Bizfunds, L.L.C. v. Jetmo, Inc.

2023 Ohio 81

• Court: Ohio Court of Appeals
• Decided: January 12, 2023
• Docket: 111032
• Status: Published

Opinion

[Cite as Bizfunds, L.L.C. v. Jetmo, Inc., 2023-Ohio-81.]

Court of Appeals of Ohio, Eighth District

County of Cuyahoga Nailah K. Byrd, Clerk of Courts

BIZFUNDS, LLC,

Plaintiff-Appellee COA NO. LOWER COURT NO. 111032 CV-20-933144

-vs- COMMON PLEAS COURT

JETMO, INC. DBA MONROE TRANSMISSION, ET AL.,

Defendant-Appellants MOTION NO. 559343

Date January 12, 2023

____________________________________________________________________________________ Journal Entry ____________________________________________________________________________________

Motion by appellee for reconsideration is granted. The journal entry and decision released and journalized October 27, 2022, 2022-Ohio-3815, is hereby vacated and substituted with the journal entry and opinion issued this same date.

Judge Sean C. Gallagher, Concurs

Judge Eileen A. Gallagher, Concurs __________________________ Anita Laster Mays Administrative Judge COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

BIZFUNDS, LLC, :

Plaintiff-Appellee, : No. 111032 v. :

JETMO, INC. DBA MONROE : TRANSMISSION, ET AL., : Defendants-Appellants.

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED RELEASED AND JOURNALIZED: January 12, 2023

Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-20-933144

Appearances:

Egon P. Singerman and Hunter G. Cavell, for appellee.

Scott J. Friedman, for appellants. ON RECONSIDERATION1

ANITA LASTER MAYS, A.J.:

Pursuant to App.R. 26(A)(1)(a), plaintiff-appellee Bizfunds, LLC

(“Bizfunds”) has filed an application for reconsideration of this court’s opinion in

Bizfunds, LLC v. Jetmo, Inc., 8th Dist. Cuyahoga No. 111032, 2022-Ohio-3815.

The test regarding whether to grant a motion for reconsideration

under App.R. 26(A)(1)(a) “‘is whether the motion for reconsideration calls to the

attention of the court an obvious error in its decision or raises an issue for our

consideration that was either not considered at all or was not fully considered by

[the court] when it should have been.’” State v. Dunbar, 8th Dist. Cuyahoga

No. 87317, 2007-Ohio-3261, ¶ 182, quoting Matthews v. Matthews, 5 Ohio App.3d

140, 143, 450 N.E.2d 278 (10th Dist.1982).

We grant Bizfund’s motion for reconsideration. We therefore vacate

the earlier opinion and issue this opinion in its place. See App.R. 22(C).

Defendants-appellants Jetmo Inc., d.b.a. Monroe Transmission

(“Jetmo”), Kleen Car Auto Brokers, LLC (“Kleen”), Michael Casserino (“Michael”),

and Laura Casserino (“Laura”), collectively known as the “appellants,” appeal the

trial court’s decision denying their motions for judgment on the pleadings and

summary judgment and granting plaintiff-appellee Bizfunds motion for summary

1 The original decision in this appeal, Bizfunds, LLC v. Jetmo, Inc., 8th Dist. Cuyahoga No. 111032, 2022-Ohio-3815, released October 27, 2022, is hereby vacated. This opinion, issued upon reconsideration, is the court's journalized decision in this appeal. See App.R. 22(C); see also S.Ct.Prac.R. 7.01. judgment. Jetmo asks this court to reverse the trial court’s decision and remand this

matter for further proceedings. We affirm in part, reverse in part, and remand to

the trial court for proceedings consistent with this opinion.

I. Facts and Procedural History

Bizfunds, a corporation located in Cuyahoga County, Ohio, purchases

future receivables of businesses. On February 3, 2020, Michael, owner of Jetmo,

entered into an agreement with Bizfunds where Bizfunds would purchase Jetmo’s

future merchant receivables for $47,996. The agreement states that the projected

monthly average receivables were $29,838. Michael was the only person to sign as

the guarantor.

Per the terms of the agreement, Bizfunds advanced an up-front

payment of $35,500 to Jetmo and Michael. Bizfunds alleges that upon receiving the

$35,500, Jetmo almost immediately ceased processing credit card transactions and

failed to pay $47,996, the balance owed to Bizfunds. The agreement does not set

forth a specific time period or date that the full amount has to be repaid, but it does

state that “[t]his agreement shall be in full force and effect until the Purchased

Amount of Future Receivables has been delivered by Merchant to the Buyer.”

Michael stated that he planned to use the $35,500 to renovate his repair shop.

Jetmo operated its business at 1672 East Ridge Road in Rochester,

New York. The facility is owned by Kleen, which is owned by Laura, Michael’s wife.

Bizfunds alleges that Michael and Jetmo breached their agreement because Jetmo immediately ceased operations and processing credit cards transactions. Bizfunds

contacted Jetmo at the phone number listed on the agreement. Bizfunds discovered

that another company, Platinum Autohaus LLC (“Platinum”) was operating an auto

repair shop out of the same facility. Michael was listed as an authorized contact for

the new company’s credit card processing agreement.

Bizfunds discovered that on February 1, 2020, two days prior to the

execution of the agreement between Bizfunds and Jetmo, Platinum signed a lease

agreement to operate its business out of the same facility owned by Kleen where

Jetmo operated its business. On the lease agreement between Platinum and Kleen,

Platinum was granted the same address, phone number, website, social media

pages, and equipment of Jetmo. This lease agreement was signed by Platinum and

Laura, on behalf of Kleen, on January 25, 2020. This agreement was signed a week

before Michael represented that he owned the shop at the same address.

