Bonner v. Delp

2021 Ohio 3772, 180 N.E.3d 11

• Court: Ohio Court of Appeals
• Decided: October 22, 2021
• Docket: L-20-1147
• Status: Published

Opinion

[Cite as Bonner v. Delp, 2021-Ohio-3772.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

Roberta Bonner, Trustee of the Delp Court of Appeals No. L-20-1147 Independence Trust dated July 4, 1999

Appellant Trial Court No. 2015 ADV 000305

v.

Cleves R. Delp, Indv. and as Trust Advisor to the Delp Independence Trust Dated July 4, 1999, et al. DECISION AND JUDGMENT

Appellees Decided: October 22, 2021

*****

Kevin A. Heban, R. Kent Murphree, and John P. Lewandowski, for appellant.

Thomas P. Dillon and Nicholas T. Stack, for appellee, Cleves R. Delp, etc.

Jean Ann Sieler and Robert C. Tucker, for appellee, Dominic J. Spinazze.

MAYLE, J.

{¶ 1} Plaintiff-appellant, Roberta Bonner, appeals (1) the April 25, 2016 judgment

of the Lucas County Court of Common Pleas, Probate Division, granting summary judgment in favor of defendant-appellee, Dominic Spinazze, and (2) its August 5, 2020

judgment after a bench trial, dismissing Bonner’s claims against defendant-appellee,

Cleves R. Delp. For the following reasons, we affirm the trial court judgment.

I. Background

{¶ 2} Roberta Bonner, Bradley Delp, and Cleves Delp are siblings. Their

stepmother, Evelyn Delp, established The Delp Independence Trust Dated July 4, 1999

(“the Independence Trust”) for the benefit of Brad and Cleves and their descendants.

Cleves’s brother-in-law, attorney Dominic Spinazze, drafted the Independence Trust and

served as its trustee until resigning on February 22, 2010. Bonner was appointed

successor trustee effective February 23, 2010.

A. The Pleadings

{¶ 3} Bonner filed a complaint on February 20, 2015, against Cleves, individually,

as trust advisor to the Independence Trust, and as trustee of The MSJMR Irrevocable

Trust Dated December 31, 2008 (“the MSJMR Trust”); and Spinazze, individually and as

former trustee of the Independence Trust. Bonner filed an amended complaint on May

28, 2015.

{¶ 4} According to the allegations in Bonner’s amended complaint, the corpus of

the Independence Trust included (1) an LPL brokerage account worth $425,383.18,1 and

(2) 0.125 Class A voting shares of The Delp Company (“TDC”), which amounted to two

percent of the company’s voting stock. Bonner claimed that on February 4, 2014, she

1 It was later specified that there were two LPL accounts, totaling $525,383.13.

2. learned that while she was serving as trustee, Spinazze or Cleves caused the LPL account

to be transferred to Cleves as trustee of the MSJMR Trust, of which Cleves is also a

beneficiary. She further claimed that while Spinazze was still administering the

Independence Trust, the TDC voting stock was transferred to Cleves.

{¶ 5} Bonner asserted eight causes of action in her amended complaint: (1) breach

of fiduciary duty and breach of trust (Count I); actual fraud (Count II); constructive fraud

(Count III); breach of contract (Count IV); promissory estoppel (Count V); civil

conversion (Count VI); constructive trust (Count VII); and civil conspiracy (Count VIII).

{¶ 6} Cleves answered Bonner’s amended complaint and asserted numerous

affirmative defenses, including that her claims are barred by the statute of limitations, the

doctrines of waiver and laches, accord and satisfaction, express consent, and Article IX of

the Independence Trust. He attached documents that he claimed showed that the TDC

voting stock was transferred with Brad’s express written consent.

{¶ 7} Spinazze answered Bonner’s amended complaint and asserted affirmative

defenses, including, inter alia, that Bonner’s claims are barred by the statute of

limitations, accord and satisfaction, failure to join all necessary parties, Article IX of the

Independence Trust, informed consent, and the doctrines of waiver, laches, and estoppel.

Spinazze also counterclaimed and alleged that under the terms of the Independence Trust

agreement and under R.C. Chapters 5807 and 5808, Bonner’s claims are barred by the

applicable limitations periods, and Bonner must defend and indemnify him. He

maintained that the claims against him were brought without good cause, constitute

3. frivolous and vexatious conduct, and were pursued claims against him for improper

purposes.

B. Spinazze’s Motion for Summary Judgment

{¶ 8} On August 7, 2015, Spinazze moved for summary judgment. He argued that

Bonner’s breach of fiduciary duty, breach of trust, and breach of contract claims are all

statutory “breach-of-trust” claims and are barred by the four-year repose period set forth

in R.C. 5810.05(C)(1) because they were filed five years after Spinazze resigned as

successor trustee of the Independence Trust. He argued that Bonner’s claims for actual

fraud, constructive fraud, and promissory estoppel are also breach-of-trust claims barred

by the four-year repose period, and they are further barred by the four-year limitations

period applicable to fraud claims because Bonner or the Independence Trust beneficiaries

had notice of the alleged fraud, misrepresentations, and promises before February 2011.

He argued that Bonner’s civil conversion claim is barred by the repose period in R.C.

5810.05(C)(1) and the four-year statute of limitations in R.C. 2305.09(B). And he argued

that Bonner’s constructive trust and civil conspiracy claims cannot stand independently,

and because the underlying claims are time-barred, those claims fail as a matter of law.

{¶ 9} In support of his position that Bonner’s claims are time-barred, Spinazze set

forth the following timeline of events:

 July 4, 1999: The Independence Trust was established for its

primary beneficiaries, Cleves and Brad, Spinazze was appointed trustee,

4. and the corpus was funded with assets including the LPL brokerage account

and 0.125 Class A TDC voting shares.

 January 23, 2010: Spinazze tendered notice of his resignation as

trustee of the Independence Trust effective February 22, 2010. Bonner was

appointed successor trustee effective February 23, 2010.

 Before February 22, 2010: With Brad’s knowledge, consent, and

authorization, the TDC voting stock was transferred to Cleves as trustee of

the Cleves R. Delp Revocable Trust Dated July 4, 1992 as amended, and

arrangements were made to transfer the assets of the LPL brokerage

account to Cleves as trustee of the MSJMR Trust.

 February 22, 2010: Spinazze’s resignation as trustee of the

Independence Trust became effective and he ceased performing trustee

functions.

 February 23, 2010: Bonner’s appointment as successor trustee

became effective, giving her full and unrestricted access to the

Independence Trust’s accounts, records, documents, and property.

 February 26, 2010: The transfer of the assets of the LPL

brokerage account to the MSJMR Trust was completed.

 February 20, 2015: Bonner filed her complaint against Cleves and

Spinazze.

5. Spinazze maintained that the limitations period began to run no later than February 23,

2010, and had expired by the time Bonner filed her complaint on February 20, 2015.

{¶ 10} Bonner responded that the timeline provided by Spinazze cannot be trusted.

She accused Spinazze and Cleves of back-dating documents, omitting dated signature

lines, and representing documents as having been hand-delivered to avoid automated

postage date stamps. Bonner insisted that she did not begin acting as trustee of the

Independence Trust until fall of 2011. She claimed that Spinazze failed to deliver the

trust property to her or to provide an accounting, he continued to act as trustee into 2011,

she received no communications concerning the trust or its assets until 2011, she did not

know that the voting stock and LPL account had been transferred to Cleves, and her

requests for an updated accounting were ignored until February of 2012. Bonner

maintained that she did not learn of the transfer of the voting stock until 2014, and she

denied that Brad consented to the transfer of the TDC voting stock or LPL account.

