Tornstrom Indus. Dev. Corp. v. 123 Lyndhurst, L.L.C.

2025 Ohio 2302

• Court: Ohio Court of Appeals
• Decided: June 30, 2025
• Docket: 2024-L-076
• Status: Published

Opinion

[Cite as Tornstrom Indus. Dev. Corp. v. 123 Lyndhurst, L.L.C., 2025-Ohio-2302.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNTY

TORNSTROM INDUSTRIAL CASE NO. 2024-L-076 DEVELOPMENT CORPORATION, et al.,

Plaintiffs-Appellants, Civil Appeal from the Court of Common Pleas - vs -

123 LYNDHURST, LLC, et al., Trial Court No. 2022 CV 001022

Defendants-Appellees.

OPINION AND JUDGMENT ENTRY

Decided: June 30, 2025 Judgment: Affirmed

John N. Neal and Mark S. Fusco, Walter Haverfield, LLP, 1500 West 3rd Street, Suite 300, Cleveland, OH 44113 (For Plaintiffs-Appellants).

Thomas B. Bralliar, Jr., Thomas B. Bralliar, Jr. Co., LPA, P.O. Box 349, Willoughby, OH 44096 (For Defendants-Appellees).

EUGENE A. LUCCI, J.

{¶1} Appellants, Tornstrom Industrial Development Corporation (“TIDC”), et al.

(or, alternatively “plaintiffs”), appeal the grant of summary judgment, entered by the Lake

County Court of Common Pleas, in favor of appellees, 123 Lyndhurst, LLC, et al.

(“Lyndhurst”).1 The primary issue is whether the trial court erred in concluding no genuine

issue of material fact remains and Lyndhurst is entitled to judgment as a matter of law on

the trial court’s determination that plaintiffs-appellants Todd Tornstrom (“Todd”) and his

company Pricom Asphalt Sealcoating, Inc. (“Pricom”) were third-party beneficiaries to the

1. Todd is the only meaningful appellant to this appeal. TIDC and the party plaintiff, Walter Tornstrom, do not advance arguments in error challenging the trial court’s decision. underlying sales agreement and, therefore, have standing to pursue claims against

Lyndhurst. We affirm.

{¶2} In their complaint, TIDC, Todd, and his father, Walter Tornstrom (“Walter”),

alleged that TIDC sold a storage unit facility to Lyndhurst in 2021. They contended that

the purchase agreement permitted TIDC and “its relatives” to continue storing personal

property rent-free in the two storage units it (or they) was/were already occupying for a

period of three months after the sale. Non-party Pricom, d.b.a. American Asphalt, which

is owned by Todd, had personal property inside the units and equipment outside on the

blacktop. The property in these units, including some property outside the units, was not

removed within the three-month period.

{¶3} Lyndhurst, through its agent David Goodrich, refused to release the

property unless TIDC, et al., paid rent for the carry-over period. TIDC, et al., alleged that

Lyndhurst was negligent in removing certain personal property from the units by

damaging the same. TIDC, et al., asserted a claim for conversion.

{¶4} Lyndhurst filed a counterclaim against TIDC as well as Todd and Walter. In

its counterclaim, Lyndhurst alleged that the plaintiffs occupied the units without

permission and without paying rent after the three-month period ended and that they

damaged the facility when they were removing certain aspects of the property. Lyndhurst

asserted claims for breach of contract, breach of the duty of good faith, fraud, securities

fraud, negligent misrepresentation, trespass, criminal trespass, and unjust enrichment.

{¶5} The parties mutually moved for summary judgment against one another.

{¶6} In its motion against Todd, Lyndhurst emphasized that all of “Todd’s”

personal property is titled to Pricom. Accordingly, Lyndhurst alleged Todd lacked standing

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Case No. 2024-L-076 to assert any claims against it. In its motion against TIDC, Lyndhurst pointed out that,

pursuant to Walter’s deposition testimony, TIDC did not have any personal property in the

units or on the blacktop. The trial court granted Lyndhurst’s motions for summary

judgment against both Todd and TIDC. The trial court accordingly dismissed Todd and

TIDC as plaintiffs. The court noted, however, that it would consider whether Todd and

TIDC are proper counterclaim defendants (given they did not personally own any of the

property in the units or on the property) prior to trial.

{¶7} Lyndhurst raised eight counterclaims that were subject to the plaintiffs’

motion for summary judgment. The plaintiffs did not dispute that the personal property

remaining at the property and on the blacktop was left beyond the three-month period set

forth in the contract. Lyndhurst’s claims for securities fraud (Count Two), common law

fraud (Count Three), and negligent misrepresentation (Count Five) were premised upon

the factual allegation that the plaintiffs had no intention of removing the property when

they signed the agreement. Deposition testimony of Lyndhurst’s principals demonstrated

they had no evidence and no reason to believe this was the plaintiffs’ intention. The trial

court accordingly granted summary judgment to the plaintiffs on these counts.