Michael claims that soon after he signed the agreement with

Bizfunds, Jetmo suffered a decline in revenue as a result of the COVID-19 pandemic.

Michael also claims that he had no relation to Platinum or Kleen. According to

Michael, Kleen and Platinum entered into a lease agreement where Platinum and

Jetmo would operate their businesses simultaneously at the same location. Michael

asserted that the agreement between Bizfunds and Jetmo had no bearing on the

agreement between Platinum and Kleen. Bizfunds disagreed with Michael’s assertions and filed a complaint on

June 8, 2020, alleging that the appellants were in default of the agreement and have

failed to pay the balance of the purchase amount. Bizfunds also requested attorney

fees in the amount of $15,989.87. In Bizfunds’ complaint, they also alleged that

Jetmo fraudulently entered into the agreement knowing that upon receiving the

$35,500, Jetmo would immediately cease selling its services.

On September 8, 2020, the appellants filed a motion for judgment on

the pleadings. They requested that the trial court dismiss the breach-of-contract

claim against Laura and Kleen because they were not included in the agreement

between Michael and Bizfunds. The appellants argued that Laura could not be held

personally liable for breach of contract, even if she owned Jetmo, because she did

not sign the contract. On January 19, 2021, the trial court denied the appellants’

motion without explanation. Journal entry No. 115726055 (Jan. 19, 2021).

On March 18, 2021, Bizfunds filed a motion for summary judgment.

Bizfunds argued that Kleen is the successor in interest to Jetmo and that Laura, as

the owner of Kleen, acted in concert with Jetmo and Michael. Bizfunds also argued

that there is no genuine issue of material facts in dispute and that Bizfunds is owed

$47,974.40. On May 3, 2021, the appellants filed their brief in opposition to

Bizfunds’ motion and a motion for summary judgment. On September 21, 2021, the trial court granted Bizfunds’ motion for

summary judgment and denied the appellants’ motion. In the trial court’s journal

entry, it states, in part:

Plaintiff’s motion for summary judgment, filed 03/18/2021, is granted. The court, having considered all the evidence and having construed the evidence most strongly in favor of the non-moving party, determines that reasonable minds can come to but one conclusion, that there are no genuine issues of material fact, and that plaintiff is entitled to judgment as a matter of law.

Judgment is hereby rendered for plaintiff and against defendants Jetmo, Inc. DBA Monroe Transmission NKA Kleen Car Auto Brokers LLC, Michael Casserino, and Laura Casserino, jointly and severally, in the amount of $47,974.00 plus interest at the statutory rate from the date of judgment and court costs. * * *

Defendants[’] motion for summary judgment, filed 05/03/2021, is denied.

Journal entry No. 118745492 (Sept. 21, 2021).

The trial court set a hearing for punitive damages and attorney fees

on October 26, 2021, and on November 4, 2021, the trial court, in its journal entry,

stated, in part:

Upon consideration of the evidence, the court awards punitive damages in the amount of $25,000.00 and attorney fees in the amount of $11,993.50, in favor of plaintiff and against all defendants, jointly and severally. Final.

Journal entry No. 119364115 (Nov. 4, 2021).

On November 19, 2021, the appellants filed a motion to stay the trial

court’s order pending the outcome of this appeal. On February 8, 2022, the trial court denied the appellants’ motion. Journal entry No. 121058495 (Feb. 2, 2022).

On the same day the appellants filed their motion to stay, they filed an appeal

assigning five errors for our review:

1. The trial court erred in denying the defendants’ motion for judgment on the pleadings;

2. The trial court erred in granting the plaintiff’s motion for summary judgment against the defendants;

3. The trial court erred in denying the defendants’ motion for summary judgment;

4. The trial court erred in awarding $25,000.00 in punitive damages to the plaintiff, against all defendants, jointly and severally; and

5. The trial court erred in awarding $11,993.50 in attorney fees against all defendants, jointly and severally.

We will review assignment of error Nos. 2 and 3 together as they both

concern the trial court’s ruling on the summary judgment motion.

II. Judgment on the Pleadings

A. Standard of Review

“Motions for judgment on the pleadings are governed by Civ.R. 12(C).

Civ.R. 12(C) provides that ‘[a]fter the pleadings are closed but within such time as

not to delay the trial, any party may move for judgment on the pleadings.’” Bank of

Am., N.A. v. Michko, 8th Dist. Cuyahoga No. 101513, 2015-Ohio-3137, ¶ 37. “In

ruling on a Civ.R. 12(C) motion, the court is permitted to consider both the

complaint and the answer as well as any material attached as exhibits to those

pleadings.” Id., citing Schmitt v. Educational Serv. Ctr., 8th Dist. Cuyahoga No. 97605, 2012-Ohio-2208, 970 N.E.2d 1187, ¶ 10. ““‘Civ.R. 12(C) requires a

determination that no material factual issues exist and that the movant is entitled to

judgment as a matter of law.’”” Id., quoting Rayess v. Educational Comm. for

Foreign Med. Graduates, 134 Ohio St.3d 509, 2012-Ohio-5676, 983 N.E.2d 1267,

¶ 18, quoting State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d at 565,

664 N.E.2d 931 (1996).

“Judgment on the pleadings is appropriate where, after considering

the material allegations of the pleadings and all reasonable inferences to be drawn

therefrom in a light most favorable to the nonmoving party, the court finds that the

moving party is entitled to judgment as a matter of law.” Id., citing Rayess at ¶ 18.

“We review a trial court’s granting of a motion for judgment on the pleadings de

novo.” Id., citing id.