{¶ 11} As for her legal arguments, Bonner did not deny that Ohio’s trust statutes

apply to her claims for breach of fiduciary duty, breach of trust, and breach of contract.

Rather, she argued that she was not aware of the transfer of the LPL account until 2012,

thus the repose statutes did not begin to run until then. Moreover, she claimed that

because Spinazze never delivered the trust property to her, his duties as trustee continued

beyond his resignation under R.C. 5807.07.

{¶ 12} Concerning her claims for actual fraud, constructive fraud, promissory

estoppel, and civil conversion, Bonner insisted that those claims are not breach-of-trust

6. claims, thus the limitations period set forth in R.C. 5810.05 is inapplicable. Instead, she

claimed, R.C. 2305.09(C) provides a five-year statute of limitations for fraud and the

claim did not begin to accrue until after she discovered the fraud, which, she contended,

Spinazze actively concealed. (Bonner later filed a correction with the court, conceding

that the statute of limitations under R.C. 2305.09(C) is four years, not five.) She denied

that her claims began to accrue when Spinazze resigned as trustee. Finally, Bonner

refuted Spinazze’s assertion that her constructive trust claim could not survive as a stand-

alone claim, and she maintained that her civil conspiracy claim is properly tethered to

another cause of action because her other claims are not time-barred. Bonner insisted

that additional discovery was necessary under Civ.R. 56(F).

{¶ 13} Spinazze reiterated in his reply that the limitations period in R.C. 5810.05

applies; there is no fraud exception in R.C. 5810.05; Spinazze resigned as trustee

February 22, 2010; even accepting the facts asserted by Bonner as true, the latest she

claims Spinazze acted on behalf of the trust is December 31, 2010—still outside the four-

year statute of repose; actions that Bonner claims Spinazze took in 2011, do not

demonstrate that he was continuing to act as trustee; extensive discovery had already

occurred; and Bonner failed to proffer the requisite Civ.R. 56(F) affidavit.

C. The Trial Court Judgment Granting Spinazze’s Motion

{¶ 14} On March 25, 2016, the trial court granted Spinazze’s motion for summary

judgment. It found that it was undisputed that Spinazze had resigned as trustee on

February 22, 2010, and all actions he took on behalf of the trust occurred before that date.

7. The court agreed with Spinazze that Bonner’s first six claims arose under Ohio’s Trust

Code and are barred by the limitations period set forth in R.C. 5810.05(C)(1). Although

couched as fraud claims, the trial court characterized Counts II, III, and V of Bonner’s

complaint as “breach of trust” claims. And, it held, even if it were to conclude that

Bonner’s complaint alleged fraud, Bonner’s claims would still be time-barred under R.C.

2305.09(C).

{¶ 15} On April 25, 2016, on a motion by Spinazze, the court amended its March

25, 2016 judgment to designate it a final appealable order under Civ.R. 54(B).

D. Cleves’s Summary-Judgment Motion

{¶ 16} On November 30, 2016, Cleves filed his own motion for summary

judgment. First, Cleves denied that he was the trust advisor to the Independence Trust.

He insisted that TDC—“a legal entity, apart from the natural persons who compose it”—

was appointed trust advisor. He claimed that Bonner’s claims must be dismissed on this

basis alone. Cleves also maintained that even if he was the trust advisor, the court

already determined that Bonner’s claims are subsumed into a breach-of-trust claim under

the Ohio Trust Code and are untimely. He argued that there was no discernible

difference between the duties Spinazze owed as trustee and the duties owed to the trust

by a trust advisor, thus the Ohio Trust Code applies equally to the claims against him.

Finally, Cleves claimed that regardless of whether he had been appointed trust advisor,

only Spinazze—not the trust advisor—had authority to initiate the disputed transfers of

property from the Independence Trust. Given that the claims against Spinazze were

8. dismissed as untimely (and Bonner never appealed), Cleves argued that he could not be

held liable for advising or directing Spinazze relative to those transactions.

{¶ 17} Cleves also contended that even if Bonner’s claims could be viewed as

separate, independent claims against him, those claims are untimely given that the two

transactions giving rise to Bonner’s claims were completed in February of 2010, and

Brad was aware of the transactions no later than July 13, 2010, as demonstrated by a

recorded phone call that day during which Brad acknowledged to Cleves that the LPL

account had been transferred out of the Independence Trust. Cleves maintained that

Bonner’s claims for breach of trust, breach of fiduciary duty, actual fraud, constructive

fraud, promissory estoppel, and civil conversion were required to be filed within four

years. He insisted that because Bonner’s claims arose from Cleves’s supposed breach of

duties imposed by the trust document, Bonner cannot escape the four-year statute of

limitations by framing her claim as one for breach of contract. Finally, like Spinazze,

Cleves argued that Bonner’s constructive trust and civil conspiracy claims could not

stand because they were predicated upon time-barred claims.

{¶ 18} In asserting the limitations period as a bar to Bonner’s fraud claims, Cleves

sought to impute to Bonner Brad’s knowledge of the transfer of the LPL account and the

TDC voting stock. To that end, Cleves insisted that Bonner had allowed Brad to become

the de facto trustee of the trust by (1) taking directions from Brad; (2) failing to take

independent actions as trustee; (3) allowing Brad to administer the trust; (4) signing and

submitting account applications at Brad’s direction; (5) requesting that account

9. statements be sent to Brad’s home address; and (6) borrowing $400,000 from Brad on

behalf of the Independence Trust, and signing a revolving credit note in connection with

that loan, without knowing the terms of the note, how the funds would be used, or who

prepared the note. Cleves also maintained that Brad told Bonner to file the lawsuit—

Bonner did not investigate the claims herself, did not know why she was suing Cleves,

had no specific knowledge relating to the Independence Trust, did not know who

prepared an accounting of the trust even while she was trustee, and had no idea of the

status of two notes reflected on the accounting as liabilities.

{¶ 19} Bonner responded that Cleves failed to address the fact that he had been

sued not only in his capacity as trust advisor to the Independence Trust, but also

individually and as trustee of the MSJMR Trust. She denied that the judgment in favor of

Spinazze was final and appealable despite the language added by the court because

Spinazze’s counterclaims had not been resolved. And she insisted that Brad is not the

“de facto” trustee and his knowledge did not commence the statute of limitations as to

Bonner.

{¶ 20} Bonner maintained that Cleves and Spinazze conceded that they had a

practice of signing documents dated one day with an effective date of another day, so the

dates they advanced cannot be believed. She claimed, therefore, that a question of fact

remained concerning when she became trustee of the Independence Trust. Bonner

insisted that she did not begin acting as trustee until late 2011, was never provided an

accounting, did not know where the trust assets were located, and had no suspicions

10. about the allegedly impermissible transfers until she began conducting her own

investigation in 2012. She also asserted that under R.C. 5807.07, Spinazze continued to

have the duties and powers of trustee because he failed to deliver the trust property to her.

