[Cite as Todd v. Epling,
2025-Ohio-399.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Kathryn A. Todd, :
Plaintiff-Appellee, :
No. 24AP-220
v. : (Prob. No. 585751A)
Aaron B. Epling, : (REGULAR CALENDAR)
Administrator WWA et al.,
:
Defendants-Appellants. :
D E C I S I O N
Rendered on February 6, 2025
On brief: Williams & Finkbine Co. LLC, Brian A. Williams,
and Susan S. R. Petro for appellee. Argued: Brian A.
Williams.
On brief: Thompson Hine LLP, John B. Kopf, Kelsey J.
Mincheff, and Mac P. Malone for appellant. Argued: John B.
Kopf III.
APPEAL from the Franklin County Probate Court
MENTEL, J.
{¶ 1} Intervenor-appellant, William A. Todd, as Trustee of the William M. Todd
Declaration of Trust (“Trustee”), appeals from the judgment of the Franklin County Probate
Court denying his application for attorney fees. He sought attorney fees after intervening
in this matter to represent the interests of the trust created by his deceased father,
William M. Todd, after the elder Mr. Todd’s ex-wife, plaintiff-appellee, Kathryn A. Todd,
filed suit seeking to have their separation agreement set aside. For the reasons that follow,
the judgment of the probate court is affirmed.
No. 24AP-220 2
I. Factual and Procedural Background
{¶ 2} Kathryn Todd and William M. Todd married on May 24, 2008. (Pl.’s Tr.
Ex. 1, hereinafter “Separation Agreement.”) Two years and four months later, in September
of 2011, they decided to part ways and entered into a separation agreement. Id. Under the
agreement, they agreed that “the marital residence” at 2417 Brentwood Rd., Bexley, Ohio
(the “Brentwood property”) would be awarded to Mr. Todd, who would “retain all right,
title, use and ownership . . . free and clear of any claims” by Ms. Todd. Id. at 4. Ms. Todd
kept another Bexley home under the agreement. Id. The following provision governed
transfer of the Brentwood property:
The parties further agree that on or before January 15, 2013,
Husband shall pay to the Wife the sum of Thirty Thousand
Dollars ($30,000) as property settlement payable by Husband
to Wife by certified bank check . . . . In exchange for this
payment Wife will execute and deliver a quit claim deed for her
interest in 2417 Brentwood Rd.
Id. at 6.
{¶ 3} The separation agreement also contained a provision, captioned
“Enforcement Expenses,” allowing for attorney fees under the following circumstances:
If either Husband or Wife defaults on the performance of any
of the terms, provisions, or obligations herein set forth, and it
becomes necessary to institute legal proceedings to effectuate
the performance of any provisions of this Agreement, then the
party found to be in default shall pay all expenses, including
reasonable attorney fees, incurred in connection with such
enforcement proceedings.
Id. at 8.
{¶ 4} In another provision captioned “Binding Effect,” the separation agreement
provided:
The parties agree that if an action for Dissolution of Marriage,
Divorce or Legal Separation is hereafter filed and for any
reason is withdrawn or dismissed, it is intended by the parties
that this Agreement shall, nonetheless, remain in full force and
effect and be binding upon both parties, their heirs, executors,
administrators, next of kin and assigns.
Id. at 9.
{¶ 5} Mr. Todd did not pay Ms. Todd the entire $30,000 for the Brentwood
property promised in the separation agreement by the January 15, 2013 deadline. (Mar. 11,
No. 24AP-220 3
2020 Mag.’s Decision at 6.) He died on June 4, 2017. Id. By that time, he had paid her
$20,000 of the amount owed. (Mar. 11, 2021 Jgmt. Entry at 3.)1 At the time of Mr. Todd’s
death, he and Ms. Todd had not divorced, but they never lived together again after their
initial separation. (Mar. 11, 2020 Mag.’s Decision at 4.)
{¶ 6} On April 18, 2017, Mr. Todd executed a will and created a trust. (Ex. K.,
Feb. 13, 2018 First Am. Compl.) His will acknowledged that he was married to Kathryn
Todd, and that he had two sons, William A. Todd and Eric M. Todd (who were not related
to Ms. Todd). Id. at 2. After providing for the payment of debts, funeral expenses, and tax
liabilities be charged against his estate, Mr. Todd’s will provided that:
All the rest and residue of the property, real or personal, of
every kind and description, wheresoever located, which I may
own or have the right to dispose of, I give, bequeath and devise
to Huntington National Bank, as successor Trustee, or to the
then acting successor Trustee, to be held and disposed of under
the Declaration of Trust as declared by me in the William M.
Todd Declaration of Trust under date of April 18, 2017, as the
same may be amended by me from time to time. It is my
intention simply to identify said Trust and not to incorporate it
by reference into this Will or to create a testamentary trust
hereby.
Id.
