[Cite as Hanko v. Nestor, 2019-Ohio-2256.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                      ERIE COUNTY

Michael Hanko                                    Court of Appeals No. E-18-007

       Appellee                                  Trial Court No. 2001 CV 0304

v.

Michael Nestor, et al.

        Appellant

v.

Robert Hanko                                     DECISION AND JUDGMENT

        Appellee                                 Decided: June 7, 2019

                                             *****


        Brent L. English, for appellees.

        Steven B. Beranek, for appellant.

                                             *****

        SINGER, J.

        {¶ 1} This is an appeal from the January 19, 2018 judgment of the Erie County

Court of Common Pleas denying appellant’s motion for a new trial. Finding no error, we

affirm the judgment.
                                 Assignments of Error

      {¶ 2} Appellant sets forth two assignments of error:

             1. THE TRIAL COURT ERRED WHEN IT GRANTED

      APPELLEE’S ORAL MOTION FOR DIRECTED VERDICT AT THE

      CLOSE OF APPELLANT’S CASE.

             2. THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT

      APPELLANT’S MOTION FOR NEW TRIAL.

                                      Background

      {¶ 3} The facts of this case are fully set forth in our decisions in Hanko v. Nestor,

6th Dist. Erie No. E-11-055, 2012-Ohio-4488 (“Hanko I”), and Hanko v. Nestor, 6th Dist.

Erie No. E-15-041, 2016-Ohio-2976 (“Hanko II”).

      {¶ 4} In May of 1994, appellant, Michael Nestor, and appellee, Michael Hanko,

formed H&N Construction, Inc. (“H&N”). Before establishing H&N, appellee and

appellant worked together for another construction company.

      {¶ 5} H&N had two executive directors, appellant and appellee, and both owned

50 percent of the company. Appellant was president, appellee was vice-president, and

appellant’s wife, Betsy Nestor, was secretary. The company also employed labor

workers, and it used equipment that appellant and appellee either brought to H&N or

purchased to contribute to H&N’s production.

      {¶ 6} Until around mid-1999, appellant and appellee received equal paychecks and

profits, and the business was going well. Then appellant and appellee’s relationship




2.
began to deteriorate, and appellee communicated that he wanted to sell his interest in the

company. He demanded around $200,000 for his share. Appellant was only willing to

pay him half of that price. There was no shareholder or operating agreement in place and

an impasse ensued.

       {¶ 7} Appellant continued to operate the business while appellee was treated as if

he retired and abandoned his interests. Appellee filed a complaint against appellant in

November 1999, alleging that appellant had, among other things, breached fiduciary

duties to appellee and usurped corporate opportunities. Appellant filed counterclaims

against appellee alleging similar causes of action. The case was voluntarily dismissed

without prejudice in April 2001.

       {¶ 8} Appellee re-filed the action in June 2001. Appellant again filed

counterclaims against appellee. The cases were identical other than the addition of

appellee’s brother, Robert Hanko, and Hanko Farms, Inc. as parties to a third-party

complaint filed by appellant and his wife.

       {¶ 9} In 2009, appellant filed two separate motions to dismiss appellee’s claims

for failure to prosecute. On July 2, 2009, the trial court dismissed appellee’s complaint

with prejudice for failure to prosecute pursuant to Civ.R. 41(B)(1).

       {¶ 10} On September 28, 2012, we affirmed the trial court’s July 2, 2009

judgment dismissing appellee’s claims. See Hanko I. Appellee then filed an application

for reconsideration, which we denied. The Supreme Court of Ohio did not accept the




3.
case for review. See Hanko v. Nestor, 134 Ohio St.3d 1469, 2013-Ohio-553, 983 N.E.2d

368.

       {¶ 11} On May 12, 2015, appellee filed a motion for relief from the trial court’s

June 17, 2011 judgment denying appellee’s motion for reconsideration of the July 2,

2009 order. In the motion, appellee claimed he was entitled to relief pursuant to Civ.R.

60(A) or Civ.R. 60(B)(5). The trial court held an evidentiary hearing and, on July 24,

2015, the trial court granted appellee’s motion. Appellant timely appealed to this court.

       {¶ 12} On May 13, 2016, we reversed the trial court’s July 24, 2015 judgment.

See Hanko II. We determined the trial court improperly proceeded under Civ.R. 60. Our

judgment affirmed that appellee could not bring forth his claims as held in the July 2,

2009 trial court order. This court found, however, that appellant’s 2001 counterclaims

were preserved and the case was remanded to the trial court.

