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NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
BRIEF IN OPPOSITION
January 16, 2024 11:49
By: STEPHEN S. ZASHIN 0064557
Confirmation Nbr. 3062344
FRANK J. GORI CV 23 973767
vs.
Judge: SHERRIE MIDAY
PAUL E. KIEBLERIV, ET AL.
Pages Filed: 25
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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
FRANK J. GORI, CASE NO. CV 23 973767
Plaintiff, JUDGE SHERRIE MIDAY
v. PLAINTIFF’S BRIEF IN OPPOSITION
TO PPCP DEFENDANTS’
PAUL E. KIEBLER IV, et al., MOTION FOR JUDGMENT ON THE
PLEADINGS
Defendants.
Plaintiff, Frank J. Gori (“Plaintiff”), by and through counsel, respectfully requests that this
Honorable Court deny the Motion for Judgment on the Pleadings filed by Defendants Paul E.
Kiebler, Pepper Pike Capital Partners, LLC, Pepper Pike Acquisitions, LLC, Pepper Pike Staffing,
LLC, Pepper Pike Property Management, LLC, and Pepper Pike Construction, LLC (hereinafter
“PPCP Defendants”). PPCP Defendants challenge Count IV, breach of personal guaranty, and
Count VI, declaratory judgment, of Plaintiff’s Second Amended Complaint (“SAC”). The
existence of significant factual issues surrounding these causes of action make PPCP’s
Defendants’ Motion baseless, and therefore, this Court should deny PPCP Defendants’ Motion for
Judgment on the Pleadings for the reasons set forth below.
I. FACTUAL BACKGROUND
Plaintiff’s Second Amended Complaint tells the story of two sophisticated businessmen,
neighbors, and former friends. Plaintiff and Kiebler had a personal relationship before Plaintiff
began employment as CEO for Defendants on August 3, 2020. [See Second Amended Compl. ¶¶
113, 132]. Kiebler hired and employed Plaintiff as CEO of Pepper Pike Capital Partners for just
over one year until Defendant Kiebler abruptly terminated Plaintiff’s employment. [See Second
Amended Compl. ¶¶ 113, 132].
Plaintiff’s compensation package as CEO consisted of a combined salary and increasing
investment interests and incentives that accrued and were owing based on the duration of
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Plaintiff’s employment. [See Second Amended Compl. ¶¶ 121, 125]. The three levels of increasing
incentives were scheduled for Plaintiff’s first six months of employment, months 7 through 12 of
Plaintiff’s employment, and after 12 months of Plaintiff’s employment with incentives increasing
at each level. [See Second Amended Compl. ¶ 122-124; see also Exhibits A, B, and C to Second
Amended Compl.].
Kiebler presented Plaintiff with two spreadsheets reflecting Kiebler’s calculations of
Plaintiff’s projected “deal”-based compensation. [See Second Amended Compl. ¶ 127; see also
Exhibits D and E to Second Amended Compl.]. In sum, Plaintiff is entitled to the highest level of
incentive compensation as documented by Kiebler because Plaintiff remained employed as CEO
for more than one year.
On January 12, 2021, Kiebler presented Plaintiff with a Financial Statement, dated
December 31, 2020, that accounted for Kiebler’s assets, liabilities, and net worth. [See Exhibit F
to Second Amended Compl.].1 Kiebler’s net worth at that time and as presented to Plaintiff was
more than $50 million. [See Second Amended Compl. ¶ 162]. Kiebler stated and presented the
Financial Statement to Plaintiff as his personal guaranty that he had the financial assets to ensure
that Plaintiff would receive his full compensation as CEO of PPCP, as well as the full return of his
personal investments as a General Partner in properties owned by the PPCP Defendants. [See
Second Amended Compl. ¶ 163.]
Kiebler, by delivering the Financial Statement to Plaintiff, absolutely and unconditionally
pledged his personal assets and personally guaranteed Plaintiff’s employment agreement,
including, without limitation, all obligations, payments, and full performance. [See Second
Amended Compl. ¶ 261]. After presenting Plaintiff with the Financial Statement, Defendant
1 Plaintiff has contemporaneously filed with this Brief a motion for leave to file an unredacted copy of Exhibit F under
seal.
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Kiebler partially performed the terms of Plaintiff’s incentive compensation when he issued two
checks to Plaintiff for acquisition fees of two properties in the amounts of $10,125.00 and
$49,100.00. [See Second Amended Compl. ¶¶ 147-148]. Defendant Kiebler issued these checks
from Pepper Pike Acquisition Associates, LLC’s account—a non-PPCP account. [Id.].
Even though Plaintiff performed all of his obligations under his employment agreement,
Kiebler terminated Plaintiff’s employment on August 13, 2021. [See Second Amended Compl. ¶¶
190-197]. Kiebler’s own projections show that Plaintiff’s compensation owed is valued at more
than $7 million, not including more than $100,000 owed to Plaintiff under his employment
agreement for unpaid management, transaction, and construction fee compensation, and 200 hours
of unpaid accrued paid time off. [See Second Amended Compl. ¶ 198]. Plaintiff filed the Second
Amended Complaint against all defendants to obtain, inter alia, the entirety of the compensation
that he earned under the employment agreement. [See Second Amended Compl. ¶ 191].
In refusing to compensate Plaintiff and comply with the terms of Plaintiff’s employment
agreement and personal guaranty, Defendant Kiebler has not only caused Plaintiff significant harm
and damages, but also placed the structure, ownership, management, interrelationships, and control
of the numerous corporate entities he has created at issue. Defendant Kiebler, in his personal
capacity or as Trustee of the Paul E. Kiebler Revocable Trust, is the manager, owner, beneficiary,
member, controlling figurehead and/or shareholder of all PPCP Defendants. [See PPCP
Defendants’ Answer ¶¶ 6-7, 10-11, 13-20, 22-23, 41]. Plaintiff has sufficiently pled allegations
that Defendant Kiebler and the PPCP Defendants are alter-egos, and therefore, PPCP Defendants’
motion must be denied.
II. UNDISPUTED FACTS BEFORE THE COURT
On the closed pleadings before the Court are the following undisputed facts. Facts related
to the “PPCP Defendants” are in bold typeface:
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1. Newly added Defendant Jody Kiebler is Manager of Suffolk Acquisition, LLC (SAC ¶
5, PPCP Defendants’ Answer to SAC ¶ 5);
2. Newly added Defendant Paul E. Kiebler Revocable Trust (dated January 13, 2014)
(“Kiebler Trust”) is the personal trust of Defendant Kiebler that owns Pepper
Pike Capital Partners (SAC ¶ 6, Family Defendants’ Answer to SAC ¶ 6, PPCP
Defendants’ Answer to SAC ¶ 6);
3. Defendant Kiebler is both the Trustee and sole beneficiary of the Kiebler Trust
(SAC ¶ 7; Family Defendants’ Answer to SAC ¶ 7; PPCP Defendants’ Answer to SAC
¶ 7);
4. Defendant Suffolk Family Trust is the personal trust of Defendant Kiebler and
Defendant Jody Kiebler (SAC ¶ 8, Family Defendants’ Answer to SAC ¶ 8, PPCP
Defendants’ Answer to SAC ¶ 8);
5. Defendant PPCP is an active Ohio business with one member: the Kiebler Trust
(SAC ¶ 10; PPCP Defendants’ Answer to SAC ¶ 10);
6. Defendant PPCP is owned one hundred percent (100%) by the Kiebler Trust
(SAC ¶ 11; Family Defendants’ Answer to SAC ¶ 11; PPCP Defendants’ Answer to
SAC ¶ 11);
7. Defendant Pepper Pike Staffing, LLC is a subsidiary of Defendant PPCP (SAC ¶
13, PPCP Defendants’ Answer to SAC ¶ 13);
8. Defendant Pepper Pike Construction, LLC is a subsidiary of Defendant PPCP
(SAC ¶ 15, PPCP Defendants’ Answer to SAC ¶ 15);
9. Defendant Pepper Pike Management, LLC is a subsidiary of Defendant PPCP
(SAC ¶ 17, PPCP Defendants’ Answer to SAC ¶ 17);
10. Defendant Kiebler is Manager and President of Defendant Pepper Pike
Management, LLC (SAC ¶ 19, PPCP Defendants’ Answer to SAC ¶ 19);
11. Defendant Pepper Pike Acquisitions, LLC is a subsidiary of Defendant PPCP
(SAC ¶ 20; PPCP Defendants’ Answer to SAC ¶ 20);
12. Defendant Kiebler is the Manager of Pepper Pike Acquisitions, LLC (SAC ¶ 23,
PPCP Defendants’ Answer to SAC ¶ 23);
13. Defendant Kiebler is the Manager of Pepper Pike Acquisition Associates, LLC
(SAC ¶ 24, Family Defendants’ Answer to SAC ¶ 24; PPCP Defendants’ Answer to
SAC ¶ 24);
14. Defendant Pepper Pike Acquisition Associates, LLC is the Manager of Pepper
Riverbend Investors, LLC (SAC ¶ 26, Family Defendants’ Answer to SAC ¶ 26;
PPCP Defendants’ Answer to SAC ¶ 26);
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15. Defendant Kiebler founded Defendant PPCP and its predecessor APM
Management (SAC ¶ 41, PPCP Defendants’ Answer to SAC ¶ 41);
16. Defendant Mount Prospect Greens Owner, LLC obtained a promote distribution of
more than $12 million from the underlying sale of the property (SAC ¶ 48, PPCP
Defendants’ Answer to SAC ¶ 48);
17. Defendant Fall Creek Promote, LLC2 obtained a promote distribution of more than $15
million for the underlying sale of the Residences at 56 property in Indianapolis, Indiana
(SAC ¶ 50, PPCP Defendants’ Answer to SAC ¶ 50);
18. Defendant Kiebler through Pepper Pike Acquisition Associates, LLC made a $50,000
capital contribution towards Defendant Fall Creek Promote, LLC (SAC ¶ 51, Family
Defendants’ Answer to SAC ¶ 51, PPCP Defendants’ Answer to SAC ¶ 51);
19. Defendant Mavgun, LLC is an Ohio limited liability company owned and created by
Kiebler and/or his spouse Jody Kiebler through which Kiebler owns personal property
including the real property located at 11125 Gulf Shore Drive, Naples, Florida 34108
purchased by Kiebler in August 2021 (SAC ¶ 56, PPCP Defendants’ Answer to SAC ¶
56);
20. Defendant PJK Family Management, LLC is an Ohio limited liability company owned
and created by Kiebler through which Kiebler owns personal property including the
real property located at 2916 Nottingham Lane, Hunting Valley, Ohio 44022 purchased
by Kiebler in May 2018 (SAC ¶ 57, Family Defendants’ Answer to SAC ¶ 57, PPCP
Defendants’ Answer to SAC ¶ 57);
21. Defendant Nottingham Racing, LLC is an Ohio limited liability company owned and
created by Kiebler through which Kiebler owns personal property and various racing
automobiles including but not limited to at least one Ferrari and one Aston Martin (SAC
¶ 58, Family Defendants’ Answer to SAC ¶ 58, PPCP Defendants’ Answer to SAC ¶
58);
22. The sole Member of Defendant Suffolk Acquisition, LLC is Defendant Suffolk Family
Trust (SAC ¶ 60, Family Defendants’ Answer to SAC ¶ 60, PPCP Defendants’ Answer
to SAC ¶ 60);
23. Defendant Kiebler is the Manager of Defendant Pepper Pike Acquisition
Associates, LLC (SAC ¶ 63, Family Defendants’ Answer to SAC ¶ 63, PPCP
Defendants’ Answer to SAC ¶ 63);
2 Defendant Fall Creek Promote, LLC was named as a New Party Defendant in Plaintiff’s Second Amended Complaint
filed on October 27, 2023. Due to an oversight, Fall Creek Promote, LLC was not listed in the caption as a “New Party
Defendant.” Plaintiff has contemporaneously filed a motion for leave instanter to amend only the caption of the Second
Amended Complaint to include Defendant Fall Creek Promote, LLC and the address of its statutory agent.
