COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 84069 TIMOTHY J. BROGAN : JOURNAL ENTRY : AND Plaintiff-appellant : OPINION : -vs- : : MALLCHOK FUNERAL HOME, INC. : : Defendant-appellee : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 30, 2004 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Case No. CV-473649 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: JOSEPH BANCSI, ESQ. Lakeside Place, Suite 450 323 Lakeside Avenue Cleveland, Ohio 44113 For Defendants-Appellees: JAMES J. IMBRIGIOTTA, ESQ. CHRISTOPHER M. CORRIGAN, ESQ. JAMES L. GLOWACKI, ESQ. GLOWACKI & ASSOC. CO., L.P.A. 510 Leader Building 526 Superior Avenue Cleveland, Ohio 44114 (Continued) -2- For Defendants-Appellees (contd.): BRIAN E. ROOF, ESQ. JAMES NIEHAUS, ESQ. FRANTZ WARD 55 Public Square, 19th Fl. Cleveland, Ohio 44113 -3- ANN DYKE, P.J.: Plaintiff Timothy J. Brogan appeals from the order of the trial court which awarded summary judgment to defendants Mallchok Funeral Home Inc., Michael Mallchok, Jr., and Brian Robey (collectively referred to as the "Mallchok defendants") and the order which dismissed his claims against Fortis Inc., United Family Life Ins. Co. and Pre-Thana Trust (collectively referred to as the "UFL Insurance defendants") in plaintiff's action for breach of contract and other claims for relief. For the reasons set forth below, we affirm. This matter arises from Brogan's 1998 agreement with Mallchok Funeral Home for pre-need funeral services for his wife 's uncle, Adelbert J. Klesch, following the death of Klesch's wife, Regina. The total cost of the services was approximately $6,000. A portion of this fee, $1,000, was to be paid from an irrevocable life insurance policy issued by United Family Life Insurance Co. The balance was to be paid from a life insurance policy issued by Prudential Life Insurance Co., and assigned to Mallchok Funeral Home.1 In relevant part, the UFL policy provided: "1.a. Insured "Adelbert J. Klesch "* * * 1Prudential is not a party to this action. -4- "1.b. Applicant (if other than insured) "Timothy Brogan "* * * "3. Beneficiary "After payment under any assignments, remaining proceeds are to be paid to the estate of the insured unless another beneficiary is specified below: "Timothy Brogan "Beneficiary "* * * "Agreement "Funeral Home Agrees to provide funeral goods and services for the person named above as indicated in the Statement of Funeral Goods and Services completed in conjunction with this Agreement. "* * * "Assignment "IRREVOCABLE assignment * * * The Funeral Home and the Purchaser of the Policy agree that after the death of the person named above, the Trustee will pay the Policy proceeds to Funeral Home, if it provides funeral goods and services or to another funeral home if for some reason another funeral home provides the funeral goods and services. "* * * "Timothy Brogan -5- "Name of Purchaser "* * * "Miscellaneous "Funeral Home reserves the right to consult with those individuals having the legal right to control the final disposition of the person named above. "* * * Funeral Home will not be liable for any failure to furnish goods and services if the failure is caused by factors beyond its control. (Emphasis added). "* * * "This Agreement consists of this document and the Statement of Funeral Goods and Services, and is the complete agreement between the parties. * * *." Attached to this document was a Statement of Funeral Goods and Services Selected which included embalming, visitation, burial and related interment charges. On the Statement of Funeral Goods and Services Selected, the person choosing the arrangement acknowledges that "I have the legal right to arrange the final services for the deceased * * * *." Both agreements were signed by Brogan and defendant Brian Robey of Mallchok. The record further reflects that: "Six months later, Klesch remarried. A little more than two years later, in December 2000, Klesch died, leaving Mary Klesch, -6- his second wife, as his surviving spouse. United Family Life paid the proceeds of its policy to Mallchok Funeral Home, which cremated Klesch according to the wishes of the surviving spouse but in contravention of the earlier pre-need agreement. "In December 2001, Brogan filed suit in Cuyahoga County Common Pleas Court, Probate Division, against the surviving spouse, Mallchok Funeral Home and its director and agent, Prudential Life Insurance Company and United Family Life, among others. * * * Brogan voluntarily dismissed this case in May 2002. "Brogan filed a second suit in June 2002, but in the General Division. [Common Pleas Case No. CV 473649]. * * * Brogan again named as defendants the funeral home, its director, agent and United Family Life, among others." (Footnotes omitted). See United