[Cite as Superior Mobile Homes, Inc. v. Massasauga Rattlesnake Ranch, Inc., 2023-Ohio-3764.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY
SUPERIOR MOBILE CASE NO. 2023-T-0004 HOMES, INC.,
Plaintiff, Civil Appeal from the Court of Common Pleas - vs -
MASSASAUGA RATTLESNAKE Trial Court No. 2017 CV 01611 RANCH, INC., et al.,
Defendant-Third Party Plaintiff-Appellee,
ESTATE OF RUSSELL L. MILLER, JR.,
Third Party Defendant- Appellant.
OPINION
Decided: October 16, 2023 Judgment: Affirmed in part and reversed in part; remanded
Max E. Dehn, Cavitch Familo & Durkin, Co., LPA, 1300 East 9th Street, 20th Floor, Cleveland, OH 44114 (For Defendant-Third Party Plaintiff-Appellee).
Paul Giorgianni, Giorgianni Law LLC, 1538 Arlington Avenue, Columbus, OH 43212; and David P. Weimer, Weimer Law Firm, LLC, 1790 Town Park Boulevard, Suite B, Uniontown, OH 44685 (For Third Party Defendant-Appellant).
MARY JANE TRAPP, J.
{¶1} Appellant, the Estate of Russell L. Miller, Jr. (“Mr. Miller”), appeals the
following judgments of the Trumbull County Court of Common Pleas: (1) the November
13, 2019, judgment entry overruling Mr. Miller’s motion for summary judgment on the claim for breach of fiduciary duty filed against him by appellee, Massasauga Rattlesnake
Ranch, Inc. (“Massasauga”); (2) the January 29, 2020, judgment entry granting summary
judgment to Massasauga on its claim against Mr. Miller for breach of fiduciary duty; and
(3) the December 19, 2022, judgment entry overruling Mr. Miller’s objections to the
magistrate’s decision, adopting the magistrate’s decision, and awarding damages to
Massasauga in the amount of $478,431.27.
{¶2} This matter involves whether Mr. Miller, as Massasauga’s corporate
secretary, breached his fiduciary duty by executing a cognovit promissory note payable
to Superior Mobile Homes, Inc. (“Superior”). Mr. Miller asserts two assignments of error,
contending the trial court erred (1) by overruling his motion for summary judgment against
Massasauga and (2) by awarding damages to Massasauga in the amount of $478,431.27
instead of $17,149.50. Mr. Miller also asserts a third “conditional” assignment of error,
contending (3) the trial court erred by granting summary judgment to Massasauga.
{¶3} We review Mr. Miller’s assignments of error chronologically to avoid the
issuance of advisory rulings. After a careful review of the record and pertinent law, we
find as follows:
{¶4} (1) The trial court did not err by overruling Mr. Miller’s motion for summary
judgment. Although the trial court erred in construing the authority granted to Mr. Miller
under certain corporate resolutions, there was a genuine issue of material fact regarding
the validity of the underlying debt.
{¶5} (2) The trial court erred in granting Massasauga’s motion for summary
judgment since its ruling was based on its erroneous construction of the corporate
resolutions.
Case No. 2023-T-0004 {¶6} Thus, we affirm the trial court’s November 13, 2019, judgment overruling
Mr. Miller’s motion for summary judgment and reverse the trial court’s January 29, 2020,
judgment granting summary judgment to Massasauga. Consequently, we also reverse
the trial court’s December 19, 2022, judgment awarding damages to Massasauga and
remand this matter for trial. Our dispositions of Mr. Miller’s first and third assignments of
error render his second assignment of error moot.
Substantive and Procedural History
{¶7} Charles Sr. formed Superior in 1972 for the purpose of owning and
operating mobile home parks. Beginning in the 1990s until 2014, Mr. Miller provided
accounting and bookkeeping services to Superior and served on its board of directors
and as its corporate secretary.
