Stepp v. Starrett , 2020 Ohio 3814 ( 2020 )

[Cite as Stepp v. Starrett, 2020-Ohio-3814.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
VINTON COUNTY
Shawn E. Stepp, II, : Case No. 19CA718
Plaintiff-Appellant, :
v. : DECISION AND
JUDGMENT ENTRY
Michele Starrett, et al., :
: RELEASED 7/14/2020
Defendants-Appellees.
:
APPEARANCES:
Sky Pettey, Lavelle and Associates, Athens, Ohio for Appellant.
Stephen C. Rodeheffer, Portsmouth, Ohio for Appellees.
Hess, J.
{¶1} Shawn E. Stepp, II appeals the trial court’s order dismissing his claims
against Michele Starrett, individually and in her capacity as the trustee for the Lawrence
G. Daft Revocable Living Trust Agreement; the Lawrence G. Daft Revocable Living Trust
Agreement; and Daft Farms Family Limited Partnership. Stepp sought an accounting and
alleged breaches of the limited partnership agreement and breaches of the fiduciary
duties of loyalty and care. The trial court granted appellees’ motion for summary judgment
on the ground that Stepp lacked standing, dismissed Stepp’s amended complaint, and
assessed costs against Stepp. Stepp appealed, but we dismissed the appeal for lack of
a final appealable order. See Stepp v. Starrett, 4th Dist. Vinton No. 18CA714, 2019-Ohio-
4707. The action involved multiple claims and parties and the counterclaim of Daft Farms
Vinton App. No. 19CA718 2
Family Limited Partnership (“Daft Farms”) against Stepp remained pending. The
judgment entry appealed failed to include a determination that “there is no just reason for
delay” as required by Civ.R. 54(B).
{¶2} The trial court subsequently entered a judgment entry that included a
determination that there is no just reason for delay and Stepp appealed.
{¶3} We find that the trial court erred as a matter of law in granting the appellees
summary judgment. There are genuine issues concerning whether Starrett was a general
partner in Daft Farms. The evidence in the record, when construed most favorably to
Stepp, indicates that Starrett was never a general partner. Likewise, there are genuine
issues concerning Stepp’s limited partnership interest as the evidence indicates that
Stepp received limited partnership interests in Daft Farms in 2005 and 2006. Reasonable
minds can come to several conclusions concerning the relevant documents. Appellees
are not entitled to summary judgment in their favor. The trial court erred in dismissing
Stepp’s amended complaint.
I. FACTS AND PROCEDURAL BACKGROUND
{¶4} This case involves a family farm dispute. Lawrence Daft was the father of
Starrett and grandfather of Stepp. Starrett is Stepp’s mother. This dispute is between
mother, Starrett, and son, Stepp. In 2002 Lawrence Daft and Starrett created a family
farm limited partnership called Daft Farms. At Daft Farm’s inception, Lawrence Daft was
the sole general partner holding 100 general partner units (100% of the units) and the
majority limited partner with 899 limited partner units. Starrett was a limited partner with
1 limited partner unit. In 2005 and 2006 Lawrence Daft assigned a total of 75 limited
partner units to Stepp and declared that Stepp was a limited partner in Daft Farms. These
Vinton App. No. 19CA718 3
assignments are disputed by the appellees as they claim that the assignments were
ineffective. In 2010 Lawrence Daft assigned all of his general partner units to the
Lawrence G. Daft Revocable Living Trust Agreement (“Trust”), making the Trust the
general partner. In 2014, Lawrence Daft died and Starrett became the trustee of the Trust.
{¶5} In April 2016, Stepp filed an action against Starrett in her individual capacity
and in her capacity as the sole general partner of Daft Farms asserting claims for an
accounting, breach of limited partnership agreement, and breach of fiduciary duties. In
response Starrett filed a motion to dismiss the complaint or, in the alternative, join
necessary parties. In the motion Starrett argued that she was not the general partner of
Daft Farms, she was a limited partner. She alleged that Daft Farms was created in 2002
and that the sole general partner was Lawrence Daft from 2002 until 2010, when he
transferred 100% ownership of his general partnership to the Trust. Starrett attached a
written document to her motion which Lawrence Daft signed stating that in September
2010 he “assigned or transferred” 100% ownership of the general partnership units (100
units) in Daft Farms to the Trust. Starrett argued that because she is not a general partner
in Daft Farms, Stepp’s claims against her in that capacity should be dismissed. She
argued that Lawrence G. Daft’s Estate (Daft was deceased), would be the necessary
party for claims against the general partner from 2002 to 2010 and the Trust was a
necessary party for claims against the general partner after 2010. Starrett also argued
that Daft Farms was an indispensable party.
{¶6} In March 2017, Stepp filed a motion for leave to amend his complaint and a
response to Starrett’s motion to dismiss/joinder. In his motion, Stepp contended that he
was unaware that Starrett was merely acting as general partner of Daft Farm by virtue of
Vinton App. No. 19CA718 4
being trustee of the Trust. Stepp agreed that the Trust should be joined but that he was
not asserting any claims against the Lawrence G. Daft Estate and would not add the
Estate as a party. The trial court granted leave and Stepp filed his first amended complaint
naming Starrett individually, Starrett as trustee of the Trust, the Trust, and Daft Farms.
He made no other substantive changes to his allegations.
