[Cite as Binsara, L.L.C.. v. Bolog, 2019-Ohio-4040.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

BINSARA, LLC : JUDGES: 

 : 

 : Hon. W. Scott Gwin, P.J. 

 Plaintiff-Appellee : Hon. William B. Hoffman, J. 

 : Hon. Patricia A. Delaney, J. 

-vs- : 

 : Case No. 2019CA00013 

 : 

FRANK A. BOLOG, ET AL. : 

 : 

 : 

 Defendants-Appellants : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of 

Common Pleas, Case No. 

2017CV01748 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: September 30, 2019 

APPEARANCES: 

For Plaintiff-Appellee: For Defendants-Appellants: 

 

LAURA L. MILLS JEFFREY JAKMIDES 

PIERCE C. WALKER 325 East Main Street 

101 Central Plaza South Alliance, OH 44601 

Suite 1200 

Canton, OH 44702 

 
Stark County, Case No. 2019CA00013 2 

Delaney, J. 

{¶1} Defendants-Appellants Frank A. Bolog, Frank B. Bolog, Brad B. Bolog, Ben 

Bolog, and Davis Motor Coach, Ltd. appeal the December 28, 2018 judgment entry of the 

Stark County Court of Common Pleas. 

FACTS AND PROCEDURAL HISTORY 

Ramjay, Inc. v. US Coach, Ltd., Case Nos. 2013CV01325 and 2014CV01244 

{¶2} On May 15, 2013, Ramjay, Inc. filed a complaint against US Coach, Ltd. in 

the Stark County Court of Common Pleas, Case No. 2013CV01325. The complaint 

alleged a breach of contract for the repair of a passenger bus delivered to US Coach, Ltd. 

on June 25, 2012. On September 11, 2013, the parties reached a partial settlement 

through mediation. Ramjay was to deposit $69,744 with the trial court to be held in 

escrow. US Coach was to return the bus to Ramjay, pending an inspection by an 

independent inspector. On May 1, 2014, the parties filed a joint stipulation of dismissal 

without prejudice. 

{¶3} On May 23, 2014, Ramjay filed a complaint for breach of contract as to the 

passenger bus against US Coach in the Stark County Court of Common Pleas, Case No. 

2014CV01244. Upon US Coach’s motion to dismiss, the trial court dismissed the 

complaint on October 15, 2014, without prejudice. 

Binsara, LLC v. US Coach, Ltd., Case No. 2014CV02878 

{¶4} On December 16, 2014, Plaintiff-Appellee Binsara, LLC filed a complaint in 

the Stark County Court of Common Pleas, Case No. 2014CV02878 against US Coach, 

Ltd. alleging claims of breach of contract, unjust enrichment, and fraud. The president of 

Binsara is the owner of Ramjay, Inc. Binsara stated in its complaint that on June 25, 2012, 
Stark County, Case No. 2019CA00013 3 

it delivered a passenger bus to US Coach for repairs. US Coach estimated it would cost 

$63,431.64 for it to repair the vehicle and the repairs would be completed by July 31, 

2012. In January 2013, Binsara inspected the bus and determined US Coach had not 

made the appropriate repairs, rendering the bus inoperable. Binsara claimed US Coach’s 

failure to timely and appropriately repair the bus caused it to incur expenses for alternate 

transportation and lost profits. 

{¶5} US Coach filed an answer, counterclaim, and third-party complaint. In its 

third-party complaint, US Coach named Fleet Priority Services, LLC, CNA Insurance, and 

Advantage Funding as third-party defendants. 

{¶6} On December 15, 2016, the trial court issued a judgment entry stating the 

case was settled by agreement of the parties. The trial court dismissed the case but 

retained jurisdiction to enforce the settlement agreement. The Settlement Agreement, 

which was never filed with the trial court, stated in pertinent part: 

1. Settlement Terms 

A. Discharge of Lien. The Parties agree that Coach shall discharge the 

lien on the Bus owned by Binsara’s financer, Advantage Funding 

(“Advantage”). The value of said lien is $70,000.00. Coach shall either 1.) 

deliver to Binsara the sum of $70,000.00 to discharge said lien, or 2.) obtain 

financing from Advantage sufficient to satisfy and discharge Binsara’s 

liability on the Bus. The Parties further agree that upon discharge of the lien 

or Coach obtaining financing, Binsara shall transfer title to the Bus to Coach 

free and clear of all liens. For the purpose of such transfer, Binsara agrees 
Stark County, Case No. 2019CA00013 4 

that it will cooperate in good faith and take any and all steps necessary to 

effectuate the Bus’s transfer to Coach. 