{¶8} With respect to Lyndhurst’s claim for breach of contract (Count Four),

Lyndhurst alleged a breach of the purchase agreement’s terms by failing to remove the

personal property at the end of the three-month period. The trial court determined this

count as well as Lyndhurst’s breach of the duty of good faith (Count One) survived the

plaintiffs’ motion for summary judgment.

{¶9} Further, the trial court determined that Lyndhurst’s claims for trespass

(Count Six) and criminal trespass (Count Seven) require the court to make factual findings

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Case No. 2024-L-076 upon which the parties do not agree. Similarly, the court determined that Lyndhurst’s

claim for unjust enrichment (Count Eight) requires the factual assessment that plaintiffs

received no benefit from continuing to store their personal property in the units. The court

determined, therefore, that the factual nature of these counts preclude summary

judgment. Summary judgment, however, was granted to the plaintiffs on Lyndhurst’s

counterclaim on Counts Two, Three, and Five.

{¶10} The trial court, recognizing that fewer than all of the claims or rights and

liabilities of fewer than all the parties had been adjudicated, determined, because the

claims of Todd and TIDC were fully resolved, that there was no just reason to delay an

appeal. No challenges to the finality of the order have been submitted to this court.

Because the judgment affects Todd’s substantial right to seek claimed redress under the

civil rules and, in effect determines the action and prevents a judgment for him, we deem

the order is final and appealable when affixed with the Civ.R. 54(B) language. See R.C.

2505.02(B)(1).

{¶11} Appellants, TIDC, Todd, and Walter appealed the judgment; the only

argument asserted on appeal, however, is whether the trial court erred in concluding Todd

lacked standing. The assignment of error provides:

{¶12} “The trial court erred by granting appellee 123 Lyndhurst, LLC’s July 2, 2024

motion for summary judgment against the claims of appellant Todd Tornstrom for lack of

standing.”

Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party

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Case No. 2024-L-076 being entitled to have the evidence construed most strongly in his favor.

(Citation omitted.) Zivich v. Mentor Soccer Club, Inc.,1998-Ohio-389, ¶ 7.

{¶13} In general, Todd argues the trial court erred in dismissing him as a plaintiff

for lack of standing. “A preliminary inquiry in all legal claims is the issue of standing. ‘The

question of standing is whether a litigant is entitled to have a court determine the merits

of the issues presented.’” Cuyahoga Cty. Bd. of Commrs. v. State, 2006-Ohio-6499, ¶ 22,

quoting Ohio Contrs. Assn. v. Bicking, 71 Ohio St.3d 318, 320, 1994-Ohio-183. The

essence of the standing inquiry is whether the party seeking to invoke the court’s

jurisdiction has alleged a personal stake in the outcome of the controversy. Mtge.

Electronics Registration Sys. v. Petry, 2008-Ohio-5323, ¶ 18 (11th Dist.). Whether a

plaintiff has standing to assert a claim is a matter of law that we review de

novo. Cuyahoga at ¶ 23.

{¶14} Todd makes several arguments, all of which are related. Todd initially

argues that he was an intended third-party beneficiary to the real estate purchase

agreement granting him post-closing possession rights and therefore had standing to

bring the claims against Lyndhurst. Next, Todd contends, if he possessed intended third-

party beneficiary rights under the contract, he must therefore have standing as a plaintiff.

Finally, Todd asserts that, if he is an intended third-party beneficiary, then Lyndhurst owed

him a contractual duty which he had standing to enforce.

{¶15} “Standing” is defined as “‘[a] party’s right to make a legal claim or seek

judicial enforcement of a duty or right.’” Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 2007-

Ohio-5024, ¶ 27, quoting Black’s Law Dictionary (8th Ed. 2004). “To succeed in

establishing standing, plaintiffs must show that they suffered (1) an injury that is (2) fairly PAGE 5 OF 12

Case No. 2024-L-076 traceable to the defendant’s allegedly unlawful conduct, and (3) likely to be redressed by

the requested relief.” Moore v. Middletown, 2012-Ohio-3897, ¶ 22, citing Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-561 (1992). “These three factors—injury,

causation, and redressability—constitute ‘the irreducible constitutional minimum of

standing.’” Moore, quoting Lujan at 560. It follows that the elements are conjunctive.

Therefore, without a cognizable injury, or any other factor, a party has no standing to

assert a claim.

{¶16} We first point out that Todd did not specifically raise his third-party-

beneficiary argument when he opposed Lyndhurst’s motion for summary judgment. He,

therefore, has forfeited all but plain error on appeal. See, e.g., Rising v. Litchfield Twp.