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24. Defendant Pepper Pike Acquisition Associates, LLC is the owner of Defendant
Pepper Riverbend Promote, LLC (SAC ¶ 64, Family Defendants’ Answer to SAC ¶
64, PPCP Defendants’ Answer to SAC ¶ 64);
25. Defendant Pepper Pike Acquisition Associates, LLC is the Manager of Defendant
Pepper Riverbend Promote, LLC (SAC ¶ 65, Family Defendants’ Answer to SAC ¶
65, PPCP Defendants’ Answer to SAC ¶ 65);
26. Defendant Pepper Pike Acquisition Associates, LLC is the Manager of Pepper
Warren Harbor Promote, LLC (SAC ¶ 68, Family Defendants’ Answer to SAC ¶
68, PPCP Defendants’ Answer to SAC ¶ 68);
27. Defendant Suffolk Family Trust previously owned Defendant Camelot East Holdings,
LLC (SAC ¶ 70, Family Defendants’ Answer to SAC ¶ 70);
28. Defendant Suffolk Family Trust is and/or was the Manager of Defendant Camelot East
Holdings, LLC (SAC ¶ 71, Family Defendants’ Answer to SAC ¶ 71);
29. Defendant Suffolk Family Trust is the co-owner of Defendant Farmington Promote,
LLC (SAC ¶ 73, Family Defendants’ Answer to SAC ¶ 73);
30. Defendant Suffolk Family Trust is the Co-Manager of Defendant Farmington Promote,
LLC (SAC ¶ 74, Family Defendants’ Answer to SAC ¶ 74);
31. Defendant Pepper Pike Acquisition Associates, LLC is the co-owner of Defendant
Hines Park Promote, LLC (SAC ¶ 76, Family Defendants’ Answer to SAC ¶ 76);
32. Defendant Pepper Pike Acquisition Associates, LLC is the Manager of Defendant
Hines Park Promote, LLC (SAC ¶ 77, Family Defendants’ Answer to SAC ¶ 77,
PPCP Defendants’ Answer to SAC ¶ 77);
33. Defendant Pepper Pike Acquisition Associates, LLC is the co-owner of Defendant
Plymouth Promote, LLC (SAC ¶ 79, PPCP Defendants’ Answer to SAC ¶ 79);
34. Defendant Pepper Pike Acquisition Associates, LLC is the Manager of Defendant
Plymouth Promote, LLC (SAC ¶ 80, Family Defendants’ Answer to SAC ¶ 80, PPCP
Defendants’ Answer to SAC ¶ 80);
35. Defendant Pepper Pike Acquisition Associates, LLC is the co-owner of Defendant
Riverbend Promote Investors, LLC (SAC ¶ 82, Family Defendants’ Answer to SAC
¶ 82);
36. Defendant Pepper Pike Acquisition Associates, LLC is the Manager of Defendant
Pepper Riverbend Promote Investors, LLC (SAC ¶ 83, Family Defendants’ Answer
to SAC ¶ 83, PPCP Defendants’ Answer to SAC ¶ 83);
37. Defendant Pepper Pike Acquisition Associates, LLC is the co-owner of Defendant
Riverbend Promote, LLC (SAC ¶ 85, Family Defendants’ Answer to SAC ¶ 85);
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38. Defendant Pepper Pike Acquisition Associates, LLC is the Manager of Defendant
Riverbend Promote, LLC (SAC ¶ 86, Family Defendants’ Answer to SAC ¶ 86, PPCP
Defendants’ Answer to SAC ¶ 86);
39. Defendant Pepper Pike Acquisition Associates, LLC is the owner of Defendant
Southgate Green Promote, LLC (SAC ¶ 88, Family Defendants’ Answer to SAC ¶
88);
40. Defendant Pepper Pike Acquisition Associates, LLC is the Manager of Defendant
Southgate Green Promote, LLC (SAC ¶ 89, Family Defendants’ Answer to SAC ¶
89, PPCP Defendants’ Answer to SAC ¶ 89);
41. Defendant Pepper Pike Acquisition Associates, LLC is the owner of Defendant
Town and Country Promote, LLC (SAC ¶ 91, Family Defendants’ Answer to SAC
¶ 91, PPCP Defendants’ Answer to SAC ¶ 91);
42. Defendant Pepper Pike Acquisition Associates, LLC is the Manager of Defendant
Town and Country Promote, LLC (SAC ¶ 92, Family Defendants’ Answer to SAC
¶ 92, PPCP Defendants’ Answer to SAC ¶ 92);
43. Defendant Pepper Pike Acquisition Associates, LLC is the owner of Defendant
Nottingham Foundation Promote, LLC (SAC ¶ 96; Family Defendants’ Answer to
SAC ¶ 96);
44. Defendant Pepper Pike Acquisition Associates, LLC is the Manager of Defendant
Nottingham Foundation Promote, LLC (SAC ¶ 97, Family Defendants’ Answer to
SAC ¶ 97, PPCP Defendants’ Answer to SAC ¶ 97);
45. Defendant Pepper Pike Acquisition Associates, LLC is the co-owner of Defendant
Fountain Parc Promote, LLC (SAC ¶ 99, Family Defendants’ Answer to SAC ¶ 99);
46. Defendant Pepper Pike Acquisition Associates, LLC is the Manager of Defendant
Fountain Parc Promote, LLC (SAC ¶ 100, Family Defendants’ Answer to SAC ¶
100, PPCP Defendants’ Answer to SAC ¶ 100);
47. Defendant Pepper Pike Acquisition Associates, LLC is the Manager of Defendant
Mount Prospect Greens Owner, LLC (SAC ¶ 102, Family Defendants’ Answer to
SAC ¶ 102, PPCP Defendants’ Answer to SAC ¶ 102);
48. Defendant Pepper Pike Acquisition Associates, LLC is the co-owner of Defendant
9 on Canal Promote, LLC (SAC ¶ 104, Family Defendants’ Answer to SAC ¶ 104);
49. Defendant Pepper Pike Acquisition Associates, LLC is the Manager of Defendant
9 on Canal Promote, LLC (SAC ¶ 105, Family Defendants’ Answer to SAC ¶ 105,
PPCP Defendants’ Answer to SAC ¶ 105);
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50. Defendant Suffolk Family Trust is the sole Member of Defendant Fall Creek Promote,
LLC (SAC ¶ 107, Family Defendants’ Answer to SAC ¶ 107, PPCP Defendants’
Answer to SAC ¶ 107);
51. At the time Plaintiff commenced employment as CEO of PPCP, PPCP had nine
existing properties under development known as Camelot East (Cincinnati),
Crossings of Canton (Canton, MI), Mt. Prospect Greens (Chicago), Heritage of
Plymouth (Michigan), Retreat at Farmington Hills (Michigan), Riverbend
Apartments (Indianapolis), Residences on 56th (Indianapolis), Woodlands
Apartments (Toledo), and Warren Harbor (Indianapolis) (SAC ¶ 141, PPCP
Defendants’ Answer to SAC ¶ 141);
52. During Plaintiff’s tenure as CEO, PPCP acquired and began development on at
least four additional properties known as Southgate Green (Michigan), Hines
Park Place (Michigan), Fountain Parc (Indianapolis), 9 on Canal (Indianapolis)
(SAC ¶ 142, PPCP Defendants’ Answer to SAC ¶ 142);
53. Plaintiff invested money in properties acquired by PPCP (SAC ¶¶ 153-160, Family
Defendants’ Answer to SAC ¶¶ 153-160, PPCP Defendants’ Answer to SAC ¶¶ 153
160); and
54. Defendant Kiebler was personal trustee of Plaintiff’s Irrevocable Trust (SAC ¶¶
164, 236, PPCP Defendants’ Answer to SAC ¶ 164, 236, Family Defendants’ Answer
to SAC ¶ 236).
III. LEGAL STANDARD
The standard applied under Civ.R. 12(C) for a motion for judgment on the pleadings
requires a determination that no material factual issues exist and that PPCP Defendants are entitled
to judgment as a matter of law. State ex rel. Midwest Pride IV v. Pontious, 75 Ohio St.3d 565, 570
(1996). Pursuant to Rule 12(C), dismissal is appropriate only if this Court: (1) construes the
material allegations in the complaint, with all reasonable inferences to be drawn therefrom, in favor
of Plaintiff as true, and (2) finds beyond doubt that Plaintiff could prove no set of facts in support
of his claim that would entitle him to relief. Vinicky v. Pristas, 163 Ohio App.3d 508, 510, 2005-
Ohio-5196, 839 N.E.2d 88 (8th Dist.). The very nature of a Civ.R. 12(C) motion is specifically
designed to resolve solely questions of law; the existence of factual issues precludes the granting
of a motion for judgment on the pleadings. See id. This Court is restricted solely to the allegations
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in the complaint and answer, as well as any documents properly attached as exhibits to those
pleadings, when considering the motion. Crenshaw v. Howard, 8th Dist. Cuyahoga No. 110898,
2022-Ohio-3914, 200 N.E.3d 355, 2022 Ohio App. LEXIS 3686, ¶ 13 (Nov. 3, 2022).
Additionally, Defendant Nottingham Foundation Promote, LLC (represented by separate
counsel) already unsuccessfully sought to be dismissed from this case on a Motion for Judgment
on the Pleadings filed in response to Plaintiff’s First Amended Complaint, which this Court denied
by Journal Entry dated June 29, 2023. This Court found that material factual issues existed
regarding alter-ego and/or integrated enterprise which precluded judgment in favor of Nottingham.
In its Decision and Order this Court held:
The standard applied under Civ.R. 12(C) Motion for Judgment on the Pleadings
requires a determination that no material factual issues exist and that the movant is
entitled to judgment as a matter of law. State ex rel. Midwest Pride IV, Inc. v.
Pontious, 75 Ohio St. 3d 565, 1996-Ohio-459, 664 N.E.2d 931 (1996). Pursuant to
Civ.R. 12(C), dismissal is appropriate where a Court (1) construes the material
allegations in the Complaint, with all reasonable inferences to be drawn therefrom,
in favor of the nonmoving party as true, and (2) finds beyond doubt that the Plaintiff
could prove no set of facts in support of his claim that would entitle him to relief.
Vinicky v. Pristas, 163 Ohio App. 3d 508, 2005-Ohio-5196, 839 N.E.2d 88, ¶ 3 (8th
Dist.).
Having construed the material allegations in the Complaint, with all reasonable
inferences to be drawn therefrom in favor of the nonmoving party as true, the Court
finds that material factual issues exist and that the movant Defendant Nottingham
Foundation Promote, LLC is not entitled to judgment as a matter of law under Civ.
