[Cite as Sirak v. Arenstein, 2011-Ohio-5266.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                        JUDGES:
NORMAN L. SIRAK                                 :       Hon. W. Scott Gwin, P.J.
                                                :       Hon. Julie A. Edwards, J.
                         Plaintiff-Appellant    :       Hon. Patricia A. Delaney, J.
                                                :
-vs-                                            :
                                                :       Case No. 2011-CA-00053
GAIL A. ARENSTEIN, ET AL                        :
                                                :
                      Defendant-Appellee        :       OPINION




CHARACTER OF PROCEEDING:                            Civil appeal from the Stark County Court of
                                                    Common Pleas, Case No. 2010-CV-04625

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             October 11, 2011



APPEARANCES:

For Plaintiff-Appellant                             For Defendant-Appellee

NORMAN L. SIRAK PRO SE                              NICHOLAS ANDERSEN
4035 Cinwood Street N.W.                            Arenstein & Anderson Co., LPA
Massillon, OH 44646                                 5131 Post Road, Suite 350
                                                    Dublin, OH 43017
[Cite as Sirak v. Arenstein, 2011-Ohio-5266.]


Gwin, P.J.

        {¶1}     Plaintiff-appellant Norman L. Sirak appeals a judgment of the Court of

Common Pleas of Stark County, Ohio, which found pursuant to Civ. R. 12 (B)(6), that

his complaint against defendants-appellees Gail Arenstein, Ronald Arenstein, G.

Gregory Arenstein, and Eleanor G. Sirak failed to state a claim on which relief can be

granted. Appellant assigns five errors to the trial court:

        {¶2}     “I. THE LOWER COURT IGNORED THREE GENUINE ISSUES OF

MATERIAL FACTS SUBMITTED BY PLAINTIFF IN ITS (sic) RESPONSE TO THE

MOTION TO DISMISS. NO REASON WAS GIVEN FOR NOT CONSIDERING THESE

ISSUES OF FACT, AND NO MENTION WAS MADE OF THEM IN ANY CONTEXT.

        {¶3}     “II. THE LOWER COURT DID NOT CONSIDER PLAINTIFF’S FACTS

AND REASONABLE INFERENCES DRAWN FROM THESE FACTS, AS THEY (sic)

ARE REQUIRED TO DO FOR A RULE 12 (B) (6) MOTION.

        {¶4}     “III.   THE     LOWER          COURT   WEIGHED   AND   CHARACTERIZED

PROBATIVE EVIDENCE, INVADING THE PROVINCE OF A JURY.

        {¶5}     “IV. THE LOWER COURT CONSIDERED AND ACCEPTED AS TRUE

CONCLUSIONS OF LAW, IN PLACE OF FACTS, AND PROVIDED NO CASE LAW

AUTHORITY TO SUPPORT ITS POSITION.

        {¶6}     “V. THE LOWER COURT HELD THAT THIS CASE IS NOT YET RIPE.

THIS LEGAL CONCLUSION WILL INVALIDATE THE USE OF THE INTENTIONAL

INTERFERENCE WITH AN EXPECTANCY OF AN INHERITANCE, BECAUSE IT

RENDERS THE FOURTH ELEMENT IN THIS TORT EXTREMELY DIFFICULT TO

FULFILL.”
Stark County, Case No. 2011-CA-00053                                                    3


      {¶7}   Appellees Gail and Ronald Arenstein are appellant’s sister and brother-in-

law. Appellee G. Gregory Arenstein is Ronald Arenstein’s nephew and an attorney.

Appellee Eleanor G. Sirak is the mother of appellant and appellee Gail Arenstein.

      {¶8}   Appellant filed his amended complaint with a jury demand on January 5,

2011. The complaint sets out a lengthy statement of facts beginning in 1986. Appellant

alleges Eleanor G. Sirak has been the victim of undue influence and fraud perpetrated

by Gail and Ronald Arenstein and assisted by G. Gregory Arenstein in his legal

capacity. The complaint alleges appellee Eleanor G. Sirak is elderly and has a variety of

ailments including mobility problems and susceptibility to outside influences. It alleges

Eleanor has lost her ability to exercise her free will regarding her property, because of

the way Gail has treated her.

