[Cite as Guernsey Cty. Community Dev. Corp. v. Speedy, 2024-Ohio-1039.]
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
GUERNSEY COUNTY COMMUNITY : JUDGES: DEVELOPMENT CORPORATION : : Hon. John W. Wise, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. 23CA13 : DANIEL L. SPEEDY, ET AL. : : : Defendants-Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Guernsey County Court of Common Pleas, Case No. 16CV335
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: March 20, 2024
APPEARANCES:
For Plaintiff-Appellee: For Defendants-Appellants:
ERIK A. SCHRAMM, SR. BRADLEY N. JECKERING KYLE W. BICKFORD DALIA G. SAFADI HANLON, MCCORMICK, SCHRAMM, JECKERING & ASSOCIATES, LLC BICKFORD & SCHRAMM CO., L.P.A. 16 S. Main St. 46457 National Road West Mechanicsburg, OH 43044 St. Clairsville, OH 43950
For Plaintiff-Intervenor Ohio Attorney General:
THADDEUS A. TOWNSEND LANCE CROFFOOT-SUEDE OHIO ATTORNEY GENERAL 30 E. Broad St., 25th Floor Columbus, OH 43215 [Cite as Guernsey Cty. Community Dev. Corp. v. Speedy, 2024-Ohio-1039.]
Delaney, J.
{¶1} Defendants-Appellants Daniel L. Speedy, Dora Speedy, One Percent, LLC,
and Monster Management, LLC appeal from the April 21, 2023 order of the Guernsey
County Court of Common Pleas dismissing all remaining claims in the First Amended
Complaint with prejudice and granting partial summary judgment for Plaintiff-Appellee
Guernsey County Community Development Corporation (“GCCDC”).
FACTS AND PROCEDURAL HISTORY
{¶2} The following facts are adduced from the parties’ Civ.R. 56 evidence.
{¶3} Appellants Daniel and Dora Speedy are married. For ease of reading they
will be referred to as “Daniel” and “Dora.” At times, Daniel operated through a limited
liability company formed by Attorney David K. Schaffner, appellant Monster Management,
LLC (“Monster”). Schaffner also drafted and filed articles of organization for, e.g.,
Whispering Pines, LLC (“Whispering Pines”).
{¶4} Whispering Pines is an Ohio limited liability company; the members are
Schaffner, Daniel, and Christopher Bower.
{¶5} Daniel is the former executive director of the GCCDC; Schaffner served as
counsel for the GCCDC from 2010 until 2015. Bower is an engineer who provided
services to the GCCDC and was employed by Diversified Engineering. Schaffner
engaged Diversified Engineering to perform numerous projects for the GCCDC, including
surveying and mapping projects.
{¶6} Bower testified the purpose of Whispering Pines was to “steer” landowners
to lease their oil and gas rights with Patriot Land Company (“Patriot”), after which Patriot
would pay a “sales commission” to Whispering Pines and its members. Bower alleged [Cite as Guernsey Cty. Community Dev. Corp. v. Speedy, 2024-Ohio-1039.]
the members of Whispering Pines directed GCCDC acreage to Patriot to reap a windfall
through oil and gas leasing; the windfall included Patriot “flipping” and assigning leases
with GCCDC acreage to oil and gas operators such as Gulfport Energy Corporation. The
First Amended Complaint identified specific oil and gas assignments from the GCCDC
and Patriot to Whispering Pines, involving GCCDC real estate.
{¶7} Whispering Pines admitted receipt of consideration via self-dealing
transactions involving the GCCDC’s assets; appellee alleged the only reason for Daniel,
Schaffner, and Bower to “steer” GCCDC acreage to Patriot was to ensure their own
receipt of “sales commissions” when the leases were flipped to other operators.
{¶8} Appellee asserted Whispering Pines benefited from leasing landowners like
GCCDC to a low royalty and signing bonus to ensure greater commissions when the
leases were sold and assigned to Gulfport. GCCDC could have secured more favorable
lease terms by directly leasing with entities such as Gulfport Energy Corporation, Eclipse
Resources, or Antero Resources.
{¶9} Schaffner also formed Synergy, LLC with Daniel, Bower, Gerald Leister,
and Steve C. Allen.
{¶10} The following summary of the relevant case history of this complex litigation
is drawn in part from our opinion at Guernsey Cnty. Community Dev. Corp. v. Speedy,
5th Dist. Guernsey No. 22-CA-18, 2023-Ohio-1026, ¶ 4-13.
The complaint and GCCDC’s motion for partial summary judgment
{¶11} On February 2, 2018, GCCDC filed a multi-claim complaint against fifteen
defendants, including individuals, corporations, and government officers. The claims
asserted by GCCDC in its amended complaint are as follows: declaratory judgment (claim [Cite as Guernsey Cty. Community Dev. Corp. v. Speedy, 2024-Ohio-1039.]
one), civil conspiracy and RICO (claim two), breach of fiduciary duty, breach of contract,
and fraud (claim three), breach of fiduciary duty, self-dealing, conversion, fraud, and
negligence (claim four), and replevin (claim five).
