[Cite as Susany v. Susany, 2017-Ohio-132.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

DAVID SUSANY 

 PLAINTIFF 

VS. 

DOUGLAS SUSANY, et al. 

 DEFENDANTS-APPELLEES 

 AND 

THERESA SUSANY 

 DEFENDANT- APPELLANT/CROSS 

 APPELLEE 

 AND 

S.E.T., INC. 

 DEFENDANT- APPELLEE/CROSS 

 APPELLANT 

DAVID SUSANY 

 PLAINTIFF-APPELLANT 

VS. 

DOUGLAS SUSANY, et al. 

 DEFENDANTS 

 AND 

THERESA SUSANY 

 DEFENDANT-APPELLEE 

 AND 

S.E.T., INC. 

 DEFENDANT-APPELLANT 

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 CASE NO. 15 MA 0002 

 

OPINION 

 

 

 

 CASE NO. 15 MA 0089 

OPINION 

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common 

Pleas of Mahoning County, Ohio 

Case No. 09 CV 371 

JUDGMENT: Affirmed. 
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APPEARANCES: 

For David Susany 

For S.E.T., Inc. 

Attorney Glenn Osborne 

Attorney Leonard Schiavone 

3801 Starrs Centre Drive 

Canfield, Ohio 44406 

Attorney Stuart Strasfeld 

100 East Federal Street, Suite 600 

Youngstown, Ohio 44503 

For Theresa Susany 

For Douglas Susany 

For Jeffrey Susany and Gregory Susany 

Attorney Marshall Buck 

100 Federal Plaza East, Suite 926 

Youngstown, Ohio 44503 

Attorney Charles Dunlap 

7330 Market Street 

Youngstown, Ohio 44512 

Attorney Scott Essad 

721 Boardman-Poland Road, Suite 201 

Youngstown, Ohio 44512 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Gene Donofrio 

Hon. Carol Ann Robb 

 

 

 Dated: January 13, 2017 
[Cite as Susany v. Susany, 2017-Ohio-132.]

DeGENARO, J. 

{¶1} This is a consolidated appeal. Theresa Susany appeals the December 

12, 2014 judgment entry of the trial court in this shareholder derivative action, finding 

that her former husband, Douglas Susany owns 15% of the capital stock of the 

family-owned closely-held corporation, S.E.T., Inc. ("S.E.T." or "corporation"). David 

Susany, Douglas' brother, and S.E.T. appeal the May 28, 2015 judgment entry of the 

trial court finding that Theresa and Douglas own the property designated as 5500 

Center Street, Lowellville, Ohio ("the shop property"), which was titled only in 

Douglas' name, and that the corporation has a month-to-month tenancy. Because 

the parties have not shown that the trial court abused its discretion, both appeals are 

meritless and the judgments of the trial court are affirmed. 

Facts and Procedural History 

{¶2} This case involves two protracted actions; the civil case underlying this 

appeal and a parallel domestic relations case involving Douglas and Theresa. In 

2009, David, who owned 45% of the capital stock of S.E.T., filed the instant action to 

determine the corporation's ownership rights in several pieces of property, including 

the shop property. The verified complaint named as defendants: Douglas, as owner 

of 55% of the voting shares and 15% of the capital stock in the corporation; Jeffrey 

Susany and Gregory D. Susany, sons of Douglas and Theresa, each as owners of 

50% of the non-voting stock, and 20% of the capital stock of the corporation; S.E.T.; 

and Theresa, Joseph Zdrilich, and Donna Zdrilich, as titled owners of the properties 

at issue. 

{¶3} The verified complaint requested that legal title to the properties be 

changed to S.E.T., or, in the alternative, that a constructive trust be imposed on the 

properties and that the titled owners be deemed trustees on behalf of the corporation; 

or that legal title be changed to reflect David's 45% ownership interest in the 

properties. 