{¶8} Charles Sr. formed Massasauga in 2000 to purchase real estate for use as
hunting property by himself and his two sons, Timothy Matthews (“Timothy”) and Charles
Matthews, Jr. (“Charles Jr.”). From its formation until 2014, Mr. Miller provided accounting
and bookkeeping services to Massasauga and served on its board of directors and as its
corporate secretary.
{¶9} Timothy and Charles Jr. took over control of Massasauga in 2012. Pursuant
to director resolutions dated September 1, 2012, and September 1, 2013, Massasauga
elected Charles Jr. as president; Timothy as vice president and treasurer; and Mr. Miller
as secretary. The resolutions further state (1) “the President or Secretary of this
corporation may at their sole discretion execute the following: * * * To represent the
corporation in any and all legal contracts of any nature,” and (2) “the President and
Secretary of this corporation must jointly agree and execute the following: * * * Open
Case No. 2023-T-0004 and/or transact any bank accounts, loans or other banking transactions as he deems
necessary.” (Emphasis added.)
{¶10} Purportedly on December 31, 2013, Mr. Miller, as Massasauga’s secretary,
executed a cognovit promissory note payable to Superior, upon demand, in the principal
amount of $772,661.43, plus interest at 4% (“the 2013 note”).
{¶11} Timothy died in 2014, and Charles Jr. assumed sole control over both
companies. Through his attorney, Charles Jr. sent a letter to Mr. Miller terminating his
services and ordering him to produce the companies’ books and records. According to
Charles Jr., when Mr. Miller finally produced the books and records in 2015, a copy of the
2013 note was not included.
{¶12} In 2017, a third party purchased 95% of Superior’s outstanding shares.
Superior’s new president would later testify that, after the stock sale, Mr. Miller alerted the
company to the 2013 note’s existence and produced a copy.
{¶13} Superior filed a complaint against Massasauga in the trial court to obtain
judgment on the 2013 note (case no. 2017 CV 01611). The trial court granted judgment
to Superior for the full amount of the 2013 note, plus interest and costs.
{¶14} Massasauga filed a motion for relief from judgment pursuant to Civ.R. 60(B),
contending Mr. Miller lacked authority to sign the 2013 note and that the note was
“fraudulent” because it did not reflect an actual debt Massasauga owed to Superior.
Before the trial court ruled on its Civ.R. 60(B) motion, Massasauga filed a separate
complaint against Mr. Miller (case no. 2017 CV 02258), alleging he breached his fiduciary
duty by executing the 2013 note “without proper cause and authority” and by failing to
Case No. 2023-T-0004 provide its documents upon request. Massasauga alleged it was harmed by Superior’s
cognovit judgment and by having to incur fees and costs in seeking relief from it.
{¶15} The trial court subsequently granted Massasauga’s Civ.R. 60(B) motion and
vacated the cognovit judgment.
{¶16} Superior amended its complaint to assert various other claims against
Massasauga and Charles Jr. Charles Jr. filed a counterclaim. The trial court consolidated
the two cases.
{¶17} Mr. Miller filed a motion for summary judgment on Massasauga’s claim
against him for breach of fiduciary. Mr. Miller contended the 2013 note merely reflected
an existing loan balance Massasauga owed to Superior relating to the 2000 purchase of
the hunting property. In an affidavit, Mr. Miller averred that Superior obtained a bank loan
for $1,200,000, and, in turn, loaned those funds to Massasauga to purchase the real
estate. Superior and Massasauga entered into a loan agreement and a cognovit note to
memorialize the transaction. Over the years, Massasauga made payments to Superior
from funds it generated selling/leasing oil and gas interests and conservation easements.
Massasauga periodically executed and delivered new cognovit notes that set forth the
amount due, including accrued interest. Each year, the amount of the loan and the
interest paid were reflected on both companies’ tax returns. Mr. Miller also contended
there was no causal connection between his alleged actions (i.e., executing the 2013 note
and failing to turn over documents) and the attorney fees Massasauga incurred in
defending against Superior’s claims; rather, Superior sued Massasauga for defaulting on
its contractual obligations.