       {¶ 13} The matter proceeded to trial on appellant’s breach of fiduciary duty claim

on September 25, 2017. At the close of appellant’s evidence, appellee moved for a

directed verdict. The trial court granted the motion. The judgment was journalized on

October 25, 2017. Appellant then moved the court for a new trial, and the court denied

the motion on January 19, 2018. Appellant timely appeals.

                                      Legal Analysis

       {¶ 14} Although not asserted in an assignment of error, the parties initially place

in dispute to what extent this court should address appellant’s counterclaims considering

he brought forth the claims in a direct, as opposed to a derivative action. This issue is




4.
one of law and shall be reviewed de novo. See Heaton v. Rohl, 193 Ohio App.3d 770,

2011-Ohio-2090, 954 N.E.2d 165, ¶ 53 (11th Dist.).

       {¶ 15} Appellant asserts a derivative action is not necessary because Ohio law

allows business partners and shareholders to bring forth direct, as opposed to derivative

claims against other partners or shareholders for a breach of fiduciary duty.

       {¶ 16} Appellee contends appellant’s counterclaims should be denied because

appellant must, but did not, proceed with a derivative action.

       {¶ 17} Initially, we note H&N was a close corporation because it only had two

shareholders and H&N’s shares were not traded on a securities market. See Crosby v.

Beam, 47 Ohio St.3d 105, 548 N.E.2d 217 (1989), paragraph one of syllabus.

       {¶ 18} Directors and shareholders of a closely held corporation owe the

shareholders fiduciary duties to act in good faith and to refrain from self-dealing. See id.

at 107-108; Heaton, 193 Ohio App.3d 770, 2011-Ohio-2090, 954 N.E.2d 165, at ¶ 47.

       {¶ 19} Generally, “actions for breach of fiduciary duties are to be brought in

derivative suits.” Grand Council v. Owens, 86 Ohio App.3d 215, 220, 620 N.E.2d 234

(10th Dist.1993), citing Cole v. Ford Motor Co., 566 F.Supp. 558, 568-569

(W.D.Pa.1983). One nuanced exception is where the case involves “claims by

shareholders in a close corporation.” See, e.g., Terry v. Carney, 6th Dist. Ottawa No.

OT-94-054, 1995 Ohio App. LEXIS 5754, *17 (Dec. 29, 1995).

       {¶ 20} Appellant argues he was not required to bring forth his counterclaims as a

derivative action because his claims involved a close corporation. For support he




5.
specifically points to Crosby, where the Supreme Court of Ohio held that “claims of a

breach of fiduciary duty alleged by minority shareholders against shareholders who

control a majority of shares in a close corporation, and use their control to deprive

minority shareholders of the benefits of their investment, may be brought as individual or

direct actions and are not subject to the provisions of Civ. R. 23.1.” Crosby at 109-110.

       {¶ 21} In this case, we cannot say the facts fit squarely within the explicit

framework of Crosby because the parties were both equal owners of H&N, and thus there

was no majority or minority shareholder.

       {¶ 22} We look to Crosby’s progeny, and note that this court has not applied the

rule articulated in Crosby to a case where there has been no minority shareholder. See

Frick v. Frick, 6th Dist. Wood No. WD-03-075, 2004-Ohio-6898; Mulchin v. ZZZ

Anesthesia, Inc., 6th Dist. Erie No. E-05-045, 2006-Ohio-5773; Binsack v. Hipp, 6th Dist.

Huron No. H-97-029, 1998 Ohio App. LEXIS 2370 (June 5, 1998); Terry v. Carney, 6th

Dist. Ottawa No. OT-94-054, 1995 Ohio App. LEXIS 5754 (Dec. 29, 1995); Crosby v.

Beam, 83 Ohio App.3d 501, 615 N.E.2d 294 (6th Dist.1992); Hall v. Edmonds, 6th Dist.

Lucas No. L-91-219, 1992 Ohio App. LEXIS 4349 (Aug. 28, 1992).

       {¶ 23} We first point to Citizens Fed. Bank v. Chateau Constr. Co., 2d Dist.

Montgomery No. 13902, 1994 Ohio App. LEXIS 167 (Jan. 19, 1994), where a direct

action was allowed.

