[Cite as Dornette v. Green Bldg. Consulting, L.L.C., 2025-Ohio-4944.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
DAVID DORNETTE, : APPEAL NO. C-240689 TRIAL NO. 24/CV/06262 Plaintiff-Appellant, :
vs. : JUDGMENT ENTRY GREEN BUILDING CONSULTING LLC, :
Defendant, :
and :
REDKNOT HOLDINGS, LLC, :
Defendant-Appellee. :
This cause was heard upon the appeal, the record, the briefs, and arguments. For the reasons set forth in the Opinion filed this date, the judgment of the trial court is affirmed. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed under App.R. 24. The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27.
To the clerk: Enter upon the journal of the court on 10/29/2025 per order of the court.
By:_______________________ Administrative Judge [Cite as Dornette v. Green Bldg. Consulting, L.L.C., 2025-Ohio-4944.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
DAVID DORNETTE, : APPEAL NO. C-240689 TRIAL NO. 24/CV/06262 Plaintiff-Appellant, :
vs. : OPINION GREEN BUILDING CONSULTING LLC, :
Civil Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 29, 2025
Taft Stettinius & Hollister LLP, Nicholas J. Pieczonka and William E. Braff, for Plaintiff-Appellant,
Schwander Law Firm LLC and Nicholas W. Schwandner, for Defendant-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS
MOORE, Judge.
{¶1} Plaintiff-appellant David Dornette appeals the trial court’s judgment
denying his motion for summary judgment and granting the cross-motion for
summary judgment in favor of defendant-appellee Redknot Holdings, LLC
(“Redknot”), arguing that his claim for replevin against Redknot was not barred by the
parties’ previous settlement agreement. The settlement agreement, however, explicitly
provided that each party released the other from future claims.
{¶2} Dornette also challenges the trial court’s judgment granting Redknot’s
request for attorney’s fees on Redknot’s crossclaim against Dornette for breaching the
settlement agreement, arguing that the American Rule requires each party to cover
their own attorney’s fees. The trial court, however, awarded the fees as compensatory
damages, not as costs.
{¶3} We, therefore, affirm the trial court’s judgment.
I. Factual and Procedural History
{¶4} Dornette contracted (the “Construction Contract”) with Redknot to
build a house (the “Property”). Redknot then hired defendant Green Building
Consulting LLC (“GBC”) to perform work on the Property to obtain a certification for
a “platinum LEED for Homes Rating” (“LEED”). The section of the Construction
Contract pertaining to this certification stated that there was a consulting fee that
covered payment for the LEED registration fee, necessary documentation services,
payment of the certification fee, and “ordering and delivery of certificates.” It also
stated that the price to build the home did not include the cost for making
modifications to the Property that may be required to obtain the LEED certification.
The section further stated: “While [Redknot] will work diligently to obtain the LEED
[Redknot] makes no guarantees that the desired LEED certification level will be
3 OHIO FIRST DISTRICT COURT OF APPEALS
obtained.”
A. The Dispute, Arbitration, and the Settlement Agreement
{¶5} A dispute arose between the parties. Dornette asserted the construction
of the Property was defective. Redknot, in turn, claimed that Dornette stopped paying
for its work.
{¶6} In April 2023, Dornette filed a demand for arbitration. Redknot
responded by filing a counterclaim in the arbitration. In May 2023, Redknot recorded
a mechanic’s lien against the Property. Prior to the arbitration hearing, the parties
engaged in mediation.
{¶7} The mediation was successful, and in January 2024, Redknot and
Dornette executed a settlement agreement that “resolve[d] all disputes between them
related to or arising from the Contract, Property, Project, Dispute, Lien, and
Arbitration,” and the parties agreed to dismiss their respective arbitration actions with
prejudice. The settlement agreement contained a release clause, which provided that
the parties bore no further financial responsibility to one another, and each were to
bear their own attorney’s fees, costs, and expenses. Dornette agreed to release Redknot
of all “claims, demands . . . breaches of contract, litigation, causes of action, warranties,
breaches of duty or any relationship . . . whether sounding in law, equity, contract . . .
past, present and future.” Likewise, Redknot agreed to release Dornette of the same.
Redknot, however, was not released “from any latent defects or latent warranty items
on the Property.”