B. Law and Analysis

In the appellants’ first assignment of error, they argue that the trial

court erred in denying their motion for judgment on the pleadings. The appellants

filed a motion for judgment on the pleadings. They requested that the trial court

dismiss the breach-of-contract claim against Laura and Kleen because they were not

included in the agreement between Michael and Bizfunds. The appellants argued

that Laura could not be held personally liable for breach of contract, even if she

owned Jetmo, because she did not sign the contract. Additionally, the appellants

contend that Bizfunds could not, as a matter of law, sustain a fraud cause of action

against them because the gravamen of its complaint was a claim for breach of contract and that the facts alleged in the Bizfunds’ complaint do not support a cause

of action of fraud against the appellants.

In Bizfunds’ response to appellants’ motion, they argue that Laura

was a successor in interest and, therefore, could be held liable for the breach.

Bizfunds also argued that its complaint set forth the facts that led to the dispute,

including, but not limited to, the agreement date, amount demanded, and content

of the agreement, and further set forth the particulars of appellants’ fraudulent

actions.

i. Fraud

Bizfunds contends that the appellants committed fraud because the

appellants received funds for future transactions with the knowledge that they

would immediately cease selling services.

A claim for fraud requires proof of the following elements: (1) a representation or, where there is a duty to disclose, omission of a fact, (2) which is material to the transaction at hand, (3) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (4) with the intent of misleading another into relying upon it, (5) justifiable reliance upon the representation or concealment, and (6) a resulting injury proximately caused by the reliance.

Kobal v. Edward Jones Secs., 8th Dist. Cuyahoga No. 109753, 2021-Ohio-1088,

¶ 15, citing Russ v. TRW, Inc., 59 Ohio St.3d 42, 49, 570 N.E.2d 1076 (1991).

However, appellants argue that the gravamen of Bizfunds’ complaint

is breach of contract, not fraud.

In order to substantiate a breach of contract claim, a party must establish four elements: (1) a binding contract or agreement was formed; “[(2)] the nonbreaching party performed its contractual obligations; [(3)] the other party failed to fulfill its contractual obligations without legal excuse; and [(4)] the nonbreaching party suffered damages as a result of the breach.”

Carbone v. Nueva Constr. Group, L.L.C., 2017-Ohio-382, 83 N.E.3d 375, ¶ 14 (8th

Dist.), quoting Textron Fin. Corp. v. Nationwide Mut. Ins. Co., 115 Ohio App.3d

137, 144, 684 N.E.2d 1261 (9th Dist.1996).

Bizfunds argues that before Michael executed the agreement with

them on February 3, 2020, he and Laura agreed to lease the building where Jetmo

operated to Platinum on February 1, 2020. According to the lease agreement, which

was entered into the record, Kleen entered into a lease agreement with Platinum at

the same address where Jetmo is located. In the agreement, Platinum was granted

the right to use Jetmo’s phone numbers, social media sites, website, and any and all

parts and equipment.

Additionally, the record revealed that Jetmo processed its credit card

transactions through Electronic Merchant Systems (“EMS”). EMS confirmed that

Jetmo ceased processing all credit card transactions on February 3, 2020, with the

exception of one sale of $108 on March 8, 2020. EMS also confirmed that another

company, Platinum, was operating an auto repair shop at the same address for

Jetmo, and executed an agreement with them on January 2, 2020. Michael was

listed on the Platinum agreement as an authorized contact.

Bizfunds argues that Michael committed fraud and intentionally

misled Bizfunds because he entered into the agreement with Bizfunds with the knowledge that he was going to cease operations as Jetmo and begin as Platinum.

“‘A claim of fraud in the inducement arises when a party is induced to enter into an

agreement through fraud or misrepresentation.’” Mtge. Elec. Registration Sys. v.

Mosley, 8th Dist. Cuyahoga No. 93170, 2010-Ohio-2886, ¶ 31, quoting ABM Farms,

Inc. v. Woods, 81 Ohio St.3d 498, 502, 692 N.E.2d 574 (1998).

The record reflects and supports that Michael as the sole

representative of Jetmo was responsible for the misrepresentations inducing

Bizfunds because he omitted the fact that he had leased Jetmo’s equipment, parts,

website, phone numbers, social media sites, and location to Platinum on February 1,

2020. This lease agreement, which was executed before the February 3, 2020

agreement between Jetmo and Bizfunds, was material to the transaction and was

intended to mislead Bizfunds into giving Michael $35,500. These actions resulted

in a binding contract being formed between Bizfunds and Jetmo; Bizfunds

performed its contractual obligation by advancing the $35,500; Jetmo failed to

fulfill its obligations without legal excuse; and finally, Bizfunds suffered damages as

a result of Jetmo’s breach.

There is nothing in the record that demonstrates that Laura made any

representations to induce Bizfunds into entering into the receivables purchase

agreement. The record reflects that Michael knew at the time that he entered into

the receivables purchase agreement with Bizfunds that Jetmo had effectively ceased

operations. Michael’s actions at the time were separate from the breach of contract

because he made a representation that was material to the transaction at hand, that was made with knowledge of its falsity, that was made with the intent of

misleading Bizfunds into relying upon it, and that resulted in an injury proximately

caused by the reliance. Additionally, there was no evidence that Michael represent

Kleen at the time of the alleged fraud.