       {¶ 24} In Citizens, the Second District Court of Appeals applied the holding of

Crosby despite there being no minority shareholder. Id. at *4. There were two business




6.
partners, Nelson and Ross, who each owned 50 percent of a company they started in

1987. Evidence demonstrated “that [Nelson] was the controlling shareholder.” Id. at *5.

As a result of Nelson being the controlling shareholder, breach of his fiduciary duty to

Ross was actionable. See id. at *4, citing Crosby at 109 (implying “controlling”

shareholder can be treated as a “majority,” perhaps despite there being no true “minority”

shareholder).

       {¶ 25} Distinguishable from Citizens is Kable v. Trinity Fin. Corp., S.D.Ohio No.

07-CV-1131, 2008 U.S. Dist. LEXIS 23974 (Mar. 11, 2008), where a direct claim was

denied. In Kable, the U.S. District Court for the Southern District of Ohio cited Crosby

and found “the minority-shareholder exception is inapplicable to cases in which there are

no minority shareholders.” Id. at *15-16. Kable and Andolshek were equal partners in

their company, and Kable sued Andolshek. Id. at *2. Andolshek was vice-president and,

in that capacity but for his own personal gain, had wired $125,102.50 of company funds

to a third party. Kable alleged this transfer was an illegal conversion, and he brought a

derivative claim on behalf of the company for $125,102.50 and, in the alternative, a direct

claim for breach of fiduciary duty for $62,551.25 (50 percent of $125,102.50) on behalf

of himself. Id.

       {¶ 26} The Kable court dismissed the direct claim. Id. at *15-17. In doing so, the

court first analyzed the factor of control in favor of disallowing the direct claim and

recognized that as an equal partner and president, Kable “would have as much right and

opportunity to exercise control over any judgment[.]” Id. at *15.




7.
       {¶ 27} Additionally, the court recognized that the legal authorities on which Kable

relied were distinguishable in that those “Ohio courts permitted direct claims in lieu of

derivative actions because the corporation no longer existed.” Id. at *17. Thus the court

analyzed whether the company was an ongoing concern, and found it favored disallowing

a direct claim if so.

       {¶ 28} Lastly, the court stated “Kable allege[d] no injury separate and distinct

from that of [the company,]” id., hence there analyzing who bears the injury or harm, and

whether the injury or harm directly affected the company and only indirectly affected the

shareholder, Kable. See also Crosby at 110, citing Adair v. Wozniak, 23 Ohio St.3d 174,

492 N.E.2d 426 (1986).

       {¶ 29} Consistent with the law of Crosby, Citizens, and Kable, and because we

found 50/50 co-owners of a close corporation in this appeal, we consider the following in

determining if a direct claim is proper: (1) is the injury or harm separate and distinct

from the injury or harm to the company; (2) did defendant have authority and control the

company in a way that led to harming other shareholders; and (3) is the company an

ongoing concern. See, e.g., Gensemer v. Hallock, 125 Ohio App.3d 84, 92, 707 N.E.2d

1156 (9th Dist.1997) (stating “* * * where there is a close corporation with only four

shareholders, where the corporation has already been dissolved, and where the issues

involved are not terribly complex, we cannot say the lower court errs in allowing a

former shareholder to pursue a direct action[.]”).




8.
                           (1) Separate and Distinct Injury or Harm

       {¶ 30} To illustrate the “separate and distinct” consideration we look to Heaton,

193 Ohio App.3d 770, 2011-Ohio-2090, 954 N.E.2d 165, where the Eleventh District

Court of Appeals allowed a direct claim, stating “[a] shareholder * * * may bring a direct

action against a director or officer for injuries suffered by the corporation where: (1) the

injury arises out of a special duty * * * or (2) the shareholder suffered damages separate

and distinct from that suffered by other shareholders.” Id. at ¶ 55.

       {¶ 31} Rohl and Heaton were equal (50/50) shareholders of a close corporation

named All Aircraft Services, Inc. (“AAS”). Id. at ¶ 57. AAS was an aviation business

that serviced aircrafts, and Rohl was the sole owner of the company, T&G, which held

the lease “over the hangar in which AAS conducted its operations[.]” Id. at ¶ 58.

       {¶ 32} The Heaton court found that Rohl and Heaton agreed AAS would provide

discounted labor to T&G, which was “to offset expenses incurred by AAS, including rent

and other overhead.” Id. at ¶ 8. AAS operated for 39 months and was profitable and

self-sustaining financially. After a disagreement about profits, Rohl and Heaton’s

relationship deteriorated. T&G, through Rohl, requested that AAS pay it $90,000, in

mostly back rent, for the period from January 2003, through to September 2005. Id. at

¶ 19-20.

