Dueck v. Kerrigan

[Cite as Dueck v. Kerrigan, 2025-Ohio-1253.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

ARTHUR P. DUECK, ET AL., :

Plaintiffs-Appellants, :

No. 113865

v. :

JOSEPH KERRIGAN, TRUSTEE,

CLIFTON PARK TRUST, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: April 10, 2025

Civil Appeal from the Cuyahoga County Court of Common Pleas

Probate Division

Case No. 2020-ADV-252778

Appearances:

Hahn, Loeser & Parks, LLP, Dennis R. Rose, Casey J.

McElfresh, and Alexa R. Civittolo, for appellants.

Reminger Co., L.P.A., Julian T. Emerson, Brianna M.

Prislipsky; The Law Offices of Adam M. Fried, LLC, and

Adam M. Fried, for appellee The Clifton Club Company.

Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A.,

Terry J. Evans, and Leigh A. Maxa, for appellees Trustees

of the Clifton Park Trust, Joseph Kerrigan, Mary Ellen

Fraser, Robert Frost, Warren Coleman, Ryan Meany, and

James M. Seibert.

WILLIAM A. KLATT, J.:

Plaintiffs-appellants Arthur P. Dueck (“Dueck”), Paul A. Bjorn

(“Bjorn”), Nancy Binder (“Binder”), and William R. Keller (“Keller”) (collectively

“appellants” or “appellant lot owners”), appeal the trial court’s March 28, 2024

order that (1) granted summary judgment on behalf of defendants-appellees The

Clifton Club Company (“Clifton Club”) and Clifton Park Trust Trustees (“Trustees”),

(2) denied appellants’ motion for summary judgment, and (3) denied appellants’

motion for reconsideration of the dismissal with prejudice of Count 2 of the first

amended complaint. For the following reasons, we affirm.

Factual and Procedural History

This is the third appeal filed by the appellants involving a dispute

about the use of Clifton Park Beach and, therefore, we reference excerpts from the

prior appeals as background for this case.

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”).

Dueck v. Clifton Club Co., 2017-Ohio-7161, ¶ 2 (8th Dist.) (“Dueck I”). The Trust

Deed conveyed the Beach to five trustees who were to hold the Beach in trust for the

use and benefit of the Clifton Park lot owners — Beneficiaries — and collect an

annual assessment from them to maintain the Beach property.

“The Clifton Club, a social club operating in Clifton Park since 1902,

is a members-only establishment.” Dueck I at ¶ 2. Membership at the Clifton Club

is open to nonresidents of Clifton Park (“Club Members”) as well as lot owner

Beneficiaries. The Clifton Club initially leased sublots 38, 39, 40, and 41 (“the Club

Lots”) from the Land Company pursuant to the Club Lease. After creation of the

Trust in 1912, the Clifton Club succeeded the Land Company as owner of the Club

Lots. As a lot owner, the Clifton Club is a Beneficiary of the Trust. Starting in 1942,

the Clifton Club made annual payments to the Trustees for Club Members’ use of

the Beach. “The Club Lease limit[ed] Clifton Club membership to 250 members

unless the Land Company or its successors g[a]ve consent to increase membership.”

Dueck I at ¶ 9.

Throughout the years, Clifton Club’s membership has allegedly grown

and resulted in crowded beach and parking conditions that led to the appeals in

Dueck I, Dueck v. Kerrigan, 2019-Ohio-4784, ¶ 2 (8th Dist.) (“Dueck II”), and the

current appeal (“Dueck III”).

A. 2012 Declaratory Judgment Action – Dueck I

In 2012, appellant lot owners filed the first lawsuit, a declaratory

action asking the court to determine whether Club Members — members of Clifton

Club who are not resident lot owners — are Beneficiaries under the Trust and

entitled to Beach access and status equal to the lot owner Beneficiaries. The Trustees

filed a motion for summary judgment, and the trial court found

the Clifton Club, as a lot owner, is a Beneficiary “bound by the Trustees’

regulation of Trust property.” While finding that the Trust Deed stands

alone for interpretation purposes, the trial court cited the portions of

the Club Deed, and the Club Lease, to support its findings as to the Land

Company’s intent in forming the Trust. The trial court rejected [the

appellant lot owners’] argument that the Land Company could not

grant a greater right to use the Beach via the Club Deed, because the

Land Company no longer had authority over the Beach, which had

already been placed in Trust.

The trial court took judicial notice of dicta from Wallace v. Clifton Land

Co., 92 Ohio St. 349, 110 N.E. 940 (1915), for the premise that the

Clifton Club membership has never been restricted to lot owners. [. . .]

Id. at 359. The trial court concluded that it was “illogical to reason” that

the rights of the Clifton Club as lot owners to “use” the Beach did not

vest the same “privilege” in its members, finding there is nothing in the

Trust Deed to suggest that the resident Club Members could have

access, but the nonresident Members could not. Since the Clifton Club

has been in existence since 1902, the trial court held that it does not

make sense to think that the Land Company conveyed the Beach

without intending that the Club Members have access.

Based on the foregoing, the trial court determined that, due to the

status of the Clifton Club as a Beneficiary, “the Clifton Club, and

through it, all of its members, has a legal right to use Trust property,

including the beach, subject to the regulations and restrictions as set

forth in the Trust Deed and Club Deed.”

Dueck I at ¶ 31-33.

Pursuant to this finding, the trial court granted the Trustees’ motion

for summary judgment, and the appellant lot owners appealed that order in Dueck

I. 1 The appellant lot owners argued that the trial court erred when it (1) granted the

Trustees’ summary judgment motion, (2) refused to remove the Trustees, and (3)

denied the appellant lot owners’ motion for attorney fees.

