[Cite as Estate of Mikulski v. Toledo Edison Co., 2026-Ohio-2508.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Estate of Jerome R. Mikulski Court of Appeals No. L-25-00183
Appellant Trial Court No. CI-2024-4994
v.
The Toledo Edison Company DECISION AND JUDGMENT
Appellee Decided: June 30, 2026
*****
Eric H. Zagrans and Dennis P. Barron for appellant.
Peter B. Morrison, Allen L. Lanstra, and Zachary Faigen for appellee.
SULEK, J.
{¶ 1} Appellant the Estate of Jerome R. Mikulski (“Mikulski”) appeals the
judgment of the Lucas County Court of Common Pleas, which dismissed
Mikulski’s class-action complaint against appellee The Toledo Edison Company
(“TE”). For the reasons that follow, the trial court’s judgment is affirmed. I. Factual Background and Procedural History
{¶ 2} In 1985 and 1986, Mikulski owned common shares of TE.
{¶ 3} In 2002, Mikulski initiated four separate class-action complaints: one
against TE in Lucas County, one against Cleveland Electric Illuminating Company
(“CEI”) in Cuyahoga County, and two against Centerior Energy Corporation
(“Centerior”) in Cuyahoga County. Notably, TE and CEI eventually merged into
Centerior. The complaints were similar and centered around Mikulski’s belief that
the electric companies fraudulently inflated their earnings and profits, such that
distributions made to shareholders would be classified as dividends as opposed to
returns of capital. Specifically, as to TE, Mikulski alleged that TE fraudulently
reported distributions of $92 million in 1985 and $45.6 million in 1986 that were
categorized as 100 percent dividends when, in fact, they should have been
categorized as 97 percent returns of capital.
{¶ 4} Mikulski sought to certify a class generally comprised of “All
common shareholders of . . . TE, and all beneficial owners of TE common shares,
from January 1985 through April 1986, inclusive, who were issued, in either of the
calendar years 1986 or 1987, a Form 1099-DIV or substitute therefor by TE or its
agents reporting the tax status of distributions made by TE during either of the
calendar years 1985 or 1986.” It further sought to certify a subclass comprised of
“All members of the class who were issued, in either of the calendar years 1986 or
1987, a Form 1099-DIV or substitute therefore by TE or its agents reporting the
tax status of distributions made by TE during either of the calendar years 1985 or
2. 1986, and who paid a state or federal income tax for either such year . . ..” Estate
of Mikulski v. Toledo Edison Co., 2021-Ohio-361, ¶ 9-10 (6th Dist.).
{¶ 5} After a lengthy delay occasioned by the removal of the proceedings to
federal court and an agreement to stay the proceedings pending resolution of the
companion cases in Cuyahoga County, the trial court certified the subclass but not
the class. In denying certification of the class, it found that the Estate failed to
demonstrate an actual injury with respect to its fraudulent misrepresentation claim.
On appeal, this court reversed the trial court’s judgment certifying the subclass
and affirmed the judgment denying certification of the class.
{¶ 6} As to the subclass, this court found that Mikulski failed to satisfy the
predominance requirement of Civ.R. 23(B)(3). Specifically, it found that “there is
no common evidence which shows that all subclass members suffered an injury, as
it cannot simply be assumed that any [tax] payment by the shareholder was an
overpayment,” and there is likewise “no generalized, common proof of the amount
of each member’s damages, assuming an injury was suffered.” Id. at ¶ 44. This
court reasoned that
the 1986 and 1987 state and federal tax returns of each subclass member will have to be further examined, individually, to arrive at [the amount of each member’s damages]. These undertakings cannot be accomplished by a statistical model for the entire subclass, as the circumstances surrounding whether each subclass member was injured, and if so, to what extent, will have to be separately decided based on each subclass member’s individual situation.
Id.