{¶12} GCCDC broke the fourth claim into several broad claims that involved either
the transfer of over eleven million dollars through one of the defendant's IOLTA (trust
account), oil and gas leases and royalties, the purchase and misuse of personal property,
the fraudulent and improper conveyances of real property, or the purchase of annuities
with GCCDC funds.
{¶13} In the amended complaint's prayer for relief, GCCDC requested several
types of relief: a declaratory judgment, replevin, compensatory and punitive damages,
disgorgement of certain assets, and attorney fees. The prayer for compensatory and
punitive damages, disgorgement, and attorney fees were related to claims two, three, and
four.
{¶14} On March 2, 2018, appellants filed an answer and three counterclaims
against GCCDC, including a counterclaim for declaratory judgment related to a document
entitled “Consulting Period Release Agreement.”
{¶15} GCCDC reached settlement with ten defendants and dismissed eleven
defendants in the action.
{¶16} This left appellants Daniel Speedy, Dora Speedy, One Percent, LLC, and
Monster Management, LLC as the only defendants against whom GCCDC filed its motion
for partial summary judgment. Daniel Speedy and Monster Management, LLC were
defendants to all five claims of the amended complaint. Dora Speedy and One Percent,
LLC were defendants to only claims four and five of the amended complaint. [Cite as Guernsey Cty. Community Dev. Corp. v. Speedy, 2024-Ohio-1039.]
Additional procedural issues: withdrawal of Attorney Lundholm and motion for stay
{¶17} Attorney J. Kevin Lundholm represented appellants Daniel Speedy, One
Percent, LLC, and Monster Management, LLC from the inception of the litigation, and
eventually represented Dora Speedy as well. On March 9, 2022, Attorney Lundholm filed
a motion to withdraw as counsel, citing a “fundamental disagreement on the future action
to be taken in this litigation.”
{¶18} On March 15, 2022, the trial court granted Attorney Lundholm’s motion to
withdraw and ordered appellants to retain new counsel within ten days.
{¶19} On April 11, 2022, Daniel Speedy filed a motion for extension of time
pursuant to Civ.R. 56(F) requesting an extension of time “to depose at least 18 individuals,
and get affidavits from many others.”
{¶20} On April 13, 2022, Dora Speedy filed a motion for extension of time.
{¶21} The trial court extended Daniel and Dora’s time to retain new counsel to
April 25, 2022.
{¶22} GCCDC filed a memorandum in response noting no objection was raised to
an extension of time to respond to the motion for partial summary judgment. GCCDC did
object to an extension of any other scheduled dates.
{¶23} On May 6, 2022, intervening plaintiff Ohio Attorney General and appellant
Daniel Speedy filed an agreed motion for stay and for preliminary injunction to stay the
action pending the outcome of Daniel Speedy’s criminal case.1
1 On December 1, 2021, Daniel pled guilty in the U.S. District Court for the Southern
District of Ohio to the charge of filing a false tax return by failing to report over one million dollars in income for tax year 2014. [Cite as Guernsey Cty. Community Dev. Corp. v. Speedy, 2024-Ohio-1039.]
{¶24} On June 1, 2022, the trial court filed an Order granting the motion for
preliminary injunction and overruling the motion for stay. Relevant to issues in the instant
appeal arising from Attorney Lundholm’s withdrawal and appellants’ subsequent motions
for extension and the stay, the trial court’s Order states the following:
* * * *.
As to the Agreed Motion for Stay, this Court finds that
Defendant Daniel L. Speedy has been a party in the case at bar since
September 2016. Throughout the course of these proceedings, the
Defendant has failed to comply with discovery requests necessitating
a Motion to Compel filed April 17, 2017 and an Order granting the
same on May 23, 2017. Defendant Speedy has gifted substantial
real estate assets to his children during this case and after entering
a plea of guilty to a felony count of filing a false tax return in the
United States District Court on December 15, 2021.
This Court’s Scheduling Order, filed August 23, 2021,
established a Dispositive Motion deadline of March 19, 2022, and a
two (2) week Jury Trial commencing July 19, 2022. On November
29, 2021, the Scheduling Order was amended to add a Final Status
Conference on May 19, 2022 at 11:00 a.m.
On March 15, 2022, the Defendant’s attorney, J. Kevin
Lundholm, was granted permission to withdraw from this litigation
and the Defendant was ordered to secure new counsel by March 25,
2022, or be prepared to proceed unrepresented. No Notice of [Cite as Guernsey Cty. Community Dev. Corp. v. Speedy, 2024-Ohio-1039.]
