[Cite as Dueck v. Clifton Park Trust, 2019-Ohio-4784.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA


ARTHUR P. DUECK, ET AL.,                                 :

                 Plaintiffs-Appellants,                  :
                                                             No. 108008
                 v.                                      :

JOSEPH KERRIGAN, TRUSTEE,                                :
CLIFTON PARK TRUST, ET AL.

                 Defendants-Appellees.                   :



                               JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: November 21, 2019


            Civil Appeal from the Cuyahoga County Court of Common Pleas,
                                   Probate Division
                              Case No. 2018 ADV 234080


                                            Appearances:

                 Hahn, Loeser & Parks, L.L.P., Dennis R. Rose, and
                 Casey J. McElfresh, for appellant.

                 Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A.,
                 Terry J. Evans, and Karen Soehnlen McQueen, for
                 appellees.
ANITA LASTER MAYS, J.:

I.   Introduction and Background

           A. The 2012 action

                  We recite excerpts of our opinion in Dueck v. Clifton Club Co., 2017-

Ohio-7161, 95 N.E.3d 1032 (8th Dist.) (“Dueck I”), arising from a declaratory

judgment action initiated in 2012,1 as background for this case and hereby

incorporate the defined terms therein for the current opinion:

      Plaintiffs-appellants Arthur P. Dueck (“Dueck”), Todd Gilmore
      (“Gilmore”), Nancy Binder (“Binder”), and William R. Keller (“Keller,”
      collectively “appellants”) appeal the trial court’s grant of summary
      judgment in a declaratory judgment action, interpreting a trust
      agreement in favor of defendants-appellees Clifton Park Trust Trustees
      (“Trustees”) and The Clifton Club Company (“Clifton Club”). * * * After
      a thorough review of the record, we find that the nonresident members
      of the Clifton Club are not beneficiaries of the Trust and, as a result,
      have no legal rights. The matter is reversed and remanded as instructed
      herein for a hearing on the amount of sanctions.

Dueck I at ¶ 1.

                  The case involved a dispute regarding use of the Clifton Park Beach:

      Appellants are lot owners in the Clifton Park Allotment in Lakewood,
      Ohio (“Clifton Park”), a residential area owned and developed in the
      1800s by the Clifton Park Association (“Clifton Park Association”),
      predecessors in interest to the Clifton Park Land & Improvement
      Company (“Land Company”). In 1912, the Land Company placed the
      Clifton Park private park and beach area (collectively the “Beach”) into
      a trust (“Trust”) for the use and enjoyment of all Clifton Park lot
      owners, vesting lot owners with the legal status of Trust beneficiaries
      (“Beneficiaries”). The Clifton Club, a social club operating in Clifton
      Park since 1902, is a members-only establishment. Membership is
      open to the lot owner Beneficiaries, as well as nonresidents of Clifton
      Park (“Club Members”). While the Clifton Club’s membership is
      comprised of both resident lot owners and nonresidents, the focus of

      1   Dueck v. Clifton Club Co., Cuyahoga C.P. No. 2012 ADV 179424.
      this case is whether Club Members, due to their status as Club
      Members, are Beneficiaries under the Trust and entitled to Beach
      access.

Dueck I at ¶ 2.

                  After an in-depth analysis of the trust documents and history, we

decided that there is

      a historical understanding by the Trustees and Clifton Club that the
      Club Members’ right to access the Beach is permissive, and that the
      Trustees have full authority to regulate Beach access. The Club Lease,
      capping the membership number subject to the settlors’ consent,
      confirms that the Clifton Club’s use, even as a direct Beneficiary, is not
      unfettered, particularly since the purpose of the Trust is to allow the lot
      owners to enjoy the Beach.

      We conclude that the trial court correctly determined that the Club
      Members have a “right” to use the Beach. However, in response to the
      declaration explicitly requested by appellants, we find that the Club
      Members have no legal right of access as Beneficiaries. Access by the
      Club Members is by permission and regulation of the Trustees.

Dueck I at ¶ 66-67.

          B. The 2018 action

                  In the instant case, the parties continue to debate entitlement to

Beach access and Trustee regulation. Plaintiffs-appellants Arthur P. Dueck, Paul A.

Bjorn, Nancy Binder, and William R. Keller appeal the November 20, 2018

judgment of the Cuyahoga County Court of Common Pleas, Probate Division.

