Ravenna Twp. Bd. of Trustees v. Messmore

Opinion

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY

BOARD OF RAVENNA TOWNSHIP CASE NO. 2026-P-0016 TRUSTEES,

Plaintiff-Appellee, Civil Appeal from the Court of Common Pleas

- vs -

MICHAEL MESSMORE, Trial Court No. 2025 CV 00358 Defendant-Appellant.

OPINION AND JUDGMENT ENTRY

Decided: September 14, 2026 Judgment: Reversed and remanded

Chad E. Murdock, P.O. Box 334, Rootstown, OH 44272 (For Plaintiff-Appellee).

Louis R. Bertrand, Louis R. Bertrand and Associates, 409 South Prospect Street, P.O. Box 529, Ravenna, OH 44266 (For Defendant-Appellant).

ROBERT J. PATTON, J.

{¶1} Defendant-appellant, Michael Messmore (“Messmore”), appeals from the judgment of the Portage County Court of Common Pleas granting plaintiff-appellee, the Board of Ravenna Township Trustees’ (the “Township”), motion to dismiss Messmore’s counterclaim pursuant to Civ.R. 12(B)(6). For the following reasons, we reverse the decision of the Portage County Court of Common Pleas and remand the matter to the trial court for further proceedings consistent with this court’s opinion.

Substantive and Procedural Facts {¶2} Messmore is the owner of real property located at 7577 Peck Road, Ravenna Township, Portage County, Ohio (the “Property”). The Property is located in a Residential Low Density Zoning District.

{¶3} According to the Township, Messmore stores inoperable vehicles, junk, and farming equipment no longer used for agricultural purposes on his property in violation of Section 610.09 of Ravenna Township’s Zoning Code (the “Zoning Code”). On January 27, 2024, the Township notified Messmore that it had received complaints regarding the condition of the Property. The letter indicated that Messmore was in violation of the Zoning Code. The letter further stated that “an agricultural affidavit” was not an exemption from adhering to the Zoning Code. Messmore was instructed to “remove the junk vehicles and junk equipment . . . before February 28, 2025.” (Bold in original.)

{¶4} On May 2, 2025, after Messmore failed to remove the “junk” equipment as requested, the Township filed a complaint for injunctive relief pursuant to R.C. 519.24 and the Zoning Code. The Township alleged that the improperly stored vehicles and equipment were “unsightly” and that such use of the Property constituted “a public nuisance.” The Township sought to enjoin Messmore from continuing to use the Property in violation of the Zoning Code.

{¶5} On July 7, 2025, Messmore filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted pursuant to Civ.R. 12(B)(6). Attached to his motion was a written response to the Township’s January 27, 2025 letter, and the Property’s agricultural exemption pursuant to R.C. 519.21(B) and 3781.061. Messmore alleged that he was otherwise entitled to keep the vehicles as “collector vehicles” on

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private property under R.C. 4513.65. The Township opposed the motion to dismiss asserting that Messmore sought to introduce materials outside of the complaint and that a factual dispute could not be resolved under Civ.R. 12(B)(6). On September 16, 2025, the trial court denied Messmore’s motion to dismiss finding that there were “factual questions that [could] not be determined at this stage of the litigation.”

{¶6} On October 23, 2025, Messmore filed his answer to the complaint and a counterclaim. In his answer, Messmore reiterated the arguments presented in his motion to dismiss and again claimed that the Property was exempt from the Zoning Code. As a “defense” to the claim, Messmore alleged that the Township’s enforcement of the Zoning Code violated the due process clause of the Fourteenth Amendment “because [Messmore]’s conduct and his business is authorised [sic] by law and the prosecution . . . is intended to deprive [Messmore] of his livelihood.” As an additional “defense,” Messmore asserted that the Township brought the action against him “in selective prosecution.” In his counterclaim, Messmore asserted that the prosecution and lawsuit brought by the Board was “without sufficient facts and/or law to prosecute . . . because the activities were authorized” by the Township. Messmore sought monetary damages for defending against the lawsuit and demanded a jury trial.

{¶7} On October 28, 2025, the Township filed a motion to dismiss the counterclaim and motion to strike the jury demand. On November 10, 2025, Messmore sought leave to file a response to the Township’s motion to strike the jury demand as “substantial discovery” needed to be completed. The trial court granted leave on November 13, 2025.

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{¶8} On January 21, 2026, Messmore filed a memorandum in opposition to the Township’s motion to strike the jury demand. Messmore’s memorandum did not address the Township’s motion to dismiss his counterclaim.