Therefore, the trial court did not err in denying appellants’ motion for

judgment on the pleadings.

ii. Laura Casserino and Kleen Auto Brokers

The appellants argue that Laura and her business, Kleen, were not

parties to the agreement between Bizfunds and Jetmo and, therefore, should not be

held liable for fraud or breach of contract. While it is correct that neither Laura nor

Kleen made any misrepresentations in the original contract between Bizfunds and

Jetmo, Bizfunds, however, contends that Laura, as the owner of Kleen, acted in

concert with Jetmo and Michael and is the successor in interest to Jetmo. In order

to be a successor in interest, the following must exist: Laura must expressly or

impliedly agree to assume such liability; the transaction between Jetmo, Bizfunds,

and Kleen amounts to a de facto consolidation or merger; Kleen is merely a

continuation of Jetmo; or the transaction is entered into fraudulently for the

purpose of escaping liability. Gallagher v. Cochran, 8th Dist. Cuyahoga No. 109081,

2020-Ohio-4917, ¶ 50.

There is no evidence that Laura signed a personal guarantee. Without

a personal guarantee signed by Laura, however, she cannot be held liable for the

debts of Kleen (even assuming that Kleen was the successor in interest to Jetmo for debts and assets). “An officer of a corporation is not personally liable on contracts

for which his corporate principal is liable, unless he intentionally or inadvertently

binds himself as an individual.” J.D.S. Properties v. Walsh, 8th Dist. Cuyahoga

No. 91733, 2009-Ohio-367, ¶ 18; Dombroski v. WellPoint, Inc., 119 Ohio St.3d 506,

2008-Ohio-4827, 895 N.E.2d 538, ¶ 16 (“The principle that shareholders, officers,

and directors of a corporation are generally not liable for the debts of the corporation

is ingrained in Ohio law.”), citing Section 3, Article XIII, Ohio Constitution, and

Belvedere Condominium Unit Owners’ Assn. v. R.E. Roark Cos., 67 Ohio St.3d 274,

287, 617 N.E.2d 1075 (1993); United States Bank Natl. Assn. v. MMCO, LLC, 2021-

Ohio-4605, 183 N.E.3d 499, ¶ 58 (8th Dist.); Cleveland v. Embassy Realty Invests.,

Inc., 2018-Ohio-2513, 112 N.E.3d 460, ¶ 37 (8th Dist.), citing State ex rel. Petro v.

Mercomp, Inc., 167 Ohio App.3d 64, 2006-Ohio-2729, 853 N.E.2d 1193, ¶ 20 (8th

Dist.).

There is no dispute that Laura and Kleen own the building from which

Michael operated Jetmo. However, Michael, in the February 3, 2020 agreement

with Bizfunds, represents that he is the owner of the building. Additionally, the lease

agreement between Platinum and Kleen states that the address for Kleen is the same

as the address for Jetmo. The lease agreement also grants Platinum the right to use

Jetmo’s phone numbers, social media sites, website, and any and all parts and

equipment. Bizfunds argues that these facts support the de facto merger of Jetmo

and Kleen and that Kleen is a continuation of Jetmo. “‘A de facto merger is a merger in fact without an official declaration

of such.’” Eberhard Architects, L.L.C. v. Schottenstein, Zox & Dunn Co., L.P.A., 8th

Dist. Cuyahoga No. 102088, 2015-Ohio-2519, ¶ 23, quoting Welco Indus., Inc. v.

Applied Cos., 67 Ohio St. 3d 344, 350, 617 N.E.2d 1129 (1993).

The hallmarks of a de facto merger include: (1) the continuation of the previous business activity and corporate personnel; (2) a continuity of shareholders resulting from a sale of assets in exchange for stock; (3) the immediate or rapid dissolution of the predecessor corporation; and (4) the assumption by the purchaser of all liabilities and obligations ordinarily necessary to continue the predecessor’s business operations.

Id., citing id.

“Moreover, courts interpreting and applying Ohio’s de facto merger

doctrine have reasoned that a rule requiring the presence of all of the hallmarks

would be too rigid and would dilute the doctrine.” Id., citing Cytec Indus., Inc. v.

B.F. Goodrich Co., 196 F.Supp.2d 644, 658 (S.D.Ohio 2002) (applying Ohio law).

In our instant case, the record reflects that both Kleen and Jetmo

continued the previous business activity. Michael and Laura, as owners of Jetmo

and Kleen, respectively, both claim to be owners of the property where Kleen, Jetmo,

and Platinum operated. Michael, as the owner of Jetmo, claimed to be the owner in

the agreement with Bizfunds, and Laura, as the owner of Kleen, claimed to be the

owner in the agreement with Platinum. In the lease agreement between Laura,

Kleen, and Platinum, it assigned Jetmo’s address, website, phone number, social

media pages, and parts and equipment to Platinum. It its noted that Michael was

not listed on the aforementioned lease agreement, nor did he sign the agreement. Despite working from the same building, we determine that Bizfunds

has not demonstrated that at the time Michael entered into the contract with

Bizfunds, Laura, in her personal capacity, or Kleen were parties to the contract or

engaged in the fraudulent behavior in concert with Michael. Thus, the trial court

erred when it did not dismiss the breach of contract or fraud claim against Laura

and Kleen.

Therefore, appellants’ first assignment of error is overruled in part

and sustained in part.

III. Summary Judgment

Appellate review of summary judgments is de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Pursuant to Civ.R. 56(C),

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 or her favor. Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679,

653 N.E.2d 1196 (1995), paragraph three of the syllabus; Zivich v. Mentor Soccer

Club, 82 Ohio St.3d 367, 696 N.E.2d 201 (1998).

The party moving for summary judgment bears the burden of

demonstrating the absence of a genuine issue of material fact as to the essential

elements of the case with evidence of the type listed in Civ.R. 56(C). Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). Once the moving party

demonstrates entitlement to summary judgment, the burden shifts to the

nonmoving party to produce evidence related to any issue on which the party bears

the burden of production at trial. Civ.R. 56(E).