Appellants challenge the trial court’s dismissal with prejudice of Count 1 of the

Second Amended Complaint seeking to enjoin the current Clifton Park Trust

Trustees; Joseph Kerrigan, Mary Ellen Fraser, Robert Frost, Warren Coleman, and

Ryan Meany (“Trustees”); from granting members of the Clifton Club “a permissive
right to use the Beach that is equal to the rights of the Beneficiaries without the

unanimous consent of the Beneficiaries.” Brief of appellants, p. 5.

               Appellants argue that the rules issued by the Trustees for 2018

granted the Club Members the same rights as the Beneficiaries and, to some extent,

greater rights. Appellants filed the instant action in May 2018. Via the second

amended complaint filed on May 2, 2018, appellants filed an action pursuant to

R.C. 2101.24 and 2721.05 and allege:

      the Trustees have issued rules related to the use of Trust Property —
      held in the form of the Clifton Park Beach and related Beach Property —
      that (a) grants each individual Club Member a right to use the Trust
      Property that is equal to the rights of an individual Resident Beneficiary
      to the use the Trust Property and (b) grants the Club rights to use the
      Trust Property that are far greater than any individual Resident
      Beneficiary in Clifton Park — in fact 224 times greater.

Second amended complaint, ¶ 76.

               Count 1 requests an injunction under R.C. 5810.01(B) to prevent the

Trustees from granting the permissive rights to the Club Members contained in the

rules without the unanimous consent of the Beneficiaries because the conduct is a

breach of the Trust and the Trustees’ fiduciary duties. Appellants also pray for costs,

expenses, and attorney fees pursuant to R.C. 5810.04.

               Count 2 of the second amended complaint asserts that the Trustees

breached their fiduciary duties by implementing rules that provide the Club

Members with greater access and rights to use the Beach than the Beneficiaries.

Appellants seek an injunction under R.C. 5810.01(B) and costs, expenses, and

attorney fees under R.C. 5810.04.
               Count 3 alleges that the Trustees breached their fiduciary duties by

creating rules that reduced the common use of the Beneficiaries to 60 percent of

portions of the Beach. Appellants seek an injunction under R.C. 5810.01(B) and

costs, expenses and attorney fees under R.C. 5810.04.

               Appellants charge that the Trustees breached their fiduciary duty to:

(1) keep current Beneficiaries reasonably informed of Beach administration and

material facts to allow the Beneficiaries to protect their interests; and (2) promptly

respond to requests by Beneficiaries for Trust administration information.

Appellants seek an injunction under R.C. 5810.01(B) and costs, expenses, and

attorney fees under R.C. 5810.04.

               It is the position of the Trustees that they have acted properly and

within the scope of their authority pursuant to this court’s ruling in Dueck I. The

Trustees respond that the instant action is simply a collateral attack because the

issues involved are res judicata.

               On May 15, 2018, appellants filed a motion for temporary restraining

order and preliminary injunction under Civ.R. 65 (“TRO”) to enjoin the Trustees

from implementing the rules for the 2018 season. Attached to the motion was 79

pages of exhibits including the Trust Deed, historical information about Clifton Park

and the Beach, correspondence between the parties prior to institution of this case,

and a legal update document issued by the Trustees (“Legal Update”) that provides

a summary of the outcome of Dueck I and focuses on this court’s determination that

the Trustees have the right to regulate use of the Beach.
              The Legal Update provides that while the Dueck I appeal in the Ohio

Supreme Court2 was pending in December 2017, the Trustees “increased the Clifton

Club’s assessment to 45 percent of the annual budget and maintained the same

number of Club Members to access the Beach as in the previous five years, for the

calendar year 2018.” Access to the Beach was granted to 224 Clifton Club families,

the same number with access over the prior five years.

              The Legal Update also provides:

      2018 Assessment & Club Member Access Review — 2018 assessments
      will remain the same * * *. Any significant changes to assessments after
      the calendar year has begun to present administrative challenges and
      potential financial burden to Beneficiaries. For example, if $127,000
      (the Clifton Club’s assessment) was to be re-assigned to Lot Owner
      Beneficiaries other than the Clifton Club for only a portion of 2018,
      administrative and substantive challenges occur for the following
      reasons:

             1)   Trust Beneficiaries are preparing and transmitting
             payments.

             2)   Clifton Park Trustees have received and processed
             payments.

             3)    Assessment amounts to Lot Owner Beneficiaries would
             increase significantly and may represent an unanticipated
             financial burden to Lot Owner Beneficiaries.