3. {¶ 7} As to the class, this court held that Mikulski failed to demonstrate
standing to bring its claim of an informational injury. Id. at ¶ 58. Relying on
Smith v. Bank of Am., N.A., 679 Fed.Appx. 549 (9th Cir. 2017), this court reasoned
that standing requires a concrete injury, which Mikulski’s allegations did not
demonstrate. It noted that Mikulski “failed to demonstrate how the erroneous
form affected its reliance on the information, or how it relied on the erroneous
info, or it paid more in taxes based on the erroneous information contained in the
tax form.” Id. Further, this court determined that Mikulski’s claim of injury based
on an allegation that it may be subject to liability if audited by the IRS was not
concrete “because it is only a possibility that the IRS would punish a taxpayer-
shareholder for relying on a form provided to it by a corporation.” Id. at ¶ 59.
{¶ 8} Notably, approximately two years earlier in Estate of Mikulski v.
Centerior Energy Corp., 2019-Ohio-983 (8th Dist.), appeal not accepted 2019-
Ohio-4840, the Eighth District similarly rejected Mikulski’s attempts to certify a
class and subclass that were functionally identical to those before this court. Like
this court’s decision, the Eighth District held that the subclass should not be
certified because “there is no common proof that will establish injury for each
class member,” and “[a]pplying United States federal income tax law to each
member of the Subclass to determine whether that member was actually injured
(i.e., overpaid his or her taxes in the relevant years) requires an individualized
inquiry that fails to satisfy the predominance requirement under Civ.R. 23(B)(3).”
Id. at ¶ 50. It likewise held that the class should not be certified because the
4. “informational” injury of receiving a mischaracterized 1099-DIV form was “not
sufficient to constitute an injury for standing or class-certification purposes.” Id.
at ¶ 61.
{¶ 9} Following the denial of class certification, Mikulski voluntarily
dismissed its case against TE, and one year later refiled it as the present case. The
proposed class described in the new complaint is nearly identical to the class that
was rejected in the previous litigation:
all common shareholders of TE, and all beneficial owners of TE common shares, from January 1, 1985 through April 29, 1986, inclusive, who were issued in either calendar year 1986 or calendar year 1987 a Form 1099-DIV or substitute therefor by TE or its agents reporting the tax status of distributions made to them by TE during the calendar years 1985 or 1986, respectively . . ..
The proposed subclass is different, consisting of “all members of the Class who
exchanged their TE common shares for common shares of Centerior in the merger
that occurred on or about April 29, 1986 (the “Merger”).”
{¶ 10} The complaint alleged that TE’s false representation caused three
economic injuries to the class and subclass: “the Inflated Dividend Injury, the
Deflated [Return of Capital] Injury, and the Providing Property of a Materially
Different Character than Represented Injury.” In addition, the complaint alleged
that TE’s conduct caused the subclass to suffer a “Tax-Free Exchange Treatment
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[Cite as Estate of Mikulski v. Toledo Edison Co., 2026-Ohio-2508.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Estate of Jerome R. Mikulski Court of Appeals No. L-25-00183
Appellant Trial Court No. CI-2024-4994
v.
The Toledo Edison Company DECISION AND JUDGMENT
Appellee Decided: June 30, 2026
*****
Eric H. Zagrans and Dennis P. Barron for appellant.
Peter B. Morrison, Allen L. Lanstra, and Zachary Faigen for appellee.
SULEK, J.
{¶ 1} Appellant the Estate of Jerome R. Mikulski (“Mikulski”) appeals the
judgment of the Lucas County Court of Common Pleas, which dismissed
Mikulski’s class-action complaint against appellee The Toledo Edison Company
(“TE”). For the reasons that follow, the trial court’s judgment is affirmed. I. Factual Background and Procedural History
{¶ 2} In 1985 and 1986, Mikulski owned common shares of TE.