Family Life Ins. Co. v. Brogan, 2004-Ohio-1133, Cuyahoga App. No. 83272 ("Brogan I"). Brogan alleged five claims for relief in his amended complaint. For his first claim, Brogan alleged that Mallchok"did not provide the funeral goods and services contracted to be provided" causing Brogan to suffer "injury and damage." For his second claim, Brogan alleged that the Mallchok defendants were negligent and committed "professional malpractice" in connection with the "wrongful cremation"of Klesch and the failure to provide all of the services listed in the 1998 Statement of Funeral Goods and Services Selected. In his third claim for relief, Brogan -7- asserted that the Mallchok defendants were liable for negligent infliction of emotional distress and intentional infliction of emotional distress. In his fourth claim, Brogan sought a declaratory judgment that Fortis, its subsidiary UFL, and its agent Mallchok were not excused from performance of the pre-need contract, pursuant to the provisions of the Miscellaneous provision of the contract, as they had failed to adequately disclose the conditional nature of the pre-need contract and "do not set forth that the laws of the State of Ohio as it relates to the disposition of a decedents [sic] body after death and that it may prevent the performance of the agreement." For his fifth claim for relief, Brogan alleged that "by creating nebulous clauses that are capable of several interpretations and which hide and conceal the true nature of the promises which the customers are receiving under the agreement and the illusory nature of [the contract]" defendants were liable for fraud, misrepresentation, and breach of fiduciary duties. For his final claim for relief, plaintiff alleged that defendants breached fiduciary duties to him. UFL subsequently filed a declaratory judgment action in which it alleged that Brogan had no insurable interest in the life of his wife's uncle. See United Family Life Ins. Co. v. Brogan, Common Pleas Case No. 477955. This matter was assigned to a different judge and was not consolidated with the instant matter. The trial court accepted UFL's argument and determined that Brogan did not -8- have an insurable interest in connection with the pre-need agreement. This Court determined that the trial court abused its discretion in granting declaratory relief when there existed no justiciable controversy. This Court reversed and stated: "By its own actions, United Family Life fully performed under the contract of insurance when it paid the proceeds of the policy and, without more, cannot now argue that the very same contract is void." See Brogan I at p. 9. The instant matter continued during the pendency of the declaratory judgment action, Brogan I. The UFL defendants filed a motion to dismiss this matter pursuant to Civ.R. 12(B)(6). In opposition, Brogan asserted that the provisions of the Miscellaneous Clause are unenforceable because they did not advise purchasers of the Ohio laws regarding the order of priority over the disposition of remains. On November 13, 2002, the trial court granted the UFL Insurance defendants'motion to dismiss pursuant to Civ.R. 12(B)(6). The Mallchok defendants filed "Motion for Summary Judgment * * * Motion for Judgment on the Pleadings " in which they asserted that Brogan did not provide any consideration for the agreement, that Klesch's widow lawfully changed her husband's funeral arrangements, thereby excusing nonperformance of the services set -9- forth in the 1998 pre-need agreement, that they owed no duty to Brogan and that his claims of negligence and professional malpractice should therefore fail as a matter of law, and that Brogan could not, as a matter of law, state a claim for relief under his remaining causes of action. In support of their motion, the Mallchok defendants submitted evidence which demonstrated that the pre-need agreement was paid with Klesch's funds, and not Brogan's. The evidence further demonstrated that after his marriage, Klesch called Robey to advise him that Mary would now be in charge of making the arrangements for his funeral. On February 15, 2000, after obtaining a power of attorney to act on behalf of Klesch, Mary met with Robey and obtained "full authority" to make the necessary arrangements upon Klesch's death. On the day after Klesch 's death, December 30, 2000, Mary decided to have the body embalmed, to proceed with a two-hour viewing, and to then have the body cremated. She executed a new Statement of Goods and Services outlining these services. The proceeds of the UFL policy, $1,000, were applied to pay for these services, and Mary paid the balance of $1,308. She later received the proceeds of the Prudential policy which is not the subject of this appeal. In