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Supreme Court of Ohio Clerk of Court - Filed September 06, 2023 - Case No. 2023-1135
IN THE SUPREME COURT OF OHIO
THE MISSION ESSENTIAL GROUP,
LLC,
Defendant — Appellant, On Appeal from the Franklin County
Court of Appeals, Tenth Appellate
Vv. District
CHRIS W. MILLER,
Court of Appeals
and Case Nos. 22 AP-448 and 449
SCOTT A. HUMPHRYS, TRUSTEE
OF THE SCOTT A. HUMPHRYS
TRUST AGREEMENT,
Plaintiffs — Appellees.
APPELLANT THE MISSION ESSENTIAL GROUP, LLC’S
MOTON FOR IMMEDIATE STAY OF COURT OF APPEALS’ JUDGMENT
Anthony C. White (0062146) Katherine Connor Ferguson (0079207)
COUNSEL OF RECORD Lindsay M. Nelson (0095560)
Tony. White@ThompsonHine.com KOOPERMAN MENTEL FERGUSON
Thomas Wyatt Palmer (0072816) YAROSS
Thomas.Palmer@ThompsonHine.com 100 South 4th Street, Suite 100
Thompson Hine LLP Columbus, Ohio 43215
41 S. High St., Suite 1700 Telephone: (614) 344-4800
Columbus, Ohio 43215 kferguson@kmfylaw.com
614 469-3200 Inelson@kmfylaw.com
614 469-3361 facsimile
COUNSEL FOR APPELLANT and
THE MISSION ESSENTIAL GROUP, LLC
Rick L. Ashton (0077768)
Allen Stovall Neuman Fisher & Ashton LLP
17 South High street, Suite 1220
Columbus, Ohio 43215
Telephone; (614) 221-8500
Facsimile: (614) 221-5988
Email: ashton@asnalaw.com
COUNSEL FOR APPELLEES CHRIS W.
MILLER SCOTT A, HUMPHRYS, TRUSTEE
OF THE SCOTT A. HUMPHRYS
TRUST AGREEMENT
oe
Sas
EXHIBIT
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I INTRODUCTION
Pursuant to Rule of Practice 7.01(A)(3), Appellant The Mission Essential Group, LLC
(‘Mission Essential”) respectfully moves the Court to immediately stay the Tenth District Court
of Appeals’ August 31, 2023 judgment from which this appeal arises.!
In one fell swoop, the Tenth District reversed 68-years of established law that lack of
marketability and minority status are relevant to and must be considered to determine the fair
cash value of a dissenting owner’s interest in a business entity. As a result of that departure from
this Court’s legal precedent, the Court of Appeals improvidently increased the trial court’s
judgment against Mission Essential by approximately $4,750,000 including interest. $4,750,000
that Mission Essential simply does not have.
If the Court of Appeals’ judgment is carried into effect while this appeal is pending,
Mission Essential will be in default of its lending agreement, will be unable to make payroll, will
lose its government contracts, and will be forced into bankruptcy. 750 employees will lose their
jobs. That irreparable harm cannot be unwound should the Court accept jurisdiction and later
tule in Mission Essential’s favor. It will be too late. A stay is needed to prevent such drastic and
irreversible consequences, especially in light of the grave error committed by the Tenth District
explained below and the fact that Appellees are already the beneficiaries of a $12 million
supetsedeas bond?
IL THIS SPECIAL PROCEEDING
This appeal arises out of a dissenters rights special proceeding started by Appellees under
Revised Code 1705,41 and .42, in which Appellees sought a court-ordered buyout of their
1 Date-stamped copies of the Court of Appeals’ Decision and Judgment Entry are attached as
Exhibit 1,
? Mission Essential posted a supersedeas bond naming Appellees as beneficiaries in the amount
of $11,947,811. A copy is attached as Exhibit 2. See Rule of Practice 4.01(A)(2).
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ownership interest in Mission Essential, Revised Code 1705.41 and 1705.42 provide that when a
member of a limited liability company dissents against an LLC merging, that member may
demand that the company pay the fair cash value of the member’s ownership interest. If the LLC
and the dissenting member cannot agree upon value, and if the LLC’s operating agreement does
not provide a reasonable basis for determining and paying value, then the member may initiate a
special proceeding, by which a trial court makes findings as to the fair cash value of the
dissenting member’s interests and orders the company to pay that amount to the member.
The trial court ruled that Appellee Chris Miller’s 6 percent membership interest is worth
$3,910,000 and that Appellee the Scott A. Humphrys Trust Agreement’s (“Humphrys Trust”) 10
percent membership interest is worth $6,520,000. The trial court applied discounts for the lack
of marketability and minority interest attendant to Appellees’ combined 16 percent ownership
interest and the fact that Mission Essential is a small privately held company. (June 23, 2022
Decision & Judgment; June 24, 2022 Nunc Pro Tunc Decision & Judgment.)
All parties appealed to the Tenth District, Pertinent to the instant Motion, the Court of
Appeals reversed the portion of the trial court’s decision applying discounts for lack of
marketability and minority status, increased the value of Appellees’ membership interests to
$5,130,000 and $8,550,000, respectively, and remanded the case for the trial court to enter
judgment accordingly. See Miller v. Mission Essential Group, L.L.C., 2023-Ohio-3077, {{{103-
113,
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It. THE PARTIES
A Appellees Always Were Minority Owners Of Mission Essential And Never
Had Any Ability To Influence Company Policy
The Mission Essential Group’s predecessor, Mission Essential Personnel, was founded by
four initial members, Those initial members and their corresponding ownership interests were:
e Greg Miller 42% 420 Class A Units
. Chad Monnin 42% 420 Class A Units
e Humphrys Trust 10% 100 Class A Units
e Chris Miller 6% 60 Class A Units
(Sept. 19, 2019 2nd Am. Compl. at p. 2 4 6; Oct. 4, 2019 Answer at p. 2 ¥ 6.)
In 2012, all four members signed the Company’s 4" Operating Agreement. (Id. at p. 3 {
7 and at Ex. A, pp. 22-24.) Accordingly, and years before the current dispute began, Appellees
agreed that the Mission Essential would operate as follows:
1 The company would be managed by a Board of Managers comprised of its
members each with voting power equal to his total number of membership Units.
(Id. at Ex. A, p.7§ 5.1.)
Two-thirds of the managers’ voting power must be present at a Board meeting to
form a quorum. (Id. at § 5.2(b).)
Two-thirds of the managers’ voting power present at a Board meeting is required
for the managers to act. (Id.)
Members holding two-thirds of the company’s outstanding membership Units
must be present to form a quorum at a member meeting. (Id. at pp. 9-10 § 6.2.)
Two-thirds of the members’ voting power present at a member meeting is
required for the members to act. (/d.)
Thus, Appellees, holding a collective 16 percent minority interest, never had the power to
effectuate any company action, Even joined with either Mr. Monnin’s or Greg Miller’s 42
percent, Appellees still could not form a quorum, act on behalf of the Board, or take member
action.