{¶8} The release applied to the parties’ respective partners, employees,
agents, representatives, subsidiaries, affiliated business entities, etc. The agreement
provided, “This release shall not apply to any breach of this Agreement, which claims
are reserved.” The agreement also contained an integration clause that stated that the
4 OHIO FIRST DISTRICT COURT OF APPEALS
document constituted the entire agreement between the parties, and any amendments
to the agreement must be made in a separate writing.
{¶9} Prior to the conclusion of the arbitration, Dornette requested the LEED
materials from GBC. Dornette received an e-mail from GBC in August 2023, which
stated:
Good afternoon Dan!
Apologies for the delay in response. I think I may have already
mentioned, but Redknot has authorized us to use/share the information
we already have on file to close out this project, including the data from
the pre-drywall inspection. Are you still intending to hit Platinum?
Please fill out and send back this info sheet so Accounting (copied) can
get the revised contract out and set up the new billing party in our
system.
I’ve also copied Kristi O’Conner, who will be managing the remainder of
this project. Upon receipt of the updated agreement, we will release all
of the relevant project documentation and set up a quick call to run
through the current path on the checklist, then we should schedule the
final inspection to see where the project stands for corrections or points
needed.
B. Dornette files a claim for replevin.
{¶10} After the settlement agreement was executed, Dornette again requested
the LEED materials—this time from Redknot, which refused the request. In March
2024, Dornette filed a claim in the Hamilton County Municipal Court for replevin
against Redknot and GBC regarding the LEED materials. On July 15, 2024, Dornette
voluntarily dismissed his complaint against GBC without prejudice.
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{¶11} Dornette asserted in his complaint against Redknot that he paid for the
LEED materials, and thus, he was entitled to them. Paragraph 18 of the complaint
listed the materials Dornette sought:
[GBC] performed this work and is in possession of the LEED
certification materials, including but not limited to: registration
documents, preliminary sustainable design strategy evaluations, design
investigation and strategy development documents, confirmed
sustainable design strategy documents, sustainable design integration
documents, design documents, LEED inspection reports, LEED
progress reports, LEED checklists, LEED certifications, LEED energy
modeling, and energy modeling-reports.
{¶12} Redknot filed an answer and counterclaim against Dornette, alleging
that Dornette breached the settlement agreement by filing his claim for replevin,
which was a failure to act in good faith and fair dealing and caused Redknot to incur
attorney’s fees, costs, and expenses.
The parties file cross-motions for summary judgment.
{¶13} In June 2024, Dornette filed a motion for immediate possession of the
LEED materials and for summary judgment against Redknot on its counterclaim.
Dornette asserted in his motion that he paid for the LEED materials in full, and they
belonged to him. He further argued that Redknot’s claim for attorney’s fees was barred
by the American Rule, which, absent the existence of an exception, generally bars
litigants from recovering attorney’s fees in civil actions.
{¶14} Redknot responded with a combined motion for summary judgment on
its counterclaim and opposition to Dornette’s summary-judgment motion. Redknot
asserted that the Construction Contract did not give Dornette an ownership interest
6 OHIO FIRST DISTRICT COURT OF APPEALS
in the LEED materials as they were “underlying work product generated during the
process of seeking LEED certification,” and thus, a “service” that was provided as a
part of the scope of the work it did.
{¶15} Citing to the affidavit of Redknot’s president, Mark Pottebaum, Redknot
further argued that, even if Dornette had an ownership interest in the LEED materials,
Dornette never paid for them. Redknot added that Dornette could not produce proof
of his claim that he had paid for the materials. It refuted Dornette’s assertion that the
settlement agreement was evidence that Dornette paid for the materials, as the
agreement provided that each party was released from further financial obligation to
the other. Redknot further argued that Dornette’s replevin claim had been released in
the arbitration settlement and thus, bringing the action for replevin was a breach of
that settlement agreement.
{¶16} As to its claim for attorney’s fees, Redknot asserted that Dornette’s
replevin action violated the release clause of the settlement agreement, and the
attorney’s fees that Redknot sought were not costs, but compensatory damages.
{¶17} The trial court granted summary judgment in Redknot’s favor and
awarded Redknot $5,313.47 in compensatory damages. The court denied Dornette’s
motion, reasoning that Dornette’s claim was barred by the settlement agreement.
{¶18} This appeal followed.
II. Analysis
{¶19} In his sole assignment of error, Dornette argues that the trial court erred
by denying his motion for summary judgment and granting Redknot’s cross-motion
on the basis that his replevin claim was barred by the parties’ settlement agreement.