{¶ 7} Mr. Todd died on June 4, 2017. (Mar. 11, 2020 Mag.’s Decision at 6.)
{¶ 8} On October 23, 2017, Ms. Todd filed a complaint in the probate court seeking
to have the separation agreement set aside. The complaint named Huntington National
Bank, the administrator of Mr. Todd’s estate, as the defendant. (Oct. 23, 2017 Compl.)
Having replaced the bank as administrator with will annexed, Aaron B. Epling, moved to
be substituted as a party. (Dec. 8, 2017 Def.’s Mot.) The probate court granted Mr. Epling’s
motion. (Dec. 8, 2017 Entry.) In addition, William and Eric Todd filed a motion to
intervene under Civ.R. 24. (Jan. 22, 2018 Mot.) They sought to intervene as beneficiaries
of the trust, while William additionally sought to intervene based on his status as Trustee.
Id.
1 The probate court incorporated the magistrate’s Findings of Fact into its March 11, 2021 Judgment Entry,
with the exception of Finding of Fact 16, which was corrected to reflect that Mr. Todd had paid $20,000
towards the amount owed. The magistrate had incorrectly stated the paid amount as $25,000.
No. 24AP-220 4
{¶ 9} Ms. Todd amended her complaint on Feb. 13, 2018. The complaint described
the provision of the separation agreement that had required Mr. Todd to pay $30,000 by
January 15, 2013, which, upon fulfillment, would have “give[n] rise to a contractual duty
for” Ms. Todd “to convey her interest” in the Brentwood property to him. (Feb. 13, 2018
First Am. Compl. at ¶ 5.) Because Mr. Todd had failed to pay, the complaint asserted that
the “condition precedent” to the property transfer had “never occurred.” Id. According to
the complaint, Mr. Todd’s “conduct after the deadline . . . revealed that he [had]
fraudulently induced” Ms. Todd to enter into the separation agreement with no intention
to fulfill his obligations under it “in order to manipulate [her] into providing [him] with
health insurance coverage.” Id. at ¶ 6. Because Ms. Todd was a joint tenant with right of
survivorship on the deed to the Brentwood property, the complaint claimed that she
“became the sole owner” of it when Mr. Todd died. Id. at ¶ 2, 9. Thus, the complaint alleged
that William and Eric Todd, as beneficiaries of their father’s trust, had filed an allegedly
“spurious Affidavit” during the administration of the estate “baselessly claiming” that the
separation agreement gave the estate an interest in the Brentwood property. Id. at ¶ 9.
{¶ 10} The complaint alleged that after the deadline for paying the $30,000 in
exchange for the Brentwood property, Mr. Todd had informed Ms. Todd by email that “he
had no intention of honoring” the obligation; they need to renegotiate the deal and he
offered $20,000 in exchange for the property instead; the separation agreement was
unenforceable under Ohio law; and Mr. Todd had only entered into it because he “needed
health insurance.” Id. at ¶ 33-36. The complaint claimed that Ms. Todd “was persuaded
and fraudulently induced” by Mr. Todd, a licensed attorney, “to enter into the void and
unenforceable Separation Agreement,” at which time he had “concealed from and
misrepresented” to her that he “had no intention of performing” under it. Id. at ¶ 64, 66.
Based on these “material misrepresentations and/or concealments,” Ms. Todd sought to
have the separation agreement set aside as void, claiming that it was “the result of fraud,
deceit, duress, and coercion.” Id. at 81, 87. In addition, Ms. Todd sought a declaratory
judgment stating that she was “the sole lawful and proper owner” of the Brentwood
property, and that Mr. Todd’s estate had “no interest, right or title” to it. Id. at ¶ 98.
{¶ 11} The amended complaint also acknowledged that Mr. Todd’s sons, William
and Eric, had filed a motion to intervene in the action under Civ.R. 24, and that “various
No. 24AP-220 5
disputes” had arisen between them and Ms. Todd over the administration of Mr. Todd’s
estate, the separation agreement, and the ownership of the Brentwood property. Id. at
¶ 60-62. The complaint alleged William and Eric had “continue[d] to unlawfully use,
possess, and reside” at the Brentwood property after Mr. Todd’s death, “despite being
instructed” otherwise by Ms. Todd. Id. at ¶ 73.
{¶ 12} On February 26, 2018, Huntington National Bank filed a foreclosure action
seeking the sale of the Brentwood property in the Franklin County Court of Common Pleas.
Huntington Nat’l Bank v. Todd, Case No. 18-cv-1738.
{¶ 13} William and Eric Todd renewed their motion to intervene on February 27,
2018. Mr. Epling, as administrator of Mr. Todd’s estate, filed an answer on April 5, 2018,
and did not assert any counterclaims against Ms. Todd.
{¶ 14} On June 28, 2018, the probate court granted the motion to intervene in part
and denied it in part. The court found that the trust had “an interest in actions against the
estate” because it was the sole beneficiary of Mr. Todd’s will, and its trustee, William A.