{¶7} The defendants filed answers. Starrett filed a separate answer in her
individual capacity and denied that she was a general partner of Daft Farms or that she
ever received compensation as a general partner: “Defendant [Starrett] denies the
allegations set forth in paragraph eighteen (18) of Plaintiff’s Amended Complaint insofar
as they allege that she is the General Partner of Daft Farms. * * * Defendant [Starrett]
denies the allegations set forth in Plaintiff’s Amended Complaint paragraph thirty-six (36)
to the extent that it alleges that she is the General Partner of Daft Farms. Defendant
further denies paragraph thirty-six * * * to the extent that it alleges that she receives any
compensation as General Partner of Daft Farms.” Starrett admitted that she was the
trustee of the Trust and the Trust was the general partner of Daft Farms.
{¶8} Previously, in her motion to dismiss, Starrett submitted a 2010 Resolution
in which Lawrence Daft stated that he owned 100% of the general partner units in Daft
Farms and he assigned and transferred his general partnership units to the Trust. Oddly,
in the separate answer filed by the Trust, Daft Farms, and Starrett as trustee, these
defendants stated they were without knowledge as to whether the Trust was the general
partner of Daft Farms. Inexplicably, this denial was made even though (1) Starrett, in her
individual capacity, admitted that the Trust was the general partner of Daft Farms and (2)
the defendants’ answer was captioned, “Answer of Defendants Michele Starrett, in her
Vinton App. No. 19CA718 5
capacity as the Trustee for the Lawrence G. Daft Revocable Living Trust Agreement
which is the General Partner of the Daft Farms Family Limited Partnership, The Lawrence
G. Daft Revocable Living Trust Agreement, and Daft Farm Family Limited Partnership.”
(Emphasis added.)
{¶9} Daft Farms filed a counterclaim against Stepp in which it alleged that Stepp
damaged a cabin on farm property and wrongfully removed tools. It sought an $8,000
judgment against him. Stepp denied the allegations of wrongdoing.
{¶10} After the parties conducted some discovery, Starrett, in both her individual
and trustee capacities, filed a second motion to dismiss for failure to join necessary
parties, or alternatively to join necessary parties. Starrett contended that the Lawrence G.
Daft Estate and Daft Farms were necessary parties and needed to be joined to the
lawsuit. She argued that Daft Farms was not an existing party to the proceedings, even
though the first amended complaint included Daft Farms as a defendant and Daft Farms
had previously filed a counterclaim against Stepp.
{¶11} In her second motion to dismiss, Starrett claimed to reserve the right to
challenge the existence of Daft Farms and any interests the partners hold. She contended
that she had reason to believe that certain transfers of ownership interest in Daft Farms
were not valid and “thus, Plaintiff [Stepp] may not be a Limited Partner of Daft Farms * *
* and nothing in this Motion shall be construed as an admission that Plaintiff is a limited
partner.” Starrett contended that Lawrence G. Daft created Daft Farms on June 20, 2002
and assigned himself 100% of the general partnership units (100 units). “Prior to
September 20, 2010, Lawrence G. Daft was the sole General Partner of Daft Farms.”
She further represented that she has only served as trustee of the Trust upon Lawrence
Vinton App. No. 19CA718 6
Daft’s death in 2014 and upon Daft’s death the Trust became the general partner of Daft
Farms. She argued that Stepp’s claims were for breaches dating back to 2002 and
therefore the Lawrence G. Daft Estate should be joined. “Attributing any liability to Michele
Starrett, prior to 2014, when she became Trustee of the Trust, as Plaintiff seeks to do,
would be improper.”
{¶12} Stepp opposed the motion on the ground that he was not asserting claims
against the Estate and Daft Farms was already a party. The trial court did not issue a
ruling on the motion.
{¶13} Next, Starrett in her capacity as trustee, the Trust, and Daft Farms filed a
motion for summary judgment in which these defendants argued that Stepp had no
ownership interest in Daft Farms. Starrett claimed that she became trustee of the Trust
and the Trust became the general partner of Daft Farms in 2014 when Lawrence Daft
died. The defendants attached to their summary judgment motion a copy of the Limited
Partnership Agreement of Daft Farms dated June 20, 2002, which identified Lawrence
Daft as the sole general partner and Lawrence Daft and Starrett as limited partners. The
section of the Limited Partnership Agreement that identified the capital contributions
made by the general partner and the two limited partners listed Lawrence Daft as
contributing 99.9% and Starrett .1% of the initial capital contribution. The Limited
Partnership Agreement provided the method by which limited partnership interests may
be transferred or assigned. The Limited Partnership Agreement was signed by Lawrence
G. Daft as “General Partners” [sic] and by Lawrence G. Daft and Michele Starrett as
“Limited Partners.”
Vinton App. No. 19CA718 7
{¶14} The defendants also attached an Assignment and Gift of Partnership and
an Amended Assignment and Gift of Partnership, both also dated June 20, 2002. The
Amended Assignment and Gift of Partnership was made to correct typographical errors
in the number of limited partnership units held by Starrett and Lawrence G Daft from 10
and 89 respectively, to 1 and 899. The Amended Assignment and Gift of Partnership
states that Lawrence G. Daft owns 100 units as general partner and 899 units as a limited
partner and Michele Starrett owns 1 unit as a limited partner.1 For sake of simplicity, we
will refer to the 2002 Assignment and Amended Assignment as the “2002 Assignment.”
The defendants argued that the effect of the 2002 Assignment was “to make Mr. Daft and
Ms. Starrett co-owners of both the outstanding general and limited partnership units” and
“a recognition that Michele Starrett was from this date [June 20, 2002] forward a general
partner” of Daft Farms.2 (Emphasis added.) Starrett also attached the Certificate of Ohio
Limited Partnership filed with the Secretary of State, which listed both Lawrence Daft and
Michele Starrett as general partners. This filing did not identify limited partners and was
“Executed by the General Partner” Lawrence Daft. Lawrence Daft was appointed as the
statutory agent for Daft Farms. The statutory agent appointment identified Lawrence Daft
and Michele Starrett generically as “partners” and did not specify either as “general” or
“limited.”