       {¶ 33} AAS could not pay the back rent and ceased operations. Id. Rohl

continued operating the same type of business, from the same facility, using the same

employees, and assisting the same customers, as AAS. Id. Heaton sued Rohl for, among




9.
others, breach of fiduciary duty. The Heaton court held that Rohl indeed breached his

duties to act in good faith and refrain from self-dealing. Id. at ¶ 59.

       {¶ 34} The Heaton court further held Rohl caused Heaton injury which was

separate and distinct from that which the company suffered. Id. More specifically, the

court recognized that “Rohl’s actions deprived Heaton, the sole remaining shareholder, of

both his equal share in the company and his employment.” Id. The court then stated that

“Rohl, on the other hand, was able to continue operating a business engaged in the same

operations as AAS, in the same location, with the same employees, assisting the same

customers[,]” and that Rohl was undamaged by his own actions and profited at Heaton’s

expense. Id.

       {¶ 35} Here, appellant asserts the injury or harm he suffered as a result of

appellee’s acts was separate and distinct from the company because appellee, the

wrongful actor, was the only shareholder to otherwise suffer or profit from his wrongful

acts. Appellant cites to Medina v. Perumbeti, 8th Dist. Cuyahoga No. 66732, 1994 Ohio

App. LEXIS 5809 (Dec. 22, 1994), referring to it as “remarkably instructive with regard

to * * * whether the injury caused to H&N Construction by Hanko’s breach of fiduciary

duties in effect constitutes injury to Nestor personally.” Appellant otherwise concedes

the injury or harm the company suffered was the same harm he suffered.

       {¶ 36} Appellee contends that because H&N was a separate legal entity from its

shareholders, appellant improperly asserted a direct claim below because appellant’s




10.
claims, “even if proved, were for injuries to H&N and clearly not to Nestor personally.”

Appellee thus asserts a derivative claim and compliance with Civ.R. 23.1 were necessary.

       {¶ 37} We particularly find appellant’s allegations, if proven and well-taken by the

trier-of-fact, would demonstrate appellee sought to compete, disrupted business

operations by terminating employees, used and converted equipment, and usurped and

withheld business opportunities, all in an effort to deliberately seek to harm H&N, which

was appellant’s sole means of income. Appellee was the only other shareholder of H&N,

and like Rohl in Heaton, was allegedly undamaged by his own actions and actually

profited at appellant’s expense. See Heaton at ¶ 59.

       {¶ 38} Accordingly, we find this first consideration weighs in favor of allowing a

direct claim by appellant.

                                  (2) Company Control

       {¶ 39} We next consider whether appellee controlled H&N, with exclusive

authority, in a way that led to harming other shareholders. We again reference Citizens,

2d Dist. Montgomery No. 13902, 1994 Ohio App. LEXIS 167, where the Second District

Court of Appeals relied on this consideration to allow a claim against the controlling

partner.

       {¶ 40} In Citizens, supra, Nelson was a “controlling shareholder” who breached

his fiduciary duty to Ross. Nelson was considered “controlling” because he was the

president, treasurer and manager, and he and his wife handled the books, records, and




11.
bank account, paid the subcontractors, suppliers, and creditors, and negotiated contracts

and actively participated in the day-to-day operation of the company. Id. at *5.

          {¶ 41} Moreover, throughout the company’s existence, Ross, Nelson, and

Nelson’s wife all loaned it money in his or her individual capacity. In 1991, the company

went out of business and only Ross was left owed debt because Nelson, as treasurer, paid

back money he and his wife were owed from H&N’s remaining funds. Ross then

successfully sued Nelson alleging this failure to pay him back to be a breach of fiduciary

duties.

          {¶ 42} Here, we find appellee was not alleged to be more of a controlling partner

than appellant. To the contrary, it was appellant and his wife who admittedly ran the day-

to-day operations of H&N, and as an equal partner we find appellant had as much right

and opportunity to exercise control over any judgment exercised by H&N as had

appellee.

          {¶ 43} However, we look again to Heaton, 193 Ohio App.3d 770, 2011-Ohio-

2090, 954 N.E.2d 165, for another angle at the issue. Appellee, similarly to Rohl in

Heaton, was alleged to have operated the same type of business as H&N after leaving the

company, to have used H&N employees and equipment for the benefit of him and his

other company, and to have assisted the same potential customers as those of H&N, all

while maintaining an interest in an undissolved H&N. See Heaton at ¶ 59, supra.