Appearance was filed. On March 18, 2022, pursuant to the
Scheduling Order, Plaintiff[s] filed a Motion for Partial Summary
Judgment. Defendant Daniel Speedy filed a Motion for Extension of
Time To Respond on April 11, 2022. The Defendant’s Motion for
Extension set forth a desire to depose eighteen (18) individuals,
receive affidavits from many others and pursue numerous public
records requests. Apparently, none of this had been achieved
during the Defendant’s five and a half (5½) year involvement in this
case.
In light of the loss of Defendant’s Son, Defendant was granted
an additional thirty (30) days to secure new counsel, through April
25, 2022, and granted an extension from April 15, 2022 to May 19,
2022 to file a Response to Plaintiff’s Motion for Summary Judgment.
No Notice of Appearance was filed by new counsel.
On May 19, 2022, this matter came on for Final Status
Conference at 11:00 a.m. At 10:57 a.m. on May 19, 2022, Defendant
Daniel Speedy filed his Response to Plaintiff’s Motion for Partial
Summary Judgment, at the Common Pleas Clerk of Court’s Office,
on the second floor of the Guernsey County Courthouse. Defendant
Daniel Speedy failed to appear for the Final Status Conference, on
the third floor, in the Common Pleas Court at 11:00 a.m.
This Court finds that a stay of these proceedings would allow
the Defendant to further dissipate assets and would be detrimental [Cite as Guernsey Cty. Community Dev. Corp. v. Speedy, 2024-Ohio-1039.]
to any Plaintiff’s judgment by effecting the priority in time over any
future order obtained by the Federal Government. The parties’
Motion for Stay has established “no reason to delay an already too
much delayed case. There was ample time for [Defendant] to
conduct additional discovery if he chose and no efforts were sought
in that regard.” Chase Home Fin., LLC v. Dougherty, [10th Dist.
Franklin No. 12AP-546, 2013-Ohio-1464, ¶ 15].
Order, June 1, 2022, 2-3.
GCCDC’s motion for partial summary judgment
{¶25} On March 18, 2022, GCCDC appeared to move for partial summary
judgment only on claim two and parts of claims three and four. See Plaintiff's Motion for
Partial Summary Judgment at 3. GCCDC also asserted it was not moving for summary
judgment on “(1) the purchase and/or retention of equipment, (2) the purchase and early
withdrawal of annuities, and (3) the use of GCCDC assets for personal ventures.” Id. at
fn. 1.
{¶26} Later in the motion, GCCDC stated it was seeking summary judgment as
follows: “1.) Judgment as a matter of law as to the claims set forth in the Counterclaim;
2.) Judgment as a matter of law the Consulting Period Release Agreement is void and of
no force and effect (sic); 3.) Judgment as a matter of law as to the Speedy Defendants’
breach of fiduciary duty, conversion, breach of contract, civil RICO, and civil conspiracy;
and 4.) Damages as follows, against Defendants Daniel Speedy, Dora Speedy, Monster
Management, LLC, and One Percent, LLC, jointly and severally, in the total amount of
$1,031,733.40.” Id. at 31-32. [Cite as Guernsey Cty. Community Dev. Corp. v. Speedy, 2024-Ohio-1039.]
{¶27} GCCDC failed to include in its motion any reference to its claims regarding
negligence, fraud, self-dealing (counts three and four), and replevin (count five).
{¶28} The trial court adopted that section from GCCDC's motion nearly verbatim
in its June 1, 2022 order granting partial summary judgment. Accordingly, this entry left
parts of counts three and four and count five pending before the court. The trial court did
not certify there was no just cause for delay in its entry.
{¶29} On June 10, 2022, GCCDC filed a notice of dismissal without prejudice. On
June 13, 2022, the trial court memorialized GCCDC's dismissal without prejudice and
included in its entry there was no just cause for delay. On June 16, 2022, the Attorney
General, who was Plaintiff-Intervenor, filed a notice of dismissal without prejudice under
Civ. R. 41(A)(1)(a). On June 17, 2022, the trial court memorialized the Attorney General's
dismissal without prejudice and included in its entry there was no just cause for delay.
Appeal and remand
{¶30} On June 23, 2022, appellants filed a notice of appeal. Appellants assigned
three errors, and the matter was briefed by appellants and GCCDC. The issue of whether
this was a final appealable order was argued by the parties, and the parties argued the
case on the merits. Upon review, this Court found we did not have jurisdiction and
dismissed the appeal on March 28, 2023. Speedy, supra, 5th Dist. Guernsey No. 22-CA-
18, 2023-Ohio-1026, ¶ 23.
{¶31} Upon remand, the trial court issued a docket and journal entry on April 21,
2023, dismissing all remaining claims in Plaintiff’s First Amended Complaint with
prejudice pursuant to Civ.R. 41(A)(2). [Cite as Guernsey Cty. Community Dev. Corp. v. Speedy, 2024-Ohio-1039.]