Case No. 2023-T-0004 {¶18} Massasauga filed a memorandum in opposition. It argued the 2013 note
constituted a “loan” under the 2013 director resolutions. Therefore, Mr. Miller breached
his fiduciary duty because he lacked authority to execute the 2013 note without Charles
Jr.’s accompanying signature. Massasauga also disputed Mr. Miller’s explanation of the
circumstances underlying the 2013 note, asserting it was “false.” In an affidavit, Charles
Jr. averred that at the time Mr. Miller executed the 2013 note, Massasauga did not owe
Superior a debt of $772,661.43. He further averred that the companies’ corporate records
did not reveal the existence of a loan for the purchase of the hunting property; there were
no “valid instruments” to support “any entries” on the companies’ respective tax returns
or account ledgers relating to the alleged debt; and he was not aware of the 2013 note’s
existence until Superior filed suit against Massasauga. Finally, Massasauga contended
there was a causal connection between Mr. Miller’s execution of the 2013 note and its
damages because Superior specifically filed suit to recover under it.
{¶19} Mr. Miller filed a reply brief. He contended the 2013 director resolutions
expressly authorized him to execute the 2013 note without Charles Jr.’s accompanying
signature because it involved a “legal contract” instead of a “bank account, loan or other
banking transaction.”
{¶20} On November 13, 2019, the trial court filed a judgment entry denying Mr.
Miller’s motion for summary judgment. The trial court found Massasauga satisfied all of
the required elements for a breach of fiduciary claim. Specifically, Mr. Miller, as a
corporate director, owed a fiduciary duty to Massasauga; he breached that duty because
he lacked authority under the 2013 director resolutions to execute the 2013 note without
Case No. 2023-T-0004 Charles Jr.’s accompanying signature; and Massasauga “incurred legal fees and costs in
defending against the 2013 Cognovit Note in the action involving Superior.”
{¶21} Superior and Massasauga/Charles Jr. filed cross-motions for summary
judgment. The trial court filed judgment entries granting Massasauga/Charles Jr.’s
motion for summary judgment on Superior’s claims and granting Superior’s motion for
summary judgment on Charles Jr.’s counterclaim. These rulings ended Superior’s
involvement in the case.
{¶22} Massasauga filed a motion for summary judgment on its claim against Mr.
Miller for breach of fiduciary duty, which Mr. Miller opposed. Massasauga’s motion was
based on the trial court’s express findings in the November 2019 entry overruling Mr.
Miller’s motion for summary judgment. On January 29, 2020, the trial court filed a
judgment entry granting Massasauga’s motion for summary judgment. The trial court set
the matter for an evidentiary hearing “to determine the amount of damages to which
Massasauga is entitled * * * as a result of [Mr.] Miller’s breach of fiduciary duty.”1
{¶23} Mr. Miller died prior to the evidentiary hearing, and his estate was
substituted in his place. The magistrate presided over the damages hearing and heard
testimony from witnesses and videotaped testimony from Mr. Miller. The magistrate filed
a decision in which it found Mr. Miller’s conduct rose to the level of “reckless disregard”
and determined he was liable to Massasauga for $478,431.27 in attorney fees and costs
it incurred in the underlying litigation.
1. Neither party nor the trial court identified the legal authority permitting Massasauga to recover damages against Mr. Miller consisting entirely of its legal fees and expenses incurred in defending against Superior’s claims. 7
Case No. 2023-T-0004 {¶24} Mr. Miller filed objections to the magistrate’s decision, which Massasauga
opposed. On December 19, 2022, the trial court filed a judgment entry in which it
overruled Mr. Miller’s objections, adopted the magistrate’s decision, and awarded
judgment to Massasauga in the amount of $478,431.27.
{¶25} Mr. Miller appealed and raises the following two assignments of error:
{¶26} “[1.] The trial court erred by overruling Miller’s motion for summary
judgment.
{¶27} “[2.] The trial court erred by awarding Massasauga $478,431.27 in damages
instead of $17,149.50 in damages.”
{¶28} Mr. Miller also raises the following “conditional” third assignment of error:
{¶29} “[3.] The trial court erred by entering summary judgment against Miller.”
