Zirafi v. Green Mile Ents., L.L.C.

2025 Ohio 2862

• Court: Ohio Court of Appeals
• Decided: August 14, 2025
• Docket: 114423
• Status: Published

Opinion

[Cite as Zirafi v. Green Mile Ents., L.L.C., 2025-Ohio-2862.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

CHRISTINE ZIRAFI, M.D., ET AL., :

Plaintiffs-Appellants, : No. 114423 v. :

GREEN MILE ENTERPRISES, LLC, : ET AL., : Defendants-Appellees.

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: August 14, 2025

Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-23-984804

Appearances:

Byron Legal LLC and Evan T. Byron, for appellants.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C., and Komlavi Atsou, for appellees.

KATHLEEN ANN KEOUGH, J.:

In August 2023, Christine Zirafi, M.D. (“Zirafi”), Susan Zanetti

(“Zanetti”), and Raju Modi, M.D. (“Modi”), all named individually and as creditors

and assignees by the U.S. Chapter 7 Bankruptcy Trustee in In re: Darrin B. Farrow, N.D. Ohio Bankr. No. 19010747-AIH (collectively “appellants”), refiled a complaint

against Green Mile Enterprises LLC, Santo Meri LLC, Green Mile Solutions LLC,

Green Mile Wellness LLC, Clean Remedies, LLC, Meredith Farrow (“Meredith”),

and John Does 1-10 (collectively “appellees” or “appellee entities”). The complaint

alleged that the appellants transferred and entrusted funds totaling $500,000 to

Darrin Farrow (“Darrin”) for investment in Darrin’s cannabis venture called MAD

Oregon LLC (“MAD Oregon”).

According to the complaint, Darrin defrauded appellants and used

MAD Oregon as a mechanism for completing and perpetuating the alleged fraud.

The complaint advanced 17 causes of action: successor liability; theft by deception;

unjust enrichment; money had and received; constructive trust; breach of fiduciary

duty; accounting; misappropriation; avoidance and return of all transfers due to

actual and constructive fraud under R.C. 1336.04(A)(1) and (2) and 1336.05(A); civil

conspiracy; declaratory judgment; conversion; injunctive relief; piercing the

corporate veil; and trustee claims under 11 U.S.C. 541, 544, 548, and 550.

Neither Darrin nor MAD Oregon were named as defendants in this

refiled matter. The complaint explained that Darrin had filed for bankruptcy and

his equity in MAD Oregon was named as an asset; thus neither Darrin nor MAD

Oregon could be named in the complaint. The complaint alleged that while Darrin

and MAD Oregon created and perpetuated the fraud, the named defendants, i.e.,

appellees, were involved at the “back end” of the fraud. The complaint further

alleged that their investment was used to fund the appellee entities instead of MAD Oregon. According to the complaint, Darrin’s wife, Meredith, organized all of the

appellee entities “in an effort to evade and defraud [appellants] and other creditors

as well as exclude them from anything related to the [appellees].” The appellants

attached 48 exhibits to the complaint, which will be discussed as relevant herein.

I. Factual Background

The complaint detailed that Darrin is “a disgraced financial planner

and investment advisor.” Appellants were Darrin’s clients and had previously made

many investments with Darrin that were “generally limited to publicly traded

equities and mutual funds.” In 2015, Darrin solicited appellants to purchase

unregistered securities in MAD Oregon. Zirafi and Zanetti, who are married,

invested a combined $250,000, and Modi invested $250,000 through his

investment company. Aside from a “PowerPoint document,” Darrin did not

“provide [appellants] with any documentation, SEC filings, or other paperwork prior

to their investments” and instead “made a myriad of oral promises and other

fraudulent misrepresentations/omissions to them[.]” Nonetheless, Zirafi and Modi

both signed documentation signifying their investment in MAD Oregon.

Despite their investment in MAD Oregon, appellants never received

any K-1 tax documentation from Darrin for 2015 or 2016 and he “kept [appellants]

in the dark.” In 2020, Zirafi finally received a K-1 form from her investment for

2015. The complaint alleges that Darrin, at one point, “advised [appellants] that

MAD Oregon was changing its name to ‘Green Mile’ or something similar.” As a result of an investigation by the Securities and Exchange

Commission, Darrin was eventually “terminated” from his firm of investment

advisors for soliciting investments without the firm’s knowledge. Zirafi received a

notice of this investigation and discussed it with Darrin, who purportedly reassured

her that he was “not really” under investigation. On June 23, 2016, Darrin

“admitted” to the allegations in an agreement; Darrin’s license was temporarily

suspended, and he was assessed a fine. Zirafi received a settlement because of this

investigation.