{¶32} Appellants now appeal from the trial court’s entry of April 21, 2023, and its
decisions granting Attorney Lundholm’s motion to withdraw; denying appellants’ motion
for stay; granting appellee’s motion for partial summary judgment; and entering a
damages judgment against appellants.
{¶33} Appellants raise three assignments of error:
ASSIGNMENTS OF ERROR
{¶34} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY 1) PERMITTING
ATTORNEY LUNDHOLM’S WITHDRAWAL AS APPELLANTS’ COUNSEL FROM A SIX
(6) YEAR LONG COMPLEX LITIGATION CASE FOUR (4) DAYS BEFORE THE
DISPOSITIVE MOTION DEADLINE; AND 2) DENYING THE PRO SE APPELLANTS’
JOINT MOTION FOR STAY WITH APPELLEE STATE OF OHIO IN CONTRAVENTION
OF APPELLANT DANIEL SPEEDY’S CONSTITUTIONAL RIGHTS AND IN THE WAKE
OF THE UNEXPECTED DEATH OF APPELLANTS DANIEL SPEEDY AND DORA
SPEEDY’S SON.”
{¶35} “II. THE TRIAL COURT IMPROPERLY GRANTED APPELLEE GCCDC’S
MOTION FOR PARTIAL SUMMARY JUDGMENT.”
{¶36} “III. THE TRIAL COURT IMPROPERLY ENTERED A MILLION DOLLAR
JUDGMENT AGAINST APPELLANTS WITHOUT CONSIDERING THE APPLICABLE
LAW OR HOLDING A DAMAGES HEARING.” [Cite as Guernsey Cty. Community Dev. Corp. v. Speedy, 2024-Ohio-1039.]
ANALYSIS
I.
{¶37} Appellants’ first assignment of error alleges the trial court erred when it 1)
permitted Attorney Lundholm to withdraw, and 2) overruled their motion for stay. We
disagree.
{¶38} We review a trial court's decision on counsel’s motion to withdraw under an
abuse-of-discretion standard. State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, ¶
135; Wallick v. Lent, 5th Dist. Tuscarawas No. 2008 AP 05 0034, 2009-Ohio-1399, ¶ 46.
An abuse of discretion means more than an error of judgment; it implies that the trial
court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,
5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). When applying the abuse-of-discretion
standard, a reviewing court is precluded from simply substituting its own judgment for that
of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748
(1993).
{¶39} We also review the denial of a motion for stay of proceedings under an
abuse-of-discretion standard. State ex rel. Verhovec v. Mascio, 81 Ohio St.3d 334, 336,
691 N.E.2d 282 (1998), citations omitted.
{¶40} Appellants first argue the trial court abused its discretion in permitting
Attorney Lundholm to withdraw shortly before the dispositive motion deadline. We note
the trial court’s Order of April 18, 2022, refers back to the Order granting Lundholm’s
motion to withdraw, stating appellants were ordered to retain new counsel and said
counsel was ordered to file a notice of appearance within 10 days. Neither event
occurred. In the April 18 order, the trial court acknowledges appellants had not yet [Cite as Guernsey Cty. Community Dev. Corp. v. Speedy, 2024-Ohio-1039.]
obtained new counsel and therefore held GCCDC’s’ motion for partial summary judgment
in abeyance and extended the deadline to obtain new counsel until April 25, 2022.2 This
extension was due in part to the passing of appellants’ son. In light of the trial court’s
consideration of appellants’ plight, and the competing need to keep a long-pending case
moving, we find no abuse of discretion in the trial court’s scheduling of the April 25, 2022
deadline to retain new counsel. Had new counsel been obtained, they could have filed a
motion to extend the dispositive-motion deadline.
{¶41} Appellants further argue the trial court should have queried Attorney
Lundholm in accord with our decision in Tschudy v. Tschudy, 5th Dist. Stark No. CA-
7294, 1988 WL 17173, *1–2, in which we held that the trial court had a duty to enforce
the spirit of the professional rules of conduct requiring it to inquire into counsel's
motivation to withdraw, whether withdrawal would prejudice his client, and whether
counsel had taken reasonable steps to avoid foreseeable prejudice to the client. Id. at 3-
4. We found the trial court violated this duty, and remanded for further proceedings. Id. at
4. Tschudy was a child-custody case in which the attorney withdrew at the custody
hearing, stating that he was unable to reach his client by telephone and mail, but there
was no evidence he notified his client he might withdraw from the case and the client was
not present at the hearing. Id., 1988 WL 17173, * 1. There was no evidence the client
had notice of the child custody hearing. Id.