      {¶9}   In 1986, Eleanor Sirak sold her home to Gail and Ronald Arenstein, and

purchased a smaller one. Eleanor Sirak asked for an appraisal of the home, which Gail

and Ronald provided. Appellant believes the appraisal was far too low. Appellant

alleges Gail and Ronald Arenstein paid far less for the home than it was worth, and then

mortgaged it for far more than they paid. Appellant alleged Gail and Ronald Arenstein

were and continue to be encumbered with mortgages and debts beyond what their

income would indicate they are able to pay. Appellant alleges it is quite possible Gail

and Ronald Arenstein are exploiting Eleanor Sirak financially, although the complaint

admits Eleanor Sirak denied paying any of their bills.

      {¶10} The     complaint    recites   various   incidents   which   appellant   urges

demonstrate physical and psychological elder abuse and exploitation. The culminating

incident which prompted appellant to file the lawsuit was Eleanor Sirak’s execution of a
Stark County, Case No. 2011-CA-00053                                                     4


Transfer on Death (hereinafter TOD) designation affidavit in favor of Gail Arenstein.

Appellant alleges when he questioned Eleanor Sirak she did not recall signing the

affidavit, and did not understand its significance. Eleanor Sirak allegedly told appellant

she changed her name on some documents to the Estate of Eleanor Sirak. Eleanor

Sirak stated the documents were supposed to make her will read better. She also

allegedly told appellant appellees checked her credit score. Appellant alleged appellee

G. Gregory Arenstein did the estate planning for Eleanor. Appellant indicates he

believes there may be joint ownerships and/or more TOD affidavits from Eleanor to Gail.

       {¶11} Essentially the complaint alleged first, that appellees had obtained Eleanor

Sirak’s signature on the deed by means of deception. Secondly, appellant claimed

wrongful conversion of an elderly person’s assets, which he alleges will be

demonstrated when discovery was completed. Thirdly, he alleged tortious interference

with an expectancy of an inheritance, in the fraudulent obtaining of the TOD document.

Lastly, he alleges discovery may uncover a power of attorney executed in Gail

Arenstein’s favor which would then give rise to an action for conversion of property by a

fiduciary.   Appellant believed discovery might demonstrate Eleanor Sirak signed a

Power of Attorney in favor of Gail Arenstein.

       {¶12} Appellant asserted there could be evidence of criminal activity as well.

       {¶13} Appellant’s demand for relief asked the court:

       {¶14} (1) to issue a declaratory judgment finding the elements of tortious

intentional interference with an expectancy of an inheritance were proven and a finding

he is entitled to one-half of Eleanor Sirak’s gross estate, with a specific finding the TOD
Stark County, Case No. 2011-CA-00053                                                       5


disposition of Eleanor Sirak’s assets would be declared null and void and of no legal

force.

         {¶15} (2) to issue a declaratory judgment finding Gail Arenstein’s conduct

relating to the TOD designation affidavit, coupled with her earlier dealings with her

mother, to be so reprehensible and shocking as to warrant forfeiting her entire interest

in her mother’s estate, and thereby, granting appellant all of Eleanor Sirak’s assets.

         {¶16} (3) to issue a declaratory judgment that the TOD designation affidavit is

null and void and to instruct the county recorder to file a copy of the judgment in the

property’s chain of title.

         {¶17} (4) to issue a declaratory judgment ordering Gail and Ronald Arenstein to

reimburse Eleanor Sirak all money that had been proven to be wrongly appropriated

and      converted.   Appellant   requested   punitive   damages    if   any   funds     were

misappropriated using a power of attorney.

         {¶18} (5) to issue a declaratory judgment ordering all funds obtained by Gail

and Ronald Arenstein by using Eleanor Sirak’s credit standing to be reimbursed with

interest. Appellant requested punitive damages as well as compensatory damages if the

amounts proved to be substantial.

         {¶19} (6) to grant an award of damages against G. Gregory Arenstein in an

amount to be determined by the evidence developed for trial.

         {¶20} (7) to issue a judgment to compensate appellant for his out-of-pocket

litigation expenses and, if he retained outside counsel, for all attorney fees.