1 The Amended Assignment and Gift of Partnership appears to include an additional typographical error as
it refers to 100 general partnership units and 1000 limited partnership units, though the total limited
partnership units in 2002 would be 900, and the total combined general and limited partnership units would
be 1000. However, because at some point between 2002 and 2005 an additional 100 limited partnership
units presumably were issued to Lawrence Daft, the reference to “1000 limited partnership units” could
indicate that the Amended Assignment was actually created in 2005, with the intent that the typographical
correction to Starrett’s and Daft’s limited partnership units would be retroactively effective June 20, 2002.
2 Starrett has consistently denied ever being a general partner in Daft Farms. Her counsel argued this
repeatedly in both of her motions to dismiss. And in her Answer, Starrett denied being a general partner in
Daft Farms or ever receiving any compensation as such.
Vinton App. No. 19CA718 8
{¶15} The defendants argued that the fact that Starrett’s name was listed as a
“general partner” in the Certificate of Ohio Limited Partnership shows that Lawrence Daft
intended to gift his general and limited partnership units in Daft Farms to Starrett in June
2002, when Daft Farms was created.
{¶16} The defendants also submitted two additional Assignment and Gift of
Partnership Interest documents with their summary judgment motion. In the first
Assignment, made in December 2005, approximately two and one-half years after Daft
Farms was created, Lawrence Daft states that he owns 100 general partnership units and
999 limited partnership units in Daft Farms, which reflects an additional 100 limited
partnership units more than he held in 2002. It stated that he desires to assign 75 of those
additional 100 limited partnership units as follows: 25 units to his daughter, Michele
Starrett and 25 units each to his two grandsons, Christian Starrett3 and Shawn Stepp. In
the second Assignment, made in December 2006, Lawrence Daft states that he owns
100 general partnership units and 924 limited partnership units.4 Again, this 2006
Assignment contains a typographical error as Lawrence Daft states that he intends to
assign 824 limited partnership units in one part of the document, but then assigns a total
of 924: 824 to Michele Starrett, 50 to Christian Starrett, and 50 to Shawn Stepp. In the
“Agreement” paragraph, Lawrence Daft states that he assigns 924 limited partnership
units, thus divesting himself of all of his limited partnership units in Daft Farms and
3
Christian is Starrett’s other son and Stepp’s half-brother. He is not a party to this action.
4The 924 limited partnership units appears to have been calculated by taking Lawrence Daft’s original 899
units issued and owned in June 2002, adding an additional 100 units presumably issued by Daft Farms to
Lawrence Daft sometime between June 2002 and December 2005, and subtracting the 75 units gifted to
his daughter and two grandsons. Regardless of whether Lawrence Daft owned 924 or 824 partnership
units, the document shows that his intent was to assign all of his limited partnership units to his daughter
and grandsons, 50 each to his grandsons and the balance to his daughter.
Vinton App. No. 19CA718 9
transferring it to his daughter and two grandsons. Lawrence Daft retained his 100 general
partnership units.
{¶17} The defendants argued that the 2005 and 2006 Assignments were deficient
and failed to pass any interest to Michele Starrett, Christian Starrett or Shawn Stepp.
They contend that because these 2005 and 2006 Assignments failed to transfer any
limited partnership units to Stepp, he has no interest in Daft Farms and no standing to
bring a suit for an accounting, breaches of the partnership agreement, and breaches of
fiduciary duties. They argued that the Limited Partnership Agreement provides the
manner in which limited partnership units may be assigned and Lawrence Daft was not
free to transfer any of his limited partnership units without the consent of the general
partner – which was not only Lawrence Daft himself, but also included Michele Starrett.
This argument hinges entirely upon their contention that Michele Starrett became a
general partner in June 2002, when Daft Farms was created, despite Starrett’s consistent
denial of it throughout these proceedings.
{¶18} The defendants also contended that there was no evidence that any of the
three assignees signed a document accepting the assignment of limited partnership units
or that they paid their respective $1000 transfer fee as required by Section 10.3 of the
Limited Partnership Agreement.
{¶19} To their summary judgment motion, the defendants attached a copy of the
Daft Farms Limited Partnership Agreement, the original and Amended Assignment of
June 2002, the Secretary of State Certificate of Limited Partnership, and the 2005 and
2006 Assignments. The defendants did not submit any affidavits or deposition testimony
to support their motion or their attorney’s interpretation of the 2002 Assignment.
Vinton App. No. 19CA718 10
{¶20} Starrett did not file a motion for summary judgment in her individual
capacity, nor seek to join in with the other defendants’ motion.
{¶21} Stepp opposed the motion on the grounds that there was a genuine issue
of material fact as to whether Starrett was a general partner. Stepp argued that Starrett
did not become a general partner by virtue of the 2002 Assignment and, regardless, she
consented in writing to both the 2005 and 2006 Assignments, making Stepp a limited
partner.
{¶22} First Stepp cited Starrett’s own representations made by her attorney in her
two motions to dismiss that she was not a general partner of Daft Farms. It was, in fact,
the primary basis for her motions to dismiss.
{¶23} Stepp argued that the 2002 Assignment did not make Lawrence Daft and
Starrett co-owners of both the outstanding general and limited partnership units. Rather
the purpose of the 2002 Assignment was to set forth “the number of shares owned by
each of them and stating each partner’s assent to those numbers, given that the Limited
Partnership Agreement did not set forth how many shares each of them owned, instead
listing only the percentages of the initial capital contributions.”
{¶24} Stepp submitted additional Certificate of Ownership documents dated June
20, 2002, which had not been submitted with the defendants’ summary judgment motion.