{¶4} Theresa filed an answer which included counterclaims and crossclaims 

for abuse of process against David (apparently based upon the filing of the abovecaptioned shareholder derivative action); breach of fiduciary duty against David and 
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Douglas; and to pierce the corporate veil, which was stated as a cause of action 

rather than a remedy. Theresa sought $25,000.00 in compensatory damages, and 

$50,000.00 in punitive damages. At the time, a divorce action initiated by Theresa 

was pending in the domestic relations court. Theresa filed a motion to consolidate 

the shareholder derivative action with the divorce action, however, the trial court 

never ruled on the motion to consolidate. 

{¶5} Douglas filed an amended answer which included a counterclaim and a 

crossclaim against Theresa, seeking a determination of his percentage of ownership 

of capital stock in S.E.T. In her answer to the crossclaim, Teresa requested that the 

crossclaim be dismissed. However, in the divorce proceeding, Theresa and Douglas 

stipulated that the trial court should resolve the corporate issues. The domestic 

relations court, by way of a judgment entry, deferred the determination of both 

Douglas' stock ownership and the ownership of the shop property to the trial court. 

{¶6} The pertinent facts are as follows. Douglas and Theresa were married 

in 1982. In 1988, Douglas and David founded S.E.T., which engages in the business 

of excavating and general contracting and undertakes projects that include 

streetscapes, road widening, sewer, water and site work. Douglas is responsible for 

running the office, handling insurance and bonding and all of the business aspects of 

the corporation, and David is in charge of the equipment and the shop. At the time it 

was founded, S.E.T. issued 100 shares of capital stock: 55 shares to Douglas and 

45 shares to David. Although the brothers shared the equity in the corporation 

equally, Douglas held 10 additional shares of capital stock in order to maintain 

decision-making authority. 

{¶7} In April of 2006, Douglas discovered that Theresa was engaged in an 

extramarital affair. She left the marital home for a short time but returned in an effort 

to reconcile with Douglas. 

{¶8} Two months later, on June 27, 2006, shortly after Jeffrey graduated 

from college and returned home to work for the corporation, at a special shareholders 

meeting, Douglas and David voted to split the corporation's stock and issue 300 
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Class B nonvoting shares. The original 100 voting shares were designated as Class 

A stock. Of the new 300 Class B shares, 135 went to David and 165 went to Douglas. 

Douglas immediately divested himself of 160 of his newly acquired, nonvoting Class 

B shares by giving 80 shares to Jeffrey and eighty shares to Gregory (who was still in 

college). Douglas retained only 5 shares of the Class B stock. The result was that 

Douglas decreased his total ownership in S.E.T. stock from 55% to 15%, even 

though he retained 55% of the Class A voting shares. 

{¶9} In addition to issuing the nonvoting Class B shares of stock, S.E.T. filed 

amended articles of incorporation. The first amendment allowed the shareholders to 

inter-deal with S.E.T. without being responsible or accountable to the corporation. 

The second amendment provided for a waiver of pre-emptive rights to establish that 

no holder of shares of stock in the corporation would have any pre-emptive right to 

purchase, subscribe, or otherwise acquire any shares of stock of the corporation. The 

third amendment provided that the corporation could repurchase any shares 

transferred to others at any time. The amended Articles of Incorporation were filed 

with the Ohio Secretary of State on June 7, 2006. 

{¶10} Theresa left the marital home permanently in August of 2006. Several 

months later, she returned some of her property to the marital residence, but she 

never actually physically returned. Roughly two years later, in 2008, Theresa filed for 

divorce. 

{¶11} Douglas testified that the timing of his stock dilution and changes to 

S.E.T.'s articles of incorporation, just two months after he learned of Theresa's 

infidelity, had nothing to do with a desire to reduce the assets available to Theresa in 

the divorce. Both parents testified that sometime during the summer of 2005, they 

and their son Jeffrey discussed the option of Jeffrey joining the family business. 