1 In Dueck I, the appellant lot owners were Dueck, Todd Gilmore (“Gilmore”),

Binder, and Keller.

In Dueck I, this court found the language of the trust was ambiguous

and it was necessary to look at extrinsic evidence to determine the settlor’s intent

regarding the scope of the Clifton Club’s use of the beach. Dueck I at ¶ 58. This court

analyzed the Trust Deed, Club Lease, Club Deed, and the relationships of the parties

and found

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.

Dueck I at ¶ 66-67. Because the Dueck I Court found the Club Members were not

Beneficiaries under the Trust, it determined the trial court erred when it granted

summary judgment on behalf of the Trustees. The Dueck I Court further found that

even though Club Members do not have legal right of access to the Beach as

Beneficiaries, they have a permissive right to use the Beach subject to the permission

and regulation of the Trustees.

The Dueck I Court also determined the Trustees breached their duty

of impartiality and duty to inform and report, and, therefore, required the Trustees

to pay appellants their reasonable costs, expenses, and attorney fees associated with

the declaratory action. Thus, the matter was reversed and remanded.

B. 2018 Complaint — Dueck II

Following Dueck I, the Trustees continued to grant Club Members

permissive access to the Beach in exchange for the Club’s annual fee and subject to

the Trustees’ authority that included new regulations for beach access. In May 2018,

the appellant lot owners filed a second lawsuit and, pursuant to their second

amended complaint, they presented three counts:

Count 1 request[ed] 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 pay[ed] for costs, expenses,

and attorney fees pursuant to R.C. 5810.04.

Count 2 of the second amended complaint assert[ed] that the Trustees

breached their fiduciary duties by implementing rules that provide[d]

the Club Members with greater access and rights to use the Beach than

the Beneficiaries. Appellants [sought] an injunction under R.C.

5810.01(B) and costs, expenses, and attorney fees under R.C. 5810.04.

Count 3 allege[d] 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 [sought] an injunction

under R.C. 5810.01(B) and costs, expenses and attorney fees under R.C.

5810.04.

Dueck II at ¶ 6-8. 2

On May 15, 2018, the appellant lot owners filed a motion for

temporary restraining order (“TRO”) to enjoin the Trustees from implementing the

rules for the 2018 beach season. The record indicated that access to the Beach was

granted to 224 Club Members, which was the same number as over the prior five

years. On the same date, the Trustees also filed a motion to dismiss Count 1 of the

second amended complaint, arguing the issues were barred by res judicata and

2 The appellant lot owners in Dueck II were Dueck, Bjorn, Binder, and Keller.

seeking dismissal of all other counts for failure to join indispensable and necessary

parties.

In ruling on the Trustees’ motion for dismissal, the trial court

determined that Count 1 of the appellant lot owners’ second amended complaint

sought 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.”

Dueck II at ¶ 19, quoting Nov. 20, 2018 amended judgment entry. The trial court

further found the claim of unanimous consent was 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.

The trial court granted dismissal of Count 1 on the basis of res judicata

and declined to dismiss Counts 2 and 3 that alleged the Trustees breached their

fiduciary duties. Counts 2 and 3 were not adjudicated by the trial court. The court

expressly advised that appellant lot owners could amend their complaint to remove

Count 1’s allegations that Club Members lacked a permissive right and their use

constituted a public use.

Appellant lot owners chose not to amend the complaint but appealed

the trial court’s dismissal of Count 1, arguing the doctrine of res judicata did not

apply. This court determined in Dueck II that the issue raised in Count 1 — the Club

Members’ permissive right to access the Beach as regulated by the Trustees — was

barred by res judicata. This court also stated that its decision “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.” Dueck II at ¶ 49.

Following the decision in Dueck II, the case continued before the trial

court, and the court granted appellant lot owners leave to file an amended complaint

and to join all Beneficiaries as necessary parties. On June 16, 2020, the appellant

lot owners moved for leave to file a third amended complaint. Count 1 of the third

amended complaint alleged Club Members are entitled to use the Beach within

Clifton Club’s rights as a Beneficiary so that only one Club Member family may use

the Beach at any given time and the issuance of 224 use licenses to the Clifton Club

is a breach of the Trustees’ fiduciary duty. Count 2 sought modification of the Trust.

On June 29, 2020, the appellant lot owners voluntarily dismissed the lawsuit

without prejudice pursuant to Civ.R. 41(A)(1)(a).

C. 2020 Complaint — Current Appeal

Following the appellant lot owners’ voluntary dismissal of the

complaint that was the subject of Dueck II, they promptly filed another complaint

in July 2020, and their first amended complaint on September 23, 2022.3 Count 1

of the appellant lot owners’ first amended complaint reads, in pertinent part:

203. The trustees owe a duty to administer the Trust Deed according

to its terms.

204. The trustees owe a duty to administer the Trust Deed solely in the

interests of the beneficiaries, the lot owners in Clifton Park.

205. The trustees owe a duty of loyalty to the Trust beneficiaries.

206. The trustees owe a duty to the Trust beneficiaries to take

reasonable steps to take control of and protect the Trust Property.

207. The trustees owe a duty to the Trust beneficiaries to act

impartially in managing the Trust Property, including the Beach and

Beach Property, according to the Trust’s terms and the settlor’s intent.

208. The Trust Deed does not contain any terms indicating that any

one Trust beneficiary has a greater right to use the Trust Property,

including the Beach or the Beach Property, than any other Trust

beneficiary.