Certificate Number One identified 100 general partnership units and certified that
Lawrence Daft was owner of the entire 100 general partnership units. It contained a
signed acknowledgment by Lawrence Daft accepting the units and agreeing to be bound
by the terms of the Limited Partnership Agreement. Certificate Number Two identified
900 total authorized limited partnership units of which Lawrence Daft was the owner of
Vinton App. No. 19CA718 11
890 limited partnership units. This also contained a signed acknowledgment by Lawrence
Daft accepting the 890 units. Certificate Number Three identified Michele Starrett as the
owner of 10 limited partnership units and contained a signed acknowledgement by
Starrett accepting the 10 limited partnership units and agreeing to be bound by the Limited
Partnership Agreement. In December 2006, Certificate Number Three was amended to
reflect that Starrett actually only owned 1 limited partnership unit, not 10.5 Lawrence Daft
signed the Amended Certificate as “General Partner” and Michele Starrett signed and
accepted 1 limited partnership unit in Daft Farms on December 11, 2006.
{¶25} Stepp argued that when all the documents executed on June 20, 2002 were
taken together (the Limited Partnership Agreement, the Assignments, and the Certificates
of Ownership) there was no question that Starrett did not become a general partner on
June 20, 2002. Because Starrett was not a general partner in 2005 and 2006, her consent
was not needed for Lawrence Daft to transfer the limited partnership units to Stepp.
{¶26} Stepp provided additional documents concerning the 2005 and 2006
Assignments and Gifts of Partnership Interest. As previously noted, in 2005 Lawrence
Daft assigned 25 limited partnership units to Stepp. Though the defendants contended
that Starrett never consented to this, Stepp included a Certificate of Ownership for the 25
limited partnership units in which Starrett signed for and accepted them as the custodian
and on behalf of Stepp, a minor at the time.6 Likewise in 2006, Lawrence Daft assigned
50 limited partnership units to Stepp. Again, though defendants contended Starrett never
5 It appears that although the 2002 Assignment was corrected on or after June 2002 to be effective June
2002 and changed the limited partnership units Starrett received from 10 to 1, the actual Certificate
reflecting ownership was not corrected until December 2006. See discussion in footnote 1.
6 The “Acceptance” section of the Certificate of Ownership appears to contain a typographical error and
refers to the number of units as “10.” All other places in the Certificate and the Assignment itself refers to
“25” limited partnership units.
Vinton App. No. 19CA718 12
consented to this, Stepp produced a Certificate of Ownership signed in December 2006
by Lawrence Daft as General Partner and signed and accepted by Starrett as custodian
of and on behalf of Stepp, a minor.
{¶27} Stepp argued that under either method set forth in R.C. 1782.42(A), he was
properly given a limited partnership interest in Daft Farms. First under R.C. 1782.42(A)(2),
he was made a limited partner when “all other partners” consented, as evidenced by
Starrett’s acceptance on the 2005 and 2006 Certificates of Ownership. Second, his
acquisition of his limited partnership interest was made in accordance with the Limited
Partnership Agreement because he contends that the limitations on transferring limited
partnership interest applies only to Limited Partners, not General Partners. Stepp argued
that as a General Partner with a limited partnership interest, Lawrence Daft could transfer
his limited partnership units without restriction. And, even assuming that the limitations
on transfers of limited partnership interests applied equally to Lawrence Daft, the Limited
Partnership Agreement gives Lawrence Daft as General Partner the authority to treat
Stepp as a substituted Limited Partner, “should it [General Partner] deem, in its sole
discretion, that such treatment is in the best interest of the Limited Partnership.”
{¶28} Stepp submitted his affidavit with his opposition memorandum in which he
stated: (1) Lawrence Daft and Starrett always treated him, recognized him and referred
to him as a Limited Partner in Daft Farms; (2) Starrett provided him with tax forms for his
Limited Partnership interest in Daft Farms; and (3) Starrett made verbal offers to buy out
Stepp’s limited partnership interest.
{¶29} In their reply, the defendants pointed out several of the typographical errors
as illustrative of the “manifest confusion” Lawrence Daft had concerning the ownership of
Vinton App. No. 19CA718 13
Daft Farms. The defendants reiterated their argument that the 2002 Assignment formed
a co-ownership by Lawrence Daft and Michele Starrett of all of the general and limited
partnership interest in Daft Farms.
{¶30} After the parties finished briefing the summary judgment motion, the
attorneys who represented Starrett in her individual capacity sought and were granted
leave to withdraw as her counsel. Starrett and Stepp then engaged in a prolonged
discovery dispute concerning Starrett’s refusal to produce personal financial records. A
forensic accountant retained by Stepp submitted an affidavit in support of the discovery
requests, which included pages from the Daft Farms 2015 federal tax returns in which the
Trust was identified as the “Sole General Partner” of Daft Farms.
{¶31} The trial court granted summary judgment in favor of Starrett, the Trust and
Daft Farms. It found that the 2002 Assignment transferred the general partnership units
and the limited partnership units to Lawrence Daft and Starrett equally and that Lawrence
Daft and Starrett were both general partners in Daft Farms since its inception in June
2002. The trial court determined that any transfer of a limited partnership interest could
only be made in accordance with the Limited Partnership Agreement or with the consent
of all partners. Without giving its rationale, the trial court determined that the subsequent
attempted transfers of limited partnership interest were not made in accordance with the
Limited Partnership Agreement and were not consented to by all the partners. It therefore
determined that Stepp did not have an ownership interest in Daft Farms, it granted
defendants’ summary judgment, and dismissed Stepp’s amended complaint.
{¶32} Stepp appealed.