Dornette further argues that the trial court’s award of attorney’s fees to Redknot was
contrary to the American Rule.
7 OHIO FIRST DISTRICT COURT OF APPEALS
{¶20} An appellate court conducts a de novo review of summary-judgment
decisions. WSB Rehab. Servs. v. Cent. Accounting Sys., 2022-Ohio-2160, ¶ 22 (1st
Dist.). A de novo review requires the appellate court to conduct an independent review
of the evidence before the trial court without deference to the trial court’s decision.
Doe v. Marker, 2003-Ohio-6230, ¶ 13 (11th Dist.). Under Civ.R. 56(C), summary
judgment is proper when the moving party establishes that (1) no genuine issue of any
material fact remains, (2) the moving party is entitled to judgment as a matter of law,
and (3) it appears from the evidence that reasonable minds can come to but one
conclusion and, construing the evidence most strongly in favor of the nonmoving
party, that conclusion is adverse to the party against whom the motion for summary
judgment is made. WSB at ¶ 22.
A. Dornette’s replevin action was barred by the settlement agreement.
{¶21} On appeal, Dornette argues that he paid for LEED materials, and, as
such, he was entitled to sue Redknot to recover those items. Dornette asserts that his
replevin action was in response to a breach of the settlement agreement when Redknot
refused to give him the LEED materials that he sought.
{¶22} Replevin is a claim against a person who has wrongfully taken or
detained goods or chattels from a person who owns or is entitled to repossession of
goods or chattels; if the claimant prevails, he or she may recover those goods or
chattels. Brown v. City of Cincinnati, 2020-Ohio-5418, ¶ 11 (1st Dist.).
Dornette failed to show that a genuine issue of material fact existed in his replevin action.
{¶23} The trial court granted summary judgment in Redknot’s favor based on
the release clause in the settlement agreement. Dornette contends that the settlement
agreement is inapplicable to his replevin action because the settlement agreement
8 OHIO FIRST DISTRICT COURT OF APPEALS
resolved issues “in dispute.” He posits that, because GBC acknowledged there was
“information” in its possession, and Redknot allegedly authorized the release of that
information, the LEED issue was not in dispute. He asserts that, therefore, Redknot
should have turned over the materials when he requested them after the settlement
agreement was executed. He further asserts that he had no reason to suspect Redknot
would withhold the materials, thus he was entitled to take legal action to “enforce the
settlement agreement” due to Redknot’s “misconduct.”
The settlement agreement resolved all claims between the parties not expressly reserved.
{¶24} The record does not support Dornette’s claim that the settlement
agreement preserved claims related to the LEED materials. The plain language of the
settlement agreement states that each party agreed to release the other from all claims,
including future, unforeseeable claims. Nothing in the agreement reserved claims
related to the LEED materials or liability for failure to provide the materials.
{¶25} Dornette cites Reo v. Allegiance Admrs., LLC, 2018-Ohio-2464, ¶ 20
(11th Dist.), for the proposition that Ohio law “disfavors enforcing releases that bar
liability for future unlawful conduct.” Dornette’s argument misstates the law. This
proposition regards a public-policy argument that applies to future tortious conduct,
which is inapplicable here as his complaint was for replevin. See id. Dornette’s
assertion that nothing in the settlement agreement “strip[ped]” him of his ability to
assert property rights is also meritless. The trial court’s judgment does not, as he
claims, set a precedent that would bar him from ever bringing any claim against
Redknot, as the agreement explicitly preserved any claim for “latent defects or latent
warranty items on the Property.” Dornette, meanwhile, fails to show how the LEED
materials fall under this category.
9 OHIO FIRST DISTRICT COURT OF APPEALS
{¶26} Based on the foregoing, the trial court did not err by finding that the
settlement agreement barred Dornette’s replevin action.
B. A prevailing party may recover attorney’s fees in a breach-of- settlement-agreement claim as compensatory damages.
{¶27} To succeed on a breach-of-contract claim, a party must establish (1) the
existence of a contract, (2) a breach of that contract, and (3) damages resulting from
that breach. DATFT LLC v. AM Reflections Cleaning Servs. LLC, 2023-Ohio-1348, ¶
19 (1st Dist.). Here, there was no genuine issue of material fact that Dornette’s
execution of the settlement agreement released Redknot from all “claims, demands . .