209. The settlor’s intent is that the conveyance was “for the sole use

and benefit of all owners of sublots, or parts of lots, in the Clifton Park

Allotment.”

210. The Club does not have any greater rights to use the Trust

Property, including the Beach or Beach Property, than any other

individual Resident Beneficiary.

211. The Club, as a beneficiary, is entitled to utilize the Beach and Beach

Property in a manner equal to any other beneficiary, and as its

3 Count I of the appellant lot owners’ third amended complaint filed in Dueck II is

identical to Count 1 of the appellant lot owners’ first amended complaint that is the subject

of the current appeal.

members derive a permissive right from their membership but have no

rights as beneficiaries or otherwise within the trust, the Club Members

are entitled use the Club’s beach access within the limits of the Club’s

rights as a beneficiary, one Club Member family at any given time.

212. Instead of administering the Trust impartially according to its

terms and intent, the Trustees have sold the Club 224 extra fee-based

use rights so that Club Members can use the Beach and Beach Property.

213. This Trustee Preferential Action has made the Club a “super user”

beneficiary and violated the Trustees’ fiduciary duties, including the

duty to administer the Trust equitably, impartially and according to its

terms, where there are multiple beneficiaries.

214. Granting all Club Members the same rights as the beneficiaries

and adding otherwise unjustified restriction on Beach use by 204

Resident Beneficiaries, makes the Club Members de facto beneficiaries

and deprives the beneficiaries of their deeded rights.

215. Making the Club Members de facto beneficiaries as well as

disenfranchising the beneficiaries of their rights is a breach of fiduciary

duty.

216. Under R.C. 5810.01(B), the Court should enjoin the trustees from:

(a) selling or granting the Club rights to use the Beach or Beach

Property, Beach House reservations, parking guest passes, parking

spaces, and/or picnic table reservations that are greater than any other

individual Resident Beneficiary, (b) making rules for non-beneficiaries

of the Trust that grant them the same or essentially equivalent use

rights as a true beneficiary, and (c) making rules to reduce lot owners

use that intend to or have the effect of accommodating use by non-

beneficiaries, and (d) charging the Club assessments that do not

conform with the Trust or collecting assessment in a manner not

identical to other lot owners.

217. Under R.C. 5810.04, the Court should also award Plaintiffs their

costs, expenses, and attorney fees to be paid by the 2018 Trustees.

Appellants claimed through Count 1 that the Trustees could grant

only one license to each Beneficiary so that the Clifton Club could be granted only

one license to sell to potential nonresident members. Count 1 of the first amended

complaint alleged that the Trustees issued preferential fee-based licenses to 224

Club Members thereby breaching their fiduciary duties.4 Appellants further claimed

in Count 2 that the “sale of additional . . . [u]se [l]icenses to the Club require[d] the

reformation of the Trust . . . .” Complaint at ¶ 228.

On October 7, 2022, the Trustees filed a motion to dismiss appellants’

first amended complaint on the grounds of res judicata and the complaint’s failure

to allege an injury; Clifton Club joined the motion. On April 17, 2023, the trial court

issued a detailed judgment entry granting the motion to dismiss pursuant to res

judicata, on all issues except the portion of the first amended complaint that asserted

the Trustees breached their fiduciary duties by failing to treat the Resident

Beneficiaries equally, impartially, and equitably:

The Court therefore finds that the Clifton Park Trustees’ Motion to

Dismiss should be Granted in part and denied in part. Plaintiffs’ First

Amended Complaint should be dismissed with prejudice to the extent

that the only claim remaining before this Court is Count [1] in part. As

this Court previously stated, the Settlors of the Trust contemplate

Clifton Club having up to 250 members and intended for said Club

Members to access and use the Beach and Beach property, for an

annual fee, with regulatory oversight by the Trustees. As the matter of

Beach access has been previously determined by the Court, the only

remaining issue before the Court is whether the Trustees have breached

their fiduciary duties of treating the beneficiaries equally, impartially,

and equitably when enacting and enforcing the rules and regulations

surrounding the use of the Beach and Beach property including vehicle,

beach guests, picnic table, and beach home restrictions.

April 17, 2023 judgment entry, p. 8-9. The trial court dismissed Count 2 of the first

amended complaint — modification of the Trust — finding a modification of the trust

4 The appellant lot owners in the 2020 complaint are Dueck, Bjorn, Binder, and

Keller.

was not needed and was barred by res judicata. The case proceeded on the single

issue of whether the Trustees breached their fiduciary duties by failing to treat the

Residential Beneficiaries equally, impartially, and equitably.

All parties filed competing motions for summary judgment in

November 2023. The Clifton Club’s motion argued (1) the issue of whether the

Trustees were authorized to permit Club Members access to the Beach was resolved

in Dueck I and Dueck II and, thus, the appellant lot owners could not attempt to

enjoin the Trustees from issuing permissive licenses to Clifton Club, and (2) the

Trustees did not breach their fiduciary duty. The Trustees’ motion argued the first

amended complaint sought injunctive relief from the Trustees’ actions in 2017 and

2018 and, because the 2017 and 2018 beach seasons had passed, the appellant lot

owners’ request for injunctive relief was moot. The Trustees also argued they were

entitled to summary judgment because (1) the appellant lot owners cannot establish

an injury, (2) the appellant lot owners’ remaining claims are barred by res judicata,

and (3) the Trustees reasonably relied on the terms of the Trust and the court’s

interpretation of the Trust.