              The Legal Update states that, in recognition of the difference between

the rights of Beneficiaries and Club Member, the car stickers issued for each group

would be distinguishable to allow the Trustees to monitor the traffic in consideration

of future adjustments. The Trustees also modified the table and occupancy rules to


      2  The Ohio Supreme Court declined jurisdiction in Dueck v. Clifton Club Co.,
2018-Ohio-723, 92 N.E.3d 879.
“better reflect the intention of the rules and the assignment of rights in light of the

Court’s decision.”

               The Legal Update also shares the result of the Trustees’ 2018

operating expense review:

      We expect legal expenses to triple from the original budget of $20,000.
      This is a direct result of (i) the Clifton Park Trustees seeking legal
      counsel to interpret and administer the Trust following the Court’s
      decision, and (ii) inquiries from Beneficiaries and Plaintiff Appellants
      that carry legal ramifications to the Trust and all Beneficiaries
      (primarily regarding the interpretation of the Court’s decisions). As a
      result of the past litigation, the current Trustees felt it prudent to use
      legal counsel on matters in order to appropriately carry out our duties,
      as well as hopefully avoid future litigation involving the Trust. It is our
      duty to protect the interests of all Trust Beneficiaries impartially and
      with due regard to the interest of each Beneficiary.

      It is our responsibility to continuously report the financial condition of
      the Trust. We are delaying certain projects originally planned for the
      [sic] 2018 to accommodate the increased legal expenses. These
      projects include the replacement of the boardwalk and associated
      lighting. We are still planning to repair the Beach House Chimney.

The 2018 rules are attached to the Legal Update.

               On May 15, 2018, the Trustees filed a responsive motion accompanied

by 82 pages of exhibits that includes appellants’ opposition to summary judgment

in Dueck I, appellants’ October 19, 2015 trial brief, witness list and stipulations

submitted in Dueck I, and appellants’ August 16, 2017 press release regarding the

court victory in Dueck I.

               The Trustees also filed a motion to dismiss the complaint on May 15,

2018. The motion is based on appellants’ failure to state a claim upon which relief

can be granted under Civ.R. 12(B)(6) as to Count 1 of the second amended complaint
based on res judicata. The Trustees also asserted a claim under Civ.R. 12(B)(7) due

to the failure to join Clifton Club and the other lot owner Beneficiaries as

indispensable and necessary parties as to all counts.

              The trial court responded:

      [T]he doctrine of res judicata encompasses the two concepts of claim
      preclusion, also known as res judicata or estoppel by judgment, and
      issue preclusion, also known as collateral estoppel. O’Nesti v.
      DeBartolo Realty Corp., 113 Ohio St.3d 59, 2007-Ohio- 1102, 862
      N.E.2d 803, ¶ 6. Claim preclusion prevents subsequent actions, by the
      same parties or their privies, based upon any claim arising out of a
      transaction that was the subject matter of a previous action. Id.
      Further, the doctrine of issue preclusion precludes the relitigation of an
      issue that had been actually and necessarily litigated and determined
      in a prior action that was based on a different cause of action. Ft. Frye
      Teachers Assn., OEA/NEA v. State Emp. Relations Bd., 81 Ohio St.3d
      392, 395, 692 N.E.2d 140, (1998). Issue preclusion holds that a fact or
      a point that was actually and directly at issue in a previous action, and
      was passed upon and determined by a court of competent jurisdiction,
      may not be drawn into question in a subsequent action between the
      same parties or their privies, whether the cause of action in the two
      actions be identical or different. Stacy v. Batavia Local School Dist.
      Bd. of Edn., 97 Ohio St.3d 269, 2002-Ohio-6322, 779 N.E.2d 216, ¶ 16
      (2002).

      As a result of Plaintiffs’ formerly litigated Complaint filed with this
      Court in June 2012, the Eighth District Court of Appeals held that
      Plaintiffs sought a declaration seeking that the Club Members are not
      lot owners; Plaintiffs requested that the Court hold Club Members are
      not Beneficiaries of the Trust and do not have the same legal rights as
      the lot owner Beneficiaries to access the Beach. Dueck v. Clifton Club
      Co., 8th Dist. Cuyahoga No[s]. 103868 [and 103888], 2017-Ohio-7161,
      95 N.E.3d 1032, ¶ 3, appeal not allowed. Further, the Eighth District
      Court of Appeals found, “while the Clifton Club’s membership is
      comprised of both resident lot owners and nonresidents, the focus of
      this case is whether Club Members, due to their status as Club
      Members, are Beneficiaries under the Trust and entitled to Beach
      access.” Id. at ¶ 2.