{¶ 21} As for her constructive trust claim, Bonner contended that constructive

trust is properly a stand-alone claim and should be imposed because Cleves, individually

and as trustee of his own trust, holds the Independence Trust assets illegally. She argued

that Cleves continues to serve as trust advisor because Cleves is TDC, and he facilitated

the transfer of assets from the Independence Trust to pay off a debt he owed. Bonner

insisted that Brad signed nothing to modify the Independence Trust’s distributive

provisions—provisions that required equal distribution of trust assets.

{¶ 22} In reply, Cleves clarified that his summary-judgment motion sought

dismissal of all claims against him in all capacities. He contended that any challenge to

the finality of the April 25, 2016 judgment must be made in the court of appeals; until

then, the judgment dismissing the claims against Spinazze constitutes the law of the case.

{¶ 23} Cleves also claimed that information contained in Bonner’s affidavit—

submitted in support of her assertion that the statute of limitations had been tolled—was

demonstrated at her deposition to be false. He maintained that she lied about starting her

trusteeship in the fall of 2011—she signed acceptance of the trusteeship sometime before

May 4, 2010, opened a Charles Schwab account as trustee on May 6, 2010, signed

checks, and signed a revolving credit note as trustee on July 1, 2010. Cleves also claimed

that Bonner did nothing to investigate her possible claims, she lied when she testified that

11. her requests for information about the Independence Trust were ignored, and she did not

even know why she was suing Cleves.

E. The Trial Court Judgment Denying Cleves’s Motion

{¶ 24} The trial court denied Cleves’s motion for summary judgment on August 2,

2017. It held that the limitations period in R.C. 5810.05 applied only to the claims against

Spinazze, the trustee—not to the claims against Cleves. It found that the facts of the case

were clear as against Spinazze, but not as against Cleves. It concluded that the

conflicting affidavits, depositions, and supporting documents created a genuine issue of

material fact precluding summary judgment.

F. The Trial Court’s Judgment After Trial

{¶ 25} Bonner’s claims against Cleves were heard by the trial court during a three-

day trial that began on July 23, 2018. In addition to evidence relating to the

circumstances of the transfers, whether Brad consented to the transfers, whether Bonner

and Brad knew or should have known about the transfers, and whether Brad’s knowledge

of the transfers could be imputed to Bonner, evidence was presented concerning a Voya

life insurance policy insuring the life of Brad and Cleves’s mother. The Independence

Trust had been the owner and beneficiary of this policy and the premiums had been paid

by the trust with funds from the LPL account. By the end of February 2010, after that

account was transferred out of the trust, no funds were left with which to pay the

premiums. To ensure that the policy did not lapse for non-payment of premiums, the

Independence Trust borrowed $400,000 from Brad on July 1, 2010, and $655,000 from

12. Brad’s trust, the BJD 2008 Trust, on November 4, 2011—Bonner as trustee signed

revolving credit notes to secure these funds. The majority of those funds were used to

pay the Voya premiums. In 2013, Bonner transferred the Voya policy to DelDeary, LLC,

a single member LLC created by the Independence Trust. The Independence Trust then

sold DelDeary to the M.J. Millennium Trust, of which Brad is a beneficiary.

{¶ 26} In addition to the evidence concerning the Voya policy, Cleves offered the

following evidence at trial concerning Bonner’s involvement with the Independence

Trust:

(1) Bonner accepted her appointment as trustee of the Independence

Trust effective February 23, 2010;

(2) On May 4, 2010, Voya was notified that Bonner was the new

trustee of the Independence Trust;

(3) On May 6, 2010, Bonner opened a Schwab account as trustee of

the Independence Trust;

(4) On May 20, 2010, Bonner signed a check as trustee of the

Independence Trust;

(5) On July 1, 2010, Bonner signed a revolving credit note as trustee

of the Independence Trust;

(6) Sometime around July 1, 2010, Bonner made a payment from

the Independence Trust to Voya;

13. (7) On January 7, 2011, Bonner changed the Schwab mailing

address to Brad’s Florida residence.

Cleves offered evidence demonstrating that Brad had confronted Cleves about the

transfer of the LPL account on July 13, 2010, during a recorded phone call, and Brad had

executed a written consent for the transfer of the TDC voting stock.

{¶ 27} Cleves also presented evidence at trial concerning Brad’s control over

Bonner. Bonner testified that she pre-signed checks as trustee of the Independence Trust,

which she gave to Brad. Brad’s mailing address was used for accounts and statements

relative to the Independence Trust. Bonner filed the present lawsuit at Brad’s direction

without understanding the basis for it. Bonner conceded that Brad tells her what to do

with respect to the Independence Trust, she has never refused to follow any of his

requests, any time she has acted in her capacity as trustee of the Independence Trust, it

has been at Brad’s direction, and she has never decided on her own to take any action

concerning the Independence Trust.

{¶ 28} Finally, evidence was admitted at trial concerning a lawsuit that Brad and

one of his trusts filed on March 18, 2014, against Cleves, the MSJMT Trust, and others in

the U.S. District Court for the Northern District of Ohio. Specifically, evidence was

presented that Brad brought suit alleging, among other things, that Cleves and other

defendants “caused the assets of the Delp Independence Trust, including The Delp

Company shares, to be conveyed to Cleves R. Delp, his trust, and/or one or more other

defendants.” In that suit, Brad sought “the restoration of the assets of the Delp

14. Independence Trust to said trust.” The court ultimately dismissed Brad’s claims with

prejudice as a sanction for litigation misconduct. Bradley J. Delp Revocable Tr. v.

MSJMR 2008 Irrevocable Tr., N.D.Ohio No. 3:14 CV 591, 2015 WL 9592531, *1 (Dec.

31, 2015), aff'd, Bradley J. Delp Revocable Tr. v. MSJMR 2008 Irrevocable Tr., 665

Fed.Appx. 514 (6th Cir.2016).

{¶ 29} After the trial, the parties submitted proposed findings of fact and

conclusions of law and responses to each other’s proposed findings and conclusions. In

his proposed findings and conclusions, Cleves argued, among other things, that Bonner’s

claims with respect to the TDC stock were barred by the doctrine of res judicata because

they were the subject of the federal action. He also argued that the evidence at trial

established that Bonner’s claims are time-barred under R.C. 5810.05(C)(4) and 2305.09.

{¶ 30} In a judgment entered August 5, 2020, the trial court agreed that Bonner’s

claims were untimely and barred by res judicata. The court found that there was no

question that Bonner’s actions as trustee of the Independence Trust were controlled by

Brad. The court described Brad as the de facto trustee who controlled all activities. It

found that Brad was aware of the transfer of the LPL account in July of 2010, because he

confronted Cleves about it in the recorded phone conversation on July 13, 2010. The

court determined that it was “inconceivable” that Bonner did not know about the transfer,

but even if she wasn’t aware, she should have been. The court reasoned that before

Spinazze transferred the funds from the LPL account to Cleves’s trust, those funds had

been used to pay the premiums on the Voya policy. While Bonner may not have received

15. an accounting of the trust, she knew or should have known that those life insurance

premiums were being paid by another source because there remained no liquidity in the

Independence Trust. And, in fact, Bonner executed revolving credit notes on July 1,

2010, and November 4, 2011, to pay the premiums because the funds had been removed

from the Independence Trust. Thus, it was clear that Bonner and Brad were aware of the

transfer at least as of the time these notes were executed. Accordingly, the court held,

“Bonner’s claims relative to the transfer of [the LPL] accounts are time barred pursuant

to the statute of limitations of R.C. 2305.09.”

{¶ 31} The court also dismissed Bonner’s claims relating to the TDC voting stock.

