[Cite as Weiler v. C.L., 2022-Ohio-4212.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

SHAWN WEILER, :

Plaintiff-Appellant, :

No. 111657

v. :

C.L.,

1

:

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: November 23, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-21-948429

Appearances:

Shawn Weiler, pro se. 

Timothy G. Sweeney, for appellee. 

EILEEN T. GALLAGHER, J.:

This cause came to be heard on the accelerated calendar pursuant to 

App.R. 11.1 and Loc.R. 11.1. Plaintiff-appellant, Shawn Weiler (“Weiler”), pro se, 

appeals the dismissal of his complaint and claims the following errors:

1 In accordance with this court’s policy and with 18 U.S.C. 2265(d)(3), initials are 

used herein to protect the privacy of the protected party.
1. The common pleas court erred in granting the defendant-appellee’s 

motion to dismiss with regards to plaintiff-appellant’s claim of 

malicious civil prosecution.

2. The common pleas court erred in granting the defendant-appellee’s 

motion to dismiss with regards to plaintiff-appellant’s claim of 

malicious criminal prosecution. 

3. The common pleas court erred in granting defendant-appellee’s 

motion to dismiss with regards to plaintiff-appellant’s claim of 

constructive fraud. 

We find that Weiler’s complaint failed to state a claim on which relief 

could be granted and affirm the trial court’s judgment. 

I. Facts and Procedural History

In June 2021, Weiler filed a complaint, asserting claims of malicious 

civil and criminal prosecution against defendant-appellee, C.L. Weiler twice 

amended the complaint, and the second amended complaint (“the complaint”) sets 

forth three claims: malicious civil prosecution, malicious criminal prosecution, and 

constructive fraud. 

The complaint alleges that Weiler and C.L. were coworkers at Westlake 

Reed Leskosky (“WRL”) from May 2016 through April 2017, when Weiler’s 

employment at WRL was terminated. During that time, Weiler came to believe that 

C.L. was sexually interested in him. According to the complaint, C.L. “purposefully 

─ but nonverbally ─ offered herself to [Weiler] to have sexual relations with [sic] at 

WRL during work hours.” (Second amended complaint, ¶ 8.) 

WRL terminated Weiler’s employment in April 2017. (Second 

amended complaint, ¶ 13.) The complaint does not specify the reason for Weiler’s 
termination. However, in an email addressed to “WRL employees,” attached to the 

complaint as exhibit No. 1, Weiler provided the following explanation of the events 

from his perspective:

I was fired because of a MALICIOUS LIE in the form of a FALSE 

COMPLAINT. I will now expose both this and other skullduggery and 

a very serious injustice that, to my knowledge, affects every one of you 

as it affected me. 

* * *

Since she started working for the WRL in May 2016, I had a romantic 

interest in [C.L]. It was obvious as a man and one who is very well read 

concerning these matters that she returned the sentiment. The 

evidence was well known nonverbal signs such as body language that 

she was flirting with me. 

One piece of evidence that is important concerning what follows 

occurred sometime somewhat earlier in the summer of 2016. I heard 

[C.L.] coughing loudly in the kitchen. Somehow simultaneously 

another young male employee (probably an architect) whose name I 

can’t recall * * * discovered this as he was walking past the kitchen. I 

saw [C.L.] facing the wall at the sink in a red dress coughing in the 

kitchen with no lights on (light coming from the window) and when 

both of us were outside the doorway[,] she smiled and the other 

employee entered and started to inquire after her health while I decided 

not to enter. It occurred to me that this may have been a fake cough 

(given the smile) designed to elicit male attention and sympathy. It 

could have been directed primarily at me because my workstation 

(unlike the other male employee’s) was not far from the kitchen and 

she was (fake) coughing loudly, so as to draw attention.

Later on in the summer of 2016 for purposes which I assume were 

related to her work as an entry level interior designer, [C.L.] spent a 

great deal of time by herself in the sample room looking at interior 

finish samples. It occurred to me that this circumstance was an 

opportunity for me to “make a move.” 

* * *

Later on during the summer of 2016[,] there was a time when I was on 

my way into the office from the elevator lobby on the floor of our office 
to my desk. A group of employees which may or may not have included, 

[C.L.] (I do not know whether she was with them.), but who definitely 

included her father was heading into the elevator lobby through the 

glass doors to wait for an elevator. On the other side of the hallway was 

the main entrance to the sample room. I opened the door and held it 

for [C.L.] and she said that she was planning on going through the door 

but that instead she was going over somewhere else. She followed 

through with her words by entering the sample room and going out of 

sight. It seemed clear to me that her desire was that I should enter the 

sample room and initiate a romantic encounter. I did not do so and I 

believe that I walked to my desk after leaving my lunch in an office 

refrigerator as was my routine and sat down to work. 