Bd. of Trustees, 2016-Ohio-6971, ¶ 16 (9th Dist.). The plain error doctrine is disfavored

in civil appeals and is only applied in rare cases. Goldfuss v. Davidson, 1997-Ohio-401,

syllabus.

{¶17} Todd claims that he and Pricom, the business of which he is the sole

shareholder and a non-party to this case, were intended third-party beneficiaries to the

contract of sale between TIDC’s and Lyndhurst’s agreement to sell the property. He

claims the agreement demonstrates this intention. The contract provides that “Seller and

its relatives shall have Three (3) months of Possession after Closing in these units at no

rent or common area maintenance fees.” (Emphasis added.) Todd additionally points to

Lyndhurst’s counterclaim, which alleged “[t]he individuals whom TIDC intended to permit

use of those two units were two of TIDC’s stakeholders, Walter Tornstrom and Todd

Tornstrom.” Todd further underscores Lyndhurst’s allegations that TIDC, Walter, and

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Case No. 2024-L-076 Todd were given an opportunity to remove the personal property but failed to do so. Taken

together, Todd maintains he, along with Pricom, were intended third-party beneficiaries.

{¶18} In Ohio, a third-party beneficiary may maintain an action based upon the

contract which contains the promise for its benefit. Rhorbacker v. Citizens Bldg. Assn.,

138 Ohio St. 273, 276 (1941). A third-party beneficiary “‘is one for whose benefit a promise

has been made in a contract but who is not a party to the contract.’” Maghie & Savage,

Inc. v. P.J. Dick Inc., 2009-Ohio-2164, ¶ 40 (10th Dist.) quoting Chitlik v. Allstate Ins. Co.,

34 Ohio App.2d 193, 196 (8th Dist. 1973). “Whereas an intended third-party beneficiary

has enforceable rights under a contract, an incidental third-party beneficiary does not.”

Maghie & Savage, Inc. at ¶ 40, citing Hill v. Sonitrol of Southwestern Ohio, Inc., 36 Ohio

St.3d 36, 40 (1988).

{¶19} Ohio has also adopted “the statement of law with respect to intended and

incidental beneficiaries found in Restatement of the Law 2d, Contracts, § 302, at 439-440

(1981).” Hill at 40. In this regard, § 302 states as follows:

“(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either

“(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or

“(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.

“(2) An incidental beneficiary is a beneficiary who is not an intended beneficiary.”

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Case No. 2024-L-076 Hill at 40, quoting § 302; see also Rupp v. Premier Health Partners, 2025-Ohio-986, ¶

140 (2d Dist.)

{¶20} Further, “comment e” of § 302 provides: “Incidental beneficiaries.

Performance of a contract will often benefit a third person. But unless the third person is

an intended beneficiary as here defined, no duty to him is created.” (Emphasis in original.)

{¶21} In Hill, 36 Ohio St.3d at 40, the Supreme Court of Ohio adopted the Sixth

Circuit Court of Appeals’ “intent-to-benefit” test to determine whether a third party is an

intended or an incidental beneficiary. The court observed:

“Under this analysis, if the promisee . . . intends that a third party should benefit from the contract, then that third party is an ‘intended beneficiary’ who has enforceable rights under the contract. If the promisee has no intent to benefit a third party, then any third-party beneficiary to the contract is merely an ‘incidental beneficiary,’ who has no enforceable rights under the contract.

“[T]he mere conferring of some benefit on the supposed beneficiary by the performance of a particular promise in a contract [is] insufficient; rather, the performance of that promise must also satisfy a duty owed by the promisee to the beneficiary.”

Id., quoting Norfolk & Western Co. v. United States, 641 F.2d 1201, 1208 (6th Cir. 1980).

{¶22} For a third party to be an intended beneficiary under a contract, “there must

be evidence that the contract was intended to directly benefit that third party.” Huff v.

FirstEnergy Corp., 2011-Ohio-5083, ¶ 12. (Emphasis added.) Usually, “the parties’

intention to benefit a third party will be found in the language of the agreement.” Id.

{¶23} In this case, neither Todd nor Pricom were identified in the purchase

agreement. As such, Todd can only have standing as an intended third-party beneficiary.

The purpose of the contract was the sale of the subject property from TIDC to Lyndhurst.

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Case No. 2024-L-076 It was not entered to directly benefit Todd or Pricom. Indeed, the provision relating to the

three-month use of the storage by TIDC and its “relatives” would appear to be an

incidental condition negotiated between the parties to facilitate the sale.

{¶24} Although Todd asserts he was a “relative” of TIDC because he was a

shareholder of TIDC and/or the only shareholder of Pricom (the company that owned the

personal property on the real estate), the parties did not submit any competent evidence

of the parties’ intention to personally benefit either Todd or Pricom in entering the

purchase agreement. Importantly, Todd confirmed that all of the personal property

referenced in the amended complaint was actually owned by Pricom, a non-party. In

particular, Todd testified at deposition:

Q. Do you recall any personal property that you owned that was left at the Lost Nation Road real estate after expiration of the three-month period referenced in [the purchase agreement]?