As alleged by Cleves, the court found that in the 2014 federal case, Brad argued that the

TDC stock had been unlawfully removed from the Independence Trust, and he sought

return of those shares. The trial court held that the federal case and the present case

involved the same parties. It reached this conclusion based on Bonner’s testimony that it

was Brad’s idea to bring the claims in this case and Bonner was not sure why she was

suing Cleves. The court found that Brad was the de facto trustee and was in privity with

Bonner for purposes of the TDC share claim. It found that the federal case was dismissed

with prejudice and is a final, valid decision on the merits by a court of competent

jurisdiction, therefore, the claim cannot be refiled, and res judicata applies to the TDC

voting stock claims. Accordingly, the court held, “Bonner’s claims herein regarding the

transfer of TDC shares out of the Independence Trust are hereby dismissed.”

16. {¶ 32} Finally, the trial court found that Cleves was not the trust advisor of the

Independence Trust and did not effectuate the transfers complained of—Spinazze made

the transfers with the consent of both Brad and Cleves. It concluded that the claims

against Cleves as the trust advisor to the Independence Trust were, therefore, “improper

and invalid.” The court also found that the transfers of the LPL account and the TDC

voting stock were made with the “full knowledge and consent of the beneficiaries.”

{¶ 33} Bonner appealed both the April 25, 2016 summary-judgment decision and

the August 5, 2020 judgment. She assigns the following errors for our review:

ASSIGNMENT OF ERROR NO. 1:

The trial court committed error by granting Appellee Spinazze’s

Motion for Summary Judgment.

ASSIGNMENT OF ERROR NO. 2:

The trial court committed error by holding the Plaintiff/Appellant’s

claims were time barred.

ASSIGNMENT OF ERROR NO. 3:

The trial court committed error by holding the Plaintiff/Appellant’s

claims were subject to res judicata as they related to Cleves Delp.

II. Standard of Review

{¶ 34} Appellate review of a summary judgment is de novo, Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), employing the same

standard as trial courts. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129,

17. 572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is

demonstrated:

(1) that there is no genuine issue as to any material fact; (2) that the

moving party is entitled to judgment as a matter of law; and (3) that

reasonable minds can come to but one conclusion, and that conclusion is

adverse to the party against whom the motion for summary judgment is

made, who is entitled to have the evidence construed most strongly in his

favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375

N.E.2d 46 (1978), Civ.R. 56(C).

{¶ 35} When seeking summary judgment, a party must specifically delineate the

basis upon which the motion is brought, Mitseff v. Wheeler, 38 Ohio St.3d 112, 526

N.E.2d 798 (1988), syllabus, and identify those portions of the record that demonstrate

the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293,

662 N.E.2d 264 (1996). When a properly supported motion for summary judgment is

made, an adverse party may not rest on mere allegations or denials in the pleadings, but

must respond with specific facts showing that there is a genuine issue of material fact.

Civ.R. 56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). A

“material” fact is one which would affect the outcome of the suit under the applicable

substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 304, 733

N.E.2d 1186 (6th Dist.1999); Needham v. Provident Bank, 110 Ohio App.3d 817, 826,

18. 675 N.E.2d 514 (8th Dist.1996), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248, 106 S.Ct. 2505, 91 L.Ed.2d 201 (1986).

III. Law and Analysis

{¶ 36} In her first assignment of error, Bonner argues that the trial court erred in

granting summary judgment to Spinazze on April 25, 2016.2 In her second and third

assignments of error, Bonner argues that the trial court erred in its August 5, 2020

judgment when it concluded that her claims against Cleves were barred as untimely and

subject to the doctrine of res judicata.

{¶ 37} We begin by addressing the trial court’s August 5, 2020 judgment in favor

of Cleves—Bonner’s second and third assignments of error. We then turn to its April 25,

2016 judgment in favor of Spinazze.

A. The August 5, 2020 Judgment

{¶ 38} Bonner’s second and third assignment of error challenge the trial court’s

August 5, 2016 judgment, rendered after trial. “In an appeal from a civil bench trial, we

generally review the trial court’s judgment under a manifest-weight standard

of review.” Mike McGarry & Sons, Inc. v. Construction Resources One, LLC, 2018-

Ohio-528, 107 N.E.3d 91, ¶ 90 (6th Dist.), citing United States Fire Ins. v. Am. Bonding

2 Bonner refers to the judgment as having been issued March 25, 2016. The court amended its judgment on April 25, 2016, to render it immediately final and appealable. Spinazze argued that Bonner’s appeal of this decision was untimely because it was not filed within 30 days of April 25, 2016. In a decision and judgment dated January 7, 2021, we found that the clerk never completed service of the April 25, 2016 judgment, therefore, under App.R. 4(A)(3), the time for filing an appeal from this judgment never began to run. Bonner v. Delp, 6th Dist. Lucas No. L-20-1147 (Jan. 7, 2021).

19. Co., 1st Dist. Hamilton Nos. C-160307 & C-160317, 2016-Ohio-7968, ¶ 16-17. “We

weigh the evidence and all reasonable inferences, consider the credibility of the

witnesses, and determine whether in resolving conflicts in the evidence, the trial court

clearly lost its way and created such a manifest miscarriage of justice that its judgment

must be reversed and a new trial ordered.” Id., citing Eastley v. Volkman, 132 Ohio St.

3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20. “Where, however, the trial court’s

judgment is based upon a question of law, we review the trial court’s determination of

that issue de novo.” Id., citing Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St. 3d

352, 2008-Ohio-938, 884 N.E.2d 12, ¶ 34.

1. Statute of Limitations

{¶ 39} In her second assignment of error, Bonner argues that the trial court erred

when it dismissed as untimely her claims against Cleves. She challenges the trial court’s

decision imputing Brad’s knowledge to Bonner, arguing that Ohio does not recognize the

concept of a “de facto trustee.” She insists that Bonner was the actual trustee, Brad’s

knowledge could not properly be imputed to her, and the evidence demonstrates that

Bonner did not become aware of the disputed transactions until February 9, 2012, when

she received an accounting. Bonner also contends that there was no reason she should

have known of the transfers given that her requests for an accounting were ignored and

she did not know what assets were in the trust before she became trustee. She denies that

Brad’s payment of the Voya policy premiums should have alerted her to the fact that

transfers had been made from the trust.

20. {¶ 40} Notably, Bonner does not challenge the trial court’s determination that

Cleves was not the trust advisor and did not effectuate the transfers complained of here.

Accordingly, Bonner’s claims for breach of fiduciary duty, breach of trust, breach of

contract, and civil conversion (premised on Cleves’s position as trust advisor) are not at

issue in this appeal.

{¶ 41} Cleves responds that Bonner’s fraud-related claims are time-barred under

R.C. 2305.09 and are not subject to the “discovery rule” because there was no evidence

of fraud and the trustee and beneficiaries knew of and consented to the transactions.

Cleves also maintains that Bonner is chargeable with Brad’s knowledge because she

allowed him to control the trust. And, he claims, even if Bonner did not know about the

transactions, she should have known given that she took several actions as trustee

throughout 2010 and early 2011.

{¶ 42} Under R.C. 2305.09(C), an action for fraud “shall be brought within four

years.” The transactions at issue here occurred before February 22, 2010 (transfer of the

TDC voting stock) and February 26, 2010 (transfer of the LPL account). Ordinarily, this

would mean that the statute of limitations would begin to run on these dates. But Bonner

claims that she did not discover the transactions until much later—2012, or perhaps even

2014.