However Douglas testified that no action was taken until June of 2006. At the same 

time, the insurance company that provided bonding to the corporation wanted 

Douglas and David to formulate a succession plan to assure a smooth transition in 

the event something happened to Douglas. As a consequence, Douglas transferred 
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stock in the corporation to Jeffrey and Gregory in June of 2006. 

{¶12} Theresa conceded that it was always the parents' intent that Jeffrey and 

Gregory would join the family business. At the time of the trial, Gregory and Jeffrey 

were twenty-eight and twenty-six years of age, respectively, both had graduated from 

The Ohio State University in construction management, and both were working at the 

corporation. Theresa testified that she had no objections to them having an 

ownership interest in the corporation, but that the capital stock was transferred to the 

boys without her knowledge in June of 2006. 

{¶13} When asked at trial whether she wanted her sons to be divested of their 

capital stock, Theresa initially replied, "No." However, once she understood that the 

remedy she requested required that her sons be divested of their capital stock, she 

testified that she wanted ownership of the boys' capital stock to revert back to 

Douglas so that it could be divided evenly by the divorce court. 

{¶14} Douglas drew a small annual salary from S.E.T. Because S.E.T. was 

an S corporation, a pass-through entity, Douglas incurred annual tax liability on 

S.E.T. profits in proportion to his stock ownership. He testified that, although he paid 

taxes on his annual share of the company's profits, S.E.T. more often than not 

retained the earnings. 

{¶15} Douglas commonly used S.E.T. funds for his personal use – having 

referred to the retained earnings as, "for lack of a better term, a savings account 

issue," at his deposition. In fact, the construction of Douglas' post-divorce home on 

Kennedy Road, as well as the insurance and taxes on that property, were paid by the 

corporation. He admitted that maintenance of the marital residence was paid for in 

part by S.E.T. funds as well. Douglas conceded that virtually all of the personal 

vehicles driven by Douglas, Theresa, and their children when they were in high 

school and college were owned by S.E.T. Likewise, Douglas commonly charged 

personal expenses to his S.E.T. corporate credit card. The children collected monthly 

allowances from S.E.T., for which they received a W-2 form, although no work had 

been performed. 
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{¶16} Douglas testified that he regularly deposited S.E.T. revenue in his 

children's savings accounts. Douglas reasoned that he was protecting the 

corporation by hiding assets. He provided the same explanation for titling the various 

properties at issue in this case, including the shop property, in his name only, or in 

the names of others, over the years. 

{¶17} According to David's testimony, the shop property was purchased with 

two checks, one in the amount of $6,500.00 and another in the amount of 

$20,000.00, written on the S.E.T. account. David further testified that the property 

taxes on the shop property since its acquisition are paid by S.E.T. 

{¶18} The shop property was titled in Douglas' name only. However, minutes 

from a shareholders' meeting held on June 12, 2007, after Douglas and Theresa had 

separated but prior to the filing of the divorce petition, established that the 

shareholders discussed the need for additional space for equipment storage, and 

agreed to construct a 7,500 square-foot pre-engineered steel building "on land 

owned by [Douglas and Theresa]." The land referred to in the minutes is the shop 

property. 

{¶19} The minutes further read, "The corporation is hereby authorized to 

enter into a land lease with [Douglas and Theresa] for an initial term of 25 years with 

five five-year renewal options at a rental rate of $100 per month." Douglas conceded 

at trial that he, David, and the boys signed the minutes as shareholders.1 

{¶20} The April 27, 2011 Magistrate's Decision found that Douglas owned 

15% of the stock and ownership of S.E.T., S.E.T. was the equitable owner of the 

shop property, and title to the shop property should vest in S.E.T. Theresa filed 

objections to the Magistrate's Decision and amended objections challenging the 

Magistrate's conclusions with respect to, among other matters not germane to this 

 

1The Ohio Supreme Court in N. Royalton City School Dist. Bd. of Edn. v. Cuyahoga Cty. Bd. of 

Revision, 129 Ohio St.3d 172, 2011-Ohio-3092, 950 N.E.2d 955 (2011) defined a "ground lease" as a 

"lease that grants the right to use and occupy land." Id. at n.1, quoting American Institute of Real 

Estate Appraisers, The Dictionary of Real Estate Appraisal (1984) 146. Black's Law Dictionary defines 

the term "ground lease" as "a long-term (usually 99-year) lease of land only. Such a lease typically 

involves commercial property, and any improvements built by the lessee usually revert to the lessor. 

