[Cite as Estate of Hodory v. Duke Realty Corp., 2025-Ohio-5068.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
ESTATE OF ROBERT D. HODORY, : APPEAL NO. C-240545 DECEASED, TRIAL NO. A-0509619 : Plaintiff-Appellant/Cross- Appellee, :
vs. : JUDGMENT ENTRY
DUKE REALTY CORPORATION, :
DUKE REALTY LIMITED : PARTNERSHIP, : KENWOOD OFFICE DEVELOPERS LIMITED PARTNERSHIP, :
and :
KENWOOD OFFICE ASSOCIATES, :
Defendants-Appellees/Cross- : Appellants. :
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 in part and reversed in part, and the cause is remanded. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed to plaintiff-appellant/cross-appellee. 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 11/7/2025 per order of the court. OHIO FIRST DISTRICT COURT OF APPEALS
By:_______________________ Administrative Judge [Cite as Estate of Hodory v. Duke Realty Corp., 2025-Ohio-5068.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
ESTATE OF ROBERT D. HODORY, : APPEAL NO. C-240545 DECEASED, TRIAL NO. A-0509619 : Plaintiff-Appellant/Cross- Appellee, :
vs. : OPINION
DUKE REALTY LIMITED : PARTNERSHIP, : KENWOOD OFFICE DEVELOPERS LIMITED PARTNERSHIP, :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded
Date of Judgment Entry on Appeal: November 7, 2025
Finney Law Firm, LLC, Julie M. Gugino and Christopher P. Finney, for Plaintiff- Appellant/Cross-Appellee,
Keating Muething & Klekamp, LLP, Daniel E. Izenson and Bryce J. Yoder, for Defendants-Appellees/Cross-Appellants. OHIO FIRST DISTRICT COURT OF APPEALS
MOORE, Judge.
I. Introduction
This ‘suit has, in course of time, become so complicated, that . . . no two
. . . lawyers can talk about it for five minutes, without coming to a total
disagreement as to all the premises. Innumerable children have been
born into the cause: innumerable young people have married into it;’
and, sadly, the original parties ‘have died out of it.’ A ‘long procession of
[judges] has come in and gone out’ during that time, and still the suit
‘drags its weary length before the Court.’ Those words were not written
about this case, see C. Dickens, Bleak House, in 1 Works of Charles
Dickens 4-5 (1891), but they could have been.
Stern v. Marshall, 564 U.S. 462, 468 (2011).
{¶1} In 2005, George W. Bush was president of the United States, Kanye
West’s song Gold Digger topped the Billboard charts, and something called YouTube
was unleashed upon the world. Also in 2005, the litigation underlying this appeal
began. And, now, approximately two decades later, we hope to bring it to an end.
{¶2} The Estate of Robert D. Hodory, as plaintiff-appellant and cross-
appellee (“the Estate”), has been engaged in litigation with defendants-appellees and
cross-appellants Duke Realty Corporation, Duke Realty Limited Partnership,
Kenwood Office Developers Limited Partnership, and Kenwood Office Associates
(collectively, “Duke”) for roughly 20 years. In this litigation, the parties have
attempted to settle twice, and now both settlement attempts are the subject of this
appeal.
{¶3} The Estate appeals the judgment of the Hamilton County Court of
Common Pleas after the court found the parties’ 2019 settlement agreement
4 OHIO FIRST DISTRICT COURT OF APPEALS
enforceable. Duke cross-appeals, challenging the court’s conclusion that the 2009
settlement agreement was unenforceable.
{¶4} After reviewing the record below, which included a collection of emails
between the parties discussing settlement as well as multiple transcripts from both
evidentiary hearings and a settlement conference, we affirm the judgment of the trial
court in part, reverse it in part, and remand the cause for further proceedings
consistent with this opinion.
II. Factual and Procedural History
{¶5} The genesis of this appeal goes back even further than 2005 and can, in
fact, be traced back to 1986. It was in 1986 that Robert D. Hodory and a co-investor
were trustees, grantors, and beneficiaries of H&R Properties Trust. H&R Properties
Trust and Duke entered into a joint venture agreement to form Kenwood Office
Associates (“KOA”), a firm with the purpose of purchasing and developing commercial
real estate in Cincinnati.
{¶6} Material to this appeal, KOA purchased two properties, an office park
called Kenwood Commons, and another property identified by the parties as “the Sibcy
Property,” a landlocked vacant acre immediately adjacent to Kenwood Commons.