{¶ 43} R.C. 2305.09 provides that an action for fraud does not accrue “until the

fraud is discovered.” This is known as “the discovery rule.” Ohio courts have explained

that under the discovery rule, where there has been a claim of fraud, the “cause of action

21. accrues, and the limitations period begins to run, when the plaintiff discovers or, through

the exercise of reasonable diligence, should have discovered the fraud.” Fordyce v.

Hattan, 2019-Ohio-3199, 141 N.E.3d 574, ¶ 27 (2d Dist.). In Cundall v. U.S. Bank, 122

Ohio St.3d 188, 2009-Ohio-2523, 909 N.E.2d 1244, ¶ 30, the Ohio Supreme Court

explained that this standard does not require the victim to possess “‘concrete and detailed

knowledge’” of the alleged fraud; “‘rather, the standard requires only facts sufficient to

alert a reasonable person of the possibility of fraud.’” Id., quoting Palm Beach Co. v.

Dun & Bradstreet, Inc., 106 Ohio App.3d 167, 171, 665 N.E.2d 718 (1st Dist.1995).

Moreover, “‘constructive knowledge of facts, rather than actual knowledge of their legal

significance, is enough to start the statute of limitations running under the discovery

rule.’” (Emphasis in original.) Id., quoting Flowers v. Walker, 63 Ohio St.3d 546, 549,

589 N.E.2d 1284 (1992).

{¶ 44} The trial court concluded that Brad consented to the transactions that

Bonner now challenges, therefore, there was no fraud. This would mean that the

discovery rule does not apply. The court also concluded that Brad was the de facto

trustee, implying that his knowledge is imputable to Bonner. But we need not review

either of these conclusions because we agree with the trial court that even if the discovery

rule applies and even if Bonner is not charged with Brad’s knowledge, Bonner herself

22. knew or should have known no later than July 1, 2010, that the LPL account had been

transferred out of the Independence Trust.3

{¶ 45} After listening to the evidence and making credibility determinations, the

trial court found that it was “inconceivable” and “simply not plausible” that Bonner was

unaware that the transfer of the LPL account occurred. This was in large part based on

the fact that (1) the trust lacked the liquidity to pay the Voya premiums, necessitating that

they be paid from another source, and (2) Bonner executed revolving credit notes—

including one on July 1, 2010—and testified at trial that she did so for the purpose of

making premium payments on the Voya Policy.

{¶ 46} This court has recognized that “[i]nformation sufficient to alert a

reasonable person to the possibility of wrongdoing gives rise to a party’s duty to inquire

into the matter with due diligence. Once sufficient indicia of fraud are shown, a party

cannot rely on its unawareness * * * to lull it into a false security to toll the statute.”

(Citations omitted.) FirstMerit Bank, N.A. v. Burdine, 6th Dist. Ottawa No. OT-13-008,

2014-Ohio-1670, ¶ 36, citing Residential Funding Co., LLC, v. Thorne, 6th Dist. Lucas

No. L-09-1324, 2010-Ohio-4271, ¶ 56.

{¶ 47} Here, even if Bonner did not know of the transfer of the LPL account on

February 23, 2010—the date she was appointed trustee—she borrowed $400,000 from

Brad on behalf of the Independence Trust on July 1, 2010, and executed a revolving

3 We do note that with respect to the TDC voting stock, Cleves offered a written consent for transfer of shares, executed by Brad. Brad never adequately explained why this consent is not effective.

23. credit note. It was incumbent on her as trustee to understand why she needed to borrow

this money. Access to this information could have been obtained easily enough given

that Brad was receiving the LPL account statements at his home address, it was Brad who

was lending the money to the trust, and Brad was directing her every decision respecting

the trust—including with respect to the need for the trust to borrow money. All these

facts were sufficient to alert Bonner to the possibility of wrongdoing and triggered a duty

to inquire into the matter with due diligence. This means that the statute of limitations

began running, at the latest, on July 1, 2010—more than four years before Bonner filed

her complaint. Accordingly, we find that the trial court did not lose its way when it

concluded that Bonner knew or should have known that the LPL account had been

transferred out of the Independence Trust, and her claims relating to this transfer were

time-barred.

{¶ 48} Accordingly, we find Bonner’s second assignment of error is not well-

taken.

2. Res Judicata

{¶ 49} In her third assignment of error, Bonner argues that the trial court erred

when it concluded that her claims against Cleves were barred by res judicata. While she

acknowledges that the federal decision was a decision on the merits, Bonner argues that

res judicata does not bar her claims because (1) the parties in the federal case and the

probate case were not the same; (2) the action she brought in the probate court (“deal[ing]

with the administration of a trust”) could not have been brought in the federal case

24. (“request[ing] the court to declare that Brad was still an owner of The Delp Company”);

and (3) the state and federal cases did not arise from the same transaction or occurrence.

{¶ 50} Cleves responds that res judicata applies to a second action involving the

same parties “or their privies,” and Ohio courts take a broad approach in determining

privity for res judicata purposes. He argues that there is privity between Bonner and Brad

because (1) “a trustee is in privity with the trust and the beneficiaries of the trust for

purposes of establishing res judicata”; (2) Brad’s control over Bonner and Bonner’s

reliance on Brad in bringing the action against Cleves demonstrates that Brad and Bonner

are “close enough” for res judicata purposes; and (3) Brad and Bonner share a mutuality

of interest and identity of desired result as it concerns the TDC voting stock.

{¶ 51} Cleves insists that Bonner’s claims could have been brought in federal

court because they were not “premised upon the administration of a trust.” Rather, he

argues, Bonner brought claims against him as a third-party to the Independence Trust,

and both Brad and Bonner alleged the wrongful removal of the TDC voting stock from

the Independence Trust.

{¶ 52} Finally, Cleves contends that “transaction” or “occurrence” is interpreted

broadly for res judicata purposes. He maintains that Bonner here seeks the same relief

that Brad sought in the federal suit—the return to the Independence Trust of the TDC

voting stock and related proceeds. He insists that the witnesses and evidence would have

been the same in both actions. Cleves claims that to allow Bonner to procure the same

relief sought by Brad in the federal suit would circumvent the sanction handed down by

25. the trial judge in Bradley J. Delp Revocable Tr., N.D.Ohio No. 3:14 CV 591, 2015 WL

9592531.

{¶ 53} “Under the doctrine of res judicata, [a] valid, final judgment rendered upon

the merits bars all subsequent actions based upon any claim arising out of the transaction

or occurrence that was the subject matter of the previous action.” (Internal citations and

quotations omitted.) Hughes v. Calabrese, 95 Ohio St.3d 334, 2002-Ohio-2217, 767

N.E.2d 725, ¶ 12. An action will be barred by res judicata where a court finds the

following four factors: “(1) a prior final, valid decision on the merits by a court of

competent jurisdiction; (2) a second action involving the same parties, or their privies, as

the first; (3) a second action raising claims that were or could have been litigated in the

first action; and (4) a second action arising out of the transaction or occurrence that was

the subject matter of the previous action.” (Citations omitted.) Portage Cty. Bd. of

Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478, ¶ 84.