{¶42} In the instant case, there was not an impending adversarial hearing of great
magnitude. See, Sycamore Twp. v. Carr, 1st Dist. Hamilton No. C-210389, 2022-Ohio-
2 The trial court’s order of April 19, 2022, belies appellants’ assertion that it “did not modify the impending dispositive motion deadline as set forth in the Scheduling Order, filed August 31, 2021.” Appellants’ Brief, 13. [Cite as Guernsey Cty. Community Dev. Corp. v. Speedy, 2024-Ohio-1039.]
1337, ¶ 14. Instead, there was a dispositive-motion deadline which the trial court agreed
to extend, and which new counsel could have moved to further extend. We do agree with
appellants that the record is scant as to the factual underpinnings of counsel’s withdrawal.
Attorney Lundholm’s motion to withdraw asserted only “there is a fundamental
disagreement on the future action to be taken in the litigation,” and the trial court granted
the motion to withdraw without any further inquiry of Lundholm in the record.
{¶43} GCCDC responds that Attorney Lundholm “foreshadowed” his impending
withdrawal as early as January 21, 2022. Appellee’s Brief, 14. The trial court’s Order of
June 1, 2022, cited supra is enlightening as to the trial court’s position on extending
deadlines for appellants and the delays in the case to that point, most of which were
occasioned by Daniel.
{¶44} Upon our review of the record, we find the trial court did not abuse its
discretion in permitting Attorney Lundholm to withdraw. The thrust of our decision in
Tschudy was noting the trial court’s duty to ensure counsel observes the rules of
professional conduct. An attorney who terminates representation of a client is required
to take steps to protect the client's interest, including giving reasonable notice to the client
to allow him or her to obtain other counsel and delivering to the client all papers and
property to which the client is entitled, including correspondence, pleadings, and other
items reasonably necessary to the client's representation. Prof.Cond.R. 1.16(d). There is
no evidence of these concerns in the instant case. The opening paragraph of Daniel’s
pro se response to summary judgment notes he is in possession of his client files and
intends to give them to an unidentified attorney he purportedly hoped to retain. We will
not presume Attorney Lundholm violated this rule, especially where appellants have failed [Cite as Guernsey Cty. Community Dev. Corp. v. Speedy, 2024-Ohio-1039.]
to present such evidence, Daniel was in possession of his client files, and the trial court’s
orders of March 15, 2022, April 18, 2022, and May 9, 2022 were served on appellants.
See, Norton v. Ray, 2nd Dist. Clark No. 2017-CA-27, 2017-Ohio-7345, ¶ 17; see also,
Wallick v. Lent, 5th Dist. Tuscarawas No. 2008 AP 05 0034, 2009-Ohio-1399, ¶ 47
[motion to withdraw and resulting judgment entry served on appellant, therefore no error
in allowing counsel to withdraw].
{¶45} We find no abuse of discretion in the trial court’s decision to permit Attorney
Lundholm to withdraw.
{¶46} Appellants next argue the trial court should have granted their joint motion
with the state of Ohio to stay the action pending the outcome of Daniel’s criminal case.3
GCCDC points out that the motion for stay pertained to Daniel only and was limited to his
criminal case; the motion did not pertain to Dora, Monster, or One Percent. GCCDC
objected to the motion for stay, arguing appellant was aware of the criminal action since
early 2021 but sought a stay only after appellee filed its motion for partial summary
judgment, and a stay would give Daniel and Dora further opportunity to liquidate and
dissipate assets.
{¶47} As noted supra, we review the trial court’s decision denying a stay for an
abuse of discretion. Zachary v. Crocket Homes, Inc., 5th Dist. Stark No.2003CA00131,
2003-Ohio-5237, internal citation omitted. The Supreme Court of Ohio has stated:
In evaluating a motion for a continuance, a court should note,
inter alia: the length of the delay requested; whether other
3 The state of Ohio’s consent to the proposed stay was conditioned upon Daniel’s agreement to a preliminary injunction prohibiting him from having any involvement in the charitable sector. [Cite as Guernsey Cty. Community Dev. Corp. v. Speedy, 2024-Ohio-1039.]
continuances have been requested and received; the inconvenience
to litigants, witnesses, opposing counsel and the court; whether the
requested delay is for legitimate reasons or whether it is dilatory,
purposeful, or contrived; whether the defendant contributed to the
circumstance which gives rise to the request for a continuance; and
other relevant factors, depending on the unique facts of each case.
State v. Unger, 67 Ohio St.2d 65, 67-68, 423 N.E.2d 1078
(1981).
{¶48} “Although Unger was a criminal matter, appellate courts have also applied
these factors in civil cases.” In re A.B., 4th Dist. Athens, 2019-Ohio-90, 128 N.E.3d 694,
¶ 27. The Supreme Court of Ohio has also considered similar factors in evaluating a
motion for stay. See State ex rel. Ebbing v. Ricketts, 133 Ohio St.3d 339, 2012-Ohio-
4699, 978 N.E.2d 188, ¶ 20.