— Also termed ground-rent lease; land lease." 
- 6 - 

appeal, Douglas' stock ownership and the equitable ownership of the shop property. 

{¶21} In an August 24, 2011 judgment entry the trial court overruled all of 

Theresa's objections, but for the objection related to the ownership of the shop 

property. The trial court remanded the issue to the Magistrate, with instructions that 

the Magistrate reconsider the existence of the lease mentioned in the corporate 

minutes. The entry specifically overruled Theresa's objection to the Magistrate's 

determination that Douglas owned 15% of the stock in S.E.T., Inc. 

{¶22} Two years later, on July 26, 2013, Theresa filed a pleading styled: 

"Memorandum in Support of Findings Consistent with the Judgment Entry (of August 

24, 2011)" which stated as follows: 

Based on the explicit instructions from Judge Sweeney to determine the 

ownership of the Shop Property consistent with the Lease Agreement, 

Defendant, Theresa Susany, respectfully request that this court make a 

finding that the property located on Quarry Road/55 (sic) Center Road, 

be deemed the marital property of Douglas Susany and Theresa 

Susany subject to division pursuant to the Domestic Relations Property 

Settlement Agreement. 

{¶23} The Magistrate issued a Decision on October 21, 2013 regarding the 

shop property, which reads as follows: 

a. The Shop Property is the property of Douglas J. Susany and 

Theresa Susany; 

b. That a Lease Agreement between Douglas J. Susany and 

Theresa Susany for the Shop Property does exist and said Lease 

Agreement is a month to month tenancy. 

{¶24} S.E.T. filed its objections to the Magistrate's Decision which Theresa 

opposed, arguing that the court was correct in determining that the shop property 
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was owned by Douglas and Theresa and that a lease agreement exists for the shop 

property. In a January 31, 2014 judgment entry the trial court overruled S.E.T.'s 

objections and adopted the Magistrate's Decision dated October 21, 2013. 

{¶25} Theresa filed a notice of appeal challenging the interim August 24, 2011 

judgment entry wherein the trial court determined that Douglas made valid gifts of 

S.E.T. stock and is only a 15% shareholder as well as the January 31, 2014 final 

judgment entry. S.E.T. also appealed, challenging the trial court's determination 

regarding the equitable ownership of the shop property. 

{¶26} On March 14, 2014, this Court dismissed both appeals sua sponte and 

remanded the case to the trial court to enter a final judgment, because the Judgment 

Entry dated January 14, 2014 failed to comply with the requirements of Harkai v. 

Scherba Industries, 136 Ohio App.3d 211, 736 N.E.2d 101, (9th Dist. 2000). Harkai 

holds that a trial court judge must separately enter a judgment setting forth the 

outcome of the dispute and the remedy provided, rather than simply adopt the 

findings of a Magistrate's decision. Civ.R. 53(D)(4)(d) requires the trial court to make 

an independent review of the magistrate's decision, which has been called "the 

equivalent of a de novo determination". Shihab & Assoc. Co., L.P.A. v. Ohio Dept. of 

Transp., 168 Ohio App.3d 405, 2006-Ohio-4456, 860 N.E.2d 155, ¶ 13 (10th Dist.). 

{¶27} In a May 28, 2014 judgment entry the trial court stated that the October 

21, 2013 Magistrate's Decision was well supported and adopted the decision and 

entered it as a permanent order of the trial court. However, the findings of fact and 

conclusions of law related solely to the determination of the ownership of the shop 

property. 