R. 12(C).
For the reasons set forth below, this Court must likewise deny the PPCP Defendants’
Motion for Judgment on the Pleadings. Plaintiff has plead operative facts to demonstrate that he
faces significant risk that the Defendants have and will continue to use their interrelated web of
alter-ego corporate entities that are under-capitalized and dominated by Defendant Kiebler to
disburse, distribute, spend, transfer, or otherwise dispose of the promote/profit funds from the sale
of properties for which Plaintiff is owed considerable compensation. Plaintiff has already been
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harmed by the sale of at least two properties.3 Plaintiff will continue be harmed as other properties
are sold and Plaintiff is not compensated for promote/profits generated by those sales. Properly
construing all reasonable inferences in favor of Plaintiff, PPCP Defendants’ motion wholly fails.
Only through the remedy of a declaratory judgment finding alter-ego and/or integrated enterprise
and piercing the corporate veils of the Defendant entities can this Court adequately protect
Plaintiff.
IV. LAW & ARGUMENT
A. Defendant Kiebler’s Personal Guaranty to Plaintiff Survives Review Under 12(C) on
Any Contractual Theory.
A guaranty is a promise by one person to pay the debts of another. Valspar Corp. v. Nguyen,
5th Dist. Delaware No. 11 CAE 12 0116, 2012-Ohio-2710, 2012 Ohio App. LEXIS 2379, ¶ 15
(June 13, 2012). There is “no formulaic location required for the formation of a guaranty” so long
as the words used create a promise to answer for the debts of another. Nesco Sales & Rental v.
Superior Elec. Co., 10th Dist. Franklin No. 06AP-435, 2007-Ohio-844, 2007 Ohio App. LEXIS
735, ¶ 11 (Mar. 1, 2007). Ohio courts interpret personal guaranties in the same manner as
interpreting contracts. Jae Co. v. Heitmeyer Builders, Inc., 10th Dist. Franklin No. 08AP-1127,
2009-Ohio-2851, 2009 Ohio App. LEXIS 2412, ¶ 12 (June 16, 2009), citing Stone v. Nat’l City
Bank, 106 Ohio App.3d 212, 217 (8th Dist. 1995).
Ohio recognizes three types of contracts: express, implied-in-fact, and implied-in-law.
Legros v. Tarr, 44 Ohio St.3d 1, 6 (1989). Plaintiff does not have to allege any particular legal
theory to prove his claims in his Second Amended Complaint. See Johnson v. City of Shelby, 574
U.S. 10, 11-12 (2014); Midwest Terminals of Toledo Int’l, Inc. v. Longshoremen’s Ass’n, No. 22
3 The Undisputed Facts establish that Defendant Mount Prospect Greens Owner, LLC obtained a promote distribution
of more than $12 million from the underlying sale of the property, and Defendant Fall Creek Promote, LLC obtained
a promote distribution of more than $15 million for the underlying sale of the Residences at 56 property in
Indianapolis, Indiana. See Section II, ¶¶ 16-17, above.
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1330, 2023 U.S. App. LEXIS 18371, at 16 (6th Cir. July 18, 2023). Plaintiff need only provide a
“short and plain statement of the claim” showing that he is entitled to relief. Ohio Civ.R. 8(A).
On January 12, 2021, Defendant Kiebler presented Plaintiff with a signed personal
Financial Statement (dated December 31, 2020) that listed Defendant Kiebler’s personal financial
assets, liabilities, and net worth. [See Exhibit F to Second Amended Compl.]. Plaintiff has
sufficiently alleged that Defendant Kiebler personally guaranteed payment to Plaintiff of the
compensation promised under the employment agreement. [See Second Amended Compl. ¶ 261].
Because Plaintiff sufficiently alleged facts to support his claim regarding Defendant Kiebler’s
personal guaranty under any contractual theory (express, implied-in-fact, and implied-in-law), this
Court must deny PPCP Defendants’ 12(C) Motion.
i. Defendant Kiebler’s Personal Guaranty is an Express Contract.
In an express contract, the parties assent to the terms as actually expressed through offer
an acceptance. Legros, 44 Ohio St.3d at 6. Courts must interpret clear and unambiguous personal
guaranties so as to carry out the intent of the parties. Valspar Corp., 5th Dist. Delaware No. 11
CAE 12 0116, 2012-Ohio-2710, ¶ 15. A personal guaranty is ambiguous if it is equally capable of
two or more plausible meanings. Sherwin Williams Co. v. Chem-Fab, 6th Dist. Lucas No. L-05-
1375, 2006-Ohio-3864, 2006 Ohio App. LEXIS 3831, ¶ 10 (July 28, 2006). A party may offer
extrinsic or parol evidence to give effect to the parties’ intentions where a personal guaranty is
ambiguous. See Kelly v. Med. Life Ins. Co., 31 Ohio St.3d 130, 132 (1987).
a. Defendant Kiebler’s Personal Guaranty is an Unambiguous Promise
to Compensate Plaintiff Personally.
PPCP Defendants have asserted that the personal guaranty cannot be an express contract
because there are no terms and the personal guaranty fails to satisfy the statute of frauds. PPCP
Defendants’ argument fails for two reasons. First, Defendant Kiebler partially performed on April
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20, 2021, when Defendant Kiebler issued two separate checks to Plaintiff from the account of
Pepper Pike Acquisition Associates, LLC – a non-PPCP Defendant that Kiebler indisputably
managed – in the amounts of $10,125.00 and $49,100.00 as acquisition fees of two properties. [See
Second Amended Compl. ¶¶ 147-148]. Defendant Kiebler’s partial performance of Plaintiff’s
employment agreement after presenting Plaintiff with the personal guaranty renders compliance
with the statute of frauds’ writing requirement unnecessary. TLOA Acquisitions, L.L.C. v.
Unknown Heirs, 8th Dist. Cuyahoga No. 110002, 2021-Ohio-3678, 179 N.E.3d 246, ¶ 16 (Oct. 14,
2021) (“[T]he equitable doctrine of partial performance [is] an exception to the statute of frauds”
and “is applied in situations where it would be inequitable to permit the statute of frauds to operate
where the acts done sufficiently establish the alleged agreement to provide a safeguard against
fraud in lieu of the statutory requirements.”).
Second, even if Defendant Kiebler’s personal guaranty must satisfy the statute of frauds, a
formal contract is not necessary. See R.C. § 1335.05 (requiring at least a “memorandum or note
thereof” concerning a debt to be in writing and signed by the party to be charged to satisfy the
statute). Any signed memorandum will satisfy the statute of frauds so long as it: (1) identifies the
subject matter of the agreement; (2) establishes that a contract has been made; and (3) states the
essential terms with reasonable certainty. Busler v. D & H Mfg., 81 Ohio App.3d 385, 390 (10th
Dist. 1992). In addition, “[a] guaranty is not rendered ambiguous by the absence of certain terms
if the surrounding circumstances and the object intended to be accomplished is readily apparent
from the document itself.” SMS Fin. 30, L.L.C. v. Frederic D. Harris, M.D., Inc., 8th Dist.
Cuyahoga No. 105710, 2018-Ohio-2064, 112 N.E.3d 395, ¶ 38 (May 24, 2018).
Defendant Kiebler’s Financial Statement identifies his personal financial assets, liabilities,
and net worth in writing, and was signed by Defendant Kiebler—the party to be charged—on
January 12, 2021. Defendant Kiebler’s Financial Statement may be construed as a “memorandum
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or note thereof” because it identifies Defendant Kiebler’s personal assets (the subject matter of the
personal guaranty), demonstrates that Defendant Kiebler has pledged his assets to Plaintiff through
delivery of the Financial Statement to Plaintiff, and does not limit the amount of liability that
Defendant Kiebler is undertaking in his personal guaranty to Plaintiff. See R.C. § 1335.05; Busler,
81 Ohio App.3d at 390. Defendant Kiebler presented to Plaintiff the Financial Statement showing
he was worth more than $50 million. [See Second Amended Compl. ¶ 162].
Moreover, the underlying circumstances in which Defendant Kiebler delivered the
Financial Statement to Plaintiff support that Defendant Kiebler intended to pledge his personal
assets to Plaintiff under Plaintiff’s employment agreement. [See Second Amended Compl. ¶¶ 179,
161-163, 260-261]. Specifically, Plaintiff has alleged as follows in the Second Amended
Complaint:
SAC ¶ 161 - On January 12, 2021, shortly after Plaintiff made a substantial
$200,000 personal cash advance to PPCP, Kiebler gave Plaintiff a signed copy of
Kiebler’s personal Financial Statement dated December 31, 2020. A true and exact
copy of Kiebler’s redacted personal Financial Statement is attached as Exhibit F.
SAC ¶ 162 - Kiebler represented to Plaintiff on Exhibit F that as of January 12,
2021, Kiebler’s personal Net Worth at that time as presented to Plaintiff was more
than $50 million.
SAC ¶ 163 - Kiebler stated and presented to Plaintiff his personal guaranty that he
had the financial assets to ensure that Plaintiff would receive his full compensation
as CEO of PPCP as well as the full return on his personal investments as a General
Partner in properties owned by the PPCP Defendants.
Taking all of Plaintiff’s allegations as true and construing all reasonable inferences in favor
of Plaintiff as required under Civ.R. 12, Plaintiff has sufficiently pled that Defendant Kiebler made
an unambiguous personal guaranty to Plaintiff that satisfies the statute of frauds. Therefore, this
Court must deny Defendant PPCP’s Motion for Judgment on the Pleadings.
b. If the Court Determines Defendant Kiebler’s Personal Guaranty is
Ambiguous, then Extrinsic or Parol Evidence Can Determine
Defendant Kiebler’s Intent When He Presented Plaintiff with the
Personal Guaranty.
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If this Court finds that two or more plausible interpretations regarding Defendant Kiebler’s
personal guaranty exist, then it should evaluate extrinsic evidence—including testimony of the
parties—to interpret the parties’ intent surrounding Defendant Kiebler’s personal guaranty. See
Sherwin Williams Co. v. Chem-Fab, 6th Dist. Lucas No. L-05-1375, 2006-Ohio-3864, 2006 Ohio
App. LEXIS 3831, ¶ 10 (July 28, 2006); Kelly v. Med. Life Ins. Co., 31 Ohio St.3d 130, 132 (1987);
Camardo v. Timm, 8th Dist. Cuyahoga No. 57795, 1991 Ohio App. LEXIS 2001, at 4 (May 2,
1991) (“Parol evidence and testimony of the parties may be considered when the language of [a
personal guaranty] is ambiguous and subject to more than one interpretation.”).
Because intent is a question of fact, a court cannot determine the intent of the parties
regarding a personal guaranty on a motion for judgment on the pleadings. First Nat’l Bank v.
Martenies, 6th Dist. Lucas No. L-88-251, 1989 Ohio App. LEXIS 3736, at 6 (Sept. 29, 1989); N.
Frozen Foods, Inc. v. Picciotti, 8th Dist. Cuyahoga No. 95493, 2011-Ohio-2399, 2011 Ohio App.
LEXIS 2054, ¶ 13 (May 19, 2011). Nor can a court determine the admissibility of extrinsic
evidence at this stage. Viking & Worthington Steel Enter., L.L.C. v. James, 11th Dist. Geauga No.
2010-G-2971, 2011-Ohio-1714, 2011 Ohio App. LEXIS 1506, ¶¶ 32-33 (Apr. 8, 2011) (reversing
a motion to dismiss because a court must evaluate the admissibility of parol or extrinsic evidence
that goes “to the very existence of a contract” after development of the facts through discovery).
Accordingly, PPCP Defendants cannot obtain judgment in their favor where ambiguity exists and
the Court must construe extrinsic evidence, which are factual determinations—not issues of law.