B. Settlement payment. The parties agree that Coach shall deliver to 

Binsara the sum of Forty Thousand and No/100 Dollars ($40,000.00) (the 

“Payment”) as additional consideration for this Agreement and the 

covenants herein contained. 

C. Contingencies. The Parties agree and Binsara acknowledges that 

Coach’s ability to satisfy its obligations detailed in Paragraphs 1(A) and 1(B) 

is dependent on Coach obtaining financing for the same. Notwithstanding 

anything to the contrary herein, this Agreement shall be strictly contingent 

on Coach obtaining financing to satisfy Paragraphs 1(A) and 1(B) hereof. 

Coach shall have ___ days from the execution of this Agreement to obtain 

said financing. In the event Coach is unable to secure said financing, this 

Agreement shall be void. 

{¶7} On May 24, 2017, the parties filed a Stipulated and Agreed Final Judgment 

Entry. The entry stated Binsara was awarded judgment against US Coach in the amount 

of $110,000. The parties agreed Binsara would not execute on the judgment until the 

expiration of 21 days following the filing of the judgment entry. The basis for the 21 day 

grace period was to allow US Coach to obtain financing. 

{¶8} US Coach failed to pay the judgment and its representatives did not appear 

at the debtor’s examination. 

 
Stark County, Case No. 2019CA00013 5 

Binsara, LLC v. Frank K. Bolog, et al., Case No. 2017CV01748 

{¶9} On August 28, 2017, Binsara filed a complaint against DefendantsAppellants Frank K. Bolog, Frank A. Bolog, Frank B. Bolog, Brad A. Bolog, Ben Bolog, 

and Davis Motor Coach, Ltd.1 In the complaint, Binsara brought three claims: constructive 

fraud, piercing the corporate veil, and punitive damages. The complaint alleged that at 

the time the parties entered into the Stipulated and Agreed Final Judgment Entry on May 

24, 2017, US Coach was defunct and/or not operating any business. The Bologs filed 

their amended answer on November 9, 2017. 

{¶10} Binsara filed a partial motion for summary judgment on January 26, 2018. 

It argued it was entitled to judgment as a matter of law on its claims for constructive fraud 

and piercing the corporate veil. In its motion, Binsara stated it had submitted written 

discovery to the Bologs on December 8, 2017, with responses due on January 15, 2018. 

As of the date of the motion for partial summary judgment, the Bologs had not responded 

to its Requests for Admissions; therefore, those Admissions should be deemed admitted 

as a matter of law. 

{¶11} On January 30, 2018, the Bologs filed a motion for summary judgment and 

request for sanctions. In their motion, they argued Binsara’s claims for constructive fraud 

and piercing the corporate veil were barred by the doctrine of res judicata, specifically 

issue preclusion. The Bologs stated the issue between the parties as to damages for 

repair of the passenger bus had been litigated multiple times, resulting in a final judgment 

on May 24, 2017. Based on the final judgment, Binsara was precluded from raising new 

claims. 

 

1 Frank K. Bolog was dismissed as a party defendant on October 31, 2017. 
Stark County, Case No. 2019CA00013 6 

{¶12} On March 2, 2018, the trial court issued a judgment entry denying both 

parties’ motions for summary judgment. 

{¶13} On May 21, 2018, the trial court granted Binsara’s motion to amend its 

complaint to add the claim of successor liability against Davis Motor Coach, Ltd. The 

Bologs filed a motion to dismiss the successor liability claim. 