The complaint further details that in August 2017, appellants

“demanded a face-to-face meeting” with Darrin. Apparently, during the meeting,

Darrin informed appellants that they were investors and/or owners of Green Mile

Enterprises LLC, an entirely new company, separate from MAD Oregon. During this

meeting, Darrin also assured appellants that they would begin to see

“$20,000/month distributions” beginning in September 2017. The appellants do

not have any documentation reflecting their investment or ownership in Green Mile

Enterprises, LLC.

In June 2018, Zirafi’s counsel sent a letter to Darrin asking for

information and documents related to her investment. Darrin’s attorney relayed

that Darrin had “not yet finalized the documentation regarding the migration of the

MAD Oregon investors to Green Mile which is still in process.” According to

appellants, these documents were never provided. In 2018, Darrin’s home was foreclosed upon, and in February 2019,

Darrin filed for bankruptcy. Appellants were eventually added to the bankruptcy

action as creditors; this amendment also revealed that Darrin solicited “another

$500,000 in unaccounted for investment dollars” from other individuals.

Based on the foregoing, the complaint infers that the appellee entities

are successor entities to MAD Oregon because the operating agreement for the

“Green Mile” defendants displays the same address, operations, and purpose as

those presented in the MAD Oregon operating agreement. The complaint relies on

the inference that “the Farrows [Darrin and Meredith] used [appellants’] $500,000

and presumably other sources of capital to fund their ‘Green Mile’ enterprise,” but

under Meredith’s name and control, “in an effort to evade and defraud” appellants

and others.

In June 2024, appellees filed a motion for summary judgment.

Between July 2024 and August 2024, appellants filed five motions asking the court

for an extension of time to respond to the motion for summary judgment and filed

their proposed brief in opposition to the motion for summary judgment on August

29, 2024.

The court denied the request for an extension of time and struck the

proposed brief in opposition from the docket entirely, to which appellants

responded on September 4, 2024, with a motion for reconsideration. On September

5, 2024, the trial court issued a journal entry finding appellees’ motion for summary

judgment was “unopposed and granted” but also included language indicating that the court “considered” and “construed the evidence” and found that appellees were

entitled to summary judgment as a matter of law.

This appeal followed, and appellants assigned the following errors for

our review:

1. The trial court committed reversible error in granting Defendants- Appellees’ motion for summary judgment.

2. The trial court committed reversible error in denying Plaintiffs- Appellants’ motion for extension of time.

3. The trial court committed reversible error in denying Plaintiffs- Appellants’ motion for reconsideration.

4. The trial court committed reversible error in failing to include an opinion with its summary judgment decision.

II. Law and Analysis

We review a trial court’s decision on a motion for summary judgment

de novo. See, e.g., Corder v. Ohio Edison Co., 2024-Ohio-5432, ¶ 9. The party

moving for summary judgment bears the burden of demonstrating that no genuine

issue of material fact exists for trial. Dresher v. Burt, 1996-Ohio-107, ¶ 17-18. The

moving party has the initial responsibility of informing the trial court of the basis for

the motion and identifying those portions of the record that demonstrate the

absence of a genuine issue of material fact on the essential elements of the

nonmoving party’s claims. Id. In motions for summary judgment, the movant must

be able to point to evidentiary materials of the type listed in Civ.R. 56(C) that a court

is to consider in rendering summary judgment, which include “the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any.” Summary judgment may be

rendered where the Civ.R. 56(C) evidence provided by the party seeking summary

judgment clearly establishes that the nonmoving party has no legally cognizable

cause of action. Dresher at ¶ 28.

Appellants’ brief infers that the trial court granted summary

judgment because it was unopposed, despite the trial court’s assertion to the

contrary that it specifically considered and construed the evidence. Nonetheless,

summary judgment must be affirmed if the trial court’s judgment is supported by

any of the grounds raised by the moving party, even if the trial court failed to

consider those grounds. Desir v. Mallett, 2015-Ohio-2124, ¶ 16 (10th Dist.) citing

Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41-42 (9th Dist. 1995).

