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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
February 13,2024 10:37
By: STEPHEN S. ZASHIN 0064557
Confirmation Nbr. 3086136
FRANK J. GORI CV 23 973767
vs.
Judge: SHERRIE MIDAY
PAUL E. KIEBLERIV, ET AL.
Pages Filed: 23
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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 DEFENDANTS MOUNT PROSPECT
PAUL E. KIEBLER IV, et al., GREENS OWNER, LLC AND FALL
CREEK PROMOTE, LLC’S MOTION
Defendants. TO DISMISS PLAINTIFF’S SECOND
AMENDED COMPLAINT
This Court must deny the Motion to Dismiss1 Plaintiff’s Second Amended Complaint filed
by Defendants Mount Prospect Greens Owner, LLC2 and Fall Creek Promote, LLC (hereinafter
“Defendants”). Defendants seek to dismiss Plaintiff Frank Gori’s (“Plaintiff”) Second Amended
Complaint by spinning an oversimplified theory that this Court can only find Defendant Kiebler
and the PPCP Defendants liable for Plaintiff’s claims. But Defendants’ theory completely
disregards the reasons for which piercing the corporate veil exists as a remedy. Moreover, the
undisputed facts before the Court illustrate that Defendant Kiebler dominates and controls the
Defendants through his ownership and management in his personal capacity, as Manager of Pepper
Pike Acquisition Associates, LLC, and/or as part of the Suffolk Family Trust. Accordingly, this
Court must reject Defendants’ futile arguments and deny their Motion to Dismiss.
1 Twelve “Promote Defendants” moved to dismiss Plaintiff’s Second Amended Complaint on December 5, 2023:
Defendants Pepper Riverbend Promote, LLC; Camelot East Holdings, LLC; Farmington Promote, LLC; Hines Park
Promote, LLC; Plymouth Promote, LLC; Riverbend Promote Investors, LLC; Riverbend Promote, LLC; Southgate
Green Promote, LLC; Town and Country Promote, LLC; Warren Harbor Promote, LLC; Pepper Warren Harbor
Promote, LLC; and Nottingham Foundation Promote, LLC. Plaintiff timely opposed these Defendants’ Motion to
Dismiss on January 13, 2024. Plaintiff now opposes this Motion to Dismiss filed by Defendants Mount Prospect
Greens Owner, LLC and Fall Creek Promote, LLC.
2 Defendant Mount Prospect Greens Owner, LLC also moved to join Promote Defendants’ December 5, 2023 Motion
to Dismiss on January 30, 2024. Because Defendant Mount Prospect Greens Owner, LLC was served with process on
January 11, 2024 and is within its 28-day period to answer or otherwise respond to Plaintiff’s Second Amended
Complaint, with the filing of this Motion to Dismiss, it does not also need to “join” the prior December 5, 2023 Motion.
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I. INTRODUCTION
Importantly, Defendant Nottingham Foundation Promote, LLC already unsuccessfully
sought dismissal 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 on the same basis now asserted here. 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 also likewise deny Defendants’ Motion to
Dismiss. The standard of review on Defendants’ Motion to Dismiss is the same, and under that
standard, Plaintiff has stated viable claims for relief against the moving Defendants.
Defendants challenge Count VI of Plaintiff’s Second Amended Complaint seeking
declaratory judgment that Defendants are the alter ego of Defendant Kiebler. Defendants
mischaracterize the parent-subsidiary corporate structures and improperly attempt to present facts
beyond the scope of the Second Amended Complaint. Defendants further cite irrelevant legal
doctrines in support of their motion. Because Defendants cannot establish beyond doubt that no
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set of facts exist upon which Plaintiff could recover against them, Defendants’ Motion wholly
fails.
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 harmed by the sale of 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, Defendants’ Motion fails. Only through the remedy of a declaratory judgment piercing
the corporate veils of the Defendant entities can this Court adequately protect Plaintiff.
II. 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 SAC ¶¶ 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 SAC ¶¶ 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
Plaintiff’s employment. [See SAC ¶¶ 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
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 III, ¶¶ 16-17 below.
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employment, and after 12 months of Plaintiff’s employment. [See SAC ¶¶ 122-124; see also
Exhibits A, B, and C to SAC].
Kiebler presented Plaintiff with two spreadsheets reflecting Kiebler’s calculations of
Plaintiff’s projected “deal”-based compensation. [See SAC ¶ 127; see also Exhibits D and E to
SAC]. In sum, Plaintiff is entitled to the highest level of incentive compensation as documented
by Kiebler because he remained employed as CEO for more than one year.
Even though Plaintiff performed all of his obligations under his employment agreement,
Kiebler terminated Plaintiff’s employment on August 13, 2021. [See SAC ¶¶ 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 SAC ¶ 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 SAC ¶ 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 under scrutiny. Defendant Kiebler, as Manager
of Pepper Pike Acquisition Associates, LLC, or through the Suffolk Family Trust, dominates and
controls Promote Defendants. Plaintiff has sufficiently pled allegations that Defendant Kiebler,
PPCP Defendants, and Family Defendants are alter-egos that control and dominate Defendants.
Therefore, Defendants’ Motion to Dismiss must be denied.
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III. UNDISPUTED FACTS BEFORE THE COURT
Before the Court are the following undisputed facts based on other party-defendants’
admissions. Facts related to the Defendants are in bold typeface:
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);
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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 Defendant
Pepper Riverbend Investors, LLC (SAC ¶ 26, Family Defendants’ Answer to SAC ¶
26; PPCP Defendants’ Answer to SAC ¶ 26);
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, LLC 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
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¶ 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);
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);
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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);
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);
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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);
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
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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).
These undisputed facts establish that Defendant Kiebler, his spouse Jody Kiebler, and/or
his Trusts dominate and control, not only the PPCP Defendants, but also the moving Defendants,
Promote Defendants, and “Family”4 Defendants, including Pepper Pike Acquisition Associates,
LLC and Suffolk Family Trust. Defendants cannot support their Motion to Dismiss by adding
additional and unsupported factual allegations for the Court to consider.
IV. PLAINTIFF’S ALLEGATIONS AGAINST THE PROMOTE DEFENDANTS
Plaintiff alleges in his Second Amended Complaint, inter alia, that Defendant Kiebler and
the various named Defendants are alter-egos, that the entities are dominated and controlled by
Defendant Kiebler, and that the Defendants have failed to follow corporate formalities,
intermingled funds, and otherwise operated such that the corporate entities have no separate mind,
will, or existence. Plaintiff therefore seeks to pierce the corporate veil of the defendant entities.