Amended judgment entry No. 1974350 (Nov. 20, 2018), p. 1-2.
              The trial court also addressed appellants’ contention underlying

Count 1 that unanimous consent by the Beneficiaries for the Club Members

permissive use of the Beach is required:

      Pursuant to Count 1 of Plaintiffs’ Second Amended Complaint filed
      with this Court on May 2, 2018, Plaintiffs now seek relief due to an
      alleged breach of fiduciary duty by the Defendant Trustees for
      permitting Clifton Club Members a permissive right to use the Beach
      and Beach Property equal to the rights of the Trust beneficiaries
      without the unanimous consent of the Clifton Park lot owners.
      Although Plaintiffs allege a breach of fiduciary duty by the Defendant
      Trustees, the alleged breach in Count 1 of the Complaint is based on the
      assertion that Clifton Club Members do not have the right to access the
      Beach and Beach Property without unanimous consent of the Clifton
      Park lot owners.

      Plaintiffs make such an allegation despite the conclusion of the Eighth
      District Court of Appeals in the prior litigated case that, “the Club
      Members are not equal or direct Beneficiaries of the Trust. The Club
      Members have a permissive right to access the Beach as regulated by
      the Trustees pursuant to the Trust Deed.” [Dueck I] at ¶ 126. The
      matter of whether Clifton Club Members are permitted access to the
      Beach and Beach Property was directly at issue in the Plaintiffs’ prior
      complaint and decided by the Eighth District Court of Appeals which
      held that there is a “historical understanding by the Trustees and
      Clifton Club that the Club Members’ right to access the Beach is
      permissive, and that the Trustees have full authority to regulate Beach
      access.” Id. at ¶ 66.

      In support of Count 1 of Plaintiffs’ Second Amended Complaint,
      Plaintiffs maintain in allegation number eighteen (18) that unanimous
      consent of lot owners is required to permit Clifton Club Members
      access to the Beach and Beach Property. Plaintiffs quote the Trust Deed
      asserting that “[n]o part of said land shall be sold, conveyed or
      dedicated to public use without the unanimous consent of all the lot
      owners in said allotment.” Upon review, this Court finds Plaintiffs’
      claim that unanimous consent of lot owners is required for Clifton Club
      Members to be permitted access to the Beach and Beach Property is
      without merit. Clifton Club is a lot owner and is therefore a direct
      beneficiary under the Trust. Further, as the Eighth District Court of
      Appeals previously held, the Clifton Club Members have a permissive
      right to access the Beach and Beach Property. Id. at ¶ 126. Because the
       Clifton Club is a direct beneficiary to the Trust and Club Members have
       a permissive right to access the Beach and Beach Property, Plaintiffs
       have failed to establish how the access granted to the Clifton Club
       Members constitutes a public use; because the access to the Beach and
       Beach Property permitted and regulated by Defendant Trustees to the
       Club Members does not qualify as a public use, unanimous consent of
       the lot owners is therefore not required.

Id. at p. 2-4.

                 The trial court concluded:

       This Court therefore finds that Count 1 of the Plaintiffs’ Second
       Amended Complaint filed on May 2, 2018, is dismissed with prejudice.
       The doctrine of res judicata bars Plaintiffs from relitigating whether the
       Clifton Club Members have a permissive right to access the Beach and
       Beach Property. Further, Clifton Club Members have a permissive right
       to access the Beach and Beach Property, and as such, the access
       permitted by the Trustees’ regulation does not qualify as public use
       which would require unanimous consent of the lot owners. Therefore,
       Defendant Trustees’ Motion to Dismiss is well-taken in part and should
       be granted in part as to Count 1 of the Plaintiffs’ Second Amended
       Complaint.

Amended judgment entry No. 1974350 (Nov. 20, 2018), p. 4.

                 The trial court declined to dismiss the remaining counts that focus on

an alleged breach of fiduciary duty against the Trustees. Joinder of the Clifton Park

lot owners as necessary parties was also required by the trial court.

                 The trial court expressly advised appellants that they could amend the

complaint to remove the claims that the Club Members lacked a permissive right

and that the Club Members’ use is a public use:

       Plaintiffs shall be permitted leave to amend the complaint but may not
       allege that Clifton Club Members do not have a permissive right to
       access the Beach and Beach Property. Such a claim that Clifton Club
       Members may not access the Beach and Beach Property is barred by
       the doctrine of res judicata. Further, because the access permitted by
       Defendant Trustees to Clifton Club Members does not qualify as a
       public use, unanimous consent of the lot owners is not required.

Id. at p. 5.