{¶14} On June 4, 2018, the Bologs filed Motion for Leave and Second Motion for 

Summary Judgment. The trial court granted the Bologs’ motion for leave to file a second 

motion for summary judgment. In their second motion for summary judgment, the Bologs 

argued that pursuant to Berry v. Javitch, Block & Rathbone, L.L.P., 127 Ohio St.3d 480, 

2010-Ohio-5772, 940 N.E.2d 1265, Binsara’s claim for constructive fraud was barred. In 

Berry, the Ohio Supreme Court held that when parties to a claim have executed a 

settlement agreement and consent judgment entry, a party cannot subsequently institute 

a separate cause of action for fraud in the inducement of the settlement agreement 

without seeking relief from the consent judgment and rescinding the settlement 

agreement. The Bologs stated Binsara never sought relief from the May 24, 2017 

Stipulated and Agreed Final Judgment Entry before filing its claim for constructive fraud 

against the Bologs. 

{¶15} On August 7, 2018, the trial court issued its judgment entry on the Bologs’ 

motion to dismiss and second motion for summary judgment. The trial court denied the 

Bologs’ motion to dismiss Binsara’s successor liability claim. The trial court, however, 

granted the Bologs’ motion for summary judgment as to Binsara’s claim for constructive 

fraud. The trial court found pursuant to Berry, supra, Binsara could not seek both to 

enforce the settlement agreement and pursue a fraud claim because the remedies were 
Stark County, Case No. 2019CA00013 7 

inconsistent: “one which seeks to enforce the terms of the settlement by recovering the 

agreed-upon amount, and the other which seeks to gain more compensation than what 

was agreed-upon on the theory that they entered into a settlement due to a fraudulent 

misrepresentation.” (Judgment Entry, August 7, 2018). 

{¶16} The matter proceeded to a bench trial on September 5, 2018. The only 

claims before the trial court were Binsara’s claims for piercing the corporate veil, 

successor liability against Davis Motor Coach, Ltd., and punitive damages. On December 

28, 2018, the trial court issued its Findings of Fact and Conclusions of Law. The trial court 

made the following relevant findings of fact: 

{¶17} US Coach was formed on December 1, 2008, by Frank A. Bolog and Ben 

Bolog was later added as an agent for US Coach; the current officers and directors of US 

Coach are Frank A. Bolog and Ben Bolog. The address for US Coach was listed at 170 

Prospect Street in Alliance, Ohio. US Coach kept no meeting minutes, corporate 

appointments, or board records. Ben Bolog testified “US Coach” was a trade name for 

multiple companies, including A & M Transit Lines and Davis Motor Coach. On October 

27, 2010, US Coach filed for bankruptcy and was discharged from bankruptcy on January 

20, 2010. The last financial transaction for US Coach was a transfer of $52.00 to Davis 

Bus Tours, Ltd. US Coach entered into a contract with Binsara on June 14, 2012 to repair 

a passenger bus. After US Coach and Binsara entered into the Settlement Agreement 

regarding the repair of the passenger bus, US Coach was unable to secure financing to 

pay the funds required by the Stipulated and Agreed Final Judgment Entry. 

{¶18} The bankruptcy proceedings showed that US Coach was wholly owned by 

Fidelity US Coach. Ben Bolog was listed as the agent for Fidelity US Coach. Fidelity US 
Stark County, Case No. 2019CA00013 8 

Coach filed for bankruptcy on the same day as US Coach, but the bankruptcy records 

showed that Fidelity US Coach was wholly owned by A & M Transit Lines. 

{¶19} A & M Transit Lines was formed on January 26, 1968 by Frank A. Bolog. Its 

business address was also listed at 170 Prospect Street in Alliance, Ohio. The officers 

and directors of A & M Transit Lines are Frank K. Bolog, Frank A. Bolog, and Ben Bolog. 

{¶20} Davis Motor Coach was incorporated on November 7, 2011, by Ben Bolog. 