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B. Appellees Made Mr. Miller The Supermajority Owner Of Mission Essential
In December 2015, Greg Miller purchased Mr. Monnin’s 42 percent interest to become
the 84 percent owner of Mission Essential Personnel. (Sept. 19, 2019 2nd Am. Compl. at p. 4 {
16; Oct. 4, 2019 Answer at p. 2] 16.) Appellees approved Greg Miller’s purchase, and they
were compensated for their approval with a distribution from the company. (Sept. 13, 2021
Objections to Preliminary Report at Ex. 7.) Appellees made it so that Greg Miller alone formed
a quorum of the Board, alone formed a quorum of members, and only his vote could qualify as
an.act of the Board or the members. Important to the issues before this Court, Appellees
voluntarily chose to make their minority interests irrelevant to the Company’s operations and
therefore less valuable.
Iv. FOR THE PAST SIXTY-EIGHT YEARS, FAIR CASH VALUE IS A MARKET
VALUE STANDARD, WHICH INCLUDES DISCOUNTS FOR LACK OF
MARKETABILITY AND MINORITY STATUS
General Code 8623-723 first governed dissenter’s rights and the payment of fair cash
value. At that time, this Court interpreted the General Code’s definition of fair cash value to
mean intrinsic value, and thus held that a trial court erred by instructing court-appointed
appraisers that fair cash value means a price determined by the willing seller-willing buyer-test,
because that test reflects market value. See Roessler v. Security Sav. & Loan Co., 147 Ohio St.
480, 484 (1947):
By that part of the instruction, the court made market value the
basic test in determining fair cash value of the shares, and all the
subsequent parts of the instruction as to the factors which might be
considered in determining such value did not cure the error of the
court in making market value the basic test in determining the fair
cash value of such shares instead of intrinsic value,
3 Attached as Exhibit 3.
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The General Assembly subsequently rejected the Roess/er intrinsic value definition when
it enacted Revised Cade 1701.85(C) adopting the same willing seller-willing buyer test that
exists in Revised Code 1705.42(B), 1776.78(C), id 1782.437(B). To be sure, this Court set
forth the following comprehensive analysis that leaves no doubt that the willing seller-willing
buyer test determines market value and differs from the former intrinsic, pro rata standard.
[Aggy The: [795] prior sectlon‘of te Gerieral Goda
did nok: Include-:a’ definition .of- “fair cash: value,"
Accordingly, this: coutti.in Bessie He Seoul sauna
0..(194 147.
ALE: 2d 289; defined the: ae iri ne a eae ti
the: Syllabus; ag follows:
The ‘fal: cash: value! whidl a. dissenting
shateholde corporation is‘eniltle facalve Is
stares. itr ng: ght: pul Seal
8625-72; Go Cod is the: Intrinsic [**2 valui@.of
thes ad front tid lablltias oF
such UPON.cet ral f. every, factor
bearing, on value." (Emphasis added:
This til Rossel found that the: trial
Nad sived [ninstructiig: the: appraiser rs that."falr:eash
value" mei illing
i
buyer would purchase. stor mM Hi Mer Lee
the "inarkeb value" 9} dk. It Wass then-delermined
thal on etd ier;
Ithat tidtitat valié;may be less thary'the Inlyinsl: value
Subsea nd. by: wh
terme ety
anvicled. HAE) live, Cctober
14,4088 2 lo: Laws 432,'486),:whicl provided for
the: detinitlon’ 6 Yale GASH velué® aa: the: ilihgeselre
wliting: er tast,.
Sig Hath AA: “HHS? OnI..'Sk Bar
lation: “Col ith ‘which: recon he
addition:pfthe:d ions to this. settion, fated:
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‘Division (CG), This “divialo filaing a tequently. tied
detinition. OFM ‘past, val e: This-defial is on that is
found. liv a-great mass. of judicial decisions:both'in Ohio
‘and Lge fe IN UGation: ‘Involving the: value: of
property appropriation sills;
‘gottroversies, and ‘other’ legal eedings. in’ wi i
properly ust Aluod.. (fis bel aUthig
will give the: Bar. a clearer’ test than that oF tnfrhnle
Value established by the Supteitie’ rhein esslor vy,
‘Security Savi an: sit 1470.8. 480 io
‘Bai. 102 (an. 40,4968).
As held'In Vought, afd emphasized In Patten, HNA1(F)
the Ohio: statute provides for the willing seller-willing
buyer standard, which is the market value definition, It
See Armstrongv. Marathon Oil Co., 32 Ohio St.3d 397, 406, 411 (1987).
Since then, Ohio courts have consistently followed this Court’s directive in Armstrong to
determine fait cash value using the willing seller-willing buyer market analysis, which requires
consideration of the dissenter’s minority ownership and its lack of marketability. For example.
The Ninth District affirmed the trial court discounting that dissenter’s shares for lack of
marketability and minority status
Prior-to.the:adoption:of R.C.'1707:86,.the Supreme
Court In Reéssier v, Security Savin & Loan:
(1 147° Ohiie: St, 480, plied the." Intrinsic’ Value"
for determining fait ash, Valije, HNAPE] The
le te, ] however; Inv adopting: RC. 1701/85
provided the TSC Adard to. be“émployed. if
‘determining falf dash value is
™ € Sie amoilfit, Whlct 4: willing: Sellef, “under rio
compl n-to, would be: willing to. accept, and-which,
‘awilling buye tind Hi:compulsion ‘torpurchase; would
be willing toy pay),
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The: Franklin County ‘Court’ of Appeals. in: reviewing
Roaslet carid; overruling by: ja legislature: by the
adaption ‘Of R 701,85; sed a “hypothetical
buyel Seller: Vought v: ‘Republic: -
Franklin S.C (4962! » ALT cert
denied. March 6, 1968, (tsald at'300,301,
“esis HNITE] ‘objsctlve: if atiopting, the. stadt
(hypothetical, market) isi fot to meastire ‘value: by: a
actual: market but rather: bya hypothetical. ‘one, Such,
standard, erally will. permit evideniee'te:be introduced:
a8ito'atiy factor ich'a fiablé:man would take into:
considerati termining Value; **
We agtee with thé tedsoning: IN Vought that to measure:
the: -value: of the. stock, ¢ court ‘should employ: @
hypothetical tarket of ‘buyers and selierg “arid: to:
consider: any. factors thatd reasotablétidh Would-use
in-assesstig
is : fe the value of the shares.
Jn the Gas6"sub:[*4] judigé,; the ‘trial ‘couirt detarnilhed
that-appell lant’ shares: |i keon Standard. anid. Zero,
both closely hel amily run corporations, lacked
Marketability It further determined ‘that because
ap allaht owned only asitall- tilnerity ‘Interest’ in: both:
firms,. a therefor his shares: would allow en
minimal, anys erie: er” company’ polley,.4
prospéctly Phot be Willing'te pay. a8: triuch
fort iHres: as falght ottierwise be:the ¢
this reasoning eminently iogical, Th ,we-conel that
the’'trlal court did not ert by: taking ‘account: lack:of
Markétability arid tihofify: interést’ when valuing
appellant's: shates of Stock
See Std, Meats & Foods v. Calle, 9th Dist. Summit No. 10130, 1981 Ohio App. LEXIS 13656.