Appellant lot owners’ motion for summary judgment argued the

Trustees’ sale of 224 use licenses to the Clifton Club constituted preferential

treatment of one Beneficiary over the other 204 Beneficiaries, which violates their

fiduciary duties. The Clifton Club has the rights of a single lot owner, not 224

Beneficiaries. The appellant lot owners argued that “[i]n turn, the sale of the 224

extra Non-beneficiary Use Licenses to the Club coupled with the rules and

restrictions imposed on the individual Resident Beneficiaries to accommodate the

Club Members’ use elevates the Club to super beneficiary status and turns those

Club Members into de facto beneficiaries, further violat[ing] Trustees’ fiduciary

duties.” Appellants’ motion for summary judgment against Trustees, p. 2.

Appellant lot owners further argued they are litigating “whether the rules

implemented by the 2018 Trustees impermissibly favor the Club and exceed the

scope of its single beneficiary use the Club is entitled to as provided by the Trust.”

Appellants’ reply brief to Trustees’ brief in opposition, p. 12.

On December 22, 2023, appellant lot owners also filed a motion for

reconsideration of the trial court’s dismissal with prejudice of Count 2 of their

amended complaint that sought modification of the Trust.

The trial court heard oral arguments on the summary judgment

motions on January 10, 2024. On March 28, 2024, the trial court issued a thorough

judgment entry granting Clifton Club’s and the Trustees’ motions for summary

judgment and denying Plaintiffs’ summary judgment motion and motion for

reconsideration.

As to the motions for summary judgment, the trial court found

Plaintiffs allege that the Trustees have sold Clifton Club 224 “non-

beneficiary Licenses” for use by its members, thereby breaching their

fiduciary duty owed to Residential Beneficiaries. However, the Court

finds that the claim surrounding Non-beneficiary Licenses is barred by

res judicata as this claim is a re-litigation of a point that was actually

and directly at issue in the previous Dueck I and Dueck II matters.

Specifically, the Eighth District Court of Appeals previously recognized

that Clifton Club members have a permissive right to use the Beach and

Beach property. The Eighth District noted that the terms of the Club

Deed, read in conjunction with the Trust Deed, provides that Clifton

Club should have access to the Beach for the benefit of its members:

However, it is clear by the terms of the Trust Deed that the

Clifton Club’s rights as a Beneficiary are also to be

protected, to the extent they comport with the settlors’

intent that the conveyance was “for the sole use and

benefit of all of the owners of sublots, or parts of lots, in

the Clifton Park Allotment.” Therefore, we determine that

extrinsic evidence is required to determine the settlor’s

intent regarding the scope of the Clifton Club’s use of the

Beach, including the Trustees’ historical interpretation

and administration of the rights accordingly.

The Club Lease capped Clifton Club membership at 250

Club Members. The Club Lease, Trust Deed, and Club

Deed indicate an intent that the Clifton Club, as lessees

and successor lot owners, have access to the Beach, but

that such access was subject to the rules and regulations

implemented by the Trustees.

Dueck I at ¶ 58-59. Thus, the use of the Beach and Beach property by

Clifton Club members has been previously litigated in Dueck I and

Dueck II as it has been determined that Clifton Club members have a

permissive right to use the Beach and Beach property.

March 28, 2024 judgment entry, p. 5-6. The trial court also found that even if Count

1 of the amended complaint was not barred by res judicata, Clifton Club’s permissive

right to use the Beach, as permitted by the Trustees, did not constitute a breach of

fiduciary duty.

In regard to appellant lot owners’ motion for reconsideration, the trial

court stated the following:

The Court further finds that this Court dismissed Count [2] of

Plaintiffs[’] Complaint by way of Judgment Entry issued April 17, 2023,

stating that Count [2] was barred by res judicata and a modification of

the Trust was not needed, as there has been no material changes that

would serve as unanticipated circumstances because the Settlors

“anticipated up to 250 Clifton Club Members that would have a

permissive right to access the Beach and Beach property.” Plaintiffs

now assert that this Court’s dismissal was premature, alleging that the

Trustees’ sale to the Club of 224 Non-beneficiary Licenses was never

anticipated, intended, nor permitted, and stands in opposition to the

Trust’s terms and the Settlor’s intent. The Court does not find merit in

this assertion and further finds this claim is barred by res judicata. This

Court has previously stated that the Settlors of the Trust contemplated

Clifton Club having up to 250 members and intended for said Club

Members to access and use the Beach and Beach property, for an

annual fee, with regulatory oversight by the Trustees. Moreover, as

stated herein, the Eighth District Court of Appeals has also held that

the Club Members have a permissive right to access the Beach as

regulated by the Trustees pursuant to the Trust Deed. The Court

therefore finds that Plaintiffs should not be permitted to repeatedly

relitigate adversarial matters pertaining to Beach access due to their

disagreement with prior holdings of the Court.

March 28, 2024 judgment entry, p. 11-12. Thus, the trial court’s March 28, 2024

judgment entry granted Clifton Club’s and the Trustees’ motions for summary

judgment; denied appellants’ motion for summary judgment; dismissed appellants’

first amended complaint; and denied appellants’ motion for reconsideration of the

dismissal of Count 2 of the amended complaint.

On April 26, 2024, appellants filed a timely notice of appeal

presenting these assignments of error:

Assignment of Error I: The trial court erred in concluding that res

judicata barred Count [1] of the complaint and granting summary

judgment in favor of the trustees and the club and denying appellants’

motion for summary judgment on that ground.

Assignment of error II: The trial court erred by concluding that the

trustees did not breach the trust and their fiduciary duties and granting

summary judgment in favor of the trustees and the club and denying

plaintiff’s motion for summary judgment on those grounds also.

Assignment of error III: The trial court erred by concluding that Count

[2] (reformation) was barred by res judicata and that there were

insufficient unanticipated circumstances warranting trust reformation.