There are no corporate records, meeting minutes, or board appointments for Davis Motor 

Coach. The original business address for Davis Motor Coach was 170 Prospect Street in 

Alliance, Ohio. Davis Motor Coach maintains three bank accounts, for which the address 

is listed as 170 Prospect Street in Alliance, Ohio. US Coach Sales & Leasing, Ltd. was 

formed on December 22, 2008, by Frank A. Bolog. US Coach Tours, Ltd. was formed on 

January 5, 2011, by Brad A. Bolog. Both corporations’ addresses were 170 Prospect 

Street in Alliance, Ohio. Bank records showed transfers of money between all the 

business entities incorporated by the Bologs. 

{¶21} Based on the findings of fact, the trial court made the following conclusions 

of law: 

{¶22} The trial court considered the three-pronged test to determine whether to 

pierce the corporate veil so that the Bologs as individual shareholders should be liable for 

wrongs allegedly committed against Binsara: (1) control over the corporation by those 

held liable was so complete that the corporation has no separate mind, will, or existence 

of its own, (2) control over the corporation by those to be held liable was exercised in 

such a manner as to commit fraud, an illegal act, or a similarly unlawful act against the 

person seeking to disregard the corporate entity, and (3) injury or unjust loss resulted to 
Stark County, Case No. 2019CA00013 9 

the plaintiff from such control and wrong. Belvedere Condominium Unit Owners’ Assn. v. 

R.E. Roark Cos., Inc., 67 Ohio St.3d 274, 617 N.E.2d 1075 (1963); Dombroski v. 

Wellpoint, Inc., 119 Ohio St.3d 506, 2008-Ohio-4827, 895 N.E.2d 538. 

{¶23} The trial court found the corporate form of US Coach was used to commit a 

fraud on Binsara. Specifically, US Coach fraudulently entered into a contract with Binsara 

for repairs to its bus when in fact, US Coach was not a valid legal entity at the time of the 

contract and had filed bankruptcy in 2010. In doing so, the Bologs used a sham entity to 

insulate themselves or their other non-defunct entities for liability. Based on the fraudulent 

act by the Bologs and US Coach, Binsara suffered injury and unjust loss when US Coach 

was unable to satisfy its obligations. 

{¶24} While the trial court acknowledged that piercing the corporate veil is a 

remedy, not an independent cause of action, the trial court concluded that US Coach’s 

liability was previously determined in Case No. 2014CV02878 pursuant to the Stipulated 

and Agreed Final Judgment Entry. Further, the trial court found sufficient evidence to 

demonstrate the Bologs used their control over US Coach to perpetrate a fraud on 

Binsara. 

{¶25} The trial court next found that Binsara’s claims were not barred by res 

judicata. The previous litigation between Binsara and US Coach did not consider the 

personal liability or corporate status of US Coach. 

{¶26} The trial court finally found that Binsara did not establish successor liability 

as to Davis Motor Coach. 

{¶27} The trial court, finding that the corporate veil should be pierced, ordered that 

Frank A. Bolog and Ben Bolog should be held individually liable for the $110,000 judgment 
Stark County, Case No. 2019CA00013 10 

entered against US Coach, Ltd. in Binsara, LLC v. US Coach, Ltd., Case No. 

2014CV02878. It did not award punitive damages. 

{¶28} It is from this judgment the Bologs now appeal. 

ASSIGNMENTS OF ERROR 

{¶29} The Bologs raise two Assignments of Error: 

{¶30} “I. AS THE TRIAL COURT HELD, THE CORPORATE VEIL CAN BE 

PIERCED AND INDIVIDUAL LIABILITY EXISTS WHEN A CORPORATION IS USED 

FOR CRIMINAL OR FRAUDULENT PURPOSES TO THE DETRIMENT OF A THIRD 

PARTY. THE TRIAL COURT DISMISSED THE FRAUD CLAIM AGAINST THE 

APPELLANTS, AND THUS ITS RULING PIERCED THE CORPORATE VEIL WAS 

CONTRADICTORY AND CONTRARY TO OHIO LAW. 