         {¶21} (8) to grant relief in any form of specific performance or compensation

warranted by the evidence in the record.
Stark County, Case No. 2011-CA-00053                                                    6


          {¶22} Appellant also asked the court to appoint a guardian ad litem for Eleanor

Sirak. The trial court overruled the motion, finding the Stark County Probate Court was

the proper forum, and finding there had been no proof that Eleanor Sirak was

incompetent.

          {¶23} On February 4, 2011, appellees filed their motion to dismiss all claims

pursuant to Civ. R. 12 (B)(6). Appellees alleged all of appellant’s causes of action

require a showing of injury or the taking of property, but the TOD designation was not a

transfer of real property and conveyed no property rights to Gail Arenstein.

          {¶24} Appellees urged appellant’s claim for conversion failed because there was

no transfer of property, no demand for return, and no injury.

          {¶25} Appellees asserted appellant’s claim for interference with the expectancy

of an inheritance also failed because no injury had occurred. They argued the TOD

designation did not confer any rights to Gail, and Eleanor Sirak, could revoke the

affidavit at any time. Appellees asserted because Eleanor Sirak was not deceased, no

actual transfer of any real property had taken place and appellant could show no

present injury.

          {¶26} Appellees argued the false pretenses argument actually alleged a cause

of action for fraudulent inducement, and again, because there was no transfer of any

property, there were no damages. Likewise, appellees argued the claim for breach of

fiduciary duty failed because there was no showing of a fiduciary relationship and no

injury.

          {¶27} On February 18, 2011, the trial court entered a judgment dismissing all of

appellant’s claims. The court interpreted the complaint as asserting five causes of
Stark County, Case No. 2011-CA-00053                                                        7


action, namely, fraud, conversion, fraud in the inducement, breach of fiduciary duty, and

intentional interference with an expectancy of an inheritance. The court found except

for the intentional interference with an expectancy of inheritance, appellant had not

alleged any facts to show he had standing to assert the other claims, because the

claims are actually on behalf of Eleanor Sirak. The complaint did not allege appellant is

the legal guardian or has power of attorney for Eleanor Sirak. The court concluded the

claims for fraud, conversion, fraud in the inducement, and breach of fiduciary duty fail.

       {¶28} The court addressed the claim for intentional interference with an

expectancy of inheritance. In Firestone v. Galbreath (1993), 67 Ohio St.3d 87, the Ohio

Supreme Court first recognized the tort of intentional interference with expectancy of

inheritance. The essential elements of the claim are: (1) the existence of a plaintiff's

expectancy of inheritance; (2) a defendant's intentional interference with plaintiff’s

expectancy, (3) the defendant's tortious conduct involving the interference, such as

fraud, duress, or undue influence; (4) a reasonable certainty that, but for the defendant's

interference, the expectancy of inheritance would have been realized; and (5) damage

resulting from the interference. Id. at 88.

       {¶29} Civ. R. 12 (B)(6) provides a court may dismiss a matter if it finds the

complaint does not state a claim upon which relief can be granted. Our standard of

review on a Civ.R. 12(B)(6) motion to dismiss is de novo. Greely v. Miami Valley

Maintenance Contractors. Inc. (1990), 49 Ohio St.3d 228, 551 N.E.2d 981. A motion to

dismiss for failure to state a claim upon which relief can be granted is procedural and

tests the legal sufficiency of the complaint. State ex rel. Hanson v. Guernsey County

Board of Commissioners, 65 Ohio St.3d 545, 1992-Ohio-73, 605 N.E.2d 378. Under a
Stark County, Case No. 2011-CA-00053                                                     8


de novo analysis, we must accept all factual allegations of the complaint as true and all

reasonable inferences must be drawn in favor of the nonmoving party. Byrd. v. Faber

(1991), 57 Ohio St.3d 56, 565 N.E.2d 584.

      {¶30} All the Civil Rules require is a short, plain statement of the claim that gives

the defendant fair notice of the plaintiff's claim and the grounds upon which it is based.

Patrick v. Wertman (1996), 113 Ohio App.3d 713, 716, 681 N.E.2d 1385, quoting Kelley

v. E. Cleveland (Oct. 28, 1982), 8th Dist. No. 44448. When filing a claim the plaintiff is

not required to plead a specific legal theory of recovery and is not bound by any

particular theory. Illinois Controls, Inc. v. Langham (1994), 70 Ohio St. 3d 512, 526, 639

N.E.2d 771. To survive a motion under Civ. R. 12(B)(6), the complaint must contain

either direct allegations on every material point necessary to sustain a recovery on any

legal theory, or contain allegations from which an inference may be fairly drawn.