Specifically, Plaintiff alleges as follows regarding the promote/profit earnings generated
by Promote Defendants, Defendant Kiebler’s misuse of those earnings, and Defendant Kiebler’s
domination and control over the Promote Defendant entities:
SAC ¶ 45 - Kiebler has promised the sharing of acquisition fees and promote/profit
earnings to high-level executives as compensation to perform work for PPCP and
its affiliated entities.
SAC ¶ 46 - Kiebler has paid former and existing employees of the PPCP Defendants
shares of acquisition, management, construction fees and promote/profit earnings
4 Plaintiff identified the “Family Defendants” in his Second Amended Complaint as the “Kiebler Defendants.” Those
same Defendants, through their counsel, now have identified themselves as the “Family Defendants” in an apparent
attempt to characterize themselves as distinct and separate from the “non-Family” Kiebler/PPCP and “Promote”
Defendants. However, no clear delineation exists between “Family” and “non-Family” Defendants. Instead, the
undisputed facts already established by Plaintiff demonstrate the complicated and intricate web of overlapping
ownership, management, and control of the “Family Defendants” by the “non-Family” Defendants and especially
Defendant Paul Kiebler.
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through checks issued by Pepper Pike Acquisition Associates, LLC and the other
PPCP Defendants.
SAC ¶ 47 - Acquisition fees and promote/profit earnings on each property sold by
the PPCP Defendants and their affiliates typically exceed $10M.
SAC ¶ 48 - Defendant Mount Prospect Greens Owner, LLC obtained a
promote distribution of more than $12 million from the underlying sale of the
property.
SAC ¶ 49 - Due to the high-reward nature of these promote distributions,
acquisition fees and promote/profit earnings are often the subject of litigation if
unpaid.
SAC ¶ 50 - 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.
SAC ¶ 51 - Defendant Kiebler, through Pepper Pike Acquisition Associates,
LLC, made a $50,000 capital contribution towards Defendant Fall Creek
Promote, LLC.
SAC ¶ 52 – Pepper Pike Acquisition Associates, LLC receives a percentage of each
promote distribution on the properties sold by the PPCP Defendants and their
affiliates.
SAC ¶ 54 - Upon information and belief, Defendant Kiebler has taken
promote/profits from the sale of properties such as Camelot East and deposited
them in his personal trust accounts such as the Suffolk Family Trust; deposited
insurance claim monies received for Camelot East and used those funds as
collateral for a personal loan; and withdrawn investor partnership monies to fund
his personal business expenses such as office lease/rent payments and to fund other
property acquisition projects.
SAC ¶ 55 - Upon information and belief, Defendant Kiebler has likewise comingled
funds and used funds for Defendant Kiebler’s personal debts; taken company
promote profits for personal use; used partnership monies for personal expenses;
moved partnership and promote entity monies to Pepper Pike Capital Partners; used
partnership monies to make deposits to 9 on Canal and other properties under
development; made loans between the PPCP Defendants and Pepper Pike
Acquisition Associates; used partnership monies to pay interest expenses on
Kiebler’s personal lines of credit; and disregarded the corporate structures,
accounting and finance roles of the various LLC entities he created.
SAC ¶ 61 - Defendant Suffolk Acquisition, LLC is the organization through which
Kiebler owns personal property and transferred for his personal use the
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promote/profits received by Defendant PPCP at the time of sale of various
properties, including but not limited to Camelot East.
SAC ¶ 119 - Kiebler stated that he personally did not take a salary but instead was
paid exclusively out of the acquisition fees and promote/profit earned on the
developed properties at the time of sale through Defendant Pepper Pike Acquisition
Associates, LLC and the other named Kiebler Defendants.
SAC ¶ 141 - 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 ¶ 142 - During Plaintiff’s tenure as CEO, PPCP acquired and began
development on an additional five properties known as Southgate Green
(Michigan), Hines Park Place (Michigan), Fountain Parc (Indianapolis), 9 on Canal
(Indianapolis), and Town & Country (Michigan).
SAC ¶ 143 - Plaintiff is entitled to compensation from the sale of each of the nine
existing and five acquired properties at the increasing scaled percentages of the
promote/profit generated on each sale as set forth in Exhibits A, B and C.
SAC ¶ 144 - Plaintiff’s acquisition, management, and construction fees and
promote/profit compensation are separate from his monthly salary component of
$18,000 and car payment of $2,000 from Pepper Pike Staffing, LLC, which would
be issued via direct deposit to Plaintiff’s bank account.
SAC ¶ 145 - Kiebler issues checks through Pepper Pike Acquisition Associates,
LLC to tender promote/profit compensation to employees and investors.
SAC ¶ 212 - Upon information and belief, Defendant Kiebler has used funds from
the Defendant entities for his personal and housing debts.
SAC ¶ 213 - Upon information and belief, Defendant Kiebler has misappropriated
funds for family use and debts.
SAC ¶ 214 - Upon information and belief, Defendant Kiebler has spent thousands
of dollars of funds from the Defendant entities to pay for his personal hobbies.
SAC ¶ 215 - Upon information and belief, Defendant Kiebler has also used
partnership monies for personal expenses, moved partnership and promote entity
monies to Pepper Pike Capital Partners, used partnership monies to make deposits
to 9 on Canal and other properties under development, made loans between the
PPCP Defendants and Pepper Pike Acquisition Associates, and used partnership
monies to pay interest expenses on Kiebler’s personal lines of credit.
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SAC ¶ 216 - Through these financial transactions, Kiebler has disregarded the
corporate structures, accounting, and finance roles of the various LLC entities he
created.
SAC ¶ 218 - Upon information and belief, Defendant Kiebler has taken
promote/profits from the sale of properties such as Camelot East and deposited
them in his personal trust accounts such as Suffolk Family Trust.
SAC ¶ 219 - Upon information and belief, Defendant Kiebler has deposited
insurance claim monies received for Camelot East and used those funds as
collateral for a personal loan.
V. PLAINTIFF HAS STATED A VIABLE CLAIM FOR DECLARATORY RELIEF
Defendants assert that Plaintiff’s Second Amended Complaint fails to state a viable claim
for declaratory judgment. Defendants are flatly wrong. Declaratory judgment is the proper
mechanism for ruling upon and granting relief where a plaintiff can establish an alter-ego claim.
Defendants misrepresent well-established doctrines of Ohio corporate law, including alter-ego,
integrated enterprise, and piercing the corporate veil, which this Court must reject. Accordingly,
this Court must deny Defendants’ Motion to Dismiss.