{¶31} “II. THE TRIAL COURT FOUND THAT US COACH, LTD. WAS UNABLE 

TO SECURE FINANCING TO PAY THE FUNDS REQUIRED BY THE STIPULATED 

AND AGREED FINAL JUDGMENT ENTRY. PURSUANT TO THE EXPLICIT WORDING 

OF SAID JUDGMENT ENTRY, THIS FAILURE TO SECURE FINANCING RENDERED 

THE AGREEMENT VOID. DESPITE THIS FACT, THE TRIAL COURT RULED THAT 

THIS CLEARLY VOIDED THE AGREEMENT WAS ENFORCEABLE AGAINST THE 

APPELLANTS.” 

ANALYSIS 

Standard of Review 

{¶32} The trial court conducted a bench trial in this case. In Eastley v. Volkman, 

132 Ohio St.3d 328, 2012–Ohio–2179, 972 N.E.2d 517, the Ohio Supreme Court clarified 

the standard of review appellate courts should apply when assessing the manifest weight 
Stark County, Case No. 2019CA00013 11 

of the evidence in a civil case. The Ohio Supreme Court held the standard of review for 

manifest weight of the evidence for criminal cases stated in State v. Thompkins, 78 Ohio 

St.3d 380, 678 N.E. 2d 541 (1997), is also applicable in civil cases. Eastley v. Volkman, 

132 Ohio St.3d 328, 2012–Ohio–2179, 972 N.E.2d 517. A reviewing court is to examine 

the entire record and determine “whether in resolving conflicts in the evidence, the finder 

of fact clearly lost its way and created such a manifest miscarriage of justice that the 

judgment must be reversed and a new trial ordered.” Id.; see also Sheet Metal Workers 

Local Union No. 33 v. Sutton, 5th Dist. Stark No. 2011 CA 00262, 2012–Ohio–3549. “In 

a civil case, in which the burden of persuasion is only by a preponderance of the evidence, 

rather than beyond a reasonable doubt, evidence must still exist on each element 

(sufficiency) and the evidence on each element must satisfy the burden of persuasion 

(weight).” Eastley v. Volkman, 132 Ohio St.3d 328, 2012–Ohio–2179, 972 N.E.2d 517. 

{¶33} As an appellate court, we are not fact finders; we neither weigh the evidence 

nor judge the credibility of witnesses. Markel v. Wright, 5th Dist. Coshocton No. 

2013CA0004, 2013–Ohio–5274. Further, “an appellate court should not substitute its 

judgment for that of the trial court when there exists * * * competent and credible evidence 

supporting the findings of fact and conclusion of law.” Seasons Coal Co. v. Cleveland, 10 

Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). The underlying rationale for giving deference 

to the findings of the trial court rests with the knowledge that the trial judge is best able to 

view the witnesses and observe their demeanor, gestures, and voice inflections, and use 

these observations in weighing the credibility of the proffered testimony. Id. Accordingly, 

a trial court may believe all, part, or none of the testimony of any witness who appears 

before it. Rogers v. Hill, 124 Ohio App.3d 468, 706 N.E.2d 438 (4th Dist. 1998). 
Stark County, Case No. 2019CA00013 12 

{¶34} As to questions of law, an appellate court applies a de novo review to the 

trial court’s legal findings. Hayward v. Summa Health Sys./Akron City Hosp., 139 Ohio 

St.3d 238, 2014-Ohio-1913, 11 N.E.3d 243, ¶23; Office of Consumers' Counsel v. Pub. 

Util. Comm., 58 Ohio St.2d 108, 110, 388 N.E.2d 1370 (1979) (“[a]s to questions of law, 

[a reviewing] court has complete, independent power of review[;] [l]egal issues are 

accordingly subject to more intensive examination than are factual questions”). 

{¶35} Pursuant to this standard of review, we consider the Bologs’ first and 

second Assignments of Errors. 

Piercing the Corporate Veil 

{¶36} The Bologs contend in their first Assignment of Error that the trial court erred 

when it considered Binsara’s claim for piercing the corporate veil after it found Binsara’s 

claim for constructive fraud failed as a matter of law. The Bologs argue that without a 

claim of fraud, Binsara could not fulfill the second prong under the Belvedere test for 

piercing the corporate veil. We disagree. 

{¶37} It is a well-settled principle in Ohio law that shareholders, officers, and 

directors of a corporation are generally not liable for the debts of the corporation. 