               Thus, it appears that upon removal of the cited elements of Count 1,

the remaining claims in Count 1 that were advanced pursuant to R.C. 5810.01(B)3

would have survived. Appellants elected to file the instant appeal, and a stay of

proceedings has been issued by the trial court as to the remaining counts.

II. Preliminary Considerations

           A. Final Appealable Order

               We note for purposes of R.C. 2505.02 that the trial court’s judgment

entry disposes of fewer than all claims. The entry provides that the order is final and

appealable and that there is no just reason for delay pursuant to Civ.R. 54(B);

however, the entry must also satisfy R.C. 2505.02. “In cases involving multiple

parties or claims, an order is final if it satisfies one of the grounds under

R.C. 2505.02 and also satisfies Civ.R. 54(B).” Heaton v. Ford Motor Co., 2017-

Ohio-7479, 96 N.E. 3d 1191, ¶ 18 (8th Dist.).

               R.C. 2505.02(B)(1) provides, “[a]n order is a final order that may be

reviewed, affirmed, modified, or reversed, with or without retrial, when it is * * *

[a]n order that affects a substantial right in an action that in effect determines the

action and prevents a judgment[.]” “To determine the action and prevent a



       3   That section requires that trustees administer a “trust in good faith, in
accordance with its terms and purposes and the interests of the beneficiaries” pursuant
to R.C. Chapter 5801 to 5811.
judgment, the order ‘must dispose of the whole merits of the cause or some separate

and distinct branch thereof and leave nothing for the determination of the court.’

Hamilton Cty. Bd. of Mental Retardation & Dev. Disabilities v. Professionals Guild

of Ohio, 46 Ohio St.3d 147, 153, 545 N.E.2d 1260 (1989).” Fried v. Abraitis, 8th Dist.

Cuyahoga No. 104650, 2017-Ohio-746, ¶ 5.

                 The trial court disposed of the claim in the complaint that was

previously determined by this court that the Club Members’ use of the Beach is

permissive, not legal, and derives from the Clifton Club’s status as a Beneficiary. The

trial court held that res judicata applied to this claim. The trial court also rejected

appellants’ underlying Count 1 allegation that the determination of Club Members’

access to the Beach was subject to the unanimous vote of the Beneficiaries because

the action served as a public use under the Trust Deed.

                 As previously recited herein, the remaining claims, which also require

joinder of the Beneficiaries as necessary parties, are for breach of fiduciary duty by

the Trustees in light of the legal framework set forth by this court in Dueck I and

fiduciary law:

      [Under] Count 2 and Count 3 * * * [the trial court must determine]
      whether the nature and extent of access that the Clifton Club Members
      are permitted to the Beach and Beach Property constitute a breach of
      fiduciary duty owed by the Defendant Trustees. Further, Count 4
      remains before this Court as to whether the Defendant Trustees have
      breached their fiduciary duty to provide information and documents to
      the Trust beneficiaries relating to the administration of the Trust.

Amended judgment entry No. 1974350 (Nov. 20, 2018, p. 2-3).
               We find that the decision disposes of a discreet branch of the claim

raised by appellant in the complaint and is therefore a final appealable order.

          B. Incomplete Record

               The key issue in this case is the application of res judicata. The

Trustees assert that the assignments of error should be summarily overruled

because appellants failed to file a copy of their complaint in Dueck I. This failure,

the Trustees contend, has resulted in an incomplete record that prevents this court

from determining whether the issues are the same for purposes of res judicata.

               An appellant has a duty to file those parts of the record necessary for

a review of the trial court’s decision. Lakewood v. Collins, 8th Dist. Cuyahoga

No. 102953, 2015-Ohio-4389, citing App.R. 9(B). In the absence of a complete

record, the appellate court accepts the factual findings of the trial court as true and

limits its review to the legal conclusions of the trial court. Bailey v. Bailey, 8th Dist.

Cuyahoga No. 981173, 2012-Ohio-5073.

               The Trustees cite Ketchel v. Bainbridge Twp., 79 Ohio App.3d 174,

607 N.E. 22 (11th Dist.1992), in support of their argument. In that case, the Eleventh

District decided whether the trial court erred in granting summary judgment against

appellants’ causes of action based on res judicata. As in the instant case, the plaintiff

in Ketchel failed to file a copy of the complaint from the prior action for comparison.

               The Eleventh District concluded that

      because the original complaint from [the first action] is not part of the
      record before this court, the assignment cannot be properly addressed
      and appellants cannot, therefore, demonstrate this portion of the
      claimed error under this assignment.
Id. at 178. This conclusion was based on the notion that a comparison of the “exact

wording” of the two complaints was “of paramount importance.” Id.

