Alotech Ltd., L.L.C. v. Black

2017 Ohio 5575

• Court: Ohio Court of Appeals
• Decided: June 29, 2017
• Docket: 104791
• Status: Published

Opinion

[Cite as Alotech Ltd., L.L.C. v. Black, 2017-Ohio-5575.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 104791

ALOTECH LIMITED L.L.C. PLAINTIFF-APPELLEE

vs.

AUDREY BLACK DEFENDANT-APPELLANT

JUDGMENT: DISMISSED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-12-791234

BEFORE: Kilbane, P.J., E.T. Gallagher, J., and Laster Mays, J.

RELEASED AND JOURNALIZED: June 29, 2017 ATTORNEYS FOR APPELLANT

Andrea Whitaker William T. Whitaker William T. Whitaker Co., L.P.A. The Gothic Building 54 East Mills Street, Suite 301 Akron, Ohio 44308

ATTORNEYS FOR APPELLEE

Suzanne Bretz Blum Thacker Robinson Zinz L.P.A. 2330 One Cleveland Center 1375 East 9th Street Cleveland, Ohio 44114 MARY EILEEN KILBANE, P.J.:

{¶1} Appellant, Audrey Black (“Audrey”) appeals from the trial court’s order

granting the motion to show cause filed against her by appellee, Alotech Limited, L.L.C.

(“Alotech”), and the trial court’s award of attorney fees to Alotech. In light of our

decision in the companion case to this appeal, Alotech Ltd., L.L.C. v. Kayla Barnes, 8th

Dist. Cuyahoga No. 104389 (the “companion case”), we dismiss this appeal as moot.

{¶2} The instant appeal and its companion case arise out of a civil action brought

by Alotech against its Chief Financial Officer, John Black (“John”), his wife, Audrey, and

other women alleged to have been unjustly enriched by John’s embezzlement of

Alotech’s business funds.

{¶3} In January 2013, Audrey’s mother, Inez Urbancic, created a living trust (the

“Urbancic Trust”) for the sole benefit of John and Audrey’s daughter, Courtney Black

(“Courtney”). Among the trust’s limited assests is real property located in Euclid, Ohio

(the “Urbancic Trust asset”). Inez Urbancic passed away in June 2015, and Audrey was

appointed as the Successor Trustee under the terms of the Urbancic Trust.

{¶4} In April 2016, Audrey met with representatives of Alotech in an effort to

resolve Alotech’s claims against her. At the conclusion of the meeting, the parties

reached a settlement agreement whereby Alotech agreed to dismiss its claims against

Audrey in exchange for her agreement to: (1) transfer title of the Urbancic Trust asset to

Alotech; (2) pay Alotech $15,000 within 15 days of the signing of the agreement; and (3)

pay Alotech $150 per month for a period of 100 months. The settlement agreement was signed by Audrey and Alotech’s president, John Grassi. A signature line was provided

for Courtney on the settlement document.

{¶5} The following day, Audrey contacted Alotech and indicated that she was

unable to move forward with the settlement agreement because Courtney, the sole

beneficiary of the Urbancic Trust, refused to give her permission to transfer the trust asset

to Alotech. Alotech then filed a motion to enforce the settlement agreement, arguing that

the terms of the Urbancic Trust allowed Audrey, as trustee, to transfer the assets of the

trust without Courtney’s permission. The trial court agreed and granted Alotech’s

motion. Alotech next filed a motion to show cause why Audrey should not be held in

contempt for failing to perform her obligations under the settlement agreement.

{¶6} In the entry from which Audrey now appeals, the trial court did not make

specific contempt findings, but did reiterate its earlier ruling that the settlement agreement

between the parties was enforceable. The trial court stated it “excerises its authority to

aid in the enforcement * * * of certain provisions of the settlement agreement between

the parties” and ordered Audrey to “write a check for $300 to Alotech immediately.”

The court further issued “judgment on the $15,000 that was due from [Audrey]” with

statutory interest from the date of judgment. The court found that Alotech was entitled to

its attorney fees from Audrey “expended to secure judicial assistance with the

enforcement of the settlement agreement.”

{¶7} In the companion case, we found the settlement agreement between Audrey

and Alotech to be unenforceable because it is violative of public policy, namely the “absolute fiduciary duty” owed by a trustee to “act in the best interest of the trust

benficiary.” Because we have found the settlement agreement between Alotech and

Audrey to be unenforceable, it follows that the trial court’s order aiding in execution of

the settlement agreement and awarding attorney fees is void. Accordingly, this appeal is

moot.

{¶8} Appeal is dismissed.

It is ordered that appellant recover of appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

MARY EILEEN KILBANE, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and ANITA LASTER MAYS, J., CONCUR