Vinton App. No. 19CA718 14
II. ASSIGNMENT OF ERROR
{¶33} Stepp designates the following assignment of error:
I. The Trial Court Erred In Granting Summary Judgment To The Defendants.
A. Jurisdictional Issue
{¶34} Before addressing the merits, we must first consider a threshold
jurisdictional issue. Ohio law provides that the courts of appeals in this state have
jurisdiction to review the final orders or judgments of inferior courts within their district.
Section 3(B)(2), Article IV of the Ohio Constitution; R.C. 2501.02. In the event that a
jurisdictional issue is not raised by the parties, then we must raise it sua sponte. Whitaker–
Merrell Co. v. Geupel Constr. Co., 29 Ohio St.2d 184, 186, 280 N.E.2d 922 (1972); In re
Murray, 52 Ohio St.3d 155, 159-160, 556 N.E.2d 1169, 1173-1174, fn. 2 (1990); Kouns
v. Pemberton, 84 Ohio App.3d 499, 501, 617 N.E.2d 701, 702 (4th Dist.1992).
{¶35} Here the trial court’s judgment disposed of the one of the party’s claims, but
it did not resolve a pending counterclaim. In such instances under Civ.R. 54(B) the trial
court may enter final judgment as to one or more but fewer than all of the claims or parties
upon an express determination that there is no just reason for delay. Here the trial court’s
judgment includes the “no just reason for delay” language.
In deciding that there is no just reason for delay, the trial judge makes what
is essentially a factual determination—whether an interlocutory appeal is
consistent with the interests of sound judicial administration, i.e., whether it
leads to judicial economy. Trial judges are granted the discretion to make
such a determination because they stand in an unmatched position to
determine whether an appeal of a final order dealing with fewer than all of
the parties in a multiparty case is most efficiently heard prior to trial on the
merits. The trial court can best determine how the court's and the parties'
resources may most effectively be utilized. The trial court is most capable
of ascertaining whether not granting a final order might result in the case
being tried twice. The trial court has seen the development of the case, is
familiar with much of the evidence, is most familiar with the trial court
Vinton App. No. 19CA718 15
calendar, and can best determine any likely detrimental effect of piecemeal
litigation. More important than the avoidance of piecemeal appeals is the
avoidance of piecemeal trials. It conserves expense for the parties and
clarifies liability issues for jurors when cases are tried without “empty
chairs.”
In making its factual determination that the interest of sound judicial
administration is best served by allowing an immediate appeal, the trial
court is entitled to the same presumption of correctness that it is accorded
regarding other factual findings. An appellate court should not substitute its
judgment for that of the trial court where some competent and credible
evidence supports the trial court's factual findings. Likewise, regarding
Civ.R. 54(B) certification, where the record indicates that the interests of
sound judicial administration could be served by a finding of
“no just reason for delay,” the trial court's certification determination must
stand. An appellate court need not find that the trial court's certification is
the most likely route to judicial economy, but that it is one route which might
lead there. Trial courts, however, should be careful not to breach the duty
entrusted to them, and should avoid a mechanical application of the
Civ.R. 54(B) language. (Citations omitted.)
Wisintainer v. Elcen Power Strut Co., 67 Ohio St.3d 352, 354-355, 1993-Ohio-120, 617
N.E.2d 1136.
{¶36} Here the record supports the trial court’s determination that an interlocutory
appeal is consistent with the interest of sound judicial administration. The pending
counterclaim is wholly unrelated to Stepp’s claims, requires proof of different facts,
involves separate legal issues, and allows for differing recoveries. See Jacobs v. Jones,
10th Dist. Franklin No. 10AP-930, 2011-Ohio-3313, ¶ 43 (finding trial court’s Civ.R. 54(B)
certification proper). Thus, we have jurisdiction over this appeal.
B. Standard of Review
{¶37} We review the trial court's decision on a motion for summary judgment de
novo. Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12.
Accordingly, we afford no deference to the trial court's decision and independently review
the record and the inferences that can be drawn from it to determine whether summary
Vinton App. No. 19CA718 16
judgment is appropriate. Harter v. Chillicothe Long–Term Care, Inc., 4th Dist. Ross No.
11CA3277, 2012-Ohio-2464, ¶ 12; Grimes v. Grimes, 4th Dist. Washington No. 08CA35,
2009-Ohio-3126, ¶ 16.
{¶38} Summary judgment is appropriate only when the following have been
established: (1) that there is no genuine issue as to any material fact; (2) that the moving
party is entitled to judgment as a matter of law; and (3) that reasonable minds can come
to only one conclusion, and that conclusion is adverse to the nonmoving party. Civ.R.
56(C); DIRECTV, Inc. v. Levin, 128 Ohio St.3d 68, 2010-Ohio-6279, 941 N.E.2d 1187, ¶
15. In ruling on a motion for summary judgment, the court must construe the record and
all inferences therefrom in the nonmoving party's favor. Civ.R. 56(C). The party moving
for summary judgment bears the initial burden to demonstrate that no genuine issues of
material fact exist and that they are entitled to judgment in their favor as a matter of law.
Dresher v. Burt, 75 Ohio St.3d 280, 292–293, 662 N.E.2d 264 (1996). To meet its burden,
the moving party must specifically refer to “the pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, timely filed in the action,” that affirmatively demonstrate that the
nonmoving party has no evidence to support the nonmoving party's claims. Civ.R. 56(C);
Dresher at 293, 662 N.E.2d 264. Moreover, the trial court may consider evidence not
expressly mentioned in Civ.R. 56(C) if such evidence is incorporated by reference in a
properly framed affidavit pursuant to Civ.R. 56(E). Discover Bank v. Combs, 4th Dist.