{¶9} On February 9, 2026, the trial court granted the Township’s motion to strike the jury demand and granted their motion to dismiss Messmore’s counterclaim. 1 Specifically, the trial court determined that Messmore’s counterclaim was “insufficient” and “fail[ed] to allege any facts to support an independent claim with a recognizable legal theory.” In the judgment entry, the trial court found “no just reason for delay.”

{¶10} Messmore timely appeals.

The Appeal

{¶11} Messmore raises a single assignment of error for review:

The trial court erred in granting [the Township]’s motion to dismiss [Messmore]’s Counterclaim pursuant to Ohio Rule of Civil Procedure 12(B)(6) where the Counterclaim alleged sufficient facts to state a claim upon which relief could be granted (Dkt. 22).

{¶12} Messmore alleges that the trial court erred when it dismissed his counterclaim alleging selective enforcement. Messmore states that “dismissal is improper where factual development is necessary to determine whether a claim is viable.” Messmore alleges that “by dismissing the counterclaim prior to discovery, the trial court improperly foreclosed [Messmore]’s ability to develop evidence supporting these allegations.” We agree.

{¶13} We review a trial court's judgment dismissing a pleading asserting a claim for relief, such as a complaint or counterclaim, pursuant to Civ.R. 12(B)(6) de novo.

1. The Township filed a Reply in Support of the Motion to Strike the Jury Demand on February 11, 2026, two days after the trial court entered its ruling.

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Kovacic v. Wickliffe, 2025-Ohio-3195, ¶ 9 (11th Dist.). A motion to dismiss for failure to state a claim on which relief can be granted is procedural and tests the sufficiency of the complaint or counterclaim. State ex rel. Hanson v. Guernsey Cty. Bd. Of Commrs., 65 Ohio St.3d 545, 548 (1992). “In construing the complaint, a court must presume all factual allegations are true and make all reasonable inferences in favor of the non-moving party.” Coleman v. Faith Community United Credit Union, 2026-Ohio-2466, ¶ 12 (11th Dist.), citing Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988). “‘[U]nsupported legal conclusions, even when cast as factual assertions, are not presumed true for purposes of a motion to dismiss.’” Id., quoting State ex rel. Martre v. Reed, 2020-Ohio-4777, ¶ 12, citing Mitchell at 193.

{¶14} “When granting or denying a motion to dismiss under Civ.R. 12(B)(6), the principles of notice pleading apply and ‘a plaintiff is not required to prove his or her case at the pleading stage.’” Goss v. KMart Corp., 2007-Ohio-3200, ¶ 18 (11th Dist.), quoting York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 144-145 (1991). Further, “in ruling on a Civ.R. 12(B)(6) motion to dismiss, the trial court is strictly limited to the allegations in the complaint or counterclaim, and may not consider any materials outside the pleading.” Arms Trucking Co. v. Braun, 2014-Ohio-5077, ¶ 22 (11th Dist.), quoting Braden v. Sinar, 2007-Ohio-4527, ¶ 23 (9th Dist.). “If, after considering the complaint or counterclaim accordingly, there is no set of facts consistent with appellants' allegations that would permit recovery, the judgment of dismissal will be affirmed.” Id., citing Transky v. Ohio Civ. Rights Comm., 2011-Ohio-1865, ¶ 11 (11th Dist.). In other words, a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt from the complaint the plaintiff can prove no set of facts entitling him to recovery.

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{¶15} In his counterclaim, Messmore asserted that the prosecution and lawsuit brought by the Township was “without sufficient facts and/or law to prosecute . . . because the activities were authorized” by the Township. However, labeled as a defense, Messmore alleged that the prosecution by the Township violated the due process clause of the Fourteenth Amendment, and that the Township was selectively enforcing the Zoning Code.

{¶16} As this court has explained:

An affirmative defense, however, cannot simply be transformed into a counterclaim. The difference between a defense and a counterclaim is that “the latter is affirmative in nature, and asserts a separate cause of action, while the former serves to preclude recovery by asserting facts that defeat the plaintiff's right to recovery.” (Citation omitted.) BAC Home Loans Servicing, L.P. v. Hall, . . . 2010-Ohio-3472, ¶18 [(12th Dist.)]. An affirmative defense generally refers to that which is offered to defeat an action by “denying, justifying, or confessing and avoiding the plaintiff's cause of action. It goes to the plaintiff's right and generally would not be considered an independent claim existing against the plaintiff.” (Citation omitted.) Id.