In the appellants’ second and third assignments of error, they argue

that the trial court erred in granting Bizfunds’ motion for summary judgment and

denying their motion for summary judgment. The specific arguments appellants

made in their motion for summary judgment are identical to the arguments made

in their motion for judgment on the pleadings. Specifically, the appellants contend

that an issue of material fact remained as to whether the appellants should be liable

for fraud. They also argued that Laura did not enter into a contract with Bizfunds;

Laura should not be personally liable, even if she is considered an owner of Jetmo;

and Laura, as the owner of Kleen, could not be liable for fraud.

The appellants have not demonstrated that the trial court erred in

denying their motion for summary judgment and granting Bizfunds’ motion with

respect to the fraud claims against Michael and Jetmo. However, the trial court did

err when it failed to dismiss the claims against Laura and Kleen. As previously

stated, the record reflects and supports that Michael, as the owner of Jetmo,

committed the alleged fraud against Bizfunds because he omitted the fact that he

had leased Jetmo’s equipment, parts, website, phone numbers, social media sites,

and location to Platinum. This lease agreement, which was executed before the agreement between Jetmo and Bizfunds, was material to the transaction and was

intended to mislead Bizfunds into giving Michael $35,500. Bizfunds was entitled to

judgment as a matter of law again Michael and Jetmo only.

Therefore, the appellants’ second and third assignments of error are

overruled as to the trial court’s decision concerning Michael’s fraud against Bizfunds

and sustained as to the trial court’s decision denying the appellants’ request to

dismiss the claims against Laura and Kleen.

IV. Punitive Damages

“We review the determination of damages under the abuse of

discretion standard.” Mtge. Elec. Registration Sys. v. Lambert, 8th Dist. Cuyahoga

No. 94681, 2011-Ohio-461, ¶ 9, citing Roberts v. U.S. Fid. & Guar. Co., 75 Ohio St.3d

630, 634, 665 N.E.2d 664 (1996.)

“A trial court abuses its discretion where its decision is unreasonable,

arbitrary or unconscionable.” Twymon v. Eagle Auto Parts, Inc., 8th Dist.

Cuyahoga No. 110993, 2022-Ohio-2360, ¶ 35, citing Blakemore v. Blakemore, 5

Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). “A decision is unreasonable when ‘no

sound reasoning process’ supports that decision.” Id., citing AAAA Ents. v. River

Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d

597 (1990). B. Law and Analysis

In appellants’ fourth assignment of error, they argue that the trial

court erred by awarding Bizfunds punitive damages because Bizfunds did not suffer

a harm that was distinct from its breach-of-contract action and Bizfunds failed to

provide evidence that the appellants’ conduct was aggravated by the existence of

malice or ill will, or that the conduct was gross or egregious.

Pursuant to R.C. 2315.21(C), punitive damages are recoverable from

a defendant in a tort action where both of the following apply:

(1) The actions or omissions of that defendant demonstrate malice or aggravated or egregious fraud, or that defendant as principal or master knowingly authorized, participated in, or ratified actions or omissions of an agent or servant that so demonstrate.

(2) The trier of fact has returned a verdict or has made a determination * * * of the total compensatory damages recoverable by the plaintiff from that defendant.

R.C. 2315.21(C); see also Bank of New York Mellon v. Floyd, 8th Dist. Cuyahoga

No. 110248, 2021-Ohio-3736, ¶ 66.

As discussed earlier in this opinion, the record reflects that the

appellants engaged in fraud to induce Bizfunds into an agreement for $35,500.

However, “[a]ggravated fraud requires evidence of maliciousness, deliberateness,

grossness, or wantonness.” Romp v. Haig, 110 Ohio App.3d 643, 675 N.E.2d 10 (1st

Dist.1995), citing Logsdon v. Graham Ford Co., 54 Ohio St. 2d 336, 339, 376 N.E.2d

1333 (1978). The record reflects that Michael and Jetmo entered into the lease

agreement with Platinum on February 1, 2020, two days before executing the agreement with Bizfunds and purposefully omitted those facts to Bizfunds. The

record also reflects that Michael and Jetmo stopped operating as Jetmo and Jetmo

ceased its credit card transactions, with the exception of one transaction in March

2020, the same day they executed the agreement with Bizfunds. These actions were

deliberate, and the trial court did not abuse its discretion in awarding Bizfunds

punitive damages for Michael’s fraud. However, Laura is not liable for Michael and

Jetmo’s fraud. Thus, the trial court should not have awarded punitive damages

against Laura and Kleen.

Therefore, the appellants’ fourth assignment of error is overruled as

it relates to Michael and Jetmo and reversed with respect to Laura and Kleen.

V. Attorney Fees

“‘Determination of the amount to be awarded for reasonable

attorneys [sic] fees under [R.C.] 5321.16 lies within the sound discretion of the trial

judge.’” Christen v. Continental Ents., 2020-Ohio-3665, 154 N.E.3d 1192, ¶ 34 (8th

Dist.), quoting Hoerner v. Gms Mgt. Co., 8th Dist. Cuyahoga No. 46736, 1983 Ohio

App. LEXIS 14501, 5-6 (Dec. 15, 1983). “‘We review a trial court’s award of attorney

fees for abuse of discretion.’” Id., quoting Davis v. Wesolowski, 8th Dist. Cuyahoga

No. 108606, 2020-Ohio-677, ¶ 27. “A trial court abuses its discretion where its

decision is unreasonable, arbitrary or unconscionable.” Id., citing Bales v. Forest

River, Inc., 8th Dist. Cuyahoga No. 107896, 2019-Ohio-4160, ¶ 21, citing

Blakemore, 5 Ohio St.3d at 219, 450 N.E.2d 1140. “‘A decision is unreasonable if there is no sound reasoning process

that would support that decision.’” Id. at ¶ 35, quoting AAAA Ents. Inc., 50 Ohio

St.3d at 161, 553 N.E.2d 597. ““‘A trial court also acts unreasonably and abuses its

discretion when “the amount of fees determined is so high or so low as to shock the

conscience.’”” Id., quoting Bales at ¶ 21, quoting Bittner v. Tri-County Toyota, Inc.,

58 Ohio St.3d 143, 146, 569 N.E.2d 464 (1991).

In appellants’ fifth assignment of error, they argue that the trial court

abused its discretion by awarding attorney fees against all defendants, jointly and

severally. Specifically, appellants contend that Laura never signed the contract

between Bizfunds and Jetmo and, therefore, cannot be held liable for attorney fees.