Both properties border the same side of Montgomery Road.
{¶7} After the co-investor’s interest was bought out, Robert Hodory and
Duke transferred interests between one another. This resulted in Duke owning 75
percent of KOA, and a 25 percent interest in the Sibcy property, and Robert Hodory
owning all remaining interests.
{¶8} In 1994, Robert Hodory died. In 2005, his widow, Mrs. Hodory, as
administrator of Robert Hodory’s estate, filed a multi-claim complaint against Duke,
alleging various claims, including breach of contract, breach of fiduciary duty,
5 OHIO FIRST DISTRICT COURT OF APPEALS
conversion, and unjust enrichment.
1. 2009 Settlement Agreement
{¶9} In 2016, Duke moved to enforce a settlement agreement allegedly
entered into in 2009. Duke alleged that in April 2009, the Estate emailed Duke
confirming that the parties had reached a settlement agreement. Duke would pay
$1.35 million in exchange for the full and final release of all pending claims, “[s]ubject
to the negotiated language of the settlement agreement concerning all non-monetary
issues[.]”
{¶10} The agreement identified 11 essential settlement terms. Over the next
two years, the parties exchanged drafts of settlement documents. In an April 2010
email, the Estate responded to Duke’s drafted settlement agreement by identifying
four outstanding “critical” issues. Roughly a week later, Duke followed up, stating
these issues were all resolved. In September 2010 the parties met to discuss the terms
of the settlement agreement. The meeting ended with Marcie Hodory, Mrs. Hodory’s
daughter, requesting more time to review the settlement agreement. Following the
meeting, the parties never reconvened. In November 2011, Mrs. Hodory died.
{¶11} In October 2018, the court held a multi-day evidentiary hearing on
Duke’s motion to enforce the 2009 agreement. After hearing from witnesses and
reviewing documents related to Duke’s motion, the court issued its decision.
According to its published entry, the court found that, in addition to the 11 terms
identified by the parties, there were two additional essential terms—one of which
included the presence of an easement across Kenwood Commons to access the Sibcy
Property.1 The court’s entry noted that at the time, there was no curb cut that would
1 In addition to the issue of the easement, the other item concerned the effect of Duke’s decision to
6 OHIO FIRST DISTRICT COURT OF APPEALS
allow access to the Sibcy Property from Montgomery Road, and that the property was
legally landlocked. The court noted that drafts and emails between the parties
contained differing language regarding the presence of an easement, and that the
parties never resolved whether an easement would be granted, who would pay for it if
granted, and other material details related to the term. Despite emails from the parties
stating that all pending critical issues had been resolved, the court concluded that the
parties’ failure to resolve the easement issue indicated that there was never a “meeting
of the minds” as to all essential terms. The court, therefore, denied Duke’s motion to
enforce the settlement agreement.
2. 2019 Settlement Agreement
{¶12} In November 2019, Duke informed the Estate of a third-party offer to
purchase Kenwood Commons for $6.62 million. The parties’ joint venture agreement
provided that in the instance that a third party offered to purchase the property, either
of the two parties may match the offer and buy the property outright. Neither party
exercised the purchase option.
{¶13} In December 2019, the parties again attempted to settle, this time at an
in-court settlement conference. After roughly seven hours, the parties came to an
agreement and read into the record the terms. The parties announced that the
agreement included a “total compensation [award] of $2.35 million” to the Estate, and
that the Estate conveyed all interest in KOA to Duke, and that the Estate would execute
a quit claim deed of its interest in both the Sibcy Property and Kenwood Commons to
Duke. The parties also addressed an immediate cash payment amount:
cease partnership distributions but to continue providing the K-1 tax forms to the Estate. The court’s entry acknowledges that the April and September 2010 emails discussed tax issues, and those discussions may have encompassed and settled the item, and went on to state that all essential terms were resolved except for the easement.
7 OHIO FIRST DISTRICT COURT OF APPEALS
MARCIE HODORY: Can you state how much that distribution amount
is, so that - -
MR. MESSER (counsel for the Estate): I did. It’s $2.35 million total.
MS. DEE (Duke’s General Counsel): And of that, we will distribute
$150,000 to the Estate immediately.
MR. MESSER: Okay.
MARCIE HODORY: Yes.
