[Cite as Baker v. Manchi, 2017-Ohio-730.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

PHYLLIS BAKER 

 PLAINTIFF-APPELLEE 

VS. 

JAMES MANCHI, et al. 

 DEFENDANT-APPELLANT 

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CASE NO. 15 MA 0091 

OPINION 

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common 

Pleas of Mahoning County, Ohio 

Case No. 2014 CV 582 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee Attorney Kevin Murphy 

108 Main Avenue, S.W. 

Suite 500 

Warren, Ohio 44481 

For Defendant-Appellant Attorney Stuart Strasfeld 

100 East Federal Street 

Suite 600 

Youngstown, Ohio 44503 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

 

 

 Dated: February 28, 2017 
[Cite as Baker v. Manchi, 2017-Ohio-730.]

DeGENARO, J. 

{¶1} Defendants-Appellants, James Manchi, et al., appeal the trial court's 

judgment awarding Plaintiff-Appellee, Phyllis Baker, half of the proceeds from the 

sale of various companies in which she had an interest, and for refusing to consider 

his cross motion for summary judgment. As Manchi’s arguments are meritless, the 

judgment of the trial court is affirmed. 

Facts and Procedural History 

{¶2} Phyllis Baker’s husband, Robert Baker, and Manchi, were lifelong 

business partners. Starting in the 1970’s, they formed Federal Management 

Company, Inc., B&M Professional Services, Inc., Valley View I, LP, Valley View II, 

LP, and Austintown Associates, LLC, with Mr. Baker and Manchi each 50% 

shareholders and general partners of the companies. 

{¶3} In 2007, Mr. Baker and Manchi entered into a Buy-Sell agreement to 

establish their respective rights and obligations in the event that one of them died or 

became incapacitated. The agreement provided in pertinent part: 1) it became 

irrevocably binding "upon the death or disability of any Stockholder;" 2) the surviving 

stockholder had thirty days to elect to purchase the surviving spouse's interest. In the 

event that the surviving stockholder elected not to purchase the surviving spouse's 

interest, he was then required to sell the companies; 3) the surviving spouse was to 

receive 40% of the distributions from the companies during the first year of the 

election trigger date, 50% during the second year, and 60% during the third year and 

thereafter until the companies were sold; and, 4) the surviving stockholder owes a 

fiduciary duty to the surviving spouse in the event of a sale of the companies. 

{¶4} After Mr. Baker died in 2009, Manchi did not purchase Baker's interest, 

nor did he sell the companies. For the next three years, Manchi continued to operate 

the companies though Mrs. Baker made numerous requests that he sell them. 

{¶5} In August 2012, Manchi unilaterally reduced Mrs. Baker's 60% 

distribution entitlement back to 50% despite the plain language of the Buy-Sell 

Agreement. As the companies still had not been sold, the parties agreed to a private 

mediation in December of 2012. 
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{¶6} In mediation the parties reached an agreement; in exchange for Baker 

reducing her 60% distribution to 50%, Manchi agreed to forgo a monthly 

management fee and list the companies for sale at $10 million. A minimum offer of $8 

million was required to be accepted if one or more parties agreed. The agreement 

created an exception to the requirement that Manchi list the properties allowing him 

to purchase Baker's interest. 

{¶7} In March 2013, Manchi sent Baker a formal purchase option agreement 

which permitted Manchi to list the properties for sale, get an offer from a third party 

and then exercise the right to buy out Baker's interest, which she refused to sign. On 

March 14, 2013, Manchi retained a broker to list the companies for sale. Within a few 

months, he received approximately a dozen letters of intent in the $9 to $10 million 

range. On May 17, 2013, Manchi received an offer of $10.3 million for the companies 

and on June 4, 2013, Manchi notified Baker he wanted to purchase her interest for 

$2.5 million and retain the balance of the sales proceeds. When the sale closed, 

Manchi and Baker each received $2.5 million as a partial distribution. 

{¶8} The $1.8 million dollar balance from the sale was placed into an escrow 

account pending resolution of this matter. Manchi contended that pursuant to the 

mediation agreement Baker had received payment in full and that any remaining 

monies are his alone. Baker contended that the language of the Buy-Sell Agreement 

entitles her to half of the escrowed funds. 

{¶9} Baker filed a complaint for declaratory judgment and Manchi filed an 

answer and counterclaim. Depositions were taken and Baker filed a motion for partial 

summary judgment. Manchi filed his own cross motion for partial summary judgment. 