. breaches of contract, litigation, causes of action, warranties, breaches of duty or any
relationship . . . whether sounding in law, equity, contract . . . past, present and future.”
The agreement specified that the only claims excluded from this broad release were
claims “from any latent defects or latent warranty items on the Property.” Claims
related to LEED materials were not part of this carve-out. Therefore, the trial court did
not err by entering judgment in Redknot’s favor.
Civil Suits and the American Rule
{¶28} Generally, we review an award of attorney’s fees for an abuse of
discretion. Kellard v. City of Cincinnati, 2021-Ohio-1420, ¶ 29 (1st Dist.). A trial court
abuses its discretion when its decision is unreasonable, unconscionable, or arbitrary.
Niehaus v. Durrani, 2023-Ohio-4818, ¶ 34 (1st Dist.), citing Murphy v. Carrollton
Mfg. Co., 61 Ohio St.3d 585, 591 (1991). When an appeal presents this court with a
question of law, however, we review an award of attorney’s fees de novo. Roberts v.
Mike’s Trucking, Ltd., 2014-Ohio-766, ¶ 45 (12th Dist.) (“We review de novo the trial
court’s legal analysis underpinning the award of attorney’s fees but otherwise review
the fee award for an abuse of discretion.”).
10 OHIO FIRST DISTRICT COURT OF APPEALS
{¶29} Under the American Rule, a prevailing party in a civil action is generally
not entitled to recover attorney’s fees as a part of the costs of litigation absent a finding
that the losing party acted in bad faith, or the statute or contract at issue provides for
attorney’s fees. See Kellard at ¶ 37; Weckel v. Cole + Russell Architects, 2019-Ohio-
3069, ¶ 7 (1st Dist.). Dornette is correct that this court has generally followed the
American Rule. It is also the case here that there is no fee-shifting provision in the
settlement agreement and there does not appear to be an applicable attorney-fee
statute.
{¶30} There is, however, an exception to the general rule on awarding
attorney’s fees that has been carved out by our sister districts and the federal Sixth
Circuit that allows for the award of attorney’s fees as compensatory damages.
Attorney’s fees have been held recoverable as compensatory damages in actions for breach of a settlement agreement.
{¶31} While Dornette posits that the trial court’s award of attorney’s fees on
Redknot’s claim for breach of the settlement agreement is contrary to law, Ohio courts
have held the opposite. When a prevailing party moves to dismiss the plaintiff’s action,
and where the action was brought in breach of a settlement agreement, Ohio courts
have recognized an exception to the American Rule.
{¶32} Ohio courts have long held that where parties have entered into a
settlement agreement to end litigation and a party incurs attorney’s fees by having to
continue litigation due to a breach of that agreement, those fees are recoverable as
compensatory damages. Shanker v. Columbus Warehouse Ltd. Partnership, 2000
Ohio App. LEXIS 2391, *14 (10th Dist. June 6, 2000), citing S&D Mechanical Contrs.
v. Enting Water Conditioning Sys., 71 Ohio App.3d 228, 241 (2d Dist. 1991). The
Shanker court held that the American Rule did not apply under such circumstances
11 OHIO FIRST DISTRICT COURT OF APPEALS
and, because defendant sought the attorney’s fees as compensatory damages rather
than as costs of the action, defendant was entitled to recover those fees to make him
whole and compensate him for losses caused by plaintiffs’ breach. Id.; see Zele v. Ohio
Bell Telephone Co., 2025-Ohio-1546, ¶ 37 (8th Dist.); Horn v. Cherian, 2023-Ohio-
931, ¶ 52 (8th Dist.); Brown v. Spitzer Chevrolet Co., 2012-Ohio-5623, ¶ 21 (5th Dist.);
Myron C. Wehr Properties, LLC v. Petraglia, 2016-Ohio-3126, ¶ 36 (7th Dist.);
Waterfront, LLC v. Shia, 2022-Ohio-3259, ¶ 28-30 (2d Dist.); Marchbanks v. Ice
House Ventures, LLC, 2024-Ohio-417, ¶ 20 (10th Dist.); see also Rohrer Corp. v. Dane
Elec. Corp. USA, 482 Fed.Appx. 113, 115-117 (6th Cir. 2012).
{¶33} The only case that Dornette cites to support his position is Shamrock v.