Dombroski v. WellPoint, Inc., 119 Ohio St.3d 506, 2008-Ohio-4827, 895 N.E.2d 538, ¶ 16 

citing Section 3, Article XIII, Ohio Constitution; Belvedere Condominium Unit Owners’ 

Assn. v. R.E. Roark Cos., Inc., 67 Ohio St.3d 274, 287, 617 N.E.2d 1075 (1963). 

Shareholders, however, do not hold an absolute immunity from liability for the actions of 

their corporations. Id. at ¶ 17. The legal fiction of the corporate form cannot stand if used 

for a purpose or intent not within its reason and policy. Id. citing State ex rel. Atty. Gen. v. 

Std. Oil Co., 49 Ohio St. 137, 30 N.E. 279, paragraph one of the syllabus. When a 
Stark County, Case No. 2019CA00013 13 

shareholder misuses the corporate form as a shield from liability for their own misdeeds, 

Ohio law will permit the piercing of the corporate veil as a rare exception to the guiding 

principles of limited shareholder liability. Id. at ¶ 17, 26 citing Belvedere, 67 Ohio St.3d at 

287; Dole Food Co. v. Patrickson, 538 U.S. 468, 475, 123 S.Ct. 1655, 155 L.E.2d 643 

(2003). Piercing the corporate veil is a judicial act that imposes personal liability on 

otherwise immune corporate officers, directors, or shareholders for the corporation’s 

wrongful acts. Denny v. Breawick, LLC, 2019-Ohio-2066, -- N.E.3d –, ¶ 15 (3rd Dist.) 

citing Minno v. Pro-Fab, Inc., 121 Ohio St.3d 464, 2009-Ohio-1247, 905 N.E.2d 613, ¶ 8. 

{¶38} To decide whether to pierce the corporate veil, the courts must apply a 

three-pronged test established in Belvedere, supra and clarified in Dombroski, supra. The 

focus of the test is the extent to which the shareholder controlled the corporation and 

whether the shareholder misused his or her control to commit specific egregious acts that 

injured the plaintiff: (1) control over the corporation by those to be held liable was so 

complete that the corporation has no separate mind, will, or existence of its own, (2) 

control over the corporation by those to be held liable was exercised in such a manner as 

to commit fraud, an illegal act, or a similarly unlawful act against the person seeking to 

disregard the corporate entity, and (3) injury or unjust loss resulted to the plaintiff from 

such control and wrong. Belvedere, supra, at paragraph three of the syllabus; Dombroski, 

supra, at ¶ 29. 

{¶39} All three prongs of the test must be met for the court to pierce the corporate 

veil. Denny v. Breawick, LLC, 2019-Ohio-2066, -- N.E.3d --, ¶ 19 (3rd Dist.). Because 

piercing the corporate veil is primarily a matter for the trier of fact, an appellate court will 

not reverse a decision to pierce the corporate veil if some competent, credible evidence 
Stark County, Case No. 2019CA00013 14 

supports the determination. Id. at ¶ 20 citing Snapp v. Castlebrook Builders, Inc., 2014-

Ohio-163, 7 N.E.3d 574, ¶ 85 (3rd Dist.) quoting State ex rel. DeWine v. S & R Recycling, 

Inc., 195 Ohio App.3d 744, 2011-Ohio-3371, 961 N.E.2d 1153, ¶ 29 (7th Dist.). Bates v. 

Rose, 6th Dist. Wood No. WD-16-068, 2017-Ohio-7977, 2017 WL 4334178, ¶ 26; Longo 

Constr., Inc. v. ASAP Tech. Serv., Inc., 140 Ohio App.3d 665, 748 N.E.2d 1164 (8th Dist. 

2000); Clinical Components, Inc. v. Leffler Industries, Inc., 9th Dist. No. 95CA0085, 1997 

WL 28246, *3 (Jan. 22, 1997). 

{¶40} The Bologs contend in their appeal that the trial court erred as to the second 

prong of the Belvedere test; they raise no argument challenging the trial court’s findings 

as to the first or third prongs. As such, our analysis will be limited to whether the plaintiff 

demonstrated that the Bologs as corporate officers, directors, or shareholders exercised 

control over the corporation in such a manner as to commit fraud, an illegal act, or a 

similarly unlawful act. Dombroski, supra at ¶ 29. 