*3-4 (Oct. 7, 1981),
The Seventh District too acknowledges that fair cash value is not determined by a strict
pro rata share of the corporation’s total value (i.¢. fair value), and thus ruled that marketability
must be considered to value specific shares, otherwise value would be artificially increased.
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lh: ‘appellant's: second assignment of error, she contends
that a discount for lack of marketability Is Imptopet in
light‘of thS.definition of “fair cash value" set forth'iIn A.C,
1701, 88(C).
The GhiosSuprama: Court fi Armstrong,
mistrong; supra, at,
Su)
haat at ‘Gasl allie: Is notte be
determin bash of th res,
‘ofthe: corporatio ‘and ‘that C70 reguites
‘deteritinationvof th of the: shai as16!
‘whl ihe. dissen shi dense:
went on: fo sa} that ‘the. dissenting, shareholder’
Not [6] to récal the: premium: offered sas:
eration. for’ hose: wii rider: thelr: resi
Ketabliity: must ther ‘be consider whe) court:
taal specifi y ad ler,
Yo ignore: such: a: Consideration, as! “appellént urgés,
Would. ‘aniticlally: inéte: the: value of’shares' for
which thera may.not bea market:
See Garttman v. Picoma Indus., Inc, 7th Dist. Belmont No, 92-B-5, 1993 Ohio App. LEXIS 10.
¥5-6 (Jan. 5, 1993) (affirming 55% discount for lack of marketability and minority interest).
The Eight District also acknowledges that the General Assembly mandates that courts use
the willing seller-willing buyer test even when intrinsic value is greater than market value. See
Hosford v. Hosford, 8th Dist. CuyahogaNo, 40380, 1980 Ohio App. LEXIS 14292, *5-8 (Mar.
6, 1980)
The. differences: in’stock: evaluation methiods:can cause a
sighificant- difference Ih’ the: valisvof: ‘stock, There: ‘tan
question that: an" trinsio value! det “Gl ‘as
set forth: by. the: Ohio Supreme: Co in Hosssia Vi
Séeuri avings:& ari O0; (A9AT); 7 6 St.:480,
would lye hig valuierto the! Austlit stock: in’the
given lance. TheOhilo: jupreme: Court. in Roessler
took:lntorconstderation; it determining “nt rinsio‘val
thé ‘capitalization, thé llabllities, earnings potential,
retain arfinds; and otfier aspects of the eorparation,
not what the-appellant urges the-court to-establish
frorithe: balance: sheets:of the Austin owder: Company
‘in this case.
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‘The:courts: have tendéd to move-away. ffom.an “Intrinsic
Value" determination: of &: cormpatiy’s: sta iF Several
ation determination Teaching
a"
‘Ani insic difeult:aii -evidehitlary
pre mcar bavome, v rriplex.. sic al
will vary by coufritless indiciay'of the! Industry, and-“Wwill
fluctuate to the type, Size ahd nature of the:-busiiess
entity: béing ‘examined: Seco the: businéss
corsenstis:ls not always in agreementias'to. what: should
‘bé. Included Ii thé evaluation: An 6xainplé‘of this Was
clearly’ demonstrated by this: Instant case, where
‘cal te entl S of ev va aly were: shown. ‘have
dissoly ‘evolved, merge C7] ‘and, rally
liquidated counties AU 8 Of tines, makin thelr
Stock-evaluation,if dhe f6 Made, highly comp aX!
whereds, ‘a’ ‘market: corrects’ -Itself daily. to. business
filietlidtions and: Hots: ‘a8 “A “Batorrieter of Value ‘sean
‘thirotigh:thé-eyes of the market!
‘However, thicthe absence: of a, sultables i market,
valuation is difficult and-t couris,as. mandated by: ihe
Tégislature: of: this: state:and Cas lew; will Vi isly
attempt ipply the: stal t ofa hypo’
t: ‘Voughtv.. Repub ranklin:Ins, G
394. TH ‘hypaitietioal mar cat is
‘Capabl of ‘a ist unlversal applica jn: legal
problems: of. § tion Is. col i used [fh
determining alr cash -valus'* of shares ol dissenting
stockholders: ry cable. ‘gults:, This. «standard: Is.
generally:definadias
‘ANGE THis talr-cash value’of ashare Is hereby
i.
‘as the ammount’ ‘whieh a: - willing: Seller,
compulsion t I]; Would “be: willing:t¢ j accept ‘ahd a
willl uyer, Under Te.compulsion ‘purshase, would
be’ willinig tay pays
Vought ve RepubllésFranklin. dns. -Go:, supra-at 390,
Even the Tenth District has acknowledged that any factor which a reasonable person
would consider to determine fair cash value is relevant, holding that lack of marketability and.
minority status are exactly those types of relevant factors. To ignore those facts artificially
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increases the value of the dissenter’s interest. The Court also eviscerated any notion that a
dissenter’s interest should be valued on a strict pro rata intrinsic basis. The pertinent portions of
that decision follow:
Appellant gest RECANGE: KOI 1704.88
RCE
‘An
lewever, Anis tevides. |
certain of
rs
SIN
tot, Aims
Ir Gah Value t
have previ
soraible:() info
irmining the, fatr
Gael AIG,
areoora ne stock
sai Stock
Jara rhitiotity Interest is a arson
would de
f. Stal Magi
(Get: 7, 1984),2Summit: App. No
0190, unreported,
sxainine appellants fiatay ig
Ou e: fre ine
iting dissenting
sale
“ahha iisk oF
ae EGearout oul
“the:wl ing ahem mo,
“Fe Ignore: i
cree a thst
me
markt
sharehol ‘ghates, wold, ‘valopiel,
Shares);
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The cades that: ap ellaht cites In. Support fs pub
polley ar itt areas lehablé, beeaus th
from eign. juried re:-statulory, law provil
tala
val
(ssi
nei jeept
ja"
fara int. fal
conse) 6: mr Propenls: ine. a Real
BS,
BB Ze
388.
‘Accordingly; we: flhd:that the tat court-dld not erring
appilyl minority disdburitte éllani's ‘shares,
fli SS court ld. hat
marketabillty dis i ih ing ‘his
Ateomic fotki: He: A § that markétabil Piscounts
(ed ppralgal
aallons ar he: jares-are-to be‘ purchased: by: the
misjority sharehotdesr
Ih, olte PpSllant Ate: trom’ foreign
Ju ictlons that ‘use: the: ir-value" standard. to-value
digsentini tel (a Fo Tea
pre stated isd
Trarketabill discounis.-ate. -either-agalast 3] public
Bolicy: oF fot releVan: ui ity interest’ty
(eeze margersy
See English v, Artromick Int’l, Inc,, 10th Dist. No. 99AP-578, 2000 Ohio App, LEXIS 3580,
*12-15 (Aug. 10, 2000).