A. Legal Standard
Dismissal of a complaint under Civ.R. 12(B)(6) for failure to state a claim is proper only
when it appears beyond doubt from the complaint that a plaintiff can prove no set of facts entitling
him to relief. Jacobs v. Henderson, Hamilton C.P. No. A2001921, 2020 Ohio Misc. LEXIS 4713,
at *1 (Oct. 8, 2020) (citing O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242,
327 N.E.2d 753 (1975)). A trial court must examine the complaint to determine if the allegations
provide for relief on any possible theory. Fahnbulleh v. Strahan, 73 Ohio St.3d 666, 667, 653
N.E.2d 1186 (1995). In doing so, the Court must presume that all factual allegations of the
complaint are true and make all reasonable inferences in favor of the non-moving party when
evaluating a motion to dismiss. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d
753 (1988). Because it is so easy for a pleader to satisfy the fair notice pleading standard under
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Civ.R. 8(A), courts should dismiss only a few complaints. Wheeler v. Whitney, Lucas C.P. No. CI
19-4503, 2020 Ohio Misc. LEXIS 5059, at *2 (Dec. 29, 2020). Dismissal is further disfavored
when facing alter ego and veil-piercing allegations because they are “fact-sensitive inquir[ies]
which should not be answered until the plaintiffs have had some opportunity to conduct
discovery.” Gold Crest, LLC v. Project Light, LLC, 525 F. Supp. 3d 826, 848 (N.D. Ohio 2021).
B. Defendants Are Subsidiaries of Kiebler-Led Entities.
Defendants assert that the Court cannot find them liable for the obligations of Pepper Pike
Capital Partners, LLC because the Defendants are “sister corporations” with Pepper Pike Capital
Partners, LLC. But these “sister corporation” allegations do not come from Second Amended
Complaint. The interrelationships of the Defendants and other defendants do not exist in the
Second Amended Complaint.
The Court cannot properly consider the Defendants’ unsupported factual assertions or their
“Exhibit A” purported “organizational chart.” Those “facts” are not properly before the Court
under Civ.R. 12 or Civ.R. 56. “Documents that are attached to a motion to dismiss may not be
considered, unless [the trial] court properly converts the matter to a motion for summary judgment
pursuant to Civ.R. 56.” Hersh v. Grumer, 8th Dist. No. 109430, 2021-Ohio-2582, ¶¶ 11-12 (citing
State ex rel. Rice v. Wolaver, 2d Dist. Greene No. 2015 CA 0031, 2016-Ohio-320, ¶ 5). “Civ.R.
12(B) limits consideration to ‘only such matters outside the pleadings as are specifically
enumerated in Rule 56.’” Id. Pursuant to Civ.R. 56(C), a trial court may consider the following
materials when ruling on a summary judgment motion: “pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of
fact * * *. No evidence or stipulation may be considered except as stated in this rule.’” Id.
Defendants have not offered any such admissible material.
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i. Defendants’ Reliance on Minno is Misplaced Because the “Sister
Corporations” Theory Does Not Apply to the Corporate Structure
Alleged in Plaintiff’s Second Amended Complaint.
Even if Defendants’ “sister corporations” allegations were properly before the Court,
Defendants erroneously rely on Minno v. Pro-Fab, Inc., 121 Ohio St.3d 464, 2009-Ohio-1247
(2009) for the proposition that Defendants “cannot be liable for the corporate misdeeds” of Pepper
Pike Capital Partners, LLC because neither corporation has any ownership interest in the other
corporation. Id. at syllabus. Unlike Plaintiff’s allegations, Minno does not “involve the owner of a
corporation misusing his control over that corporation” so traditional veil-piercing under Belvedere
and Dombroski is inapplicable. Id. at 465.
The “sister corporations” theory contemplated in Minno would apply if, for example,
Defendant Mount Prospect Greens Owner, LLC attempted to pierce the corporate veil of another
Promote Defendant that is managed by Defendant Pepper Pike Acquisition Associates, LLC. For
instance, say that Mount Prospect Greens Owner believes that Riverbend Promote, LLC has
committed corporate misdeeds. Both Mount Prospect Greens Owner and Riverbend Promote are
managed by Pepper Pike Acquisition Associates, LLC. [SAC ¶¶ 65, 102]. Assuming that this is
the end of the ownership structure (a necessary assumption to follow the facts of Minno), Mount
Prospect Greens Owner cannot pierce the corporate veil of Riverbend Promote. Despite the
element of common management, Mount Prospect Greens Owner and Riverbend Promote are
unable to exercise control over each other in the manner that Pepper Pike Acquisition Associates,
LLC (their common Manager) can control them. Minno, 121 Ohio St.3d at 468. Mount Prospect
Greens Owner’s lack of control over the conduct of Riverbend Promote precludes the application
of the corporate veil-piercing doctrine. Id.
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These hypothetical circumstances – and the entire legal analysis from Minno – do not apply
to what Plaintiff alleges in his Second Amended Complaint. Plaintiff alleges that Defendant
Kiebler misused his domination and control over all of the Defendant entities and their operations,
including but not limited to, Defendants, promotes, profits, and the property sales. Defendant
Kiebler exercises this domination and control through his ownership, management and exclusive
operation of the various defendant entities. For example, Defendant Kiebler is the Manager of
Defendant Pepper Pike Acquisition Associates, LLC. [SAC ¶¶ 24, 63]. And, Defendant Pepper
Pike Acquisition Associates, LLC is the Manager of Defendant Mount Prospect Greens Owner,
LLC [SAC ¶ 102].
With respect to Defendant Fall Creek Promote, LLC, PPCP and Family Defendants have
admitted that Defendant Suffolk Family Trust is the sole member of Fall Creek Promote, LLC.
[SAC ¶ 107; Family Defendants’ Answer to SAC ¶ 107; PPCP Defendants’ Answer to SAC ¶
107]. Defendants’ assertion that Fall Creek Promote, LLC is a subsidiary of Defendant Pepper
Pike Acquisition Associates, LLC is wrong. [See Defendants’ Motion to Dismiss, p. 1]. There are
numerous Promote Defendants that are owned and/or managed by Defendant Pepper Pike
Acquisition Associates – in fact, thirteen5 of the sixteen Promote Defendants are controlled by
Kiebler through Pepper Pike Acquisition Associates – but Defendant Fall Creek Promote, LLC
is not one of them. Rather, Defendant Suffolk Family Trust is its sole member. [SAC ¶ 107].
Defendant Suffolk Family Trust is the personal trust of both Defendant Kiebler and Defendant
Jody Kiebler. [SAC ¶ 8].
5 The thirteen entities that are owned and/or managed by Pepper Pike Acquisition Associates, LLC are: Pepper
Riverbend Investors, LLC; Pepper Riverbend Promote, LLC; Pepper Warren Harbor Promote, LLC; Hines Park
Promote, LLC; Plymouth Promote, LLC; Riverbend Promote Investors, LLC; Riverbend Promote, LLC; Southgate
Green Promote, LLC; Town & Country Promote, LLC; Nottingham Foundation Promote, LLC; Fountain Parc
Promote, LLC; Mount Prospect Greens Owner, LLC; and 9 on Canal Promote, LLC.