{¶14} The parties also addressed the subject of tax liability:
MR. MESSER: Each party will pay whatever taxes are deemed due on
the payment made pursuant to this agreement. Next, Duke will
cooperate with the Estate of Robert Hodory to minimize any tax liability
of the Estate.
...
MR. IZENSON (counsel for Duke): And a dismissal entry will include
all claims which have been raised or could have been raised in the
lawsuit.
MR. MESSER: Yes; and I think that’s going to be covered by the mutual
release we’re going to talk about anyway. So, there’s going to be a total
walkaway between the parties.
MR. IZENSON: Indeed.
MR. MESSER: Duke will provide any KOA tax returns or other
information requested by the Hodorys necessary for their own tax
filings - - and I said “the Hodorys,” I meant “The Estate” - - so that they
can complete their returns.
8 OHIO FIRST DISTRICT COURT OF APPEALS
MARCIE HODORY: Including depreciation schedules and any other
information needed to do that.
MS. DEE: To the extent available.
MR. ANTHONY (Duke’s Chief Investment Officer): To the extent
available.
MR. MESSER: To the extent available, of course.
{¶15} As the conference was coming to a close, Marcie stated that she was
agreeing because she was “under duress.”
COURT: Ms. Hodory, is this your agreement?
COURT: Now, I know that we’ve been negotiating all day, but even in
the last 45 minutes, or so, you had some concerns, and we are under the
gun, literally, to get out of here quickly. But I do not want you to feel that
you’re being pressured into this, because if you agree to this you can’t
change your mind. You understand that?
MARCIE HODORY: Yes, but I’m agreeing under duress. I have no
choice.
COURT: You’re under duress, then we’re not going to have an
agreement.
MR. MESSER: Marcie, if you say you’re under duress, you’ve just
wasted this whole thing. So you’ve had advice of counsel, you’ve had
plenty of time to think about this, so I think you either have to say you
agree with this or you don’t agree with it.
MARCIE HODORY: I said I agree.
9 OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} After some discussion between Marcie and her attorney, Marcie stated
that no person was pressuring her to agree, and that she wanted to settle. The court
then asked if Marcie understood that by agreeing, she was voluntarily entering into a
settlement agreement and that she could not come back in a week, month, or year and
claim that she was pressured into the agreement and that she was under duress.
Marcie assented, and the conference concluded.
{¶17} In March 2020, the Estate moved the court to set aside the 2019
settlement agreement. In its briefing, the Estate argued the settlement was
fraudulently induced, that Marcie’s agreement was a product of duress, and that too
many essential terms were unresolved.
{¶18} In December 2023, while the motion was still pending, the trial court
journalized the terms of the 2019 settlement agreement. The paragraphs concerning
an immediate cash payment stated the following:
1. Defendants shall pay the Estate of Robert D. Hodory the total sum of
$2,350,000.00.
6. Except for the payment described in paragraph 1, Defendants will
have no obligation to make further payments under the partnership
agreement. As part of the payment in paragraph 1, an immediate
payment to The Estate of Robert D. Hodory in the amount of $150,000
will be made.
7. Two checks previously written but not cashed will be voided.
The paragraphs concerning the taxation included:
8. Each party will bear their own tax consequences on the payment
described in paragraph 1 with Defendants agreeing to cooperate with
the Estate of Robert D. Hodory to minimize tax liabilities. Defendants
10 OHIO FIRST DISTRICT COURT OF APPEALS
agree to allocate payments as requested by Plaintiff for tax purposes, as
permitted by law, including REIT laws.
{¶19} In early 2024, the Estate again moved for an order from the court setting
aside the settlement agreement. This time, the Estate requested, pursuant to Civ.R.
38, an evidentiary hearing before a jury.
{¶20} In February 2024, the court denied the Estate’s motion, finding that the
settlement agreement was valid and enforceable. The court stated that it was not
“objectively reasonable” to claim the settlement was a result of fraud or that it was
entered into under duress. However, the court recognized two lingering ambiguities
in the parties’ settlement agreement, namely whether the $150,000 immediate
payment was included within the $2.35 million settlement award or whether the
payment was to compensate the Estate for two previously discarded checks that were
never cashed; and what were Duke’s obligations to minimize the Estate’s tax liability.