{¶ 3} In 2002, Mikulski initiated four separate class-action complaints: one
against TE in Lucas County, one against Cleveland Electric Illuminating Company
(“CEI”) in Cuyahoga County, and two against Centerior Energy Corporation
(“Centerior”) in Cuyahoga County. Notably, TE and CEI eventually merged into
Centerior. The complaints were similar and centered around Mikulski’s belief that
the electric companies fraudulently inflated their earnings and profits, such that
distributions made to shareholders would be classified as dividends as opposed to
returns of capital. Specifically, as to TE, Mikulski alleged that TE fraudulently
reported distributions of $92 million in 1985 and $45.6 million in 1986 that were
categorized as 100 percent dividends when, in fact, they should have been
categorized as 97 percent returns of capital.
{¶ 4} Mikulski sought to certify a class generally comprised of “All
common shareholders of . . . TE, and all beneficial owners of TE common shares,
from January 1985 through April 1986, inclusive, who were issued, in either of the
calendar years 1986 or 1987, a Form 1099-DIV or substitute therefor by TE or its
agents reporting the tax status of distributions made by TE during either of the
calendar years 1985 or 1986.” It further sought to certify a subclass comprised of
“All members of the class who were issued, in either of the calendar years 1986 or
1987, a Form 1099-DIV or substitute therefore by TE or its agents reporting the
tax status of distributions made by TE during either of the calendar years 1985 or
2. 1986, and who paid a state or federal income tax for either such year . . ..” Estate
of Mikulski v. Toledo Edison Co., 2021-Ohio-361, ¶ 9-10 (6th Dist.).
{¶ 5} After a lengthy delay occasioned by the removal of the proceedings to
federal court and an agreement to stay the proceedings pending resolution of the
companion cases in Cuyahoga County, the trial court certified the subclass but not
the class. In denying certification of the class, it found that the Estate failed to
demonstrate an actual injury with respect to its fraudulent misrepresentation claim.
On appeal, this court reversed the trial court’s judgment certifying the subclass
and affirmed the judgment denying certification of the class.
{¶ 6} As to the subclass, this court found that Mikulski failed to satisfy the
predominance requirement of Civ.R. 23(B)(3). Specifically, it found that “there is
no common evidence which shows that all subclass members suffered an injury, as
it cannot simply be assumed that any [tax] payment by the shareholder was an
overpayment,” and there is likewise “no generalized, common proof of the amount
of each member’s damages, assuming an injury was suffered.” Id. at ¶ 44. This
court reasoned that
the 1986 and 1987 state and federal tax returns of each subclass member will have to be further examined, individually, to arrive at [the amount of each member’s damages]. These undertakings cannot be accomplished by a statistical model for the entire subclass, as the circumstances surrounding whether each subclass member was injured, and if so, to what extent, will have to be separately decided based on each subclass member’s individual situation.
Id.
3. {¶ 7} As to the class, this court held that Mikulski failed to demonstrate
standing to bring its claim of an informational injury. Id. at ¶ 58. Relying on
Smith v. Bank of Am., N.A., 679 Fed.Appx. 549 (9th Cir. 2017), this court reasoned
that standing requires a concrete injury, which Mikulski’s allegations did not
demonstrate. It noted that Mikulski “failed to demonstrate how the erroneous
form affected its reliance on the information, or how it relied on the erroneous
info, or it paid more in taxes based on the erroneous information contained in the
tax form.” Id. Further, this court determined that Mikulski’s claim of injury based
on an allegation that it may be subject to liability if audited by the IRS was not
concrete “because it is only a possibility that the IRS would punish a taxpayer-
shareholder for relying on a form provided to it by a corporation.” Id. at ¶ 59.
{¶ 8} Notably, approximately two years earlier in Estate of Mikulski v.
Centerior Energy Corp., 2019-Ohio-983 (8th Dist.), appeal not accepted 2019-
Ohio-4840, the Eighth District similarly rejected Mikulski’s attempts to certify a
class and subclass that were functionally identical to those before this court. Like
this court’s decision, the Eighth District held that the subclass should not be
certified because “there is no common proof that will establish injury for each
class member,” and “[a]pplying United States federal income tax law to each
member of the Subclass to determine whether that member was actually injured
(i.e., overpaid his or her taxes in the relevant years) requires an individualized
inquiry that fails to satisfy the predominance requirement under Civ.R. 23(B)(3).”