{¶28} No further action was taken by the parties until Theresa filed a pleading 

styled "Motion for Independent Review of Objections to Magistrate's Decision from 

April 27, 2011." This appears to be a third attempt by Theresa to challenge that 

particular magistrate's decision which the trial court initially resolved in its August 24, 

2011 judgment entry.2 In a December 12, 2014 judgment entry the trial court stated 

 

2The first being her original objections, ¶20, supra, and the second being the pleading she filed in 
- 8 - 

that Douglas owned 15% of the stock and ownership of S.E.T., Inc., reasoning: "the 

transfer of stock by [Douglas] to his sons does not by itself demonstrate that 

[Douglas] intended to divest his interest in the corporation because of a pending 

divorce action, with the purpose of defrauding [Theresa] of any marital assets." It is 

important to note that, although the stock transfer occurred within a few months of 

Douglas' discovery of Theresa's infidelity, no divorce action was pending when the 

stock transfer was made. 

{¶29} Theresa and S.E.T. both filed notices of appeal from this judgment 

entry. On April 21, 2015, this Court held them in abeyance, in order for the trial court 

to enter a final order addressing ownership of the shop property. 

{¶30} On May 28, 2015, the trial court issued a judgment entry virtually 

identical to the May 28, 2014 judgment entry regarding ownership of the shop 

property. The trial court relied upon the corporate minutes to conclude that the shop 

property was owned by Douglas and Theresa and that title should be placed in both 

of their names. Because there was no written lease agreement, only the reference in 

the corporate minutes, the trial court found that the oral agreement violated the 

statute of frauds. As a consequence, the trial court found that a month-to-month 

tenancy existed between Douglas and Theresa and the corporation. Both S.E.T. and 

David appealed this judgment entry. 

Theresa's Appeal 

Value of Douglas S.E.T. Intertest 

{¶31} Theresa presents a single assignment of error in her Merit Brief: 

ASSIGNMENT OF ERROR: THE TRIAL COURT ABUSED ITS 

DISCRETION BY MISAPPLYING THE LAW AND FAILING TO 

FASHION THE CORRECT EQUITABLE REMEDY. 

{¶32} "A trial court's decision to adopt, reject or modify a magistrate's report 

and recommendation, or to hold further hearings, will be reversed on appeal only for 

 

2013, ¶ 22 supra. 
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an abuse of discretion." Arrow Fin. Servs. v. Kuzniak, 7th Dist. No. 06 MA 133, 2007-

Ohio-2191, ¶ 21. "An abuse of discretion means the trial court's decision is 

unreasonable based upon the record; that the appellate court may have reached a 

different result is not enough to warrant reversal." Smith v. Smith, 7th Dist. No. 14 CA 

0901, 2016-Ohio-3223, ¶ 13 

{¶33} Theresa cites Selanders v. Selanders, 3rd Dist. No. 17-08-28, 2009-

Ohio-2303, for the proposition that the trial court erred in concluding that Douglas has 

a 15% ownership interest in the corporation. After a divorce decree, the husband in 

Selanders filed for modification of his spousal support obligation to his ex-wife 

arguing a change in circumstances because he had sold his business to his sons. He 

then accepted employment with his former business at a reduced salary. The 

husband did not attempt to sell the business on the open market. 

{¶34} The Third District concluded that the sale of the business was 

motivated by the husband's desire to reduce his spousal support obligation. 

Specifically, the husband voluntarily chose to sell the business to his sons and to 

take employment at a significantly reduced income, noting the timing was suspect as 

the husband was not close to a traditional retirement age and the sale occurred only 

four months after the original spousal support order. Id. ¶36. Thus, the panel held 

the husband's decision constituted a voluntary reduction in income taken in an 

attempt to avoid the Court's order of spousal support to the plaintiff. Id. 