“Conditional” Review
{¶30} Before addressing the merits of Mr. Miller’s assignments of error, we must
address the unusual manner in which he presents them. Mr. Miller requests that we
consider his “conditional” third assignment of error only if we overrule his first assignment
of error and also decline to enter judgment against him for $17,396.50 or less pursuant
to his second assignment of error. According to Mr. Miller, he would prefer an adverse
judgment up to that amount over additional civil proceedings.
{¶31} Mr. Miller cites no authority permitting an appellant to raise a “conditional”
assignment of error. In addition, reviewing Mr. Miller’s assigned errors in the manner he
requests could result in this court issuing advisory rulings. For instance, Mr. Miller asks
us to reduce the trial court’s damages award against him, but if we disagree with his
arguments, then he asks us to overturn the trial court’s summary judgment ruling on
Case No. 2023-T-0004 liability. “It is well settled that appellate courts do not indulge in advisory opinions.”
Furbee v. Bittner, 11th Dist. Lake Nos. 2014-L-077, et al., 2015-Ohio-4425, ¶ 36. Instead,
“it is the duty of every judicial tribunal to decide actual controversies between parties
legitimately affected by specific facts and to render judgments which can be carried into
effect.” Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d 371 (1970). To avoid the
possibility of issuing advisory rulings, we consider Mr. Miller’s assignments of error
chronologically—i.e., first (denial of summary judgment to Mr. Miller); third (grant of
summary judgment to Massasauga); and second (amount of damages).
Summary Judgment - Mr. Miller
{¶32} In his first assignment of error, Mr. Miller contends the trial court erred by
overruling his motion for summary judgment on Massasauga’s claim against him for
breach of fiduciary duty.
{¶33} Generally, the denial of summary judgment is not a final, appealable order.
Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 9. However, a
denial of a motion for summary judgment is always reviewable on appeal following a
subsequent final judgment. Knight v. Altercare Post-Acute Rehab. Ctr., Inc., 2017-Ohio-
6946, 94 N.E.3d 957, ¶ 27 (11th Dist.).
{¶34} We review summary judgment de novo, i.e., independently and without
deference to the trial court’s decision. Hedrick v. Szep, 11th Dist. Geauga No. 2020-G-
0272, 2021-Ohio-1851, ¶ 13. Summary judgment is appropriate only when (1) no genuine
issue as to any material fact remains to be litigated, (2) the moving party is entitled to
judgment as a matter of law, and (3) it appears from the evidence that reasonable minds
Case No. 2023-T-0004 can come to but one conclusion, and viewing the evidence most strongly in favor of the
nonmoving party, that conclusion is adverse to the nonmoving party. Civ.R. 56(C).
{¶35} “Since summary judgment denies the party his or her ‘day in court’ it is not
to be viewed lightly as docket control or as a ‘little trial.’ The jurisprudence of summary
judgment standards has placed burdens on both the moving and the nonmoving party.”
Welch v. Ziccarelli, 11th Dist. Lake No. 2006-L-229, 2007-Ohio-4374, ¶ 40.
{¶36} Specifically, “the moving party seeking summary judgment bears the initial
burden of informing the trial court of the basis for the motion and identifying those portions
of the record before the trial court that demonstrate the absence of a genuine issue of
fact on a material element of the nonmoving party’s claim. The evidence must be in the
record or the motion cannot succeed. The moving party cannot discharge its initial burden
under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has
no evidence to prove its case but must be able to specifically point to some evidence of
the type listed in Civ.R. 56(C) that affirmatively demonstrates that the nonmoving party
has no evidence to support the nonmoving party’s claims.” Id.
{¶37} “If the moving party fails to satisfy its initial burden, the motion for summary
judgment must be denied. If the moving party has satisfied its initial burden, the
nonmoving party has a reciprocal burden outlined in the last sentence of Civ.R. 56(E) to
set forth specific facts showing there is a genuine issue for trial. If the nonmoving party
fails to do so, summary judgment, if appropriate shall be entered against the nonmoving
party * * *.” Id.