January 2001, Brogan learned that Klesch had died. He then contacted Michael Mallchok and Brian Robey and learned that Klesch had been cremated. Brogan was angry that Kleschs planned Catholic ' -10- funeral mass and burial was not provided and that Mallchok did not notify him of the change of arrangements. He demanded to know what had become of the policy proceeds, and asked for Klesch's ashes. Mallchok explained that the UFL policy had been applied to the bill for cremation but the Prudential policy still had not been paid. Brogan acknowledged that cremation proceeded at the request of the surviving spouse and that he could not establish that Mallchok entered into the 1998 pre-need agreement without intending to perform it. On December 12, 2003, the court granted the Mallchok defendants'motion for summary judgment. Plaintiff now appeals and assigns two errors for our review. "The trial court erred as a matter of law when it granted the motion for summary judgment of appellees [the Mallchok defendants]." "The trial court erred as a matter of law when it granted the motion to dismiss of appellees [the UFL defendants]." We review a trial court's grant of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241; Zemcik v. La Pine Truck Sales & Equipment (1998), 124 Ohio App.3d 581, 585, 706 N.E.2d 860. The Ohio Supreme Court set forth the appropriate test in Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-370, 1998-Ohio-389, 696 N.E.2d 201, as follows: -11- "Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 1995-Ohio-286, 653 N.E.2d 1196, paragraph three of the syllabus. The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d 264." Once the moving party satisfies its burden, the nonmoving party "may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Civ.R. 56(E); Mootispaw v. Eckstein, 76 Ohio St.3d 383, 385, 1996-Ohio-389, 667 N.E.2d 1197. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359, 1992- Ohio-95, 604 N.E.2d 138. The standard of review for a 12(B)(6) motion is de novo. Perrysburg Township v. Rossford, 149 Ohio App.3d 645, 2002-Ohio- 5498, 778 N.E.2d 619. "When reviewing a judgment granting a Civ.R. -12- 12(B)(6) motion to dismiss for failure to state a claim, an appellate court must independently review the complaint to determine" whether "dismissal was appropriate." Guess v. Wilkinson (1997), 123 Ohio App.3d 430, 433-434, 704 N.E.2d 328, citations omitted. A Civ.R. 12(B)(6) motion to dismiss is a procedural motion designed to test the sufficiency of a complaint. Thompson v. Cent. Ohio Cellular, Inc. (1994), 93 Ohio App.3d 530, 538, 639 N.E.2d 462, citing Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 1992-Ohio-73, 605 N.E.2d 378. The standard to be applied in determining whether or not to dismiss a complaint pursuant to Civ.R. 12(B)(6) is set forth in O'Brien v. University Community Tenants Union (1975), 42 Ohio St.2d 242, 327 N.E.2d 753. In O'Brien, the Supreme Court of Ohio stated that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 245, quoting Conley v. Gibson (1957), 355 U.S. 41, 45, 78 S. Ct. 99, 101, 2 L. Ed.2d 80. See, also, Toledo v. Thomas (1989), 60 Ohio App.3d 42, 572 N.E.2d 867; and Kotyk v. Rebovich (1993), 87 Ohio App.3d 116, 621 N.E.2d 897. When evaluating a motion to dismiss for failure to state a claim, the court accepts all factual allegations contained in the complaint as true and draws all reasonable inferences from those -13- factual allegations in favor of the nonmoving party. Byrd v. Faber (1991), 57 Ohio St.3d 56, 565 N.E.2d 584. 1. Breach of Contract With regard to the first claim for relief, Brogan alleged that "Mallchok Funeral Home, Inc. did not provide the funeral goods and services contracted to be provided " causing Brogan to suffer "injury and damage." In order to establish a cause of action for breach of contract, plaintiff was required to prove (1) the existence of a contract, (2) plaintiff's performance, (3) defendant's breach, and (4) damage or loss to plaintiff. Doner v. Snapp (1994), 98 Ohio App.3d 597, 600, 649 N.E.2d 42. a. The UFL Defendants This cause of action contains no allegations which pertain to the UFL defendants. As such, it does not state a claim for relief against the UFL defendants. Accordingly, the trial court's ruling on UFL's motion to dismiss is correct with respect to this claim for relief. b. The Mallchok Defendants The Mallchok defendants asserted that cremation of Klesch at the request of Mary Klesch did not constitute a breach of contract since the pre-need agreement provides that: -14- "Funeral Home reserves the right to consult with those individuals having the legal right to control the final disposition of the person named above. "* * * Funeral Home will not be liable for any failure to