Legal Analysis

A. Motion for Summary Judgment

1. Standard of Review

Before a trial court grants a motion for summary judgment, pursuant

to Civ.R. 56(C), the court must determine that

(1) [n]o genuine issue as to any material fact remains to be litigated; (2)

the moving party is entitled to judgment as a matter of law; and (3) it

appears from the evidence that reasonable minds can come to but one

conclusion, and viewing such evidence most strongly in favor of the

party against whom the motion for summary judgment is made, that

conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).

On a summary judgment motion, the moving party’s initial burden is

to identify specific facts in the record that demonstrate its entitlement to summary

judgment. Dresher v. Burt, 1996-Ohio-107, ¶ 17-18. If the moving party does not

satisfy this burden, summary judgment is not appropriate. If the moving party

meets the burden, the nonmoving party has a reciprocal burden to point to evidence

of specific facts in the record that demonstrate the existence of a genuine issue of

material fact for trial. Id. Where the nonmoving party fails to meet this burden,

summary judgment is appropriate. Id.

An appellate court applies a de novo standard when reviewing a trial

court’s decision that granted summary judgment. Bayview Loan Servicing, L.L.C.

v. St. Cyr, 2017-Ohio-2758, ¶ 11 (8th Dist.).

The Trustees argued they were entitled to summary judgment

because (1) appellants’ claim was barred by res judicata, (2) appellants could not

establish an injury under their breach-of-fiduciary-duty claim, and (3) the Trustees

reasonably relied on the terms of the trust and the court’s interpretation of the trust.

Clifton Club argued in their motion for summary judgment that Club Members are

permitted access to the Beach via their membership at the Club and the Trustees did

not breach their fiduciary duty where they acted equitably and consistently with the

Club Deed, residential deeds, and historical relationships between the parties.

Appellant lot owners’ summary judgment motion asserted that the Trustees, as

fiduciaries, needed to grant permissive use of the Trust property in an equitable and

impartial manner and according to the terms of the Trust. The sale of 224 use

licenses to one Beneficiary, the Clifton Club, constituted preferential treatment of

one Beneficiary over the remaining 204 Beneficiaries and, therefore, violated the

Trustees’ fiduciary duties.

2. Analysis

(a) Res Judicata

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.” Grava v. Parkman Twp., 73 Ohio St. 3d 379 (1995), syllabus. At its

foundation, the 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, 2014-Ohio-2982, ¶ 19 (8th Dist.).

The doctrine of res judicata encompasses both claim preclusion and

issue preclusion. 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. Fort Frye Teachers Assn. v. State Emp.

Relations Bd., 1998-Ohio-435, ¶ 13. The Ohio Supreme Court described the tenets

of claim preclusion:

“[C]laim preclusion has four elements in Ohio: (1) a prior final, valid

decision on the merits by a court of competent jurisdiction; (2) a second

action involving the same parties, or their privies, as the first; (3) a

second action raising claims that were or could have been litigated in

the first action; and (4) a second action arising out of the transaction or

occurrence that was the subject matter of the previous action.”

Hapgood v. Warren, 127 F.3d 490, 493 (6th Cir.1997).

Lycan v. Cleveland, 2022-Ohio-4676, ¶ 23.

Issue preclusion prevents parties from relitigating facts and issues in

a subsequent suit that were fully litigated in a prior suit. Thompson v. Wing, 70

Ohio St. 3d 176, 183 (1994). Issue preclusion “applies when the fact or issue (1) was

actually and directly litigated in the prior action, (2) was passed upon and

determined by a court of competent jurisdiction, and (3) when the party against

whom collateral estoppel is asserted was a party in privity with a party to the prior

action.” Id., citing Whitehead v. Gen. Tel. Co., 20 Ohio St.2d 108 (1969), paragraph

two of the syllabus.

Appellant lot owners claim their first amended complaint is not

barred by res judicata because the complaint is not premised on the issue resolved

in Dueck I and Dueck II — whether Club Members have permissive use of the Beach.

The appellant lot owners contend their lawsuit is based upon “whether the Trustees

breached their fiduciary duty to treat the [B]eneficiaries equitably and impartially

by elevating the Club’s single beneficial right as a [B]eneficiary into 224 Club

Members with full beneficiary status.” Appellants’ brief, p. 23. In support of their

position, the appellant lot owners argue that Dueck I recognized only that the

Trustees must regulate the use of the Trust property pursuant to its fiduciary duties

and that neither Dueck I nor Dueck II found the Trustees had discretion to sell the

Clifton Club 224 use licenses for its Club Members.

We cannot agree with the appellant lot owners’ limited interpretation

of the prior litigation in this matter nor do we find a distinction between the causes

of action presented in Dueck I, Dueck II, and the current facts. We find that Count

1 of the appellant lot owners’ first amended complaint in Dueck III alleges the

Trustees’ sale of 224 use licenses to the Clifton Club, who in turn sold the licenses to

Club Members, is not supported by the Trust and such action constitutes a breach

of fiduciary duty. In other words, Count 1 contends the Club Members do not have

permissive use of the Beach and its amenities. This was the same issue resolved in

Dueck I and Dueck II.

This court found in Dueck I, through extrinsic evidence, that the

Clifton Club may grant permissive access to the Beach to Club Members as regulated

by the Trustees. This Court recognized that the parties have operated under a fee

arrangement that has been in place for over 70 years, “and that the Clifton Club has

paid a mutually agreed upon annual maintenance assessment for the Beach at a

higher rate than the formula set forth in the Trust Deed.” Dueck I at ¶ 65. In Dueck

II, we reiterated that “the issue of the permissive right of the Club Members to access

the Beach as regulated by the Trustees is, indeed, res judicata.” Dueck II at ¶ 49.