A. All of it.

Q. It was owned by you personally?

A. No. It was owned by the company.

Q. That’s what I’m asking. Do you believe there were any items of personal property owned by you, not the company, American Asphalt?

A. I don’t believe so.

{¶25} Later in the deposition, Todd further testified:

Q. Now, the personal property that you, Todd Tornstrom, owned that was at Lost Nation Road[, the property,] included motor vehicles?

A. There was [sic] two race cars, a race car trailer, three trailer units and equipment, miscellaneous items, and office furniture. PAGE 9 OF 12

Case No. 2024-L-076 Q. Those were owned by you personally?

A. Owned by the company.

Q. They were all owned by American Asphalt?

A. I believe so.

{¶26} Todd’s status as a shareholder may be irrelevant because Pricom was the

actual owner of the personal property which was stored. There is nothing to suggest that

Todd’s status as the sole shareholder of Pricom somehow makes him the owner of the

personal property at issue. See Reld & G Enterprise Inc. v. Eldanaf, 2025-Ohio-276, ¶ 10

(8th Dist.), quoting Adair v. Wozniak, 23 Ohio St.3d 174, 176 (1986) (“‘It is well-settled

that only a corporation and not its shareholders can complain of an injury sustained by,

or a wrong done to, the corporation’ . . . .”). See also Ardeth Chupp-Huron Cty. Treasurer

v. Inmon, 1982 WL 6455, *1 (6th Dist. June 18, 1982) (“It is well settled that a corporation

is a legal entity entirely separate from its shareholders.”).

{¶27} Finally, the phrase “Seller and its relatives” is, at best, ambiguous. The

plain meaning of “relative” is “a person connected by blood or marriage.” Oxford

Languages Dictionary Online, google.com (accessed Apr. 8, 2025). Unlike sentient or

living beings, corporations do not have blood and thus cannot have consanguinity with

humans or other legal entities. Nor can corporations wed with others, sentient or

otherwise. Corporations are creatures of statute. They are artificial persons, “‘created by

the General Assembly and deriving [their] power, authority and capacity from’” Ohio’s

statutes governing corporations. Bd. of Edn. of Worthington City School Dist. v. Bd. of

Revision of Franklin Cty., 1999-Ohio-449, ¶ 7, quoting Union Savs. Assn. v. Home

Owners Aid, Inc., 23 Ohio St.2d 60, 62 (1970). PAGE 10 OF 12

Case No. 2024-L-076 {¶28} Neither party attempted to clarify the phrase “Seller and its relatives” in the

contract. Nothing in Todd’s brief or any previous filing in the trial court attempted to

elucidate the meaning of this phrase. And, during his deposition, Todd stated that he did

not think a corporation “could be a relative to anyone.”

{¶29} Further, even though Lyndhurst’s counterclaim alleged that TIDC intended

Walter and Todd to have use of the units, this is merely an unverified allegation, and not

Civ.R. 56(E) competent evidence. There was no express intent in the purchase

agreement to evince this intention. The evidence demonstrates that Todd did not own the

property in the units. While Pricom owned the personal property on the premises, it was

not a party to this litigation.

{¶30} Because the primary and direct purpose of the purchase agreement was

the sale of the property from TIDC to Lyndhurst, we conclude that Todd was an incidental

beneficiary to the purchase agreement. Accordingly, Lyndhurst owed him no contractual

duty or duties. Additionally, we discern no cognizable injury suffered by Todd by

Lyndhurst’s removal of the property belonging to Pricom. These points necessitate the

conclusion that Todd lacked standing to pursue the underlying suit as a plaintiff. The trial

court did not err, let alone commit plain error, in concluding Todd lacked standing.

{¶31} Todd’s sole assignment of error lacks merit.

{¶32} The judgment of the trial court is affirmed.

ROBERT J. PATTON, P.J.,

JOHN J. EKLUND, J.,

concur.

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Case No. 2024-L-076 JUDGMENT ENTRY

For the reasons stated in the opinion of this court, appellants’ sole assignment of

error lacks merit. It is the judgment and order of this court that the judgment of the Lake

County Court of Common Pleas is affirmed.

Costs to be taxed against appellants.

JUDGE EUGENE A. LUCCI

PRESIDING JUDGE ROBERT J. PATTON, concurs

JUDGE JOHN J. EKLUND, concurs

THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY

A certified copy of this opinion and judgment entry shall constitute the mandate pursuant to Rule 27 of the Ohio Rules of Appellate Procedure.

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Case No. 2024-L-076