These post-Roessler cases correctly apply marketability and minority discounts to
determine the fair cash value of a dissenter’s interest, because in 1955, Ohio policy shifted from
protecting the dissenter (this paying a pro rata intrinsic value) to avoiding overpaying the
dissenter (thus paying market value). In Roessler, this Court determined that market value was
prejudicial to the stockholder because market value could be less than intrinsic value. See
Armstrong, 32 Ohio St.3d 397, at 406, But once the willing seller-willing buyer market value
definition of fair cash value was enacted, that policy changed to avoid overpaying dissenters.
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Accordingly. the Ninth District found it to be “eminently logical” that because the
dissenter’s small minority interest would allow only minimal, if any, influence over company
policy, a prospective buyer would not be willing to pay as much for the shares as might
otherwise be the case, See Std, Meats & Foods, 1981 Ohio App. LEXIS 13656, *4, The Seventh
District acknowledged that to ignore the lack of marketability of a dissenter’s shares would
artificially increase the value of shares for which there is no market. See Garttman, 1993 Ohio
App. LEXIS 10, *5-6. The Tenth District too followed Ohio’s policy not to overvalue a
dissenter’s interest, and thus apply marketability and minority status discounts to accurately
determine fair cash value, That court held that a minority stockholder in a corporation with a
single majority stockholder is inherently at risk of being frozen out due to forced buy-out or
withholding dividends, or other corporate policy, yet “To ignore this reality, as appellant urges,
would be to artificially increase the value of shares for which there may be little value.” See
English, 2000 Ohio App. LEXIS 3580, *13-14.
Vv. THE ABOVE LEGAL AUTHORITY AND SUPPORTING POLICY APPLIES
TODAY WITH EQUAL FORCE
Revised Code 1701.85(C)(1), only, was amended in 2012 so that lack of marketability
and minority status are excluded from calculating fair cash value for a dissenting shareholder.
Since then, definitions of fair cash value for limited liability companies, partnetships, and limited
partnerships remained the same and read as follows:
The fair cash value of a membership interest for purposes of this section is the
amount that a willing seller who is under no compulsion to sell would be willing
to accept and that a willing buyer who is under no compulsion to purchase would
be willing to pay, but the fair cash value paid to any member shall not exceed the
amount specified in the demand for payment of that member. In computing the
fair cash value of a membership interest, any appreciation or depreciation in
market value resulting from the’ merger, consolidation, or conversion shall be
excluded.
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The fair cash value of an interest for purposes of this section is the amount that a
willing seller who is under no compulsion to sell would be willing to accept and
that a willing buyer who is under no compulsion to purchase would be willing to
pay. In no case shall the fair cash value paid to any partner exceed the amount
specified in that partner's demand, The computation of the fair cash value shall
exclude any appreciation or depreciation in value resulting from the merger,
consolidation, or conversion,
The fair cash value of an interest for purposes of this section is the amount that a
willing seller who is under no compulsion to sell would be willing to accept and
that a willing buyer who is under no compulsion to purchase would be willing to
pay, but the fair cash value paid to any partner shall not exceed the amount
specified in the demand of that partner. In computing fair cash value, any
appreciation or depreciation in market value resulting from the merger,
consolidation, or conversion shall be excluded.
See R.C. 1705.42(B), 1776.78(C), and 1782.437(B), respectively.
Thus the law and policies requiring lack of marketability and minority status to be
considered to avoid artificially increasing and overvaluing the fair cash value of Appellees’
membership interests in Mission Essential apply with equal force today.
VI. THE TENTH DISTRICT REVERTED TO THE ROSSLER INTRINSIC VALUE
STANDARD USING OTHER JURISDICTIONS’ LAW
Despite all the above legal precedent, including its own thorough analysis in English, the
Court of Appeals held that discounts to Appellees’ membership interests for lack of
marketability and minority status should not apply because they create a windfall for the
remaining member of Mission Essential — Greg Miller — the same person Appellees approved
becoming the supermajority 84 percent owner. Miller at (103-111. But the Court of Appeals
did not analyze a single Ohio legal opinion involving dissenters rights to reach such an archaic
decision awarding Appellees the intrinsic, pro rata value of their ownership interest — the very
result that the General Assembly outlawed when it created the willing seller-willing buyer
market standard.
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Instead, the Court of Appeals discusses “fait value” polices and statements from nine
other jurisdictions, none of which define “fair cash value” or use the willing seller-willing buyer
test established by the General Assembly, Jd. Then, in complete defiance of controlling Ohio
law, the Court of Appeals substitutes other states’ law for this Court’s precedent and the plain
language of Revised Code 1705.42, stating: “the out-of-state cases finding minority and
marketability discounts to be inappropriate when assessing the fair value of a dissenting
shareholder’s shares have some persuasive authority in the present case,” Id. at {109.
That is plain reversible error that violates the Court of Appeals’ duty to follow this
Court’s binding authority, See Franklin County Law Enforcement Ass'n y. Fraternal Order of
Police, Capital City Lodge No. 9,80 Ohio App.3d 273, 275, 608 N.E.2d 1193 (10th Dist. 1992):
This court has no discretion to adopt a rule of law modifying a previous rule of
law established by the Ohio Supreme Court, even though this court may
determine that the modified rule is a better rule of law than that pronounced by
the Ohio Supreme Coutt earlier, In other words, just as this court is not allowed
to substitute its judgment for that of the trial court with respect to factual findings,
this court is not permitted to substitute its judgment for that of the Ohio Supreme
Court with respect to rules of law which have been announced by the Ohio
Supreme Court in prior decisions. Such determinations of the Ohio Supreme
Court are more than just persuasive precedent, they are binding authority.
Once the Tenth District removed marketability and minority status discounts, it reverted
to the intrinsic, pro rata value that would have been proper under the General Code as interpreted
by this Court is Roessler, but it is inappropriate given this Court’s acknowledgment in Armstrong
that the plain language of Revised Code 1705.42 requires a market value determination.
-14-
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 07 4:02 PM-18CV007997
0G536 - M4
VIL. MISSION ESSENTIAL WILL BE IRREPARABLY HARMED If THE COURT
OF APPEALS’ JUDGMENT IS NOT STAYED.
Ifthe Court of Appeals’ judgment is not stayed, a new judgment from the trial court and
any collection efforts by Appellees will result in Mission Essential being unable to conduct
business and thus being forced to file bankruptcy.