This court in Dueck I and Dueck II determined that Clifton Club has the right,

through its status as a Beneficiary, to provide permissive rights to 224 Club

Members to access the Beach and its amenities and the Trustees are empowered by

the Trust Deed to regulate use of the Beach.

Both claim and issue preclusion apply here. As to claim preclusion, a

prior final, valid decision on the merits was rendered in Dueck I and Dueck II. The

same parties have been involved in the two prior cases as in the current appeal, and

the current action is based upon the same substantive facts as the prior lawsuits.

The issues raised in Count 1 were or could have been litigated in Dueck II.

Additionally, the elements of issue preclusion have been satisfied. The issue raised

in Count 1 of the first amended complaint — whether the Trustees breached their

fiduciary duty when they allowed Clifton Club to grant permissive use of the Beach

to 224 Club Members pursuant to its status as a Beneficiary — was directly litigated

and decided by this court in Dueck I and Dueck II, and the same parties were

involved in all three lawsuits. Whether applying claim or issue preclusion, the issue

raised in Count 1 of the appellant lot owners’ first amended complaint, and

addressed in the Trustees’ and Clifton Club’s motions for summary judgment, is

barred by res judicata.

We find the appellant lot owners’ claimed breach of fiduciary duty

under Count 1 is simply a rewording of the claim already determined by this court

in Dueck I and Dueck II. The appellants continue to attempt to relitigate whether

Club Members should have permissive access to the Beach and, if so, how many Club

Members may have access. The prior decisions clearly determined that the Clifton

Club may have up to 250 members, including nonresident Club Members, who are

granted permissive access to the Beach as regulated by the Trustees. See Dueck I

and Dueck II.

Appellant lot owners also assert that res judicata does not apply here

because this court did not adjudicate Counts 2 and 3 of the underlying complaint in

Dueck II that addressed the Trustees’ breach of fiduciary duties. Appellant lot

owners argue that Count 1 of their first amended complaint in Dueck III represents

the unadjudicated Counts 2 and 3 of Dueck II and, therefore, Count 1 is not barred

by res judicata.

In Dueck II, the appellant lot owners’ Count 1 — not to be confused

with Count 1 asserted in the instant action in appellants’ first amended complaint —

alleged the Trustees breached their fiduciary duty when it granted a permissive right

to use the Beach and its amenities to 224 Club Members without unanimous consent

of the residential Beneficiaries. The Dueck II Court found Count 1 was barred by res

judicata based upon the Dueck I decision.

The Dueck II Court further analyzed Counts 2 and 3. Count 2

addressed whether the Trustees breached their fiduciary duty when they

implemented rules providing Club Members with greater access and rights to the

Beach in comparison to Beneficiaries. Count 3 alleged the Trustees breached their

fiduciary duties by implementing rules that reduce the Beneficiaries’ use of the

Beach. The Dueck II Court found the causes of action raised in Counts 2 and 3,

which targeted the duty of the Trustees to administer the Trust equitably according

to its terms and impartially between the multiple beneficiaries, were not barred by

res judicata:

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.

Dueck II at ¶ 49.

Here, appellant lot owners claim that Count 1 of its first amended

complaint in Dueck III is comparable to Counts 2 and 3 of the underlying complaint

in Dueck II and, thus, res judicata does not apply in the current case.

We reviewed Count 1 of the appellant lot owners’ first amended

complaint in Dueck III and find it is not a recap of Counts 2 and 3 that were first

raised in Dueck II. Count 1 of appellant lot owner’s first amended complaint

addresses Beach access and contends the Trustees may not allow the Clifton Club to

issue 224 use licenses to Club Members because the Club may grant Beach access

only to one Club Member family at any given time. Count 1 references “unjustified

restrictions on Beach use by 204 Resident Beneficiaries” and seeks to enjoin the

Trustees from making rules that preferentially impact non-beneficiaries. However,

the underlying allegation in Count 1 is that the Trustees breached their fiduciary

duty when they granted 224 use licenses to the Clifton Club for its members’

permissive use of the Beach and its amenities. These allegations are simply another

attempt by the appellant lot owners to relitigate the Club Members’ permissive right

to access the Beach as regulated by the Trustees that was determined in Dueck I and

Dueck II.

Even under appellant lot owners’ argument that Count 1 is the same

as Dueck II’s Counts 2 and 3, we find Count 1 is barred under claim preclusion.

Subsequent to the Dueck II opinion — that determined, in part, that Club Members’

permissive use of the Beach was barred by res judicata — the case continued before

the trial court on Counts 2 and 3, the breach of fiduciary claims, until appellant lot

owners voluntarily dismissed the complaint. Appellant lot owners then refiled the

complaint in Dueck III, pursuant to the Ohio savings statute, naming Counts 1 and

2.5 Assuming appellant lot owners’ argument that Count 1 of the first amended

complaint in Dueck III represents Counts 2 and 3 raised in Dueck II, claim

preclusion still bars the relitigation of Count 1 where the four elements of claim

preclusion are met. Specifically, a prior final, valid decision on the merits was

reached in Dueck II when this court found Count 1 was barred by the principles of

res judicata. Dueck II and Dueck III involve the same parties and arise from the

same set of pertinent facts. Lastly, assuming Count 1 of Dueck III’s first amended

complaint presents the same allegations as Counts 2 and 3 of Dueck II, these claims

could have been and, in fact, were raised in Dueck II. See Ullom v. Agoston, 2022-

Ohio-3813 (8th Dist.); see also Mims v. Univ. of Toledo Med. Ctr., 2017-Ohio-8979,

¶ 15 (10th Dist.), citing La Barbera v. Batsch, 10 Ohio St.2d 106 (1967)(“The

Supreme Court of Ohio in La Barbera expressly rejected the argument that the

savings statute, R.C. 2305.19, permits the relitigation of a claim that would

otherwise be barred by res judicata. . . .”). While appellant lot owners may find this

conclusion harsh, “‘res judicata . . . is not a procedural rule and its application may

not be avoided on the grounds that the result will be harsh . . . .’” Portis v.