Todd, was therefore entitled to intervene. (June 28, 2018 Mag.’s Order at 2.) However,
William and Eric were not entitled to intervene as beneficiaries of the trust. Id. The
interests of Ms. Todd and the trust were at odds because each had interests “in obtaining
the largest share of the estate possible.” Id. As the estate’s administrator, Mr. Epling was
properly named as a defendant, but he had “a duty of fiduciary loyalty” to “beneficiaries
with competing interests,” the trust and Ms. Todd. Id. at 3.
{¶ 15} The Trustee filed an answer with counterclaims on July 5, 2018. The answer
generally denied Ms. Todd’s allegation that they had no right to the Brentwood property,
alleged that the separation agreement was enforceable, and alleged that Ms. Todd’s actions
during the marriage and after Mr. Todd’s death had “ratified the terms” of the separation
agreement and “constitute[d] a waiver” that it was “invalid or unenforceable.” (July 5, 2018
Answer at 17-18.) The answer presented five counterclaims. The first two sought
declaratory judgments affirming that both the separation agreement and a prenuptial
agreement entered into by Mr. and Ms. Todd were valid and enforceable. Id. at 18-19. In
addition, a counterclaim for specific performance sought an order requiring that Ms. Todd
transfer the Brentwood property to Mr. Todd’s estate, a counterclaim for unjust enrichment
seeking restitution for an amount in excess of $30,000 that Mr. Todd had allegedly paid to
No. 24AP-220 6
Ms. Todd, and a counterclaim for quiet title declaring that “title exists” to the Brentwood
property in favor of Mr. Todd’s estate. Id. at 19-21.
{¶ 16} A probate court magistrate conducted a trial on Ms. Todd’s claims and the
Trustee’s counterclaims on December 19 and 20, 2019. The magistrate’s findings of fact,
which the probate court adopted, have largely been recounted. Additionally, the magistrate
found that both Mr. and Ms. Todd had been “represented by counsel during the negotiation
of the Separation Agreement,” and that she had “had the opportunity to discuss the final
version of the Separation Agreement with her attorney prior to signing but declined to.”
(Mar. 11, 2020 Mag.’s Decision at 6.) The magistrate also found that although Mr. Todd
had failed to pay the entire $30,000 amount promised for the Brentwood property by the
promised deadline, Ms. Todd had “accepted payments made by [him] after the deadline
and credited those payments to the amount owed.” Id. The magistrate’s final findings were
that Ms. Todd, the Trustee, and Mr. Epling in his capacity as the estate’s administrator had
“signed a mediation agreement which required 2417 Brentwood be sold and the assets be
escrowed with the distribution to be determined at a later date” on April 4, 2019, and that
the Brentwood property had subsequently been sold. Id. at 7.
{¶ 17} The magistrate concluded that “the terms of the Separation Agreement were
fair, reasonable, and just,” and that no evidence supported Ms. Todd’s assertion that she
had “involuntarily” signed the agreement under duress. Id. at 8-9. The magistrate stressed
that Ms. Todd had “negotiated the contract with the assistance of counsel,” and “chose not”
to discuss its final version with counsel before signing it. Id. at 9. Although Mr. Todd and
Ms. Todd had not divorced before his death, because the separation agreement contained
a “preservation clause stipulating that the terms of the agreement would remain in effect
should the divorce action be dismissed,” the agreement had “survived the dismissal of the
divorce action.” Id. With regard to the Brentwood property, the magistrate concluded:
Decedent breached the terms of the Separation [Agreement] by
failing to timely pay Kathryn $30,000.00 to transfer the deed
to 2417 Brentwood. However, Kathryn allowed Decedent to
cure the breach by accepting late, partial payments and
attributing those payments to the $30,000.00 owed. Kathryn
also testified at trial that had Decedent ever paid the full
amount, she would have complied with the Separation
Agreement and transferred the deed to Decedent. Further, both
Decedent and Kathryn c0ntinued to act as if the Separation
No. 24AP-220 7
Agreement were in place in terms of health insurance and
Athletic Club membership. Based on ratification by Kathryn’s
actions, the Separation Agreement is not invalidated for failure
to timely pay the $30,000.00. However, the estate shall be
required to pay Kathryn the remaining $5,000.00 owed.
Upon careful review and for the above reasons, the Separation
Agreement dated September 23, 2011 is a valid and fully
enforceable contract between Decedent and Kathryn.
Id. at 9-10.
{¶ 18} The magistrate recommended that Ms. Todd’s “complaint to set aside the
separation agreement be DENIED and that William A. Todd as Trustee’s [counterclaim]
for declaratory judgment to uphold the validity of the separation agreement be GRANTED,”
and that the remaining amount owed to Ms. Todd be “paid from . . . the real estate sale” of
the Brentwood property, with the remainder to Mr. Todd’s estate. Id. at 10.
