author: DORRIAN, J.

text:
    Ashraf ETTAYEM, Plaintiff-Appellant, v. The LAND OF ARARAT INVESTMENT GROUP, INC. et al., Defendants-Appellees.
    No. 17AP-93
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 5, 2017
    On brief: Ashraf Ettayem, pro se. Argued: Ashraf Ettayem.
    On brief: Terry K. Sherman, Columbus,; Irving B. Marks, for appellees. Argued: Terry K. Sherman.
    DECISION
   DORRIAN, J.

{¶ 1} Plaintiff-appellant, Ashraf Ettayem, appeals from a decision of the Franklin County Court of Common Pleas granting judgment in favor of defendants-appellees, Tigran Safaryan and the Land of Ararat Investment Group, Inc. For the following reasons, we affirm in part and reverse in part.

I. Facts and Procedural History

{¶ 2} This case arises out of business dealings between the parties. Defendant Safaryan is the sole shareholder and manager of defendant Land of Ararat, a corporation whose only asset is a small shopping center located at the intersection of Groveport, Watkins, and Lockbourne Roads in Franklin County (the "Southfield Center"). Appellant is a former minority shareholder in Land of Ararat, and through his own wholly-owned corporation, EMA Group Corp. ("EMA"), operated at various times a retail business known as Shop N Save in the Southfield Center. Appellant purchased 20 percent of Land of Ararat's stock in 2004.

{¶ 3} EMA first opened Shop N Save in the Southfield Center in 2007, operating without a written lease. By 2009, the business was inactive although EMA maintained some property and equipment in the former store space. The evidence in the case generally establishes that the only other useful tenant in the Southfield Center at the time was a small pharmacy occupying the storefront adjacent to the former Shop N Save, although Land of Ararat eventually leased an undeveloped area of the property to a cell phone tower operator for $700 per month.

{¶ 4} After closing the Shop N Save, appellant became dissatisfied with the return on his investment in Land of Ararat. In 2009, the parties negotiated two parallel transactions under which (1) appellant would sell his 20 percent stake in Land of Ararat to Safaryan, and (2) EMA and Land of Ararat would enter into a commercial lease with the intention of re-opening the Shop N Save store.

{¶ 5} Appellant offered to sell his 20 percent interest in Land of Ararat for approximately $100,000, and Safaryan accepted; the figure was eventually adjusted to reflect the relative advantages to each party accruing from the impending storefront lease for a revived Shop N Save operation. The transaction closed on January 7, 2010, with a stated price of $95,000 paid in the form of a $10,000 deposit, $60,000 due the day after closing, and a $25,000 note due April 10, 2010.

{¶ 6} Contemporaneously with the sale of appellant's shares, EMA and Land of Ararat entered into a five-year lease of "approximately 7000-7500 square feet" at 2950 Groveport Road in the Southfield Center at $2,000 per month with the first four months waived. (Comp., Ex. C at 1.) The named parties are EMA and Land of Ararat, and the signature block contains appellant's signature in his capacity as president of EMA. In a final paragraph appearing after the notarized acknowledgements of signature, Ettayem personally guaranteed EMA's lease payment obligations for the first six payable months of the lease, May through October 2010.

{¶ 7} EMA's Shop N Save briefly reopened at the leased location and then closed again amid disputes over the condition of the premises. Some time later, the parties also disagreed over access to the now-vacant premises and removal of the Shop N Save store fixtures. Appellant then brought this action contesting both Land of Ararat's performance under the lease and Safaryan's conduct pertaining to the stock sale. The matter is now in its second incarnation pursuant to a refiled complaint.

{¶ 8} EMA and appellant initially commenced the matter on December 10, 2013 with a complaint naming both as plaintiffs and stating claims for breach of lease contract, conversion of the store equipment, breach of fiduciary duty, fraud, and punitive damages. The first two claims were by EMA and arose out of the lease agreement, while the third and fourth claims were by appellant personally and arose out of appellant's sale of his minority interest in Land of Ararat. The fifth claim for punitive damages was derivative of the four substantive claims. The first and second claims were voluntarily dismissed without prejudice by counsel for EMA on October 29, 2014. On October 30, 2014, appellant personally dismissed the remaining causes of action without prejudice.

{¶ 9} Appellant, proceeding pro se, refiled a complaint restating the same five claims on October 30, 2015. EMA is not a named plaintiff and appellant now asserts all claims on his own behalf, including those arising out of the lease between EMA and Land of Ararat. Appellees filed a motion to dismiss the complaint as untimely, which the trial court denied by entry filed January 26, 2016. Appellees then filed an answer that included affirmative defenses addressing standing, timeliness, and failure to state a claim.

{¶ 10} Discovery proceeded with an exchange of requests for admissions, interrogatories, and requests for production. Appellant appeared for a lengthy deposition on July 15, 2016. The trial court granted appellant's motion to extend discovery on July 26, 2016. On August 29, 2016, appellees again moved to dismiss the first, second, and fourth causes of action for failure to state a claim, asserting that appellant was not the real party in interest for claims arising from the lease, and that the fraud claim based on the stock sale was not stated with sufficient particularity. The court did not immediately decide this motion.

{¶ 11} Appellees moved for summary judgment on October 11, 2016. This motion incorporated by reference their still-pending motion to dismiss. The evidence in support of summary judgment included appellant's deposition and the operative documents for the storefront lease and stock sale. Appellant then moved to again extend the discovery cutoff. He also sought additional time to respond to the summary judgment motion and requested a status conference. The trial court, by entry dated November 4, 2016, denied an extension of discovery but granted appellant until November 17, 2016 to file his memorandum in opposition to summary judgment. The court did not order a status conference.

{¶ 12} The trial court rendered judgment in favor of appellees on all claims on January 5, 2017. The court found that the first two claims, which are based on the alleged breach of the lease and conversion of store equipment, failed because appellant, acting pro se, could not file claims on behalf of the corporate entity EMA, and were also time-barred because he had refiled them more than one year after the initial dismissal on October 29, 2014. The court further found with respect to the third cause of action for breach of fiduciary duty that appellant had submitted no evidence to maintain a genuine issue of material fact regarding any breach by Safaryan of the fiduciary duty owed to appellant as a minority share holder. The court found the fourth claim for fraud was pleaded with insufficient particularity under Civ.R. 9(B), and there was no evidence to support even a sufficiently-pled claim for fraud. The court then granted judgment on the fifth cause of action for punitive damages, which was entirely derivative of the first four claims.

II. Assignments of Error

{¶ 13} Appellant appeals and assigns the following three assignments of error for our review:

[I.] THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT.
[II.] THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FIRST, SECOND, AND FOURTH CAUSES OF ACTION.
[III.] THE TRIAL COURT ERRED WHEN [IT] DENIED PLAINTIFF'S MOTION TO EXTENED [sic] DISCOVERY, REQUEST FOR A HEARING AND CLEARED ITS DOCKET OF PLAINTIFF'S REQUEST FOR A STATUS CONFERENCE.

III. Discussion

{¶ 14} We begin with appellant's third assignment of error, which asserts the trial court erred when it denied his motion to extend discovery and request for a status conference. Appellant asserts he had multiple difficulties with discovery and needed to develop new evidence based on the content of Safaryan's deposition. The trial court granted only a short extension for appellant to reply to the pending motion for summary judgment.

{¶ 15} Trial courts possess broad discretion over the discovery process.

State ex rel. Citizens for Open, Responsive & Accountable Govt. v. Register , 116 Ohio St.3d 88, 2007-Ohio-5542, 876 N.E.2d 913, ¶ 18. Appellate courts, therefore, generally review a trial court's decision regarding a discovery matter only for an abuse of discretion. Mauzy v. Kelly Servs., Inc. , 75 Ohio St.3d 578, 592, 664 N.E.2d 1272 (1996) ; State ex rel. Sawyer v. Cuyahoga Cty. Dept. of Children & Family Servs. , 110 Ohio St.3d 343, 2006-Ohio-4574, 853 N.E.2d 657, ¶ 9 ; MA Equip. Leasing I, LLC v. Tilton , 10th Dist., 2012-Ohio-4668, 980 N.E.2d 1072, ¶ 13.

{¶ 16} The trial court noted that discovery had proceeded through previous extensions, and the refiled case benefitted from proceedings preceding dismissal of the first complaint. To the extent that appellant claimed at the eleventh hour appellees had not provided complete responses to his requests for documents, we note the record does not disclose any indication appellant had previously sought the assistance of the court to obtain timely cooperation from the defendants. Appellant has not particularized the necessary evidence that would have been uncovered by additional discovery time. Because the court's rulings were consistent with the fair and efficient administration of the case, and because appellant fails to articulate specific prejudice from the trial court's discovery ruling, we can find no abuse of discovery on the part of the trial court's oversight of the discovery process. We overrule appellant's third assignment of error.

{¶ 17} We next discuss appellant's first and second assignments of error together. These address the trial court's disposition of his five substantive claims via dismissal for failure to state a claim or via summary judgment.

{¶ 18} Appellant's first claim asserted breach of the lease agreement. The trial court found he lacked standing to pursue this contract claim on behalf of EMA and the claim must be dismissed. The court also found that the claim was refiled outside the one-year grace period of the savings statute, and was time-barred. On these bases, the court dismissed the claim under Civ.R. 12(B)(6) for failure to state claim upon which relief can be granted.

{¶ 19} When reviewing a judgment on a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted, an appellate court's standard of review is de novo. Perrysburg Twp. v. Rossford , 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5. A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. , 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992), citing Assn. for the Defense of the Washington Local School Dist. v. Kiger , 42 Ohio St.3d 116, 117, 537 N.E.2d 1292 (1989). In considering a motion to dismiss, a trial court may not rely on allegations or evidence outside the complaint. State ex rel. Fuqua v. Alexander , 79 Ohio St.3d 206, 207, 680 N.E.2d 985 (1997). Rather, the trial court may review only the complaint and may dismiss the case only if it appears beyond a doubt that the plaintiff can prove no set of facts entitling the plaintiff to recover. O'Brien v. Univ. Community Tenants Union, Inc. , 42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus.