As previously stated, Bizfunds has not demonstrated that at the time Michael

entered into the contract with Bizfunds, Laura was party to the contract or engaged

in the fraudulent behavior in concert with Michael.

Appellants also argue that the trial court failed to consider the

reasonableness of the attorney fees. The award of attorney fees were proper because

“‘[t]he Supreme Court of Ohio, as well as this court, has held that attorney fees are

recoverable as part of compensatory damages only when punitive damages have

been awarded.’” (Citations omitted.) Hawes v. Downing Health Technologies

L.L.C., 8th Dist. Cuyahoga No. 110920, 2022-Ohio-1677, ¶ 86, quoting Danial v.

Lancaster, 8th Dist. Cuyahoga No. 92462, 2009-Ohio-3599, ¶ 18. In this instant case, the trial court awarded Bizfunds compensatory

damages, as well as punitive damages for fraud. “As an initial matter, we note that

in general attorney fees may be awarded in connection with a claim for fraudulent

inducement to enter into a contract.” Berryhill v. Khouri, 8th Dist. Cuyahoga

No. 100173, 2014-Ohio-5041, ¶ 21.

Under Ohio law, an award of punitive damages is available only upon a finding of actual malice. Wills v. Kolis, 8th Dist. Cuyahoga No. 93900, 2010-Ohio-4351, ¶ 47-48, citing Berge v. Columbus Community Cable Access, 136 Ohio App.3d 281, 316, 736 N.E.2d 517 (10th Dist.1999). The “actual malice” necessary for purposes of an award of punitive damages has been defined as “‘(1) that state of mind under which a person’s conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm.’” Berge, quoting Preston v. Murty, 32 Ohio St.3d 334, 512 N.E.2d 1174 (1987), syllabus.

Hawes at ¶ 78.

In order for the trial court to award Bizfunds attorney fees, there has

to be a finding of actual malice and an award for punitive damages. Id. at ¶ 87.

Bizfunds argued in its motion for attorney fees and punitive damages that Michael’s

conduct was malicious and fraudulent. The trial court conducted a hearing and

agreed with Bizfunds, granting its motion.

In its complaint, Bizfunds requested attorney fees in the amount of

$15,989.87. The trial court conducted a hearing and awarded Bizfunds $11,993.50,

which demonstrates that the trial court considered the reasonableness of Bizfunds’

request. Bizfunds also submitted evidence that its counsel’s rate was $275 per hour

and counsel billed Bizfunds $16,225 for 59 hours. Therefore, the appellants’ fifth assignment of error is overruled with

respect to Michael and Jetmo, but reversed in relation to Laura and Kleen.

Judgment affirmed in part, reversed in part, and remanded.

It is ordered that appellee and appellants split 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.

_____________________________________ ANITA LASTER MAYS, ADMINISTRATIVE JUDGE

EILEEN A. GALLAGHER, J., CONCURS; SEAN C. GALLAGHER, J., DISSENTS WITH SEPARATE OPINION

SEAN C. GALLAGHER, J., DISSENTING:

I respectfully dissent.

I agree that there is no factual support for the allegation that Laura

Casserino made any misrepresentations inducing Bizfunds, LLC, into signing the

receivables purchase agreement, entered by Jetmo, Inc., through Michael Casserino

as Jetmo’s representative. As the appellants have claimed throughout this litigation,

“Ohio does not recognize a cause of action for aiding and abetting a tortious act. A

person is liable only if he engages in behavior that is unlawful and not simply because he aided or abetted wrongful conduct.” Wells Fargo Bank v. Smith, 12th

Dist. Brown No. CA2012-04-006, 2013-Ohio-855, ¶ 36, citing De Vries Dairy,

L.L.C. v. White Eagle Coop. Assn., Inc., 132 Ohio St.3d 516, 2012-Ohio-3828, 974

N.E.2d 1194, ¶ 2.

A cursory review of Bizfunds’ motion for summary judgment

demonstrates that Bizfunds failed to include any evidence recognized under

Civ.R. 56(E) demonstrating that Laura, or Kleen Car Auto Brokers, LLC, for that

matter, made any representations to induce Bizfunds into entering the receivables

purchase agreement even if we presumed that the fraud claim had been pleaded with

specificity as required.2 In fact, according to the sworn affidavit of Bizfunds’

representative, Michael was the sole person responsible for the alleged inducement.

The sole issue is which corporate interest he represented at the time he allegedly

made the fraudulent statements. Bizfunds’ evidence, the affidavit of its

representative, confirms that Michael made the representations regarding the status

of Jetmo’s operations, a point of fact expressly confirmed in the receivables purchase

agreement in section 2.1 under the “Representations and Warranties of Merchant

and Guarantor [(Michael)]”: “Merchant is not contemplating closing its business.”