{¶ 19} Ms. Todd filed objections, but the probate court overruled them and adopted
the magistrate’s decision “subject to the modification to correct all references to the
decedent’s payments of $25,000 to [Ms. Todd] to show that he instead paid $20,000 to
[her] prior to his death.” (Mar. 11, 2021 Jgmt. Entry at 5.) Ms. Todd appealed the probate
court’s judgment, but later voluntarily dismissed the appeal. (Sept. 29, 2021 Journal Entry
of Dismissal.)
{¶ 20} The Trustee first raised the issue of attorney fees under the separation
agreement in an application filed on November 27, 2019, arguing that if he prevailed,
“further proceedings” would be necessary after judgment. Eventually, Mr. Epling, as
administrator, also requested fees, and the magistrate held a hearing to take evidence on
the fee issued on March 11 and 17, 2022.
{¶ 21} Mr. Epling sought $30,857.37 in attorney fees, while the Trustee sought
$394,396.90. (Feb. 23, 2023 Mag.’s Decision at 5; June 15, 2022 Pl.’s Mot. to Strike Def.
Trustee’s Submission of Final Fee & Cost Invoicing.) After hearing two days of testimony
and reviewing extensive briefing on the issue, the magistrate awarded Administrator Epling
the total amount of fees he sought and denied the Trustee’s request altogether. (Feb. 23,
2023 Mag.’s Decision at 12.)
{¶ 22} The magistrate concluded that the Trustee was not entitled to attorney fees
under the separation agreement because the Trust was not an intended third-party
No. 24AP-220 8
beneficiary of the agreement. Id. at 8. The magistrate reasoned that it was “impossible”
that the parties to the separation agreement could have “intended to provide a benefit to
the Trust” because it was “not named” in the agreement and did not exist until “almost six
years after the Separation Agreement was signed.” Id. The magistrate found “[n]o
evidence” that the separation agreement “was intended as part of Decedent’s larger estate
plan,” and that Mr. Todd had “wanted the benefit of the Separation Agreement for himself.”
Id. “There is simply insufficient evidence to find that the Decedent entered into the
Separation Agreement for the benefit of any future heirs or designees.” Id. In addition, the
magistrate concluded that the Trustee was not entitled to attorney fees because of Ms.
Todd’s alleged bad faith:2
Further, the court finds that both [Ms. Todd] and the Trustee
are equally at fault for the contentious nature of these
proceedings. While both parties actively and zealously argued
their positions, the court does not find that EITHER party
presented sufficient evidence of bad faith or vexatious actions
such that an award of attorney fees should be granted.
Id. at 10.
{¶ 23} The magistrate also found:
While the actions of [Ms. Todd] and the Trustee throughout
this litigation were highly contentious and adversarial, the
court finds both parties’ actions and arguments equally
prolonged the litigation, and insufficient evidence of actual
malice and bad faith was presented to substantiate the
requested finding [of] bad faith.
Id. at 5.
{¶ 24} The magistrate made an alternative finding that, even if Ms. Todd “were
responsible for attorney fees owed to the Trustee,” the amount that the Trustee sought was
not “justified under Prof.Cond. 1.5(a)(4)” because it so far exceeded the “maximum benefit”
that the trust might have recovered. Id. at 10. The magistrate did conclude, however, that
Mr. Epling was entitled to the fee award he sought because, as the administrator of Mr.
Todd’s estate, he stood “in the place” of Mr. Todd as “a party to the Separation Agreement,
2 The magistrate first states that “the court does not need to rule on whether [Ms. Todd] acted in bad faith
during this litigation because the Trustee chose to intervene,” but in the next paragraph makes the ruling
just described as unnecessary. (Emphasis sic.) (Feb. 23, 2023 Mag.’s Decision at 10.)
No. 24AP-220 9
granting him the authority to assert a claim for fees” under its enforcement provision. Id.
at 11.
{¶ 25} The Trustee filed objections to the magistrate’s decision, but the probate
court overruled them, finding that “the magistrate’s reasoning appears sound.” (Mar. 12,
2024 Jgmt. Entry at 4.) According to the probate court, “it was the decedent, not his trust,
who was an original party to the [Separation] Agreement,” so Mr. Todd’s “estate, not the
beneficiary of the estate, is the direct successor to the decedent’s interest in the rights and
obligations under the Agreement.” Id. Because the administrator “remained the proper
party in interest,” even after the Trustee was allowed to intervene, only the administrator
was entitled to attorney fees under the agreement’s enforcement provision. Id. Thus, the
probate court concluded that the “American rule . . . control[s] the trustee’s ability to
recover fees,” but found that no party had “acted with the sort of bad faith to implicate the
equitable exception to the American rule.” Id.
{¶ 26} The Trustee had also argued that he was entitled to seek attorney fees under
the separation agreement because he had statutory standing as a fiduciary under R.C.