{¶ 54} Bonner does not dispute that the federal decision is a final, valid decision

on the merits by a court of competent jurisdiction. Rather, she disputes the second, third,

and fourth factors. We discuss each of these factors below.

a. The Same Parties

{¶ 55} To invoke the doctrine of res judicata, “one of the requirements is that the

parties to the subsequent action must be identical to or in privity with those in the former

action.” Kirkhart v. Keiper, 101 Ohio St.3d 377, 2004-Ohio-1496, 805 N.E.2d 1089, ¶ 8,

citing Johnson’s Island, Inc. v. Danbury Twp. Bd. of Trustees, 69 Ohio St.2d 241, 243,

26. 431 N.E.2d 672 (1982). What constitutes privity is “somewhat amorphous,” however

Ohio courts apply a broad definition in determining whether the relationship between the

parties is close enough to invoke the doctrine. Kirkhart at ¶ 8; Brown v. Dayton, 89 Ohio

St.3d 245, 248, 730 N.E.2d 958 (2000). “‘[A] mutuality of interest, including an identity

of desired result,’ may create privity.” Id.

{¶ 56} Here, the mutuality of interest and identity of desired result are clear.

Bonner filed the present action at Brad’s direction. She did not investigate the claims on

her own and was not even sure why she was suing. She filed suit at Brad’s insistence and

deferred to him entirely. What’s more, Bonner is trustee of the Independence Trust and

Brad is one of its beneficiaries. Ohio courts have recognized that “[a] trustee is in privity

with the trust and the beneficiaries of the trust for purposes of establishing res

judicata.” Jarvis v. Wells Fargo Bank, 7th Dist. Columbiana No. 09 CO 6, 2010-Ohio-

3283, ¶ 35, citing Forney v. Climbing Higher Enterprises, Inc., 158 Ohio App.3d 338,

2004-Ohio-4444, 815 N.E.2d 722, ¶ 21-22 (9th Dist.).

{¶ 57} Bonner maintains that “it is illogical to assert that privity applies to a

trustee in actions taken by individual beneficiaries who owe no duty to the trustee or

other beneficiaries.” Perhaps in some cases, her argument would have merit and privity

would not be found. But here, Bonner conceded that Brad has made all the decisions

relating to the trust and has directed all of her activity, including the decision to file the

present lawsuit. Certainly, under the circumstances of this case, Bonner and Brad are in

privity.

27. {¶ 58} We, therefore, find that the second action here involved the same parties as

the federal case for purposes of establishing res judicata.

b. Claims Were or Could Have Been Litigated in the First Action

{¶ 59} Bonner argues that her claims could not have been brought in federal court

because they concern the administration of a trust. She claims that state court was the

only venue to bring her claims.

{¶ 60} Cleves insists that Bonner’s claims against him were not premised on the

administration of a trust—they were basic claims for breach of fiduciary duty, fraud,

promissory estoppel, conversion, and conspiracy. He maintains that both actions were

premised on the allegedly unlawful removal of the TDC voting stock from the

Independence Trust, and he emphasizes that Brad did assert claims for breach of

fiduciary duty and equitable relief in that action and could have asserted the additional

claims that Bonner asserted here.

{¶ 61} Brad alleged in the federal complaint that Cleves and others “caused the

assets of the Delp Independent Trust, including The Delp Company shares, to be

conveyed to Cleves R. Delp, his trust, and/or one or more other defendants.” Count

Three of his complaint—captioned “Equitable Relief”—alleged that “equity requires the

Court to decree that * * * the 2% of The Delp Company shares formerly held by the Delp

Independence Trust must be returned to said trust * * *.” In his prayer for relief, Brad

sought, inter alia, “the restoration of the assets of The Delp Independence Trust to said

trust.”

28. {¶ 62} Bonner cites R.C. 5815.28 for her position that state court was the only

venue where she could pursue her claims relating to the transfer of the TDC voting stock.

In fact, R.C. 5815.28 addresses trusts for supplemental services for disabled individuals.

Presumably, Bonner cited this statute in error. Aside from this mistaken reference,

Bonner cites no other authority precluding federal-court jurisdiction over the various

claims asserted against Cleves in the present action.

{¶ 63} Given the trial court’s findings that Spinazze was responsible for

administering the trust, and TDC—not Cleves—was the trust advisor, the Ohio Trust

Code is inapplicable to the claims Bonner asserted against Cleves relating to the transfer

of the TDC stock. Bonner has cited no applicable authority that would have precluded

Brad from asserting additional claims against Cleves in federal court.

{¶ 64} We, therefore, find that Bonner’s claims against Cleves could have been

litigated in the first action.

c. Arising from the Same Transaction or Occurrence

{¶ 65} Bonner argues that the present case and the federal case do not involve the

same transaction or occurrence. She claims that in the federal action, Brad asked the

court to declare that he remained an owner of TDC, whereas the present case involves the

administration of a trust. Cleves responds that the federal lawsuit was much more

expansive than a mere declaratory judgment action. He maintains that Brad sought the

same relief that Bonner seeks here—return of the voting stock to the Independence

29. Trust—and if the federal action had not been dismissed with prejudice, the witnesses and

evidence would have been identical.

{¶ 66} In Highfield v. Pietrykowski, 6th Dist. Ottawa No. OT-16-008, 2016-Ohio-

5695, ¶ 15, we held that res judicata barred appellant’s second suit where both lawsuits

arose out of the same transaction—“the accounting services that appellant provided by

preparing tax returns for appellees, and the compensation that appellees allegedly owed

appellant for his services.” We concluded that “[t]he only difference between appellant’s

first and second complaints was the theory upon which he claimed he was entitled to

relief.” Id.

{¶ 67} Here, both this suit and the federal suit challenge the same transaction—the

transfer of the TDC voting stock from the Independence Trust to Cleves’s trust. Both

suits sought to have the voting stock returned to the Independence Trust. And both suits

would have utilized the same evidence and witnesses. While the specific claims against

Cleves may not have been identical in both suits, the same relief was requested in both

cases. We find that the present case and the federal case arose out of the same transaction

or occurrence and Bonner’s claims against Cleves relating to the transfer of the voting

stock are barred by the doctrine of res judicata.

{¶ 68} We find Bonner’s third assignment of error is not well-taken.

B. The April 25, 2016 Judgment

{¶ 69} In its April 25, 2016 judgment, the trial court concluded that Bonner’s

claims against Spinazze arose under Ohio’s Trust Code and are barred by the limitations

30. period set forth in R.C. 5810.05(C)(1), which provides, in relevant part, that a judicial

proceeding by a beneficiary against a trustee for breach of trust must be commenced

within four years “after * * * the removal, resignation, or death of the trustee * * *.” The

trial court concluded that Bonner’s claims are time barred under R.C. 5810.05(C)(1)

because they were filed more than four years after Spinazze resigned as trustee on

February 22, 2010.

{¶ 70} In her first assignment of error, Bonner argues that summary judgment in

favor of Spinazze under R.C. 5810.05(C)(1) could be granted only if Spinazze actually

resigned as trustee and ceased all trust-related activity in February of 2010. Bonner

argues that there are questions of fact regarding whether Spinazze ceased acting as trustee

as of February 22, 2010. Bonner also argues that Spinazze failed to deliver all of the trust

property to her in 2010—which, according to Bonner, means that Spinazze continued to

have the “duties” and “powers” of a trustee beyond his resignation date under R.C.

5807.07(A), so the four-year period of R.C. 5810.05(C)(1) should not have been

triggered as of that date. We will address both arguments in turn.