{¶10} The trial court granted summary judgment in favor of Baker finding that 

as a 50% general partner that she was entitled to 50% of the sale proceeds. The trial 

court determined that Manchi owed a fiduciary duty to Baker pursuant to the terms of 

the Buy-Sell Agreement, and Manchi's interpretation of the mediation agreement 

directly contradicted both agreements. 

Summary Judgment 
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{¶11} In his first of four assignments of error, Manchi asserts: 

The trial court erred in failing to consider Appellant's Cross Motion for 

Summary Judgment. 

{¶12} The trial court set the dispositive motion deadline for March 1st. Baker 

filed a motion for partial summary judgment on February 27th, which was scheduled 

for hearing on April 6th. Although Manchi requested a continuance of the hearing and 

an extension to respond to Baker's motion—and the trial court granted both—he did 

not request leave to file his own motion for summary judgment. However, not only did 

Manchi filed his opposition brief, he also filed a cross motion for partial summary 

judgment. 

{¶13} Civ.R. 56(A) and (B) provide that if an action has been set for pretrial or 

trial, parties may move for summary judgment only with leave of court. Absent an 

abuse of discretion, an appellate court will not reverse a trial court's decision to deny 

a motion for leave to file summary judgment. Blatnik v. Avery Dennison Corp., 148 

Ohio App.3d 494, 2002-Ohio-1682, 774 N.E.2d 282, ¶ 45 (11th Dist.) 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. Downie v. Montgomery, 7th Dist. No. 12 CO 43, 2013–Ohio–5552, ¶ 50; 

Blatnik, ¶ 45. 

{¶14} Manchi attempts to confuse the issue by arguing that the trial court 

granting him an extension to file an opposition brief to Baker's motion inherently 

meant that he could file his own motion for summary judgment and provides no case 

law to support this argument. Manchi missed the deadline to file a motion for 

summary judgment and did not seek leave to do so. The trial court did not abuse its 

discretion in failing to consider a motion that was not properly before it. Accordingly, 

Manchi's first assignment of error is meritless. 

Buy-Sell Agreement 
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{¶15} In his second of four assignments of error, Manchi asserts: 

The trial court erred in failing to hold that the parties' Settlement 

Agreement supersedes the Buy-Sell Agreement. 

{¶16} "[O]nce a trial court determines that a matter is appropriate for 

declaratory judgment, its holding regarding questions of law are reviewed on a de 

novo basis.” Arnott v. Arnott, 132 Ohio St.3d 401, 2012-Ohio-3208, 972 N.E.2d 586, 

¶ 13. If the terms of the contract are determined to be clear and unambiguous, the 

interpretation of the language is a question of law reviewed de novo on appeal. 

Nationwide Mutual Fire Insurance Company v. Guman Brothers Farm, 73 Ohio St.3d 

107, 108, 1995-Ohio-214, 652 N.E.2d 684. Only in the event that a term of a contract 

is determined to be ambiguous will the matter be labeled as a question of fact. Inland 

Refuse Transfer Co. v. Browning-Ferris Industries of Ohio, 15 Ohio St.3d 321, 322, 

474 N.E.2d 271 (1984). “When the language of a written contract is clear, a court 

may look no further than the writing itself to find the intent of the parties.” Sunoco, 

Inc. (R & M) v. Toledo Edison Co., 129 Ohio St.3d 397, 2011-Ohio-2720, 953 N.E.2d 

285, ¶ 37. 

{¶17} Manchi argues that the parties' mediation agreement supersedes the 

Buy-Sell Agreement. Baker argues that the trial court was correct in holding that the 

Buy-Sell Agreement became irrevocably binding upon Mr. Baker’s death. The BuySell Argument contains the following provisions: 

Section 2. Term: This agreement will be effective upon execution, and 

will remain in effect until modified, amended or terminated by mutual 

agreement of the parties in writing, however, that upon the death or 

disability of any Stockholder, this Agreement shall become irrevocably 

binding. 