{¶49} In the instant case, we have reviewed the trial court’s Order of June 1, 2022,
in which the court noted Daniel was a party to the case since 2016, cited his dilatory
actions with regard to discovery, and noted that extending the response time for summary
judgment had already delayed the case. Moreover, the trial court was concerned that
Daniel gifted substantial real estate assets to his children during the pendency of the
instant case, even after pleading guilty to a federal felony of filing a false tax return. Daniel
failed to appear for the final status conference despite evidence he was present in the
courthouse at the scheduled time. Ultimately the trial court denied the stay because doing
otherwise would permit Daniel to dissipate further assets. [Cite as Guernsey Cty. Community Dev. Corp. v. Speedy, 2024-Ohio-1039.]
{¶50} We find no abuse of discretion because Daniel had already delayed
progress of the case, established no compelling reason for a stay, and granting a stay
would have further enabled him to dissipate assets. See, Unger, supra.
{¶51} Having found no abuse of discretion in the trial court’s decisions permitting
Attorney Lundholm to withdraw and denying the stay, appellants’ first assignment of error
is overruled.
II., III.
{¶52} Appellants’ second and third assignments of error are related and will be
addressed together. They argue the trial court improperly granted appellee’s partial
motion for summary judgment, including GCCDC’s total requested damages of
$1,031,733.40. We disagree.
Summary judgment was properly entered against Dora, Monster, and One Percent because they failed to file a response
{¶53} All appellants rely on the same summary judgment arguments on appeal,
but we note the summary judgment response was submitted only by appellant Daniel
Speedy. The trial court therefore found appellants Dora Speedy, Monster Management,
LLC and One Percent, LLC failed to file a timely response and entered summary judgment
against them pursuant to Civ.R. 56(E) [“If the party does not so respond, summary
judgment, if appropriate, shall be entered against the party.”] Appellants have not raised
this finding as an assignment of error nor addressed it in their brief. We therefore have
no argument before us and summary judgment as to those three appellants is affirmed.
{¶54} We therefore address our discussion of summary judgment to Daniel’s
arguments. [Cite as Guernsey Cty. Community Dev. Corp. v. Speedy, 2024-Ohio-1039.]
Standard of review: Civ.R. 56 evidence
{¶55} Civil Rule 56 states in pertinent part:
Summary judgment shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, timely filed in the action, show that there is
no genuine issue of material fact and that the moving party is entitled
to judgment as a matter of law. No evidence or stipulation may be
considered except as stated in this rule. A summary judgment shall
not be rendered unless it appears from the evidence or stipulation,
and only from the evidence or stipulation, 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, that
party being entitled to have the evidence or stipulation construed
most strongly in the party's favor. A summary judgment, interlocutory
in character, may be rendered on the issue of liability alone although
there is a genuine issue as to the amount of damages.
{¶56} A trial court should not enter summary judgment if it appears a material fact
is genuinely disputed, nor if, construing the allegations most favorably towards the non-
moving party, reasonable minds could draw different conclusions from the undisputed
facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311 (1981). The
court may not resolve any ambiguities in the evidence presented. Inland Refuse Transfer
Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d 271 (1984). A [Cite as Guernsey Cty. Community Dev. Corp. v. Speedy, 2024-Ohio-1039.]
fact is material if it affects the outcome of the case under the applicable substantive law.
Guernsey Cnty. Community Dev. Corp. v. Speedy, 5th Dist. No. 23CA000004, 2023-
Ohio-1796, 216 N.E.3d 18, ¶ 24, citing Russell v. Interim Personnel, Inc., 135 Ohio App.3d
301, 733 N.E.2d 1186 (6th Dist. 1999).
{¶57} When reviewing a trial court's decision to grant summary judgment, an
appellate court applies the same standard used by the trial court. Smiddy v. The Wedding
Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter
de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 738 N.E.2d 1243.
{¶58} A nonmoving party may not avoid summary judgment by merely submitting
a self-serving affidavit contradicting the evidence offered by the moving party. This rule
is based upon judicial economy. “To conclude otherwise would enable the nonmoving
party to avoid summary judgment in every case, crippling the use of Civ.R. 56 as a means
to facilitate ‘the early assessment of the merits of claims, pre-trial dismissal of meritless
claims, and defining and narrowing issues for trial.” (Citations omitted.) C.R. Withem
Enterprises v. Maley, 5th Dist. Fairfield No. 01 CA 54, 2002-Ohio-5056, ¶ 24, citing Bank
One, N.A. v. Burkey (June 14, 2000), Lorain App. No. 99CA007359, at 10–11.
