[Cite as State ex rel. Maher v. Akron, 2018-Ohio-4310.]


STATE OF OHIO                     )                        IN THE COURT OF APPEALS
                                  )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO, ex rel.                                     C.A. No.   28761
PATRICIA MAHER, et al.

        Appellants
                                                           APPEAL FROM JUDGMENT
        v.                                                 ENTERED IN THE
                                                           COURT OF COMMON PLEAS
THE CITY OF AKRON, OHIO                                    COUNTY OF SUMMIT, OHIO
                                                           CASE No.   CV-2016-04-2039
        Appellee

                                 DECISION AND JOURNAL ENTRY

Dated: October 24, 2018



        CALLAHAN, Judge.

        {¶1}     Patricia Maher, Rebecca Johnson, and Eugene and Kimberly Cherry

(“Appellants”)1 appeal from a decision of the Summit County Common Pleas Court that granted

judgment on the pleadings to the City of Akron (“the City”). This Court affirms.

                                                      I.

        {¶2}     In 2016, Ms. Maher and Ms. Johnson filed a complaint against the City listing

causes of action for (1) inverse condemnation, (2) breach of contract, and (3) fraud in the

inducement. They later filed an amended complaint adding Margaret Graham, Dena Mayhorn,

Eugene and Kimberly Cherry, and Richard and Beryl Curling as plaintiffs. Because the trial

court granted judgment on the pleadings, this Court accepts the facts contained in the amended

complaint as true. See Pinkerton v. Thompson, 174 Ohio App.3d 229, 2007-Ohio-6546, ¶ 18 (9th



1
 Margaret Graham, Dena Mayhorn, and Richard and Beryl Curling were also plaintiffs below,
but have not appealed.
                                                2


Dist.) (when reviewing a motion for judgment on the pleadings, the factual allegations in the

complaint are presumed true).

        {¶3}   In 2004, the City had filed the “‘Hickory Corridor/Cascade Locks Urban Renewal

Area Eligibility Report and Urban Renewal Plan’” (“the Hickory Corridor Plan”). The City also

had plans to construct a tunnel for handling sewer overflows during heavy rains and snow melts.

Appellants bought their respective properties within the Hickory Corridor Plan area in 2008. In

2013, the City held a neighborhood meeting during which it informed the residents of the

Hickory Corridor Plan area about the tunnel project. In 2015, the City passed legislation

requesting proposals for construction of the tunnel project. The City established a perimeter zone

within the Hickory Corridor Plan area and acquired the properties within that zone that it

determined would be impacted by the tunnel project. Appellants’ properties were not within that

zone.

        {¶4}   Construction of the tunnel included the removal of trees and vegetation and the

use of bright lights at night. In addition, there was excessive noise and vibrations from the

construction activity that rocked Ms. Maher’s property. The Ohio and Erie Canal Towpath was

relocated and now runs past Appellants’ homes. Appellants claim that the City changed the

nature of the Hickory Corridor Plan area, caused their property values to be diminished, and

diminished their quiet enjoyment of their properties.

        {¶5}   The City answered, filed a counterclaim against Ms. Johnson for breach of

contract, and moved for judgment on the pleadings on all of Appellants’ claims. The trial court

granted the City’s motion for judgment on the pleadings. The court certified that there was no

just reason to delay an appeal of its order. It further stayed the City’s counterclaim against Ms.

Johnson pending appeal.
                                               3


       {¶6}   Appellants raise two assignments of error.

                                              II.

                             ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT ERRED IN DETERMINING THAT APPELLANTS
       FAILED TO ALLEGE A VALID REGULATORY TAKINGS CLAIM UNDER
       THE U.S. AND OHIO CONSTITUTIONS AND THEREBY HOLDING THAT
       APPELLANTS’ CLAIM FOR INVERSE CONDEMNATION FAILS TO
       STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED.

       {¶7}   In their first assignment of error, Appellants argue that the trial court erred in

granting judgment on the pleadings in regard to their inverse condemnation claim. This Court

disagrees.

       {¶8}   “This Court applies a de novo standard of review when reviewing a trial court’s

ruling on a motion for judgment on the pleadings.” Cashland Fin. Servs., Inc. v. Hoyt, 9th Dist.