          {¶ 44} Accordingly, we find this second consideration weighs neutral in our

direct-claim analysis.




12.
                                      (3) On Going Concern

       {¶ 45} Lastly, we consider whether the company is an ongoing concern. See

Kable at *17, S.D.Ohio No. 07-CV-1131, 2008 U.S. Dist. LEXIS 23974, supra.

       {¶ 46} Here, we find H&N is not. Specifically, the record supports the parties

ceased working together in late 1999, and that H&N was enjoined from operation in

2011. We find this third consideration, thus, weighs in favor of allowing a direct claim.

       {¶ 47} Accordingly, under these facts and based on the foregoing considerations,

we find a direct action against appellee was appropriate.

                                Assignment of Error No. 1

       {¶ 48} In his first assignment of error, appellant contends the trial court erred in

granting appellee’s motion for directed verdict because there was substantial, competent

evidence in his favor so that reasonable minds might reach a different conclusion.

Appellee counters, asserting the trial court properly granted the directed verdict.

       {¶ 49} Civ.R. 50(A)(1) provides that a motion for directed verdict “may be made

on the opening statement of the opponent, at the close of the opponent’s evidence or at

the close of all the evidence.” Civ.R. 50(A)(4) follows with:

              When a motion for a directed verdict has been properly made, and

       the trial court, after construing the evidence most strongly in favor of the

       party against whom the motion is directed, finds that upon any

       determinative issue reasonable minds could come to but one conclusion

       upon the evidence submitted and that conclusion is adverse to such party,




13.
       the court shall sustain the motion and direct a verdict for the moving party

       as to that issue.

See, e.g., Howell v. Dayton Power & Light Co., 102 Ohio App.3d 6, 13, 656 N.E.2d 957

(4th Dist.1995). A de novo standard is applied in reviewing a trial court’s ruling on a

motion for directed verdict under Civ.R. 50. See Kassmakis v. Dasani, 6th Dist. Lucas

No. L-04-1041, 2004-Ohio-6463, ¶ 9.

       {¶ 50} We first note that appellant’s counterclaims below were for breach of

fiduciary duty, conversion, and civil conspiracy. On appeal, appellant only challenges

the trial court’s denial of the claim for breach of fiduciary duty. Consequently, he has

waived any challenge to the disposition of his counterclaims for conversion and civil

conspiracy. Thus we proceed, addressing only his claim for breach of fiduciary duty.

“One asserting a claim of breach of fiduciary duty must establish the existence of a

fiduciary duty, breach of that duty, and injury proximately caused by the breach.”

Newcomer v. Natl. City Bank, 2014-Ohio-3619, 19 N.E.3d 492, ¶ 9 (6th Dist.).

       {¶ 51} Here, we find appellee certainly owed appellant a fiduciary duty while he

was a partner, director, officer and shareholder of H&N. On appeal, appellant explicitly

highlights appellee’s director and shareholder statuses to establish this duty and breach.

See, e.g., Frick v. Frick, 6th Dist. Wood No. WD-03-075, 2004-Ohio-6898, ¶ 102; Burns

v. Burns Iron & Metal Co., 6th Dist. Sandusky No. S-12-024, 2013-Ohio-2024, ¶ 18 (“It

is well-settled that shareholders in a closely held corporation ‘owe one another a

fiduciary duty to act in good faith and refrain from self-dealing.’”).




14.
       {¶ 52} We agree. Moreover, with respect to breach, appellant specifically claims

that appellee laid off employees to the detriment of H&N, actively competed with H&N,

and usurped business opportunities available to H&N.

       {¶ 53} Appellee contends the employees were at-will and actually decided to not

continue working for H&N, and that appellant failed to demonstrate with evidence that

appellee’s alleged competing or usurping opportunities caused injury or damages.

       {¶ 54} Viewing the record at the close of appellant’s evidence most favorable to

him, we find appellee breached his fiduciary duties of good faith and to refrain from self-

dealing. Appellee nevertheless argues that, despite any breach of fiduciary duties,

appellant failed to prove with certainty the amount of monetary damages he was entitled

to as a result of appellee’s acts or omissions.

       {¶ 55} We first analyze whether appellant, before closing of his evidence at trial,

established that appellee proximately caused injury or monetary damages. “Proximate

cause ‘is often difficult of exact definition as applied to the facts of a particular case.’”