Appellees contend that appellants have no evidence to establish a

material element that is necessary to resolve each of their claims, but frame this as

a standing argument when it is more akin to a merit-based argument. We

nonetheless consider whether appellants have any evidence supporting the causes

of action in their complaint, establishing a genuine issue of material fact. A moving

party does not meet the Civ.R. 56 burden through conclusory assertions that the

nonmoving party has no evidence to prove its case. Dresher at ¶ 17. “The assertion

must be backed by some evidence of the type listed in Civ.R. 56(C) which

affirmatively shows that the nonmoving party has no evidence to support that

party’s claims.” (Emphasis in original.) Id. A. Preliminary Matters

We disregard all of appellees’ arguments about the statutes of

limitations. This matter is a refiled case that was first initiated in 2019 and again in

2021. The dismissal order in the 2021 case provided that the “[p]arties further agree

and stipulate that any arguments regarding the statutes of limitations, savings

statute, the double dismissal rule, and anything related thereto are hereby waived as

long as [appellants] refile their action no later than August 31, 2023.” The

appellants filed the underlying action on that date. Therefore, appellees have waived

all arguments related to any statutes of limitations and we need not consider them.

Next, we address the John Doe 1-10 defendants. “In dealing with

unnamed parties, the court must consider Civ.R. 15(D) in conjunction with Civ.R.

3(A).” Kohout v. Church of St. Rocco Corp., 2008-Ohio-1819, ¶ 6 (8th Dist.). Under

Civ.R. 15(D), “when the plaintiff does not know the name of a defendant, that

defendant may be designated in a pleading or proceeding by any name and

description. When the name is discovered, the pleading or proceeding must be

amended appropriately.” Under Civ.R. 3(A), an action is commenced by filing a

complaint, “if service is obtained within one year from such filing upon . . . a

defendant identified by a fictitious name whose name is later corrected pursuant to

Civ.R. 15(D).” Here, appellants filed their refiled complaint on August 31, 2023.

Summary judgment was granted on September 5, 2024. Given that a year had

passed for service without amendment, the action was never “commenced” against

the John Doe defendants. See, e.g., Kohout at ¶ 7 (collecting cases). B. Successor Liability

Appellants’ complaint alleges a theory of successor liability, i.e., they

seek to hold appellees liable for Darrin and/or MAD Oregon’s misdeeds. The

complaint specifically makes these claims pursuant to the test set forth in Welco

Industries, Inc. v. Applied Cos., 67 Ohio St.3d 344 (1993), which held that “[t]he

well-recognized general rule of successor liability provides that the purchaser of a

corporation’s assets is not liable for the debts and obligations of the seller

corporation” except for when any of the four enumerated factors are found. Id. at

346.

Before reaching the four factors, however, Welco provides a general

rule for successor liability that relies on a purchase between the two entities. While

there may be genuine issues of material fact as to Darrin and/or MAD Oregon’s

misuse of their investment dollars, it is still incumbent upon appellants to

demonstrate that the named appellees have absorbed Darrin and/or MAD

Oregon’s liabilities under a theory of successor liability. Appellants have not met

this burden. In the complaint, appellants alleged that Darrin had advised them that

“MAD Oregon [LLC] was changing its name to ‘Green Mile’ or something similar.”

However, according to Zirafi’s deposition testimony, she recalls that the meeting

went as follows:

I recall that [Darrin] was very vague again about what was going on with the business. And we found out at some point that the person in charge of growing, or the cultivator, there had been a split-up with Darrin, and some different things with the company. And he was still running it, though, and things were delayed, and that type of thing, and then he was going to bring somebody else in.

...

And then it — and so they were switching names of the company, also.

(Zirafi Dep. 34-35.)

Modi could not recall whether he attended this particular meeting or

not, but testified that Darrin personally told him about the “Green Mile” investments

at some point and that “[t]here were conversations with Dr. Zirafi. . . .” (Modi Dep.

39.)