Fancher v. Fancher (1982), 8 Ohio App.3d 79, 83, 455 N.E.2d 1344, citation deleted.

                                              I.& II

      {¶31} In his first assignment of error, appellant argues the trial court ignored

three genuine issues of material fact: (1) Whether Eleanor Sirak was subject to Gail

Arenstein’s undue influence as far back as 1986. (2) Whether it was Eleanor Sirak’s

idea to visit Attorney G. Gregory Arenstein and change her name from Eleanor G. Sirak

to the Estate of Eleanor G. Sirak, or whether Gail and Ronald Arenstein arranged the

meeting to further their own interests. (3) How Gail and Ronald Arenstein are paying

their bills and, if they are using Eleanor Sirak’s money, whether they have her informed

and uncoerced consent.
Stark County, Case No. 2011-CA-00053                                                   9


       {¶32} In his second assignment of error, appellant argues the trial court did not

consider the above facts and any reasonable inferences to be drawn from the facts as

required by Civ. R. 12 (B)(6).

       {¶33} The court found appellant had failed to allege a reasonable certainty of an

inheritance of Eleanor Sirak’s home or other property, and also found the claim was not

ripe because the appellant had not yet incurred any damages. The complaint stated

appellant believed Eleanor had not executed a will, so under Ohio law one half of her

estate would come to him at her death.

       {¶34} In Holt v. Sawyer, 180 Ohio App.3d 255, 2008-Ohio-6686, the court of

appeals for Hamilton County found plaintiff Holt had not presented evidence of a

reasonable expectancy of inheritance. She was the beneficiary of her deceased father’s

life insurance policy and was the decedent’s sole surviving child. The will named

decedent’s wife Iris as the primary beneficiary. Iris was a defendant in the case and was

not Holt’s mother. Under the will, Holt received $1. She alleged she had met with her

father in secret so as not to antagonize Iris. The court found Holt never alleged the

decedent had promised her an inheritance. Holt at paragraph 9, citing Werman v. Green

ex rel. Estate of Green, (2001) Lake App. No. 2000-L-033.

       {¶35} In the Werman case the court found the plaintiffs had not proven a

reasonable expectancy of inheritance by alleging they were the children of one of

decedent’s brothers and the family was small. There were allegations the decedent had

told them certain heirlooms would stay in the family after her death, but there was no

allegation she had ever promised them they would inherit anything. The court of
Stark County, Case No. 2011-CA-00053                                                    10

appeals in Werman characterized the plaintiffs’ allegations as “hunches and mere

speculation”. The plaintiffs each received $1 under the will. Id. at p.3.

       {¶36} We agree with the trial court appellant’s factual allegations are insufficient

as a matter of law to demonstrate he had a reasonable expectation of inheritance.

       {¶37} An essential element of each of appellant’s causes of action is a

demonstration of damages to appellant. As the trial court pointed out, appellant had no

property rights in assets the complaint refers to which would give him standing to bring

an action for deception or fraud in the inducement of the execution of the TOD

designation affidavit or any of the assets allegedly converted. We agree with the trial

court the claims for deception or fraud in the inducement are Eleanor Sirak’s claims

because she is the owner of the property. Likewise, appellant alleged breach of

fiduciary duty, but did not allege there was a fiduciary relationship between Eleanor

Sirak and any of the other appellees. Appellant speculated there could be a power of

attorney or other document.

       {¶38} We find the trial court did not err in determining appellant had no standing

to bring an action on behalf of Eleanor Sirak to recover or safeguard her property.

Appellant could not demonstrate he was damaged.

       {¶39} The first and second assignments of error are overruled.

                                                 III.

       {¶40} In his third assignment of error, appellant asserts the trial court weighed

the evidence, invading the presence of a jury. We do not agree.