{¶21} In August 2024, the court held a two-day evidentiary hearing to clarify
the ambiguities. The court heard testimony from Duke’s Vice President and General
Counsel that the $150,000 was a component of the $2.35 million settlement award. In
response, Marcie testified that her email correspondence with Duke’s counsel
conspicuously stated that the $150,000 was a distribution from KOA and was
therefore not a component of the settlement award. Duke also introduced an email
from Marcie explaining that the distribution was a component of the settlement
award. On the issue of minimizing the Estate’s tax exposure, the court heard testimony
from Duke’s General Counsel that Duke would use accelerated bonus depreciation to
offset some of the Estate’s tax liability, but that it was never contemplated by the
parties that Duke would amend prior tax returns.
{¶22} Soon thereafter, the court announced its decision. First, the court
11 OHIO FIRST DISTRICT COURT OF APPEALS
concluded that the $150,000 payment was separate from the $2.35 million settlement
award, noting that it was a separate item on the settlement recital and that prior
distribution checks had been voided. The court also concluded that the payment was
a final partnership distribution and was therefore separate from the $2.35 million
settlement award. As to the issue of tax liability, the court determined Duke had no
ongoing obligation to mitigate the Estate’s tax liability. Based on a review of the
settlement-conference transcript, the court concluded that there was no intention by
Duke to assume any financial liability as it relates to the Estate’s tax liability. The court
also noted that the parties at the settlement conference agreed to “a total walkaway
between the parties” on “all claims which have been raised or could have been raised
in the lawsuit.”
{¶23} Subsequently, the Estate filed its appeal, and Duke followed suit, filing
its notice of cross-appeal.
III. Analysis
{¶24} On appeal, the Estate and Duke raise dueling assignments of error. The
Estate’s three assignments of error allege that the court erred when it failed to set aside
the 2019 settlement agreement, that the court’s interpretation of Duke’s responsibility
to minimize the Estate’s tax liability was erroneous, and that the court erred in denying
the Estate’s motion for reconsideration. Duke’s two cross-assignments of error allege
that the court erred in denying Duke’s motion to enforce the 2009 settlement
agreement, and that the court erred when it interpreted the 2019 settlement
agreement as requiring Duke to make a $150,000 payment in addition to the $2.35
million settlement award. Of all arguments raised, only Duke’s second cross-
assignment of error is meritorious.
12 OHIO FIRST DISTRICT COURT OF APPEALS
A. Setting Aside the 2019 Settlement Agreement
{¶25} In its first assignment of error, the Estate contends that the trial court
erred by denying the Estate’s motion to set aside the agreement.
{¶26} Our review of the court’s motion to enforce a settlement agreement
varies based upon the issue presented. Swan v. Villas Condominium Unit Owners’
Assn., 2024-Ohio-2313, ¶ 19 (1st Dist.). We review whether parties entered into an
enforceable contract de novo. Id. However, factual questions, such as the presence of
an offer and acceptance turns on whether there was sufficient evidence to support the
court’s finding. Id.; see Santomauro v. Sums Property Mgt., LLC, 2019-Ohio-4335, ¶
25 (9th Dist.). The presence of fraud, or duress, is a question of fact. Carpenter v.
Scherer-Mountain Ins. Agency, 135 Ohio App.3d 316, 328 (4th Dist. 1999), citing
Kungle v. Equitable Gen. Ins. Co., 27 Ohio App.3d 203, 206 (9th Dist. 1985).
{¶27} To be enforceable, a settlement agreement, like other contracts, requires
a meeting of the minds on the essential terms. Rayess v. Educational Comm. for
Foreign Med. Graduates, 2012-Ohio-5676, ¶ 19. While a written settlement agreement
is the preferred form, a settlement agreement may also be orally entered into so long
as there is sufficient particularity. Swan at ¶ 18, citing Kostelnik v. Helper, 2002-Ohio-
2985, ¶ 15. Therefore, it is critical that the parties understand the terms of the
settlement agreement.
{¶28} Where parties legitimately dispute the existence of a settlement
agreement, a trial court must first conduct an evidentiary hearing. Rulli v. Fan Co., 79
Ohio St.3d 374 (1997), paragraph one of the syllabus; see Ogle v. Trustee of Charles
R. Ogle Irrevocable Trust, 2024-Ohio-2280, ¶ 53-54 (5th Dist.); M.C. v. Choudhry,
2022-Ohio-915, ¶ 15 (9th Dist.) (holding in the absence of a legitimate dispute
concerning the terms or facts of a settlement agreement, the trial court did not abuse
13 OHIO FIRST DISTRICT COURT OF APPEALS
its discretion in not holding an evidentiary hearing); see also Zele v. Ohio Bell Tel. Co.,
2023-Ohio-2875, ¶ 41 (8th Dist.); Maury v. Maury, 2008-Ohio-3326, ¶ 47 (7th Dist.).