Furthermore, this Court must construe all reasonable inferences in favor of Plaintiff, which defeats
PPCP Defendants’ present Motion.
ii. In the Alternative, Plaintiff has Alleged Sufficient Facts that Defendant
Kiebler’s Personal Guaranty is an Implied-In-Fact Contract.
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Even if this Court finds that Defendant Kiebler’s personal guaranty is not an express
contract, Plaintiff has sufficiently alleged facts that it is an implied-in-fact contract. Alleging that
a personal guaranty is an implied-in-fact contract is a viable legal theory. See, e.g., Bayer v.
Nachtrab, 6th Dist. Lucas No. L-13-1209, 2014-Ohio-5586, 2014 Ohio App. LEXIS 5406 (Dec.
19, 2014); Alliant Food Servs. v. Powers, 8th Dist. Cuyahoga No. 82189, 2003-Ohio-4193, 2003
Ohio App. LEXIS 3729 (Aug. 5, 2003). In an implied-in-fact contract, Plaintiff “need not show
that the parties formally exchanged promises.” MMK Group, LLC v. SheShells Co., LLC, 591 F.
Supp. 2d 944, 958 (N.D. Ohio 2008). Rather, an implied-in-fact contract is shown by the
surrounding circumstances that make it inferable that the contract exists as a matter of tacit
understanding. Legros v. Tarr, 44 Ohio St.3d 1, 6-7 (1989). This is a low threshold. Plaintiff need
only show that the circumstances surrounding the parties’ transactions make it “reasonably
certain” that they intended an agreement. MMK Group, LLC, 591 F. Supp. 2d at 958-59, citing
Lucas v. Costantini, 13 Ohio App.3d 367, 369, 469 N.E.2d 927, 929 (1983). Whether a personal
guaranty exists hinges on the intent of the parties. First Nat’l Bank v. Martenies, 6th Dist. Lucas
No. L-88-251, 1989 Ohio App. LEXIS 3736, at 6 (Sept. 29, 1989). Intent is a question of fact that
a court cannot decide at this stage of the proceeding. See id. (reversing a grant of summary
judgment because an issue of fact existed as to whether the parties intended novation of a personal
guaranty).
Plaintiff has alleged sufficient facts in the Second Amended Complaint to support a finding
that the personal guaranty is an implied-in-fact contract. Specifically, Plaintiff has alleged that he
advanced his personal funds to Defendants Kiebler and PPCP by making investment deposits due
to Kiebler’s lack of cash flow necessary to make acquisition deposits and to pay the office rent
after being locked out of the PPCP office on two occasions for non-payment of rent. [See Second
Amended Compl. ¶ 179]. On January 12, 2021, shortly after Plaintiff made a substantial $200,000
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personal cash advance to PPCP, Defendant Kiebler gave Plaintiff a signed copy of the Financial
Statement (dated December 31, 2020). [See Second Amended Compl. ¶ 161]. Defendant Kiebler
stated and presented to Plaintiff his personal guaranty that he had the financial assets to ensure that
Plaintiff would receive his full compensation as CEO of PPCP as well as the full return on his
personal investments as a General Partner in properties owned by the PPCP Defendants. [See
Second Amended Compl. ¶ 163].
Moreover, after presenting Plaintiff with the Financial Statement, Defendant Kiebler issued
two checks to Plaintiff from a Pepper Pike Acquisition Associates, LLC account to satisfy and
partially perform a portion of Plaintiff’s employment agreement. [See Second Amended Compl.
¶¶ 147-148]. Taking these allegations as true, Plaintiff has sufficiently plead facts and
circumstances that make it plausible that Defendant Kiebler intended to deliver his Financial
Statement to Plaintiff as a personal guaranty—thus, making the personal guaranty an implied-in-
fact contract. Therefore, Plaintiff has alleged a set of facts upon which he may prevail.
Accordingly, this Court must deny PPCP Defendants’ Motion for Judgment on the Pleadings.
iii. In the Alternative, This Court May Find Defendant Kiebler’s Personal
Guaranty is an Implied-In-Law Contract.
This Court may still grant Plaintiff equitable relief even if it finds that no contractual
personal guaranty existed between Plaintiff and Defendant Kiebler. A claim for unjust enrichment
arises out of an implied-in-law contract. Fisk v. Alloy Wire, Inc. v. Hemsath, 6th Dist. Lucas No.
L-05-1097, 2005-Ohio-7007, 2005 Ohio App. LEXIS 6311, ¶ 69 (Dec. 30, 2005), citing Hummel
v. Hummel, 133 Ohio St. 520, 525-28 (1938).
Implied-in-law contracts exist where no meeting of the minds occurs, but “civil liability
arises out of the obligation cast by law upon a person in receipt of benefits which he is not justly
entitled to retain and for which he may be made to respond to another in an action in the nature of
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assumpsit.” Legros v. Tarr, 44 Ohio St.3d 1, 7 (1989). An implied-in-law contract is a legal fiction
based on equitable principles; it is employed to prevent injustice and provide a remedy where none
otherwise exists. Kappes v. Village of Moscow, 12th Dist. Clermont No. CA97-09-078, 1998 Ohio
App. LEXIS 2012, at 13 (May 4, 1998). To succeed, Plaintiff must show that: (1) he conferred a
benefit to Defendant Kiebler; (2) Defendant Kiebler had knowledge of the benefit; and (3)
Defendant Kiebler retained the benefit under circumstances where it would be unjust to do so
without payment. Barkan & Robon, Ltd. v. Wise, 6th Dist. Lucas No. L-05-1259, 2006-Ohio-2918,
2006 Ohio App. LEXIS 2799, ¶ 16 (June 9, 2006).
Plaintiff has sufficiently alleged facts in the Second Amended Complaint that support
equitable relief should the Court find no contractual personal guaranty. Plaintiff performed as
CEO for more than one year and made significant personal cash advances to PPCP. [See Second
Amended Compl. ¶¶ 132, 154, 161, 179, 193-197]. Defendant Kiebler acknowledged these
benefits when he delivered his personal guaranty to Plaintiff. Thereafter, Defendant Kiebler
partially performed when he issued two checks to Plaintiff on April 20, 2021, for compensation
from a Pepper Pike Acquisition Associates, LLC account. [See Second Amended Compl. ¶¶ 147
148]. Defendant Kiebler’s withholding of Plaintiff’s earned compensation demonstrates a valid
basis to find an implied-in-law contract under Defendant Kiebler’s personal guaranty. See, e.g.,
Barkan, 6th Dist. Lucas No. L-05-1259, 2006-Ohio-2918, ¶ 17 (affirming that a party “had been
unjustly enriched by receiving the benefit of [] services rendered…and then by ultimately refusing
to pay the remaining amount owed.”). Because Plaintiff has alleged a set of facts upon which he
may prevail, this Court must deny PPCP Defendants’ Motion for Judgment on the Pleadings.
B. Declaratory Judgment is the Proper Mechanism for Granting Relief for Alter-Ego
Claims.
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PPCP Defendants next attack Count VI for declaratory judgment on two grounds. Contrary
to PPCP Defendants’ assertion, declaratory judgment is the proper mechanism of finding and
granting relief under an alter-ego theory. PPCP Defendants also claim that Plaintiff failed to satisfy
each element of a declaratory judgment action. Plaintiff addresses these arguments in turn.
i. “Alter Ego” and “Integrated Enterprise” are Doctrines of Corporate Law that
Readily Apply to Plaintiff’s Claims.
PPCP Defendants first assert that the doctrines of “alter ego” and “integrated enterprise”
are employment discrimination doctrines that do not apply to Plaintiff’s declaratory judgment
claim. This characterization is patently false. First, “alter ego” is a doctrine of corporate law that
applies when a “shareholder is indistinguishable from or the ‘alter ego’ of the corporation itself.”
Belvedere Condominium Unit Owners’ Ass’n v. R.E. Roark Cos., 67 Ohio St.3d 274, 287 (1993).
The appropriate remedy for an alter-ego claim is piercing the corporate veil. See id. Piercing the
corporate veil is an exception to the rule that shareholders, officers, and directors are not liable for
the debts of the corporation. Id. But the corporation may be pierced—and individual shareholders
may be held liable—for corporate misdeeds “when it would be unjust to allow the shareholders to
hide behind the fiction of the corporate entity.” Id.
Disregarding the corporate form and piercing the corporate veil is proper when: (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 of an illegal 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, 67 Ohio St.3d at 289. The Supreme Court of Ohio later expanded
the second prong of the Belvedere to permit veil piercing in the face of “extreme shareholder
misconduct.” Dombroski v. WellPoint, Inc., 119 Ohio St.3d 506, 513 (2008). To meet the second
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prong, Plaintiff must show that Defendant Kiebler “exercised control over the [Defendants] in such
a manner as to commit fraud, an illegal act, or a similarly unlawful act.” Id.
Second, “integrated enterprise” is a judicially-created doctrine that may impose liability on
one business enterprise for the actions of a related or subsidiary enterprise. Wittenbrook v. Elecs.
Recycling Servs., Inc., 7th Dist. Belmont No. 16 BE 0023, 2018-Ohio-208, 104 N.E.3d 876, at ¶
27 (Jan. 8, 2018). As the Eighth District has explained: “[T]wo entities may be considered a single
joint employer if, upon review of their intercorporate relationship, one exercises a degree of control
that exceeds the control normally exercised by a parent corporation over its separate and distinct
subsidiary corporation.” Id. ¶ 28, citing Wilmot v. Forest City Auto Parts, 8th Dist. No. 75945,
2000 Ohio App. LEXIS 2734, at 9 (June 22, 2000). To determine whether an integrated enterprise
exists, courts may consider: (1) interrelations of operation; (2) common management; (3)
centralized control of labor relations; and (4) common ownership and financial control.” Id., citing
Wilmot, 8th Dist. No. 75945, 2000 Ohio App. LEXIS 2734, at 9.
The integrated enterprise doctrine is not in any manner whatsoever limited to “employment
discrimination” claims as argued by Defendants. See, e.g., NLRB v. Resistflame Acquisition Co.,
No. 1:11-mc-00046, 2012 U.S. Dist. LEXIS 128809 (S.D. Ohio Sept. 11, 2012) (deeming two
corporations as a single integrated enterprise and finding liability for withheld union dues
payments); Lee v. S&E Flag Cars, LLC, No. 2:14-CV-176 (WOB), 2022 U.S. Dist. LEXIS 1840,
at 15 (E.D. Ky. Jan. 5, 2022) (finding an integrated enterprise to impose liability for unpaid
overtime compensation and commenting that the “evidence very strongly supports the finding that
[the corporation] was a mere alter ego” of the other corporate defendants).