       {¶41} The record before us shows the trial court reviewed the allegations of the

complaint and the various documents attached to it to determine whether, if proven, the
Stark County, Case No. 2011-CA-00053                                                     11


allegations gave rise to any causes of action. The trial court properly did not weigh the

evidence but applied Ohio law to the allegations to determine whether appellant could

prove any set of facts that would entitle him to relief.

       {¶42} The third assignment of error is overruled.

                                                  IV.

       {¶43} In his fourth assignment of error, appellant argues the trial court

considered and accepted as true conclusions of law instead of facts, and provided no

case law authority to support its position.

       {¶44} At the outset, we find a trial court is not required to cite case law authority

in its judgment, although it may do so to explain the decision.

       {¶45} Appellant asserts opposing counsel offered legal conclusions, not factual

allegations, and the trial court improperly relied on the conclusions of law. This is the

proper procedure in a motion pursuant to Civ. R. 12(B)(6). The motion requires the court

to view only the complaint, and to apply the law to it. A defendant may legitimately

argue the applicable law and may point out flaws in the complaint, but in a motion

brought pursuant to Civ. R. 12(B)(6) the defendants may not submit factual allegations

of their own to dispute those in the complaint.

       {¶46} The legal conclusions the court set out were correct statements of Ohio

law. We find no error herein.

       {¶47} The fourth assignment of error is overruled.

                                                  V.

       {¶48} In his fifth assignment of error, appellant argues the trial court erred in

finding the case was not ripe. Appellant asserts he should be able to bring his action for
Stark County, Case No. 2011-CA-00053                                                    12


intentional interference with the expectancy of inheritance before appellee Eleanor Sirak

dies because after her death, the best evidence of her state of mind and her

understanding of events will no longer be available.

      {¶49} In the case of Cunningham v. Cunningham, Franklin App. No. 08AP-1049,

2009-Ohio-4648, the Tenth District Court of Appeals reviewed a claim of intentional

interference with the expectancy of inheritance. The court found before pursuing such a

claim, a plaintiff must first exhaust all appropriate probate procedures. The rationale for

this rule is that the Probate Court may very well resolve the issues by determining

whether the will is valid. Cunningham at paragraphs 18-19.

      {¶50} Appellant named two experts who could evaluate Eleanor and testify as to

her mental state. Appellant asserts when the court dismissed the case it became

impossible to have her evaluated.

      {¶51} Frequently a court is called upon to determine a deceased person’s

competency or to decide whether a bequest or other transaction was the result of undue

influence or fraud. We reject appellant’s argument a cause of action for intentional

interference with the expectancy of inheritance requires the grantor’s live testimony.

Appellant is also incorrect in stating there is no vehicle by which he can have Eleanor’s

competency evaluated. He can do so in Probate Court.

      {¶52} We agree with the trial court this cause of action is not ripe. Appellees

argue Eleanor Sirak can change her mind at any point, and disavow the TOD

designation. Appellant alleges she is mentally and emotionally unable to do so. If

Eleanor Sirak is incompetent to see to her own affairs, the Probate Court has the

mechanism to intervene and assist her. If she is competent, Ohio law does not provide
Stark County, Case No. 2011-CA-00053                                            13


a means to prevent a competent person from using or disposing of property as he or

she wishes, even if to do so may appear unfair or unwise to other persons.

      {¶53} The fifth assignment of error is overruled.

      {¶54} For the foregoing reasons, the judgment of the Court of Common Pleas of

Stark County, Ohio, is affirmed.

By Gwin, P.J.,

Edwards, J., and

Delaney, J., concur




                                            _________________________________
                                            HON. W. SCOTT GWIN

                                            _________________________________
                                            HON. JULIE A. EDWARDS

                                            _________________________________
                                            HON. PATRICIA A. DELANEY
WSG:clw 0907
[Cite as Sirak v. Arenstein, 2011-Ohio-5266.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


NORMAN L. SIRAK                                   :
                                                  :
                            Plaintiff-Appellant   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
GAIL A. ARENSTEIN, ET AL                          :
                                                  :
                                                  :
                         Defendant-Appellee       :       CASE NO. 2011-CA-00053




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment

of the Court of Common Pleas of Stark County, Ohio, is affirmed. Costs to appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN

                                                      _________________________________
                                                      HON. JULIE A. EDWARDS

                                                      _________________________________
                                                      HON. PATRICIA A. DELANEY