Lorain No. 12CA010232, 2013-Ohio-3663, ¶ 7. Such a motion is “akin to a delayed motion to

dismiss for failure to state a claim.” Id. However, a motion for judgment on the pleadings is

“‘specifically for resolving questions of law.’” Whaley v. Franklin Cty. Bd. of Commrs., 92 Ohio

St.3d 574, 581 (2001), quoting State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d

565, 570 (1996). “Under Civ.R. 12(C), dismissal is appropriate where a court (1) construes the

material allegations in the complaint, with all reasonable inferences to be drawn therefrom, in

favor of the nonmoving party as true, and (2) finds beyond a doubt, that the plaintiff can prove

no set of facts in support of his claim that would entitle him to relief.” Pontious at 570. In

deciding a motion for judgment on the pleadings, this Court reviews only the “material

allegations in the pleadings,” Hoyt at ¶ 7, and any attachments thereto. See Padula v. Wagner,

9th Dist. Summit No. 27509, 2015-Ohio-2374, ¶ 13; Civ.R. 10(C).
                                                  4


       {¶9}    “‘Mandamus is the appropriate action to compel public authorities to institute

appropriation proceedings where an involuntary taking of private property is alleged.’” State ex

rel. Gilbert v. Cincinnati, 125 Ohio St.3d 385, 2010-Ohio-1473, ¶ 14, quoting State ex rel.

Shemo v. Mayfield Hts., 95 Ohio St.3d 59, 63 (2002). Inverse condemnation is “‘a cause of

action against the government to recover the value of property taken by the government without

formal exercise of the power of eminent domain.’” State ex rel. Doner v. Zody, 130 Ohio St.3d

446, 2011-Ohio-6117, ¶ 62, quoting Moden v. United States, 404 F.3d 1335, 1342

(Fed.Cir.2005). To be entitled to a writ of mandamus for inverse condemnation, an owner “must

establish a clear legal right to compel the city to commence appropriation, a corresponding legal

duty on the part of the city to institute that action, and the lack of an adequate remedy * * * in the

ordinary course of law.” Gilbert at ¶ 15.

       {¶10} The Ohio Constitution requires a property owner be compensated when “private

property shall be taken for public use.” Ohio Constitution, Article I, Section 19. “‘Two main

theories exist for establishing a taking, one based on land-use or zoning regulations and the

other, on physical invasions by the government.’” State ex rel. Lillis v. Cty. of Summit, 9th Dist.

Summit No. 28307, 2017-Ohio-1539, ¶ 14, quoting State ex rel. River City Capital v. Bd. of Cty.

Commrs., 12th Dist. Clermont No. CA2010-07-051, 2011-Ohio-4039, ¶ 25. Further, a regulatory

taking can be either a total or partial deprivation of the economically beneficial use of the

property. See State ex rel. R.T.G., Inc. v. State, 98 Ohio St.3d 1, 2002-Ohio-6716, ¶ 35, 37.

Here, Appellants concede that there has not been a physical taking of their property. Instead,

Appellants claim that they pled facts asserting a partial regulatory taking.

       {¶11} A finding of a partial regulatory taking requires the application of the standard set

forth in Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978). State ex rel. Shelly
                                                5


Materials v. Clark Cty. Bd. of Commrs., 115 Ohio St.3d 337, 2007-Ohio-5022, ¶ 18.             Courts

perform an “ad hoc, factual inquiry” of

       the following three factors to determine whether a regulatory taking occurred in
       cases in which there is no physical invasion, and the regulation deprives the
       property of less than 100 percent of its economically viable use: (1) the economic
       impact of the regulation on the claimant, (2) the extent to which the regulation has
       interfered with distinct investment-backed expectations, and (3) the character of
       the governmental action.

Id. at ¶ 19, citing Penn Cent. at 124. Implicit in a regulatory taking action is the existence of a

governmental regulation of private property. See Shelly Materials at ¶ 17; State ex rel. Duncan

v. Village of Middlefield, 11th Dist. Lake No. 2005-L-140, 2008-Ohio-1891, ¶ 40.

       {¶12} Appellants argue that “[t]he very act of planning, adopting legislation authorizing

the construction of the Tunnel Project and proceeding with the construction * * * constitute the

regulatory action upon which [they] base their inverse condemnation claims.” The City argues

that Appellants failed to allege that the City adopted an ordinance or regulation that sought to

regulate how Appellants used their property.

       {¶13} “[R]egulation” is defined as “[t]he act or process of controlling by rule or

restriction” or “[a] rule or order, having legal force.”     Black’s Law Dictionary 1311 (8th

Ed.1999). Thus, governmental regulation involves actions by a governmental entity taken

pursuant to a rule or legislation. “In a proper ‘regulatory taking’ action, the crux of the

landowner’s claim is that the municipality’s enforcement of a valid law or regulation has harmed

the value of his land by restricting the manner in which the land can be used.” Duncan at ¶ 40.