               However, Ketchel is distinguishable from the case before us because,

unlike Ketchel, which was reviewing a motion for summary judgment, this court was

reviewing a motion to dismiss which is limited to the allegations alleged in the four

corners of the complaint. Therefore, the failure to include a copy of the complaint

in Dueck I is immaterial.

               Nevertheless, both the trial court and the appellate court may take

judicial notice of court filings and opinions that are readily accessible from the

internet. State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798,

874 N.E.2d 516, ¶ 8, 10 (court can take judicial notice of judicial opinions and public

records accessible from the internet). Therefore, the trial court was permitted, as is

this court, to consider this court’s opinion in Dueck I which clearly identifies the

issues in Dueck I. (See, e.g., Dueck I at ¶ 26.)

III. Assignments of Error

               Appellants present three assignments of error:

      I.     The trial court erred in concluding that res judicata barred
             litigating the separate issue of whether the Trustees have
             authority pursuant to the Trust Deed terms to permit non-
             Beneficiaries of the March 1912 Trust Deed to use Trust Property
             based on Dueck I, a case which only sought declaratory relief.

      II.    The trial court erred by concluding that the Eighth District Court
             of Appeals in Dueck I gave the Trustees authority that is not
             found in the Trust Deed to unilaterally permit the non-
             Beneficiary members of the Clifton Club Company a right of
             Trust Property Use.
       III.    The Trustees had to seek unanimous consent to grant Club
               Members a right of Beach use because the Club Members’ use is
               a public use within the meaning of the Trust.

IV. Discussion

                This appeal was filed pursuant to App.R. 9(A), and there is no

transcript of proceedings. “The appellant has the duty to file the transcript or such

parts of the transcript that are necessary for evaluating the trial court's decision.”

Lakewood v. Collins, 8th Dist. Cuyahoga No. 102953, 2015-Ohio-4389, ¶ 9, citing

App.R. 9(B) and State v. Peterson, 8th Dist. Cuyahoga No. 96958, 2012-Ohio-87,

¶ 7.

                Without the filing of a transcript or alternative record under

App.R. 9(C) or (D), “[w]e presume that the trial court considered all the evidence

and arguments raised.” Miranda v. Saratoga Diagnostics, 2012-Ohio-2633, 972

N.E.2d 145, ¶ 26 (8th Dist.). “[W]e accept the factual findings of the trial court as

true and limit our review to the legal conclusions of the trial court.” Bailey v. Bailey,

8th Dist. Cuyahoga No. 981173, 2012-Ohio-5073, ¶ 8, citing Snider v. Ohio Dept. of

Rehab. & Corr., 10th Dist. Franklin No. 11AP-965, 2012-Ohio-1665, & 8.

          A.         Standard of Review

                An appellate court reviews a motion to dismiss under Civ.R. 12(B)(6)

as follows:

       Our standard of review on a Civ.R. 12(B)(6) motion to dismiss is de
       novo. A motion to dismiss for failure to state a claim upon which relief
       can be granted is procedural and tests the sufficiency of the complaint.
       Under a de novo analysis, we must accept all factual allegations of the
       complaint as true and all reasonable inferences must be drawn in favor
       of the nonmoving party.
(Citations omitted.) NorthPoint Props. v. Petticord, 179 Ohio App.3d 342, 2008-

Ohio-5996, 901 N.E.2d 869, ¶ 11 (8th Dist.).

                A trial court may grant a motion to dismiss for failure to state a claim

upon which relief can be granted where it appears “beyond doubt from the

complaint that the plaintiff can prove no set of facts entitling her to relief.” Grey v.

Walgreen Co., 197 Ohio App.3d 418, 2011-Ohio-6167, 967 N.E.2d 1249, ¶ 3 (8th

Dist.).

          B. Discussion

                We combine the assigned errors for ease of analysis due to

intertwined facts and issues and analyze based on the key issues of res judicata and

public use. We affirm the trial court’s judgment.

           1.    Res Judicata

                Appellants argue that res judicata does not apply because: (1) the

issue of Trustee authority was not before the court; (2) appellants never agreed that

the Trustees have authority to grant non-beneficiaries rights of Beach use without

lot owner consent; (3) this court did not grant the Club Members a legally binding

permissive right to use Trust Property; and (4) the question of whether the Trustees

had authority pursuant to the Trust to grant a right of Beach use without unanimous

consent of the lot owners was never decided.