Despite the allegations in the complaint alleging that “[t]he only

logical inference here is that [appellants’] investment dollars were used to fund

[appellees]” and that appellees “were the . . . transferees of [Darrin] and MAD

Oregon’s fraudulent transfers,” appellants admit that they do not have any evidence,

beyond their speculation, to establish that their investment dollars given to Darrin

were provided to or otherwise funded appellees. Speculation is not Civ.R. 56(C)

evidence. Furthermore, appellants do not claim to have evidence beyond their own

speculation that their investments provided to Darrin for investment in MAD

Oregon LLC were transferred or entrusted to any of the appellees, let alone

purchased by appellees. (Zirafi Dep. 64, 65; Zanetti Dep. 40-41; Modi Dep. 22, 54-

60, 74.) Appellees’ motion for summary judgment included an affidavit from

Meredith averring that “[a]t no time following [appellants’] investment in MAD

Oregon did [Darrin] transfer any of [appellants’] investment dollars” to Clean

Remedies, LLC and Santo Meri, LLC, the two organizations in which Meredith is the sole member. The alleged reassurance by Darrin’s attorney that appellants were

now members of one of the “Green Mile” entities is not supported by the record. In

a letter dated July 19, 2018, Darrin’s attorney stated that “Darrin has not yet

finalized the documentation regarding the migration of the MAD Oregon investors

to Green Mile which is still in process.” This is not a representation that the

appellees’ investments had been migrated to an entity other than MAD Oregon.

This proper Civ.R. 56(C) evidence refutes appellants’ speculation

that a transaction, transfer, or purchase occurred between Darrin and/or MAD

Oregon with the appellees. Accordingly, appellees have established that there is

no dispute of material fact surrounding the transfer of funds between Darrin

and/or MAD Oregon and the appellees. Appellants’ attempt to impute Darrin

and/or MAD Oregon’s liability to appellees fails as a matter of law.

C. Theft by Deception, Money Had and Received, Civil Conspiracy

All of these claims are premised on appellants’ theory of successor

liability. Each of these causes of action allege that as the alter ego and/or

successors of MAD Oregon, appellees are liable to them for all of the

aforementioned causes of action. Since these claims are all premised on the theory

that MAD Oregon sold its assets to any and/or all of the appellee entities. We have

already established that appellants’ claim for successor liability fails as a matter of

law. Accordingly, these causes of action also fail as a matter of law.

D. Unjust Enrichment, Constructive Trust, Accounting, Misappropriation, Avoidance and Return of Transfer, Declaratory Judgment, Injunctive Relief, Conversion The unjust enrichment cause of action alleges that “[u]nder the facts

and circumstances set forth herein, [appellees] will be unjustly enriched to the

detriment of [appellants]” if appellants are allowed to retain the money that

appellants invested with Darrin and/or MAD Oregon. Similarly, the constructive

trust cause of action provides that “[u]pon information and belief, the only way

that [appellees] have been able to enjoy their ongoing success is by virtue of the

$1,000,000 that [Darrin] fraudulent[ly] procured from [appellants] and illegally

funneled to [appellees].” The misappropriation cause of action asserts that

appellees “used [appellants’ investments] to set up and fund other ventures.” The

cause of action for conversion provides that “[u]pon information and belief,

[appellees] are in possession of [appellants’] property.”

Appellants’ accounting and avoidance and return of transfer causes

of action only survive if appellants can provide evidence that Darrin and/or MAD

Oregon transferred their invested funds to the appellees. See R.C. 1336.04(A) (“A

transfer made or an obligation incurred. . . .”) and 1336.05(A) (same language).

In the cause of action for declaratory judgment, appellants seek a

declaration that appellants are owners of and/or lienholders “against any and all

entities that were in any way derived from their investment with [Darrin] in MAD

Oregon.” Similarly, appellants’ claim for injunctive relief is dependent on a finding

that appellants are “equitable owners and/or lienholders” of any of the

appellee entities. All these claims are premised on a theory that Darrin and/or MAD

Oregon transferred appellants’ funds to appellees — a theory that the appellants

have not supported with evidence, as discussed previously. Moreover, appellants

admitted during their respective depositions that they are not listed as members

in the operating agreements associated with the appellee entities. (Zirafi Dep. 66,

69; Modi Dep. 66-68, 70-74.) Regarding Zanetti, it is undisputed that she never

personally made an investment in MAD Oregon but rather, provided $100,000 of

her funds that Zirafi combined with her own $150,000 investment. Zirafi alone

made the combined investment and signed the documentation with Darrin.

Zanetti never directly contracted with Darrin for investment in MAD Oregon. This

is corroborated by the documentation submitted as deposition exhibits.

Accordingly, these claims also fail as a matter of law.