The doctrines of alter ego and integrated enterprise readily apply to Plaintiff’s claims
against PPCP Defendants. Plaintiff has alleged in his Second Amended Complaint
Preview
NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas BRIEF IN OPPOSITION January 16, 2024 11:49 By: STEPHEN S. ZASHIN 0064557 Confirmation Nbr. 3062344 FRANK J. GORI CV 23 973767 vs. Judge: SHERRIE MIDAY PAUL E. KIEBLERIV, ET AL. Pages Filed: 25 Electronically Filed 01/16/2024 11:49 / BRIEF / CV 23 973767 / Confirmation Nbr. 3062344 / CLSLP IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO FRANK J. GORI, CASE NO. CV 23 973767 Plaintiff, JUDGE SHERRIE MIDAY v. PLAINTIFF’S BRIEF IN OPPOSITION TO PPCP DEFENDANTS’ PAUL E. KIEBLER IV, et al., MOTION FOR JUDGMENT ON THE PLEADINGS Defendants. Plaintiff, Frank J. Gori (“Plaintiff”), by and through counsel, respectfully requests that this Honorable Court deny the Motion for Judgment on the Pleadings filed by Defendants Paul E. Kiebler, Pepper Pike Capital Partners, LLC, Pepper Pike Acquisitions, LLC, Pepper Pike Staffing, LLC, Pepper Pike Property Management, LLC, and Pepper Pike Construction, LLC (hereinafter “PPCP Defendants”). PPCP Defendants challenge Count IV, breach of personal guaranty, and Count VI, declaratory judgment, of Plaintiff’s Second Amended Complaint (“SAC”). The existence of significant factual issues surrounding these causes of action make PPCP’s Defendants’ Motion baseless, and therefore, this Court should deny PPCP Defendants’ Motion for Judgment on the Pleadings for the reasons set forth below. I. FACTUAL BACKGROUND Plaintiff’s Second Amended Complaint tells the story of two sophisticated businessmen, neighbors, and former friends. Plaintiff and Kiebler had a personal relationship before Plaintiff began employment as CEO for Defendants on August 3, 2020. [See Second Amended Compl. ¶¶ 113, 132]. Kiebler hired and employed Plaintiff as CEO of Pepper Pike Capital Partners for just over one year until Defendant Kiebler abruptly terminated Plaintiff’s employment. [See Second Amended Compl. ¶¶ 113, 132]. Plaintiff’s compensation package as CEO consisted of a combined salary and increasing investment interests and incentives that accrued and were owing based on the duration of Electronically Filed 01/16/2024 11:49 / BRIEF / CV 23 973767 / Confirmation Nbr. 3062344 / CLSLP Plaintiff’s employment. [See Second Amended Compl. ¶¶ 121, 125]. The three levels of increasing incentives were scheduled for Plaintiff’s first six months of employment, months 7 through 12 of Plaintiff’s employment, and after 12 months of Plaintiff’s employment with incentives increasing at each level. [See Second Amended Compl. ¶ 122-124; see also Exhibits A, B, and C to Second Amended Compl.]. Kiebler presented Plaintiff with two spreadsheets reflecting Kiebler’s calculations of Plaintiff’s projected “deal”-based compensation. [See Second Amended Compl. ¶ 127; see also Exhibits D and E to Second Amended Compl.]. In sum, Plaintiff is entitled to the highest level of incentive compensation as documented by Kiebler because Plaintiff remained employed as CEO for more than one year. On January 12, 2021, Kiebler presented Plaintiff with a Financial Statement, dated December 31, 2020, that accounted for Kiebler’s assets, liabilities, and net worth. [See Exhibit F to Second Amended Compl.].1 Kiebler’s net worth at that time and as presented to Plaintiff was more than $50 million. [See Second Amended Compl. ¶ 162]. Kiebler stated and presented the Financial Statement to Plaintiff as his personal guaranty that he had the financial assets to ensure that Plaintiff would receive his full compensation as CEO of PPCP, as well as the full return of his personal investments as a General Partner in properties owned by the PPCP Defendants. [See Second Amended Compl. ¶ 163.] Kiebler, by delivering the Financial Statement to Plaintiff, absolutely and unconditionally pledged his personal assets and personally guaranteed Plaintiff’s employment agreement, including, without limitation, all obligations, payments, and full performance. [See Second Amended Compl. ¶ 261]. After presenting Plaintiff with the Financial Statement, Defendant 1 Plaintiff has contemporaneously filed with this Brief a motion for leave to file an unredacted copy of Exhibit F under seal. Electronically Filed 01/16/2024 11:49 / BRIEF / CV 23 973767 / 2Confirmation Nbr. 3062344 / CLSLP Kiebler partially performed the terms of Plaintiff’s incentive compensation when he issued two checks to Plaintiff for acquisition fees of two properties in the amounts of $10,125.00 and $49,100.00. [See Second Amended Compl. ¶¶ 147-148]. Defendant Kiebler issued these checks from Pepper Pike Acquisition Associates, LLC’s account—a non-PPCP account. [Id.]. Even though Plaintiff performed all of his obligations under his employment agreement, Kiebler terminated Plaintiff’s employment on August 13, 2021. [See Second Amended Compl. ¶¶ 190-197]. Kiebler’s own projections show that Plaintiff’s compensation owed is valued at more than $7 million, not including more than $100,000 owed to Plaintiff under his employment agreement for unpaid management, transaction, and construction fee compensation, and 200 hours of unpaid accrued paid time off. [See Second Amended Compl. ¶ 198]. Plaintiff filed the Second Amended Complaint against all defendants to obtain, inter alia, the entirety of the compensation that he earned under the employment agreement. [See Second Amended Compl. ¶ 191]. In refusing to compensate Plaintiff and comply with the terms of Plaintiff’s employment agreement and personal guaranty, Defendant Kiebler has not only caused Plaintiff significant harm and damages, but also placed the structure, ownership, management, interrelationships, and control of the numerous corporate entities he has created at issue. Defendant Kiebler, in his personal capacity or as Trustee of the Paul E. Kiebler Revocable Trust, is the manager, owner, beneficiary, member, controlling figurehead and/or shareholder of all PPCP Defendants. [See PPCP Defendants’ Answer ¶¶ 6-7, 10-11, 13-20, 22-23, 41]. Plaintiff has sufficiently pled allegations that Defendant Kiebler and the PPCP Defendants are alter-egos, and therefore, PPCP Defendants’ motion must be denied. II. UNDISPUTED FACTS BEFORE THE COURT On the closed pleadings before the Court are the following undisputed facts. Facts related to the “PPCP Defendants” are in bold typeface: Electronically Filed 01/16/2024 11:49 / BRIEF / CV 23 973767 / 3Confirmation Nbr. 3062344 / CLSLP 1. Newly added Defendant Jody Kiebler is Manager of Suffolk Acquisition, LLC (SAC ¶ 5, PPCP Defendants’ Answer to SAC ¶ 5); 2. Newly added Defendant Paul E. Kiebler Revocable Trust (dated January 13, 2014) (“Kiebler Trust”) is the personal trust of Defendant Kiebler that owns Pepper Pike Capital Partners (SAC ¶ 6, Family Defendants’ Answer to SAC ¶ 6, PPCP Defendants’ Answer to SAC ¶ 6); 3. Defendant Kiebler is both the Trustee and sole beneficiary of the Kiebler Trust (SAC ¶ 7; Family Defendants’ Answer to SAC ¶ 7; PPCP Defendants’ Answer to SAC ¶ 7); 4. Defendant Suffolk Family Trust is the personal trust of Defendant Kiebler and Defendant Jody Kiebler (SAC ¶ 8, Family Defendants’ Answer to SAC ¶ 8, PPCP Defendants’ Answer to SAC ¶ 8); 5. Defendant PPCP is an active Ohio business with one member: the Kiebler Trust (SAC ¶ 10; PPCP Defendants’ Answer to SAC ¶ 10); 6. Defendant PPCP is owned one hundred percent (100%) by the Kiebler Trust (SAC ¶ 11; Family Defendants’ Answer to SAC ¶ 11; PPCP Defendants’ Answer to SAC ¶ 11); 7. Defendant Pepper Pike Staffing, LLC is a subsidiary of Defendant PPCP (SAC ¶ 13, PPCP Defendants’ Answer to SAC ¶ 13); 8. Defendant Pepper Pike Construction, LLC is a subsidiary of Defendant PPCP (SAC ¶ 15, PPCP Defendants’ Answer to SAC ¶ 15); 9. Defendant Pepper Pike Management, LLC is a subsidiary of Defendant PPCP (SAC ¶ 17, PPCP Defendants’ Answer to SAC ¶ 17); 10. Defendant Kiebler is Manager and President of Defendant Pepper Pike Management, LLC (SAC ¶ 19, PPCP Defendants’ Answer to SAC ¶ 19); 11. Defendant Pepper Pike Acquisitions, LLC is a subsidiary of Defendant PPCP (SAC ¶ 20; PPCP Defendants’ Answer to SAC ¶ 20); 12. Defendant Kiebler is the Manager of Pepper Pike Acquisitions, LLC (SAC ¶ 23, PPCP Defendants’ Answer to SAC ¶ 23); 13. Defendant Kiebler is the Manager of Pepper Pike Acquisition Associates, LLC (SAC ¶ 24, Family Defendants’ Answer to SAC ¶ 24; PPCP Defendants’ Answer to SAC ¶ 24); 14. Defendant Pepper Pike Acquisition Associates, LLC is the Manager of Pepper Riverbend Investors, LLC (SAC ¶ 26, Family Defendants’ Answer to SAC ¶ 26; PPCP Defendants’ Answer to SAC ¶ 26); Electronically Filed 01/16/2024 11:49 / BRIEF / CV 23 973767 / 4Confirmation Nbr. 3062344 / CLSLP 15. Defendant Kiebler founded Defendant PPCP and its predecessor APM Management (SAC ¶ 41, PPCP Defendants’ Answer to SAC ¶ 41); 16. Defendant Mount Prospect Greens Owner, LLC obtained a promote distribution of more than $12 million from the underlying sale of the property (SAC ¶ 48, PPCP Defendants’ Answer to SAC ¶ 48); 17. Defendant Fall Creek Promote, LLC2 obtained a promote distribution of more than $15 million for the underlying sale of the Residences at 56 property in Indianapolis, Indiana (SAC ¶ 50, PPCP Defendants’ Answer to SAC ¶ 50); 18. Defendant Kiebler through Pepper Pike Acquisition Associates, LLC made a $50,000 capital contribution towards Defendant Fall Creek Promote, LLC (SAC ¶ 51, Family Defendants’ Answer to SAC ¶ 51, PPCP Defendants’ Answer to SAC ¶ 51); 19. Defendant Mavgun, LLC is an Ohio limited liability company owned and created by Kiebler and/or his spouse Jody Kiebler through which Kiebler owns personal property including the real property located at 11125 Gulf Shore Drive, Naples, Florida 34108 purchased by Kiebler in August 2021 (SAC ¶ 56, PPCP Defendants’ Answer to SAC ¶ 56); 20. Defendant PJK Family Management, LLC is an Ohio limited liability company owned and created by Kiebler through which Kiebler owns personal property including the real property located at 2916 Nottingham Lane, Hunting Valley, Ohio 44022 purchased by Kiebler in May 2018 (SAC ¶ 57, Family Defendants’ Answer to SAC ¶ 57, PPCP Defendants’ Answer to SAC ¶ 57); 21. Defendant Nottingham Racing, LLC is an Ohio limited liability company owned and created by Kiebler through which Kiebler owns personal property and various racing automobiles including but not limited to at least one Ferrari and one Aston Martin (SAC ¶ 58, Family Defendants’ Answer to SAC ¶ 58, PPCP Defendants’ Answer to SAC ¶ 58); 22. The sole Member of Defendant Suffolk Acquisition, LLC is Defendant Suffolk Family Trust (SAC ¶ 60, Family Defendants’ Answer to SAC ¶ 60, PPCP Defendants’ Answer to SAC ¶ 60); 