First, Mission Essential would not be able to make its payroll or pay its accounts
receivable. The company’s monthly payroll obligation is approximately $4.4 million. Its
monthly account payable obligation, which includes subcontractors, is approximately $2.6
million. The average monthly accounts receivable being collected on current contracts is only
$300,000 greater at approximately $7.3 million, Ifthe trial court enters judgment, and then Chris
Miller and Humphrys Trust seek to garnish Mission Essential’s bank accounts, Mission Essential
will have no cash to make payroll or pay its accounts receivables,
That is particularly devastating to Mission Essential as a government contracto
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 07 4:02 PM-18CV007997 0G536 - M2 Supreme Court of Ohio Clerk of Court - Filed September 06, 2023 - Case No. 2023-1135 IN THE SUPREME COURT OF OHIO THE MISSION ESSENTIAL GROUP, LLC, Defendant — Appellant, On Appeal from the Franklin County Court of Appeals, Tenth Appellate Vv. District CHRIS W. MILLER, Court of Appeals and Case Nos. 22 AP-448 and 449 SCOTT A. HUMPHRYS, TRUSTEE OF THE SCOTT A. HUMPHRYS TRUST AGREEMENT, Plaintiffs — Appellees. APPELLANT THE MISSION ESSENTIAL GROUP, LLC’S MOTON FOR IMMEDIATE STAY OF COURT OF APPEALS’ JUDGMENT Anthony C. White (0062146) Katherine Connor Ferguson (0079207) COUNSEL OF RECORD Lindsay M. Nelson (0095560) Tony. White@ThompsonHine.com KOOPERMAN MENTEL FERGUSON Thomas Wyatt Palmer (0072816) YAROSS Thomas.Palmer@ThompsonHine.com 100 South 4th Street, Suite 100 Thompson Hine LLP Columbus, Ohio 43215 41 S. High St., Suite 1700 Telephone: (614) 344-4800 Columbus, Ohio 43215 kferguson@kmfylaw.com 614 469-3200 Inelson@kmfylaw.com 614 469-3361 facsimile COUNSEL FOR APPELLANT and THE MISSION ESSENTIAL GROUP, LLC Rick L. Ashton (0077768) Allen Stovall Neuman Fisher & Ashton LLP 17 South High street, Suite 1220 Columbus, Ohio 43215 Telephone; (614) 221-8500 Facsimile: (614) 221-5988 Email: ashton@asnalaw.com COUNSEL FOR APPELLEES CHRIS W. MILLER SCOTT A, HUMPHRYS, TRUSTEE OF THE SCOTT A. HUMPHRYS TRUST AGREEMENT oe Sas EXHIBIT Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 07 4:02 PM-18CV007997 0G536 - M2 I INTRODUCTION Pursuant to Rule of Practice 7.01(A)(3), Appellant The Mission Essential Group, LLC (‘Mission Essential”) respectfully moves the Court to immediately stay the Tenth District Court of Appeals’ August 31, 2023 judgment from which this appeal arises.! In one fell swoop, the Tenth District reversed 68-years of established law that lack of marketability and minority status are relevant to and must be considered to determine the fair cash value of a dissenting owner’s interest in a business entity. As a result of that departure from this Court’s legal precedent, the Court of Appeals improvidently increased the trial court’s judgment against Mission Essential by approximately $4,750,000 including interest. $4,750,000 that Mission Essential simply does not have. If the Court of Appeals’ judgment is carried into effect while this appeal is pending, Mission Essential will be in default of its lending agreement, will be unable to make payroll, will lose its government contracts, and will be forced into bankruptcy. 750 employees will lose their jobs. That irreparable harm cannot be unwound should the Court accept jurisdiction and later tule in Mission Essential’s favor. It will be too late. A stay is needed to prevent such drastic and irreversible consequences, especially in light of the grave error committed by the Tenth District explained below and the fact that Appellees are already the beneficiaries of a $12 million supetsedeas bond? IL THIS SPECIAL PROCEEDING This appeal arises out of a dissenters rights special proceeding started by Appellees under Revised Code 1705,41 and .42, in which Appellees sought a court-ordered buyout of their 1 Date-stamped copies of the Court of Appeals’ Decision and Judgment Entry are attached as Exhibit 1, ? Mission Essential posted a supersedeas bond naming Appellees as beneficiaries in the amount of $11,947,811. A copy is attached as Exhibit 2. See Rule of Practice 4.01(A)(2). Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 07 4:02 PM-18CV007997 0G536 - M2 ownership interest in Mission Essential, Revised Code 1705.41 and 1705.42 provide that when a member of a limited liability company dissents against an LLC merging, that member may demand that the company pay the fair cash value of the member’s ownership interest. If the LLC and the dissenting member cannot agree upon value, and if the LLC’s operating agreement does not provide a reasonable basis for determining and paying value, then the member may initiate a special proceeding, by which a trial court makes findings as to the fair cash value of the dissenting member’s interests and orders the company to pay that amount to the member. The trial court ruled that Appellee Chris Miller’s 6 percent membership interest is worth $3,910,000 and that Appellee the Scott A. Humphrys Trust Agreement’s (“Humphrys Trust”) 10 percent membership interest is worth $6,520,000. The trial court applied discounts for the lack of marketability and minority interest attendant to Appellees’ combined 16 percent ownership interest and the fact that Mission Essential is a small privately held company. (June 23, 2022 Decision & Judgment; June 24, 2022 Nunc Pro Tunc Decision & Judgment.) All parties appealed to the Tenth District, Pertinent to the instant Motion, the Court of Appeals reversed the portion of the trial court’s decision applying discounts for lack of marketability and minority status, increased the value of Appellees’ membership interests to $5,130,000 and $8,550,000, respectively, and remanded the case for the trial court to enter judgment accordingly. See Miller v. Mission Essential Group, L.L.C., 2023-Ohio-3077, {{{103- 113, -2- Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 07 4:02 PM-18CV007997 0G536 - M2 It. THE PARTIES A Appellees Always Were Minority Owners Of Mission Essential And Never Had Any Ability To Influence Company Policy The Mission Essential Group’s predecessor, Mission Essential Personnel, was founded by four initial members, Those initial members and their corresponding ownership interests were: e Greg Miller 42% 420 Class A Units . Chad Monnin 42% 420 Class A Units e Humphrys Trust 10% 100 Class A Units e Chris Miller 6% 60 Class A Units (Sept. 19, 2019 2nd Am. Compl. at p. 2 4 6; Oct. 4, 2019 Answer at p. 2 ¥ 6.) In 2012, all four members signed the Company’s 4" Operating Agreement. (Id. at p. 3 { 7 and at Ex. A, pp. 22-24.) Accordingly, and years before the current dispute began, Appellees agreed that the Mission Essential would operate as follows: 1 The company would be managed by a Board of Managers comprised of its members each with voting power equal to his total number of membership Units. (Id. at Ex. A, p.7§ 5.1.) Two-thirds of the managers’ voting power must be present at a Board meeting to form a quorum. (Id. at § 5.2(b).) Two-thirds of the managers’ voting power present at a Board meeting is required for the managers to act. (Id.) Members holding two-thirds of the company’s outstanding membership Units must be present to form a quorum at a member meeting. (Id. at