{¶35} While the facts in Selanders share some similarities with the facts here, 

the cases are sufficiently distinct that a fact finder could reach different conclusions 

regarding Douglas' intent. Here, the trial court concluded that there was insufficient 

evidence to show that Douglas intended to divest his interest in the company in order 

to reduce his marital assets. Douglas testified that he was facing pressure from the 

insurance company to name successors at S.E.T. due to his advancing age. Both 

Jeffrey and Gregory received degrees in construction management, and both were 

working at the company at the time of the trial. Theresa conceded that she and 

Douglas had intended that the boys would join the family business after they 
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graduated from college, even though the stock transfer in June of 2007 was made 

without her knowledge. Clearly, the trial court credited Douglas' testimony, which was 

supported, rather than contradicted, by Theresa's testimony that the boys would 

someday inherit a share of the family business. Accordingly, the trial court did not 

abuse its discretion in concluding that Douglas owned 15% of the capital stock in 

S.E.T. 

{¶36} For the first time on appeal3, Theresa advances the theory that her 

claim is equitable in nature and this Court should act in equity to fashion any remedy 

to do justice under the circumstances. Yoskey v. Eric Petroleum Corp., 7th Dist. 

Columbiana No. 13 CO 42, 2014-Ohio-3790, ¶ 48. Decisions in equity "are not bound 

by formula or restrained by any limitation that tends to trammel the free and just 

exercise of discretion." Keystone Driller Co. v. Gen, Excavator Co. (1933), 290 U.S. 

240, 245-246, 54 S. Ct. 146, 78 L. Ed. 293. "Equity may be invoked to prevent 

injustice or unfairness. Courts of equity will assist the wronged party on the ground of 

fraud, imposition, or unconscionable advantage if there has been great inequality in 

the bargain. Allason v. Galley, 189 Ohio App.3d 491, 2010-Ohio-4952, 939 N.E.2d 

206, ¶ 50 (7th Dist.). 

{¶37} Theresa appears to argue that this court should fashion a remedy that 

awards her half of the value of Douglas' former 55% ownership of the company, 

without divesting the boys' ownership interest. Theresa argues in her merit brief, 

"Douglas still controls 55% of the voting shares of the company stock and has the 

ability to manipulate the percentage of ownership of stock in the company as he 

desires. Equity demands that this Court correct the trial court's error and order that 

Douglas remains the owner of 55% of S.E.T." However, Theresa's argument fails for 

two reasons. 

{¶38} First, appellate courts will not review an argument raised for the first 

time on appeal. Fullum v. Columbiana Cty. Coroner, 7th Dist. No. 12 CO 51, 2014-

 

3Theresa did not raise this claim in her pleadings; instead she asserted equity for the first time in her 

closing argument at trial. 
- 11 - 

Ohio-5512, 25 N.E.3d 463, 472, ¶ 39, citing Niskanen v. Giant Eagle, Inc., 122 Ohio 

St.3d 486, 2009-Ohio-3626, 912 N.E.2d 595, ¶ 34. Additionally, an appellant cannot 

change the theory of his case and present new arguments for the first time on 

appeal. State ex rel. Guttierez v. Trumbull Cty. Bd. Of Elections, 65 Ohio St.3d 175, 

177, 757 N.E.2d 362 (1992). The only claims that Theresa raised in the trial court 

were abuse of process, breach of fiduciary duty, and piecing the corporate veil. In 

response to Douglas' cross-claim regarding his stock ownership, Theresa's answer 

merely sought dismissal of the cross-claim. Because she failed to advance an 

equitable remedy before the trial court, we will not consider it on appeal. 

{¶39} Second, Theresa's equitable claim is predicated upon her argument on 

appeal that the trial court erred by "ignoring the undisputed facts demonstrating that 

[Douglas] created an illusory transfer of stock intended to diminish his ownership in 

S.E.T. prior to his divorce." To the contrary, there was a genuine issue of material 

fact surrounding Douglas' intention in transferring the stock in June of 2006. Theresa 

herself testified that she and Douglas intended that the boys would inherit part of the 

company after they graduated from college. Accordingly, there was competent and 

credible evidence supporting the trial court's findings of fact. Thus, Theresa has 

failed to show that she suffered any injustice or unfairness. 