Morgan v. Ramby, 12th Dist. Warren Nos. CA2010-10-095, CA2010-10-101, 2012-

Ohio-763, ¶ 25, citing Young v. Hollins, 12th Dist. No. CA89-11-099, 1991 Ohio App.

LEXIS 178, 1991 WL 6361, * 4 (Jan. 22, 1991). “Nevertheless, while oftentimes

difficult to define, the proximate cause of an event is generally thought of as ‘that which

in a natural and continuous sequence, unbroken by any new, independent cause, produces

that event and without which that event would not have occurred.’” Id., citing Wilson v.




15.
AC & S, Inc., 169 Ohio App.3d 720, 2006-Ohio-6704, 864 N.E.2d 682, ¶ 106 (12th

Dist.).

          {¶ 56} We look to Morgan where the Twelfth District Court of Appeals held that

no damages were proximately caused despite a shareholder/director/officer breaching his

fiduciary duties by leaving his company without winding up its affairs and by failing to

participate or assist in defending lawsuits brought against the company. Id. at ¶ 26.

          {¶ 57} Morgan and Ramby were each 50 percent shareholders of a home-

construction business. Id. at ¶ 2. Their relationship eroded and Ramby separated from

the business, which at that time left Morgan to deal with several disgruntled clients,

unpaid invoices, mechanics liens, and lawsuits. Id. at ¶ 5. Morgan filed claims against

Ramby for, among others, breach of fiduciary duties. Id. at ¶ 6. The trial court found

Ramby could be liable for breaching fiduciary duties owed to both Morgan and the

company for failing to formally resign and refusing to cooperate in defense of the

litigation. Id. at ¶ 10. Despite this breach element being met, however, the trial court

held that Morgan only proved the breach proximately resulted in $42,972.70 damages,

which was for incurred legal fees. Id. at ¶ 26.

          {¶ 58} The Morgan appellate court affirmed that Ramby’s acts were “unbecoming

of an otherwise prudent businessman,” and reflected “a reckless disregard for [the

business’s] corporate interests.” Id. The appellate court specifically found, “[t]o simply

walk away from the situation, as Ramby did, demonstrates a lack of good faith and

violates the fiduciary duty owed to [the business] and Morgan.” Id. The court then




16.
turned “to the question of whether Morgan and [the business] have been damaged as a

proximate result of Ramby’s conduct,” and answered it in the negative. Id. at ¶ 27. The

court stated, “while Ramby’s assistance in defending against the lawsuits may have

proved beneficial, it simply cannot be said that his departure proximately caused”

$42,972.70 in attorney fees. Id. The court also affirmed that Morgan failed to show

Ramby’s acts resulted in other damages.

       {¶ 59} Likewise, in this case we cannot say appellant has shown a causal link

between appellee’s acts and resulting injury or damages. We find as a matter of law

pursuant to Civ.R. 50(A)(4), insufficient evidence and reasonable minds could only come

to the conclusion that appellee did not cause damages to appellant. The damages

appellant requested in his counterclaims were for compensatory damages for a

“disgorgement of all profits derived,” for punitive damages “in an amount to be

determined at trial,” and for “interest, costs, attorney’s fees and such other legal and

equitable relief as this Court deems proper.”

       {¶ 60} Based on our review of the evidence below, we cannot agree appellee

proximately caused, in a natural and continuous sequence, unbroken by any new,

independent cause, any monetary damages appellant may have suffered. Even viewing

the evidence most favorably to appellant, we find his actions were new, independent

causes of the claimed damages to H&N and himself. Specifically, and based on his own

testimony, we find appellant essentially terminated appellee and forced his resignation,

locked appellee out of H&N’s affairs and records, terminated appellee’s company credit




17.
card and access to H&N’s bank account, turned off appellee’s company phone and pager,

blocked appellee from H&N jobs and profits, all while increasing appellant and his wife’s

salaries and bonuses and completely taking dominion over the company and its profits

without sharing.

       {¶ 61} All this was done without winding up the affairs of the company or buying

out appellee, even after the two partners had discussed not continuing in the business

together. We find that had appellant wound up the affairs or purchased appellee’s shares

in H&N before the breaches of fiduciary duties began, he and H&N would not have

suffered damages as a result. Both parties could have continued on freely without

breaching any duty owed to the other partner.

       {¶ 62} Therefore, we first hold that even viewing the record in a light most

favorable to appellant does not result in this court concluding there is sufficient evidence

to support that appellee caused harm in a natural and continuous sequence, unbroken by

any new, independent cause, especially not to the degree necessary to warrant punitive

damages.