{¶38} The essential elements of a claim of breach of fiduciary duty are (1) the
existence of a duty arising from a fiduciary relationship, (2) the failure to observe the duty,
Case No. 2023-T-0004 and (3) an injury resulting proximately therefrom. Jochum v. Howard Hanna Co., 11th
Dist. Lake No. 2020-L-077, 2020-Ohio-6676, ¶ 42. Mr. Miller does not dispute he owed
a fiduciary duty to Massasauga. He challenges whether there was a breach and whether
any such breach caused Massasauga’s alleged damages.
{¶39} On appeal, Mr. Miller argues that the “only basis” for Massasauga’s claim
against him was that he signed the 2013 note. He contends the 2013 director resolutions
authorized him to execute the 2013 note without Charles Jr.’s accompanying signature;
therefore, the trial court should have granted his motion for summary judgment.
{¶40} We agree with Mr. Miller’s reading of the 2013 director resolutions. As
stated, they provide, “the President or Secretary of this corporation may at their sole
discretion execute the following: * * * To represent the corporation in any and all legal
contracts of any nature,” while “the President and Secretary of this corporation must jointly
agree and execute the following: * * * Open and/or transact any bank accounts, loans or
other banking transactions as he deems necessary.” (Emphasis added.)
{¶41} Unlike the word “accounts,” the word “loans” does not contain an express
qualifier, i.e., “bank loans.” Therefore, one could argue, as does Massasauga, that the
word “loans” encompasses any type of loan. However, the plain meaning of the adjoining
phrase “other banking transactions” indicates the term “loans” is limited to “bank loans.”
Specifically, the word “other” means “additional,” such as “sold in the U.S. and 14 other
countries.” (Emphasis sic.) Merriam-Webster, https://www.merriam-
webster.com/dictionary/other (accessed October 10, 2023). The word “banking” means
“the business of a bank or a banker.” Merriam-Webster, https://www.merriam-
webster.com/dictionary/banking (accessed October 10, 2023). A “bank” is “an
Case No. 2023-T-0004 establishment for the custody, loan, exchange, or issue of money, for the extension of
credit, and for facilitating the transmission of funds.” Merriam-Webster,
https://www.merriam-webster.com/dictionary/bank (accessed October 10, 2023).
Therefore, the word “loans,” in context, refers to “bank loans.” Consequently, the 2013
director resolutions did not require Charles Jr.’s accompanying signature on the 2013
note.
{¶42} Although the trial court erred in construing the 2013 director resolutions, Mr.
Miller was not necessarily entitled to summary judgment. The Supreme Court of Ohio
has held “where the judgment is correct, a reviewing court is not authorized to reverse
such judgment merely because erroneous reasons were assigned as the basis thereof.”
Agricultural Ins. Co. v. Constantine, 144 Ohio St. 275, 284, 58 N.E.2d 658 (1944). This
is because “reviewing courts affirm and reverse judgments, not the reasons for the
judgments.” Geneva v. Fende, 11th Dist. Ashtabula No. 2009-A-0023, 2009-Ohio-6380,
¶ 33.
{¶43} Contrary to Mr. Miller’s assertion, his execution of the 2013 note was not
the “only basis” for Massasauga’s claim against him. In its complaint, Massasauga also
alleged Mr. Miller breached his fiduciary duty by signing the 2013 note “when no valid
circumstances for its creation existed and where there was no debt obligation from
Massasauga to Superior” and by “not providing Massasauga its documents when they
were requested.” Mr. Miller acknowledged as much by challenging these allegations in
his motion for summary judgment. In opposing Mr. Miller’s motion, Massasauga
expressly challenged the validity of the underlying debt and submitted Charles Jr.’s
conflicting affidavit on the issue. In considering a motion for summary judgment, a trial
Case No. 2023-T-0004 court may not weigh the proof or choose among reasonable inferences, nor may it accept
one party’s interpretation of the evidence over another. Kalan v. Fox, 187 Ohio App.3d
687, 2010-Ohio-2951, 933 N.E.2d 337, ¶ 44 (11th Dist.). Accordingly, the record
presented a genuine issue of material fact regarding the validity of the debt, which
precluded summary judgment in Mr. Miller’s favor.