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As such, traditional veil-piercing applies because Plaintiff asserts in his Second Amended
Complaint that Defendant Kiebler has misused his control over the Defendant entities, including
Defendants Mount Prospect Greens Owner, LLC and Fall Creek Promote, LLC. On this basis,
Defendants’ reliance on Minno again is directly misplaced. Cf. Minno, 121 Ohio St.3d at 465
(“Because this situation does not involve the owner of a corporation misusing his control over
[corporations], we conclude that the [traditional veil-piercing] doctrine does not apply.”)
(emphasis added); see also Wick v. Ach, 1st Dist. Hamilton No. C-180243, 2019-Ohio-2405, 139
N.E.3d 480, at ¶ 5 (summarizing that the traditional piercing-the-corporate-veil scenario occurs
where a corporation deemed an alter ego of an individual renders the individual liable for the debts
of the corporation). Because Minno and Wick are wholly inapplicable to the Undisputed Facts and
Plaintiff’s allegations, this Court should disregard these cases. Accordingly, Defendants’ Motion
to Dismiss on this basis is without merit.
ii. A Question of Fact Exists as to Whether Defendants Are a Joint
Employer and/or Part of an Integrated Enterprise.
Furthermore, a question of fact exists as to Plaintiff’s contentions concerning a joint
employer or integrated enterprise. This Court should not dismiss joint employer and/or integrated
enterprise claims at the pleadings stage. Rather, disposition of these claims should occur at the
summary-judgment stage after the completion of discovery. See EEOC v. Jeff Wyler Eastgate, Inc.,
No. 1:03cv662, 2006 U.S. Dist. LEXIS 72344, at *10 (S.D. Ohio Jan. 9, 2006) (summarizing Sixth
Circuit caselaw).
“Integrated enterprise” is a judicially-created doctrine that may be used to impose liability
on one business enterprise for the employment 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
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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 at 9.
Plaintiff clearly pleaded that Defendant Kiebler exercised dominant control over all
Promote Defendants, including Defendants Mount Prospect Greens Owner, LLC and Fall Creek
Promote, LLC. Therefore, a question of fact exists as to whether a joint employer relationship or
integrated enterprise exists. Cf. Wilmot v. Forest City Auto Parts, 8th Dist. Cuyahoga No. 75945,
2000 Ohio App. LEXIS 2734, at *10 (June 22, 2000). Indeed, Promote Defendants admit that they
“are all directly or indirectly owned by Kiebler or the Kiebler Trust, except for the three Promote
Defendants owned by the Suffolk Family Trust.” [See Promote Defendants’ December 5, 2023
Motion to Dismiss, p. 6] (emphasis added).
The Undisputed Facts also establish that Defendant Kiebler (in his personal capacity) made
a $50,000 capital contribution to Defendant Fall Creek Promote, LLC through Defendant Pepper
Pike Acquisition Associates, LLC. This transaction alone plausibly pleads that Defendant Kiebler
has improperly used the corporate structures he has created to his personal advantage as Defendant
Pepper Pike Acquisition Associates, LLC is not within the direct parent-subsidiary relationship of
Defendant Fall Creek Promote, LLC. See, e.g., Pappas v. FM2, LLC, 10th Dist. Franklin No.
17AP-258, 2017-Ohio-8548, 99 N.E.3d 1107, ¶¶ 47-49 (affirming that plaintiff met their veil
piercing burden, in part, because of defendants’ failure to follow corporate formalities).
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The parent-subsidiary relationships between the entities are important, and Plaintiff must
join the intermediary entities to prosecute his claim for declaratory relief. See Meinert Plumbing
v. Warner Indus., 8th Dist. Cuyahoga No. 104817, 2017-Ohio-8863, 90 N.E.3d 966, ¶ 49 (plaintiff
cannot “leapfrog integral entities to make its [alter-ego] case” to pierce “intricate” corporate veil
where claims did not include “intermediate corporate entities.”). Plaintiff has sufficiently alleged
that Defendant Kiebler dominated and controlled Defendants through his control of their parent
companies, leading to misuse, diversion, intermingling, and dissipation of the promote/profit funds
and resources received or managed through the Defendants. Since material issues of fact exist and
construing those facts in favor of Plaintiff, as required on a Motion to Dismiss, the Court cannot
conclude that Plaintiff will fail to prevail. Therefore, Defendants’ Motion to Dismiss wholly fails
and this Court must deny it in its entirety.
C. Reverse Veil Piercing Does Not Apply to Plaintiff’s Claims.
Furthermore, Defendants incorrectly assert that the Court cannot find them liable for the
obligations and actions of Defendant Kiebler based on “reverse veil piercing.” Defendants’
argument is a red-herring because Plaintiff does not plead or rely on this legal theory. Reverse
piercing the corporation veil does not apply here; it is a creditor theory that Ohio courts have
repeatedly rejected. See, e.g., Gershuny v. Gershuny, 1st Dist. Hamilton No. C-140482, 2015-
Ohio-4454, 2015 Ohio App. LEXIS 4357, ¶ 13 (Oct. 28, 2015) (emphasis added), appeal denied,