{¶ 20} A trial court must presume all factual allegations contained in the complaint to be true and must make all reasonable inferences in favor of the non-moving party. Jones v. Greyhound Lines, Inc. , 10th Dist., 2012-Ohio-4409, 981 N.E.2d 294, ¶ 31, citing Mitchell v. Lawson Milk Co. , 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). "[A]s long as there is a set of facts, consistent with the plaintiff's complaint, which would allow the plaintiff to recover, the court may not grant a defendant's motion to dismiss." York v. Ohio State Hwy. Patrol , 60 Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991). The court need not, however, accept as true any unsupported and conclusory legal propositions advanced in the complaint. Morrow v. Reminger & Reminger Co. L.P.A. , 183 Ohio App.3d 40, 2009-Ohio-2665, 915 N.E.2d 696, ¶ 7.

{¶ 21} A party may assert a statute of limitations defense through a Civ.R. 12(B)(6) motion to dismiss if the defense is apparent in the complaint. Charles v. Conrad , 10th Dist. No. 05AP-410, 2005-Ohio-6106, 2005 WL 3073358, ¶ 24 ; Stuller v. Price , 10th Dist. No. 02AP-29, 2003-Ohio-583, 2003 WL 257459, ¶ 27. A defense based on lack of standing may also be raised under Civ.R. 12(B)(6). State ex rel. Walgate v. Kasich , 147 Ohio St.3d 1, 2016-Ohio-1176, 59 N.E.3d 1240, ¶ 13.

{¶ 22} With respect to the statute of limitations issue on the first claim, the trial court erred. The applicable statute of limitations is eight years, pursuant to R.C. 2305.06, governing contracts in writing. The alleged breach of contract occurred no earlier than January 2010. EMA dismissed its lease claim on October 29, 2014 and refiled it on October 30, 2015. The trial court correctly computed that this was outside the one-year period provided under Ohio's savings statute, R.C. 2305.19. See Shue v. Ohio Dept. of Rehab. & Corr. , 10th Dist. No. 16AP-432, 2017-Ohio-443, 2017 WL 495596 (complaint dismissed on March 2nd and refiled the following March 3rd was untimely, being filed one year and one day later). Appellant did not, however, require R.C. 2305.19 to "save" this claim as timely because the applicable eight-year statute of limitations had not yet expired, the breach of the lease having taken place at the earliest in 2010. R.C. 2305.19(A) provides in pertinent part that "in any action that is commenced [and] fails otherwise than upon the merits, the plaintiff * * * may commence a new action within one year after the date of the * * * failure otherwise than upon the merits or within the period of the original applicable statute of limitations, whichever occurs later. " (Emphasis added). The refiled complaint was timely as to the lease claims.

{¶ 23} Despite this conclusion as to timeliness, we nonetheless conclude the trial court properly dismissed the lease claim because appellant lacked standing to bring this claim on behalf of his corporation, EMA. "A corporation cannot maintain litigation in propria persona, or appear in court through an officer of the corporation or an appointed agent not admitted to the practice of law." Union Savs. Assn. v. Home Owners Aid, Inc. , 23 Ohio St.2d 60, 262 N.E.2d 558 (1970), syllabus. "Although an individual party may represent himself, such right of self-representation does not extend to parties who are not natural persons." In re Lawson , 98 Ohio App.3d 456, 648 N.E.2d 889 (10th Dist.1994).

{¶ 24} The language of the written lease makes clear that the contracting parties are EMA and Land of Ararat. Appellant nonetheless argues that he has standing as a shareholder of EMA and as a guarantor of EMA's performance under the lease. Neither is true.

{¶ 25} With respect to his status a guarantor, appellant's complaint does not allege he was personally called on to make rent payments on behalf of EMA. He therefore alleges no personal injury that would support standing. Moreover, his recourse as a guarantor if such payments were made might well be a subrogation action against EMA itself rather than the party that contracted with EMA. See generally Greenzalis v. Nationwide Mut. Ins. Co. , 10th Dist. No. 16AP-139, 2016-Ohio-8344, 2016 WL 7427423.

{¶ 26} Insofar as appellant claims standing as the owner of EMA, Ohio law is clear that only a corporation, not its shareholders, can complain of an injury sustained by, or a wrong done to, the corporation. An exception exists when there is a special duty, such as a contractual duty, between the wrongdoer and the shareholder, and the shareholder suffered a separate and distinct injury. Hershman's, Inc. v. Sachs-Dolmar Div. , 89 Ohio App.3d 74, 77-78, 623 N.E.2d 617 (9th Dist.1993). The "special duty" that creates a cause of action in favor of the shareholder as an individual must originate "from circumstances independent of the shareholder's status as a shareholder." Maloof v. Benesch, Friedlander, Coplan & Aronoff , 8th Dist. No. 84006, 2004-Ohio-6285, 2004 WL 2676739, ¶ 20. The lease instrument here creates no such special duty owed by Land of Ararat to appellant, and he therefore lacks standing to pursue a claim under the lease.

{¶ 27} On these two bases, we find the trial court properly dismissed appellant's claim for breach of the lease agreement.

{¶ 28} We now turn to appellant's second claim, which alleges conversion in that Land of Ararat retained or disposed of the store equipment left on the leased premises after the Shop N Save closed. The trial court found, as with the lease claim, that this was a claim that belonged solely to EMA as owner of the equipment, and that the claim was time-barred. In a variation of our approach to the lease claims, we find on the face of the complaint that appellant has standing, but that his claim cannot withstand summary judgment.

{¶ 29} The complaint alleges appellees "wrongfully exercised dominion and control over the plaintiff's personal property," and "plaintiff owns the items and have [sic] a right to possess them." (Comp. at 8-9.) The complaint, therefore, sufficiently alleges injury to appellant as owner of the equipment. However, appellant's own deposition testimony does not support this aspect of the claim. He testified the alleged converted equipment and personal property was the property of EMA, not his own, from 2010 through 2014. (Ettayem Depo. at 102.)

{¶ 30} Summary judgment under Civ.R. 56(C) is appropriate when there remains no genuine issue of material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to but one conclusion, that conclusion being adverse to the party opposing the motion. Tokles & Son, Inc. v. Midwestern Indemn. Co. , 65 Ohio St.3d 621, 629, 605 N.E.2d 936 (1992), citing Harless v. Willis Day Warehousing Co. , 54 Ohio St.2d 64, 375 N.E.2d 46 (1978). An appellate court's review of summary judgment is de novo. Hudson v. Petrosurance, Inc. , 127 Ohio St.3d 54, 2010-Ohio-4505, 936 N.E.2d 481, ¶ 29. Thus, we conduct an independent review of the record and stand in the shoes of the trial court. Abrams v. Worthington , 169 Ohio App.3d 94, 2006-Ohio-5516, 861 N.E.2d 920, ¶ 11 (10th Dist.).

{¶ 31} Appellant's own deposition testimony leaves no genuine issue of material fact. He was not the owner of the converted equipment, and has no standing to bring a conversion claim. Land of Ararat was entitled to summary judgment on this claim.

{¶ 32} Appellant's third claim asserts Safaryan personally breached his fiduciary duty as majority shareholder when negotiating the repurchase of appellant's minority stake in Land of Ararat. The complaint alleges that Safaryan manipulated the apparent financial condition of Land of Ararat by diverting funds to other enterprises, concealing revenue from tenants of the Southgate Center, and concealing the possibility of a new cell tower lease.

{¶ 33} "A party in a business transaction with another with whom he is in a fiduciary relationship must fully disclose material facts known to him but not to the other. Blon v. Bank One, Akron, N.A. (1988), 35 Ohio St.3d 98, 101, 519 N.E.2d 363." Binsack v. Hipp , 6th Dist. No. H-97-029, 1998 WL 334223 (June 5, 1998). To prove such a claim for breach of fiduciary duty under Ohio law, the following elements must be established: (1) the existence of a duty arising from a fiduciary relationship; (2) a failure to observe the duty; and (3) an injury resulting proximately therefrom. Saxe v. Dlusky , 10th Dist. No. 09AP-673, 2010-Ohio-5323, 2010 WL 4324198, ¶ 23, citing Wells Fargo Bank, N.A. v. Sessley , 188 Ohio App.3d 213, 2010-Ohio-2902, 935 N.E.2d 70, ¶ 36.

{¶ 34} The majority shareholders in a closely-held corporation have a fiduciary duty to minority shareholders. Crosby v. Beam , 47 Ohio St.3d 105, 108, 548 N.E.2d 217 (1989), citing Jones v. H.F. Ahmanson & Co. , 1 Cal.3d 93, 81 Cal.Rptr. 592, 460 P.2d 464 (1969). "Courts in sister states and Ohio appellate courts have found a heighted fiduciary duty between majority and minority shareholders in a close corporation. This duty is similar to the duty that partners owe one another in a partnership because of the fundamental resemblance between the close corporation and a partnership." Id. , citing Donahue v. Rodd Electrotype Co. of New England, Inc. , 367 Mass. 578, 588-89, 328 N.E.2d 505 (1975). The standard is one of utmost good faith and loyalty. Id. Control of the stock in a closed corporation cannot be used to give the majority benefits which are not shared by the minority. Id. at 109, 548 N.E.2d 217. Such a breach is actionable by the minority shareholders who are individually harmed. Id. ; Franks v. Rankin , 10th Dist. No. 11AP-962, 2012-Ohio-1920, 2012 WL 1531031, ¶ 34.

{¶ 35} The parties here agree that appellant was a minority shareholder in Land of Ararat and Safaryan was the majority owner. A fiduciary duty therefore existed. The dispute lies in the second and third elements of the claim, breach of that duty, and damages flowing therefrom.