Appellants’ amended complaint fails to identify the legislation that the City was enforcing or

acting pursuant to when it built the tunnel. Instead, Appellants merely alleged that the City was

“planning” the construction of the tunnel.
                                                6


       {¶14} Appellants’ argument that the City “adopt[ed] legislation authorizing the

construction of the Tunnel Project” is contrary to the allegations contained in the amended

complaint. Instead, Appellants pled that “[o]n March 2, 2015[,] Akron City Council passed

legislation permitting a request for proposals to be issued from companies to build the Tunnel

Project, a large combined sewer overflow tunnel[.]” This was the only allegation in the amended

complaint alluding to a governmental regulation. Based upon Appellants’ description of the

legislation in the amended complaint, there is no explicit allegation or reasonable inference that

this legislation authorized the construction of the tunnel and regulated Appellants’ land use in

any manner. Accordingly, this material allegation regarding the existence of a governmental

regulation of land fails to support a partial regulatory taking in this matter. Further, Appellants

did not plead that any other legislation regulated Appellants’ land use in any way. Because

Appellants have failed to plead a governmental regulation impacting their land use in this case, it

is unnecessary to further examine whether Appellants sufficiently pled the Penn Central factors

for a partial regulatory taking in an inverse condemnation claim.

       {¶15} Accepting the material allegations as true and making all reasonable inferences in

favor of Appellants, this Court concludes that Appellants could prove no set of facts in support

of their inverse condemnation claim based upon a partial regulatory taking that would entitle

them to relief. Accordingly, the trial court did not err in granting the City’s motion for judgment

on the pleadings.

       {¶16} The first assignment of error is overruled.

                              ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT ERRED IN HOLDING THAT APPELLANTS EACH
       FAILED TO ALLEGE A VALID BREACH OF CONTRACT UNDER OHIO
       LAW.
                                                  7


       {¶17} In their second assignment of error, Appellants argue that the trial court erred in

granting judgment on the pleadings in regard to their breach of contract claim. This Court

disagrees.

       {¶18} As pertinent to our review of this assignment of error, the applicable standard of

review for a motion for judgment on the pleadings is set forth under the first assignment of error.

“To prove a breach of contract claim[,] a plaintiff must demonstrate by a preponderance of the

evidence that: (1) a contract existed, (2) the plaintiff fulfilled [her] obligations, (3) the defendant

failed to fulfill its obligations, and (4) damages resulted from this failure.” (Quotation marks and

citations omitted.) Hoyt, 2013-Ohio-3663, at ¶ 8.

       {¶19} Inherent in every contract is a duty of good faith and fair dealing by each of the

parties in performing and enforcing the contract. Krukrubo v. Fifth Third Bank, 10th Dist.

Franklin No. 07AP-270, 2007-Ohio-7007, ¶ 18, quoting Restatement of Law 2d, Contracts

(1981), Section 205. Allegations of a breach of duty of good faith and fair dealing are subsumed

into a breach of contract claim. Krukrubo at ¶ 19. Thus, “there is no independent cause of action

for breach of the implied duty of good faith and fair dealing apart from the breach of the

underlying contract.” Lucarell v. Nationwide Mut. Ins. Co., 152 Ohio St.3d 453, 2018-Ohio-15,

¶ 44; Padula, 2015-Ohio-2374, at ¶ 53.

       {¶20} Appellants pled that they each entered into a contract to acquire their respective

lots from the City. Appellants also asserted that they relied upon the terms and conditions

contained in the recorded Hickory Corridor Plan when deciding to purchase their lots from the

City. Appellants alleged that the City knew at the time they entered into their contracts that the

tunnel project would be located in the Hickory Corridor, but failed to disclose this information to

Appellants resulting in damages. Appellants argued that they pled facts establishing that the City
                                                 8


breached the contracts by 1) “with[olding] material information that induced each Resident to

acquire property within the Hickory Corridor Plan[,]” 2) “proceeding with the Tunnel Project[,]”

and 3) “not adhering to the Hickory Corridor Plan.”

       {¶21} Attached to the amended complaint were copies of the real estate sales

agreements and the amendment to the real estate sales agreements entered into by Ms. Maher and

Ms. Johnson with the City. As for the Cherrys, their real estate sales agreement was not attached

to the amended complaint and instead they included an explanation in the amended complaint

that the City was in possession of their contract. See Civ.R. 10(D)(1). Because the Cherrys

complied with Civ.R. 10(D)(1), the absence of their contract with the complaint is not fatal. See

Krause v. Case W. Res. Univ., 8th Dist. Cuyahoga No. 70526, 1996 Ohio App. LEXIS 5771, *13

(Dec. 19, 1996). Nonetheless, the Cherrys must still allege facts giving rise to a breach of

contract.

       {¶22} The only contracts identified by Appellants were their respective real estate sales

agreements and amendment to the real estate sales agreements with the City which provided for

the sale of vacant parcels by quitclaim deed. Despite identifying these contracts, Appellants

failed to identify any specific term in those contracts that was breached by the City.