{¶41} In Belvedere, the second prong originally stated that corporate control was 

exercised in such a manner as to “commit fraud or an illegal act.” Belvedere, supra at 

paragraph three of the syllabus. After Belvedere, the Ohio appellate districts were split on 

the interpretation of “fraud or illegal act.” Dombroski, supra at ¶ 20-21. Some courts 

liberally construed the language of the second prong because piercing the corporate veil 

is an equitable remedy. Id. at ¶ 21. The courts allowed additional forms of misconduct to 

qualify as “fraud or illegal act” where it would be unjust to allow the shareholders to hide 

behind the fiction of the corporate entity. Id. at ¶ 21-22. Other courts strictly interpreted 

the second prong to find that a plaintiff must allege the corporate officer, director, or 
Stark County, Case No. 2019CA00013 15 

shareholder must use their control over a corporation to commit a fraudulent or illegal act 

in order to pierce the corporate veil. Id. at ¶ 23-24. 

{¶42} In Dombroski, the Court acknowledged there were “compelling reasons” for 

expanding the fraud or illegal act test in Belvedere because individuals are normally liable 

for their actions. Id. at ¶ 25. The Court struck a balance between the principle of limited 

shareholder liability and that shareholders occasionally use the corporate form as a shield 

from liability for their own misdeeds. Id. at ¶ 26. The Court therefore clarified the 

Belvedere test to include “fraud, an illegal act, or a similarly unlawful act” in order to 

address shareholders that abuse the corporate form to commit acts that are as 

objectionable as fraud or illegality. Id. at ¶ 28. 

{¶43} In the present case, the trial court found the second prong of the Belvedere

test was met because the Bologs engaged in fraud when they, as the corporate officers 

of US Coach, entered into the contract with Binsara for the repair of the passenger bus 

when in fact US Coach was not a legal entity at the time of the contract. By doing so, the 

Bologs used a sham entity to insulate themselves from liability. 

{¶44} Upon review of the record, we find there is competent, credible evidence to 

support the trial court’s findings that the Bologs engaged in a fraudulent, illegal act, or 

similarly unlawful act when they entered into the contract to repair the passenger bus 

through the defunct US Coach. The facts of this case demonstrate the rare exception 

where the principle of limited shareholder liability must be balanced against corporate 

officers who use the corporate form as a shield to protect against their misdeeds. 

{¶45} The Bologs argue there must be a pending claim of fraud in order for the 

trial court to pierce the corporate veil. As the trial court dismissed Binsara’s claim for 
Stark County, Case No. 2019CA00013 16 

constructive fraud, the Bologs argue the trial court could not determine the facts 

established the Bologs engaged in fraud. The Bologs do not cite to any case law to 

support their argument on this issue. Nor do the Bologs challenge the trial court’s findings 

of fact as to the bankruptcy status of US Coach at the time it entered into the contract 

with Binsara for the repair of the passenger bus. 

{¶46} The trial court acknowledged the Bologs’ argument that without a pending 

cause of action for constructive fraud, the trial court could not reach the issue of piercing 

the corporate veil as it is an equitable remedy. The trial court concluded that the 

underlying liability of US Coach was already litigated and determined in Binsara, LLC v. 

US Coach, Ltd., Stark County No. 2014CV02878 pursuant to a Stipulated and Agreed 

Judgment Entry. The Settlement Agreement between US Coach and Binsara was not 

filed with the Stipulated and Agreed Judgment Entry. Further, there was no dispute of fact 

that US Coach did not meet its obligations under the Settlement Agreement. In this case, 

there was competent, credible evidence to support the trial court’s finding there was a 

valid and enforceable judgment against US Coach, the genesis of which arose from the 

fraud by the Bologs, as established by Binsara and factually unchallenged by the Bologs 

on appeal. 

{¶47} We find the judgment of the trial court that Binsara established the three 

elements of Belvedere test to pierce the corporate veil is supported by the competent, 

credible evidence and law. 