E. Breach of Fiduciary Duty

This claim was only pursued against Meredith and the John Doe

defendants. To establish that Meredith breached her fiduciary duty to appellants,

they must prove “(1) the existence of a fiduciary duty; (2) the failure to observe the

duty; and (3) an injury resulting proximately therefrom.” DPLJR, Ltd. v. Hanna,

2008-Ohio-5872, ¶ 19, citing Strock v. Pressnell, 38 Ohio St.3d 207, 216 (1988).

“In determining whether a fiduciary relationship has been created, the main

question is whether a party agreed to act primarily for the benefit of another in

matters connected with its undertaking.” Hope Academy Broadway Campus v.

White Hat Mgt., L.L.C., 2015-Ohio-3716, ¶ 43. Zirafi testified that she did not provide the combined funds intended

for MAD Oregon to Meredith, nor was Meredith ever present during discussions

with Darrin about the MAD Oregon investment. Zirafi also conceded that

Meredith was not a member of MAD Oregon. (Zirafi Dep. 25, 32, 43.) Zannetti

and Modi testified the same. (Zanetti Dep. 27; Modi Dep. 21-22, 32, 54-55, 57.)

Accordingly, there is no evidence of an agreement between

appellants and Meredith where Meredith “agreed” to act on their behalf.

Additionally, appellants do not have evidence that their funds were entrusted to

Meredith, only to Darrin. Appellants’ claim for breach of fiduciary duty against

Meredith fails as a matter of law.

F. Piercing the Corporate Veil

In this “cause of action,” appellants assert a theory that Meredith’s

actions and conduct “was so complete that the companies have no separate mind,

will, or existence of their own” and appellants demand that the appellee entities be

disregarded and instead hold Meredith personally liable for their damages. This

relies on evidence demonstrating that Meredith received and misused appellants’

money. Zirafi testified that she did not provide the combined funds intended for

MAD Oregon to Meredith. We have already established that all three appellants

admitted during deposition that they do not have evidence demonstrating that

Meredith received their investment money from Darrin. Accordingly, appellants’

attempt to pierce the corporate veil fails. G. Trustee Claims Under 11 U.S.C. 544, 548, 550

This cause of action stems from appellants’ purchase or assignment

of the Chapter 7 trustee’s claims pursuant to 11 U.S.C. 544, 548, 550. This fact is

undisputed by appellees. The notice of the sale and order approving the sale of

these claims were produced as exhibits to appellants’ complaint.

We first note that appellees’ reliance on counsel for the trustee’s

September 24, 2019 email is misplaced. The communication clearly states that

“[w]e . . . were unsuccessful in finding anything we considered sufficient to pursue

an objection by the trustee to the granting of a discharge to the debtor [Darrin].”

This does not mean that there are no possible claims that the trustee could bring

against anyone; it simply means that the trustee cannot find any reason to object

to Darrin’s discharge in bankruptcy as a whole.

Meredith’s affidavit provides that “[a]fter extensive examination of

financial records, the bankruptcy trustee and/or counsel for the bankruptcy trustee

determined that [Darrin] had no claims against [appellees] for the repayment of

any debts[.]” While this is conclusory, self-serving, and hearsay, we note that none

of the appellants, during deposition, could offer any specific claims that the trustee

or bankruptcy estate may have had against these named appellees. Moreover, no

evidence has been presented severing appellants’ personal claims from those

advanced as purchasers or assignees of the trustee. Accordingly, Civ.R. 56(C)

evidence verifies that appellants were unaware of the existence of any claims that

could have been made on behalf of the bankruptcy estate or the trustee. We caution that summary judgment is limited to the claims and

defendants brought by appellants in this matter only. According to the notice filed

in the bankruptcy proceeding, appellants purchased all the trustee’s “rights,

interests, claims, etc. arising and out of the [$]1,000,000 invested with Darrin

Farrow and/or MA[D] Oregon, LLC” that necessarily could include defendants and

claims other than those contemplated in the instant matter.

Appellants’ first assignment of error contesting the court’s granting

summary judgment in favor of appellees is overruled. We further overrule

appellants’ fourth assignment of error alleging that the trial court erred in failing to

issue an opinion detailing its reasoning for granting summary judgment. “A trial

court’s mere failure to set forth detailed reasons for granting summary judgment is

simply not a basis for reversal.” Ferguson v. Univ. Hosps. Health Sys., 2022-Ohio-

3133, ¶ 71 (8th Dist.). Having discerned that summary judgment was properly

granted, we need not reverse and remand for the trial court to issue detailed

reasoning for its decision.