2107.46 to file counterclaims against Ms. Todd after the administrator had failed to.
Although the Trustee’s objections pointed out the magistrate’s failure to consider this
argument, the probate court found the oversight to be immaterial because the
administrator’s “successful defense of the suit” obviated the need for the Trustee’s
participation in the litigation. Id. at 5.
{¶ 27} Finally, the probate court emphasized that “even if the trustee had any right
to enforce the [Separation] Agreement,” it only allowed “for an award of reasonable
attorney fees.” (Emphasis sic.) Id. The court was “not persuaded that attorney fees
approaching $400,000.00, which so drastically overshadow the maximum pecuniary
benefit which litigation could bring the trust, are by any means reasonable or permissible
under the Rules of Professional Conduct.” Id. at 5-6. Accordingly, the probate court
adopted the magistrate’s decision, denied the Trustee’s application for attorney fees, and
awarded them to the administrator. Id. at 6.
{¶ 28} The Trustee has appealed and asserts the following assignments of error:
I. The Probate Court erred when it concluded that Intervenor-Appellant William A. Todd as Trustee … had no standing
(either as an intended third-party beneficiary under the
No. 24AP-220 10
common law or by statute) to enforce the attorney fee provision
of the Separation Agreement.
II. The Probate Court erred when it concluded that there was
no basis for Appellant to recover attorney fees under the bad
faith exception to the American Rule.
III. The Probate Court erred when it adopted an alternative
conclusion that—even if there was standing, or even if the bad
faith exception were implicated—the total of all requested fees
was unreasonable without conducting a lodestar analysis or
considering whether any portion of the total was reasonable
and without providing reasons in support of its determination.
IV. The Probate Court erred when it did not allow Appellant to
refresh witness recollection with a voicemail message that the
witness had received and the Probate Court did not allow a
proffer of the voicemail with the witness.
V. The Probate Court erred when it did not grant Appellant’s
motion to amend his pleading to add explicit allegations that
he had standing pursuant to R.C. 2107.46 to pursue the
counterclaims he pled against Appellee.
II. Analysis
{¶ 29} Because our discussion will resolve this appeal by addressing and overruling
the first two assignments of error, the third, fourth, and fifth assignments of error will be
overruled as moot.
A. First Assignment of Error
{¶ 30} In the first assignment of error, the Trustee argues that the probate court
erred when it concluded that he was not a third-party beneficiary of the Separation
Agreement and therefore not entitled to seek attorney fees under its enforcement provision.
(Brief of Appellant at 35-38.) He argues that not only Mr. Todd himself, but, by the
agreement’s express terms, his “heirs, executors, administrators, next of kin and assigns”
were all intended to benefit and be bound by it, and that the Trust is both an heir an assign.
Id. at 39-40. In response, Ms. Todd argues that the language the Trustee points to was only
a “standard ‘saving’ clause” that simply “affirm[ed] the force and effect of the Separation
Agreement in the event that an action to terminate the marriage was filed and withdrawn,”
but did not confer a benefit on the stakeholders it references as the law of third-party
No. 24AP-220 11
beneficiaries requires. (Brief of Appellee at 17-18.) Because this assignment of error
concerns the interpretation of contractual language, our review is de novo. E.g., Gatling
Ohio, LLC v. Allegheny Energy Supply Co., LLC, 10th Dist. No. 17AP-188, 2018-Ohio-3636,
¶ 12 (stating that “a de novo standard of review applies to matters of law, including the
interpretation and construction of written contracts,” under which “the court of appeals
gives no deference to a trial court’s interpretation of legal issues”). (Citations omitted.)
{¶ 31} In Hill v. Sonitrol of Southwestern Ohio, 36 Ohio St.3d 36, 40 (1988), the
Supreme Court of Ohio adopted the following definition of a third-party beneficiary from
the Restatement of the Law 2d, Contracts, Section 302 at 439-40 (1981):
(1) Unless otherwise agreed between promisor and promisee, a
beneficiary of a promise is an intended beneficiary if
recognition of a right to performance in the beneficiary is
appropriate to effectuate the intention of the parties and either:
(a) the performance of the promise will satisfy an obligation of
the promisee to pay money to the beneficiary; or
(b) the circumstances indicate that the promisee intends to give
the beneficiary the benefit of the promised performance.
(2) An incidental beneficiary is a beneficiary who is not an
intended beneficiary.
{¶ 32} The “test used to determine whether a third party is an intended or incidental
beneficiary” is the “intent to benefit” test, adopted from Norfolk & W. Co. v. United States,
641 F.2d 1201 (6th Cir.1980).
Hill at 40. Under this test, if a promisee “intends that a third
party should benefit from the contract, then that third party is an ‘intended beneficiary’ who
has enforceable rights under the contract.” Norfolk at 1208. Conversely, “[i]f the promisee
has no intent to benefit a third party, then any third-party beneficiary to the contract is
merely an ‘incidental beneficiary’, who has no enforceable rights under the contract.”
