Bret Adams, Plaintiff-Appellant, v. Christine Margarum et al., Defendants-Appellees.
No. 16AP-515 (C.P.C. No. 16 CV 02398)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
Rendered on May 9, 2017
2017-Ohio-2741
TYACK, P.J.
(ACCELERATED CALENDAR)
On Brief: Arenstein & Andersen Co., L.P.A., and Nicholas I. Andersen and Jessica L. Sohner, for appellees.
APPEAL from the Franklin County Court of Common Pleas
TYACK, P.J.
{¶ 1} Plaintiff-appellant, Bret Adams, appeals from the June 23, 2016 decision and judgment entry of the Franklin County Court of Common Pleas dismissing his complaint for failure to state a claim upon which relief can be granted. For the reasons that follow, we affirm the judgment of the court of common pleas.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Adams filed a complaint against defendants-appellees, Christine Margarum and Patricia Pappas alleging fraud and civil conspiracy. Specifically, Adams alleged that on March 4, 2014, he and Margarum agreed to pay Pappas $100,000 on or before May 3,
{¶ 3} The complaint also alleged that, on November 6, 2014, Pappas filed a complaint in the Franklin County Court of Common Pleas (Franklin C.P. No. 14 CV 11486) claiming that Adams breached the terms of the note. (Compl. at ¶ 6.) Pappas did not name Margarum as a party in the lawsuit. Id.
{¶ 4} A bench trial was held, and Margarum testified that she was not liable under the terms of the note and that she did not execute the note. (Compl. at ¶ 8, 9.)
{¶ 5} Adams alleged in the complaint that he was present when Margarum executed the note. (Compl. at ¶ 10.)
{¶ 6} Adams alleged that Margarum and Pappas committed fraud because Pappas never intended to receive any payments from Margarum pursuant to the terms of the note, in part, because Margarum is Pappas’ daughter. (Compl. at ¶ 11, 14.) In support of his claim, Adams stated that:
[Margarum and Pappas] committed fraud by making certain statements and/or representations to [Adams], as detailed in the foregoing paragraphs. Specifically, when the Note was executed by Plaintiff [Adams] and Defendant Pappas (sic) on March 4, 2014, Defendant Pappas never intended to receive any payments from Defendant Margarum pursuant to the terms of the Note.
(Compl. at ¶ 14.) Adams further alleged that the fraud “allegation is unequivocally supported by the fact that Defendant Pappas did not make Defendant Margarum in the lawsuit as a Defendant.” (Compl. at ¶ 16.)
{¶ 7} At the time Adams filed his complaint, no decision had been issued in Franklin C.P. No. 14 CV 11486. (Compl. at ¶ 12.)
{¶ 8} Adams also alleged that Margarum and Pappas conspired to obtain Adams’ signature on the note with the intent that Margarum would not be required to make any payments on the note. (Compl. at ¶ 23.) Adams alleged that “[i]n furtherance of the conspiracy, [Margarum and Pappas] fraudulently concealed from [Adams] material facts
{¶ 9} Margarum and Pappas filed a motion to dismiss pursuant to
{¶ 10} The trial court found that Adams did not state with particularity what statements and representations were made that induced fraud, and that he failed to plead fraud with particularity as required by
II. ASSIGNMENTS OF ERROR
{¶ 11} Adams appealed, assigning the following as error:
[I.] The Trial Court erred in granting Defendants’ Motion to Dismiss because Plaintiff‘s Complaint sufficiently pled factual allegations to support its causes of action under the requirements of Civil Rule 9(B).
[II.] The Trial Court erred in granting Defendants’ Motion to Dismiss as Plaintiff sufficiently pled with particularity a cause of action for fraud against Defendants which was supported by specific factual allegations and documented in the Exhibit attached to Plaintiff‘s Complaint.
III. STANDARD OF REVIEW
{¶ 12} A trial court‘s decision to dismiss a complaint pursuant to
IV. ANALYSIS
A. Fraud
{¶ 13} To prove fraud, a plaintiff must demonstrate: (1) a representation or, where there is a duty to disclose, concealment 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 on it; (5) justifiable reliance on the representation or concealment; and (6) a resulting injury proximately caused by the reliance. Burr v. Bd. of Cty. Commrs., 23 Ohio St.3d 69, 73 (1986); Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 475 (1998); Gaines v. Preterm-Cleveland, Inc., 33 Ohio St.3d 54, 55 (1987).
{¶ 14} Additionally,
{¶ 15} In Ohio, fraud cannot be predicated on promises or representations relating to future action or conduct. Brevoort v. Internatl. Fin. Resources, Inc., 10th Dist. No. 93AP-977 (Dec. 30, 1993). To constitute actionable fraud, the misrepresentation must be of a fact existing when the misrepresentation was made or one which had previously existed. Gouge v. Bax Global Inc., 252 F.Supp.2d 509, 515 (N.D.Ohio 2003), citing Yo-Can, Inc. v. The Yogurt Exchange, Inc., 149 Ohio App.3d 513, 525, 2002-Ohio-5194 (7th Dist.), citing Link v. Leadworks Corp., 79 Ohio App.3d 735, 742 (8th Dist.1992). Generally, fraud cannot be based on a representation concerning a future event because such a representation is more in the nature of a prediction or opinion about what the future may bring. Id. However, a promise made with a present intention not to perform is a misrepresentation of an existing fact even if the promised performance is to occur in the future. Id.
{¶ 16} Adams has failed to allege any false misrepresentations made prior to his signing the note. Our review of the allegations in the complaint reveals that Adams has not alleged any specific statements made by Pappas or Margarum other than to refer to Margarum‘s trial testimony that she was not liable under the note and that she did not execute the note. (Compl. at ¶ 9, 17.) Assuming, for purposes of
{¶ 17} The complaint fails to identify any statements or representations made by Pappas to form the basis of a fraud claim. Instead, Adams contends that “Pappas never intended to receive any payments from Defendant Margarum pursuant to the terms of the Note,” that Pappas did not name Margarum in her lawsuit, and that Margarum is the daughter of Pappas. (Compl. at ¶ 11, 14.)
{¶ 18} Assuming again for purposes of
{¶ 19} Adams has failed to plead facts from which one can infer that there were any material misrepresentations or concealed facts on which he relied or that were made with the intent of misleading him into relying on them. Adams’ complaint does not state a claim on which relief may be granted for fraud. Therefore, it was proper for the trial court to dismiss the claim.
B. Civil Conspiracy
{¶ 20} The tort of civil conspiracy is a malicious combination of two or more persons to injure another in person or property, in a way not competent for one alone, resulting in actual damages. Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 475 (1998). An underlying unlawful act is required before a civil conspiracy claim can succeed. Id. The malice involved in the tort is that state of mind under which a person does a wrongful act purposely, without a reasonable or lawful excuse, to the injury of another. Id.
{¶ 21} “A civil conspiracy claim is derivative and cannot be maintained absent an underlying tort that is actionable without the conspiracy.” Morrow v. Reminger & Reminger Co. LPA, 183 Ohio App.3d 40, 60, 2009-Ohio-2665, ¶ 40 (10th Dist.). Here, Adams’ civil conspiracy claim is based on fraud by Pappas and Margarum. Having concluded that the complaint fails to state a claim for fraud, the derivative claim of civil conspiracy must fail also.
V. CONCLUSION
{¶ 22} Viewing the allegations and all reasonable inferences in Adams’ favor, we conclude that Adams has not stated a claim against Pappas and Margarum for fraud or civil conspiracy pursuant to
Judgment affirmed.
BROWN and LUPER SCHUSTER, JJ., concur.