Appellants’ second and third assignments of error allege that the

trial court erred in denying their requests for an extension of time to file their brief

in opposition and erred in denying their motion for reconsideration of the final

motion for extension of time with the proposed brief attached. To begin, motions

for reconsideration of a final judgment in the trial court are nullities. Bethlenfalvy

v. Sun Newspapers, 2000 Ohio App. LEXIS 2104, *5 (8th Dist. May 18, 2000).

We turn to the denial of appellants’ fifth motion for an extension of time to respond to summary judgment. A court’s decision related to extensions of

time are left to the sound discretion of the trial court and will not be disturbed

absent an abuse of this discretion. Khoury v. Charter One Bank, 2001 Ohio App.

LEXIS 1496, *10 (6th Dist. Mar. 30, 2001). Upon review, we do not find and

appellants fail to demonstrate that the trial court abused its discretion in refusing

to grant a fifth motion for an extension of time. Courts retain the power “to control

their efficient and prudent operation.” State ex rel. Richard v. Cuyahoga Cty. Bd.

of Commrs., 100 Ohio App.3d 592, 597 (8th Dist. 1995). And, trial courts “always

retain[] the inherent authority to control the docket and issue orders.” Wells Fargo

Bank, N.A. v. Myles, 2010-Ohio-2350, ¶ 20 (8th Dist.). Accordingly, this

discretion was not abused in refusing to grant the extension of time.

Appellants’ second and third assignments of error are overruled.

Judgment affirmed.

It is ordered that appellees recover from appellants costs herein taxed.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

EILEEN A. GALLAGHER, A.J., CONCURS; SEAN C. GALLAGHER, J., DISSENTS (WITH SEPARATE OPINION) SEAN C. GALLAGHER, J., DISSENTING:

I respectfully dissent. The majority reframes the arguments advanced

by Green Mile Enterprises LLC, Santo Meri LLC, Green Mile Solutions LLC, Green

Mile Wellness LLC, Clean Remedies, LLC, and Meredith Farrow (“GM Defendants”)

from a question of standing to the merits of the underlying claims. This recasting of

the arguments could impact long-standing, black-letter law. “Standing is a

preliminary inquiry that must be made before a court may consider the merits of a

legal claim.” (Emphasis added.) Kincaid v. Erie Ins. Co., 2010-Ohio-6036, ¶ 9,

citing Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 2007-Ohio-5024, ¶ 27, and

Cuyahoga Cty. Bd. of Commrs. v. State, 2006-Ohio-6499, ¶ 22. The question of a

party’s standing and the merits of a cause of action are separate concepts, a legal

distinction the parties should well be aware of when crafting their arguments.

I cannot join the majority’s conclusion that the GM Defendants

intended to discuss the merits of all claims presented instead of the standing

argument actually raised. What should have been argued is not an issue for

appellate courts to resolve. See Snyder v. Old World Classics, L.L.C., 2025-Ohio-

1875, ¶ 4, quoting Epcon Communities Franchising, L.L.C. v. Wilcox Dev. Group,

L.L.C., 2024-Ohio-4989, ¶ 15, and Greenlaw v. United States, 554 U.S. 237, 243,

(2008) (“‘[O]ur judicial system relies on the principle of party presentation, and

courts should ordinarily decide cases based on issues raised by the parties.’”).

Further, the majority’s conclusion appears to conflate the concept of standing with the merits of the claims advanced without offering the appellants the opportunity

to address the majority’s analysis. See State v. Tate, 2014-Ohio-3667, ¶ 21.

The GM Defendants advanced three arguments in favor of summary

judgment: (1) that eight of the 17 enumerated claims were filed after the expiration

of the statutes of limitations;1 (2) that all of the plaintiffs lacked standing to pursue

any of the claims; and (3) that the GM Defendants were entitled to summary

judgment on the merits of three of the claims: theft by deception, piercing the

corporate veil, and successor-liability. Thus, the lack-of-standing argument was the

only one that would result in a complete judgment in the GM Defendants’ favor.