       {¶ 63} Furthermore and with respect to the other prayed-for damages, again, we

find appellant’s own testimony supports that he was an independent, intervening, and

contributing cause of the lost opportunity and profits. We find appellant failed to show

that without appellee’s acts his damages would not have occurred.

       {¶ 64} Accordingly, we find that appellant’s first assignment of error is not-well

taken and is denied.




18.
                                Assignment of Error No. 2

        {¶ 65} In the second assignment of error, appellant argues the trial court erred in

failing to grant his motion for a new trial where the issued judgment was contrary to law.

Appellee contends the court correctly denied the motion for a new trial.

        {¶ 66} Civ.R. 59(A)(7) states that “[a] new trial may be granted to all or any of the

parties and on all or part of the issues upon” showing that “[t]he judgment is contrary to

law.”

        {¶ 67} We review the denial of a motion for a new trial brought under Civ.R.

59(A)(7) de novo. See Moore v. Moore, 6th Dist. Erie No. E-17-011, 2018-Ohio-1545,

¶ 14.

        {¶ 68} Here, appellant argues he is entitled to a new trial for essentially the same

reasons he claims to be entitled to withstand the directed verdict. He therefore argues

that the October 25, 2017 judgment memorializing the court’s grant of directed verdict

was contrary to law. We disagree for the reasons stated above.

        {¶ 69} Accordingly, we find no merit in appellant’s second assignment of error.

                                         Conclusion

        {¶ 70} The January 19, 2018 judgment of the Erie County Court of Common Pleas

is affirmed. The costs of this appeal are assessed to appellant pursuant to App.R. 24.


                                                                         Judgment affirmed.




19.
                                                                      Hanko v. Nestor
                                                                      C.A. No. E-18-007




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE


Christine E. Mayle, P.J.                       _______________________________
CONCURS AND WRITES                                         JUDGE
SEPARATELY.


Gene A. Zmuda, J.                              ________________________________
CONCURS IN DECISION ONLY                                   JUDGE
AND WRITES SEPARATELY.




       MAYLE, P.J.

       {¶ 71} I concur with the majority decision. I write separately to emphasize my

view that appellant was entitled to bring a direct claim against appellee―even though

appellant did not establish that appellee was the sole “controlling” shareholder―because

it would have been “a considerable waste of judicial resources” to require appellant to




20.
pursue a derivative claim on behalf of a close corporation that is no longer in operation.

Gensemer v. Hallock, 125 Ohio App.3d 84, 92, 707 N.E.2d 1156 (9th Dist.1997).

       {¶ 72} The Ninth District’s opinion in Gensemer is particularly instructive. In that

case, the court concluded that the trial court properly allowed a direct fiduciary-duty

claim by Richard and Paula Gensemer (who owned 50 percent of a close corporation)

against Macy and Clare Hallock (who owned the other 50 percent) even though the

Gensemers did not establish that they suffered separate and distinct injury, or that the

Hallocks were the “controlling” shareholders. Id. at 91. The court stated:

              To require the Gensemers now to pursue a derivative action for

       [damage incurred during] the years preceding dissolution would seem a

       considerable waste of judicial resources. The issues in either case would be

       identical. In a situation such as this, then, where there is a close

       corporation with only four shareholders, where the corporation has already

       been dissolved, and where the issues involved are not terribly complex, we

       cannot say the lower court errs in allowing a former shareholder to pursue a

       direct action against another former shareholder. Id. at 92.

       {¶ 73} I believe that the Ninth District’s reasoning in Gensemer applies with equal

force in this case.1 Moreover, Gensemer is in line with other Ohio courts that have



1
  In truth, the reasoning of Gensemer arguably applies with even more force here given
that―as the majority concludes―the appellant did allege a “separate and distinct” injury
in this case.




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considered the relevant issue here―i.e., the propriety of a direct fiduciary-duty claim by

a 50 percent coequal shareholder against the other 50 percent coequal shareholder of a

close corporation―although, in most of those cases, the impact of the corporation’s

ongoing status (or lack thereof) appears to have been an implicit, rather than explicit,

consideration.

       {¶ 74} In DeHoff v. Veterinary Hosp. Operations of Cent. Ohio, Inc., 10th Dist.

Franklin No. 02AP-454, 2003-Ohio-3334, ¶ 83, the court found that the trial court did not

err by allowing appellee, a 50 percent coequal shareholder, to assert a claim against the

other shareholder for “breach[ing] a fiduciary duty owed directly to him by failing to

assist with the dissolution and winding up the affairs of the corporations * * * [because]

the usual concerns that generally preclude a shareholder from bringing an individual

action are not present * * *.”