Id.
{¶ 33} “Courts generally presume that a contract’s intent resides in the language the
parties chose to use in the agreement.” Huff v. FirstEnergy Corp., 130 Ohio St.3d 196,
2011-Ohio-5083, ¶ 12, citing Shifrin v. Forest City Ents., Inc.,
64 Ohio St.3d 635, 638
(1992). “Ohio law thus requires that for a third party to be an intended beneficiary under a
contract, there must be evidence that the contract was intended to directly benefit that third
party.”
Id. Unless unclear or ambiguous requires extrinsic evidence as an aid to interpret
No. 24AP-220 12
meaning, “the parties’ intention to benefit a third party will be found in the language of the
agreement.”
Id.
{¶ 34} In this case, Mr. Todd and Ms. Todd expressly stated their intent with regard
to certain third parties in the “Binding Effect” provision of the Separation Agreement:
The parties agree that if an action for Dissolution of Marriage,
Divorce or Legal Separation is hereafter filed and for any
reason is withdrawn or dismissed, it is intended by the parties
that this Agreement shall, nonetheless, remain in full force and
effect and be binding upon both parties, their heirs, executors,
administrators, next of kin and assigns.
(Separation Agreement at 9.)
{¶ 35} First, we note that the apparent condition precedent stating “if an action for
Dissolution of Marriage, Divorce or Legal Separation is hereafter filed and for any reason
is withdrawn or dismissed” did occur, as the parties dismissed their divorce action.
(Mar. 11, 2020 Mag.’s Decision at 6 (stating finding of fact that parties had dismissed
pending divorce action).) Upon fulfillment of the condition, the parties “intended” that the
agreement “remain in full force and effect.” This specific reference to what was “intended
by the parties” also stated that the agreement was to “be binding” not only upon Mr. Todd
and Ms. Todd, but also upon “their heirs, executors, administrators, next of kin and
assigns.” Id. at 5-6. The provision could not be clearer as to the parties’ intent to not only
be bound by the separation agreement even if they did not divorce, but to extend that
obligation as well to the listed third parties.3 Furthermore, because “there must be a
complete reciprocity of obligation, benefit, and effect arising from the agreement, according
to the full extent of the intention of the parties, otherwise it will not be binding on either,”
a party or one of the mentioned third parties enjoyed a reciprocal benefit upon the other’s
performance. See Gratz v. Gratz, 4 Rawle 411, 435 (Pa.1834) (describing “a rule
particularly applicable to agreements”); see also Hepburn v. Dubois,
37 U.S. 345, 374
(1838) (quoting Gratz). Because the parties intended for any of the listed third parties to
be bound the agreement, they intended for them to benefit from it as well, satisfying
Norfolk’s “intent to benefit” test.
3 The magistrate’s conclusion that “[t]here is simply insufficient evidence to find that the Decedent entered
into the Separation Agreement for the benefit of any future heirs or designees” can only be explained by the
decision’s failure to address the Binding Effect provision or its language. (Feb. 23, 2023 Mag.’s Decision at
8.)
No. 24AP-220 13
{¶ 36} The question that therefore arises is whether the Trustee qualifies as one of
the named third parties, namely, an “heir” or “assign.” “In its technical sense, the term
‘heirs’ embraces those persons who take the estate of an intestate under the statute of
descent and distribution, and in the event such statute designates the widow, she takes as
an heir.” Holt v. Miller, 133 Ohio St. 418 (1938), paragraph three of the syllabus. See also
Boulger v. Evans,
54 Ohio St.2d 371, 374 (1978) (citing Holt’s definition of heir). The first
definition presented in the Black’s Law Dictionary entry for “heir” reflects the technical
sense of the term described in Holt: “Someone who, under the laws of intestacy, is entitled
to receive an intestate decedent’s property.” Black’s Law Dictionary 839 (10th Ed.2014)
However, even in a will, use of the term “is flexible and should be so construed as to give
effect to the manifest intention of the testator as ascertained by a due consideration of all
the provisions of the will and the circumstances under which it was made.” Cultice v. Mills,
97 Ohio St. 112 (1918), paragraph one of the syllabus. Avoidance of any technical meaning
where the document is a run-of-the-mill contract such as the parties’ separation agreement
is favored because “common words appearing in a written instrument are to be given their
plain and ordinary meaning unless manifest absurdity results or unless some other
meaning is clearly intended from the face or overall contents of the instrument.” Alexander
v. Buckeye Pipeline Co.,
53 Ohio St.2d 241, 245-46 (1978). “The intent of
the contracting parties must be determined from the term ‘heir’ or ’heirs’ considered in
context with the provisions of the contract and under the circumstances in which the term
was used.” Barnecut v. Barnecut,
3 Ohio App.2d 132, 138 (5th Dist.1964). Black’s second
definition of “heir,” “a person who inherits real or personal property, whether by will or by
intestate succession,” reflects a common understanding of the term. Black’s Law
Dictionary 839 (10th Ed.2014). When “heir” is understood in this sense, the Trustee
qualifies, as it was the only named devisee of Mr. Todd’s will.