{¶ 36} Appellant argues that under Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996), appellees could not discharge their burden under Civ.R. 56 simply by making conclusory assertions that appellant had no evidence to prove his case, but were held as the moving party to point to some evidence that affirmatively demonstrates that appellant had no evidence to support each element of the stated claims. Appellant's arguments are summed up by the following statement: "This does not prove that defendant 'Safaryan' has proven that Plaintiff 'Ettayem' was never induced, misrepresented to, and fraudulently omitted from * * * knowing the truth." (Memo. in Opp. at 8.)

{¶ 37} The factual issues involve diversion of funds, concealment of past rents, and non-disclosure of the prospective cell tower lease. In opposition to summary judgment, appellant relied on his own deposition testimony, admissions by appellees, and answers to interrogatories. The deposition testimony at times covered matters of which appellant had no personal knowledge, especially regarding the actual and true lease rates and revenues for the Southgate Center.

{¶ 38} However, on our independent review, we find the record reveals Safaryan did not introduce sufficient unrebutted evidence to warrant summary judgment on the breach of fiduciary duty claim. While there remained no genuine issue of material fact with respect to certain allegations regarding concealment of rents and diversion of funds, appellant presented evidence that established a genuine issue of material fact regarding non-disclosure of the impending cell tower lease, and a consequent loss to appellant resulting from the undervaluation of his shares in Land of Ararat.

{¶ 39} Appellant testified that when he established his offer price for the sale of his shares in Land of Ararat, he relied on his own assessment of the property undertaken in 2004, and based his offer to sell his shares on his knowledge of the pharmacy rent, his projections of future rent paid by Shop N Save, and a capitalization rate (ten times income) of his own choosing. Appellant did not particularize the supposedly concealed rental payments from the pharmacy, nor does he have personal knowledge of them to the extent he discusses them in his deposition. Beyond his own suspicions, he introduced no independent evidence of concealment or diversion of corporate funds from Land of Ararat. With respect to the revenue from the cell phone tower, however, appellant provided specific facts based on personal knowledge and admissions by appellees. Appellant testified at his deposition that he was not informed by Safaryan or otherwise aware of the planned cell phone tower lease. Rent for this amounted to $700 per month to Land of Ararat. Appellant testified that, had he known of the cell phone tower project, he would have increased his view of the capitalized value of the shopping center by $84,000 and, therefore, increased the value of his 20 percent share by approximately $17,000.

{¶ 40} In sum, the evidence is such that there remains a genuine issue of material fact regarding a breach of fiduciary duty by Safaryan in his role as majority shareholder based on the duty to fully and faithfully disclose potential future revenue from the cell phone tower for Land of Ararat. The trial court erred in granting summary judgment in favor of appellees on this portion of the breach of fiduciary duty claim.

{¶ 41} The final substantive claim in the case was for fraud. The trial court dismissed appellant's fraud claim on the basis that he had not pleaded fraud with sufficient particularity. The court also found appellant had failed to produce evidence to maintain a genuine issue of material fact on this claim. We find the claim was, in fact, sufficiently pleaded and reverse for the evidentiary reasons set forth in the foregoing discussion of the breach of fiduciary duty claim.

{¶ 42} The elements of a fraud claim are as follows: (1) a representation or, where there is a duty to disclose, concealment of a fact, (2) that is material to the transaction at hand, (3) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (4) with the intent of misleading another into relying upon it, (5) with justifiable reliance by the injured party upon the representation or concealment, and (6) resulting injury proximately caused by the reliance. Burr v. Bd. of Cty. Commrs. , 23 Ohio St.3d 69, 491 N.E.2d 1101 (1986), paragraph two of the syllabus.

{¶ 43} In Ohio, fraud cannot be predicated on promises or representations relating to future action or conduct. Brevoort v. Internatl. Fin. Resources, Inc. , 10th Dist. No. 93AP-977, 1993 WL 546579 (Dec. 30, 1993). To constitute actionable fraud, the misrepresentation must be of a fact existing when the misrepresentation was made or one that previously existed. Gouge v. BAX Global, Inc. , 252 F.Supp.2d 509, 515 (N.D.Ohio 2003), citing Yo-Can, Inc. v. The Yogurt Exchange, Inc. , 149 Ohio App.3d 513, 525, 2002-Ohio-5194, 778 N.E.2d 80 (7th Dist.), citing Link v. Leadworks Corp. , 79 Ohio App.3d 735, 742, 607 N.E.2d 1140 (8th Dist.1992). Generally, a representation concerning a future event will not support a fraud claim, because such a representation is more in the nature of a prediction or opinion about what the future may bring. Id. However, a promise made with a present intention not to perform is a misrepresentation of an existing fact even if the promised performance is to occur in the future. Adams v. Margarum , 10th Dist. No. 16AP-515, 2017-Ohio-2741, 2017 WL 1902017, ¶ 15.

{¶ 44} Civ.R. 9(B) provides that "[i]n all averments of fraud * * * the circumstances constituting fraud * * * shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally." "Typically, the requirement of particularity includes 'the time, place and content of the false representation, the fact misrepresented, and the nature of what was obtained or given as a consequence of the fraud.' " Carter-Jones Lumber Co. v. Denune , 132 Ohio App.3d 430, 433, 725 N.E.2d 330 (10th Dist.1999), quoting Baker v. Conlan , 66 Ohio App.3d 454, 458, 585 N.E.2d 543 (1st Dist.1990). "The requirement that fraud be pled with particularity is based upon the principle that a complaint of fraud, frivolously or unjustifiably brought, carries greater potential for unjust consequences and thus a higher burden should be placed upon the plaintiff to support such general allegations with specific facts." Id.

{¶ 45} The complaint averred that Safaryan had intentionally misrepresented and concealed specific financial information with the purpose of distorting the value of Land of Ararat, Safaryan had a duty as majority shareholder to accurately disclose those facts, and appellant had relied on those misrepresentations and omissions. The complaint further avers appellant was damaged by accepting a lesser price for his shares than he would have sought if fully informed. The time, manner, and content of these statements is sufficiently specified. The complaint sufficiently described the transaction at issue and the accompanying elements to satisfy the pleading requirements of Civ.R. 9(B).

{¶ 46} With the fraud claim sufficiently pled, we find the trial court additionally erred in finding that there was no evidence to support it as it relates to the cell phone tower. The above review of the evidence in connection with the breach of fiduciary duty claim demonstrates appellant's ability to maintain a genuine issue of material fact with respect to the existence of the fraud elements of non-disclosure, justifiable reliance, and proximate cause. The trial court's grant of summary judgment on the fraud claim must be reversed.

{¶ 47} Finally, we note the trial court's judgment on the fifth claim for punitive damages is entirely predicated on judgment for the defendants on the four substantive claims. With the revival of the breach of fiduciary duty and fraud claims, the grant of summary judgment on the punitive damages claim as to the cell phone tower must be reversed as well. Appellant's first and second assignments of error are sustained in part and overruled in part.

IV. Conclusion

{¶ 48} In sum, appellant's first and second assignments of error are sustained in part and overruled in part, and his third assignment of error is overruled. The judgment of the Franklin County Court of Common Pleas is affirmed in part, reversed in part, and remanded to that court for further proceedings consistent with law and this decision.

Judgment affirmed in part, reversed in part, and cause remanded.

LUPER SCHUSTER and HORTON, JJ., concur.


source: Caselaw Access Project

author: BRUNNER, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellant, v. David PABLO, Defendant-Appellee.
    No. 16AP-888
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 5, 2017
    On brief: Ron O'Brien, Prosecuting Attorney, Steven L. Taylor, and Valerie B. Swanson, for appellant. Argued: Valerie B. Swanson.
    On brief: Yousef M. Faroniya, Columbus, for appellee. Argued: Yousef M. Faroniya, Columbus.
    DECISION
   BRUNNER, J.

{¶ 1} Plaintiff-appellant, State of Ohio, appeals a decision of the Franklin County Court of Common Pleas issued on December 21, 2016 which suppressed statements the defendant-appellee, David Pablo, made to the police in an interrogation on September 24, 2014. Because Pablo was not afforded the presence of a parent or responsible adult in determining whether to waive his Miranda rights, because he had no prior experience with the police, because English was not his first or primary language, because evidence suggested his level of intelligence was not high, and because he indicated that he signed the rights waiver form because he thought he had to, we agree with the trial court. Under the totality of the circumstances, Pablo's Miranda waiver was not valid and Pablo's statement to the police was correctly suppressed.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On September 24 and 25, 2014, Pablo was charged as a juvenile with three counts of rape, two counts of kidnapping, one count of gross sexual imposition, and one count of felonious assault in connection with two incidents involving two different women on September 9 and 22, 2014. (Sept 24, 2014 Compl. Franklin C.P. No. 14JU-12291; Sept. 25, 2014 Compl. Franklin C.P. No. 14JU-12370.) Following proceedings in the Juvenile Division on both cases, the Juvenile Division issued an entry on March 14, 2016 transferring the case to the General Division of the Franklin County Court of Common Pleas for criminal prosecution of Pablo as an adult. (Mar. 14, 2016 Bindover Entry.) On March 23, a grand jury indicted Pablo as an adult for 14 offenses similar to the juvenile charges in connection with the same two incidents. (Mar. 23, 2016 Indictment.) Pablo pled not guilty. (Mar. 30, 2016 Plea Form.)

{¶ 3} Approximately four months later, on August 3, 2016, Pablo filed a motion to suppress statements made to the police during an interrogation on September 24, 2014. (Aug. 3, 2016 Mot. to Suppress.) On December 5, 2016, the trial court held a hearing on the matter. (Dec. 5, 2016 Hearing Tr., filed Feb. 6, 2017.) At the hearing, the State presented a Miranda rights form, signed by Pablo, and a video recording of the interrogation. (State's Exs. 1-2.) In addition, three witnesses testified, one of the detectives who interviewed Pablo, Pablo himself, and Pablo's mother.

