6
{¶12} Fraud requires proof of the following elements: (1) a representation or,
where there is a duty to disclose, omission of a fact; (2) which is material to the transaction
at hand; (3) 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; (4) with the
intent of misleading another into relying upon it; (5) justifiable reliance upon the
representation or concealment; and (6) a resulting injury proximately caused by the
reliance. Cohen v. Lamko, Inc., 10 Ohio St. 3d 167, 462 N.E.2d 407 (1984).
{¶13} Appellant first argues the trial court improperly relied on the Mueller case.
We disagree and find the Mueller case analogous to the instant case. Mueller v. City of
Vandalia, 2nd Dist. Montgomery No. 16158, 1997 WL 102013 (March 7, 1997). In
Mueller, the complaint alleged that representatives of the City of Vandalia, Montgomery
County, or the Montgomery County Engineering Department incorrectly informed the
Muellers they were required to provide an easement in exchange for approval of their
water plan. Id.
{¶14} The Court found that assuming, arguendo, a representative from one of the
political subdivisions misinformed the Muellers about the conveyance of the easement,
such a statement constituted an erroneous statement of law. Id. Further, that “under
Ohio law, a representation of law is an opinion and cannot form the basis of an action for
fraud in the absence of a fiduciary relationship.” Id. The Court also found that “every
man is supposed to know the law” and “one believing statements made by another in that
regard does so at his own peril.” Id. The Court found the Muellers were charged with
knowledge of law and assumed the risk of receiving inaccurate information. Id.
Accordingly, no reasonable plaintiff could assert claims of fraud, duress, or undue
Stark County, Case No. 2017CA00186 7
influence. Id. The Muellers filed an appeal to the Ohio Supreme Court. In Mueller v.
Vandalia, 79 Ohio St. 3d 1457, 681 N.E.2d 440 (1997), the Ohio Supreme Court declined
jurisdiction and dismissed the appeal. The Ohio Supreme Court also denied the Muellers’
motion for reconsideration.
{¶15} As it applies to the facts in the instant case, we agree with Mueller and other
persuasive authority. Id; see also Lynch v. Dial Finance Co. of Ohio No. 1, Inc., 101 Ohio
App.3d 742, 656 N.E.2d 714 (8th Dist. 1995) (finding in Ohio a representation of law is
an opinion and cannot form the basis of an action for fraud in the absence of a fiduciary
relationship); State v. Parker, 68 Ohio St. 3d 283, 626 N.E.2d 106 (1994) (finding it is “well-
settled that one is presumed to know the law,” including traffic regulations); Gaston v. Bd.
of Review, Ohio Bureau of Employment Services, 17 Ohio App. 3d 12, 477 N.E.2d 460
(8th Dist. 1983) (finding when the appellant was denied benefits because she missed the
statutory deadline for filing based upon misinformation given to her by the agency
administering the benefits that “persons seeking information from the government must
assume the risk that the agent of the government might be wrong”); Foster v. City of
Westlake Bd. of Zoning Appeals, 8th Dist. Cuyahoga No. 57740, 1990 WL 193177 (Dec.
6,1990) (when appellant argued the city was estopped from enforcing an ordinance
because the city’s building inspector expressly approved the site, holding that a
municipality is not estopped from enforcing a zoning ordinance simply because a person
relies on the erroneous advice of a building inspector); Drake v. Medical College of Ohio,
120 Ohio App. 3d 493, 698 N.E.2d 463 (10th Dist. 1997) (holding mistaken advice or
opinions of a governmental agent do not give rise to a claim based upon promissory
estoppel); Mateer v. Ohio Dept. of Job & Family Services, 10th Dist. Franklin No. 07AP-
Stark County, Case No. 2017CA00186 8
966, 2008-Ohio-1426 (finding when ODJFS caseworker told appellant not to file an
appeal that “persons seeking information from the government assume the risk that the
agent of the government may be wrong”).
