Court of Appeals of Ohio, Eighth District, Cuyahoga
ARTHUR P. DUECK, ET AL., Plaintiffs-Appellants,
JOSEPH KERRIGAN, TRUSTEE, CLIFTON PARK TRUST, ET AL. Defendants-Appellees.
Appeal from the Cuyahoga County Court of Common Pleas,
Probate Division Case No. 2018 ADV 234080
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.
JOURNAL ENTRY AND OPINION
LASTER MAYS, JUDGE
Introduction and Background
The 2012 action
1} 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,  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
Dueck I at ¶ 1.
2} 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 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.
3} 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.
The 2018 action
4} 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.
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
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
Second amended complaint, ¶ 76.
6} Count 1 requests an injunction under RC.
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 RC. 5810.04.
7} 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.
8} 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.
9} 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.
10} 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
11} 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.
12} The Legal Update provides that while the
Dueck I appeal in the Ohio Supreme
Court 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.
13} 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
2) Clifton Park Trustees have received and processed
3) Assessment amounts to Lot Owner Beneficiaries would
increase significantly and may represent an unanticipated
financial burden to Lot Owner Beneficiaries.
14} 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 "better
reflect the intention of the rules and the assignment of
rights in light of the Court's decision."
15} 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
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.
2018 rules are attached to the Legal Update.
16} 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.
17} 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
18} 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
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 ...