Id. at ¶ 50. It likewise held that the class should not be certified because the
4. “informational” injury of receiving a mischaracterized 1099-DIV form was “not
sufficient to constitute an injury for standing or class-certification purposes.” Id.
at ¶ 61.
{¶ 9} Following the denial of class certification, Mikulski voluntarily
dismissed its case against TE, and one year later refiled it as the present case. The
proposed class described in the new complaint is nearly identical to the class that
was rejected in the previous litigation:
all common shareholders of TE, and all beneficial owners of TE common shares, from January 1, 1985 through April 29, 1986, inclusive, who were issued in either calendar year 1986 or calendar year 1987 a Form 1099-DIV or substitute therefor by TE or its agents reporting the tax status of distributions made to them by TE during the calendar years 1985 or 1986, respectively . . ..
The proposed subclass is different, consisting of “all members of the Class who
exchanged their TE common shares for common shares of Centerior in the merger
that occurred on or about April 29, 1986 (the “Merger”).”
{¶ 10} The complaint alleged that TE’s false representation caused three
economic injuries to the class and subclass: “the Inflated Dividend Injury, the
Deflated [Return of Capital] Injury, and the Providing Property of a Materially
Different Character than Represented Injury.” In addition, the complaint alleged
that TE’s conduct caused the subclass to suffer a “Tax-Free Exchange Treatment
Injury.” It further alleged that the class and subclass suffered those injuries
“immediately upon TE’s issuance to them of the false and fraudulent Forms 1099-
DIV.”
5. {¶ 11} TE moved to dismiss the complaint, arguing that Mikulski lacked
standing because the purported injuries were not concrete. Notably, in its
opposition to the motion to dismiss, Mikulski asserted that the class members have
purportedly sustained large monetary losses from needlessly paid federal and state
income taxes. Mikulski recognized, however, that recovery for those losses could
not be achieved through the class-action mechanism because of a failure to satisfy
the predominance requirement under Civ.R. 23(B)(3). Mikulski therefore noted
that it had deleted the allegations of the class members’ losses when it filed the
present complaint. Instead, Mikulski relied on the receipt of the tax forms as the
injury itself, without any further allegations that the class members “sustained any
monetary or financial loss.”
{¶ 12} On July 11, 2025, the trial court granted TE’s motion and dismissed
Mikulski’s complaint. The trial court agreed that Mikulski’s four proposed
injuries were not concrete, and that they were “therefore insufficient to confer
standing on [Mikulski].”
II. Assignments of Error
{¶ 13} Mikulski timely appeals the trial court’s July 11, 2025 judgment,
asserting four assignments of error for review:
1. The trial court committed reversible error as a matter of law when it dismissed Mikulski’s Complaint for lack of standing because it erroneously limited and confined the sound reasoning and logic of the Smith v. Bank of America and Rovai v. Select Portfolio Servicing decisions in an unreasonable and overly literal manner to conclude that the Inflated Dividend and Deflated Return of Capital
6. (“ROC”) injuries were not sufficiently concrete to confer standing on Mikulski.
2. The trial court committed reversible error as a matter of law when it dismissed Mikulski’s Complaint for lack of standing because it erroneously concluded that invasions of legally protected interests do not constitute concrete injuries under Ohio law.
3. The trial court committed reversible error as a matter of law when it dismissed Mikulski’s Complaint for lack of standing because it erroneously failed to apply established Ohio injury law to recognize the “immediacy and completeness” of the injury Mikulski suffered from Toledo Edison’s fraudulently providing to Mikulski property of a materially different character than it had represented on the Forms 1099-DIV issued to Mikulski.