{¶ 37} As for “assign,” Black’s considers it equivalent to “assignee,” and defines it as
“[o]ne to whose property rights are transferred by another” with the following caveat:
Use of the term is so widespread that it is difficult to ascribe
positive meaning to it with any specificity. Courts recognize the
protean nature of the term and are therefore often forced to
look to the intent of the assignor and assignee in making the
assignment—rather than to the formality of the use of the term
assignee—in defining rights and responsibilities.
No. 24AP-220 14
Id. at 142.
{¶ 38} The relevant definition of assign is “[t]o convey in full; to transfer (rights or
property . . . .” Id. Given the separation agreement’s unequivocal assertion that it “remain
in full force and effect and be binding upon” the third parties listed, including assigns, the
parties intended for all rights and responsibilities arising under it be fully alienable.
{¶ 39} Recall that at the time of Mr. Todd’s death, the parties had not fully
performed under the separation agreement. Mr. Todd had not paid $10,000 of the amount
promised to Ms. Todd for the Brentwood property, and she had not yet signed the quitclaim
deed to it that she had promised to sign upon receipt of the funds. According to Ms. Todd’s
testimony, she refused to his plea to accept the funds, which would have completed the
transaction, because she also wanted Mr. Todd to agree to file a dissolution. (Aug. 8, 2019
Tr. at 88-89.) Under these circumstances, either party had plausible grounds for bringing
a breach of contract against the other. The proper term for such a “right to bring an action
in tort and in contract” is a chose in action. Pilkington N. Am., Inc. v. Travelers Cas. & Sur.
Co., 112 Ohio St.3d 482,
2006-Ohio-6551, ¶ 20.
{¶ 40} “A chose in action is personalty which, unlike real property, passes on death
to the holder’s executor.” In re Estate of Ray, 6th Dist. No. WD-02-049, 2003-Ohio-2001,
¶ 13, citing In re Estate of Wreede,
106 Ohio App. 324, 331 (3d Dist.1958). Thus, Mr. Todd’s
death did not extinguish his right to sue under the separation agreement, which, as a chose
in action, became part of his estate. See Burns v. Daily,
114 Ohio App.3d 693, 704 (11th
Dist.1996) (decedent’s possible claims against attorney to recover “excessive attorney’s
fees” based “on a theory of breach of contract, breach of fiduciary duty, money had and
received, an accounting, conversion, fraudulent misrepresentation, or the like . . .
constituted a chose-in-action, which she held as personal property,” and “passed to her
executor,” who had the duty to “reduc[e] the chose in action to a money judgment”).
Because “[i]t is permissible to assign a chose in action,” the right vested as well in the
Trustee, as the separation agreement mandated when it bound Mr. Todd’s heirs and
assigns. Leber v. Buckeye Union Ins. Co.,
125 Ohio App.3d 321, 332 (6th Dist.1997), citing
Crawford v. Chapman,
17 Ohio 449 (1848). Mr. Todd’s will independently accomplished
the same objective when it devised “[a]ll the rest and residue of the property, real or
personal, of every kind and description, wheresoever located, which I may own or have the
No. 24AP-220 15
right to dispose of” to the Trustee “to be held and disposed of” under the Trust. (Ex. K.,
Feb. 13, 2018 First Am. Compl.)
{¶ 41} If Mr. Todd’s right to pursue a breach of contract claim survived as a chose in
action, so too did his right to seek attorney fees under the “enforcement” provision. Thus,
whether the Trustee is entitled attorney fees under the separation agreement is dependent
upon whether the terms of that provision were satisfied. Again, that provision states:
If either Husband or Wife defaults on the performance of any
of the terms, provisions or obligations herein set forth, and it
becomes necessary to institute legal proceedings to effectuate
the performance of any provisions of this Agreement, then the
party found to be in default shall pay all expenses, including
reasonable attorney fees, incurred in connection with such
enforcement proceedings.
(Separation Agreement at 9.)
{¶ 42} When considering the requirements expressed above in light of the events of
this litigation, we cannot conclude that the Trustee’s participation satisfied the conditions
for awarding attorney fees. To merit award of “expenses, including attorney fees,” the nonprevailing party must be “found to be in default” of the separation agreement, and the
agreement itself must have been “enforce[ed].” Although the Trustee brought a number of
counterclaims premised on the theory that Ms. Todd had defaulted in her obligation to
transfer the Brentwood property, including a claim for specific performance to have its title
transferred and a quite title action declaring the estate its “rightful owner,” in the end, the
Trustee did not prevail on any of these claims. (Compare July 5, 2018 Answer at 21 with
Mar. 11, 2020 Mag.’s Decision & Mar. 11, 2021 Jgmt. Entry.) The only counterclaim on
which the probate court found in favor of the Trustee was the declaratory judgment claim,
but all that accomplished was a declaration that the separation agreement was valid.