Greyhound Lines, Inc., 2003-Ohio-6044, ¶ 19 (8th Dist.), quoting Dean v. Ohio

State Hwy. Patrol, 2003-Ohio-4505, ¶ 10 (10th Dist.).

After a complete review of the record, having construed the

uncontroverted evidence in favor of the appellant lot owners, we find there are no

5 Dueck III’s Count 2 is not relevant to this portion of our analysis.

genuine issues of fact; the Trustees and the Clifton Club are entitled to judgment as

a matter of law; and the evidence can only lead reasonable minds to a conclusion

that is adverse to the appellant lot owners. Based upon the foregoing, we find the

trial court did not err when it granted summary judgment on behalf of the Trustees

and the Clifton Club. Appellant lot owners’ first assignment of error is overruled.

This court’s decision on the first assignment of error renders the appellant lot

owners’ second assignment of error, challenging the lower court’s denial of their

motion for summary judgment, moot.

(b) Trust Modification

Appellants’ third assignment of error argues the trial court erred

when it found Count 2 — trust reformation — was barred by res judicata and found

there were insufficient, unanticipated circumstances warranting trust reformation.

On October 7, 2022, the Trustees filed a motion to dismiss appellant

lot owners’ first amended complaint, and the Clifton Club subsequently filed a

motion seeking to join the motion to dismiss. The trial court granted the motion to

dismiss, in part, on April 17, 2023, and thereby dismissed Count 2 that sought

reformation of the Trust Agreement. The trial court found there had been no

material changes that served as unanticipated circumstances substantiating the

need for a trust modification. The trial court also determined that Count 2 was

barred pursuant to the doctrine of res judicata:

[B]oth prior actions, as well as this matter, surround Clifton Club and

its Members’ access and use of the Beach and Beach property as

regulated by the Trustees. Thus, this Court finds that Plaintiffs should

not be permitted to continue to bring adversarial matters for various

causes of actions that could have been previously litigated but were

never asserted by the Plaintiffs. Furthermore, the causes of action as

asserted in Dueck III are seeking the same relief as Dueck I and Dueck

II, to restrict Clifton Club members[’] Beach access to the Beach and

Beach property although it is presently and has been historically

permitted.

April 17, 2023 judgment entry, p. 8.

On December 23, 2023, appellant lot owners filed a motion for

reconsideration of the dismissal of Count 2, contending that the Trustees’ sale of 224

use licenses to Club Members was unanticipated by the trust settlors and was

unintended and not permitted under the Trust. The trial court issued a judgment

entry on March 28, 2024, finding the appellant lot owners’ allegations lacked merit

and were barred by res judicata.

“‘“The issue of whether res judicata . . . applies in a particular situation

is a question of law that is reviewed under a de novo standard.”’” Kobal v. Kobal,

2022-Ohio-812, ¶ 8 (8th Dist.), quoting Hempstead v. Cleveland Bd. of Edn., 2008-

Ohio-5350, ¶ 6 (8th Dist.), quoting Gilchrist v. Gonsor, 2007-Ohio-3903, ¶ 18 (8th

Dist.), citing Nationwide Ins. Co. v. Davey Tree Expert Co., 2006-Ohio-2018, (11th

Dist.). “A de novo standard of review affords no deference to the trial court’s

decision, and we independently review the record to determine whether res judicata

applies.” Id.

The Ohio Supreme Court has found that

“[r]es judicata ensures the finality of decisions.” Brown v. Felsen, 442

U.S. 127, 131, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979). . . . The res judicata

doctrine ensures stability of judicial decisions, deters vexatious

litigation, and allows courts to resolve other disputes. Natl.

Amusements, Inc.[v. Springdale, 53 Ohio St.3d 60,] . . . 62 [1990];

Brown at 131.

AJZ’s Hauling, L.L.C. v. Trunorth Warranty Programs of N. Am., 2023-Ohio-3097,

¶ 15. “It has long been the law of Ohio that ‘an existing final judgment or decree

between the parties to litigation is conclusive as to all claims which were or might

have been litigated in a first lawsuit.’” Grava, 73 Ohio St.3d at 382, quoting Natl.

Amusements, Inc. at 62.

All the requirements of claim preclusion have been met here on Count

2, trust modification. A prior, final decision on the merits of the case was rendered

in Dueck I and Dueck II. The current case shares the same parties and arises from

the same occurrence or transaction as in Dueck I and Dueck II. While the appellant

lot owners did not litigate trust modification in Dueck I and Dueck II, they could

have done so. We do not find persuasive the appellant lot owners’ argument that

they could not raise modification of the trust until after Dueck I and Dueck II.

Therefore, this claim is barred pursuant to res judicata.

For the foregoing reasons, the appellant lot owners’ third assignment

of error is overruled.

Judgment affirmed.

It is ordered that appellees recover from appellants the 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

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

_____________________

WILLIAM A. KLATT, JUDGE*

EILEEN A. GALLAGHER, A.J., CONCURS;

SEAN C. GALLAGHER, J., CONCURS (WITH SEPARATE OPINION).