145 Ohio St.3d 1423, 2016-Ohio-1173, 47 N.E.3d 167 (Mar. 23, 2016); Wick v. Ach, 1st Dist.
Hamilton No. C-180243, 2019-Ohio-2405, 139 N.E.3d 480, 2019 Ohio App. LEXIS 2535 (June
19, 2019); Geiger v. King, 158 Ohio App. 3d 288, 292 (10th Dist. 2004); see also United States
Bank Nat’l Ass’n v. MMCO, LLC, 8th Dist. Cuyahoga No. 110246, 2021-Ohio-4605, 183 N.E.3d
Electronically Filed 02/13/2024 1
Preview
NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas BRIEF IN OPPOSITION February 13,2024 10:37 By: STEPHEN S. ZASHIN 0064557 Confirmation Nbr. 3086136 FRANK J. GORI CV 23 973767 vs. Judge: SHERRIE MIDAY PAUL E. KIEBLERIV, ET AL. Pages Filed: 23 Electronically Filed 02/13/2024 10:37 / BRIEF / CV 23 973767 / Confirmation Nbr. 3086136 / CLDLJ 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 DEFENDANTS MOUNT PROSPECT PAUL E. KIEBLER IV, et al., GREENS OWNER, LLC AND FALL CREEK PROMOTE, LLC’S MOTION Defendants. TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT This Court must deny the Motion to Dismiss1 Plaintiff’s Second Amended Complaint filed by Defendants Mount Prospect Greens Owner, LLC2 and Fall Creek Promote, LLC (hereinafter “Defendants”). Defendants seek to dismiss Plaintiff Frank Gori’s (“Plaintiff”) Second Amended Complaint by spinning an oversimplified theory that this Court can only find Defendant Kiebler and the PPCP Defendants liable for Plaintiff’s claims. But Defendants’ theory completely disregards the reasons for which piercing the corporate veil exists as a remedy. Moreover, the undisputed facts before the Court illustrate that Defendant Kiebler dominates and controls the Defendants through his ownership and management in his personal capacity, as Manager of Pepper Pike Acquisition Associates, LLC, and/or as part of the Suffolk Family Trust. Accordingly, this Court must reject Defendants’ futile arguments and deny their Motion to Dismiss. 1 Twelve “Promote Defendants” moved to dismiss Plaintiff’s Second Amended Complaint on December 5, 2023: Defendants Pepper Riverbend Promote, LLC; Camelot East Holdings, LLC; Farmington Promote, LLC; Hines Park Promote, LLC; Plymouth Promote, LLC; Riverbend Promote Investors, LLC; Riverbend Promote, LLC; Southgate Green Promote, LLC; Town and Country Promote, LLC; Warren Harbor Promote, LLC; Pepper Warren Harbor Promote, LLC; and Nottingham Foundation Promote, LLC. Plaintiff timely opposed these Defendants’ Motion to Dismiss on January 13, 2024. Plaintiff now opposes this Motion to Dismiss filed by Defendants Mount Prospect Greens Owner, LLC and Fall Creek Promote, LLC. 2 Defendant Mount Prospect Greens Owner, LLC also moved to join Promote Defendants’ December 5, 2023 Motion to Dismiss on January 30, 2024. Because Defendant Mount Prospect Greens Owner, LLC was served with process on January 11, 2024 and is within its 28-day period to answer or otherwise respond to Plaintiff’s Second Amended Complaint, with the filing of this Motion to Dismiss, it does not also need to “join” the prior December 5, 2023 Motion. Electronically Filed 02/13/2024 10:37 / BRIEF / CV 23 973767 / Confirmation Nbr. 3086136 / CLDLJ I. INTRODUCTION Importantly, Defendant Nottingham Foundation Promote, LLC already unsuccessfully sought dismissal 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 on the same basis now asserted here. 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 also likewise deny Defendants’ Motion to Dismiss. The standard of review on Defendants’ Motion to Dismiss is the same, and under that standard, Plaintiff has stated viable claims for relief against the moving Defendants. Defendants challenge Count VI of Plaintiff’s Second Amended Complaint seeking declaratory judgment that Defendants are the alter ego of Defendant Kiebler. Defendants mischaracterize the parent-subsidiary corporate structures and improperly attempt to present facts beyond the scope of the Second Amended Complaint. Defendants further cite irrelevant legal doctrines in support of their motion. Because Defendants cannot establish beyond doubt that no Electronically Filed 02/13/2024 10:37 / BRIEF / CV 23 973767 / Confirmation Nbr. 3086136 / CLDLJ set of facts exist upon which Plaintiff could recover against them, Defendants’ Motion wholly fails. 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 harmed by the sale of 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, Defendants’ Motion fails. Only through the remedy of a declaratory judgment piercing the corporate veils of the Defendant entities can this Court adequately protect Plaintiff. II. 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 SAC ¶¶ 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 SAC ¶¶ 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 Plaintiff’s employment. [See SAC ¶¶ 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 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 III, ¶¶ 16-17 below. Electronically Filed 02/13/2024 10:37 / BRIEF / CV 23 973767 / Confirmation Nbr. 3086136 / CLDLJ employment, and after 12 months of Plaintiff’s employment. [See SAC ¶¶ 122-124; see also Exhibits A, B, and C to SAC]. Kiebler presented Plaintiff with two spreadsheets reflecting Kiebler’s calculations of Plaintiff’s projected “deal”-based compensation. [See SAC ¶ 127; see also Exhibits D and E to SAC]. In sum, Plaintiff is entitled to the highest level of incentive compensation as documented by Kiebler because he remained employed as CEO for more than one year. Even though Plaintiff performed all of his obligations under his employment agreement, Kiebler terminated Plaintiff’s employment on August 13, 2021. [See SAC ¶¶ 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 SAC ¶ 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 SAC ¶ 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 under scrutiny. Defendant Kiebler, as Manager of Pepper Pike Acquisition Associates, LLC, or through the Suffolk Family Trust, dominates and controls Promote Defendants. Plaintiff has sufficiently pled allegations that Defendant Kiebler, PPCP Defendants, and Family Defendants are alter-egos that control and dominate Defendants. Therefore, Defendants’ Motion to Dismiss must be denied. Electronically Filed 02/13/2024 10:37 / BRIEF / CV 23 973767 / Confirmation Nbr. 3086136 / CLDLJ III. UNDISPUTED FACTS BEFORE THE COURT Before the Court are the following undisputed facts based on other party-defendants’ admissions. Facts related to the Defendants are in bold typeface: 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); Electronically Filed 02/13/2024 10:37 / BRIEF / CV 23 973767 / Confirmation Nbr. 3086136 / CLDLJ 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 Defendant Pepper Riverbend Investors, LLC (SAC ¶ 26, Family Defendants’ Answer to SAC ¶ 26; PPCP Defendants’ Answer to SAC ¶ 26); 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, LLC 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 Electronically Filed 02/13/2024 10:37 / BRIEF / CV 23 973767 / Confirmation Nbr. 3086136 / CLDLJ ¶ 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); 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); Electronically Filed 02/13/2024 10:37 / BRIEF / CV 23 973767 / Confirmation Nbr. 3086136 / CLDLJ 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); 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); Electronically Filed 02/13/2024 10:37 / BRIEF / CV 23 973767 / Confirmation Nbr. 3086136 / CLDLJ 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); 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 Electronically Filed 02/13/2024 10:37 / BRIEF / CV 23 973767 / Confirmation Nbr. 3086136 / CLDLJ 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). These undisputed facts establish that Defendant Kiebler, his spouse Jody Kiebler, and/or his Trusts dominate and control, not only the PPCP Defendants, but also the moving Defendants, Promote Defendants, and “Family”4 Defendants, including Pepper Pike Acquisition Associates, LLC and Suffolk Family Trust. Defendants cannot support their Motion to Dismiss by adding additional and unsupported factual allegations for the Court to consider. IV. PLAINTIFF’S ALLEGATIONS AGAINST THE PROMOTE DEFENDANTS Plaintiff alleges in his Second Amended Complaint, inter alia, that Defendant Kiebler and the various named Defendants are alter-egos, that the entities are dominated and controlled by Defendant Kiebler, and that the Defendants have failed to follow corporate formalities, intermingled funds, and otherwise operated such that the corporate entities have no separate mind, will, or existence. Plaintiff therefore seeks to pierce the corporate veil of the defendant entities. Specifically, Plaintiff alleges as follows regarding the promote/profit earnings generated by Promote Defendants, Defendant Kiebler’s misuse of those earnings, and Defendant Kiebler’s domination and control over the Promote Defendant entities: SAC ¶ 45 - Kiebler has promised the sharing of acquisition fees and promote/profit earnings to high-level executives as compensation to perform work for PPCP and its affiliated entities. SAC ¶ 46 - Kiebler has paid former and existing employees of the PPCP Defendants shares of acquisition, management, construction fees and promote/profit earnings 4 Plaintiff identified the “Family Defendants” in his Second Amended Complaint as the “Kiebler Defendants.” Those same Defendants, through their counsel, now have identified themselves as the “Family Defendants” in an apparent attempt to characterize themselves as distinct and separate from the “non-Family” Kiebler/PPCP and “Promote” Defendants. However, no clear delineation exists between “Family” and “non-Family” Defendants. Instead, the undisputed facts already established by Plaintiff demonstrate the complicated and intricate web of overlapping ownership, management, and control of the “Family Defendants” by the “non-Family” Defendants and especially Defendant Paul Kiebler. Electronically Filed 02/13/2024 10:37 / BRIEF / CV 23 973767 / Confirmation Nbr. 3086136 / CLDLJ through checks issued by Pepper Pike Acquisition Associates, LLC and the other PPCP Defendants. SAC ¶ 47 - Acquisition fees and promote/profit earnings on each property sold by the PPCP Defendants and their affiliates typically exceed $10M. SAC ¶ 48 - Defendant Mount Prospect Greens Owner, LLC obtained a promote distribution of more than $12 million from the underlying sale of the property. SAC ¶ 49 - Due to the high-reward nature of these promote distributions, acquisition fees and promote/profit earnings are often the subject of litigation if unpaid. SAC ¶ 50 - 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. SAC ¶ 51 - Defendant Kiebler, through Pepper Pike Acquisition Associates, LLC, made a $50,000 capital contribution towards Defendant Fall Creek Promote, LLC. SAC ¶ 52 – Pepper Pike Acquisition Associates, LLC receives a percentage of each promote distribution on the properties sold by the PPCP Defendants and their affiliates. SAC ¶ 54 - Upon information and belief, Defendant Kiebler has taken promote/profits from the sale of properties such as Camelot East and deposited them in his personal trust accounts such as the Suffolk Family Trust; deposited insurance claim monies received for Camelot East and used those funds as collateral for a personal loan; and withdrawn investor partnership monies to fund his personal business expenses such as office lease/rent payments and to fund other property acquisition projects. SAC ¶ 55 - Upon information and belief, Defendant Kiebler has likewise comingled funds and used funds for Defendant Kiebler’s personal debts; taken company promote profits for personal use; used partnership monies for personal expenses; moved partnership and promote entity monies to Pepper Pike Capital Partners; used partnership monies to make deposits to 9 on Canal and other properties under development; made loans between the PPCP Defendants and Pepper Pike Acquisition Associates; used partnership monies to pay interest expenses on Kiebler’s personal lines of credit; and disregarded the corporate structures, accounting and finance roles of the various LLC entities he created. SAC ¶ 61 - Defendant Suffolk Acquisition, LLC is the organization through which Kiebler owns personal property and transferred for his personal use the Electronically Filed 02/13/2024 10:37 / BRIEF / CV 23 973767 / Confirmation Nbr. 3086136 / CLDLJ promote/profits received by Defendant PPCP at the time of sale of various properties, including but not limited to Camelot East. SAC ¶ 119 - Kiebler stated that he personally did not take a salary but instead was paid exclusively out of the acquisition fees and promote/profit earned on the developed properties at the time of sale through Defendant Pepper Pike Acquisition Associates, LLC and the other named Kiebler Defendants. SAC ¶ 141 - 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 ¶ 142 - During Plaintiff’s tenure as CEO, PPCP acquired and began development on an additional five properties known as Southgate Green (Michigan), Hines Park Place (Michigan), Fountain Parc (Indianapolis), 9 on Canal (Indianapolis), and Town & Country (Michigan). SAC ¶ 143 - Plaintiff is entitled to compensation from the sale of each of the nine existing and five acquired properties at the increasing scaled percentages of the promote/profit generated on each sale as set forth in Exhibits A, B and C. SAC ¶ 144 - Plaintiff’s acquisition, management, and construction fees and promote/profit compensation are separate from his monthly salary component of $18,000 and car payment of $2,000 from Pepper Pike Staffing, LLC, which would be issued via direct deposit to Plaintiff’s bank account. SAC ¶ 145 - Kiebler issues checks through Pepper Pike Acquisition Associates, LLC to tender promote/profit compensation to employees and investors. SAC ¶ 212 - Upon information and belief, Defendant Kiebler has used funds from the Defendant entities for his personal and housing debts. SAC ¶ 213 - Upon information and belief, Defendant Kiebler has misappropriated funds for family use and debts. SAC ¶ 214 - Upon information and belief, Defendant Kiebler has spent thousands of dollars of funds from the Defendant entities to pay for his personal hobbies. SAC ¶ 215 - Upon information and belief, Defendant Kiebler has also used partnership monies for personal expenses, moved partnership and promote entity monies to Pepper