{¶16} In this case, appellant cannot meet the justifiable or reasonable reliance
prong of a fraud claim. Even assuming, arguendo, that Ferrara and/or Haws, maliciously
or in bad faith, misinformed appellant that he had no avenue of appeal through Plain
Township, such statements constituted erroneous statements of law, upon which
appellant was not entitled to rely. Further, as this Court noted in the mandamus action,
appellant was in possession of the appeals form as evidenced by the fact that he attached
it to his mandamus complaint. State ex rel. Armatas v. Plain Twp. Bd. of Trustees, 5th
Dist. Stark No. 2016CA00188, 2017-Ohio-2645. Finally, pursuant to R.C. 519.24,
appellant, as an “adjacent or neighboring property owner” has the option to initiate an
appropriate action or proceeding to challenge what he believes to be the violation of the
zoning regulation. Parks v. Tuttle & Son Constr., 3rd Dist. Auglaize No. 2-83-35, 1985
WL 7382 (Aug. 22, 1985).
{¶17} Appellant contends the allegation of justifiable reliance in his complaint is
sufficient to overcome a Civil Rule 12(B)(6) motion to dismiss. However, although factual
allegations in the complaint are taken as true, “unsupported conclusions of a complaint
are not considered admitted * * * and are not sufficient to withstand a motion to dismiss.”
State ex rel. Hickman v. Capots, 45 Ohio St. 3d 324, 544 N.E.2d 639 (1989).
{¶18} Appellant also argues that, even if Mueller is applicable in this case, the
representation of law can form an action for fraud because all public officials are in a
Stark County, Case No. 2017CA00186 9
fiduciary relationship with the public. We first note that appellant did not allege in his
complaint that Ferrara and/or Haws had a fiduciary relationship with appellant.
{¶19} Further, appellant cites State v. McKelvey, 12 Ohio St. 2d 92, 232 N.E.2d
391 (1967), for the broad proposition that a public official is in a fiduciary relationship with
the public. As this Court stated in Jamison v. Village of Galena, 5th Dist. Delaware No.
15 CAE 01 007, 2015-Ohio-2845, in McKelvey and in cases citing to and applying
McKelvey, a public official used his or her position for private profit or gain, engaging in
some sort of financial misconduct or misappropriating funds in contravention of express
statutory duties. We found the facts in Jamison not analogous to those in McKelvey
because, in Jamison, the appellant did not allege that Jamison misused his office for
private gain or misappropriated funds in contravention of a statutory mandate. Id.
{¶20} Similarly, in this case, the facts are not analogous to those in McKelvey
because appellant does not allege in his complaint that Ferrara and/or Haws misused
their office for private gain or misappropriated funds in contravention of a statutory
mandate. See also State v. Lozano, 90 Ohio St. 3d 560, 740 N.E.2d 273 (2001) (finding
McKelvey inapplicable where the defendant argued a public official has a duty to the
citizens of the state because the case at issue was not a theft in office case like
McKelvey); Cristino v. Ohio Bureau of Workers’ Compensation, 10th Dist. Franklin No.
12AP-60 (finding McKelvey and Crane inapplicable because that precedent was
established and applied in the context of public officials who engaged in financial
misconduct, such as using their public office for private gain or misappropriating funds in
contravention of express statutory duties); State ex rel. Cook v. Seneca Co. Bd. of
Commissioners, 175 Ohio App. 3d 721, 2008-Ohio-736, 889 N.E.2d 153 (3d Dist.) (finding
Stark County, Case No. 2017CA00186 10
McKelvey and Crane inapplicable because appellants did not allege that the board
members misused their office for private gain or misappropriated funds in contravention
of a statutory mandate).
{¶21} In the second count of appellant’s complaint, he alleges the actions of
Ferrara and/or Haws were wanton or reckless. As with his first claim, the statements of
Ferrara and/or Haws do not support a wanton misrepresentation claim. As detailed
above, such statements were as to the law or legal requirements upon which appellant
was not entitled to rely. Further, since appellant has the option to initiate an appropriate
action or proceeding pursuant to R.C. 519.24, he did not sustain any loss to person or
property.
{¶22} Based on the foregoing, we find the trial court did not err in granting Ferrara
and Haws’ Civil Rule 12(B)(6) motion to dismiss as, accepting all factual allegations of
the complaint as true and reasonable, and drawing all reasonable inferences in favor of
appellant, it appears beyond a doubt that appellant can prove no set of facts in support
of his claim which would entitle him to relief. Appellant’s assignment of error is overruled.
Stark County, Case No. 2017CA00186 11
{¶23} The September 19, 2017 judgment entry of the Stark County Court of
Common Pleas is affirmed.
By Gwin, J.,
Wise, P.J., and
Baldwin, J., concur