(Mar. 11, 2020 Mag.’s Decision at 10.) The disputes that might have served as the basis for
a finding of default occurred in the court of common pleas, where the parties litigated their
dispute over the Brentwood property during the foreclosure action, but that action was
resolved by mediation. Finally, the probate court’s order to disperse the final amount due
to Ms. Todd under the separation agreement for the Brentwood property cannot be read as
a finding by the probate court that she defaulted under it, only that she was still due that
amount. However difficult the course of this litigation before is conclusion, an award of
No. 24AP-220 16
attorney fees depended on a party being “found to be in default,” and that did not occur in
the probate court. Accordingly, the probate court did not ultimately err when it denied the
Trustee’s application attorney fees under this provision. The first assignment of error is
overruled.4
B. Second Assignment of Error
{¶ 43} In the second assignment of error, the Trustee argues that the probate court
abused its discretion by concluding that he was not entitled to attorney fees on the basis of
bad faith. He points to emails between Ms. Todd and her brother-in-law as evidence of her
bad faith because they show that she “intentionally drove up costs and laughed about it,”
“lied,” and “engaged in unlawful self-help efforts.” (Brief of Appellant at 50.)
{¶ 44} “Ohio has long adhered to the ‘American rule’ with respect to recovery of
attorney fees: a prevailing party in a civil action may not recover attorney fees as a part of
the costs of litigation.” Wilborn v. Bank One Corp., 121 Ohio St.3d 546,
2009-Ohio-306,
¶ 7, citing Nottingdale Homeowners’ Assn. v. Darby,
33 Ohio St.3d 32 (1987) and State ex
rel. Beebe v. Cowley,
116 Ohio St. 377 (1927). There are three exceptions to the rule, which
allow for an award of attorney fees based on statute, a fee-shifting agreement, “or when the
prevailing party demonstrates bad faith on the part of the unsuccessful litigant.”
Id., citing
Pegan v. Crawmer,
79 Ohio St.3d 155 (1997). A party “may be entitled to recover attorney
fees based on the exception to the American Rule” if it can show that the opposing party
“acted in bad faith, wantonly, obdurately, vexatiously, or for oppressive reasons.” Kemp,
Schaeffer & Rowe Co., L.P.A. v. Frecker,
70 Ohio App.3d 493, 496-97 (10th Dist.1990)
(reversing and remanding where trial court failed to hold evidentiary hearing to determine
whether appellee had acted in bad faith). “A trial court’s determination in regard to an
award of attorney fees is generally reviewed under the abuse of discretion standard.” Whitt
Sturtevant, LLP v. NC Plaza LLC, 10th Dist. No. 14AP-919,
2015-Ohio-3976, ¶ 87,
citing Miller v. Grimsley, 10th Dist. No. 09AP-660,
2011-Ohio-6049.
{¶ 45} In this case, the Trustee’s motion for attorney fees prompted the magistrate
to hold a hearing over two days. Multiple witness, including Ms. Todd and Mr. Epling,
4 Having recognized the Trustee’s status as a third-party beneficiary and holding a chose in action under
the separation agreement, it is unnecessary to discuss the alternative basis for its enforcement arising from
his standing as a fiduciary under R.C. 2107.46.
No. 24AP-220 17
testified, and the magistrate reviewed a voluminous record of exhibits. The magistrate
ultimately concluded that neither “party presented sufficient evidence of bad faith or
vexatious actions such that an award of attorney fees should be granted.” (Feb. 23, 2023
Mag.’s Decision at 10.) The magistrate acknowledged the “highly contentious and
adversarial” actions of Ms. Todd and the Trustee, but ultimately found that “both parties’
actions and arguments equally prolonged the litigation” with “insufficient evidence of
actual malice and bad faith” to justify any fee award. Id. at 5. We acknowledge the
questionable tenor of the emails the Trustee cites, but in the end, defer to the magistrate’s
evidentiary findings. The magistrate evaluated the witnesses’ demeanor during their
testimony, examined the exhibits presented, and ultimately concluded that the conduct of
both parties had the effect of delaying the litigation. The Trustee has not demonstrated a
flaw in the magistrate’s reasoning that amounts to an abuse of discretion. Accordingly, the
second assignment of error is overruled.
III. Conclusion
{¶ 46} Because the resolution of the first two assignments of error precludes the
award of attorney fees to the Trustee on any grounds, the remaining assignments of error
are moot and accordingly overruled. Having overruled all assignments of error, we affirm
the judgment of the Franklin County Probate Court.
Judgment affirmed.
LUPER SCHUSTER and BEATTY BLUNT, JJ., concur.
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