Pike Capital Partners, used partnership monies to make deposits to 9 on Canal and other properties under development, made loans between the PPCP Defendants and Pepper Pike Acquisition Associates, and used partnership monies to pay interest expenses on Kiebler’s personal lines of credit. Electronically Filed 02/13/2024 10:37 / BRIEF / CV 23 973767 / Confirmation Nbr. 3086136 / CLDLJ SAC ¶ 216 - Through these financial transactions, Kiebler has disregarded the corporate structures, accounting, and finance roles of the various LLC entities he created. SAC ¶ 218 - Upon information and belief, Defendant Kiebler has taken promote/profits from the sale of properties such as Camelot East and deposited them in his personal trust accounts such as Suffolk Family Trust. SAC ¶ 219 - Upon information and belief, Defendant Kiebler has deposited insurance claim monies received for Camelot East and used those funds as collateral for a personal loan. V. PLAINTIFF HAS STATED A VIABLE CLAIM FOR DECLARATORY RELIEF Defendants assert that Plaintiff’s Second Amended Complaint fails to state a viable claim for declaratory judgment. Defendants are flatly wrong. Declaratory judgment is the proper mechanism for ruling upon and granting relief where a plaintiff can establish an alter-ego claim. Defendants misrepresent well-established doctrines of Ohio corporate law, including alter-ego, integrated enterprise, and piercing the corporate veil, which this Court must reject. Accordingly, this Court must deny Defendants’ Motion to Dismiss. A. Legal Standard Dismissal of a complaint under Civ.R. 12(B)(6) for failure to state a claim is proper only when it appears beyond doubt from the complaint that a plaintiff can prove no set of facts entitling him to relief. Jacobs v. Henderson, Hamilton C.P. No. A2001921, 2020 Ohio Misc. LEXIS 4713, at *1 (Oct. 8, 2020) (citing O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975)). A trial court must examine the complaint to determine if the allegations provide for relief on any possible theory. Fahnbulleh v. Strahan, 73 Ohio St.3d 666, 667, 653 N.E.2d 1186 (1995). In doing so, the Court must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the non-moving party when evaluating a motion to dismiss. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). Because it is so easy for a pleader to satisfy the fair notice pleading standard under Electronically Filed 02/13/2024 10:37 / BRIEF / CV 23 973767 / Confirmation Nbr. 3086136 / CLDLJ Civ.R. 8(A), courts should dismiss only a few complaints. Wheeler v. Whitney, Lucas C.P. No. CI 19-4503, 2020 Ohio Misc. LEXIS 5059, at *2 (Dec. 29, 2020). Dismissal is further disfavored when facing alter ego and veil-piercing allegations because they are “fact-sensitive inquir[ies] which should not be answered until the plaintiffs have had some opportunity to conduct discovery.” Gold Crest, LLC v. Project Light, LLC, 525 F. Supp. 3d 826, 848 (N.D. Ohio 2021). B. Defendants Are Subsidiaries of Kiebler-Led Entities. Defendants assert that the Court cannot find them liable for the obligations of Pepper Pike Capital Partners, LLC because the Defendants are “sister corporations” with Pepper Pike Capital Partners, LLC. But these “sister corporation” allegations do not come from Second Amended Complaint. The interrelationships of the Defendants and other defendants do not exist in the Second Amended Complaint. The Court cannot properly consider the Defendants’ unsupported factual assertions or their “Exhibit A” purported “organizational chart.” Those “facts” are not properly before the Court under Civ.R. 12 or Civ.R. 56. “Documents that are attached to a motion to dismiss may not be considered, unless [the trial] court properly converts the matter to a motion for summary judgment pursuant to Civ.R. 56.” Hersh v. Grumer, 8th Dist. No. 109430, 2021-Ohio-2582, ¶¶ 11-12 (citing State ex rel. Rice v. Wolaver, 2d Dist. Greene No. 2015 CA 0031, 2016-Ohio-320, ¶ 5). “Civ.R. 12(B) limits consideration to ‘only such matters outside the pleadings as are specifically enumerated in Rule 56.’” Id. Pursuant to Civ.R. 56(C), a trial court may consider the following materials when ruling on a summary judgment motion: “pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact * * *. No evidence or stipulation may be considered except as stated in this rule.’” Id. Defendants have not offered any such admissible material. Electronically Filed 02/13/2024 10:37 / BRIEF / CV 23 973767 / Confirmation Nbr. 3086136 / CLDLJ i. Defendants’ Reliance on Minno is Misplaced Because the “Sister Corporations” Theory Does Not Apply to the Corporate Structure Alleged in Plaintiff’s Second Amended Complaint. Even if Defendants’ “sister corporations” allegations were properly before the Court, Defendants erroneously rely on Minno v. Pro-Fab, Inc., 121 Ohio St.3d 464, 2009-Ohio-1247 (2009) for the proposition that Defendants “cannot be liable for the corporate misdeeds” of Pepper Pike Capital Partners, LLC because neither corporation has any ownership interest in the other corporation. Id. at syllabus. Unlike Plaintiff’s allegations, Minno does not “involve the owner of a corporation misusing his control over that corporation” so traditional veil-piercing under Belvedere and Dombroski is inapplicable. Id. at 465. The “sister corporations” theory contemplated in Minno would apply if, for example, Defendant Mount Prospect Greens Owner, LLC attempted to pierce the corporate veil of another Promote Defendant that is managed by Defendant Pepper Pike Acquisition Associates, LLC. For instance, say that Mount Prospect Greens Owner believes that Riverbend Promote, LLC has committed corporate misdeeds. Both Mount Prospect Greens Owner and Riverbend Promote are managed by Pepper Pike Acquisition Associates, LLC. [SAC ¶¶ 65, 102]. Assuming that this is the end of the ownership structure (a necessary assumption to follow the facts of Minno), Mount Prospect Greens Owner cannot pierce the corporate veil of Riverbend Promote. Despite the element of common management, Mount Prospect Greens Owner and Riverbend Promote are unable to exercise control over each other in the manner that Pepper Pike Acquisition Associates, LLC (their common Manager) can control them. Minno, 121 Ohio St.3d at 468. Mount Prospect Greens Owner’s lack of control over the conduct of Riverbend Promote precludes the application of the corporate veil-piercing doctrine. Id. Electronically Filed 02/13/2024 10:37 / BRIEF / CV 23 973767 / Confirmation Nbr. 3086136 / CLDLJ These hypothetical circumstances – and the entire legal analysis from Minno – do not apply to what Plaintiff alleges in his Second Amended Complaint. Plaintiff alleges that Defendant Kiebler misused his domination and control over all of the Defendant entities and their operations, including but not limited to, Defendants, promotes, profits, and the property sales. Defendant Kiebler exercises this domination and control through his ownership, management and exclusive operation of the various defendant entities. For example, Defendant Kiebler is the Manager of Defendant Pepper Pike Acquisition Associates, LLC. [SAC ¶¶ 24, 63]. And, Defendant Pepper Pike Acquisition Associates, LLC is the Manager of Defendant Mount Prospect Greens Owner, LLC [SAC ¶ 102]. With respect to Defendant Fall Creek Promote, LLC, PPCP and Family Defendants have admitted that Defendant Suffolk Family Trust is the sole member of Fall Creek Promote, LLC. [SAC ¶ 107; Family Defendants’ Answer to SAC ¶ 107; PPCP Defendants’ Answer to SAC ¶ 107]. Defendants’ assertion that Fall Creek Promote, LLC is a subsidiary of Defendant Pepper Pike Acquisition Associates, LLC is wrong. [See Defendants’ Motion to Dismiss, p. 1]. There are numerous Promote Defendants that are owned and/or managed by Defendant Pepper Pike Acquisition Associates – in fact, thirteen5 of the sixteen Promote Defendants are controlled by Kiebler through Pepper Pike Acquisition Associates – but Defendant Fall Creek Promote, LLC is not one of them. Rather, Defendant Suffolk Family Trust is its sole member. [SAC ¶ 107]. Defendant Suffolk Family Trust is the personal trust of both Defendant Kiebler and Defendant Jody Kiebler. [SAC ¶ 8]. 