Section 12. Remedies: The Surviving Stockholder and the Surviving 

Spouse/Trustee/Estate will mediate any disputes that arise under this 
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Agreement or in regard to The Companies affairs. If mediation does not 

lead to resolution of the dispute, the parties will submit the dispute to 

arbitration. Such mediation and/or arbitration shall be conducted by and 

under the rules of such organization as the parties shall agree and shall 

be binding upon all involved. If the parties to the mediation and/or 

arbitration are unable to agree on a mediator or arbitrator, each party 

will select one person to act as such and the two mediators or 

arbitrators will then select a third person to act as the third mediator or 

arbitrator. NO PARTY CAN APPEAL THE DECISION OF THE 

ARBITRATOR. 

{¶18} By its plain language the Buy-Sell Agreement became irrevocably 

binding when Mr. Baker died. However it also contemplated that there may be conflict 

between the surviving spouse and the surviving stockholder; as such, Section 12 

provided for mediation. 

{¶19} The parties engaged in mediation and reached an agreement which 

both Baker and Manchi signed. Manchi asks us to hold that the mediation agreement 

supersedes the Buy-Sell Agreement. However, the plain language of the mediation 

agreement does not support this notion; Section 6 states that "the Buy-Sell 

Agreement is also amended" which clearly indicates that the Buy-Sell Agreement 

remained in effect. More fundamentally, the mediation settlement was just that: a 

vehicle for the parties to resolve their dispute regarding the irrevocable terms of the 

Buy-Sell Agreement. And as borne out by this litigation, the issues were not resolved 

via mediation. 

{¶20} The trial court correctly held that the Buy-Sell Agreement was 

irrevocably binding and the mediation agreement was not a superseding document. 

Accordingly, Manchi's second assignment of error is meritless. 

Mediation Agreement 

{¶21} In his third of four assignments of error, Manchi asserts: 
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The trial court erred in failing to determine that the parties' Settlement 

Agreement included an unconditional and irrevocable option in favor of 

James P. Manchi. 

{¶22} Within the mediation settlement are two relevant provisions: 

 3. The listings shall be for periods not to exceed 1 year and 

relisted consecutively with the same or different realtor upon same 

terms. Listing Agreement shall have exception for Manchi's option set 

forth in #8. 

 8. Manchi has option to purchase all of Baker's interests in the 

companies for 2.5M for 1 year from 1/1/13 and for 2.75M from 1/1/14 

through 6/30/14. 

{¶23} Manchi erroneously argues that he exercised his option "months prior 

to reaching an agreement to sell the apartment complexes" and that there were no 

limits placed on him regarding selling the properties after expressing his intent to 

purchase Baker's interest. 

{¶24} The Buy-Sell Agreement not only placed limits on Manchi, it imposed 

upon him a fiduciary duty to Baker. Further, the plain language of the mediation 

agreement provided that Manchi's option to purchase was an exception; in the event 

Manchi exercised his option to purchase Baker's interest, the listing agreement 

terminated. As such, the trial court correctly held that Manchi could not 

simultaneously sell the companies and buy out Baker's interest. Accordingly, 

Manchi's third assignment of error is meritless. 

Fiduciary Duty

{¶25} In his final of four assignments of error, Manchi asserts: 
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The Trial Court erred in holding that Appellant breached fiduciary duties 

when Appellee made no such claim in her Complaint and presented no 

such argument in her Motion for Summary Judgment. 

{¶26} Manchi argues that Baker has waived the fiduciary duty argument 

because it was not included in the complaint and motion for summary judgment. 

Baker argues that she filed a complaint for declaratory judgment and the duty was 

contractual as it was contained in the Buy-Sell Agreement. She further contends that 

she included the fiduciary duty argument in the motion for summary judgment. 

{¶27} Baker attached a copy of the Buy-Sell Agreement to her declaratory 

judgment complaint in which she requested judgment "pursuant to the terms of the 

Buy-Sell Agreement." She specifically pled: "[t]he surviving stockholder shall have the 

primary and fiduciary responsibility to sell The Companies." Further, she specifically 

argued in her summary judgment motion that the Buy-Sell Agreement contained a 

provision that the surviving shareholder owes the surviving spouse a fiduciary duty. 

Thus, Baker did not waive this argument, and the trial court correctly held that the 

Buy-Sell Agreement imposed a fiduciary duty upon Manchi when he was selling the 

companies. Accordingly, Manchi's fourth assignment of error is meritless. 

{¶28} As the trial court did not err in failing to consider Manchi's cross motion 

for summary judgment, nor err in awarding Baker half of the proceeds from the sale 

of the companies, the judgment of the trial court is affirmed. 

Donofrio, J., concurs. 

Waite, J., concurs.