* * *

As far as I remember, * * * there was a much more explicit incident that 

provides even stronger evidence. By coincidence, [C.L.] and I entered 

the Hanna Office building through the same entrance at about the same 

time. As we approached the security desk, [C.L.] asked the security 

man on duty * * * whether there was a private room in the building that 

could be used. I did not hear the answer because I was continuing to 

walk to the elevator lobby. It seems clear to me that [C.L.] wanted me 

to know exactly what she wanted at the same time as finding out how 

arrangements could be made, so that I would have no inhibitions to 

carry out certain intimate behavior. 

I do not recall exactly when, but on at least one occasion after the first 

encounter in the sample room[,] I noticed that [C.L.] was behaving 

differently. Since I had a good view of the hallway, I was able to note 

some things such as when people were passing by. I noted that [C.L.]

had come in in the morning with her long hair (more than shoulder 

length) down. At some point during the day[,] she had put her hair up 

in a bun. Furthermore, she walked one way down the hallway, so that 

I could see her through one door and then after she got to the second 

door[,] she abruptly turned around and again walked down the hallway 

past the first door to, I presume, the sample room. It was obvious to 

me that her change of hair style and her movements were meant to 

entice me into joining her in the sample room for a romantic encounter. 

I did not try to do what she wanted. 

* * *

Now, at some point in August 2016[,] I managed to have a talk with 

[C.L.] outside the office. We walked and talked outside. During our 
conversation, she assured me that she wasn’t looking to get involved 

with anyone and that she was content to be just friends. I did not think 

that she was telling the truth because of all my previous observations. 

* * *

Then, in February 2017, I decided to try to get serious. I emailed her 

asking that she would meet me at a semi-public location I won’t reveal 

here. She politely, but definitely declined. I decide[d] to push the issue 

in a way that was not nice because she was obviously being difficult on 

purpose. Based on her behavior, her feelings had not changed and she 

clearly was looking to make me prove myself stronger than her. 

I do not know exactly what occurred in the interim, but I was 

approached by our HR+ accountant person Diane Bartlett. She wanted 

me to come with her. After reaching an empty conference room[,] she, 

the head of the Cleveland office of the new DLR branch, Matt Janiak, 

and I had a disciplinary hearing. They mentioned that [P.L.] had 

informed them of the email exchange and that [C.L.] had related to 

them that I made her feel uncomfortable. They reprimanded me with 

[sic] and mentioned that I had threatened her which was actually 

criminal. Privately, I disagreed that I threatened (and still do) because 

technically no threats * * * were issued, but I decided to maintain my 

silence. Matt indicated that I should consider any close relationship 

finished now because [C.L.] had indicated that she was not interested 

in the email exchange as part of her response. (I had not believed her 

truthfulness in the email.) Diane assured me that there would be a 

write up of the conversation that I would need to sign later on. * * * 

Given that no obvious sign of [C.L.]’s disinterest occurred (based on 

body language)[,] I decided to try another approach, in person this 

time. At the middle of March 2017, I went to [C.L.]’s desk, tapped her 

on the shoulder, and said that I wanted to talk. After moving to the 

model room, I said that the email conversation did not go well, but that 

I still wanted to talk with her and that we should go somewhere else. 

She said no and then said that she had been told by others that if I was 

to ask her something like this again that she was to report it. She then 

pleaded with me that it was a legal issue. As I was walking away, she 

called out to me in tone that I later identified to be playful, “Casual 

conversation only!”

* * *
I determined on another course of action to see if I could resolve the 

whole issue. I figured that [C.L.]’s father [P.L.] would help me because 

I thought that he had to know of and want [C.L.] and me to “get 

together.” Evidence for this (in addition to the incident concerning the 

elevator lobby described above) was that at some point [C.L.] and I had 

come into close physical proximity in the kitchen a[s] I was reaching 

for a new tea box to refill the tea packets set out and [C.L.] was at the 

sink for some reason. A few minutes afterward[,] I saw [P.L.] come 

through the same door he had previously and give me positive eye 

contact.

Having made up my mind, I composed a PRIVATE letter and had it 

delivered to him. In the letter I revealed with strong language a political 

opinion that I held, I asked for his help because it was obvious to me 

that [C.L.] still liked me. I detailed some of what had occurred between 

[C.L.] and me, I told him that [C.L.] would not get what she wanted in 

the manner that she wanted it but that it would be in a moral fashion. 

I show[ed] him how he could succeed in influencing her to do what I 

wanted (which was have a semi-private meeting in a certain location), 

and I ask[ed] that this communication be kept private. At no point did 

I threaten him or even was not nice (in a way similar to my email to 

[C.L.]), but I was assertive and straightforward. 