Payette Fin., Servs., L.L.C. v. Mtge. Electronic Registration Sys., Inc., 2020-Ohio-5055, ¶ 79 (11th Dist.). Accordingly, affirmative defenses and counterclaims are fundamentally distinct in nature.

{¶17} “When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, if justice so requires, shall treat the pleading as if there had been a proper designation.” Civ.R. 8(C). The rule is intended to permit trial courts to remedy clerical errors made in designating affirmative defenses and counterclaims. It was “not intended as a means by which a party could correct a substantive error in a pleading after the time for amendment to the pleading had passed.”

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Payette Fin., Servs., L.L.C. at ¶ 80, citing BAC Home Loans Servicing at ¶ 19, citing Am. Outdoor Advertising Co., L.L.C. v. P&S Hotel Group, Ltd., 2009-Ohio-4662, ¶ 26 (10th Dist.).

{¶18} As noted above, Ohio is a notice-pleading state. Coleman, 2026-Ohio-2466 at ¶ 11 (11th Dist.) citing Cincinnati v. Beretta U.S.A. Corp., 2002-Ohio-2480, ¶ 29.

“A pleading that sets forth a claim for relief ... shall contain (1)

a short and plain statement of the claim showing that the party is entitled to relief, and (2) a demand for judgment for the relief to which the party claims to be entitled.” Civ.R. 8(A). “Each averment of a pleading shall be simple, concise, and direct,”

and “[n]o technical forms of pleading or motions are required.”

Civ.R. 8(E)(1). Further, “[a]ll pleadings shall be so construed as to do substantial justice.” Civ.R. 8(F). “The spirit of the Civil Rules is the resolution of cases upon their merits, not upon pleading deficiencies.” Peterson v. Teodosio, 34 Ohio St.2d 161, 175 (1973).

Id.

{¶19} While selective enforcement is generally raised as an affirmative defense,

it has also been raised as a counterclaim. See, e.g., Cincinnati v. Fourth Natl. Realty, L.L.C., 2017-Ohio-1523 (1st Dist.), Brooksedge Homeowners Assn., Inc. v. Stafford, 2023-Ohio-2660 (5th Dist.); Kinzel v. Ebner, 2023-Ohio-164 (6th Dist.).

{¶20} In the instant case, Messmore pleaded in his fourth “defense” a claim of selective enforcement/prosecution. Messmore stated that “other landowners similarly situated have not been prosecuted because of conduct of the type forming the basis of the charge against [him]” and that he was “singled out for prosecution by [the Township]’s discriminatory selection” which was “invidious and/or in bad faith” in violation of Messmore’s constitutional rights under the United States Constitution. Messmore

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incorporated these statements, allegations, and denials into his counterclaim.2 Accordingly, Messmore pleaded selective prosecution/enforcement as a counterclaim.

{¶21} The question before this court is whether the counterclaim survives the Township’s motion to dismiss for failure to state a claim for which relief could be granted. In construing the counterclaim, we must presume all factual allegations are true and make all reasonable inferences in favor of the non-moving party. Upon review, the trial court erred when it found that Messmore’s counterclaim was “insufficient” and “fail[ed] to allege any facts to support an independent claim with a recognizable legal theory.” Messmore was not required to prove his case at the pleading stage. See Goss, 2007-Ohio-3200 at ¶ 18 (11th Dist.). Messmore’s counterclaim contained enough to survive the Township’s motion to dismiss.

{¶22} As such, the trial court improperly dismissed the counterclaim for failure to state a claim for which relief could have been granted.

{¶23} Accordingly, Messmore’s sole assignment of error is with merit.

Conclusion

{¶24} For the reasons set forth above, the judgment of the Portage County Court of Common Pleas is reversed and this matter is remanded to the trial court for further proceedings consistent with this opinion.

MATT LYNCH, P.J., JOHN J. EKLUND, J., concur.

2. Contra New Holland v. Murphy, 2021-Ohio-2671 (4th Dist.) (identifying selective zoning enforcement as an affirmative defense that can be waived.)

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JUDGMENT ENTRY

For the reasons stated in the opinion of this court, appellant’s assignment of error has merit. It is the judgment and order of this court that the judgment of the Portage County Court of Common Pleas is reversed, and this matter is remanded back to the trial court for further proceedings consistent with this court’s opinion.

Costs to be taxed against appellee.

JUDGE ROBERT J. PATTON

PRESIDING JUDGE MATT LYNCH, concurs

JUDGE JOHN J. EKLUND,

concurs

THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY

A certified copy of this opinion and judgment entry shall constitute the mandate pursuant to Rule 27 of the Ohio Rules of Appellate Procedure.

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