Pickaway No. 11CA25, 2012-Ohio-3150, ¶ 17; Wagner v. Young, 4th Dist. Athens No.
CA1435, 1990 WL 119247, *4 (Aug. 8, 1990). Once that burden is met, the nonmoving
party then has a reciprocal burden to set forth specific facts to show that there is a genuine
Vinton App. No. 19CA718 17
issue for trial. Dresher at 293, 662 N.E.2d 264; Civ.R. 56(E); Am. Express Bank, FSB v.
Olsman, 2018-Ohio-481, 105 N.E.3d 369, ¶¶ 10-11 (4th Dist.).
C. Analysis
{¶39} As a preliminary matter, we note that none of the documents attached to
the parties’ summary judgment motion and opposition memorandum were properly
certified or authenticated. However, the parties did not object and the trial court did not
sua sponte refuse to consider the documents in rendering its judgment. Therefore, any
objections on that basis are waived. State ex rel. Gilmour Realty, Inc. v. Mayfield Hts.,
122 Ohio St.3d 260, 2009-Ohio-2871, 910 N.E.2d 455, ¶ 17 (“Although appellees did not
support these pertinent facts with evidence of the kinds specified in Civ.R. 56(C), courts
may consider other evidence if there is no objection on this basis.”); Martin v. Wandling,
2016-Ohio-3032, 65 N.E.3d 103, ¶ 29 (4th Dist.) (“When the opposing party fails to object
to the admissibility of the evidence under Civ.R. 56, the court may, but need not, consider
such evidence when it determines whether summary judgment is appropriate.”); Jackson
v. McKinney, 2nd Dist. Montgomery No. 26288, 2015-Ohio 1977, ¶ 13 , fn. 2. (where both
parties failed to authenticate documents used to support and oppose summary judgment,
the appellate court considers any authentication argument waived for purposes of
appeal).
{¶40} The trial court reviewed the 2002 Assignment and found no ambiguity as to
the intent and effect of the assignment. It found that after it was executed, Lawrence Daft
and Starrett “owned all units in the partnership equally.”
The Court finds that Lawrence G. Daft and Michele L. Starrett were general
partners as of June 20, 2002. The Court further finds that any transfer of a
limited partnership interest could be made only in accordance with the
partnership agreement or with consent of all partners. The Court finds there
Vinton App. No. 19CA718 18
is nothing in the record which constitutes consent to the subsequent
attempted transfers of limited partnership interests. The Court further finds
the subsequent attempted transfers were not made in accordance with the
partnership agreement. The Court therefore finds that Plaintiff does not own
any interest in the partnership. The Court finds that there is no genuine
issue as to any material fact and that Defendants are entitled to judgment
as a matter of law.
{¶41} We find that the trial court erred in granting summary judgment to Starrett,
the Trust, and Daft Farms because the 2002 Assignment is ambiguous and subject to
several reasonable interpretations, there was conflicting evidence as to whether Starrett
was ever a general partner of Daft Farms, and compelling evidence that Stepp has a
limited partnership interest in Daft Farms.
{¶42} The 2002 Assignment as Amended reads:
The Assignment and Gift of Partnership Interest is entered into this 20th day of
June, 2002, by and between Lawrence G. Daft and Michele L. Starrett (hereinafter
referred to as “Assignors”) and Lawrence G. Daft and Michele L. Starrett
(hereinafter referred to as “Assignees”).
BACKGROUND
A. Lawrence G. Daft owns 100 Units as a General Partner and 899 units as Limited
Partner in the Daft Farms Family Limited Partnership.
B. Michele L. Starrett owns 1 Unit as Limited Partner in the Daft Farms Family
Limited Partnership.
C. Assignors desire to assign and gift all of their rights, title and interest in all their
individual General Partnership Units and all their individual Limited Partners Units
in the Daft Farms Family Limited Partnership to the respective Assignees. Such
assignments shall be made from the General Partnership and Limited Partner
Units in the Daft Farms Family Limited Partnership owned by Lawrence G. Daft
and Michele L. Starrett.
IN WITNESS WHEREOF, this Assignment and Gift of Interest has been executed
effective on the day and year first above written.
[Signature of Lawrence G. Daft]
Lawrence G. Daft, Assignor
Vinton App. No. 19CA718 19
[Signature of Michele L. Starrett]
Michele L. Starrett, Assignor
ACCEPTANCE
These Assignees do hereby accept the foregoing assignment and agree to be
bound by the terms of the Daft Farms Family Limited Partnership Agreement of
Limited Partnership with respect to the interest herein assigned.
[Signature of Lawrence G. Daft]
Lawrence G. Daft, Trustee
[Signature of Michele L. Starrett]
Michele L. Starrett, Trustee
CONSENT
The undersigned General Partner of the Daft Farms Family Limited Partnership
does hereby consent to the transfer of the Assignor’s Partnership Interests effected
by the foregoing Assignment of the General Partnership Units and Limited
Partnership Units of the Daft Farms Family Limited Partnership to the Trustees of
their respective Trusts dated June 20, 2002.
[Signature of Lawrence G. Daft]
Lawrence G. Daft, General Partner
{¶43} The trial court interpreted this Assignment as a full and complete
assignment of all of Daft’s partnership interests to Starrett and a full and complete
assignment of all of Starrett’s partnership interest to Daft, while each also simultaneously
retaining their own respective partnership interests for themselves. This was the
interpretation offered by defendant’s summary judgment motion. Yet this interpretation is
not supported by any affidavit or deposition testimony; it is only an uncorroborated
interpretation put forth by defense counsel.