The next day * * * at about 10:45 a.m., I was approached by Matt Janiak 

and asked to come with him. On the way to the elevator lobby[,] he 

mentioned the letter to [P.L.] (and the earlier incident) and that it was 

not to be tolerated. We met in the lobby with the head of engineering 

* * * and went down to the first floor elevator lobby. Diane Bartlett 

joined us from a different elevator. He said that it was my last day with 

the company and he asked about any of my possessions. I mentioned 

my copy of the 10th edition IES handbook and other things. He said 

that security had been given my photograph. Finally, he bid me to go. 

Although I later did receive the IES handbook in the mail, none of my 

other possession were returned to me. 

I was still convinced that [C.L.] liked me (based on her actions the day 

I was fired), so I resolved to try to approach her on her way to work. I 

had discovered by accident that she took the 77F bus to work that I 

originally took when I started working at the company in 2014. Since I 

was temporarily staying again with relatives that I had been living with 

when I started working with the company, I figured that I could guess 

at the bus that she took. I was correct concerning all of these things. 

Throughout the bus trip, I had kept my eyes closed as I often do. As I 

prepared to exit the bus, I noticed that [C.L.] was present on the bus 
and had let her hair come down in front of her face while she was using 

her phone. She put her hair back revealing her face (an obvious sign of 

attraction) and proceeded to exit the bus from the front door while I 

exited the bus from the rear. I was prepared to initiate a conversation 

when I noticed [P.L] coming to meet her. He flashed me a big smile as 

he proceeded to escort her to the office building. 

I took a few more bus trips on the same bus, on multiple days but I did 

not see her again. 

Convinced based on my reading/research * * * that I might still be able 

to make something work out[,] I determined to try to contact [C.L.]

through email. I told her want [sic] I wanted and after she ignored 

me[,] I sent a series of nastygrams (which however did not contain 

threats). I did not succeed in getting my way. I thought about calling 

her on the phone, but I did not know her phone extension. I obtained 

the phone information from an employee in another WRL office in 

reply to an email with the subject “Cleveland Phone Extensions.” I did 

not ever call her.

Time passed and I started my new job at The Osborne Engineering 

Company. In a last ditch effort, I sent the following URL almost a full 

month after ceasing all communication with her: 

https://youtube.com/watch?v=XoMN-zg7r3M. This is the hyperlink 

to a video entitled “A Toy Train in Space” if you don’t trust the link. * * * 

A week later I was informed by relatives at the house I temporarily was 

staying with after I lost my job, that a sheriff had come by the house 

with court papers for me. I went to the county courthouse to pick them 

up and was given a temporary protection order (TPO) AKA restraining 

order. 

During the hearing which I demanded all of the negative events 

concerning me and [C.L.] were brought up[,] including all email 

exchanges and my attempt to try to talk with her after I was fired. Of 

particular relevance was the testimony UNDER OATH of P.L. He 

claimed that the letter that I sent made him very scared and he claimed 

[C.L.] informed her supervisor about the negative email exchange for 

which I was reprimanded. I believe that both were LIES. This is a 

CRIME of PERJURY. His big smile at me and thus his lack of fear in 

potentially confronting me in order to escort [C.L.] leads me to believe 

that he lied about his reaction to the letter. * * * 
One additional important point concerning the hearing was that at the 

hearing[,] [C.L.] wore her hair in a way that I did not recall her doing 

before. * * * I thought that it was a covert sign that the whole ordeal 

was not really serious (as she still liked me). 

(Emphasis added.) (Second amended complaint, exhibit No. 1.) 

The complaint further alleged that C.L. obtained a civil protection order 

against Weiler and that Weiler was subsequently convicted of the offense of violating 

a protection order. (Second amended complaint, ¶ 16, 46.) 

C.L. filed a motion to dismiss the second amended complaint pursuant 

to Civ.R. 12(B)(6), arguing that it failed to state a claim on which relief could be 

granted. The trial court granted the motion and dismissed the complaint with 

prejudice. Weiler now appeals the trial court’s judgment. 

II. Law and Analysis

A. Standard of Review

C.L.’s motion to dismiss was filed under Civ.R. 12(B)(6). A Civ.R. 

12(B)(6) motion to dismiss for failure to state a claim on which relief can be granted 

“is procedural and tests the sufficiency of the complaint.” State ex rel. Hanson v. 

Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992), 

citing Assn. for Defense of Washington Local School Dist. v. Kiger, 42 Ohio St.3d 

116, 117, 537 N.E.2d 1292 (1989).

A trial court’s review of a Civ.R. 12(B)(6) motion to dismiss is limited to 

the four corners of the complaint along with any documents properly attached to, or 

incorporated within, the complaint. Glazer v. Chase Home Fin. L.L.C., 8th Dist. 
Cuyahoga Nos. 99875 and 99736, 2013-Ohio-5589, ¶ 38. An appellate court reviews 

de novo a trial court’s decision granting a motion to dismiss under Civ.R. 12(B)(6). 

Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, 

¶ 5.

In our review of a Civ.R. 12(B)(6) motion to dismiss, we must accept 

the material allegations of the complaint as true and make all reasonable inferences 

in favor of the plaintiff. Jenkins v. Cleveland, 8th Dist. Cuyahoga No. 104768, 2017-

Ohio-1054, ¶ 8, citing Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 2005-Ohio4985, 834 N.E.2d 791, ¶ 6. For a party to ultimately prevail on the motion, it must 

appear from the face of the complaint that the plaintiff can prove no set of facts that 

would justify a trial court granting relief. Id., citing O’Brien v. Univ. Community 

Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975).

B. Malicious Prosecution

In the first and second assignments of error, Weiler argues the trial 

court erred in finding that he failed to state viable claims for malicious civil and 

criminal prosecution. To prevail on a malicious civilprosecution claim, the plaintiff 

must establish (1) malicious institution of prior proceedings against the plaintiff by 

the defendant, (2) lack of probable cause for institution of the prior proceedings, (3) 

termination of the prior proceedings in the plaintiff’s favor, and (4) seizure of 

plaintiff’s person or property during the course of the prior proceedings. Robb v. 

Chagrin Lagoons Yacht Club, Inc., 75 Ohio St.3d 264, 662 N.E.2d 9 (1996); 

Fourtounis v. Verginis, 8th Dist. Cuyahoga No. 102025, 2015-Ohio-2518, ¶ 22. The 
elements of a malicious criminal prosecution claim are identical to those required 

for a malicious civil prosecution claim except that the element of arrest or seizure is 

not required. Robb at 269; Trussell v. Gen. Motors Corp., 53 Ohio St.3d 42, 146, 

559 N.E.2d 732 (1990). 

Weiler contends C.L.’s pursuit of a civil protection order against him 

and her subsequent complaint that led to the criminal prosecution of him for 

violating the civil protection order constituted malicious civil and criminal 

prosecutions of him. However, according to the face of the complaint, the civil

protection order proceeding did not end in Weiler’s favor; the civil protection order 

was entered against him. (Second amended complaint, ¶ 16.) Likewise, according 

to the complaint, the criminal proceedings against Weiler for violating the civil 

protection order did not end in his favor; he was convicted of violating the protection 

order. (Second amended complaint, ¶ 46.) Therefore, it is apparent from the face 

of the complaint that Weiler cannot prevail on either a malicious civil or criminal 

prosecution claim, and the trial court properly dismissed those claims. 

The first and second assignments of error are overruled.

C. Constructive Fraud

In the third assignment of error, Weiler argues the trial court erred in 

dismissing his constructive fraud claim. 

Constructive fraud is “‘a breach of a legal or equitable duty, which, 

irrespective of moral guilt of the fraud feasor, the law declares fraudulent, because 

of its tendency to deceive others, to violate public or private confidence, or to injure 
public interests.’” Cohen v. Estate of Cohen, 23 Ohio St.3d 90, 91-92, 491 N.E.2d 

698 (1986), quoting Stanley v. Sewell Coal Co., 169 W.Va. 72, 76-77, 285 S.E. 2d 679

(W.Va. 1981). Unlike actual fraud, “‘[c]onstructive fraud does not require proof of 

fraudulent intent.’” Id., quoting Perlberg v. Perlberg, 18 Ohio St.2d 55, 58, 247 

N.E.2d 306 (1969). Rather, a constructive fraud claim “is dependent on a special 

confidential or fiduciary relationship, thereby giving rise to a duty to disclose.”

Schmitz v. NCAA, 2016-Ohio-8041, 67 N.E.3d 852, ¶ 63 (8th Dist.). In a fiduciary 

relationship, “special confidence and trust is reposed in the integrity and fidelity of 

another and there is a resulting position of superiority or influence, acquired by 

virtue of this special trust.” Federated Mgt. Co. v. Coopers & Lybrand, 137 Ohio 

App.3d 66, 384, 738 N.E.2d 842 (10th Dist.2000).

Weiler’s second amended complaint does not allege any fiduciary 

relationship between himself and C.L. nor does the complaint contain any facts on 

which a reasonable inference could be drawn to establish a special, confidential, or 

fiduciary relationship. To the contrary, the second amended complaint alleges only 

Weiler’s subjective impressions of C.L. and the fact that they were coworkers for a 

brief period of time. Despite Weiler’s beliefs to the contrary, the allegations establish 

that they were merely acquaintances. In the absence of any allegation that Weiler 

was dependent on a special confidential or fiduciary relationship with C.L., he 

cannot establish a claim for constructive fraud, and the trial court properly 

dismissed the claim. 

The third assignment of error is overruled.
Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to the common pleas court to carry 

this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE

MICHELLE J. SHEEHAN, P.J., and

EMANUELLA D. GROVES, J., CONCUR