                The doctrine of res judicata provides that “a valid, final judgment

rendered upon the merits bars all subsequent actions based upon any claim arising

out of the transaction or occurrence that was the subject matter of the previous
action.” Id. Res judicata encompasses either claim preclusion, formerly known as

estoppel by judgment, and issue preclusion, also known as collateral estoppel, or

both depending on the case. Id. at 381, citing Whitehead v. Gen. Tel. Co., 20 Ohio

St.2d 108, 254 N.E.2d 10 (1969); Krahn v. Kinney, 43 Ohio St.3d 103, 107, 538

N.E.2d 1058 (1989); 46 American Jurisprudence 2d 780, Judgments, Section 516

(1994).

               In considering a claim under the doctrine of res judicata, we ask

whether:

      (1) there is a final, valid decision on the merits by a court of competent
      jurisdiction; (2) the second action involves the same parties or their
      privies as the first; (3) the second action raises claims that were or could
      have been litigated in the first action; and (4) the second action arises
      out of the transaction or occurrence that was the subject matter of the
      previous action.

(Citation omitted.) Lenard v. Miller, 8th Dist. Cuyahoga No. 99460, 2013-Ohio-

4703, ¶ 27.

               “[T]he doctrine of res judicata requires a final order of the court to

preclude relitigation of issues that have or could have been raised in a prior

proceeding” Deutsche Bank Natl. Co. v. Caldwell, 8th Dist. Cuyahoga No. 100594,

2014-Ohio-2982, ¶ 19. “A final order is also a prerequisite to appellate review.” Id.

See also Grava v. Parkman Twp., 73 Ohio St.3d 379, 381, 653 N.E.2d 226 (1995),

citing Norwood v. McDonald, 142 Ohio St. 299, 52 N.E.2d 67 (1943), paragraph one

of the syllabus.

               In Dueck I, we defined the question before us:
      We construe the pending question to be whether the nonresident Club
      Members are direct Beneficiaries under the Trust Deed, as stated in
      Count 1 of the first amended complaint, arguably entitling them to
      equal access and commensurate status as the owner Beneficiaries.

 Dueck I at ¶ 41.

               After an in-depth review of the Trust documents and history, this

court concluded that:

      the lot owners are the sole legal beneficiaries of the Trust. The Clifton
      Club is a lot owner and thus a beneficiary. The Trust Deed is the sole
      conveyor of legal rights to the beneficiaries. The Club Deed transferred
      title to the Club Lots. The Club Deed did not, and could not, convey any
      greater rights to the Trust property than those that are set forth in the
      Trust Deed, because title to, and control of, the Trust property was
      vested solely in the Trustees via the Trust Deed.

      The Club Members are not equal or direct Beneficiaries of the Trust.
      The Club Members have a permissive right to access the Beach as
      regulated by the Trustees pursuant to the Trust Deed.

(Emphasis added.) Id. at ¶ 125-126.

               We recite the majority of Count 1 of the Second Amended Complaint

for purposes of clarity:

      93.    The Trustees owe a duty to administer the Trust Deed according
             to its terms.

      94.    The Trustees owe a duty to administer the Trust Deed solely in
             the interests of the beneficiaries, the lot owners in Clifton Park.

      95.    The Trustees owe a duty of loyalty to the Trust beneficiaries.

      96.    The Trustees owe a duty to the Trust beneficiaries to take
             reasonable steps to take control of and protect the Trust
             Property.

      97.    The Trustees have no authority under the terms of the Trust to
             grant a right to use the Trust Property, including the Beach and
       Beach Property, to any person who is not a beneficiary of the
       Trust without the unanimous consent of the lot owners.

98.    The Clifton Park lot owners have not given unanimous consent
       to the Trustees to grant a right to use the Trust Property,
       including the Beach and Beach Property, to any person who is
       not a beneficiary of the Trust.

99.    The Trustees have no authority under the terms of the Trust to
       grant a right or permission to use the Trust Property, including
       the Beach and Beach Property, to any person who is not a
       beneficiary of the Trust that is equal to the rights of the Trust
       beneficiaries without the unanimous consent of the lot owners.

100. The Clifton Park lot owners have not given unanimous consent
     to the Trustees to grant a right to use the Trust Property,
     including the Beach and Beach Property, to any person who is
     not a beneficiary of the Trust that is equal to the rights of the
     Trust beneficiaries.

101.   The Club Members are not beneficiaries of the Trust.

102. The Club Members have no legal rights under the Trust.

103. The Club Members have no legal rights or permission under the
     Trust to use Trust Property.

104. The Trustees have granted 224 Club Members a permissive right
     to use the Trust Property, including the Beach and Beach
     Property that is equal to the rights of the Trust beneficiaries.