23. Defendant Kiebler is the Manager of Defendant Pepper Pike Acquisition Associates, LLC (SAC ¶ 63, Family Defendants’ Answer to SAC ¶ 63, PPCP Defendants’ Answer to SAC ¶ 63); 2 Defendant Fall Creek Promote, LLC was named as a New Party Defendant in Plaintiff’s Second Amended Complaint filed on October 27, 2023. Due to an oversight, Fall Creek Promote, LLC was not listed in the caption as a “New Party Defendant.” Plaintiff has contemporaneously filed a motion for leave instanter to amend only the caption of the Second Amended Complaint to include Defendant Fall Creek Promote, LLC and the address of its statutory agent. Electronically Filed 01/16/2024 11:49 / BRIEF / CV 23 973767 / 5Confirmation Nbr. 3062344 / CLSLP 24. Defendant Pepper Pike Acquisition Associates, LLC is the owner of Defendant Pepper Riverbend Promote, LLC (SAC ¶ 64, Family Defendants’ Answer to SAC ¶ 64, PPCP Defendants’ Answer to SAC ¶ 64); 25. Defendant Pepper Pike Acquisition Associates, LLC is the Manager of Defendant Pepper Riverbend Promote, LLC (SAC ¶ 65, Family Defendants’ Answer to SAC ¶ 65, PPCP Defendants’ Answer to SAC ¶ 65); 26. Defendant Pepper Pike Acquisition Associates, LLC is the Manager of Pepper Warren Harbor Promote, LLC (SAC ¶ 68, Family Defendants’ Answer to SAC ¶ 68, PPCP Defendants’ Answer to SAC ¶ 68); 27. Defendant Suffolk Family Trust previously owned Defendant Camelot East Holdings, LLC (SAC ¶ 70, Family Defendants’ Answer to SAC ¶ 70); 28. Defendant Suffolk Family Trust is and/or was the Manager of Defendant Camelot East Holdings, LLC (SAC ¶ 71, Family Defendants’ Answer to SAC ¶ 71); 29. Defendant Suffolk Family Trust is the co-owner of Defendant Farmington Promote, LLC (SAC ¶ 73, Family Defendants’ Answer to SAC ¶ 73); 30. Defendant Suffolk Family Trust is the Co-Manager of Defendant Farmington Promote, LLC (SAC ¶ 74, Family Defendants’ Answer to SAC ¶ 74); 31. Defendant Pepper Pike Acquisition Associates, LLC is the co-owner of Defendant Hines Park Promote, LLC (SAC ¶ 76, Family Defendants’ Answer to SAC ¶ 76); 32. Defendant Pepper Pike Acquisition Associates, LLC is the Manager of Defendant Hines Park Promote, LLC (SAC ¶ 77, Family Defendants’ Answer to SAC ¶ 77, PPCP Defendants’ Answer to SAC ¶ 77); 33. Defendant Pepper Pike Acquisition Associates, LLC is the co-owner of Defendant Plymouth Promote, LLC (SAC ¶ 79, PPCP Defendants’ Answer to SAC ¶ 79); 34. Defendant Pepper Pike Acquisition Associates, LLC is the Manager of Defendant Plymouth Promote, LLC (SAC ¶ 80, Family Defendants’ Answer to SAC ¶ 80, PPCP Defendants’ Answer to SAC ¶ 80); 35. Defendant Pepper Pike Acquisition Associates, LLC is the co-owner of Defendant Riverbend Promote Investors, LLC (SAC ¶ 82, Family Defendants’ Answer to SAC ¶ 82); 36. Defendant Pepper Pike Acquisition Associates, LLC is the Manager of Defendant Pepper Riverbend Promote Investors, LLC (SAC ¶ 83, Family Defendants’ Answer to SAC ¶ 83, PPCP Defendants’ Answer to SAC ¶ 83); 37. Defendant Pepper Pike Acquisition Associates, LLC is the co-owner of Defendant Riverbend Promote, LLC (SAC ¶ 85, Family Defendants’ Answer to SAC ¶ 85); Electronically Filed 01/16/2024 11:49 / BRIEF / CV 23 973767 / 6Confirmation Nbr. 3062344 / CLSLP 38. Defendant Pepper Pike Acquisition Associates, LLC is the Manager of Defendant Riverbend Promote, LLC (SAC ¶ 86, Family Defendants’ Answer to SAC ¶ 86, PPCP Defendants’ Answer to SAC ¶ 86); 39. Defendant Pepper Pike Acquisition Associates, LLC is the owner of Defendant Southgate Green Promote, LLC (SAC ¶ 88, Family Defendants’ Answer to SAC ¶ 88); 40. Defendant Pepper Pike Acquisition Associates, LLC is the Manager of Defendant Southgate Green Promote, LLC (SAC ¶ 89, Family Defendants’ Answer to SAC ¶ 89, PPCP Defendants’ Answer to SAC ¶ 89); 41. Defendant Pepper Pike Acquisition Associates, LLC is the owner of Defendant Town and Country Promote, LLC (SAC ¶ 91, Family Defendants’ Answer to SAC ¶ 91, PPCP Defendants’ Answer to SAC ¶ 91); 42. Defendant Pepper Pike Acquisition Associates, LLC is the Manager of Defendant Town and Country Promote, LLC (SAC ¶ 92, Family Defendants’ Answer to SAC ¶ 92, PPCP Defendants’ Answer to SAC ¶ 92); 43. Defendant Pepper Pike Acquisition Associates, LLC is the owner of Defendant Nottingham Foundation Promote, LLC (SAC ¶ 96; Family Defendants’ Answer to SAC ¶ 96); 44. Defendant Pepper Pike Acquisition Associates, LLC is the Manager of Defendant Nottingham Foundation Promote, LLC (SAC ¶ 97, Family Defendants’ Answer to SAC ¶ 97, PPCP Defendants’ Answer to SAC ¶ 97); 45. Defendant Pepper Pike Acquisition Associates, LLC is the co-owner of Defendant Fountain Parc Promote, LLC (SAC ¶ 99, Family Defendants’ Answer to SAC ¶ 99); 46. Defendant Pepper Pike Acquisition Associates, LLC is the Manager of Defendant Fountain Parc Promote, LLC (SAC ¶ 100, Family Defendants’ Answer to SAC ¶ 100, PPCP Defendants’ Answer to SAC ¶ 100); 47. Defendant Pepper Pike Acquisition Associates, LLC is the Manager of Defendant Mount Prospect Greens Owner, LLC (SAC ¶ 102, Family Defendants’ Answer to SAC ¶ 102, PPCP Defendants’ Answer to SAC ¶ 102); 48. Defendant Pepper Pike Acquisition Associates, LLC is the co-owner of Defendant 9 on Canal Promote, LLC (SAC ¶ 104, Family Defendants’ Answer to SAC ¶ 104); 49. Defendant Pepper Pike Acquisition Associates, LLC is the Manager of Defendant 9 on Canal Promote, LLC (SAC ¶ 105, Family Defendants’ Answer to SAC ¶ 105, PPCP Defendants’ Answer to SAC ¶ 105); Electronically Filed 01/16/2024 11:49 / BRIEF / CV 23 973767 / 7Confirmation Nbr. 3062344 / CLSLP 50. Defendant Suffolk Family Trust is the sole Member of Defendant Fall Creek Promote, LLC (SAC ¶ 107, Family Defendants’ Answer to SAC ¶ 107, PPCP Defendants’ Answer to SAC ¶ 107); 51. At the time Plaintiff commenced employment as CEO of PPCP, PPCP had nine existing properties under development known as Camelot East (Cincinnati), Crossings of Canton (Canton, MI), Mt. Prospect Greens (Chicago), Heritage of Plymouth (Michigan), Retreat at Farmington Hills (Michigan), Riverbend Apartments (Indianapolis), Residences on 56th (Indianapolis), Woodlands Apartments (Toledo), and Warren Harbor (Indianapolis) (SAC ¶ 141, PPCP Defendants’ Answer to SAC ¶ 141); 52. During Plaintiff’s tenure as CEO, PPCP acquired and began development on at least four additional properties known as Southgate Green (Michigan), Hines Park Place (Michigan), Fountain Parc (Indianapolis), 9 on Canal (Indianapolis) (SAC ¶ 142, PPCP Defendants’ Answer to SAC ¶ 142); 53. Plaintiff invested money in properties acquired by PPCP (SAC ¶¶ 153-160, Family Defendants’ Answer to SAC ¶¶ 153-160, PPCP Defendants’ Answer to SAC ¶¶ 153 160); and 54. Defendant Kiebler was personal trustee of Plaintiff’s Irrevocable Trust (SAC ¶¶ 164, 236, PPCP Defendants’ Answer to SAC ¶ 164, 236, Family Defendants’ Answer to SAC ¶ 236). III. LEGAL STANDARD The standard applied under Civ.R. 12(C) for a motion for judgment on the pleadings requires a determination that no material factual issues exist and that PPCP Defendants are entitled to judgment as a matter of law. State ex rel. Midwest Pride IV v. Pontious, 75 Ohio St.3d 565, 570 (1996). Pursuant to Rule 12(C), dismissal is appropriate only if this Court: (1) construes the material allegations in the complaint, with all reasonable inferences to be drawn therefrom, in favor of Plaintiff as true, and (2) finds beyond doubt that Plaintiff could prove no set of facts in support of his claim that would entitle him to relief. Vinicky v. Pristas, 163 Ohio App.3d 508, 510, 2005- Ohio-5196, 839 N.E.2d 88 (8th Dist.). The very nature of a Civ.R. 12(C) motion is specifically designed to resolve solely questions of law; the existence of factual issues precludes the granting of a motion for judgment on the pleadings. See id. This Court is restricted solely to the allegations Electronically Filed 01/16/2024 11:49 / BRIEF / CV 23 973767 / 8Confirmation Nbr. 3062344 / CLSLP in the complaint and answer, as well as any documents properly attached as exhibits to those pleadings, when considering the motion. Crenshaw v. Howard, 8th Dist. Cuyahoga No. 110898, 2022-Ohio-3914, 200 N.E.3d 355, 2022 Ohio App. LEXIS 3686, ¶ 13 (Nov. 3, 2022). Additionally, Defendant Nottingham Foundation Promote, LLC (represented by separate counsel) already unsuccessfully sought to be dismissed from this case on a Motion for Judgment on the Pleadings filed in response to Plaintiff’s First Amended Complaint, which this Court denied by Journal Entry dated June 29, 2023. This Court found that material factual issues existed regarding alter-ego and/or integrated enterprise which precluded judgment in favor of Nottingham. In its Decision and Order this Court held: The standard applied under Civ.R. 12(C) Motion for Judgment on the Pleadings requires a determination that no material factual issues exist and that the movant is entitled to judgment as a matter of law. State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St. 3d 565, 1996-Ohio-459, 664 N.E.2d 931 (1996). Pursuant to Civ.R. 12(C), dismissal is appropriate where a Court (1) construes the material allegations in the Complaint, with all reasonable inferences to be drawn therefrom, in favor of the nonmoving party as true, and (2) finds beyond doubt that the Plaintiff could prove no set of facts in support of his claim that would entitle him to relief. Vinicky v. Pristas, 163 Ohio App. 3d 508, 2005-Ohio-5196, 839 N.E.2d 88, ¶ 3 (8th Dist.). Having construed the material allegations in the Complaint, with all reasonable inferences to be drawn therefrom in favor of the nonmoving party as true, the Court finds that material factual issues exist and that the movant Defendant Nottingham Foundation Promote, LLC is not entitled to judgment as a matter of law under Civ. R. 12(C). For the reasons set forth below, this Court must likewise deny the PPCP Defendants’ Motion for Judgment on the Pleadings. Plaintiff has plead operative facts to demonstrate that he faces significant risk that the Defendants have and will continue to use their interrelated web of alter-ego corporate entities that are under-capitalized and dominated by Defendant Kiebler to disburse, distribute, spend, transfer, or otherwise dispose of the promote/profit funds from the sale of properties for which Plaintiff is owed considerable compensation. Plaintiff has already been Electronically Filed 01/16/2024 11:49 / BRIEF / CV 23 973767 / 9Confirmation Nbr. 3062344 / CLSLP harmed by the sale of at least two properties.3 Plaintiff will continue be harmed as other properties are sold and Plaintiff is not compensated for promote/profits generated by those sales. Properly construing all reasonable inferences in favor of Plaintiff, PPCP Defendants’ motion wholly fails. Only through the remedy of a