furnish goods and services if the failure is caused by factors beyond its control." Brogan insists that this language is unenforceable, unclear, misleading, and ambiguous because it "does not set forth the laws of the State of Ohio as it relates to disposition of a decedents [sic] body after death and that it may prevent the performance of the agreement." Pre-need funeral contracts are permitted under Ohio law. See R.C. 1111.19. In addition, life insurance policies may be issued for the purpose of purchasing funeral or burial goods or services. R.C. 3905.45. Pursuant to R.C. 313.14, "* * * The next of kin, other relatives, or friends of the deceased person, in the order named, shall have prior right as to disposition of the body of such deceased person. * * *." An order of priority is listed in R.C. 313.131 as follows: "(1) The deceased person's surviving spouse; "(2) An adult son or daughter of the deceased person; "(3) Either parent of the deceased person; "(4) An adult brother or sister of the deceased person; -15- "(5) The guardian of the person of the deceased person at the time of death; "(6) A person other than those listed in divisions (E)(1) to (5) of this section who is a friend as defined in [R.C. 313.131(A)(1)]." Accord R.C. 2108.02 (comparable order of priority for organ donation). Ohio law, therefore, gives the surviving spouse primacy in making decisions about the remains of the deceased spouse, and the Miscellaneous provisions of the 1998 pre-need agreement clearly advise that others may have the "legal right to control the final disposition of the person named" in the contract. Moreover, as a party to the contract, Brogan was presumed to know the pertinent law in effect at the time the contract was made. Hairston v. Goodman (Mar. 21, 1991), Cuyahoga App. No. 58193. We therefore reject the contention that this provision is unenforceable, unclear, misleading, and ambiguous because it "does not set forth the laws of the State of Ohio." The Mallchok defendants were correctly awarded judgment as a matter of law on plaintiff's claim for breach of contract. 2. Negligence and Malpractice In order to establish a claim for negligence, a plaintiff must show the existence of a duty, a breach of that duty, and injury directly and proximately resulting from a breach of this duty. Menifee v. Ohio Welding Prods., Inc. (1984), 15 Ohio St.3d 75, 472 -16- N.E.2d 707. Malpractice consists of "the professional misconduct of members of the medical profession and attorneys." Muir v. Hadler Real Estate Mgt. Co. (1982), 4 Ohio App.3d 89, 446 N.E.2d 820. Brogan alleged that the Mallchok defendants were negligent and committed "professional malpractice" in connection with the "wrongful cremation" of Klesch and the failure to provide all of the services listed in the 1998 Statement of Funeral Goods and Services Selected. a. The UFL Defendants Brogan did not set forth any allegations against the UFL defendants in this claim for relief. Accordingly, he has not asserted a claim for relief against them. Accordingly, the trial court's ruling on UFL's motion to dismiss is correct with respect to this claim for relief. b. The Mallchok Defendants In Siver v. Rockingham Mem. Hosp. (W.D.Va. 1999), 48 F. Supp. 2d 608, the Court held: "Any person within that class has the right to possess, preserve, or bury the dead body, and, in turn, those who have exercised those rights then would have standing to assert claims relating to the mishandling or mutilation of that body, including emotional distress allegedly suffered as a result thereof. In other words, standing is derivative of the exercised right to -17- possess, preserve, and bury a corpse. " Accord Christensen v. Superior Court (1991), 54 Cal.3d 868, 820 P.2d 181, 2 Cal. Rptr.2d 79 (those with statutory right to disposition of remains have standing to assert claim for wrongful disposition of remains.) Moreover, in Carney v. Knollwood Cemetery Assn. (1986), 33 Ohio App.3d 31, 34, 514 N.E.2d 430, the Court suggested that a claim for disturbance of a decedent's remains could be maintained by "direct blood descendants." In this matter, plaintiff is not a "direct blood relative"as he is a nephew by marriage. Further, even if standing is determined with reference to the statutory right of disposition of the decedent's remains, the cause of action is based upon the conduct of Mary Klesch, the surviving spouse, a person whose right of disposition of the remains is superior to plaintiff's. Accordingly, it is doubtful that plaintiff has standing to assert a claim for negligence. In any event, the parties had a contractual relationship. In American States Ins. Co. v. Honeywell, Inc. (Mar. 1, 1990), Cuyahoga App. No. 56552, this Court stated: "Although the distinction