Daniel’s arguments raised for the first time on appeal
{¶59} Daniel argues for the first time on appeal that the Release shields him from
liability to GCCDC and precludes summary judgment on GCCDC’s behalf. The trial court
found the Release to be void and of no force and effect. Order, June 1, 2022, page 4.
{¶60} Daniel argues GCCDC failed to establish the Release is not a valid,
enforceable contract in its motion for partial summary judgment. GCCDC’s position in its
motion for summary judgment was that the Release was a nonfactor; i.e. it was null and [Cite as Guernsey Cty. Community Dev. Corp. v. Speedy, 2024-Ohio-1039.]
void due to numerous irregularities with its formation, of which GCCDC produced Civ.R.
56 evidence. In July 2015, Schaffner prepared a “Consulting Period Release Agreement”
between the GCCDC, Monster Management, and Daniel, purporting to release appellants
from “all claims including those of which GCCDC is not aware and those not mentioned
in the Release.” Relevant to Daniel’s claim on appeal, GCCDC’s motion for partial
summary judgment sought, e.g., judgment as a matter of law that the Release is void
because appellants failed to disclose the extent of the business relationship between
Schaffner and Daniel in Whispering Pines, among other entities; failed to disclosed
Schaffner’s representation of Daniel in numerous legal matters; and Schaffner falsely
represented that Daniel had another attorney. Further, GCCDC argued the Release
violated GCCDC’s bylaws because signatories to the Release had significant conflicts of
interest.
{¶61} GCCDC presented evidence in the form of Schaffner’s deposition, in which
he confirmed Whispering Pines obtained money from appellee’s oil and gas assets. The
deposition of GCCDC’s former board member Sharon Carpenter established that Daniel
and Schaffner did not disclose their conflicts of interest to the board, i.e., their membership
in Whispering Pines. Nor did Schaffner obtain a written conflict waiver. Daniel’s written
discovery responses noted he worked with Schaffner in his capacity as counsel for
GCCDC, but “also asked him to do some corporate filings and deeds [for Daniel]” and
Schaffner was a member of Whispering Pines.
{¶62} The board relied upon Schaffner, its counsel, to negotiate and draft the
Release which unknowingly served to benefit Daniel, Schaffner’s undisclosed business
partner and client. The appendix to the Release purported to permit appellants to retain [Cite as Guernsey Cty. Community Dev. Corp. v. Speedy, 2024-Ohio-1039.]
numerous pieces of equipment purchase with GCCDC’s funds in a total damage amount
of $48,000.00.
{¶63} GCCDC presented evidence that the Release violates its bylaws,
specifically its rules for what constitutes a quorum and board members’ conflicts of
interest. A corporate resolution on July 14, 12015 stated GCCDC wanted to enter a
mutual release and settlement agreement with appellants. The resolution is signed by
four board members; two of those are Bonnie Braden and Robert Oakley, defendants in
the case below. Braden is Daniel’s sister and previously served as secretary of the board.
Daniel admitted paying off Braden’s mortgage in the amount of approximately
$10,000.00. Board member Robert Oakley was in a personal relationship with Braden
and was an employee of Monster Management, LLC before and after Daniel’s
termination. GCCDC’s bylaws required Braden and Oakley to recuse themselves due to
the conflicts of interest. Without the votes of Braden and Oakley, however, the resolution
would have failed to pass with a majority vote. Additionally, Sharon Carpenter stated in
her deposition that she did not sign the resolution willingly, but was “ordered” to do so by
Schaffner.
{¶64} Daniel’s summary judgment response made no mention of the Release’s
enforceability; nor did he put forth any argument that that Release was a binding contract
precluding summary judgment for GCCDC.
Arguments as to award of damages
{¶65} In its motion for summary judgment, GCCDC argued it was entitled to
damages in the amount of $1,031,733.40 and the trial court agreed. [Cite as Guernsey Cty. Community Dev. Corp. v. Speedy, 2024-Ohio-1039.]
{¶66} We find the Civ.R. 56 evidence presented, demonstrates there is no
genuine issue of material fact that appellee was entitled to damages in the amount of
$1,031.733.40. This total amount represented the $165,891.51 obtained by appellants
through Whispering Pines, LLC, and disgorgement and conveyance of Daniel’s interest
in Whispering Pines, LLC to appellee; $494,881.89 obtained by appellants through One
Percent, and disgorgement and conveyance of any outstanding interests of One Percent
to appellee; $113,000 obtained by appellants through sale of the Pomegranate Building;
$125,000 obtained by appellants through sale of the North Avenue property; $85,000
obtained by appellants through sale of the 270 Main Street property; and $48,000 for
equipment converted by appellants, including a 170 Franklin and 450 Dozer.