2 Bizfunds attached five documents in support of its motion for summary judgment, four of which were unauthenticated (all documents except for the affidavit were not permissible under Civ.R. 56(E), but it does not appear that an objection was raised). Bizfunds attached (1) an affidavit from Bizfunds’ representative confirming that it entered the merchant receivables purchase agreement based on Michael’s representations; (2) a copy of the agreement; (3) Jetmo’s “merchant information form” indicating the funds were to be used for shop renovations; (4) a merchant application for Platinum Autohaus, LLC signed by Michael; and (5) a copy of the lease agreement between Kleen and Platinum Autohaus signed by Laura on behalf of Kleen. There is no evidence that Michael represented Kleen at the time the alleged fraud

occurred.

Thus, the fraud claim cannot lie against Laura in her personal

capacity or against Kleen because Bizfunds did not demonstrate that either of those

defendants engaged in the alleged fraud. At best, they merely aided or abetted

Michael’s tortious act; but Michael was expressly acting on behalf of Jetmo at the

time. Thomas v. Murry, 8th Dist. Cuyahoga No. 109287, 2021-Ohio-206, ¶ 76

(holding that “the state of Ohio does not recognize a cause of action for aiding and

abetting a tortious act”).

The only claim applicable against Laura in her personal capacity is

based on her alleged ownership of Kleen under the breach-of-contract claim, in

which Bizfunds claims that Kleen is a successor in interest to Jetmo. Without a

personal guarantee signed by Laura, however, she cannot be held liable for the debts

of Kleen (even assuming that Kleen was the successor in interest to Jetmo for debts

and assets). “An officer of a corporation is not personally liable on contracts for

which his corporate principal is liable, unless he intentionally or inadvertently binds

himself as an individual.” J.D.S. Props. v. Walsh, 8th Dist. Cuyahoga No. 91733,

2009-Ohio-367, ¶ 18; Dombroski v. WellPoint, Inc., 119 Ohio St.3d 506, 2008-Ohio-

4827, 895 N.E.2d 538, ¶ 16 (“The principle that shareholders, officers, and directors

of a corporation are generally not liable for the debts of the corporation is ingrained

in Ohio law.”), citing the Ohio Constitution, Article XIII, Section 3, and Belvedere

Condominium Unit Owners’ Assn. v. R.E. Roark Cos., 67 Ohio St.3d 274, 287, 617 N.E.2d 1075 (1993); United States Bank Natl. Assn. v. MMCO, LLC, 2021-Ohio-

4605, 183 N.E.3d 499, ¶ 58 (8th Dist.); Cleveland v. Embassy Realty Invests., Inc.,

2018-Ohio-2513, 112 N.E.3d 460, ¶ 37 (8th Dist.), citing State ex rel. Petro v.

Mercomp, Inc., 167 Ohio App.3d 64, 2006-Ohio-2729, 853 N.E.2d 1193, ¶ 20 (8th

The trial court erred and should have entered judgment in Laura’s

favor upon all claims under unambiguous Ohio law. As Laura demonstrated in her

motion for summary judgment and in this appeal, she cannot be held liable for the

debt as a matter of law under either the fraud or breach-of-contract theory.

In this respect, I agree with the majority opinion’s granting of

judgment upon all claims in favor of Laura, but my opinion diverges from that of the

majority opinion for the remainder of the arguments presented.

With respect to Kleen’s liability based on Bizfunds’ claim that it is

successor in interest to Jetmo based on a de facto merger of the two separate entities,

there is no evidence that Kleen continued Jetmo’s operations. In Welco Industries,

Inc. v. Applied Cos., 67 Ohio St.3d 344, 617 N.E.2d 1129 (1993), syllabus, the Ohio

Supreme Court held that

“[a] corporation that purchases the assets of another is not liable for the contractual liabilities of its predecessor corporation unless (1) the buyer expressly or impliedly agrees to assume such liability; (2) the transaction amounts to a de facto consolidation or merger; (3) the buyer corporation is merely a continuation of the seller corporation; or (4) the transaction is entered into fraudulently for the purpose of escaping liability.” (Emphasis added.) State ex rel. Crosset Co. v. Conrad, 87 Ohio St.3d 467, 475, 721

N.E.2d 986 (2000). Bizfunds has not demonstrated, much less alleged, that Jetmo

sold its assets to Kleen, and therefore, there is no transaction to be considered as a

de facto consolidation or merger.

At best, there is an issue of fact as to Kleen’s and Jetmo’s interest in

the building and fixtures, at least according to Bizfunds’ own documentary

submissions. There is disputed evidence that Kleen or Jetmo was the owner of the

property (Jetmo and Kleen both claimed to have owned the property and fixtures),

an issue that could have easily been demonstrated through publicly available land-

transfer documents. There is also undisputed evidence that a third entity (Platinum

Autohaus) took over Jetmo’s operations. Kleen was only the lessor of the property,

and there is no evidence, much less any allegation, that Kleen is the alter ego of the

Platinum Autohaus, the entity taking over the auto-repair business that would be

considered as Jetmo’s successor under the de facto merger doctrine.

As it stands based on the evidence and arguments presented for

review, Jetmo and Kleen were separate corporate entities operating through the

common ownership of possibly Michael and Laura, but there is no evidence Kleen

impliedly or expressly assumed Jetmo’s liability. Under well-settled law, separate

entities are not liable for the debts of each other even if they share owners or

shareholders. Minno v. Pro-Fab, Inc., 121 Ohio St.3d 464, 2009-Ohio-1247, 905

N.E.2d 613, syllabus ([a] “corporation’s veil may not be pierced in order to hold a

second corporation liable for the corporate misdeeds of the first” even if both entities have common shareholders or owners); Meinert Plumbing v. Warner Industries,

2017-Ohio-8863, 90 N.E.3d 966, ¶ 47 (8th Dist.). At the least, Kleen’s liability upon

Jetmo’s debt has not been demonstrated with undisputed evidence, and therefore,

a triable issue of fact exists with respect to Kleen’s liability on the breach-of-contract

action.

