[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