{¶48} The Bologs’ first Assignment of Error is overruled. 

 
Stark County, Case No. 2019CA00013 17 

Enforceability of the Underlying Settlement Agreement 

{¶49} In their second Assignment of Error, the Bologs argue that pursuant to the 

terms of the Settlement Agreement, US Coach did not meet its obligations to secure 

financing and the Settlement Agreement is therefore void, precluding Binsara from 

enforcing the terms of the Settlement Agreement. 

{¶50} Upon review of the Bologs’ second Assignment of Error, we cannot find a 

reference to the record where the Bologs raised this argument that the Settlement 

Agreement was void and the trial court ruled against the Bologs on the issue. The trial 

court’s December 28, 2018 judgment states only that “[t]he Settlement Agreement did not 

contain the number of days US Coach, Ltd. had to obtain the financing required.” 

{¶51} This Court has previously stated in Hadley v. Figley, 2015-Ohio-4600, 46 

N.E.3d 1129, ¶ 22 quoting Snyder v. Snyder, 5th Dist. Richland No. 2006 CA 0022, 2006-

Ohio-4795, ¶ 19–20: 

“It is well established that a party cannot raise any new issues or legal 

theories for the first time on appeal.” Dolan v. Dolan, 11th Dist. Nos. 2000–

T–0154 and Nos. 2001-T-2003, 2002-Ohio-2440, [2002 WL 1012575] , at ¶ 

7, citing Stores Realty Co. v. Cleveland (1975), 41 Ohio St.2d 41, 43, 322 

N.E.2d 629. “Litigants must not be permitted to hold their argument in 

reserve for appeal, thus evading the trial court process.” Nozik v. Kanaga

(Dec. 1, 2000), 11th Dist. No. 99-L-193, [2000 WL 1774136], 2000 Ohio 

App. LEXIS 5615. 

Failure to raise this issues before the trial court operates as a waiver of 

Appellant's right to assert such for the first time on appeal. See Hypabyssal, 
Stark County, Case No. 2019CA00013 18 

Ltd. v. City of Akron Hous. Appeals Bd. (Nov. 22, 2000), 9th Dist. No. 20000 

[2000 WL 1729471], citing State ex rel. Zollner v. Indus. Comm. (1993), 66 

Ohio St.3d 276, 278, 611 N.E.2d 830. 

{¶52} Assuming this matter was raised before the trial court, we find there was 

competent, credible evidence to support the trial court’s determination that the Bologs 

were liable for the May 24, 2017 judgment. On an unknown date, Binsara and US Coach 

entered into a Settlement Agreement where US Coach agreed to pay Binsara $110,000 

and it was acknowledged that US Coach needed to obtain financing to satisfy the payment 

agreement. The time period for which US Coach was to obtain financing was left blank 

on the Settlement Agreement. On May 24, 2017, Binsara and US Coach filed a Stipulated 

and Agreed Final Judgment Entry where Binsara was awarded judgment against US 

Coach in the amount of $110,000.00. The parties further agreed Binsara would not 

execute on the judgment for 21 days so that US Coach could obtain financing, pursuant 

to the trial testimony of Matthew Mohr, the attorney involved in the litigation between 

Binsara and US Coach. 

{¶53} The Bologs argue that pursuant to the terms of the Settlement Agreement, 

it is void if US Coach did not obtain financing. The evidence in this case shows, however, 

that the parties agreed that Binsara was permitted to execute on the judgment after 21 

days as of the date of the judgment entry. The 21 day period was to allow US Coach to 

obtain financing. After the 21 day period expired, Binsara was permitted to execute upon 

the judgment per the terms of the Stipulated and Agreed Judgment Entry. 
Stark County, Case No. 2019CA00013 19 

{¶54} We find the Bologs’ argument as to the enforceability of the Settlement 

Agreement is not supported by the evidence. We therefore overrule their second 

Assignment of Error. 

CONCLUSION 

{¶55} The judgment of the Stark County Court of Common Pleas is affirmed. 

By: Delaney, J., 

Gwin, P.J. and 

Hoffman, J., concur.