{¶44} The trial court interpreted the 2002 Assignment as a complete assignment
of partnership interests, while at the same time a complete retention of partnership
Vinton App. No. 19CA718 20
interests. Yet to interpret it as a complete assignment, we would have to conclude that
Starrett has become the sole general partner and owner of 100 general partner and 899
limited partner units, and Daft has become the owner of 1 limited partner unit. We have
reviewed the entire record and find such an interpretation untenable in view of all of the
other evidence of the parties’ intentions.
{¶45} First, every other document in the record, except one, identifies Lawrence
G. Daft as the sole general partner of Daft Farms up until his death: (1) The Limited
Partnership Agreement; (2) The 2002 Assignment and Gift of Partnership Interest,
“Background”; (3) The 2002 Amended Assignment and Gift of Partnership Interest,
“Background”; (5) The 2002 Certificates of Ownership, Certificate Numbers One, Two and
Three; (6) The 2005 Assignment and Gift of Partnership Interest, “Background”; (7) The
2005 Certificate of Ownership, Certificate Number Six; (8) The 2006 Amended Certificate
of Ownership, Certificate Number Three; (9) The 2006 Assignment and Gift of Partnership
Interest, “Background”; and (10) The 2006 Certificate of Ownership, Certificate Number
Nine.
{¶46} The only document that identifies Starrett as a general partner is the original
Certificate of Limited Partnership form filed with the Ohio Secretary of State, which
identifies the name and Ohio business address of each general partner. Both Lawrence
Daft and Starrett are listed. Although this might expose Starrett to liability to third parties,
it does not change the fundamental relations of the partners between themselves. See In
re Westover Hills Ltd., 46 B.R. 300, 305 (Bankr. D. Wyo.1985) (discussing the effect of
limited partners being erroneously identified as general partners on certificate of limited
partnership in the bankruptcy context). More relevant here is the fact that only Lawrence
Vinton App. No. 19CA718 21
G. Daft signed the original certificate of limited partnership as general partner. Under R.C.
1782.11(A)(1) the “original certificate of limited partnership shall be signed by all general
partners.” (Emphasis added.) If Starrett were a general partner in June 2002 she also
should have signed the Certificate of Limited Partnership. She did not.
{¶47} In addition, Starrett has consistently represented to the trial court through
motions and in her answer, that she is not and never has been a general partner in Daft
Farms. In her first motion to dismiss, filed June 16, 2016, Starrett, through counsel,
represented to the trial court:
Plaintiff asserts that Defendant, Michele Starrett is the sole General Partner
of Daft Farms Family Limited Partnership. This is incorrect. Michele Starrett
is a Limited Partner of the Partnership. The sole General Partner of Daft
Farms is the Lawrence G. Daft Revocable Living Trust (the “Trust”). On or
about June 20, 2002, a Limited Partnership Agreement was executed by
Lawrence G. Daft, now deceased, and Michele Starrett. In this Agreement,
Lawrence G. Daft was assigned One Hundred (100) Units as the General
Partner of Daft Farms. On or about September 29, 2010, Lawrence G. Daft
resolved to transfer his One Hundred (100) shares of the General
Partnership units to the Trust.
Starrett attached the 2010 Resolution to her motion to dismiss which states, “Lawrence
G. Daft is 100% owner of general partnership units (100 units) in the Daft Farms Family
Limited Partnership, and * * * Lawrence G. Daft established an intervivos revocable trust
on June 20, 2002 called the Lawrence G. Daft Revocable Living Trust Agreement * * *
Lawrence G. Daft now desires to place his 100 shares (100%) of general partnership
units into his trust * * *.” The Resolution was signed “Lawrence G. Daft, 100% owner of
General Partnership Units of Daft Farms Family Limited Partnership.” In Starrett’s
Answer, filed April 13, 2017, Starrett admitted that she was the trustee of the Trust and
the Trust was the general partner of Daft Farms and explicitly denied that she is the
general partner of Daft Farms or that she received any compensation as such.
Vinton App. No. 19CA718 22
{¶48} Both Lawrence Daft and Starrett executed documents consistently from
2002 up until Lawrence Daft’s death in 2014, that identified Lawrence Daft as the sole
general partner. Starrett has consistently represented that she was never a general
partner in Daft Farms and that, since Lawrence Daft’s death, she is only the trustee and
the Trust is the sole general partner. Because Lawrence Daft’s and Starrett’s own
statements best establish their intentions with respect to their partnership interest, any
analysis of the documents they executed must be considered in totality.
{¶49} Under the standard for summary judgment, the evidence must be reviewed
in a light most favorable to the non-moving party. Stepp argued that the only reasonable
interpretation of the 2002 Assignment is that it was to set forth the number of shares that
would be initially owned by them and to state each partner’s assent to those numbers,
given that the Limited Partnership Agreement did not set forth how many shares each of
them owned, instead listing only the percentages of the initial capital contributions.
Stepp’s interpretation is a reasonable one.
{¶50} However, in view of the totality of the evidence and construing the 2002
Assignment in a light most strongly in Stepp’s favor, we find an equally plausible
interpretation of the 2002 Assignment. Lawrence Daft, in his individual capacity, assigned
his general and limited partnership units to himself (his “respective assignee”) in his
capacity as “Trustee.” Likewise, Starrett, in her individual capacity, assigned her limited
partnership interest to herself (her “respective assignee”) in her capacity as “Trustee.”
This was done so that each could hold their respective units as trustees, rather than
individuals. And, as trustees of their respective trusts they could place their respective
partnership units in their respective trusts.