       {¶ 75} In Stumpff v. Harris, 2d Dist. Montgomery No. 21407, 2006-Ohio-4796,

¶ 57, a case involving judicial dissolution of a close corporation, the court found that a 50

percent coequal shareholder “is not barred from bringing a direct cause of action against

[the other] for breach of fiduciary duty”―albeit without extensive discussion.

       {¶ 76} In Citizens Fed. Bank v. Chateau Constr. Co., Inc., 2d Dist. Montgomery

No. 13902, 1994 Ohio App. LEXIS 167 (Jan. 19, 1994), although the court found that a

50 percent coequal shareholder could bring a direct claim against the other shareholder

because there was evidence that the defendant-shareholder was the “controlling




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shareholder,” id. at 5, it is noteworthy that the lawsuit in that case was filed after “the

corporation went out of business.” Id. at 3.

       {¶ 77} Similarly, in Heaton v. Rohl, 193 Ohio App.3d 770, 2011-Ohio-2090, 954

N.E.2d 165 (11th Dist.), although the court found that a 50 percent shareholder of a close

corporation could sue the other shareholder directly because, in part, the defendant-

shareholder “possessed unique, supervening control” over the corporation, id. at ¶ 57, the

court also found that the plaintiff-shareholder arguably suffered “injuries separate and

distinct” from the other shareholder who was alleged to have “unilaterally caused [the

corporation] to cease operations.” Id. at ¶ 56, 59.

       {¶ 78} Finally, in Kable v. Trinity Fin. Corp., S.D.Ohio No. 07-CV-1131, 2008

U.S. Dist. LEXIS 23974, 17 (Mar. 11, 2008), the federal district court reviewed Ohio

case law and concluded that “Ohio courts permit[] direct claims in lieu of derivative

actions * * *” where the close corporation “no longer existed.” The federal court then

refused to allow a direct claim because the plaintiff did not allege separate and distinct

injury, and because the corporation at issue “remain[ed] a going concern.” Id.

       {¶ 79} In light of the foregoing precedent, I believe that appellant’s direct action

against appellee was appropriate because their closely-held corporation, H&N, was no

longer in operation. For me, that is the determinative factor in this case.2


2
  I also note that appellant’s “separate and distinct” injury―as alleged―necessarily
depends upon the corporation’s ultimate collapse. That is, by alleging that appellee took
illegitimate actions to usurp all of H&N’s business opportunities, which (according to
appellant’s allegations) caused H&N’s eventual downfall, appellant essentially alleged




23.
       {¶ 80} And, I agree with the majority that, although the appellant properly alleged

a direct claim against appellee, the trial court correctly granted a directed verdict in

appellee’s favor on that claim because, under the facts that were admitted into evidence,

appellant did not prove that appellee’s conduct was the proximate cause of any damage

that appellant may have suffered.




       ZMUDA, J, concurring in decision only.

       {¶ 81} Because I disagree with the majority’s determination regarding the

propriety of a direct action, but otherwise agree with the conclusion that the trial court

appropriately granted a directed verdict, I write separately, concurring only with the

majority’s decision to affirm the trial court’s judgment.

       {¶ 82} In addressing the appropriateness of a direct claim by appellant, the

majority applied the factors articulated in Crosby v. Beam, 47 Ohio St.3d 105, 548

N.E.2d 217 (1989). Despite finding no separate and distinct injury suffered by appellant,

and finding that appellant and his wife, not appellee, controlled the corporation, the

majority determined a direct claim to be proper. However, analysis regarding direct




that appellee deprived him of “an equal opportunity to benefit” from H&N. See Crosby
v. Beam, 47 Ohio St.3d 105, 548 N.E.2d 217 (1989).




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versus derivative claims is unnecessary, as the finding regarding damages is dispositive

of all matters on appeal.

       {¶ 83} The trial court granted appellee’s motion for directed verdict, finding

insufficient evidence to demonstrate appellee’s conduct proximately caused damages to

appellant or the corporation. Based upon my review of the evidence in the record, and

for the reasons articulated by the majority, the trial court properly granted the motion for

directed verdict. Therefore, I concur in the decision to affirm the judgment of the trial

court, with any analysis regarding the type of claim asserted of no consequence, based on

this conclusion.




           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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