{¶ 71} First, Bonner maintains that there are factual disputes concerning whether

Spinazze ceased acting as trustee on February 22, 2010, as he has asserted. Specifically,

she claims that on July 23, 2010, Spinazze purported to hand-deliver a letter to Brad

explaining that while the Independence Trust called for the equal division of assets upon

Evelyn’s death, the decision had been made not to split the trust. (Bonner insists that this

letter was not received by Brad until February of 2011, Bonner was not copied on it, and

31. the letter was back-dated.) Bonner also claims that Spinazze, on August 23, 2010,

emailed Cleves and Brad a division of trust memorandum arranging for the trust to be

evenly divided.

{¶ 72} In response, Spinazze argues that he affirmatively proved that he resigned

as trustee effective February 22, 2010, and Bonner conceded as much in her amended

complaint. He denies that the emails referenced by Bonner are evidence of his continued

administration of the trust, but he contends that even if they are, they do not constitute

evidence that he continued to act as trustee into February of 2011—which would be

necessary to show that Bonner’s complaint, filed in February of 2015, was within the

applicable four-year statute of limitations.

{¶ 73} The trial court observed that Bonner admitted in her answer to Spinazze’s

amended counterclaim that she was appointed trustee on or about February 22, 2010.

Because there was no allegation that Spinazze and Bonner had at any time served as co-

trustees, the trial court concluded that Spinazze lacked authority to act as trustee after

February 22, 2010. Upon de novo review, we agree with the trial court’s conclusions.

There is no question that Spinazze did, in fact, resign as trustee as of February 22, 2010,

and the evidence submitted by Bonner does not create a genuine dispute of material fact

on that issue.

{¶ 74} But Bonner also argues that—despite Spinazze’s resignation as trustee—he

failed to deliver the trust property to her, did not provide an accounting, did not tell her

about the transfers, and failed to communicate with her at all in 2010. She relies upon

32. R.C. 5807.07(A)—which provides that “[u]nless a cotrustee remains in office or the court

otherwise orders, and until the trust property is delivered to a successor trustee or other

person entitled to it, a trustee who has resigned or been removed has the duties of a

trustee and the powers necessary to protect the trust property” (emphasis added)—to

argue that her claims are timely because Spinazze continued to have the duties and

powers of trustee beyond February 22, 2010.

{¶ 75} In the trial court, Spinazze did not specifically address Bonner’s allegation

that he “did not deliver the Trust property” in 2010. Rather, he argued (and the trial court

found) that the applicable four-year statute of limitations under R.C. 5810.05(C) was

triggered by his resignation. Neither the trial court nor Spinazze specifically addressed

Bonner’s claim that Spinazze continued to serve as trustee under R.C. 5807.07(A)

because he failed to deliver the trust property to her. And, on appeal, Spinazze does not

specifically respond to Bonner’s argument relating to his supposed failure to deliver

“trust property.”

{¶ 76} But Bonner cites no authority indicating that R.C. 5807.07(A) affects a

trustee’s resignation date for purposes of commencing the limitations period under R.C.

5810.05(C)(1). On its face, R.C. 5810.05(C) states that an action by a beneficiary against

a trustee “must be commenced within four years” after the first of several events to

occur—one of which is the “removal, resignation, or death of the trustee” (emphasis

added). There is no exception for instances in which, under R.C. 5807.07(A), a trustee

33. “has resigned or been removed” but nonetheless retains the “powers” and “duties” of a

trustee because the trust property has not been delivered.

{¶ 77} Regardless, even if we assume that R.C. 5807.07(A) creates an exception to

the explicit pronouncement of R.C. 5810.05(C)(1) that an action “must be commenced

within four years” after the “removal, resignation, or death of the trustee,” we must still

affirm the trial court’s grant of summary judgment.

{¶ 78} In response to Spinazze’s motion for summary judgment, Bonner submitted

an affidavit in which she stated that “[s]ometime in the fall of 2011, [she] became the

successor trustee of the Independence Trust,” “Spinazze did not deliver the Trust

property to [her] in 2010,” and “[she] did not sign any documentation in 2010 regarding

the Independence Trust, including an acceptance of trusteeship.”4 In addition, Bonner

submitted an affidavit from Brad, in which he averred that he was “not aware of any

actions [Bonner] took as trustee before the fall of 2011.”

{¶ 79} At trial on Bonner’s claims against Cleves, these averments were proven to

be false. Contrary to Bonner and Brad’s representations, evidence admitted at the trial

showed that Bonner performed the following trust-related tasks in 2010:

4 Bonner does not specify what trust property Spinazze failed to deliver. There is nothing in the record to indicate that there was tangible, personal property owned by the trust. The only property the parties reference is the TDC voting stock and the LPL account (which Bonner claimed had been transferred out of the trust) and the Voya policy. Accordingly, when Bonner claims that Spinazze did not transfer the trust property to her, she must mean that Spinazze failed to deliver the means of obtaining access to policies and accounts.

34.  Bonner signed an acceptance of the trusteeship dated January 23,

2010;

 Change-of-trustee paperwork was submitted to Voya on May 4,

2010, identifying Bonner as the trustee, and Bonner’s signed acceptance of

trusteeship was attached to this paperwork;

 Bonner signed paperwork as trustee for the Independence Trust,

opening an account with Charles Schwab on May 6, 2010; and

 Bonner executed a promissory note on July 1, 2010, as trustee for

the Independence Trust, and borrowed $400,000 from Brad, which was

then used to make premium payments on the Voya policy.

{¶ 80} This evidence was not before the trial court when it granted Spinazze’s

motion for summary judgment. Generally, when reviewing a ruling on a summary-

judgment motion, an appellate court must restrict its consideration to the evidentiary

materials that were properly before the court when it ruled on the motion. Guernsey

Bank v. Milano Sports Ents. L.L.C., 177 Ohio App.3d 314, 2008-Ohio-2420, 894 N.E.2d

715, ¶ 30 (10th Dist.). However, our de novo review of a summary-judgment motion

permits us to affirm a trial court judgment even if we find that the trial court reached the

correct conclusion albeit for different reasons. Singer v. Fairborn, 73 Ohio App.3d 809,

814, 598 N.E.2d 806 (2d Dist.1991). Moreover, our ultimate responsibility as an

intermediate appellate court is to correct errors. We do not believe that we are required

to ignore evidence—evidence admitted within the same proceedings that proves

35. summary-judgment evidence to be false—merely because it became part of the record

after the summary-judgment decision. Substantial justice would not be served if we were

to ignore the evidence presented at trial that demonstrated the falsity of crucial averments

in Bonner’s affidavits.

{¶ 81} In Continental Ins. Co. v. Whittington, 71 Ohio St.3d 150, 642 N.E.2d 615

(1994), syllabus, the Ohio Supreme Court held that “[a]ny error by a trial court in

denying a motion for summary judgment is rendered moot or harmless if a subsequent

trial on the same issues raised in the motion demonstrates that there were genuine issues

of material fact supporting a judgment in favor of the party against whom the motion was

made.” The situation here presents the opposite issue—the evidence admitted at trial

demonstrated that there were not genuine issues of material fact precluding summary-

judgment. Nevertheless, we see no reason why the principal enunciated in Whittington

would not apply here.