declaratory judgment finding alter-ego and/or integrated enterprise and piercing the corporate veils of the Defendant entities can this Court adequately protect Plaintiff. IV. LAW & ARGUMENT A. Defendant Kiebler’s Personal Guaranty to Plaintiff Survives Review Under 12(C) on Any Contractual Theory. A guaranty is a promise by one person to pay the debts of another. Valspar Corp. v. Nguyen, 5th Dist. Delaware No. 11 CAE 12 0116, 2012-Ohio-2710, 2012 Ohio App. LEXIS 2379, ¶ 15 (June 13, 2012). There is “no formulaic location required for the formation of a guaranty” so long as the words used create a promise to answer for the debts of another. Nesco Sales & Rental v. Superior Elec. Co., 10th Dist. Franklin No. 06AP-435, 2007-Ohio-844, 2007 Ohio App. LEXIS 735, ¶ 11 (Mar. 1, 2007). Ohio courts interpret personal guaranties in the same manner as interpreting contracts. Jae Co. v. Heitmeyer Builders, Inc., 10th Dist. Franklin No. 08AP-1127, 2009-Ohio-2851, 2009 Ohio App. LEXIS 2412, ¶ 12 (June 16, 2009), citing Stone v. Nat’l City Bank, 106 Ohio App.3d 212, 217 (8th Dist. 1995). Ohio recognizes three types of contracts: express, implied-in-fact, and implied-in-law. Legros v. Tarr, 44 Ohio St.3d 1, 6 (1989). Plaintiff does not have to allege any particular legal theory to prove his claims in his Second Amended Complaint. See Johnson v. City of Shelby, 574 U.S. 10, 11-12 (2014); Midwest Terminals of Toledo Int’l, Inc. v. Longshoremen’s Ass’n, No. 22 3 The Undisputed Facts establish that Defendant Mount Prospect Greens Owner, LLC obtained a promote distribution of more than $12 million from the underlying sale of the property, and Defendant Fall Creek Promote, LLC obtained a promote distribution of more than $15 million for the underlying sale of the Residences at 56 property in Indianapolis, Indiana. See Section II, ¶¶ 16-17, above. Electronically Filed 01/16/2024 11:49 / BRIEF / CV 23 973767 /1C0onfirmation Nbr. 3062344 / CLSLP 1330, 2023 U.S. App. LEXIS 18371, at 16 (6th Cir. July 18, 2023). Plaintiff need only provide a “short and plain statement of the claim” showing that he is entitled to relief. Ohio Civ.R. 8(A). On January 12, 2021, Defendant Kiebler presented Plaintiff with a signed personal Financial Statement (dated December 31, 2020) that listed Defendant Kiebler’s personal financial assets, liabilities, and net worth. [See Exhibit F to Second Amended Compl.]. Plaintiff has sufficiently alleged that Defendant Kiebler personally guaranteed payment to Plaintiff of the compensation promised under the employment agreement. [See Second Amended Compl. ¶ 261]. Because Plaintiff sufficiently alleged facts to support his claim regarding Defendant Kiebler’s personal guaranty under any contractual theory (express, implied-in-fact, and implied-in-law), this Court must deny PPCP Defendants’ 12(C) Motion. i. Defendant Kiebler’s Personal Guaranty is an Express Contract. In an express contract, the parties assent to the terms as actually expressed through offer an acceptance. Legros, 44 Ohio St.3d at 6. Courts must interpret clear and unambiguous personal guaranties so as to carry out the intent of the parties. Valspar Corp., 5th Dist. Delaware No. 11 CAE 12 0116, 2012-Ohio-2710, ¶ 15. A personal guaranty is ambiguous if it is equally capable of two or more plausible meanings. Sherwin Williams Co. v. Chem-Fab, 6th Dist. Lucas No. L-05- 1375, 2006-Ohio-3864, 2006 Ohio App. LEXIS 3831, ¶ 10 (July 28, 2006). A party may offer extrinsic or parol evidence to give effect to the parties’ intentions where a personal guaranty is ambiguous. See Kelly v. Med. Life Ins. Co., 31 Ohio St.3d 130, 132 (1987). a. Defendant Kiebler’s Personal Guaranty is an Unambiguous Promise to Compensate Plaintiff Personally. PPCP Defendants have asserted that the personal guaranty cannot be an express contract because there are no terms and the personal guaranty fails to satisfy the statute of frauds. PPCP Defendants’ argument fails for two reasons. First, Defendant Kiebler partially performed on April Electronically Filed 01/16/2024 11:49 / BRIEF / CV 23 973767 /1C1onfirmation Nbr. 3062344 / CLSLP 20, 2021, when Defendant Kiebler issued two separate checks to Plaintiff from the account of Pepper Pike Acquisition Associates, LLC – a non-PPCP Defendant that Kiebler indisputably managed – in the amounts of $10,125.00 and $49,100.00 as acquisition fees of two properties. [See Second Amended Compl. ¶¶ 147-148]. Defendant Kiebler’s partial performance of Plaintiff’s employment agreement after presenting Plaintiff with the personal guaranty renders compliance with the statute of frauds’ writing requirement unnecessary. TLOA Acquisitions, L.L.C. v. Unknown Heirs, 8th Dist. Cuyahoga No. 110002, 2021-Ohio-3678, 179 N.E.3d 246, ¶ 16 (Oct. 14, 2021) (“[T]he equitable doctrine of partial performance [is] an exception to the statute of frauds” and “is applied in situations where it would be inequitable to permit the statute of frauds to operate where the acts done sufficiently establish the alleged agreement to provide a safeguard against fraud in lieu of the statutory requirements.”). Second, even if Defendant Kiebler’s personal guaranty must satisfy the statute of frauds, a formal contract is not necessary. See R.C. § 1335.05 (requiring at least a “memorandum or note thereof” concerning a debt to be in writing and signed by the party to be charged to satisfy the statute). Any signed memorandum will satisfy the statute of frauds so long as it: (1) identifies the subject matter of the agreement; (2) establishes that a contract has been made; and (3) states the essential terms with reasonable certainty. Busler v. D & H Mfg., 81 Ohio App.3d 385, 390 (10th Dist. 1992). In addition, “[a] guaranty is not rendered ambiguous by the absence of certain terms if the surrounding circumstances and the object intended to be accomplished is readily apparent from the document itself.” SMS Fin. 30, L.L.C. v. Frederic D. Harris, M.D., Inc., 8th Dist. Cuyahoga No. 105710, 2018-Ohio-2064, 112 N.E.3d 395, ¶ 38 (May 24, 2018). Defendant Kiebler’s Financial Statement identifies his personal financial assets, liabilities, and net worth in writing, and was signed by Defendant Kiebler—the party to be charged—on January 12, 2021. Defendant Kiebler’s Financial Statement may be construed as a “memorandum Electronically Filed 01/16/2024 11:49 / BRIEF / CV 23 973767 /1C2onfirmation Nbr. 3062344 / CLSLP or note thereof” because it identifies Defendant Kiebler’s personal assets (the subject matter of the personal guaranty), demonstrates that Defendant Kiebler has pledged his assets to Plaintiff through delivery of the Financial Statement to Plaintiff, and does not limit the amount of liability that Defendant Kiebler is undertaking in his personal guaranty to Plaintiff. See R.C. § 1335.05; Busler, 81 Ohio App.3d at 390. Defendant Kiebler presented to Plaintiff the Financial Statement showing he was worth more than $50 million. [See Second Amended Compl. ¶ 162]. Moreover, the underlying circumstances in which Defendant Kiebler delivered the Financial Statement to Plaintiff support that Defendant Kiebler intended to pledge his personal assets to Plaintiff under Plaintiff’s employment agreement. [See Second Amended Compl. ¶¶ 179, 161-163, 260-261]. Specifically, Plaintiff has alleged as follows in the Second Amended Complaint: SAC ¶ 161 - On January 12, 2021, shortly after Plaintiff made a substantial $200,000 personal cash advance to PPCP, Kiebler gave Plaintiff a signed copy of Kiebler’s personal Financial Statement dated December 31, 2020. A true and exact copy of Kiebler’s redacted personal Financial Statement is attached as Exhibit F. SAC ¶ 162 - Kiebler represented to Plaintiff on Exhibit F that as of January 12, 2021, Kiebler’s personal Net Worth at that time as presented to Plaintiff was more than $50 million. SAC ¶ 163 - Kiebler stated and presented to Plaintiff his personal guaranty that he had the financial assets to ensure that Plaintiff would receive his full compensation as CEO of PPCP as well as the full return on his personal investments as a General Partner in properties owned by the PPCP Defendants. Taking all of Plaintiff’s allegations as true and construing all reasonable inferences in favor of Plaintiff as required under Civ.R. 12, Plaintiff has sufficiently pled that Defendant Kiebler made an unambiguous personal guaranty to Plaintiff that satisfies the statute of frauds. Therefore, this Court must deny Defendant PPCP’s Motion for Judgment on the Pleadings. b. If the Court Determines Defendant Kiebler’s Personal Guaranty is Ambiguous, then Extrinsic or Parol Evidence Can Determine Defendant Kiebler’s Intent When He Presented Plaintiff with the Personal Guaranty. Electronically Filed 01/16/2024 11:49 / BRIEF / CV 23 973767 /1C3onfirmation Nbr. 3062344 / CLSLP If this Court finds that two or more plausible interpretations regarding Defendant Kiebler’s personal guaranty exist, then it should evaluate extrinsic evidence—including testimony of the parties—to interpret the parties’ intent surrounding Defendant Kiebler’s personal guaranty. See Sherwin Williams Co. v. Chem-Fab, 6th Dist. Lucas No. L-05-1375, 2006-Ohio-3864, 2006 Ohio App. LEXIS 3831, ¶ 10 (July 28, 2006); Kelly v. Med. Life Ins. Co., 31 Ohio St.3d 130, 132 (1987); Camardo v. Timm, 8th Dist. Cuyahoga No. 57795, 1991 Ohio App. LEXIS 2001, at 4 (May 2, 1991) (“Parol evidence and testimony of the parties may be considered when the language of [a personal guaranty] is ambiguous and subject to more than one interpretation.”). Because intent is a question of fact, a court cannot determine the intent of the parties regarding a personal guaranty on a motion for judgment on the pleadings. First Nat’l Bank v. Martenies, 6th Dist. Lucas No. L-88-251, 1989 Ohio App. LEXIS 3736, at 6 (Sept. 29, 1989); N. Frozen Foods, Inc. v. Picciotti, 8th Dist. Cuyahoga No. 95493, 2011-Ohio-2399, 2011 Ohio App. LEXIS 2054, ¶ 13 (May 19, 2011). Nor can a court determine the admissibility of extrinsic evidence at this stage. Viking & Worthington Steel Enter., L.L.C. v. James, 11th Dist. Geauga No. 2010-G-2971, 2011-Ohio-1714, 2011 Ohio App. LEXIS 1506, ¶¶ 32-33 (Apr. 8, 2011) (reversing a motion to dismiss because a court must evaluate the admissibility of parol or extrinsic evidence that goes “to the very existence of a contract” after development of the facts through discovery). Accordingly, PPCP Defendants cannot obtain judgment in their favor where ambiguity exists and the Court must construe extrinsic evidence, which are factual determinations—not issues of law. Furthermore, this Court must construe all reasonable inferences in favor of Plaintiff, which defeats PPCP Defendants’ present Motion. ii. In the Alternative, Plaintiff has Alleged Sufficient