{¶44} Alternatively, Mr. Miller contends that even if he breached his fiduciary duty
by signing the 2013 note, he was still entitled to summary judgment because his breach
was not the “but for” cause of Massasauga’s damages, i.e., the attorney fees and costs it
incurred in the underlying litigation. According to Mr. Miller, the evidence “proves”
Superior would have sued Massasauga on the debt even if the 2013 note never existed.
{¶45} The “evidence” to which Mr. Miller refers consists largely of testimony from
Superior’s attorney during the evidentiary hearing on damages held in 2021. Obviously,
this testimony was not before the trial court when it considered Mr. Miller’s motion for
summary judgment in 2019. As an appellate court conducting a de novo review, we must
stand in the shoes of the trial court and review summary judgment on the same standard
and evidence as the trial court. Westport Ins. Corp. v. Stark Cty. Sanit. Eng. Dept., 2017-
Ohio-7573, 96 N.E.3d 1256, ¶ 14 (5th Dist.). The record on summary judgment motion
does not establish, as a matter of law, that Superior would have sued Massasauga on the
debt regardless of the 2013 note.
{¶46} Mr. Miller has not established reversible error. Thus, his first assignment of
error is without merit. Accordingly, we affirm the trial court’s November 13, 2019,
Case No. 2023-T-0004 Summary Judgment - Massasauga
{¶47} In his third assignment of error, Mr. Miller contends the trial court erred in
granting summary judgment to Massasauga. Specifically, he contends there were
genuine issues of material fact as to whether (1) he was authorized to execute the 2013
note without a co-signature, (2) his execution of the 2013 note was both a “but for” and
proximate cause of the attorney fees and costs Massasauga incurred, and (3) he
possessed “deliberate intent to cause injury” or “reckless disregard” pursuant to R.C.
1701.59(E).
{¶48} In its motion for summary judgment, Massasauga argued that Mr. Miller
breached his fiduciary duty by executing the 2013 note without Charles Jr.’s
accompanying signature. Massasauga’s reason for asserting this argument was rational,
given the trial court’s prior findings in denying summary judgment to Mr. Miller. As
explained above, however, the trial court erroneously construed the 2013 director
resolutions because they authorized Mr. Miller to execute the 2013 note without Charles
Jr.’s accompanying signature. Accordingly, the trial court erred by granting summary
judgment to Massasauga on this basis. Mr. Miller’s third assignment of error has merit,
and we reverse the trial court’s January 29, 2020, judgment.
{¶49} Upon remand from an appellate court, the lower court is required to proceed
from the point at which the error occurred. State ex rel. Ames v. Portage Cty. Solid Waste
Mgt. Dist. Bd. of Commrs., 11th Dist. Portage No. 2022-P-0016, 2022-Ohio-2740, ¶ 38.
Here, reversible error occurred when the trial court granted Massasauga’s motion for
summary judgment and found Mr. Miller liable for breach of fiduciary duty. Therefore, we
necessarily reverse the trial court’s subsequent judgment of December 19, 2022,
Case No. 2023-T-0004 awarding damages to Massasauga for that alleged breach. We remand this matter for
trial on the issues of liability and, if necessary, the amount of damages.
Amount of Damages
{¶50} Finally, in his second assignment of error, Mr. Miller contends the trial court
erred in awarding damages to Massasauga in the amount of $478,431.27 instead of
$17,149.50. Based on our dispositions of Mr. Miller’s first and third assignments of error,
his second assignment of error is dismissed as moot.
{¶51} For the foregoing reasons, the trial court’s November 13, 2019, judgment is
affirmed, and the trial court’s January 29, 2020, and December 19, 2022, judgments are
reversed. This matter is remanded for further proceedings consistent with this opinion.
JOHN J. EKLUND, P.J.,
MATT LYNCH, J.,
concur.
Case No. 2023-T-0004