4. The trial court committed reversible error as a matter of law when it dismissed Mikulski’s Complaint for lack of standing because it erroneously failed to apply established Ohio injury law to recognize the “immediacy and completeness” of the tax-free exchange injury that Mikulski suffered upon Toledo Edison’s issuance of the fraudulent Forms 1099-DIV to Mikulski.
III. Analysis
{¶ 14} This court reviews de novo a trial court’s decision granting a Civ.R.
12(B)(6) motion to dismiss. Veller v. K.B., 2025-Ohio-687, ¶ 18 (6th Dist.), citing
Perrysburg Twp. v. Rossford, 2004-Ohio-4362, ¶ 5. “To dismiss a complaint for
failure to state a claim, ‘it must appear beyond doubt that the plaintiff can prove no
set of facts in support of the claim that would entitle the plaintiff to the relief
sought.’” Id., quoting Ohio Bur. of Workers’ Comp. v. McKinley, 2011-Ohio-
4432, ¶ 12.
7. {¶ 15} At issue in each of Mikulski’s assignments of error is whether it has
standing to bring the class-action claims. As this court previously recognized in
Mikulski,
“To have standing, plaintiffs must show that they have suffered an injury that is fairly traceable to the defendants’ allegedly unlawful conduct and that is likely to be redressed by the requested relief.” Estate of Mikulski [v. Centerior Energy Corp.], 2019-Ohio- 983, 133 N.E.3d 899, ¶ 59 [(8th Dist.)], citing Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, ¶ 22. “‘‘Perhaps the most basic requirement to bringing a lawsuit is that the plaintiff suffer some injury. Apart from a showing of wrongful conduct and causation, proof of actual harm to the plaintiff has been an indispensable part of civil actions.’’” Id., quoting Felix [v. Ganley Chevrolet, Inc.], 145 Ohio St.3d 329, 2015-Ohio-3430, 49 N.E.3d 1224 at ¶ 36. An “injury-in-fact” is essential to find the class representative possesses standing to pursue redress for common injury, shared by the class. Strickler v. Ohio Banc & Lending, Inc., 9th Dist. Lorain No. 12CA010178, 2013-Ohio-1221, 2013 WL 1286010, ¶ 8.
In order to demonstrate a party has standing, the party must allege an injury that is “concrete and not simply abstract or suspected to be compensable.” State ex rel. Food & Water Watch v. State, 153 Ohio St.3d 1, 2018-Ohio-555, 100 N.E.3d 391, ¶ 20. Most importantly, a concrete injury is required even when the party alleges a statutory violation. Spokeo, Inc. v. Robins, 578 U.S. 330, 136 S.Ct. 1540, 1549, 194 L.Ed.2d 635 (2016). The demonstration of a concrete injury is still necessary because a statutory violation “may result in no harm” or even “any material risk of harm.” Id. at 1550.
Estate of Mikulski v. Toledo Edison Co., 2021-Ohio-361, ¶ 53-54 (6th Dist.)
{¶ 16} Recently, in Estate of Mikulski v. Centerior Energy Corp., 2025-
Ohio-5041, ¶ 43-68 (8th Dist.), appeal not accepted, 2026-Ohio-2109, which
involved functionally identical claims and proposed classes, the Eighth District
examined the same arguments that are now presented by Mikulski. It rejected
8. those arguments and held that “the class and the subclass have not alleged
sufficient injury to confer standing and warrant class certification.” Id. at ¶ 68.
This court agrees with and adopts the Eighth District’s analysis. In the end,
regardless of how it is packaged, Mikulski’s mere receipt of allegedly incorrect tax
forms in 1985 and 1986 is not a concrete injury sufficient to confer standing.
{¶ 17} Accordingly, Mikulski’s assignments of error are not well-taken.
IV. Conclusion
{¶ 18} For the foregoing reasons, the judgment of the Lucas County Court
of Common Pleas is affirmed. Mikulski is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, P.J. JUDGE
Christine E. Mayle, J. JUDGE
Charles E. Sulek, J. CONCUR. JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
9.