{¶40} The trial court did not abuse its discretion in finding that Douglas owns 

15% of the capital stock of S.E.T. Accordingly, Theresa's sole assignment of error is 

meritless. 

S.E.T. & David's Appeal 

Ownership of Shop Property 

{¶41} David and S.E.T. advance a single assignment of error: 

THE TRIAL COURT ERRED IN DETERMINING THAT THE SHOP 

PROPERTY IS OWNED BY DOUGLAS SUSANY AND THERESA 

SUSANY. 

{¶42} David and S.E.T. contend that a purchase-money resulting trust was 
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created in favor of S.E.T. when the shop property was purchased, relying on David's 

testimony that the shop property was purchased with two checks for $6,500.00 and 

$20,000.00 written on the S.E.T. account. David further testified that the property 

taxes on the shop property have been paid by S.E.T. Moreover, a pre-fabricated 

building purchased by S.E.T. was constructed on the shop property valued at 

$200,000.00. 

{¶43} "A purchase-money resulting trust occurs when property is transferred 

to one person, but the entire purchase price is paid by another." Rardin v. Estate of 

Bain, 7th Dist. No. 08 CA 853, 2009-Ohio-3332, ¶¶ 82-86, citing Restatement of the 

Law 2d, Trusts (1959) 393, Section 440, and 5 Scott on Trusts (4th Ed.1967), Section 

440. In such a case, a resulting trust arises in favor of the person by whom the 

purchase price is paid. Id. Central to the determination of whether a purchase money 

resulting trust exists are the issues of (1) who paid for the purchase and (2) who was 

intended to beneficially enjoy the property. Id.

{¶44} Restatement of the Law 2d, Trusts (1959) 416-417, Section 454, reads: 

 Where a transfer of property is made to one person and a part of the 

purchase price is paid by another, a resulting trust arises in favor of the 

person by whom such payment is made in such proportion as the part 

paid by him bears to the total purchase price, unless he manifests an 

intention that no resulting trust should arise or that a resulting trust to 

that extent should not arise. 

{¶45} Therefore, "the equitable owner has an interest in such proportion as 

the amount he paid bears to the total purchase price." Rardin at ¶¶ 82-86. The 

burden of proof to establish a purchase-money resulting trust is clear and convincing 

evidence. Id. 

{¶46} At first blush, it appears that a purchase-money resulting trust should 

arise in favor of the corporation, which paid the full purchase price for the property 

and for its maintenance, as well as the purchase price for the pre-fabricated building 
- 13 - 

that is located on the shop property. However, the Restatement articulates an 

exception to the general rule, that is, a purchase-money resulting trust should arise 

unless the purchaser of the property "manifests an intention that no resulting trust 

should arise or that a resulting trust to that extent should not arise." Restatement at 

Section 454. Douglas conceded at trial that he regularly treated S.E.T. funds as his 

personal savings account. Conversely, he often titled S.E.T. assets in his own name 

and the names of Theresa and their sons to shield the assets from S.E.T. creditors. 

As a consequence, the fact that the shop property was titled in Douglas' name only 

and financed through the S.E.T. account are not dispositive of ownership. 

{¶47} Even assuming that S.E.T. funds financed the shop property, the trial 

court did not abuse its discretion in concluding that S.E.T. was not the equitable 

owner of the shop property. Despite the fact that Theresa had left the marital home, 

and efforts at reconciliation had failed, Douglas and the other shareholders 

acknowledged on June 12, 2007 that Theresa had an ownership interest in the shop 

property. The minutes further memorialized the shareholders' intent to erect the prefabricated building on the shop property. Aware of the value of the shop property 

and the pre-fabricated building to be placed there, the shareholders nonetheless 

recognized Douglas and Theresa's ownership of the shop property. 