Vinton App. No. 19CA718 23
{¶51} Both Lawrence Daft and Starrett were identified as “assignors” who desired
to assign their individual units to their “respective Assignees.” Under the “Acceptance”
section, as Assignees, they accepted the assignment “with respect to the interest herein
assigned” and then each signed their acceptance as “Trustee.” Lawrence Daft, General
Partner, gave his consent to the transfer of these interests “to the Trustees of their
respective Trusts dated June 20, 2002.” According to the 2010 Resolution Starrett
submitted with her motion to dismiss, the Lawrence G. Daft Revocable Living Trust
Agreement was created on June 20, 2002. Thus, the 2002 Assignment was the method
used to: (1) transfer Lawrence Daft’s units to himself in his capacity as trustee so that he
could subsequently transfer them to the Lawrence G. Daft Revocable Living Trust, which
he subsequently did in 2010 and (2) transfer Starrett’s unit to herself as trustee so that
she could subsequently transfer it to her trust. Our interpretation, like Stepp’s
interpretation, confers no general partnership interest to Starrett and is consistent with
subsequent actions taken by Lawrence Daft and Starrett.
{¶52} We find that the trial court’s determination that Starrett was a general
partner in Daft Farms was erroneous as a matter of law. There are genuine issues
concerning the proper interpretation of the 2002 Assignment as reasonable minds can
come to more than one conclusion. Importantly, Starrett herself repeatedly denied that
she was the general partner of Daft Farms in her answer to Stepp’s amended complaint.
Because the trial court erred in determining that Starrett was a general partner in 2002, it
likewise erred in determining that the attempted transfers of the limited partnership units
were ineffective to confer a limited partnership interest to Stepp. The trial court’s analysis
of the transfer of the limit partnership interest was cursory. However, it made the
Vinton App. No. 19CA718 24
determination that “any transfer of a limited partnership interest could be made only in
accordance with the partnership agreement or with the consent of all partners.” Thus, the
trial court agreed with Stepp’s argument that, under R.C. 1782.42(A), Stepp could
become a limited partner with the consent of all other partners without compliance with
the provisions of the Limited Partnership Agreement.
{¶53} Appellees argue that R.C. 1782.42(A) must be read in conjunction with R.C.
1782.17(B)(2), which they argue requires compliance with the provisions of the Limited
Partnership Agreement, specifically section 10.3, even though R.C. 1782.42(A)(2)
requires only the consent of all partners. However, Appellees did not file a cross appeal
challenging the trial court’s determination that the partnership interests could be
transferred with the consent of all partners. Therefore, they have waived it. Moreover, this
interpretation would render R.C. 1782.42(A)(2) superfluous and ineffective. “We must
presume that in enacting a statute, the General Assembly intended for the entire statute
to be effective. R.C. 1.47(B). Thus, all words should have effect and no part should be
disregarded.” D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 2002-
Ohio-4172, 773 N.E.2d 536, ¶ 19 (2002).
{¶54} Stepp produced a 2005 Assignment and Gift of Partnership Interest by
which Lawrence Daft assigned 25 Units of Limited Partnership and “all of his rights, title
and interest in” those Units in Daft Farms to Stepp. Stepp also produced a 2005 Certificate
of Ownership Number Six in which Lawrence Daft “certifies that Shawn E. Stepp II is the
owner of 25 units in the Daft Farms Family Limited Partnership, and has been admitted
to said Partnership as a Limited Partner.” It was signed by Lawrence G. Daft as general
partner and accepted and signed by Starrett as the custodian of Stepp, who was a minor
Vinton App. No. 19CA718 25
at the time of transfer. In 2006, a similar assignment occurred of 50 of the limited
partnership units. Again, it was signed by Lawrence G. Daft and accepted and signed by
Starrett. Stepp also submitted his affidavit in which he stated that both Lawrence G. Daft
and Michele Starrett referred to him as a Limited Partner, Starrett provided Stepp with tax
forms for his limited partnership interest, and made verbal offers to buy out Stepp’s limited
partnership interest.
{¶55} Appellees produced no evidence to support their contention that Starrett
withheld consent to the transfers. Her signatures on both transfers accepting the units on
behalf of her son, are, at the very least, evidence of her tacit approval of the transfers.
Starrett provided no affidavit testimony concerning these transfers, nor did she refute
Stepp’s affidavit that she provided him tax documents related to his limited partnership
units and made past offers to buy out Stepp’s limited partnership interest. And, any
assertions by her that the transfers were not consensual, some fifteen years later, raises
estoppel concerns and strains credibility.
{¶56} Additionally, we find that the appellees provided no evidence in the trial
court to support their bald assertions that Lawrence Daft and Stepp failed to comply with
the provisions of section 10.3. For example, the summary judgment motion states
“Section 10.4(e) of the Agreement has been violated because the $1,000 transfer fee was
never paid.” Yet no financial records or affidavit testimony was submitted to support this
assertion.
{¶57} Construing the evidence most strongly in favor of Stepp, we find that a
genuine issue exists as to whether he has a limited partnership interest in Daft Farms.
The evidence in the record strongly indicates that Starrett was never a general partner in
Vinton App. No. 19CA718 26
Daft Farms and that she approved Lawrence Daft’s transfers of his limited partnership
units to Stepp in 2005 and 2006. Since reasonable minds could come to different
conclusions with regard to Stepp’s interest in Daft Farms, appellees were not entitled to
summary judgment. As a matter of law, the trial court erred in granting appellees summary
judgment. We sustain Stepp’s assignment of error.
III. CONCLUSION
{¶58} The trial court erred in granting appellees summary judgment. We sustain
Stepp’s sole assignment of error and reverse the judgment of the trial court.
JUDGMENT REVERSED.
Vinton App. No. 19CA718 27
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS REVERSED and that Appellees shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Vinton
County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry
and the time period for further appeal commences from the date of filing with the
clerk.