105. The Trustees’ grant to 224 Club Members of a permissive right
     to use the Trust Property, including the Beach and Beach
     Property, without the unanimous consent of the Clifton Park lot
     owners is a breach of fiduciary duty.

106. Under R.C. 5810.01(B), the Court should enjoin the Trustees
     from granting to the Club Members of a permissive right to use
     the Trust Property, including the Beach and Beach Property,
     without the unanimous consent of the Clifton Park lot owners
     because such conduct is a breach of the trust and a breach of their
     fiduciary duty.

107. Under R.C. 5810.01(B), the Court should enjoin the Trustees
     from granting to the Club Members of a permissive right to use
             the Trust Property, including the Beach and Beach Property, that
             is equal to the rights of any other individual Trust beneficiary
             without the unanimous consent of the Clifton Park lot owners
             because such conduct is a breach of trust and/or fiduciary duty.

              The trial court ruled that appellants “shall be permitted leave to

amend the complaint but may not allege that Clifton Club Members do not have a

permissive right to access the Beach and Beach Property.” Amended judgment entry

No. 1974350 (Nov. 20, 2018), p. 4. “Such a claim that Clifton Club Members may

not access the Beach and Beach Property is barred by the doctrine of res judicata.”

Id. The complaint was not amended.

              We find that, as written, Count 1 is based on a false premise because

the issue of the permissive right of the Club Members to access the Beach as

regulated by the Trustees is, indeed, res judicata. In Dueck I, we stated that the

Clifton Club, as a lot owner, is a direct Beneficiary of the Trust, that the Club

Members possess a permissive right derived solely from Clifton Club’s status as a

direct Beneficiary, and that the Trustees are empowered by the Trust Deed to

regulate the use of the Beach. Our determination in Dueck I does not impact the

duty of the Trustees to administer the Trust equitably and according to its terms as

well as impartially where there are multiple beneficiaries. R.C. 5808.02.

              The trial court’s judgment is affirmed. We find that the first assigned

error lacks merit.

           2. Public Use

              The trial court also rejected appellants’ public use claim. “[T]he

“unanimous consent of the lot owners is not required” to allow access by the Club
Members to the Beach because it “does not qualify as a public use.” Amended

judgment entry No. 1974350 (Nov. 20, 2018), p. 4.

               The trial court also rejected appellants’ claim that Beach access by the

Club Members requires the unanimous consent of the lot-owner Beneficiaries. First

of all, we posit here that due to the ongoing contention and alleged competing

interests between use of the Beach by the appellants as Beneficiaries, and possibly

other lot owner Beneficiaries versus the Club as a Beneficiary, it is questionable that

there could ever be a unanimous agreement. Be that as it may, public use is not an

issue here.

               The Trust Deed provides, in pertinent part, that:

      “1) The trustees shall hold title to and preserve all the land deeded to
      them for the common use of all the lot owners in the Clifton Park
      Allotment, and their successors in title, and members of their
      households.”

      “(2) No part of said land shall be sold, conveyed or dedicated to public
      use without the unanimous consent of all the lot owners in said
      allotment.”

      “(3) The trustees shall collect money from the persons interested as
      hereinafter provided, and from such sums so collected, * * * [to pay
      taxes, maintenance, etc.]; shall establish regulations for the use of, and
      provide for proper policing * * * for the use of lot owners in said
      allotment, as the same is now maintained.”

(Emphasis added.) Dueck I at ¶ 48, quoting the Trust Deed.

               Appellants’ definition of the term public use is inapplicably

restrictive. “When the owner of property devotes it to a public use, he, in effect,

grants to the public an interest in such use.” (Citations omitted.) Lake S. & M. S. R.

Co. v. Cincinnati, S. & C. R. Co., 30 Ohio St. 604, 616 (1876). We have already
determined that use by the Club Members is permissive as it derives from the Clifton

Club’s status as a direct Beneficiary. Thus, access by the Club Members is not a

public use.

              We find that appellant’s assigned errors lack merit. The trial court’s

findings are affirmed.

V.   Conclusion

              The trial court’s judgment is affirmed.

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

      The court finds there were reasonable grounds for this appeal.

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

probate court to carry this judgment into execution.

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

Rule 27 of the Rules of Appellate Procedure.



                                             ___
ANITA LASTER MAYS, JUDGE

EILEEN T. GALLAGHER, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