{¶ 4} The detective testified first. He testified that after he became suspicious (for reasons which are not disclosed in the record) that Pablo was involved in the incidents with the two women, he traveled to Pablo's school. (Hearing Tr. at 6, 16.) The detective said that Pablo had been brought to an administrator's office at the school and that after telling Pablo the police needed to talk to him, he had a patrol officer transport Pablo to the Franklin County Sheriff's Office. (Hearing Tr. at 6-7, 16-19.) The detective testified that a "translator" from the school called Pablo's parents but the detective admitted he was not in the room when the call took place; he testified that, to the extent he could overhear, he did not understand what he heard. (Hearing Tr. at 18, 24.)

{¶ 5} Video revealed that at the Franklin County Sheriff's Office, two detectives interviewed Pablo for approximately 26 minutes in an interrogation room. (State's Ex. 2.) In addition to having Pablo sign the Miranda rights form, one of the detectives read Pablo the rights portion of the form verbatim, pausing after each right to ask Pablo if he understood. (State's Ex. 2 at 0:15-0:56.) In each pause, Pablo nodded to some visible degree. Id. After the reading, Pablo signed the form. (State's Ex. 2 at 0:54-1:02.) The form provided in relevant part as follows:

Before we ask you any questions you must understand your rights.
You have the right to remain silent.
Anything you say can be used against you in court.
You have the right to talk to a lawyer for advice before we ask you any questions, and to have him present with you during questioning.
If you are unable to pay a lawyer, one will be appointed for you prior to any questioning, if you so desire.
If you wish to answer questions now, without a lawyer present, you have the right to stop answering questions at any time.
You also have the right to stop answering at any time until you talk to a lawyer.

(State's Ex. 1.)

{¶ 6} Only the portion of the video involving the reading of rights was played during the hearing but the entire video was introduced as an exhibit. (Hearing Tr. at 15.) Although the rest of the video was not played during the hearing, the testifying detective stated that the interrogation remained calm throughout the entire 26-minute period, and Pablo was neither threatened nor promised anything. Id. The detective confirmed that no parent or adult responsible for Pablo was present during the interrogation and that the police made no attempt to contact any such person. (Hearing Tr. at 24.)

{¶ 7} Pablo testified that on the date of the interview, September 24, 2014, he had just turned 16 and was in ninth grade (having been held back). (Hearing Tr. at 27.) He testified that he was a "D" student and that while he understands and speaks English fully (having lived in the United States his whole life), his first and primary language is Spanish. (Hearing Tr. at 28, 31.) He recounted that the principal took him out of class and to the office where a detective and two officers were waiting. (Hearing Tr. at 28-29.) The detective told him to put his hands behind his back and he was then taken to the police station. (Hearing Tr. at 29.) He had never been interrogated or even visited a police station before. Id. No one offered him a phone call, or to let someone know where he was, or to notify his parents. Id. Although he admitted that he understood that the police were telling him he had the right to talk to a lawyer, he signed the form because he thought he had to sign. (Hearing Tr. at 29-32.) He did not read it. (Hearing Tr. at 30.) He confirmed that the detectives made neither threats nor promises and admitted that he never asked permission to telephone his parents. (Hearing Tr. at 32.)

{¶ 8} Pablo's mother testified by means of an interpreter. (Hearing Tr. at 35.) She testified that Pablo did not come home from school in a timely fashion and that she had been worried. (Hearing Tr. at 35-36.) She only found out that he had been arrested around midnight when her sister saw it on the news and contacted her. Id. She testified that the school had contacted her before at home and knew her number. (Hearing Tr. at 36.) Despite the fact that she was home that day, no one from the school or the police contacted her. Id.

{¶ 9} In reaching a decision, the trial court recounted the factual circumstances of the case. (Dec. 21, 2016 Entry at 1-2.) It particularly noted that the defendant was not a good student, that he had no experience with the police, that the police and school "did very little to arrange for the defendant to have any independent advice as to his rights," and that he was "taken from his normal environment and [ ] placed in intimidating surroundings with no familiar support." Id. at 2. Accordingly, the court concluded that "this young defendant was too likely to say whatever he believed the authorities wanted him to say," and thus "the statements on the subject date should be suppressed." Id.

{¶ 10} Pursuant to R.C. 2945.67(A), Crim.R. 12(K), and App.R. 4(B)(4), the State has appealed as of right, certifying that "the trial court's ruling on the motion to suppress has rendered the State's proof with respect to the pending charge so weak in its entirety that any reasonable possibility of effective prosecution has been destroyed." (Dec. 28, 2016 Notice of Appeal.)

II. ASSIGNMENT OF ERROR

{¶ 11} The State asserts a single assignment of error for review:

THE TRIAL COURT ERRED WHEN IT SUPPRESSED DEFENDANT'S VOLUNTARY STATEMENTS OBTAINED AFTER A VALID WAIVER OF HIS MIRANDA RIGHTS.

III. DISCUSSION

{¶ 12} Generally speaking:

"The determination of whether there has been an intelligent waiver of [the] right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." Johnson v. Zerbst , 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

State v. Cepec , 149 Ohio St.3d 438, 2016-Ohio-8076, 75 N.E.3d 1185, ¶ 35.

{¶ 13} Due process protects juveniles with the result that they are afforded the right to Miranda warnings. In re Gault , 387 U.S. 1, 55, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). With respect to whether a juvenile has validly waived his Miranda rights, the Supreme Court of Ohio has said:

If custodial interrogation continues in the absence of an attorney after a police officer advises a suspect of his rights, the government bears "a heavy burden" to demonstrate by a preponderance of the evidence that the suspect "knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel" before speaking to the police. Miranda at 475 [86 S.Ct. 1602], citing Escobedo v. Illinois , 378 U.S. 478, 490, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), fn. 14 ; [Colo. v. ] Connelly , 479 U.S. [157,] 169 [107 S.Ct. 515, 93 L.Ed.2d 473 (1986) ]. See also State v. Treesh , 90 Ohio St.3d 460, 470, 2001-Ohio-4, 739 N.E.2d 749 (2001) (recognizing requirement of knowing, intelligent waiver). A court may not presume a valid waiver either from the suspect's silence after warnings are given or from the fact that the suspect eventually confessed. Miranda at 475 [86 S.Ct. 1602]. Rather, the record must show " 'that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.' " Id. , quoting Carnley v. Cochran , 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). If the state does not satisfy its burden, "no evidence obtained as a result of interrogation can be used." Id. at 479 [86 S.Ct. 1602].
To determine whether a suspect knowingly, intelligently, and voluntarily waived his Miranda rights, courts examine the totality of the circumstances. State v. Clark , 38 Ohio St.3d 252, 261, 527 N.E.2d 844 (1988). When the suspect is a juvenile, the totality of the circumstances includes "the juvenile's age, experience, education, background, and intelligence" as well as his "capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights."
Fare v. Michael C. , 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979).

State v. Barker , 149 Ohio St.3d 1, 2016-Ohio-2708, 73 N.E.3d 365, ¶ 23-24.

{¶ 14} Whether a juvenile has voluntarily confessed (following a valid waiver of rights under Miranda ), the Supreme Court has explained:

In deciding whether a juvenile's confession is involuntarily induced, [a trial] court should consider the totality of the circumstances, including the age, mentality and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; and the existence of physical deprivation or inducement.

In re Watson , 47 Ohio St.3d 86, 548 N.E.2d 210 (1989), paragraph one of the syllabus.

{¶ 15} Some jurisdictions have recognized an "independent advice/interested adult" principle which holds that a juvenile can only validly waive his rights to an attorney and to remain silent if both the child and a parent (or other "interested adult") are advised of those rights and are given the opportunity to confer regarding the advisability of waiving, free from coercion, force, or inducement. Id. at 89, 548 N.E.2d 210. The Supreme Court has expressly declined to adopt the "independent advice/interested adult" view as a per se rule in juvenile interrogations. Id. at 89-90, 548 N.E.2d 210. But the Court has not forbidden it as a consideration under the "totality of the circumstances." Id. at paragraph one of the syllabus. And the Supreme Court has explained that, "[a] juvenile's access to advice from a parent, guardian or custodian also plays a role in assuring that the juvenile's waiver is knowing, intelligent, and voluntary." Barker at ¶ 24, citing In re C.S. , 115 Ohio St.3d 267, 2007-Ohio-4919, ¶ 96, 874 N.E.2d 1177.

{¶ 16} In reviewing decisions made on motions to suppress, we afford deference to the trial court's factual determinations and review the trial court's recitation of historical facts for "clear error;" however, we review statements of law and their application to facts de novo. See, e.g. , Ornelas v. United States , 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) ; In re A.J.S. , 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 50 ; State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

{¶ 17} Consistent with the record, the trial court noted in its decision that Pablo had just turned 16 at the time of the interrogation, was a poor student repeating ninth grade, and had no previous contact with the police. (Dec. 21, 2016 Entry at 2.) The record is clear that the trial court considered " 'the juvenile's age, experience, education, background, and intelligence' as well as his 'capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.' " Barker at ¶ 24, quoting Fare v. Michael C. , 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979).

{¶ 18} These considerations are also relevant and significant to determining voluntariness such as, "the age, mentality and prior criminal experience of the accused." In re Watson at paragraph one of the syllabus. In admitting the videotaped confession and hearing testimony about its circumstances and character, the trial court also would have considered (though it did not explicitly mention) other voluntariness factors including, "the length," (short, 26 minutes), "intensity," (low key) "frequency of interrogation" (one session), and "the existence of physical deprivation or inducement" (essentially none ). Id. ; State's Ex. 2.