{¶67} To the extent that Daniel argues the trial court should have issued findings
of fact and conclusions of law as to elements of GCCDC’s claims and elements of
appellants’ counterclaims and defenses, findings of fact and conclusions of law are not
required pursuant to Civ.R. 52, and we can discern the trial court’s rationale from its well-
reasoned decision of June 1, 2022. Moreover, the trial court is not required to make
appellants’ arguments for them, nor to construct issues of material fact out of whole cloth.
Dora, Monster, and One Percent failed to file any summary judgment response, and
Daniel’s pro se response is incoherent.
{¶68} We have reviewed Daniel’s pro se response to the motion for partial
summary judgment and must agree with GCCDC that it consists entirely of “irrelevant
anecdotes, hearsay, and pure conjecture.” Appellee’s Brief, 20. Pursuant to Civil Rule
56(C), only certain evidence and stipulations, as set forth in that section, may be
considered by the court when deciding a motion for summary judgment. Specifically, the [Cite as Guernsey Cty. Community Dev. Corp. v. Speedy, 2024-Ohio-1039.]
court is only to consider the “pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence and written stipulations of fact.” Civ.R.
56(C). The trial court may consider a type of document not expressly mentioned in Civil
Rule 56(C) if such document is “accompanied by a personal certification that [it is] genuine
or [is] incorporated by reference in a property framed affidavit pursuant to Civil Rule
56(E).” Deutsche Bank Nat'l Trust Co. v. Hansen, 5th Dist. Fairfield No. 2010 CA 00001,
2011-Ohio-1223.
{¶69} Upon review, we find GCCDC met its initial burden of demonstrating the
absence of a genuine issue of fact by submitting sufficient and proper Civil Rule 56
evidence, consisting of the incorporation of the pleadings, admissions, affidavits, and
various exhibits attached to and incorporated in the affidavits, to demonstrate the absence
of a genuine issue of material fact. N. Orange Homeowners Assn., Inc. v. Suarez, 5th
Dist. Delaware No. 2019 CAE 02 0015, 2019-Ohio-4416, ¶ 35.
{¶70} The burden then shifted to appellants to set forth specific facts, pursuant to
the confines of Civil Rule 56, demonstrating a genuine issue of material fact does exist.
However, appellants failed to set forth specific facts showing a genuine issue of material
fact exists by affidavit or other Civil Rule 56 evidence. Appellants could not rest on the
allegations or denials in the pleadings, but had to set forth specific facts by the means
listed in Civil Rule 56 showing that a triable issue of fact exists. Mitseff v. Wheeler, 38
Ohio St.3d 112, 526 N.E.2d 798 (1988). Daniel's response contained a series of
unsupported allegations and failed to address GCCDC’s arguments altogether. Daniel’s
unsubstantiated response thus failed to meet appellants’ burden and did not raise any
genuine issue of material fact to preclude summary judgment. [Cite as Guernsey Cty. Community Dev. Corp. v. Speedy, 2024-Ohio-1039.]
{¶71} We note Daniel’s response to the motion for summary judgment was pro
se. However, “it is well established that pro se litigants are presumed to have knowledge
of the law and legal procedures and that they are held to the same standard as litigants
who are represented by counsel.” State ex rel. Fuller v. Mengel, 100 Ohio St.3d 352,
2003-Ohio-6448, 800 N.E.2d 25. They are not given greater rights than represented
parties, and must bear the consequences of their mistakes. Carskadon v. Avakian, 5th
Dist. Delaware No. 11 CAG 02 0018, 2011-Ohio-4423.
{¶72} In this case, we find the conclusory and self-serving statements in the
response to summary judgment are not corroborated by any evidence, and are not
sufficient to establish the existence of an issue of material fact. Guernsey Cnty.
Community Dev. Corp. v. Speedy, 5th Dist. No. 23CA000004, 2023-Ohio-1796, 216
N.E.3d 18, ¶ 41, citing Patterson v. Licking Township, 5th Dist. Licking No. 17-CA-3, 2017-
Ohio-5803, 2017 WL 2964196; Wischt v. Heirs of Mourer, 5th Dist. Guernsey, 2017-Ohio-
8236, 98 N.E.3d 1307. Further, we find the Civ.R. 56 evidence presented demonstrates
there is no genuine issue of material fact that GCCDC was entitled to damages in the
amount of $1,031,733.40. See, Roseman Bldg. Co., LLC v. Vision Power Sys., Inc., 5th
Dist. Stark No. 2009CA00009, 2010-Ohio-229, ¶ 56.
{¶73} Appellants’ second and third assignments of error are overruled. [Cite as Guernsey Cty. Community Dev. Corp. v. Speedy, 2024-Ohio-1039.]
CONCLUSION
{¶74} Appellants’ three assignments of error are overruled and the judgment of
the Guernsey County Court of Common Pleas is affirmed.
By: Delaney, J.,
Wise, P.J. and
Baldwin, J., concur.