Facts that Defendant Kiebler’s Personal Guaranty is an Implied-In-Fact Contract. Electronically Filed 01/16/2024 11:49 / BRIEF / CV 23 973767 /1C4onfirmation Nbr. 3062344 / CLSLP Even if this Court finds that Defendant Kiebler’s personal guaranty is not an express contract, Plaintiff has sufficiently alleged facts that it is an implied-in-fact contract. Alleging that a personal guaranty is an implied-in-fact contract is a viable legal theory. See, e.g., Bayer v. Nachtrab, 6th Dist. Lucas No. L-13-1209, 2014-Ohio-5586, 2014 Ohio App. LEXIS 5406 (Dec. 19, 2014); Alliant Food Servs. v. Powers, 8th Dist. Cuyahoga No. 82189, 2003-Ohio-4193, 2003 Ohio App. LEXIS 3729 (Aug. 5, 2003). In an implied-in-fact contract, Plaintiff “need not show that the parties formally exchanged promises.” MMK Group, LLC v. SheShells Co., LLC, 591 F. Supp. 2d 944, 958 (N.D. Ohio 2008). Rather, an implied-in-fact contract is shown by the surrounding circumstances that make it inferable that the contract exists as a matter of tacit understanding. Legros v. Tarr, 44 Ohio St.3d 1, 6-7 (1989). This is a low threshold. Plaintiff need only show that the circumstances surrounding the parties’ transactions make it “reasonably certain” that they intended an agreement. MMK Group, LLC, 591 F. Supp. 2d at 958-59, citing Lucas v. Costantini, 13 Ohio App.3d 367, 369, 469 N.E.2d 927, 929 (1983). Whether a personal guaranty exists hinges on the intent of the parties. First Nat’l Bank v. Martenies, 6th Dist. Lucas No. L-88-251, 1989 Ohio App. LEXIS 3736, at 6 (Sept. 29, 1989). Intent is a question of fact that a court cannot decide at this stage of the proceeding. See id. (reversing a grant of summary judgment because an issue of fact existed as to whether the parties intended novation of a personal guaranty). Plaintiff has alleged sufficient facts in the Second Amended Complaint to support a finding that the personal guaranty is an implied-in-fact contract. Specifically, Plaintiff has alleged that he advanced his personal funds to Defendants Kiebler and PPCP by making investment deposits due to Kiebler’s lack of cash flow necessary to make acquisition deposits and to pay the office rent after being locked out of the PPCP office on two occasions for non-payment of rent. [See Second Amended Compl. ¶ 179]. On January 12, 2021, shortly after Plaintiff made a substantial $200,000 Electronically Filed 01/16/2024 11:49 / BRIEF / CV 23 973767 /1C5onfirmation Nbr. 3062344 / CLSLP personal cash advance to PPCP, Defendant Kiebler gave Plaintiff a signed copy of the Financial Statement (dated December 31, 2020). [See Second Amended Compl. ¶ 161]. Defendant Kiebler stated and presented to Plaintiff his personal guaranty that he had the financial assets to ensure that Plaintiff would receive his full compensation as CEO of PPCP as well as the full return on his personal investments as a General Partner in properties owned by the PPCP Defendants. [See Second Amended Compl. ¶ 163]. Moreover, after presenting Plaintiff with the Financial Statement, Defendant Kiebler issued two checks to Plaintiff from a Pepper Pike Acquisition Associates, LLC account to satisfy and partially perform a portion of Plaintiff’s employment agreement. [See Second Amended Compl. ¶¶ 147-148]. Taking these allegations as true, Plaintiff has sufficiently plead facts and circumstances that make it plausible that Defendant Kiebler intended to deliver his Financial Statement to Plaintiff as a personal guaranty—thus, making the personal guaranty an implied-in- fact contract. Therefore, Plaintiff has alleged a set of facts upon which he may prevail. Accordingly, this Court must deny PPCP Defendants’ Motion for Judgment on the Pleadings. iii. In the Alternative, This Court May Find Defendant Kiebler’s Personal Guaranty is an Implied-In-Law Contract. This Court may still grant Plaintiff equitable relief even if it finds that no contractual personal guaranty existed between Plaintiff and Defendant Kiebler. A claim for unjust enrichment arises out of an implied-in-law contract. Fisk v. Alloy Wire, Inc. v. Hemsath, 6th Dist. Lucas No. L-05-1097, 2005-Ohio-7007, 2005 Ohio App. LEXIS 6311, ¶ 69 (Dec. 30, 2005), citing Hummel v. Hummel, 133 Ohio St. 520, 525-28 (1938). Implied-in-law contracts exist where no meeting of the minds occurs, but “civil liability arises out of the obligation cast by law upon a person in receipt of benefits which he is not justly entitled to retain and for which he may be made to respond to another in an action in the nature of Electronically Filed 01/16/2024 11:49 / BRIEF / CV 23 973767 /1C6onfirmation Nbr. 3062344 / CLSLP assumpsit.” Legros v. Tarr, 44 Ohio St.3d 1, 7 (1989). An implied-in-law contract is a legal fiction based on equitable principles; it is employed to prevent injustice and provide a remedy where none otherwise exists. Kappes v. Village of Moscow, 12th Dist. Clermont No. CA97-09-078, 1998 Ohio App. LEXIS 2012, at 13 (May 4, 1998). To succeed, Plaintiff must show that: (1) he conferred a benefit to Defendant Kiebler; (2) Defendant Kiebler had knowledge of the benefit; and (3) Defendant Kiebler retained the benefit under circumstances where it would be unjust to do so without payment. Barkan & Robon, Ltd. v. Wise, 6th Dist. Lucas No. L-05-1259, 2006-Ohio-2918, 2006 Ohio App. LEXIS 2799, ¶ 16 (June 9, 2006). Plaintiff has sufficiently alleged facts in the Second Amended Complaint that support equitable relief should the Court find no contractual personal guaranty. Plaintiff performed as CEO for more than one year and made significant personal cash advances to PPCP. [See Second Amended Compl. ¶¶ 132, 154, 161, 179, 193-197]. Defendant Kiebler acknowledged these benefits when he delivered his personal guaranty to Plaintiff. Thereafter, Defendant Kiebler partially performed when he issued two checks to Plaintiff on April 20, 2021, for compensation from a Pepper Pike Acquisition Associates, LLC account. [See Second Amended Compl. ¶¶ 147 148]. Defendant Kiebler’s withholding of Plaintiff’s earned compensation demonstrates a valid basis to find an implied-in-law contract under Defendant Kiebler’s personal guaranty. See, e.g., Barkan, 6th Dist. Lucas No. L-05-1259, 2006-Ohio-2918, ¶ 17 (affirming that a party “had been unjustly enriched by receiving the benefit of [] services rendered…and then by ultimately refusing to pay the remaining amount owed.”). Because Plaintiff has alleged a set of facts upon which he may prevail, this Court must deny PPCP Defendants’ Motion for Judgment on the Pleadings. B. Declaratory Judgment is the Proper Mechanism for Granting Relief for Alter-Ego Claims. Electronically Filed 01/16/2024 11:49 / BRIEF / CV 23 973767 /1C7onfirmation Nbr. 3062344 / CLSLP PPCP Defendants next attack Count VI for declaratory judgment on two grounds. Contrary to PPCP Defendants’ assertion, declaratory judgment is the proper mechanism of finding and granting relief under an alter-ego theory. PPCP Defendants also claim that Plaintiff failed to satisfy each element of a declaratory judgment action. Plaintiff addresses these arguments in turn. i. “Alter Ego” and “Integrated Enterprise” are Doctrines of Corporate Law that Readily Apply to Plaintiff’s Claims. PPCP Defendants first assert that the doctrines of “alter ego” and “integrated enterprise” are employment discrimination doctrines that do not apply to Plaintiff’s declaratory judgment claim. This characterization is patently false. First, “alter ego” is a doctrine of corporate law that applies when a “shareholder is indistinguishable from or the ‘alter ego’ of the corporation itself.” Belvedere Condominium Unit Owners’ Ass’n v. R.E. Roark Cos., 67 Ohio St.3d 274, 287 (1993). The appropriate remedy for an alter-ego claim is piercing the corporate veil. See id. Piercing the corporate veil is an exception to the rule that shareholders, officers, and directors are not liable for the debts of the corporation. Id. But the corporation may be pierced—and individual shareholders may be held liable—for corporate misdeeds “when it would be unjust to allow the shareholders to hide behind the fiction of the corporate entity.” Id. Disregarding the corporate form and piercing the corporate veil is proper when: (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 of an illegal 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, 67 Ohio St.3d at 289. The Supreme Court of Ohio later expanded the second prong of the Belvedere to permit veil piercing in the face of “extreme shareholder misconduct.” Dombroski v. WellPoint, Inc., 119 Ohio St.3d 506, 513 (2008). To meet the second Electronically Filed 01/16/2024 11:49 / BRIEF / CV 23 973767 /1C8onfirmation Nbr. 3062344 / CLSLP prong, Plaintiff must show that Defendant Kiebler “exercised control over the [Defendants] in such a manner as to commit fraud, an illegal act, or a similarly unlawful act.” Id. Second, “integrated enterprise” is a judicially-created doctrine that may impose liability on one business enterprise for the actions of a related or subsidiary enterprise. Wittenbrook v. Elecs. Recycling Servs., Inc., 7th Dist. Belmont No. 16 BE 0023, 2018-Ohio-208, 104 N.E.3d 876, at ¶ 27 (Jan. 8, 2018). As the Eighth District has explained: “[T]wo entities may be considered a single joint employer if, upon review of their intercorporate relationship, one exercises a degree of control that exceeds the control normally exercised by a parent corporation over its separate and distinct subsidiary corporation.” Id. ¶ 28, citing Wilmot v. Forest City Auto Parts, 8th Dist. No. 75945, 2000 Ohio App. LEXIS 2734, at 9 (June 22, 2000). To determine whether an integrated enterprise exists, courts may consider: (1) interrelations of operation; (2) common management; (3) centralized control of labor relations; and (4) common ownership and financial control.” Id., citing Wilmot, 8th Dist. No. 75945, 2000 Ohio App. LEXIS 2734, at 9. The integrated enterprise doctrine is not in any manner whatsoever limited to “employment discrimination” claims as argued by Defendants. See, e.g., NLRB v. Resistflame Acquisition Co., No. 1:11-mc-00046, 2012 U.S. Dist. LEXIS 128809 (S.D. Ohio Sept. 11, 2012) (deeming two corporations as a single integrated enterprise and finding liability for withheld union dues payments); Lee v. S&E Flag Cars, LLC, No. 2:14-CV-176 (WOB), 2022 U.S. Dist. LEXIS 1840, at 15 (E.D. Ky. Jan. 5, 2022) (finding an integrated enterprise to impose liability for unpaid overtime compensation and commenting that the “evidence very strongly supports the finding that [the corporation] was a mere alter ego” of the other corporate defendants). The doctrines of alter ego and integrated enterprise readily apply to Plaintiff’s claims against PPCP Defendants. Plaintiff has alleged in his Second Amended Complaint