{¶ 19} The trial court also considered what the school and police did (essentially nothing) to ensure that Pablo's parents were aware of the situation and could assist Pablo in understanding his rights. (Dec. 21, 2016 Entry at 1-2.) This is important because, "[a] juvenile's access to advice from a parent, guardian or custodian also plays a role in assuring that the juvenile's waiver is knowing, intelligent, and voluntary." Barker at ¶ 24. And parental involvement may have been of enhanced importance here, as the trial court noted. Pablo did not achieve high grades in school. He had no prior experience with the police. And Pablo's first and primary language is Spanish, not English. (Dec. 21, 2016 Entry at 2.) There is further evidence of this from the detective's testimony that an interpreter had to call Pablo's home from his school.

{¶ 20} We find the trial court acted within the valid exercise of its factfinding discretion to conclude that the evidence did not support a finding that Pablo's waiver of his Miranda rights, unaccompanied by a parent or interested adult to assist him, was knowing and voluntary. Under the law, someone in their early to mid-teens " 'cannot be compared with an adult in full possession of his senses and knowledgeable of the consequences of his admissions.' " Barker at ¶ 39, quoting Gallegos v. Colorado , 370 U.S. 49, 53-54, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962). Accordingly, we agree that, under all of the factual circumstances cited by the trial court and as contained in the record, Pablo's waiver of his Miranda rights was not knowing and voluntary and as such does not stand. At a minimum, he should have been accompanied by a parent or interested adult to aid him in understanding and determining whether to waive his Miranda rights. And when this absence of a parent is considered in conjunction with the other circumstances in Pablo's case (age, experience, education, and background), including the trial court's observation that Pablo said he signed the waiver because he thought he had no choice, we agree that Pablo's waiver, under the circumstances, was not valid. (Dec. 21, 2016 Entry at 2.)

{¶ 21} We overrule the State's sole assignment of error and affirm the trial court's decision suppressing Pablo's statements, including his confession, to the police.

IV. CONCLUSION

{¶ 22} Consistent with Supreme Court of Ohio precedent, the trial court expressly considered Pablo's age, mentality, experience, education, background, and intelligence. It found, consistent with the record, indications that Pablo's intelligence level was not high, English was not his first or primary language, and he had no prior experience with the police. The trial court also validly considered, under the totality of the circumstances, that Pablo was not provided access to a parent or interested adult to help him to understand his rights. Under the factual circumstances, the trial court did not err in determining that Pablo did not validly waive his rights and that his statements should be suppressed. We overrule the State's sole assignment of error and affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

TYACK, P.J., and HORTON, J., concur.

      Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      Though we note that at one point a detective advised Pablo that he needed to start telling the truth because he was in a "world of trouble." (State's Ex. 2 at 6:44-6:50.)


author: LUPER SCHUSTER, J.

text:
    CLEVELAND HEARING AND BALANCE CENTER, INC., et al., Plaintiffs-Appellants, v. NORTHEAST OHIO MEDICAL UNIVERSITY, Defendant-Appellee.
    No. 17AP-334
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 5, 2017
    On brief: Jonathan P. Blakely, for appellants. Argued: Jonathan P. Blakely.
    On brief: Michael DeWine, Attorney General, Velda K. Hofacker, and Stacy Hannan, Columbus, for appellee. Argued: Stacy Hannan.
    DECISION
   LUPER SCHUSTER, J.

{¶ 1} Plaintiffs-appellants, Cleveland Hearing and Balance Center, Inc. ("CHBC") and Mohamed A. Hamid, M.D., Ph.D., appeal from a judgment entry of the Court of Claims of Ohio granting the motion for summary judgment of defendant-appellee, Northeast Ohio Medical University ("NEOMED"). For the following reasons, we affirm.

I. Facts and Procedural History

{¶ 2} Dr. Hamid is a now-retired physician who practiced in the area of auditory and vestibular issues. Dr. Hamid owned CHBC, a corporation that has since been dissolved. Beginning in April 2012, CHBC entered into a business relationship with the Saudi Arabian Cultural Mission ("SACM") to provide educational fellowship and clinical training for a Saudi citizen, Fuad Alghamdi, M.D., for three years. Under this agreement, SACM would pay CHBC a tuition fee and administrative fee of $88,000 for the first year, to be adjusted annually, up to $110,000 for the third year. CHBC then entered into a separate subcontracting agreement with NEOMED under which it was determined that NEOMED would provide the research component of Dr. Alghamdi's training while CHBC would provide the clinical component of the training. CHBC agreed to pay NEOMED $12,500 per year for providing the research portion of Dr. Alghamdi's training.

{¶ 3} Dr. Alghamdi participated in the fellowship training into its second year but began experiencing "some personal issues in early 2014" and eventually stopped attending clinical training with CHBC in March 2014. (Feb. 11, 2016 Compl. at ¶ 18.) Ultimately, SACM and NEOMED reached an agreement that SACM would pay NEOMED directly for Dr. Alghamdi's third year of fellowship training. However, in lieu of completing his fellowship training, Dr. Alghamdi returned to Saudi Arabia.

{¶ 4} On February 11, 2016, CHBC and Dr. Hamid filed a complaint in the Court of Claims of Ohio against NEMOED and SACM asserting claims of breach of contractual duty and good faith, declaratory judgment, and tortious interference with business relationship. By magistrate's order dated February 16, 2016, the Court of Claims dismissed SACM as a defendant pursuant to R.C. 2743.02(E), which provides that only state agencies and instrumentalities can be defendants in original actions in the Court of Claims.

{¶ 5} NEOMED then filed a motion for summary judgment on January 10, 2017, asserting the undisputed facts demonstrated that NEOMED neither interfered with CHBC's contract with SACM nor breached any duty of good faith. NEOMED supported its motion for summary judgment with Dr. Hamid's deposition, an affidavit from Jeffrey Wenstrup, Ph.D., the director of the auditory neuroscience group at NEOMED, and several authenticated documents.

{¶ 6} On February 6, 2017, CHBC and Dr. Hamid filed a motion for extension of time to respond to NEOMED's motion for summary judgment. CHBC and Dr. Hamid stated in the motion that Dr. Hamid had been out of the country and would not return until early March 2017. Thus, they requested an extension of time to March 15, 2017 to obtain an affidavit from Dr. Hamid and supply it to NEOMED. NEOMED responded on February 14, 2017 and stated it did not object to a short extension of time but that March 15, 2017 was "excessive" given the scheduled trial date of April 10, 2017. (Def.'s Response at 1.) NEOMED also noted it had already filed Dr. Hamid's deposition which covered all of the allegations in the complaint.

{¶ 7} By magistrate's order dated February 15, 2017, the Court of Claims granted CHBC and Dr. Hamid an extension until February 21, 2017 to respond to the motion for summary judgment. The Court of Claims then granted CHBC and Dr. Hamid another extension until February 23, 2017 to file their response. Thereafter, on February 24, 2017, CHBC and Dr. Hamid filed a response to NEOMED's motion for summary judgment on February 24, 2017, along with a motion for leave to deem their response timely filed.

{¶ 8} On April 5, 2017, the Court of Claims issued a decision granting NEOMED's motion for summary judgment. In determining NEOMED was entitled to summary judgment on the tortious interference claim, the Court of Claims stated that the "only reasonable conclusion" from the evidence submitted is that Dr. Alghamdi had already terminated his fellowship with CHBC before NEOMED ever made a new offer to Dr. Alghamdi and SACM. (Apr. 5, 2017 Decision at 10.) Thus, the Court of Claims concluded there remained no genuine issue of material fact that NEOMED did not intentionally interfere in the relationship between CHBC, Dr. Hamid, and SACM. Additionally, the Court of Claims concluded there was no genuine of issue of material fact as to whether NEOMED breached an implied duty of good faith in the parties' subcontracting agreement. The Court of Claims issued a judgment entry that same day rendering judgment in favor of NEOMED. CHBC and Dr. Hamid timely appeal.

II. Assignments of Error

{¶ 9} Appellants assign the following errors for our review:

[1.] The lower court erred in granting Appellee's motion for summary judgment and finding Appellee did not breach its implied contractual duty to act in good faith toward Appellants.
[2.] The lower court's denial of Appellant's [sic] motion for additional time to oppose Appellee's motion for summary judgment until Dr. Mohamed A. Hamid ("Dr. Hamid") returned to the United States prejudiced Appellants since they could not submit an opposing affidavit.

III. First Assignment of Error-Motion for Summary Judgment

{¶ 10} In their first assignment of error, CHBC and Dr. Hamid argue the Court of Claims erred in granting summary judgment to NEOMED. More specifically, appellants assert the Court of Claims erred in concluding there were no genuine issues of material fact as to whether NEOMED breached its implied contractual duty to act in good faith toward appellants. Appellants do not challenge the Court of Claims' decision granting summary judgment on the tortious interference claim.

{¶ 11} An appellate court reviews summary judgment under a de novo standard. Coventry Twp. v. Ecker , 101 Ohio App.3d 38, 41, 654 N.E.2d 1327 (9th Dist.1995) ; Koos v. Cent. Ohio Cellular, Inc. , 94 Ohio App.3d 579, 588, 641 N.E.2d 265 (8th Dist.1994). Summary judgment is appropriate only when the moving party demonstrates (1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds could 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 most strongly construed in its favor. Civ.R. 56(C) ; State ex rel. Grady v. State Emp. Relations Bd. , 78 Ohio St.3d 181, 183, 677 N.E.2d 343 (1997).

{¶ 12} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record demonstrating the absence of a material fact. Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). However, the moving party cannot discharge its initial burden under this rule with a conclusory assertion that the nonmoving party has no evidence to prove its case; the moving party must specifically point to evidence of the type listed in Civ.R. 56(C) affirmatively demonstrating that the nonmoving party has no evidence to support the nonmoving party's claims. Id. ; Vahila v. Hall , 77 Ohio St.3d 421, 429, 674 N.E.2d 1164 (1997). Once the moving party discharges its initial burden, summary judgment is appropriate if the nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with specific facts showing that a genuine issue exists for trial. Dresher at 293, 662 N.E.2d 264 ; Vahila at 430, 674 N.E.2d 1164 ; Civ.R. 56(E).