pp. 9-10 § 6.2.) Two-thirds of the members’ voting power present at a member meeting is required for the members to act. (/d.) Thus, Appellees, holding a collective 16 percent minority interest, never had the power to effectuate any company action, Even joined with either Mr. Monnin’s or Greg Miller’s 42 percent, Appellees still could not form a quorum, act on behalf of the Board, or take member action. -3- Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 07 4:02 PM-18CV007997 0G536 - M2 B. Appellees Made Mr. Miller The Supermajority Owner Of Mission Essential In December 2015, Greg Miller purchased Mr. Monnin’s 42 percent interest to become the 84 percent owner of Mission Essential Personnel. (Sept. 19, 2019 2nd Am. Compl. at p. 4 { 16; Oct. 4, 2019 Answer at p. 2] 16.) Appellees approved Greg Miller’s purchase, and they were compensated for their approval with a distribution from the company. (Sept. 13, 2021 Objections to Preliminary Report at Ex. 7.) Appellees made it so that Greg Miller alone formed a quorum of the Board, alone formed a quorum of members, and only his vote could qualify as an.act of the Board or the members. Important to the issues before this Court, Appellees voluntarily chose to make their minority interests irrelevant to the Company’s operations and therefore less valuable. Iv. FOR THE PAST SIXTY-EIGHT YEARS, FAIR CASH VALUE IS A MARKET VALUE STANDARD, WHICH INCLUDES DISCOUNTS FOR LACK OF MARKETABILITY AND MINORITY STATUS General Code 8623-723 first governed dissenter’s rights and the payment of fair cash value. At that time, this Court interpreted the General Code’s definition of fair cash value to mean intrinsic value, and thus held that a trial court erred by instructing court-appointed appraisers that fair cash value means a price determined by the willing seller-willing buyer-test, because that test reflects market value. See Roessler v. Security Sav. & Loan Co., 147 Ohio St. 480, 484 (1947): By that part of the instruction, the court made market value the basic test in determining fair cash value of the shares, and all the subsequent parts of the instruction as to the factors which might be considered in determining such value did not cure the error of the court in making market value the basic test in determining the fair cash value of such shares instead of intrinsic value, 3 Attached as Exhibit 3. -4- Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 07 4:02 PM-18CV007997 0G536 - M3 The General Assembly subsequently rejected the Roess/er intrinsic value definition when it enacted Revised Cade 1701.85(C) adopting the same willing seller-willing buyer test that exists in Revised Code 1705.42(B), 1776.78(C), id 1782.437(B). To be sure, this Court set forth the following comprehensive analysis that leaves no doubt that the willing seller-willing buyer test determines market value and differs from the former intrinsic, pro rata standard. [Aggy The: [795] prior sectlon‘of te Gerieral Goda did nok: Include-:a’ definition .of- “fair cash: value," Accordingly, this: coutti.in Bessie He Seoul sauna 0..(194 147. ALE: 2d 289; defined the: ae iri ne a eae ti the: Syllabus; ag follows: The ‘fal: cash: value! whidl a. dissenting shateholde corporation is‘eniltle facalve Is stares. itr ng: ght: pul Seal 8625-72; Go Cod is the: Intrinsic [**2 valui@.of thes ad front tid lablltias oF such UPON.cet ral f. every, factor bearing, on value." (Emphasis added: This til Rossel found that the: trial Nad sived [ninstructiig: the: appraiser rs that."falr:eash value" mei illing i buyer would purchase. stor mM Hi Mer Lee the "inarkeb value" 9} dk. It Wass then-delermined thal on etd ier; Ithat tidtitat valié;may be less thary'the Inlyinsl: value Subsea nd. by: wh terme ety anvicled. HAE) live, Cctober 14,4088 2 lo: Laws 432,'486),:whicl provided for the: detinitlon’ 6 Yale GASH velué® aa: the: ilihgeselre wliting: er tast,. Sig Hath AA: “HHS? OnI..'Sk Bar lation: “Col ith ‘which: recon he addition:pfthe:d ions to this. settion, fated: -5- Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 07 4:02 PM-18CV007997 0G536 - M3 ‘Division (CG), This “divialo filaing a tequently. tied detinition. OFM ‘past, val e: This-defial is on that is found. liv a-great mass. of judicial decisions:both'in Ohio ‘and Lge fe IN UGation: ‘Involving the: value: of property appropriation sills; ‘gottroversies, and ‘other’ legal eedings. in’ wi i properly ust Aluod.. (fis bel aUthig will give the: Bar. a clearer’ test than that oF tnfrhnle Value established by the Supteitie’ rhein esslor vy, ‘Security Savi an: sit 1470.8. 480 io ‘Bai. 102 (an. 40,4968). As held'In Vought, afd emphasized In Patten, HNA1(F) the Ohio: statute provides for the willing seller-willing buyer standard, which is the market value definition, It See Armstrongv. Marathon Oil Co., 32 Ohio St.3d 397, 406, 411 (1987). Since then, Ohio courts have consistently followed this Court’s directive in Armstrong to determine fait cash value using the willing seller-willing buyer market analysis, which requires consideration of the dissenter’s minority ownership and its lack of marketability. For example. The Ninth District affirmed the trial court discounting that dissenter’s shares for lack of marketability and minority status Prior-to.the:adoption:of R.C.'1707:86,.the Supreme Court In Reéssier v, Security Savin & Loan: (1 147° Ohiie: St, 480, plied the." Intrinsic’ Value" for determining fait ash, Valije, HNAPE] The le te, ] however; Inv adopting: RC. 1701/85 provided the TSC Adard to. be“émployed. if ‘determining falf dash value is ™ € Sie amoilfit, Whlct 4: willing: Sellef, “under rio compl n-to, would be: willing to. accept, and-which, ‘awilling buye tind Hi:compulsion ‘torpurchase; would be willing toy pay), -6- Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 07 4:02 PM-18CV007997 0G536 - M3 The: Franklin County ‘Court’ of Appeals. in: reviewing Roaslet carid; overruling by: ja legislature: by the adaption ‘Of R 701,85; sed a “hypothetical buyel Seller: Vought v: ‘Republic: - Franklin S.C (4962! » ALT cert denied. March 6, 1968, (tsald at'300,301, “esis HNITE] ‘objsctlve: if atiopting, the. stadt (hypothetical, market) isi fot to meastire ‘value: by: a actual: market but rather: bya hypothetical. ‘one, Such, standard, erally will. permit evideniee'te:be introduced: a8ito'atiy factor ich'a fiablé:man would take into: considerati termining Value; ** We agtee with thé tedsoning: IN Vought that to measure: the: -value: of the. stock, ¢ court ‘should employ: @ hypothetical tarket of ‘buyers and selierg “arid: to: consider: any. factors thatd reasotablétidh Would-use in-assesstig is : fe the value of the shares. Jn the Gas6"sub:[*4] judigé,; the ‘trial ‘couirt detarnilhed that-appell lant’ shares: |i keon Standard. anid. Zero, both closely hel amily run corporations, lacked Marketability It further determined ‘that because ap allaht owned only asitall- tilnerity ‘Interest’ in: both: firms,. a therefor his shares: would allow en minimal, anys erie: er” company’ polley,.4 prospéctly Phot be Willing'te pay. a8: triuch fort iHres: as falght ottierwise be:the ¢ this reasoning eminently iogical, Th ,we-conel that the’'trlal court did not ert by: taking ‘account: lack:of Markétability arid tihofify: interést’ when valuing appellant's: shates of Stock See Std, Meats & Foods v. Calle, 9th Dist. Summit No. 10130, 1981 Ohio App. LEXIS 13656. *3-4 (Oct. 7, 1981), The Seventh District too acknowledges that fair cash value is not determined by a strict pro rata share of the corporation’s total value (i.