The sole argument presented by the GM Defendants in their motion

for summary judgment as to the merits of three of the 17 claims was that the

investors failed to present any facts or evidence supporting those claims. The

moving party, however, must identify those portions of the record that demonstrate

the absence of a genuine issue of material fact on the essential elements of the

nonmoving party’s claims. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). Only

when that burden is satisfied does the nonmoving party then have a reciprocal

1 The GM Defendants have inexplicably demonstrated a complete disregard for

their waiver of the statutes of limitations as an affirmative defense, failing to even acknowledge or address its existence in this appeal. That waiver, however, is of public record in one of the earlier filings of this action. See State ex rel. Everhart v. McIntosh, 2007-Ohio-4798, ¶ 10 (concluding that it is appropriate for a reviewing court to take judicial notice of a dismissal entry in an earlier case between the parties in deciding the appeal). Because the GM Defendants purportedly waived the statutes of limitations as a defense and have failed to articulate any reason for that waiver to be ineffective, see App.R. 16(A)(7), the trial court’s decision granting summary judgment cannot be based on the statutes-of-limitations argument. burden to establish facts showing that there is a genuine issue for trial. Id. Simply

arguing that the plaintiff lacks evidence does not satisfy the moving party’s burden

under Civ.R. 56.2 Id. (“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.”) Id. But even if the limited argument presented were

deemed sufficient, at most the GM Defendants would be entitled to a partial

judgment on less than all of the claims based on their framing of the issues.

Although I would address the standing arguments as presented,

those arguments lack merit.

There is disputed evidence supporting the plaintiffs’ standing to

pursue the allegations in the complaint. Forty-eight documents were attached to

it. Neither party discusses the propriety of those attachments, but in general,

“items properly incorporated within the complaint may be considered.” Katz v.

Univ. Hosps. Health Sys., 2022-Ohio-3328, ¶ 12 (8th Dist.), citing Woods v.

Sharkin, 2022-Ohio-1949 ¶ 31 (8th Dist.), and Vail v. Plain Dealer Publishing Co.,

72 Ohio St.3d 279, 280 (1995). Although the investors’ attachments may not

2 The GM Defendants also argue that (1) the theft-by-deception statute does not

provide a private right of action despite R.C. 2307.60, which creates a civil cause of action for damages resulting from a criminal act such as theft by deception; and (2) that piercing the corporate veil is not a stand-alone claim. Neither argument has merit. As the GM Defendants acknowledge, R.C. 2307.60 creates a private cause of action for damages stemming from a criminal offense, and insomuch as piercing the corporate veil is not a claim, it is a measure of damages. The complaint simply puts the defendants on notice of their intent to seek damages against Meredith in her individual capacity. There is no basis to grant them a judgment on that allegation. necessarily have been properly incorporated in the complaint under Civ.R. 10(D),

the GM Defendants have not objected to consideration of those documents as part

of the pleadings under Civ.R. 56(C). Id. at ¶ 12, fn. 3. Those documents, along with

the allegations of the complaint, undoubtedly establish that Zirafi has standing to

pursue the claims.

Under the GM Defendants’ own framing of the issue, 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). Further according to them, in

order to establish standing, the plaintiff must demonstrate an injury that is fairly

traceable to the defendants’ allegedly unlawful conduct and likely to be redressed

by the requested relief. Sonis v. Rasner, 2015-Ohio-3028, ¶ 45 (8th Dist.). That

black-letter law is not in dispute.

That standing test is easily satisfied by the allegations in the

complaint, advancing 17 causes of action broadly alleging an intent for the

investors’ capital investments to be used to secure the investors’ rights in a Green

Mile entity formed by Darrin to operate a cannabis business after MAD Oregon

imploded. Darrin personally filed articles of incorporation for GM Enterprises,

naming himself as a member of the organization. GM Enterprises’ operating

agreement expressly stated that it was formed “for the purpose of acquiring certain

assets and assuming the lease located at 24621 S. Barlow Rd., Aurora OR 97002

and thereafter applying for licensure in Oregon as a cannabis cultivation and processing facility.” That property was the same “Barlow Property” referred to in

Darrin’s pitch material for MAD Oregon and corroborates a statement by the

attorney for Darrin and a Green Mile entity that Darrin intended to “migrate” the

MAD Oregon investors’ capital investment to a newly formed Green Mile entity.