(*Sitting by assignment: William A. Klatt, J., retired, of the Tenth District Court

of Appeals.)

SEAN C. GALLAGHER, J., CONCURRING:

I concur fully with the analysis and judgment of the majority. The

appellant lot owners achieved what can be described as a hollow victory in both

Dueck I and Dueck II. They succeeded in establishing that lot owners alone are the

actual beneficiaries of the Trust, but they failed to end the non-lot-owner, non-

beneficiary, Club Members’ use of the assets of that Trust.6

Thus, in the end, these cases come down to one central issue: Access.

The Club Members gain Beach access through their permissive right

to use of the Beach attained through the Clifton Club’s status as a beneficiary of the

Trust. The two previous appellate decisions in this case expressly stated as much.

See Dueck I, 2017-Ohio-7161, ¶ 66-67 (8th Dist.); Dueck II, 2019-Ohio-4784, ¶ 49,

54 (8th Dist.). The only limitation on the Clifton Club was the cap of 250 members

from the original Club Lease, subject to the rules and regulations implemented by

6 It is acknowledged that some Club Members are also beneficiaries as lot owners.

the Trustees. See Dueck I at ¶ 58. The Trust Deed and the Club Deed did not

distinguish the Clifton Club’s status as a beneficiary and its use of Trust assets from

any other beneficiary. Moreover, nothing in the original documents expressly limits

access by Club Members to the Trust assets. This was outlined in Ulmer & Berne

LLP’s memorandum to the Trustees dated May 9, 2012.

Nothing in Dueck I or Dueck II undermined the conclusions in that

memo. While nonresident Club Members are not beneficiaries, only when the

permissive use by non-beneficiaries adversely impacts the use of trust assets by

beneficiaries is there a problem. And as the endless correspondence, and meeting

minutes, from all the parties show, that is not a bright line that can easily be drawn.

There is no dispute that the appellant lot owners paint a picture where

a class of users could conceivably consume a disproportionate share of the available

Trust assets at the expense of the intended beneficiaries. Yet, the possibility of that

occurring does not mean the Trustees breached their fiduciary duty or that the

beneficiaries have been damaged by that possibility. Not only is there a lack of

evidence herein to show the Trustees breached their fiduciary duty, but also there is

nothing to show how a specific policy of the Trustees led directly to a definable harm

or damage to a particular identified beneficiary, or equally to a class or group of

beneficiaries. The key here is definable harm. Not speculative harm. The appellants

assert their claims are real, but on close examination they are cast in terms of

speculative or probable likelihoods, and not specific wrongs, with specific damages,

on specific dates.

I agree with the trial court that allowing the up to 250 Club Members

to have a permissive right to access the Beach and related Beach Property does not,

in and of itself, constitute a breach of fiduciary duty by the Trustees. Furthermore,

in my view, the Trustees have full authority to regulate Beach access by those Club

Members so long as their conduct does not damage the Trust or the beneficiaries.

However, in this matter, no cognizable damages were shown.

Indeed, the dissident lot-owner beneficiaries focus on the general

claim that all Trustees lack the power to divvy up the limited resource of access, in

essence, attempting to redeclare their rights under the Trust already determined and

established to be nonexclusive in two earlier appeals. See generally Dueck I and

Dueck II. According to the dissidents, no amount of access should be granted to the

Club Members, a claim in direct contravention of the earlier panels’ conclusions. To

avoid this clear and undeniable implication, the appellant lot owners now claim that

the specific policy of the Trustees in allocating rights as between the Club Members

and the lot-owner beneficiaries is separate and distinct from the general declaration

noted above. Even if we got into those weeds, however, the claims are speculative.

The heart of the claim focuses on beach use by Club Members. The

Trustees completed a beach reservation study in May 2020 that appeared to

encompass both beach and table reservations for the years 2015 to 2019. That study

shows that Club Members used the beach at a greater percentage than the individual

lot-owner beneficiaries. This fact alone however does not establish a breach of a

fiduciary duty by the Trustees or actual identifiable damage to those beneficiaries.

There is no evidence that I can find in this record that establishes just

what the capacity or reasonable use of the beach would be for Clifton Park. Such a

study could be initiated by the Trustees, a beneficiary, a group of beneficiaries, the

Clifton Club, a Club Member, or a group of Club Members. Such a study was

described in “Recreation carrying capacity estimations to support beach

management at Praia de Faro, Portugal” by Daniel A. Zacarias, Allan T. Williams,

and Alice Newton as published in Applied Geography on ScienceDirect

https://www.sciencedirect.com/science/article/abs/pii/S014362281100021X .

Such an independent study might establish a specific number of

beach visitors that is optimum per day, or at a particular time of day. With that

information, a beneficiary would, as would a Trustee, be in a better position to assess

the impact of allowable beach reservations on beneficiaries.

Ultimately, the sale of 224 beach licenses by the Trustees to the

Clifton Club does not establish a breach of a fiduciary duty. It is only when such

sales demonstrate actual harm or damage to a beneficiary, or a specific class or

group of beneficiaries, that an issue arises. It is the result of a decision that is

controlling, not the decision itself.

Similarly, the Trustees’ policies on the use of the beach house, the

picnic tables, and parking spots can be actionable only when it is clearly shown by

an identified beneficiary, or a class or group of identified beneficiaries, that they

were specifically damaged, on specific dates, through the policies of the Trustees.

The harm cannot be general, nor the damages speculative. They must be specific.

For this reason, even beyond the impact of res judicata, the appellant lot owners’

claims were rightfully rejected.