       {¶23} Instead, Appellants’ alleged that the City’s acts and omissions were contrary to

the Hickory Corridor Plan. Yet, Appellants did not allege in their amended complaint that the

Hickory Corridor Plan was a separate contract between them and the City. The Appellants only

alleged that they relied upon the Hickory Corridor Plan in deciding to purchase their respective

lots and that the City acted “contrary to the express terms and conditions upon which the Hickory

Corridor [Plan was] enacted.” Those allegations, however, do not state a breach of contract claim

arising from the real estate sales agreements because of the application of the “Entire
                                                   9


Agreement” clause. This clause stated that “This Agreement is the complete understanding of

the parties. Any promise or condition not contained in this Agreement is not binding on the

parties.” Because the Hickory Corridor Plan was not one of the terms in the real estate sales

agreements, that document could not serve as the basis for the breach of contract.

        {¶24} Contrary to the allegations in the amended complaint and the real estate sales

agreements, Appellants argue on appeal that the terms of the Hickory Corridor Plan were

incorporated into their real estate sales agreements by virtue of the City recording it and listing

Appellants’ properties as being within the Hickory Corridor Plan area. This Court, however, will

not consider this argument as it is being raised for the first time on appeal. JPMorgan Chase

Bank, Natl. Assn. v. Burden, 9th Dist. Summit No. 27104, 2014-Ohio-2746, ¶ 12. Additionally,

this argument will not be considered because Appellants failed to cite any legal authority in

support of their argument. See Harris v. Nome, 9th Dist. Summit No. 21071, 2002-Ohio-6994, ¶

15; App.R. 12(A)(2); App.R. 16(A)(7).

        {¶25} Appellants contend on appeal that their “breach of contract claim arises out of the

City’s breach of the covenant of good faith and fair dealing that is implied in each contract.”

(Emphasis deleted.) Contrary to Appellants’ position, their breach of contract claim cannot be

based solely upon a breach of the duty of good faith and fair dealing. While the duty of good

faith and fair dealing is integral to a contract, “there is no violation of th[is] implied duty unless

there is a breach of a specific obligation imposed by the contract.” Lucarell, 152 Ohio St.3d 453,

2018-Ohio-15, ¶ 43. See Krukrubo, 2007-Ohio-7007, ¶ 19. “[A] claim for breach of contract

subsumes the accompanying claim for breach of the duty of good faith and fair dealing. [When a

plaintiff’s] complaint fails to state a claim for breach of contract, it also fails to state a claim for

breach of the duty of good faith and fair dealing.” Krukrubo at ¶ 19. See Lucarell at ¶ 47;
                                                 10


Firelands Regional Med. Ctr. v. Jeavons, 6th Dist. Erie No. E-07-068, 2008-Ohio-5031, ¶ 28. As

addressed above, Appellants have failed to identify any specific term in the real estate sales

agreements that the City breached. Accordingly, Appellants’ allegations that the City breached

its duty of good faith and fair dealing cannot support a breach of contract claim.

       {¶26} Lastly, Appellants argue that Ms. Johnson pled an additional breach of contract

based upon her allegations that the City conditioned the issuance of a building permit upon her

execution of a release of any claims she had against the City. Ms. Johnson, however, did not

present this argument to the trial court, and it is therefore forfeited on appeal. Burden at ¶ 12.

       {¶27} Thus, taking all of the allegations in the amended complaint and the attachments

as true, and making all reasonable inferences in Appellants’ favor, this Court concludes that

Appellants could prove no set of facts that would entitle them to relief on their breach of contract

claim. Accordingly, the trial court did not err in granting the City’s motion for judgment on the

pleadings.

       {¶28} The second assignment of error is overruled.

                                                 III.

       {¶29} The assignments of error are overruled and the judgment of the Summit County

Common Pleas Court is affirmed.

                                                                                 Judgment affirmed.




       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.
                                                11


       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

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 to Appellants.




                                                     LYNNE S. CALLAHAN
                                                     FOR THE COURT




SCHAFER, P. J.
CONCURS.

CARR, J.
DISSENTING.

       {¶30} In accepting all material allegations in the complaint as true and making every

reasonable inference in favor of the nonmoving party, I cannot agree that judgment on the

pleadings was properly granted. I respectfully dissent.


APPEARANCES:

JOHN F. MYERS, Attorney at Law, for Appellants.

EVE V. BELFANCE, Director of Law, and BRIAN D. BREMER and JOHN CHRISTOPHER
REECE, Assistant Directors of Law, for Appellee.

RONALD S. KOPP, STEPHEN W. FUNK and JESSICA A. LOPEZ, Attorneys at Law, for
Appellee.