{¶48} David and S.E.T. argue Theresa will be unjustly enriched due to the 

improvements made on the shop property. However, this argument ignores the fact 

that the shareholders contemporaneously recognized Theresa's ownership interest in 

the shop property and expressed their intention to erect the pre-fabricated building on 

June 12, 2007. Applying the test we articulated in Rardin, supra, the evidence 

adduced at trial does not clearly establish who paid the purchase price for the shop 

property, but the minutes of the shareholders' meeting clearly demonstrate that 

Douglas and Theresa were intended to beneficially enjoy the property. 

{¶49} As the trial court did not abuse its discretion when it found that Douglas 

and Theresa are the owners of the shop property, David and S.E.T.'s assignment of 

error is meritless.
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{¶50} In sum, the trial court did not abuse its discretion in this matter. 

Therefore, the judgment entries of December 12, 2014 and May 28, 2015 are 

affirmed.

Donofrio, J., concurs 

Robb, P. J., dissenting in part; see dissenting in part opinion 
- 15 - 

Robb, J., dissenting in part opinion 

{¶51} I respectfully dissent in part from the decision reached by my 

colleagues. I agree with the resolution of Theresa’s sole assignment of error. As to 

David and S.E.T.’s assignment of error, I would affirm the holding as it relates to the 

deed of the real estate, but as to the buildings and improvements to the real estate, I 

would remand the matter for further consideration. 

{¶52} The “shop property” consists of two components. One is the real 

estate. I agree the trial court did not abuse its discretion in finding a purchase money 

resulting trust did not arise in favor of the corporation as to the real estate. The 

evidence did not clearly and convincingly demonstrate a purchase money resulting 

trust for the reasons expressed in paragraphs 45 and 46 of the opinion. 

{¶53} However, as I see it, there are two portions to the “shop property” – the 

real estate and the improvements, i.e., the buildings constructed on the property. 

Theresa testified she did not contribute any money towards the construction of the 

buildings and she did not know if Doug or the corporation paid any money towards 

the construction of the buildings. Doug testified the improvements were paid by the 

corporation and provided a print out of the monies expended by S.E.T. for the 

construction of the buildings. His testimony also reflected that the buildings were 

used solely for the corporation. 

{¶54} Although it is clear Doug and Theresa were intended to benefit from the 

real estate, it is not clear they were intended to benefit from the improvements to the 

property. At the June 12, 2007 meeting of S.E.T. directors and shareholders, a 

discussion about the corporation’s need for additional space to store its equipment 

occurred. The first corporate resolution indicates the property was owned by Doug 

and Theresa. It provided, “That the Corporation is hereby authorized to construct a 

7,500 square foot pre-engineered steel building on lands owned by Douglas J. 

Susany and Theresa Susany * * *, which was acquired from the Lowellville Rod & 

Gun Club, Inc.” The second resolution provided the corporation was authorized to 
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enter into a “land-lease” with Doug and Theresa for an initial term of 25 years, with 5 

year renewal options for a rental fee of $100 per month. The testimony at trial clearly 

indicated the buildings solely benefited the corporation. Neither the second 

resolution nor the trial testimony indicate Doug and Theresa were to benefit from the 

buildings, which cost approximately $200,000. If Doug and Theresa were intended to 

benefit from both the real estate and improvements, then higher lease payments may 

have been required and warranted. 

{¶55} Admittedly, S.E.T. did not argue the real estate and buildings as 

separate assets in their appellate briefs; the argument was raised during oral 

argument. Regardless, considering the evidence, the trial court should have 

examined each of the assets in that manner. In examining them in that manner, 

based on equitable principles, S.E.T. was, at the least, entitled to compensation for 

the improvements to the property, which the evidence demonstrates was never 

intended to benefit Theresa. 

{¶56} Accordingly, based on the above reasoning, I hold there is some merit 

with S.E.T.’s assignment of error, and as such, would remand the matter for further 

proceedings. For that reason, I dissent in part.