5 The thirteen entities that are owned and/or managed by Pepper Pike Acquisition Associates, LLC are: Pepper Riverbend Investors, LLC; Pepper Riverbend Promote, LLC; Pepper Warren Harbor Promote, LLC; Hines Park Promote, LLC; Plymouth Promote, LLC; Riverbend Promote Investors, LLC; Riverbend Promote, LLC; Southgate Green Promote, LLC; Town & Country Promote, LLC; Nottingham Foundation Promote, LLC; Fountain Parc Promote, LLC; Mount Prospect Greens Owner, LLC; and 9 on Canal Promote, LLC. Electronically Filed 02/13/2024 10:37 / BRIEF / CV 23 973767 / Confirmation Nbr. 3086136 / CLDLJ As such, traditional veil-piercing applies because Plaintiff asserts in his Second Amended Complaint that Defendant Kiebler has misused his control over the Defendant entities, including Defendants Mount Prospect Greens Owner, LLC and Fall Creek Promote, LLC. On this basis, Defendants’ reliance on Minno again is directly misplaced. Cf. Minno, 121 Ohio St.3d at 465 (“Because this situation does not involve the owner of a corporation misusing his control over [corporations], we conclude that the [traditional veil-piercing] doctrine does not apply.”) (emphasis added); see also Wick v. Ach, 1st Dist. Hamilton No. C-180243, 2019-Ohio-2405, 139 N.E.3d 480, at ¶ 5 (summarizing that the traditional piercing-the-corporate-veil scenario occurs where a corporation deemed an alter ego of an individual renders the individual liable for the debts of the corporation). Because Minno and Wick are wholly inapplicable to the Undisputed Facts and Plaintiff’s allegations, this Court should disregard these cases. Accordingly, Defendants’ Motion to Dismiss on this basis is without merit. ii. A Question of Fact Exists as to Whether Defendants Are a Joint Employer and/or Part of an Integrated Enterprise. Furthermore, a question of fact exists as to Plaintiff’s contentions concerning a joint employer or integrated enterprise. This Court should not dismiss joint employer and/or integrated enterprise claims at the pleadings stage. Rather, disposition of these claims should occur at the summary-judgment stage after the completion of discovery. See EEOC v. Jeff Wyler Eastgate, Inc., No. 1:03cv662, 2006 U.S. Dist. LEXIS 72344, at *10 (S.D. Ohio Jan. 9, 2006) (summarizing Sixth Circuit caselaw). “Integrated enterprise” is a judicially-created doctrine that may be used to impose liability on one business enterprise for the employment 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 Electronically Filed 02/13/2024 10:37 / BRIEF / CV 23 973767 / Confirmation Nbr. 3086136 / CLDLJ 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 at 9. Plaintiff clearly pleaded that Defendant Kiebler exercised dominant control over all Promote Defendants, including Defendants Mount Prospect Greens Owner, LLC and Fall Creek Promote, LLC. Therefore, a question of fact exists as to whether a joint employer relationship or integrated enterprise exists. Cf. Wilmot v. Forest City Auto Parts, 8th Dist. Cuyahoga No. 75945, 2000 Ohio App. LEXIS 2734, at *10 (June 22, 2000). Indeed, Promote Defendants admit that they “are all directly or indirectly owned by Kiebler or the Kiebler Trust, except for the three Promote Defendants owned by the Suffolk Family Trust.” [See Promote Defendants’ December 5, 2023 Motion to Dismiss, p. 6] (emphasis added). The Undisputed Facts also establish that Defendant Kiebler (in his personal capacity) made a $50,000 capital contribution to Defendant Fall Creek Promote, LLC through Defendant Pepper Pike Acquisition Associates, LLC. This transaction alone plausibly pleads that Defendant Kiebler has improperly used the corporate structures he has created to his personal advantage as Defendant Pepper Pike Acquisition Associates, LLC is not within the direct parent-subsidiary relationship of Defendant Fall Creek Promote, LLC. See, e.g., Pappas v. FM2, LLC, 10th Dist. Franklin No. 17AP-258, 2017-Ohio-8548, 99 N.E.3d 1107, ¶¶ 47-49 (affirming that plaintiff met their veil piercing burden, in part, because of defendants’ failure to follow corporate formalities). Electronically Filed 02/13/2024 10:37 / BRIEF / CV 23 973767 / Confirmation Nbr. 3086136 / CLDLJ The parent-subsidiary relationships between the entities are important, and Plaintiff must join the intermediary entities to prosecute his claim for declaratory relief. See Meinert Plumbing v. Warner Indus., 8th Dist. Cuyahoga No. 104817, 2017-Ohio-8863, 90 N.E.3d 966, ¶ 49 (plaintiff cannot “leapfrog integral entities to make its [alter-ego] case” to pierce “intricate” corporate veil where claims did not include “intermediate corporate entities.”). Plaintiff has sufficiently alleged that Defendant Kiebler dominated and controlled Defendants through his control of their parent companies, leading to misuse, diversion, intermingling, and dissipation of the promote/profit funds and resources received or managed through the Defendants. Since material issues of fact exist and construing those facts in favor of Plaintiff, as required on a Motion to Dismiss, the Court cannot conclude that Plaintiff will fail to prevail. Therefore, Defendants’ Motion to Dismiss wholly fails and this Court must deny it in its entirety. C. Reverse Veil Piercing Does Not Apply to Plaintiff’s Claims. Furthermore, Defendants incorrectly assert that the Court cannot find them liable for the obligations and actions of Defendant Kiebler based on “reverse veil piercing.” Defendants’ argument is a red-herring because Plaintiff does not plead or rely on this legal theory. Reverse piercing the corporation veil does not apply here; it is a creditor theory that Ohio courts have repeatedly rejected. See, e.g., Gershuny v. Gershuny, 1st Dist. Hamilton No. C-140482, 2015- Ohio-4454, 2015 Ohio App. LEXIS 4357, ¶ 13 (Oct. 28, 2015) (emphasis added), appeal denied, 145 Ohio St.3d 1423, 2016-Ohio-1173, 47 N.E.3d 167 (Mar. 23, 2016); Wick v. Ach, 1st Dist. Hamilton No. C-180243, 2019-Ohio-2405, 139 N.E.3d 480, 2019 Ohio App. LEXIS 2535 (June 19, 2019); Geiger v. King, 158 Ohio App. 3d 288, 292 (10th Dist. 2004); see also United States Bank Nat’l Ass’n v. MMCO, LLC, 8th Dist. Cuyahoga No. 110246, 2021-Ohio-4605, 183 N.E.3d Electronically Filed 02/13/2024 1