{¶ 13} To succeed on a claim of breach of contract, a plaintiff must demonstrate (1) the existence of a contract, (2) plaintiff's performance, (3) defendant's breach, and (4) damages or loss to the plaintiff. Thyssen Krupp Elevator Corp. v. Constr. Plus, Inc. , 10th Dist. No. 09AP-788, 2010-Ohio-1649, 2010 WL 1475979, ¶ 13, citing Jarupan v. Hanna , 173 Ohio App.3d 284, 2007-Ohio-5081, 2007 WL 2800366, ¶ 18 (10th Dist.). The purpose of contract construction is to realize and give effect to the parties' intent. Skivolocki v. E. Ohio Gas Co. , 38 Ohio St.2d 244, 313 N.E.2d 374 (1974), paragraph one of the syllabus.

{¶ 14} "[U]nder Ohio law, 'there is an implied duty of good faith and fair dealing in every contract.' " CosmetiCredit, LLC v. World. Fin. Network Natl. Bank , 10th Dist. No. 14AP-32, 2014-Ohio-5301, 24 N.E.3d 762, ¶ 35, quoting Am. Contr.'s Indemn. Co. v. Nicole Gas Prod., Ltd. , 10th Dist. No. 07AP-1039, 2008-Ohio-5056, 2008 WL 4416671, ¶ 13. Good faith is "a compact reference to an implied undertaking not to take opportunistic advantage in a way that could not have been contemplated at the time of drafting, and which therefore was not resolved explicitly by the parties." Ed Schory & Sons, Inc. v. Soc. Natl. Bank , 75 Ohio St.3d 433, 443-44, 662 N.E.2d 1074 (1996).

{¶ 15} CHBC and Dr. Hamid assert that NEOMED engaged in bad faith by arranging for Dr. Alghamdi to finish his fellowship at NEOMED. Section 11.0 of the subcontracting agreement between CHBC and NEOMED provides that "[a]ny disputes that arise under the terms of this Agreement should be resolved first by a discussion between the Chair of the Department of Anatomy and Neurobiology at NEOMED and the Director of CHBC or their legal representatives." (Compl., Ex. B at 5.) Appellants argue that, pursuant to the contract, NEOMED had a duty to attempt to resolve any conflict between Drs. Hamid and Alghamdi so that Dr. Alghamdi could complete his fellowship as the parties originally contracted.

{¶ 16} However, Dr. Hamid testified in his deposition that he received a March 24, 2014 letter from an attorney representing Dr. Alghamdi stating that Dr. Alghamdi was disappointed with the training being provided at CHBC and that Dr. Alghamdi would not authorize SACM to pay any more funds to CHBC or Dr. Hamid. The letter further stated Dr. Alghamdi was seeking a "final certification" from CHBC and Dr. Hamid of the clinical portion of the program. (Dr. Hamid Dep. at 77.) NEOMED also received a copy of this letter, understanding it to be notice that Dr. Alghamdi was terminating the fellowship. NEOMED had served as Dr. Alghamdi's J-1 educational visa sponsor. Under the terms of his visa, Dr. Alghamdi could not remain in the United States if he did not continue his training.

{¶ 17} In emails dated April 28 and May 3, 2014, Dr. Hamid and CHBC informed NEOMED that they were terminating Dr. Alghamdi's fellowship training in June 2014. After receiving an email from SACM that SACM was suspending the third year of Dr. Alghamdi's fellowship, NEOMED then sent CHBC a 60-day notice of termination of the subcontractor agreement on May 7, 2014. Two days later, on May 9, 2014, NEOMED agreed to expand its role in Dr. Alghamdi's training to allow Dr. Alghamdi to stay in the United States and complete his fellowship.

{¶ 18} From these undisputed facts, we agree with the Court of Claims that it was clear by March 24, 2014 that Dr. Alghamdi did not wish to receive, nor would CHBC and Dr. Hamid provide, the third year of fellowship training as originally contracted. There is nothing in the terms of the subcontracting agreement that could be construed as giving CHBC or Dr. Hamid a justified expectation that NEOMED must attempt to negotiate an exit satisfactory to all parties once it was determined the fellowship would not proceed as originally contemplated. Once Dr. Hamid and CHBC expressly informed NEOMED they could not continue to train Dr. Alghamdi, appellants could not have a justifiable expectation that NEOMED would intervene and act as mediator on their behalf.

{¶ 19} Additionally, it was not until after CHBC and Dr. Hamid made it clear they would not provide the third year of training to Dr. Alghamdi that NEOMED, as Dr. Alghamdi's visa sponsor, made arrangements for Dr. Alghamdi to finish his training. Again, nothing in either CHCB's agreement with SACM or NEOMED's subcontracting agreement with CHBC would preclude Dr. Alghamdi from finishing his fellowship training at NEOMED once the original fellowship agreement broke down. We agree with the Court of Claims that NEOMED did not engage in bad faith when it remained faithful to the original purpose of the agreement by offering to continue to provide education and training to Dr. Alghamdi.

{¶ 20} Appellants additionally argue NEOMED engaged in bad faith by refusing to join in a critical report of Dr. Alghamdi's performance. Dr. Hamid testified in his deposition that he had expressed concerns about Dr. Alghamdi's performance to staff members at NEOMED and had wanted to change Dr. Alghamdi's progress report to SACM but the NEOMED staff members did not agree that Dr. Alghamdi's performance was unsatisfactory. After NEOMED would not agree to alter Dr. Alghamdi's progress reports, Dr. Hamid testified he unilaterally contacted SACM with his concerns about Dr. Alghamdi's performance in an April 28, 2014 email, and he testified he did so knowing that SACM would terminate the fellowship as a result. Because NEOMED did not view a negative progress report as justified, NEOMED cannot be said to have acted in bad faith in refusing to support Dr. Hamid in that regard.

{¶ 21} Finally, to the extent appellants argue NEOMED took opportunistic advantage by having communications with Dr. Alghamdi to which appellants were not privy, there is nothing in the subcontracting agreement that could be construed as giving rise to any expectation that NEOMED would never communicate with its own student without the permission or involvement of appellants. NEOMED served as Dr. Alghamdi's educational visa sponsor and was providing a component of his training. Though appellants suggest and theorize that NEOMED and Dr. Alghamdi must have engaged in conspiratorial communications, the Civ.R. 56 evidence does not disclose that any communications between NEOMED and Dr. Alghamdi were in bad faith.

{¶ 22} After a thorough and independent review of the record, we agree with the Court of Claims that reasonable minds could only conclude that NEOMED did not breach an implied duty of good faith in the parties' subcontracting agreement. Accordingly, the Court of Claims did not err in granting NEOMED's motion for summary judgment, and we overrule appellants' first assignment of error.

IV. Second Assignment of Error-Motion for Additional Time

{¶ 23} In their second and final assignment of error, appellants argue the Court of Claims erred when it did not grant their motion for additional time to respond to NEOMED's motion for summary judgment. An appellate court reviews a trial court's denial of a motion for extension of time under an abuse of discretion standard.

Whipple v. Warren Corr. Inst. , 10th Dist. No. 09AP-253, 2009-Ohio-4841, 2009 WL 2940240, ¶ 6. An abuse of discretion connotes a decision that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 24} As outlined above, NEOMED filed its motion for summary judgment on January 10, 2017, along with the transcript of Dr. Hamid's deposition testimony. Appellants then waited until February 6, 2017 to seek an extension of time to respond, asking the Court of Claims for an extension until March 15, 2017 so that they could obtain an affidavit from Dr. Hamid, who was out of the country. Because the trial date had been set for April 10, 2017, the Court of Claims granted appellants a shorter extension than what they sought, ultimately giving them until February 23, 2017 to file their response. The Court of Claims noted appellants failed to comply with the 14-day time frame under L.C.C.R. 4(C), and appellants did not make a showing of excusable neglect.

{¶ 25} Appellants now assert the trial court abused its discretion in granting only a partial extension of time because they were unable to obtain an affidavit from Dr. Hamid during this time. However, Dr. Hamid's deposition testimony had already been filed with the Court of Claims, and appellants do not assert what, if anything, additional or beneficial Dr. Hamid would have included in an affidavit that could have created a genuine issue of material fact on summary judgment. Appellants fail to articulate how the trial court's decision was an abuse of discretion other than their general opposition to the outcome.

{¶ 26} Upon review, we find no abuse of discretion in the Court of Claims denying appellants' motion for extension of time and instead granting appellants a shorter extension of time than requested. Accordingly, we overrule appellants' second and final assignment of error.

V. Disposition

{¶ 27} Based on the foregoing reasons, the Court of Claims did not err in granting NEOMED's motion for summary judgment, and the Court of Claims did not abuse its discretion in denying appellants' motion for an extension of time to respond to the motion for summary judgment. Having overruled appellants' two assignments of error, we affirm the judgment of the Court of Claims of Ohio.

Judgment affirmed .

BROWN and SADLER, JJ., concur.


author: SADLER, J.

text:
    In the MATTER OF: ESTATE OF Calvert M. PORTER, [Andrea Denise Jones Porter, Appellant].
    No. 17AP-414
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 5, 2017
    On brief: Law Office of Philip A. King, LLC, and Philip A. King, for appellant. Argued: Philip A. King.
    On brief: L. O'Shaughnessy Law LLC, and Lucy K. O'Shaughnessy, for appellee Western Surety Company.
    DECISION
   SADLER, J.