¢. fair value), and thus ruled that marketability must be considered to value specific shares, otherwise value would be artificially increased. -7- Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 07 4:02 PM-18CV007997 0G536 - M3 lh: ‘appellant's: second assignment of error, she contends that a discount for lack of marketability Is Imptopet in light‘of thS.definition of “fair cash value" set forth'iIn A.C, 1701, 88(C). The GhiosSuprama: Court fi Armstrong, mistrong; supra, at, Su) haat at ‘Gasl allie: Is notte be determin bash of th res, ‘ofthe: corporatio ‘and ‘that C70 reguites ‘deteritinationvof th of the: shai as16! ‘whl ihe. dissen shi dense: went on: fo sa} that ‘the. dissenting, shareholder’ Not [6] to récal the: premium: offered sas: eration. for’ hose: wii rider: thelr: resi Ketabliity: must ther ‘be consider whe) court: taal specifi y ad ler, Yo ignore: such: a: Consideration, as! “appellént urgés, Would. ‘aniticlally: inéte: the: value of’shares' for which thera may.not bea market: See Garttman v. Picoma Indus., Inc, 7th Dist. Belmont No, 92-B-5, 1993 Ohio App. LEXIS 10. ¥5-6 (Jan. 5, 1993) (affirming 55% discount for lack of marketability and minority interest). The Eight District also acknowledges that the General Assembly mandates that courts use the willing seller-willing buyer test even when intrinsic value is greater than market value. See Hosford v. Hosford, 8th Dist. CuyahogaNo, 40380, 1980 Ohio App. LEXIS 14292, *5-8 (Mar. 6, 1980) The. differences: in’stock: evaluation methiods:can cause a sighificant- difference Ih’ the: valisvof: ‘stock, There: ‘tan question that: an" trinsio value! det “Gl ‘as set forth: by. the: Ohio Supreme: Co in Hosssia Vi Séeuri avings:& ari O0; (A9AT); 7 6 St.:480, would lye hig valuierto the! Austlit stock: in’the given lance. TheOhilo: jupreme: Court. in Roessler took:lntorconstderation; it determining “nt rinsio‘val thé ‘capitalization, thé llabllities, earnings potential, retain arfinds; and otfier aspects of the eorparation, not what the-appellant urges the-court to-establish frorithe: balance: sheets:of the Austin owder: Company ‘in this case. -8- Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 07 4:02 PM-18CV007997 0G536 - M3 ‘The:courts: have tendéd to move-away. ffom.an “Intrinsic Value" determination: of &: cormpatiy’s: sta iF Several ation determination Teaching a" ‘Ani insic difeult:aii -evidehitlary pre mcar bavome, v rriplex.. sic al will vary by coufritless indiciay'of the! Industry, and-“Wwill fluctuate to the type, Size ahd nature of the:-busiiess entity: béing ‘examined: Seco the: businéss corsenstis:ls not always in agreementias'to. what: should ‘bé. Included Ii thé evaluation: An 6xainplé‘of this Was clearly’ demonstrated by this: Instant case, where ‘cal te entl S of ev va aly were: shown. ‘have dissoly ‘evolved, merge C7] ‘and, rally liquidated counties AU 8 Of tines, makin thelr Stock-evaluation,if dhe f6 Made, highly comp aX! whereds, ‘a’ ‘market: corrects’ -Itself daily. to. business filietlidtions and: Hots: ‘a8 “A “Batorrieter of Value ‘sean ‘thirotigh:thé-eyes of the market! ‘However, thicthe absence: of a, sultables i market, valuation is difficult and-t couris,as. mandated by: ihe Tégislature: of: this: state:and Cas lew; will Vi isly attempt ipply the: stal t ofa hypo’ t: ‘Voughtv.. Repub ranklin:Ins, G 394. TH ‘hypaitietioal mar cat is ‘Capabl of ‘a ist unlversal applica jn: legal problems: of. § tion Is. col i used [fh determining alr cash -valus'* of shares ol dissenting stockholders: ry cable. ‘gults:, This. «standard: Is. generally:definadias ‘ANGE THis talr-cash value’of ashare Is hereby i. ‘as the ammount’ ‘whieh a: - willing: Seller, compulsion t I]; Would “be: willing:t¢ j accept ‘ahd a willl uyer, Under Te.compulsion ‘purshase, would be’ willinig tay pays Vought ve RepubllésFranklin. dns. -Go:, supra-at 390, Even the Tenth District has acknowledged that any factor which a reasonable person would consider to determine fair cash value is relevant, holding that lack of marketability and. minority status are exactly those types of relevant factors. To ignore those facts artificially -9- Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 07 4:02 PM-18CV007997 0G536 - M3 increases the value of the dissenter’s interest. The Court also eviscerated any notion that a dissenter’s interest should be valued on a strict pro rata intrinsic basis. The pertinent portions of that decision follow: Appellant gest RECANGE: KOI 1704.88 RCE ‘An lewever, Anis tevides. | certain of rs SIN tot, Aims Ir Gah Value t have previ soraible:() info irmining the, fatr Gael AIG, areoora ne stock sai Stock Jara rhitiotity Interest is a arson would de f. Stal Magi (Get: 7, 1984),2Summit: App. No 0190, unreported, sxainine appellants fiatay ig Ou e: fre ine iting dissenting sale “ahha iisk oF ae EGearout oul “the:wl ing ahem mo, “Fe Ignore: i cree a thst me markt sharehol ‘ghates, wold, ‘valopiel, Shares); -10- Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 07 4:02 PM-18CV007997 0G536 - M3 The cades that: ap ellaht cites In. Support fs pub polley ar itt areas lehablé, beeaus th from eign. juried re:-statulory, law provil tala val (ssi nei jeept ja" fara int. fal conse) 6: mr Propenls: ine. a Real BS, BB Ze 388. ‘Accordingly; we: flhd:that the tat court-dld not erring appilyl minority disdburitte éllani's ‘shares, fli SS court ld. hat marketabillty dis i ih ing ‘his Ateomic fotki: He: A § that markétabil Piscounts (ed ppralgal aallons ar he: jares-are-to be‘ purchased: by: the misjority sharehotdesr Ih, olte PpSllant Ate: trom’ foreign Ju ictlons that ‘use: the: ir-value" standard. to-value digsentini tel (a Fo Tea pre stated isd Trarketabill discounis.-ate. -either-agalast 3] public Bolicy: oF fot releVan: ui ity interest’ty (eeze margersy See English v, Artromick Int’l, Inc,, 10th Dist. No. 99AP-578, 2000 Ohio App, LEXIS 3580, *12-15 (Aug. 10, 2000). These post-Roessler cases correctly apply marketability and minority discounts to determine the fair cash value of a dissenter’s interest, because in 1955, Ohio policy shifted from protecting the dissenter (this paying a pro rata intrinsic value) to avoiding overpaying the dissenter (thus paying market value). In Roessler, this Court determined that market value was prejudicial to the stockholder because market value could be less than intrinsic value. See Armstrong, 32 Ohio St.3d 397, at 406, But once the willing seller-willing buyer market value definition of fair cash value was enacted, that policy changed to avoid overpaying dissenters. -ll- Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 07 4:02 PM-18CV007997 0G536 - M3 Accordingly. the Ninth District found it to be “eminently logical” that because the dissenter’s small minority interest would allow only minimal, if any, influence over company policy, a prospective buyer would not be willing to pay as much for the shares as might otherwise be the case, See Std, Meats & Foods, 1981 Ohio App. LEXIS 