{¶ 82} In Whittington, an employee (“driver-employee”) was involved in a single-

vehicle accident while driving his employer’s vehicle for his own personal use. The

employer’s insurance policy would provide coverage if the driver-employee was using

the vehicle with his employer’s permission. The insurer filed a declaratory judgment

action seeking a declaration that it owed no duty to defend or indemnify because the

driver-employee did not have his employer’s permission to use the vehicle for personal

use.

36. {¶ 83} During discovery, the employer produced no written policy prohibiting

personal use of company vehicles, but he testified that he gave the driver-employee

express permission to use the company vehicle to drive several employees home from

work, take the vehicle home and park it in front of his house overnight, and pick up the

employees the next morning to bring them to work. The driver-employee drove the

employees to their homes, drove home, and parked the vehicle, but later—contrary to his

employer’s instructions—he drove it to a friend’s house, then took the vehicle out with a

number of passengers, including two other men who had worked for the company

(“passenger-employees”). This was when the accident occurred.

{¶ 84} The driver-employee admitted at his deposition that his personal use of the

van at the time of the accident exceeded the scope of the permission that had been

granted to him. He testified that company vehicles were ordinarily not permitted to be

used by employees for personal pursuits. But the passenger-employees (who presumably

sought to recover under the insurance policy) testified that employees regularly used

company vehicles for personal purposes.

{¶ 85} The insurer moved for summary judgment, arguing that the driver-

employee had admittedly exceeded the scope of permission granted to him to use the

vehicle. The passenger-employees opposed the motion, urging that there were questions

of fact concerning whether the driver-employee had implied permission to use the vehicle

for personal purposes at the time of the accident.

37. {¶ 86} The trial court denied the insurer’s motion for summary judgment, and

found that there were genuine issues of material fact to be determined regarding the scope

of the permitted use of the vehicle. The matter proceeded to a jury trial.

{¶ 87} At trial, the driver-employee testified that he had lied at his deposition

when he claimed that the employer had not authorized personal use of company vehicles.

To the contrary, he testified that company vehicles were, as a matter of custom and

practice, frequently used by employees for personal purposes, and he relied on this

custom and practice when he used the vehicle for personal reasons on the night of the

accident. He claimed that he had lied at his deposition because he was afraid of losing

his job.

{¶ 88} The jury ultimately concluded that the driver-employee did not have

express permission to use the company vehicle for personal purposes, but did have

implied permission to do so. The trial court entered judgment consistent with the jury’s

findings and held that the driver-employee was an “insured” and coverage for the

accident was available. The insurer appealed, and argued among other things, that the

trial court erred in denying its motion for summary judgment.

{¶ 89} The court of appeals held that “the question whether a trial court errs in

granting or denying a motion for summary judgment hinges upon a review of the

evidence that was before the trial court at the time the decision was made.” Id. at 155.

“[R]eviewing the record as it existed at the time the trial court denied the motion,” the

appellate court concluded that the deposition testimony demonstrated that the driver-

38. employee had no permission, express or implied, to use the vehicle for personal purposes.

Id. at 154. It reversed the judgment of the trial court and ordered that summary judgment

be entered in favor of the insurer.

{¶ 90} The Ohio Supreme Court reversed the decision of the court of appeals. It

held that “even if the trial court erred in denying [the insurer’s] motion for summary

judgment, that error did not rise to the level of reversible error.” Id. at 155. It found that

the court of appeals failed to consider Civ.R. 61, which states:

No error in either the admission or the exclusion of evidence and no

error or defect in any ruling or order or in anything done or omitted by the

court or by any of the parties is ground for granting a new trial or for setting

aside a verdict or for vacating, modifying or otherwise disturbing a

judgment or order, unless refusal to take such action appears to the court

inconsistent with substantial justice. The court at every stage of the

proceeding must disregard any error or defect in the proceeding which does

not affect the substantial rights of the parties. (Emphasis in original.)

{¶ 91} The court found that “substantial justice was done at the trial court level

following the trial on the merits” because the trial evidence revealed the existence of

genuine issues of material fact. Id. It explained: “While the record before the trial court

at the time it denied the motion may not have reflected that situation, the facts as we

now know them” showed that the insurer was liable to provide coverage. Id. at 156.

“Any error in the denial of the motion was rendered moot or harmless since a full and

39. complete development of the facts at trial * * * showed that appellants were entitled to

judgment.” Id. The court found that substantial justice would not be served by setting

aside the jury’s findings.

{¶ 92} Here, too, even if R.C. 5807.07(A) tolls the limitations period under R.C.

5810.05(C)(1), we find that substantial justice would not be served by ignoring the

evidence admitted at trial, which demonstrated that Bonner and Brad were untruthful in

their summary-judgment affidavits. That evidence showed that the trust property was

delivered to Bonner and she did perform duties as trustee of the Independence Trust in

2010, rendering untimely her claims brought on February 20, 2015.

{¶ 93} Finally, Bonner argues in her reply that the statute of limitations set forth in

R.C. 2305.09(C) —not R.C. 5810.05—applies to her fraud-based claims against

Spinazze. But even applying R.C. 2305.09(C), her claims would still be time-barred for

the reasons that her claims against Cleves are time-barred. Additionally, she argues that

her constructive trust claim is still viable on its own. But “[a] constructive trust is a

remedy, not a cause of action.” Graham v. City of Lakewood, No. 106094, 2018-Ohio-

1850, 113 N.E.3d 44, ¶ 58 (8th Dist.). If a cause of action seeking the imposition of a

constructive trust as a remedy is barred by a statute of limitation, the imposition of a

constructive trust is also barred. Cundall v. U.S. Bank, 122 Ohio St.3d 188, 2009-Ohio-

2523, 909 N.E.2d 1244, ¶ 40. Because Bonner’s other claims are time-barred, so is her

request for imposition of a constructive trust.

{¶ 94} We find Bonner’s first assignment of error is not well-taken.

40. IV. Conclusion

{¶ 95} Spinazze resigned as trustee on February 22, 2010, and Bonner became

successor trustee the next day. Any assertions that Bonner made indicating that trust

property was not delivered to her and that she did not act as trustee in 2010, were proven

to be false. Her claims against Spinazze were, therefore, barred as untimely under the

Ohio Trust Code and R.C. 2305.09. We find Bonner’s first assignment of error is not

well-taken.

{¶ 96} Bonner was or should have been aware of the transfer of the LPL account

more than four years before filing her complaint on February 20, 2015. Her claims were,

therefore, untimely under R.C. 2305.09. We find Bonner’s second assignment of error is

not well-taken.

{¶ 97} Res judicata barred Bonner from bringing claims against Cleves pertaining

to the transfer of the TDC voting stock because Brad could have brought those claims

against Cleves in Bradley J. Delp Revocable Tr., N.D.Ohio No. 3:14 CV 591. Bonner

and Brad were in privity, the claims could have been litigated in the first action, and the

claims arose out of the same transaction or occurrence. We find Bonner’s third

assignment of error is not well-taken.

{¶ 98} We affirm the April 25, 2016, and August 5, 2020 judgments of the Lucas

County Court of Common Pleas, Probate Division. Bonner is ordered to pay the costs of

this appeal under App.R. 24.

Judgment affirmed.

41. L-20-1147 Bonner, Trustee, ect. v. Delp, et al.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. _______________________________ JUDGE Christine E. Mayle, J. _______________________________ David A. D’Apolito, J. JUDGE CONCUR. _______________________________ JUDGE

Judge, David A. D’Apolito, Seventh District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

42.