With respect to Michael’s liability, the trial court’s decision awarding

punitive damages along with the general verdict of $47,974 must be considered to

have been based on the fraud claim since the breach-of-contract damages would not

support the award of punitive damages.3 Under R.C. 2315.21(C), no punitive

damages are recoverable unless the trier of fact has returned a verdict awarding

compensatory damages upon a tort claim. Niskanen v. Giant Eagle, Inc., 122 Ohio

St.3d 486, 2009-Ohio-3626, 912 N.E.2d 595, paragraph one of syllabus. Thus, the

trial court’s judgment must necessarily mean it awarded the $47,974 upon the fraud

claim alone, which survives against Michael only in his personal capacity. There are

two problems with this conclusion.

Under unambiguous law, the trier of fact alone “shall determine

liability of any defendant for punitive or exemplary damages and the amount of

those damages.” R.C. 2315.21(D)(1). Thus, punitive damages can be awarded only

if “the actions or omissions of that defendant demonstrate malice or aggravated or

3 The attorney fees were either based on the breach-of-contact action, since the receivables purchase agreement included a provision to that effect, or were based on the punitive damages awarded through the fraud claim, which requires compensatory damages upon the tort claim to be awarded before punitive damages can be considered. See, e.g., Fowerbaugh v. Sliman, 8th Dist. Cuyahoga No. 110657, 2022-Ohio-1314, ¶ 61. egregious fraud, or that defendant as principal or master knowingly authorized,

participated in, or ratified actions or omissions of an agent or servant that so

demonstrate.” R.C. 2315.21(C)(1). “Whether malice exists is a question for the trier

of fact.” Fowerbaugh at ¶ 65, citing Al-Aroud v. McCoy, 5th Dist. Stark No. 2021

CA 00003, 2021-Ohio-3832, ¶ 35, and Spires v. Oxford Mining Co., LLC, 2018-

Ohio-2769, 116 N.E.3d 717, ¶ 32 (7th Dist.); R.C. 2315.21(D)(1). As a matter of law,

punitive damages cannot be awarded and the amount of damages determined,

under Civ.R. 56. Absent stipulations as to malice and the amount of damages, a trial

is necessary.

The majority opinion’s decision affirming the punitive damages

entered upon summary judgment without setting the matter for trial is contrary to

the statutory law upon which the punitive damages award rests.

And finally, the majority opinion has not addressed the primary issue

raised by Michael: that Bizfunds cannot assert a claim for fraud since the duties

owed were established by the receivables purchase agreement, citing Res. Title

Agency, Inc. v. Morreale Real Estate Servs., 314 F.Supp.2d 763, 773-774 (N.D. Ohio

2004); Wolfe v. Continental Cas. Co., 647 F.2d 705, 710 (6th Cir.1981); and

Salvation Army v. Blue Cross & Blue Shield, 92 Ohio App.3d 571, 578, 636 N.E.2d

399 (8th Dist.1993) (“It is not a tort to breach a contract, no matter how willful or

malicious the breach.”). In order to assert a fraud claim based on the duties imposed

by a contract, the plaintiff must allege that the fraud and damages exist independent

of the breach of contract. Lucarell v. Nationwide Mut. Ins. Co., 152 Ohio St.3d 453, 2018-Ohio-15, 97 N.E.3d 458, ¶ 36. If fraud in the inducement is proven, the remedy

is the tender of the consideration paid, not to award contractual damages. Berry v.

Javitch, Block & Rathbone, L.L.P., 127 Ohio St.3d 480, 2010-Ohio-5772, 940 N.E.2d

1265, ¶ 31.

Panels from this district have concluded that alleging the same

measure of damages for a breach-of-contract and fraud claims necessarily

demonstrates that the plaintiff cannot pursue the fraud claim or the corresponding

punitive damages claim. Cord v. Victory Solutions, L.L.C., 8th Dist. Cuyahoga No.

106006, 2018-Ohio-590, ¶ 17 (damages for fraud must be attributable to the tortious

acts that are in addition to the damages arising from the breach of the related

contract), citing EverStaff, L.L.C. v. Sansai Environmental Technologies, L.L.C.,

8th Dist. Cuyahoga No. 96108, 2011-Ohio-4824, ¶ 28 (the trial court’s dismissal of

the tort claim based on the fact that the plaintiff failed to assert additional basis for

recovery beyond that expressed in the claim for breach of contract was affirmed).

Fraudulent inducement into a contract does not permit the aggrieved party to assert

contractual damages as a measure of the fraud damages.

The majority opinion’s conclusion that Bizfunds demonstrated the

existence of fraud in general does not resolve whether the fraud claim can coexist

with the breach of the receivables purchase agreement and, based on the facts

presented, conflicts with the settled law in this district that fraud claims must be

independent of the breach of contract in order to survive. I would address the

argument Michael presented. In summary, the trial court erred as a matter of law by failing to grant

judgment in favor of Laura upon all claims and judgment in favor of Kleen upon the

fraud claim. In addition, there are issues of triable facts as to whether Kleen

assumed Jetmo’s contractual debts and obligations and as to whether Bizfunds is

entitled to punitive damages upon the fraud claim against Michael, if the trial court

in fact found liability upon the tort claim and not the breach-of-contract action for

which punitive damages are not permitted, another issue in need of resolution. I

would reverse and remand for further proceedings consistent with the foregoing.