between tort liability and contract liability has apparently been eroded away by our sister states, a review of the case law of the state of Ohio indicates that a party to contract can only be liable in tort, in relation to the contract, where some positive duty imposed by law has been breached -18- by the alleged negligent conduct of one of the parties to the contract. "It has long been the general rule and so recognized in this state, that, when the only relation between the parties is contractual, the liability of one to the other, in an action of tort, must arise out of some positive duty which the law imposes because of the relationship, or because of the negligent manner in which some act which the contract provides for is done; and the mere omission to perform a contract obligation is never a tort unless the omission is also the omission to perform a legal duty. * * *." Bowman v. Goldsmith Bros. Co. (App. 1952), 63 Ohio L. Abs. 428 at 431, 109 N.E.2d 556. "* * * Willful or wanton misconduct on the part of a party to a contract can [also] result in the imposition of tort liability. Cf. Royal Indemn. Co. v. Baker Protective Services, Inc. (1986), 33 Ohio App.3d 184, 515 N.E.2d 5; Hine v. Dayton Speedway Corp. (1969), 20 Ohio App.2d 185, 252 N.E.2d 648; Prosser and Keeton, Law of Torts (5 Ed. 1984), 655-669, Section 92." Willful misconduct "implies an act done intentionally, designedly, knowingly, or purposely, without justifiable excuse." State v. Earlenbaugh (1985), 18 Ohio St.3d 19, 21, 479 N.E.2d 846. Wanton misconduct is the failure to exercise any care whatsoever toward those to whom a duty of care is owed, under circumstances where there is a great probability that harm will result. -19- Guysinger v. K.C. Raceway, Inc. (1990), 54 Ohio App.3d 17, 17, 560 N.E.2d 584. In this matter, the parties had a contractual relationship; there is no duty from which to derive liability in negligence. Moreover, the undisputed evidence demonstrates that Mallchok failed to perform the provisions of the 1998 contract based upon the wishes of Klesch's surviving spouse, and in accordance with Ohio law. There is no evidence that such failure was willful or wanton. Finally, there is no authority which provides for malpractice in connection with the funeral industry. The Mallchok defendants were entitled to judgment as a matter of law on plaintiff's second claim for relief. 3. Negligent and Intentional Infliction of Emotional Distress Brogan alleged that he suffered emotional distress as the result of defendants' breach of contract and negligent acts and omissions. In order to prevail on a claim for intentional infliction of emotional distress, a plaintiff must demonstrate that: (1) the actor either intended to cause emotional distress or knew or should have known that the actions taken would result in serious emotional distress to the plaintiff; (2) the actor's conduct was so extreme and outrageous as to go beyond all possible bounds of decency and was such that it can be considered as utterly intolerable in a civilized community; (3) the actor's actions were the proximate -20- cause of the plaintiff's psychic injury; and (4) the mental anguish suffered by the plaintiff is serious and of a nature that no reasonable person could be expected to endure it. See Takach v. Am. Med. Technology, Inc. (1998), 128 Ohio App.3d 457, 471, 715 N.E.2d 577. A defendant has not acted outrageously "where he has done no more than to insist upon his legal rights in a permissible way, even though he was well aware that such insistence was certain to cause emotional distress." DeCoe v. General Motors Corp., 32 F.3d 212, 216 (6th Cir. 1994); see, also, Restatement (2d) of Torts §46, comment g (1965). "Recovery for negligent infliction of severe emotional distress has typically been limited to instances where the plaintiff has either witnessed or experienced a dangerous accident and/or was subjected to an actual physical peril." Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134, 150, 677 N.E.2d 308. In Carney v. Knollwood Cemetery Assn., supra, the Court acknowledged the likelihood of mental anguish resulting from the mishandling of dead bodies and stated: "Recovery for emotional distress unaccompanied by a contemporaneous physical injury has been allowed under special circumstances. See Columbus Finance v. Howard (1975), 42 Ohio St.2d 178 [71 O.O. 2d 174] (malice on the part of the wrongdoer); Housh v. Peth (1956), 165 Ohio St. 35 [59 O.O. 60] (right of privacy invaded); Brownlee v. Pratt (1946), 77 Ohio App. 533 [33 -21- O.O. 356] (right of burial of the dead transgressed). Similarly, those injured by the negligent infliction of serious emotional distress should have the opportunity to recover damages. "It is