{¶ 1} Appellant, Andrea Denise Jones Porter, appeals from the May 10, 2017 judgment entry of the Franklin County Court of Common Pleas, Probate Division, adopting in part and modifying in part a magistrate's September 13, 2016 decision on exceptions filed to a final account of the estate of appellant's deceased father. For the following reasons, we affirm the decision of the trial court.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} This case involves final settlement of the estate of appellant's father and her role as co-administrator of his estate. No party objected to the findings of fact set forth in the magistrate's September 13, 2016 decision, which provides as follows:

1. Calvert Porter ("the decedent") died on August 20, 2003.
2. The decedent died owning an interest in the real property located at 1444 Moler Road Columbus, Ohio ("1444 Moler Rd").
3. Imogene Porter was appointed executor of the decedent's estate on October 1, 2003 pursuant to a document alleged to be the decedent's will.
4. The alleged will was later determined not to be valid by this court.
5. [Appellant] was appointed co-administrator of the estate on January 14, 2004. Susan Wasserman, Esq. was her attorney.
6. [Appellant] filed a Fiduciary's Bond in the amount of $260,000 with Western Surety Company as surety on January 14, 2004. The bond was reduced to $40,000 by court order on August 29, 2005.
7. While executor, Imogene Porter sold 1444 Moler Rd. to Naser Saleh. The sale was later determined not to be valid by this court.
8. On April 16, 2007, this Court approved the settlement agreement in which Naser Saleh conveyed 1444 Moler Rd. to [appellant] and [appellant] conveyed a portion back to Naser Saleh.
9. On November 8, 2010, Ms. Wasserman resigned as attorney for [appellant].
10. Ms. Wasserman's attorney fees of $85,694.19 were approved by this Court on January 11, 2011 and allowed from the assets of the estate.
11. On August 31, 2011, this Court ordered that the final account be amended to include as an asset the value of the real estate located at 1444 Moler Rd. and to include Ms. Wasserman's attorney fees as debts of the estate. The court also ordered a lien for the attorney fees to be placed against the real estate since there were insufficient funds in the estate.
12. On August 11, 2014, [appellant] filed for personal bankruptcy. The U.S. Bankruptcy Court for the Southern District of Ohio issued an order avoiding Ms. Wasserman's judicial lien on 1444 Moler Rd. on December 3, 2014.
13. [Appellant] filed a final account on June 9, 2015.
a. The final account showed 1444 Moler Rd. as an asset of the estate.
b. The distribution section of her final account states: "Decedent's interest in real property located at 1444 Moler Rd. Columbus, OH 43207 Answerer [sic] to [appellant] as part of settlement in related adversary case * * *."
c. The final account shows that $35,818.46 in legal fees were paid to Mrs. Wasserman.
14. The estate still owes Mrs. Wasserman $49,875.73 in legal fees.
15. On July 13, 2015, Mrs. Wasserman filed a pleading titled Objection to the Final Account Filed by Co-Administrator [appellant ] ORC 2109.33 (hereinafter "Exceptions").
a. In her Exceptions, Mrs. Wasserman asks the court to "hold a hearing on these exceptions and that the CBS Agency be made a party to this matter and for such further equitable relief as the court may deem proper including a surcharge on the bond on behalf of [appellant]."
16. On May 5, 2016 the Bankruptcy Court granted Ms. Wasserman a relief from stay pursuant to 11 U.S.C. 362(d) to pursue her rights against the surety under the bond issued in the probate case.

(Emphasis sic.) (Sept. 13, 2016 Mag.'s Decision at 2-4.)

{¶ 3} Under the conclusions of law, the magistrate found that appellant's final account showed she distributed 1444 Moler Road to herself while leaving $49,875.73 of the court-ordered attorney fees unpaid and that appellant did not dispute she failed to pay the balance of the attorney fees. The magistrate found appellant violated her fiduciary duties in doing so, and, as a result, Western Surety was liable and obligated to pay $40,000 (the amount of the surety bond) to Wasserman.

{¶ 4} Both Western Surety and appellant filed objections to the magistrate's decision. Western Surety objected for the following reasons:

• Upon finding that the real estate at issue in this case was an asset of the Estate of Calvert M. Porter, this Court should order it to be returned to the estate and the debts of the Estate should be paid from the proceeds of its sale;
• A surcharge against the bond is premature and procedurally improper arising from a hearing on exceptions to a final account; and
• Alternatively, the Magistrate's Decision should have given Western Surety a judgment against its bond principal for any amount it is ordered to pay.

(Sept. 26, 2016 Objs. to Mag.'s Decision at 1.)

{¶ 5} Appellant objected to the magistrate's conclusion that she is responsible for the alleged breach of disbursing estate assets while failing to pay her attorney fees. Instead, appellant contended the original invalid transfer by Imogene Porter was not her fault, and the later transfer of the property via the settlement agreement was also not her fault because it was approved by Wasserman and the probate court. As such, appellant contended the probate court should find Wasserman liable for any breach caused by the transfer of the property to appellant. Appellant further generally objected to the magistrate's decision, without elaboration, "to the extent that it orders her to convey the Property back into the estate or orders her to pay * * * Wasserman's attorney fees contrary to bankruptcy law." (Sept. 27, 2016 Obj. to Mag.'s Decision at 3.)

{¶ 6} On May 10, 2017, the probate court issued a judgment entry adopting and modifying the September 13, 2016 magistrate's decision. The probate court found appellant's argument regarding the transfer made by Imogene Porter irrelevant to the issue in this matter. The probate court further noted that the probate court could not, by statute, authorize transfer of the property by settlement agreement and that none of the statutory procedures to properly execute such a sale were completed by the heirs. Specifically:

[N]o sale by consent of the heirs was completed and filed for record pursuant to R.C. 2127.011, no complaint was filed to sell the real estate to pay debts pursuant to R.C. 2127.02, nor was the sale made for the payment of legacies under R.C. 2127.03, no complaint was filed under R.C. 2127.04 for the sale of real estate with consent of a majority of the parties.

(May 10, 2017 Jgmt. Entry at 8.) Therefore, the probate court found the purported transfer of the property by settlement agreement to be a void transfer as a matter of law and ordered appellant to convey title to the property to the estate of Calvert Porter and sold to pay estate bills, including the debt owed Wasserman. The probate court found holding Wasserman responsible for appellant's breach of fiduciary duties to be unreasonable, and ordering appellant to pay Wasserman's attorney fees did not violate bankruptcy law. Regarding Western Surety's objections, the probate court found Western Surety liable due to appellant's breach of her fiduciary duties by distributing estate assets and failing to pay court-ordered attorney fees. However, the probate court found that the nature and extent of Western Surety's liability could not be yet assessed prior to sale of the property.

{¶ 7} Appellant filed a timely appeal to this court.

II. ASSIGNMENTS OF ERROR

{¶ 8} Appellant presents two assignments of error:

[1.] The probate court erred because the decision ordering appellant to convey "Parcel One" back to the estate is against the manifest weight of the evidence.
[2.] The probate court erred because holding appellant solely liable for failure to pay attorney fees is against the manifest weight of the evidence.

III. STANDARD OF REVIEW

{¶ 9} Generally, when objections to a magistrate's decision are filed, a trial court undertakes a de novo review of the magistrate's decision. In re Estate of Klie , 10th Dist. No. 16AP-77, 2017-Ohio-487, 84 N.E.3d 313, ¶ 7, citing McNeilan v. Ohio State Univ. Med. Ctr. , 10th Dist. No. 10AP-472, 2011-Ohio-678, 2011 WL 531616, ¶ 19. A probate court's decision to adopt a magistrate's decision regarding an estate is ordinarily reviewed on appeal for an abuse of discretion. Klie at ¶ 9. However, where the issue appealed involves a question of law, an appellate court employs a de novo standard of review. Severing v. Severing , 10th Dist. No. 15AP-8, 2015-Ohio-5236, 54 N.E.3d 724, ¶ 9 ; see also Klie at ¶ 32-34.

IV. DISCUSSION

A. First Assignment of Error

{¶ 10} Under the first assignment of error, appellant contends that the probate court erred by ordering appellant to convey the property back to the estate. For the following reasons, we disagree.

{¶ 11} First, appellant argues the probate court could not invalidate a transfer of real property it had approved in the past, as that previous decision (the settlement agreement) became "law of the case" that is binding on all parties. (Appellant's Brief at 12.) Essentially, according to appellant, regardless of whether the settlement agreement should have been approved in 2007 or is authorized by law, the fact that it was approved and relied on by the parties barred the probate court from declaring transfers under the settlement agreement void.

{¶ 12} "The law-of-the-case doctrine requires a court to follow rulings on issues previously resolved within the same case." Reid v. Cleveland Police Dept. , 151 Ohio St.3d 243, 2017-Ohio-7527, 87 N.E.3d 1231, ¶ 11. In most applications, the law-of-the-case doctrine provides that the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels. State ex rel. Keith v. Gaul , 147 Ohio St.3d 270, 2016-Ohio-5566, 63 N.E.3d 1197, ¶ 14. This court has noted that the law-of-the-case doctrine is not necessarily limited to the determinations of a reviewing court on appeal. Klaus v. Klosterman , 10th Dist. No. 16AP-273, 2016-Ohio-8349, 2016 WL 7427432, ¶ 11, 15 (noting this court's prior case, Clymer v. Clymer , 10th Dist. No. 95APF02-239, 1995 WL 571445 (Sept. 26, 1995), "extended [the] law of the case doctrine to encompass a trial court's adherence to its own prior rulings in circumstances where a trial court ruling could have been appealed, but was not, with certain exceptions"). However, "the law of the case doctrine should not be taken to imply that a trial court can never, under any circumstances, reconsider its prior ruling. * * * Additional evidence, prior error or a change in circumstances might well argue against blind adherence to a prior ruling." Clymer .

{¶ 13} Appellant's argument is unpersuasive for two main reasons. First, because the settlement agreement and approval did not eliminate appellant's obligation to execute the transfer of the property in line with probate laws, the law-of-the-case doctrine is irrelevant. The probate court approved the joint application to settle claims, expressly providing that the co-administrators had "authority to perform all acts necessary to effectuate the compromise and settlement, including the execution of such agreement and the execution of all related documents and the performance of all related acts in connection therewith." (Apr. 16, 2007 Entry at 1.)