If Darrin is alleged to have injured the investors by accepting

significant seed money, he expressly did so on behalf of the later-formed Green Mile

entity he represented. That entity could be just as liable for Darrin’s conduct as

Darrin himself.

Darrin’s ultimate ownership or shareholder status of any Green Mile

entity is irrelevant to the question of standing, and the GM Defendants have not

identified any authority demonstrating that an injured investor must specifically

trace funds in order to recover for corporate misdeeds. In their motion for

summary judgment and repeated in this appeal, the GM Defendants in fact concede

that HCH Investments has standing to pursue the claims advanced in the

complaint. Brief of Appellees, p. 11 (“HCH, rather than Modi, has standing to

pursue the claims alleged in the Complaint.”).3 HCH Investments’ claims would be

identical to Zirafi’s, who invested for herself and on behalf of Zanetti. If HCH

Investments has standing, then so too, at the least, does Zirafi.

The allegations implicate the GM Defendants as being the parties

against whom liability arises, with Zirafi’s injury being traceable to their conduct

3 Modi signed the subscription agreement, the written instrument used to facilitate

the disputed investment, as the manager of his company, HCH Investments, LLC. and relief being available to redress the injury caused by the GM Defendants’

retention of the capital investments without providing the investors an ownership

interest in the entity formed with their investments. Agents acting on behalf of the

GM Defendants expressly told Zirafi that her investment would eventually be

migrated to a Green Mile enterprise operating at the same location as MAD Oregon

and created by Darrin. That Darrin has not been included as a party defendant

based on his personal bankruptcy or that the individual investors have no personal

knowledge of the transfer of their investment to any of the GM Defendants is

irrelevant to the standing question. The lack of standing was not a basis on which

summary judgment could have been granted upon Zirafi’s claims.

I acknowledge that Modi and Zanetti did not directly invest with

Darrin, impacting the question of their standing. Modi did so through his

corporation, HCH Investments, and Zanetti through Zirafi. Instead of focusing on

the question of standing for Modi and Zanetti, the investors alternatively argue that

the GM Defendants’ summary-judgment motion impermissibly shifted the burden

to them to prove their case without their first demonstrating entitlement to relief.

In the motion for summary judgment, the GM Defendants focused on their

reductive version of the allegations in the complaint, which disavows any

association between them and Darrin without any supporting documentation or

citation to relevant and undisputed evidence. The GM Defendants’ argument

overlooks the fact that once raised, “[s]tanding is a preliminary inquiry that must

be made before a court may consider the merits of a legal claim.” (Emphasis added.) Kincaid, 2010-Ohio-6036, at ¶ 9, citing Ohio Pyro, Inc., 2007-Ohio-5024,

at ¶ 27, and Cuyahoga Cty. Bd. of Commrs., 2006-Ohio-6499, at ¶ 22. Being a

question of law, it is an issue to be decided by a court based on prevailing legal

authority as applied to the facts of the particular case. The GM Defendants

provided none, and the majority tellingly avoids the discussion altogether.

Because this case stems from a motion for summary judgment, the

initial burden was on the GM Defendants to disprove Modi’s and Zanetti’s standing

with undisputed evidence, legal analysis, and citations to relevant authority in

support of their arguments. Dresher, 75 Ohio St.3d 280, at 293. It is a general

principle that “[a] party seeking summary judgment must specifically delineate the

basis upon which summary judgment is sought in order to allow the opposing party

a meaningful opportunity to respond.” Mitseff v. Wheeler, 38 Ohio St.3d 112

(1988), syllabus.

The GM Defendants’ motion for summary judgment is devoid of any

legal analysis to support the standing argument. After reciting the above-

mentioned black-letter law defining standing, they simply cited the subscription

agreement signed by Modi on behalf of HCH Investments and addressed Zanetti’s

contribution through Zirafi. The cursory argument is not sufficient to warrant a

judgment in their favor because it forced the trial court to produce its own analytical

framework and supporting case authority beyond the singular reference to the

black-letter law regarding standing. This is aptly demonstrated by the majority’s reframing of the summary-judgment motion to focus on the merits of the claims

rather than the standing issue actually advanced.

The motion for summary judgment should have been denied. The

GM Defendants failed to establish an absence of genuine issues of material fact as

to the claims presented in the complaint and otherwise failed to demonstrate

entitlement to judgment as a matter of law. I would reverse the judgment and

remand for further proceedings.