unnecessary, however, at this time to define the entire class of family members who are, or are not, eligible to bring such an action, except as pertains to the appellees herein. As to them, we hold that all four appellees, as direct blood descendants of Katherine G. Mallison, had standing to press their claim for the outrageous disturbance of her remains." Id., cf. Audia v. Rossi Bros. Funeral Home, Inc. (2000), 140 Ohio App.3d 589, 748 N.E.2d 587 (holding that a cause of action for negligent infliction of emotional distress, relating to the negligent handling of a dead body, and with no requirement of fear of actual peril, does not exist). a. The UFL Defendants In this matter, the UFL defendants paid the policy proceeds to Mallchok following the surviving spouse's right of disposition of the remains. Because the UFL defendants did no more than pay the policy proceeds to Mallchok, plaintiff has failed to state a claim for intentional infliction of emotional distress against them. Plaintiff has likewise failed to state a claim for negligent infliction of emotional distress. -22- b. The Mallchok Defendants In Scott v. Spearman (1996), 115 Ohio App.3d 52, 57, 684 N.E.2d 708, the Court held that the plaintiffs could not maintain an action against the decedent's surviving spouse for intentional infliction of emotional distress and negligent infliction of emotional distress in connection with her disinterment of her late husband's remains since she "was acting under color of law and permitted to do that which she did." In this matter, the undisputed evidence demonstrates that following his remarriage, Klesch called Robey to inform him that Mary now had decision-making authority. The Mallchok defendants later met with Mary Klesch and she executed a revised Statement of Goods and Services, wherein she chose to cremate Klesch. Because a surviving spouse is permitted to make such decisions as a matter of law, the Mallchok defendants simply complied with Ohio law in honoring her wishes. They did not act outrageously and are not liable for intentional infliction of emotional distress. Further, because the body was handled as per the wishes of the surviving spouse, plaintiff has failed to state a claim for negligent infliction of emotional distress. 4. Declaratory Judgment As set forth previously, the Miscellaneous provision alerted consumers that the law sets forth the right to control final -23- disposition of remains which could affect the contract. Moreover, plaintiff was presumed to know Ohio law and defendants were not responsible for instructing him as to the precise order of priority in the event that Klesch remarried. The trial court correctly entered judgment for defendants on the fourth claim for relief. 5. Fraud and Misrepresentation Brogan alleged that "by creating nebulous clauses that are capable of several interpretations and which hide and conceal the true nature of the promises which the customers are receiving under the agreement and the illusory nature of [the contract]"defendants were liable for fraud, misrepresentation, and breach of fiduciary duties. The elements of fraud are: "(a) a representation or, where there is a duty to disclose, concealment of a fact, (b) which is material to the transaction at hand, (c) 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, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury proximately caused by the reliance. " State ex rel. The Illuminating Co. v. Cuyahoga County Court of Common Pleas, 97 Ohio St.3d 69, 74, 2002-Ohio-5312, 776 N.E.2d 92. -24- One who alleges the tort of misrepresentation must show (1) a false representation by another, (2) made intentionally or negligently, (3) on which the recipient reasonably relied, (4) to his loss and detriment. Craggett v. Adell Ins. Agency (1993), 92 Ohio App.3d 443, 635 N.E.2d 1326. a. The UFL Defendants b. The Mallchok Defendants In this matter, plaintiff alleges that defendants failed to disclose that one "cannot plan the funeral of a person in the State of Ohio, since the right to such planning is transferred at death to the next of kin[.]" As noted previously, pre-need funeral contracts are permitted under Ohio law. See R.C. 1111.19. In addition, life insurance policies may be issued for the purpose of purchasing funeral or burial goods or services. R.C. 3905.45. Ohio law gives the next of kin, other relatives, or friends, the right as to disposition of the body of a deceased person. R.C. 313.14. An order of priority is set forth in R.C. 313.131(E). Accord R.C. 2108.02. In permitting pre-need contracts and life insurance policies to fund them, we presume that the legislature was also aware that it is the survivors who have the final right of disposition of a deceased family