13656, *4, The Seventh District acknowledged that to ignore the lack of marketability of a dissenter’s shares would artificially increase the value of shares for which there is no market. See Garttman, 1993 Ohio App. LEXIS 10, *5-6. The Tenth District too followed Ohio’s policy not to overvalue a dissenter’s interest, and thus apply marketability and minority status discounts to accurately determine fair cash value, That court held that a minority stockholder in a corporation with a single majority stockholder is inherently at risk of being frozen out due to forced buy-out or withholding dividends, or other corporate policy, yet “To ignore this reality, as appellant urges, would be to artificially increase the value of shares for which there may be little value.” See English, 2000 Ohio App. LEXIS 3580, *13-14. Vv. THE ABOVE LEGAL AUTHORITY AND SUPPORTING POLICY APPLIES TODAY WITH EQUAL FORCE Revised Code 1701.85(C)(1), only, was amended in 2012 so that lack of marketability and minority status are excluded from calculating fair cash value for a dissenting shareholder. Since then, definitions of fair cash value for limited liability companies, partnetships, and limited partnerships remained the same and read as follows: The fair cash value of a membership interest for purposes of this section is the amount that a willing seller who is under no compulsion to sell would be willing to accept and that a willing buyer who is under no compulsion to purchase would be willing to pay, but the fair cash value paid to any member shall not exceed the amount specified in the demand for payment of that member. In computing the fair cash value of a membership interest, any appreciation or depreciation in market value resulting from the’ merger, consolidation, or conversion shall be excluded. -12- Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 07 4:02 PM-18CV007997 0G536 - M3 The fair cash value of an interest for purposes of this section is the amount that a willing seller who is under no compulsion to sell would be willing to accept and that a willing buyer who is under no compulsion to purchase would be willing to pay. In no case shall the fair cash value paid to any partner exceed the amount specified in that partner's demand, The computation of the fair cash value shall exclude any appreciation or depreciation in value resulting from the merger, consolidation, or conversion, The fair cash value of an interest for purposes of this section is the amount that a willing seller who is under no compulsion to sell would be willing to accept and that a willing buyer who is under no compulsion to purchase would be willing to pay, but the fair cash value paid to any partner shall not exceed the amount specified in the demand of that partner. In computing fair cash value, any appreciation or depreciation in market value resulting from the merger, consolidation, or conversion shall be excluded. See R.C. 1705.42(B), 1776.78(C), and 1782.437(B), respectively. Thus the law and policies requiring lack of marketability and minority status to be considered to avoid artificially increasing and overvaluing the fair cash value of Appellees’ membership interests in Mission Essential apply with equal force today. VI. THE TENTH DISTRICT REVERTED TO THE ROSSLER INTRINSIC VALUE STANDARD USING OTHER JURISDICTIONS’ LAW Despite all the above legal precedent, including its own thorough analysis in English, the Court of Appeals held that discounts to Appellees’ membership interests for lack of marketability and minority status should not apply because they create a windfall for the remaining member of Mission Essential — Greg Miller — the same person Appellees approved becoming the supermajority 84 percent owner. Miller at (103-111. But the Court of Appeals did not analyze a single Ohio legal opinion involving dissenters rights to reach such an archaic decision awarding Appellees the intrinsic, pro rata value of their ownership interest — the very result that the General Assembly outlawed when it created the willing seller-willing buyer market standard. -13- Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 07 4:02 PM-18CV007997 0G536 - M3 Instead, the Court of Appeals discusses “fait value” polices and statements from nine other jurisdictions, none of which define “fair cash value” or use the willing seller-willing buyer test established by the General Assembly, Jd. Then, in complete defiance of controlling Ohio law, the Court of Appeals substitutes other states’ law for this Court’s precedent and the plain language of Revised Code 1705.42, stating: “the out-of-state cases finding minority and marketability discounts to be inappropriate when assessing the fair value of a dissenting shareholder’s shares have some persuasive authority in the present case,” Id. at {109. That is plain reversible error that violates the Court of Appeals’ duty to follow this Court’s binding authority, See Franklin County Law Enforcement Ass'n y. Fraternal Order of Police, Capital City Lodge No. 9,80 Ohio App.3d 273, 275, 608 N.E.2d 1193 (10th Dist. 1992): This court has no discretion to adopt a rule of law modifying a previous rule of law established by the Ohio Supreme Court, even though this court may determine that the modified rule is a better rule of law than that pronounced by the Ohio Supreme Coutt earlier, In other words, just as this court is not allowed to substitute its judgment for that of the trial court with respect to factual findings, this court is not permitted to substitute its judgment for that of the Ohio Supreme Court with respect to rules of law which have been announced by the Ohio Supreme Court in prior decisions. Such determinations of the Ohio Supreme Court are more than just persuasive precedent, they are binding authority. Once the Tenth District removed marketability and minority status discounts, it reverted to the intrinsic, pro rata value that would have been proper under the General Code as interpreted by this Court is Roessler, but it is inappropriate given this Court’s acknowledgment in Armstrong that the plain language of Revised Code 1705.42 requires a market value determination. -14- Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Sep 07 4:02 PM-18CV007997 0G536 - M4 VIL. MISSION ESSENTIAL WILL BE IRREPARABLY HARMED If THE COURT OF APPEALS’ JUDGMENT IS NOT STAYED. Ifthe Court of Appeals’ judgment is not stayed, a new judgment from the trial court and any collection efforts by Appellees will result in Mission Essential being unable to conduct business and thus being forced to file bankruptcy. First, Mission Essential would not be able to make its payroll or pay its accounts receivable. The company’s monthly payroll obligation is approximately $4.4 million. Its monthly account payable obligation, which includes subcontractors, is approximately $2.6 million. The average monthly accounts receivable being collected on current contracts is only $300,000 greater at approximately $7.3 million, Ifthe trial court enters judgment, and then Chris Miller and Humphrys Trust seek to garnish Mission Essential’s bank accounts, Mission Essential will have no cash to make payroll or pay its accounts receivables, That is particularly devastating to Mission Essential as a government contracto