Cobra Resources, LLC, 2022-Ohio-1998, ¶ 133 (11th Dist.) (Lynch, J., concurring in
part and dissenting in part), in which the Eleventh District declined to adopt the
Shanker exception to the American Rule that attorney’s fees are recoverable as
compensatory damages in actions for breach of a settlement agreement. The dissent
in Shamrock, however, highlighted a string of Ohio appellate cases that have adopted
the Shanker exception and concluded that the majority’s holding “fail[ed] to give any
weight to the fact that those Ohio appellate districts that have addressed this issue
have reached the contrary conclusion: a breach of a settlement agreement entitles a
party to attorney’s fees as compensatory damages.” Id. at ¶ 141-142 (Lynch, J.,
dissenting in part).
{¶34} Dornette also cites to the dissent in Rayco Mfg., Inc. v. Murphy, Rogers,
Sloss & Gambel, 2019-Ohio-3756, ¶ 37 (8th Dist.) (Sheehan, J., dissenting) in support
of his argument. The majority in that case, however, held that attorney’s fees could be
awarded as compensatory damages to the prevailing party on a motion to enforce a
settlement agreement when the fees were incurred as a direct result of a breach of such
12 OHIO FIRST DISTRICT COURT OF APPEALS
an agreement; thus, such fees were compensatory damages rather than “costs of
litigation,” and the American Rule did not preclude their recovery even where none of
the other exceptions to the American Rule applied. Id. at ¶ 6, 8-18.
{¶35} The Rayco court concluded that “[a]llowing recovery of attorney’s fees
as compensatory damages on a motion to enforce a settlement agreement is consistent
with the strong public policy that exists in encouraging settlements and enforcing
settlement agreements.” Id. at ¶ 17. It further held that, otherwise, “a party who had a
‘change of heart’ regarding a settlement agreement would have nothing to lose by
refusing to comply with the settlement agreement, challenging the existence or
enforceability of the settlement agreement, and continuing to litigate the matter,
notwithstanding the harm to the nonbreaching party.” Id. at ¶ 18; see also Wilson v.
Prime Source Healthcare of Ohio, 2018 U.S. Dist. LEXIS 34445 (N.D.Ohio Mar. 2,
2018) (where a settling party forces the other party to litigate a motion to enforce the
settlement, the party forced to enforce the settlement agreement is “entitled to
attorney’s fees stemming from this additional litigation as compensatory damages”).
{¶36} The Rayco court added that a “nonbreaching party should not be
compelled to initiate a separate action and file and serve a new complaint (or seek
leave to amend a previously filed complaint), incurring even greater expense and
further wasting limited judicial resources, in order to recover its compensatory
damages incurred in enforcing a settlement agreement.” Rayco at ¶ 19.
{¶37} While the Ohio Supreme Court has not addressed the exception to the
American Rule adopted by our sister districts, there is nothing to suggest that the
Court has considered and condemned the exception. Further, cases holding that
attorney’s fees cannot generally be recovered address the recovery of attorney’s fees as
costs, not as compensatory damages. Here, Redknot sought attorney’s fees not as costs
13 OHIO FIRST DISTRICT COURT OF APPEALS
of litigation, but as compensatory damages for Dornette’s breach of the settlement
agreement. That was the basis for the trial court’s judgment.
{¶38} Having found no merit to the issues raised by Dornette, we overrule his
single assignment of error.
III. Conclusion
{¶39} The Construction Contract stated that Redknot would deliver a LEED
certificate if it were obtained. The record is devoid of any promise by Redknot to
deliver any other materials. Even if Redknot owed something more to Dornette under
the contract, any such obligation was nullified by the settlement agreement, which
released all “claims, demands . . . breaches of contract, litigation, causes of action,
warranties, breaches of duty or any relationship . . . whether sounding in law, equity,
contract . . . past, present and future.” The plain language of the settlement agreement
reflects that the parties settled their differences and, thus, released the other from
future claims.
{¶40} Dornette’s argument that Redknot was not entitled to attorney’s fees on
its counterclaim for breach of the settlement agreement fails because, as other courts
addressing this issue have all held, a party’s expenditure on attorney’s fees due to a
breach of a settlement agreement is recoverable as compensatory damages.
{¶41} The trial court, therefore, did not err by denying Dornette’s motion for
summary judgment and granting summary judgment in Redknot’s favor and awarding
Redknot attorney’s fees as compensatory damages. Accordingly, we affirm the trial
court’s judgment.
Judgment affirmed.
ZAYAS, P.J., and CROUSE, J., concur.