{¶ 14} As argued by Western Surety, "performance of all related acts in connection" with the settlement necessarily includes effectuating the transfer of the property in line with applicable probate statutes in order for the transfer to be proper under those laws. (Emphasis omitted.) (Appellee's Brief at 6.) R.C. 2127.01, in pertinent part, requires all proceedings for the sale of lands by an administrator to be filed in accordance with R.C. 2127.01 to 2127.43. The probate court outlined several statutory means for an administrator to cause a transfer of real property. Under R.C. 2127.011, an administrator can dispose of real property by consent of all heirs; under this method, "each consent * * * shall be filed in the probate court." R.C. 2127.011(A)(1). Under R.C. 2127.02, 2127.03, and 2127.05, the administrator is obligated to commence actions in the probate court to sell real property of the estate where the administrator ascertains that the personal property of the estate is insufficient to pay all debts of the decedent, where in certain situations legacies require payment, or where the majority of persons entitled to share in the estate request and consent to the sale. Appellant does not dispute that she did not act to execute the transfer of the property in accordance with probate law. Under these facts, the law-of-the-case doctrine does nothing to change the deficient statutory execution of the transfer.

{¶ 15} Second, as noted above, even if the law-of-the-case doctrine is implicated, it is not a complete bar to the probate court to correct a prior error. Clymer . Under R.C. 2101.24(A)(1)(i), a probate court has jurisdiction to "authorize the sale of lands, equitable estates, or interests in lands or equitable estates, and the assignments of inchoate dower in such cases of sale, on petition by executors, administrators, and guardians." As previously stated, administrators are bound to execute the sale of real property in accordance with probate statutes. R.C. 2127.01. For sake of argument, if the probate court approved the transfer of the property in the settlement agreement without expectation that further statutorily required procedures must be met, this action contradicts statute. State ex rel. Sladoje v. Belskis , 149 Ohio App.3d 190, 2002-Ohio-4505, 776 N.E.2d 557, ¶ 12 (10th Dist.) ("Probate courts are courts of limited jurisdiction and probate proceedings are limited to such actions as are permitted by statute and the Ohio Constitution."); Corron v. Corron , 40 Ohio St.3d 75, 77, 531 N.E.2d 708 (1988) ; R.C. 2101.24(C). In such a case, in the face of an error as a matter of law, the law-of-the-case doctrine does not act as a complete bar to the probate court's later determination that the errant transfer was void. Clymer .

{¶ 16} Under this assignment of error, appellant also asserts that if the probate court had authority to invalidate the transfer of real property, it did not issue an appropriate remedy for the past error. Specifically, appellant contends the remedy was incomplete and unfair because appellant only received a part of the original property and the remainder of the original parcel remains with Saleh, and because the co-administrator received $40,000 through the settlement agreement that was never ordered returned to the estate. Essentially, appellant is arguing for us to invalidate the entire settlement agreement.

{¶ 17} We first note that the settlement agreement contains a severability clause whereby if any term contained in the agreement is determined to be invalid or void, the remainder of the agreement remains valid and enforceable. Second, the core issue to resolve this appeal is whether appellant distributed estate assets and a debt of the estate remained unpaid. Other aspects of the settlement agreement, which the probate court left untouched, are not determinative to this core issue. Third, in her two final fiduciary accounts submitted to the probate court, appellant did not list either the property remaining with Saleh or the $40,000 settlement payment to her co-administrator as a receipt or asset of the estate or a distribution from the estate. Appellant is now attempting, for the first time on appeal, to include both items as part of the estate. We decline to address this issue in the first instance. Tucker v. Leadership Academy for Math , 10th Dist. No. 14AP-100, 2014-Ohio-3307, 2014 WL 3740486, ¶ 20 ; State v. Quarterman , 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 18.

{¶ 18} Accordingly, appellant's first assignment of error is overruled.

B. Second Assignment of Error

{¶ 19} Under the second assignment of error, appellant contends the trial court erred by "holding appellant solely liable for failure to pay attorney fees." (Appellant's Brief at 1.) For the following reasons, we disagree.

{¶ 20} Appellant first argues that she did not breach her fiduciary duty in this case because the original conveyance by Imogene Porter was made prior to appellant becoming an estate administrator. We agree with the trial court that the original illegal transfer by a prior executor has no bearing on whether appellant later breached her fiduciary duty as an estate administrator.

{¶ 21} Appellant next argues she did not breach her fiduciary duty in this case because the later transfer of property to appellant under the settlement agreement was made with approval of the probate court and Wasserman. Relatedly, appellant contends that if appellant breached her fiduciary duty, it was not reasonable to not hold Wasserman at least partially liable.

{¶ 22} Appellant does not contest the general concept that an administrator of an estate who distributes assets of the estate and leaves debts of the estate unpaid breaches his or her fiduciary duty and may be held liable to a creditor of the estate. We note that approval of the settlement agreement occurred in 2007. Wasserman resigned as appellant's attorney in November 2010, nearly five years prior to appellant filing her final fiduciary account in June 2015. It is undisputed that appellant's final fiduciary account listed distributions to appellant, and the estate still owes Wasserman $49,875.73 in attorney fees. In these circumstances, we do not agree that the trial court abused its discretion in finding that appellant breached her fiduciary duty despite the probate court and Wasserman's prior approval of the settlement agreement in 2007. We likewise do not agree that on this record the probate court abused its discretion in not holding Wasserman liable for any breach committed by appellant.

{¶ 23} Appellant additionally discusses that the final distribution of settlement proceeds from a separate malpractice action includes attorney fees. Appellant's argument in this regard is unclear. As discussed above, neither party objected to the magistrate's findings of fact, which included the fact that $49,875.73 in attorney fees were owed to Wasserman by the estate. We cannot discern how distributions from the malpractice settlement proceeds to pay some portion of attorney fees disposes of the issue here. As such, appellant has not met her burden to prove error on appeal. Miller v. Johnson & Angelo , 10th Dist. No. 01AP-1210, 2002-Ohio-3681, 2002 WL 1578737, ¶ 2 ("The burden of affirmatively demonstrating error on appeal rests with the [appellant]."); see also App.R. 16(A)(7).

{¶ 24} Appellant next asserts that "bankruptcy law protected Appellant from being required to transfer property to the estate to be sold to pay estate debts." (Appellant's Brief at 1.) We first note appellant's thread-bare mention of bankruptcy in her objections, without any explanation of how the order violates bankruptcy law, violates the specificity requirement of Civ.R. 53(D). Franklin Cty. Probate Div. Loc.R. 75.18 (requiring any objection to a magistrate's decision to comply with Civ.R. 53(D)(3)(b) ); Civ.R. 53(D)(3)(b)(ii) ("An objection to a magistrate's decision shall be specific and state with particularity all grounds for objection."); Civ.R. 53(D)(3)(b)(iv) (stating that failure to provide objection under rule constitutes waiver except for plain error); In re A.V. , 10th Dist. No. 05AP-789, 2006-Ohio-3149, 2006 WL 1704109, ¶ 22 (holding that the failure to comply with the specificity requirements of Civ.R. 53 results in waiver of the issue).

{¶ 25} Regardless, appellant's argument as to bankruptcy law lacks merit. Appellant agrees that 11 U.S.C. 53 indicates that bankruptcy does not cancel debts owed due to fraud or defalcation (misappropriation of money) while acting in a fiduciary capacity. Moreover, the relief from stay obtained by Wasserman expressly permitted the probate court to determine whether the property at issue should be an asset of the estate. Wasserman obtained relief from the bankruptcy stay "for the limited purpose of the [probate court] to consider the final account in the [estate of Calvert Porter] and any objections related thereto, including whether the real estate location at 1444 Moler Road, Columbus, Ohio 43207 was properly conveyed to [appellant] and remains subject to Probate Court jurisdiction" and was further granted relief to pursue her rights against the surety. (June 17, 2016 Order Granting Mot. of Susan Wasserman for Relief from Stay at 2.) Considering the above, we disagree that the trial court erred in regard to appellant's contentions on bankruptcy law.

{¶ 26} Finally, appellant argues that appellant's former co-administrator should be held as liable as appellant for non-payment of attorney fees. " ' "Ordinarily, reviewing courts do not consider questions not presented to the court whose judgment is sought to be reversed." ' " Klie at ¶ 10, quoting State ex rel. Quarto Mining Co. v. Foreman , 79 Ohio St.3d 78, 81, 679 N.E.2d 706 (1997), quoting Goldberg v. Indus. Comm. , 131 Ohio St. 399, 404, 3 N.E.2d 364 (1936). Appellant did not raise this issue in her objections to the magistrate's decision, the trial court did not address the issue, and appellant has not argued plain error. We decline to address this issue for the first time on appeal. In re A.L.D. , 10th Dist. No. 08AP-238, 2008-Ohio-3626, 2008 WL 2809233, ¶ 18 ; A.V. at ¶ 22 ; In re A.R. , 12th Dist. No. CA2015-08-143, 2016-Ohio-4919, 2016 WL 3667977, ¶ 32-33. We further note whether appellant has remedies against her co-administrator is not at issue in this appeal.

{¶ 27} Accordingly, appellant's second assignment of error is overruled.

V. CONCLUSION

{¶ 28} Having overruled appellant's two assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas, Probate Division.

Judgment affirmed.

KLATT and BRUNNER, JJ., concur.

      The probate court initially filed a decision adopting the magistrate's decision on February 2, 2017. Appellant filed an appeal of that decision to this court, as well as a motion in the probate court for relief from judgment contesting the probate court's finding that no transcript had been filed. This court granted appellant's motion to remand in order for the probate court to resolve the Civ.R. 60(B) matter. The probate court granted appellant relief, pursuant to Civ.R. 60(B)(1), and undertook "a new de novo review" of the matter and objections. (May 10, 2017 Jgmt. Entry at 3.)