member. State ex rel. Cromwell v. Myers (1947), 80 Ohio App. 357, 368, 73 N.E.2d 218 ( "It is well-established that the legislature is presumed to know existing -25- statutes, and the state of the law, relating to the subjects with which it deals."). In this matter, the pre-need agreement clearly provided that the "Funeral Home reserves the right to consult with the individuals having the legal right to control the final disposition * * * and that the Funeral Home will not be liable for any failure to furnish funeral goods and services if the failure is caused by factors beyond its control." On the Statement of Funeral Goods and Services Selected, the person choosing the arrangement acknowledges that "I have the legal right to arrange the final services for the deceased * * *." In light of all of the foregoing, we cannot say that the defendants made any misrepresentation or concealment sufficient to support a claim for fraud or misrepresentation. Defendants were properly awarded judgment on this claim. 6. Breach of Fiduciary Duties Plaintiff alleged that defendants "owed a fiduciary duty to him regarding (1) the funds and assets deposited with them in trust, to the Pre-Thana Trust administered by New-Party Defendant, Fortis, Inc., (2) to insure that the promises contained in the agreement were carried out as specifically contracted, and (3) that all material facts regarding the contract were fully and clearly disclosed to plaintiff." -26- A fiduciary relationship is one in which "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." Stone v. Davis (1981), 66 Ohio St.2d 74, 419 N.E.2d 1094. The fiduciary's role may be assumed by formal appointment or it may rise de facto from a more informal confidential relationship. Craggett v. Adell Ins. Agency (1993), 92 Ohio App.3d. 443, 635 N.E.2d 1326. When a fiduciary duty is established, the fiduciary may have a duty to disclose (a) material information within its particular knowledge concerning the transaction, or (b) facts pertinent to the transaction. Williams v. ITT Fin. Servs. (June 25, 1997), Hamilton App. No. C-960234, C-960255. a. The UFL Defendants b. The Mallchok Defendants Pursuant to R.C. 1111.19, "* * * One hundred per cent of all payments for funeral goods and services made under a pre-need funeral contract shall remain intact and held in trust for the benefit of the person for whose benefit the contract is made. No money in a pre-need funeral contract trust shall be distributed from the trust except as provided in this section. * * *." This provision establishes a fiduciary duty on the part of the seller of such pre-need contract. Accord Nazareth Nat'l Bank & -27- Trust Co. v. E.A. International Trust (E.D. Penna. July 26, 1999), Case No. 98-6163, 1999 U.S. Dist. LEXIS 11390 (Because Pennsylvania law requires the funeral directors to place the funds in a Pennsylvania financial institution which acts as trustee for the management and investment of the funds, plaintiff's averment that defendants intentionally diverted funds entrusted to them states a cognizable claim for breach of fiduciary duty). In this matter, however, no evidence was presented to establish a breach of such duties. The pre-need agreement contained an acknowledgment that the contracting party had authority to make the funeral arrangements and clearly advised that the funeral home would consult with others who had the legal right of disposition of the remains. Defendants did not withhold material information within its particular knowledge concerning the transaction and did not withhold any facts pertinent to the transaction. While Klesch 's subsequent remarriage gave his surviving spouse authority which was superior to Brogan's, and she then changed the plans Brogan and Klesch made, the contract documents adequately alert the consumer that one with superior legal authority over the remains may alter the arrangements. In short, there is simply no indication that defendants are liable for breach of fiduciary duties in this matter. In accordance with all of the foregoing, the trial court did not err in granting the motion to dismiss filed by the UFL -28- defendants and the motion for summary judgment/motion to dismiss filed by the Mallchok defendants. The assignments of error are without merit. Affirmed. -29- It is ordered that appellees recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing 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. JAMES J. SWEENEY, J., AND COLLEEN CONWAY COONEY, J., CONCUR. ANN DYKE PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R.22(B), 22(D) and 26(A); Loc.App.R.22. This decision will be journalized and will become the judgment and order of the court pursuant to App. R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). .