A court’s failure to hold an evidentiary hearing may be considered harmless error
“when a subsequent hearing was held, prior to the entry of final judgment, addressing
the allegedly contested issues.” LEH Properties v. Pheasant Run Assn., 2011-Ohio-
516, ¶ 10 (9th Dist.).
{¶29} Once it has been concluded that a valid settlement agreement exists,
such an agreement “can only be set aside for the same reasons that any other contract
could be rescinded, such as fraud, duress, or undue influence.” Cochenour v.
Cochenour, 2014-Ohio-3128, ¶ 28 (4th Dist.), citing Barstow v. O.U. Real Estate, III,
Inc., 2002-Ohio-4989, ¶ 37 (4th Dist.).
{¶30} Turning to the Estate’s arguments, we first consider the allegation that
Marcie, as representative of the Estate, entered into the contract under duress. The
Estate insists that it is evident from the transcript of the settlement conference that
Marcie was under duress. We disagree.
{¶31} To establish an agreement was a product of duress, a plaintiff must show
that they involuntarily accepted the defendant’s terms, that the circumstances
permitted no alternative, and that the circumstances were a result of the defendant’s
coercive conduct, and not by the needs of the plaintiff. Blodgett v. Blodgett, 49 Ohio
St.3d 243, 246 (1990), citing Urban Plumbing & Heating Co. v. United States, 408
F.2d 382, 389-390 (U.S. Ct. of Cl. 1969). “The real and ultimate fact to be determined
in every case is whether the party affected really had a choice; whether he had his
freedom of exercising his will.” Lucarell v. Nationwide Mut. Ins. Co., 2018-Ohio-15, ¶
49, quoting Tallmadge v. Robinson, 158 Ohio St. 333, 340 (1952).
{¶32} From a review of the transcript of the settlement conference, the
14 OHIO FIRST DISTRICT COURT OF APPEALS
settlement agreement was not a product of duress. The factual record reveals that
despite Marcie’s utterance, she spoke with her counsel, and it was surmised that she
did not know the legal significance of the word. Her counsel reassessed her willingness
to proceed, and multiple times after the utterance that she was “under duress,” she
insisted that she wanted to settle and that she was acting of her own volition. Despite
being warned by the court that settling now would foreclose her opportunity to come
back to the bargaining table in the future, Marcie agreed that she was entering into the
settlement agreement voluntarily. Therefore, the court’s conclusion that the 2019
settlement agreement was not a product of duress was supported by sufficient
evidence.
{¶33} The Estate’s fraudulent-inducement argument is similarly
unpersuasive. “In order to prove fraud in the inducement, a plaintiff must prove that
the defendant made a knowing, material misrepresentation with the intent of inducing
the plaintiff’s reliance, and that the plaintiff relied upon that misrepresentation to
their detriment.” Dayton Children’s Hosp. v. Garrett Day, LLC, 2019-Ohio-4875, ¶
103 (2d Dist.), citing ABM Farms, Inc. v. Woods, 81 Ohio St.3d 498, 502 (1998).
{¶34} The Estate’s theory of fraud in the inducement is based on its claim that
Duke put forth a superficial third-party offer to induce the Estate to settle at a lower
value, only to reveal to Marcie moments after the close of the settlement conference
that the offer was a “dead letter.” However, this theory is unpersuasive. The court’s
entry noted that there had been years of thorough negotiating between the parties, and
that the third-party offer was shared with the Estate roughly three weeks prior to the
settlement conference. At the evidentiary hearing, the court heard Marcie’s testimony
that, at the time of conference, she believed the third-party offer was too low, and that
she knew the $2.35 million settlement award was not derived from the $6.62 million
15 OHIO FIRST DISTRICT COURT OF APPEALS
third-party offer, but instead from a $7 million property appraisal.
{¶35} In weighing the parties’ competing recitation of events, the court
concluded that the Estate’s argument that they were fraudulently induced was “not
objectively reasonable.” We agree and therefore hold the trial court’s determination
that the 2019 agreement was not a result of a fraudulent inducement was supported
by sufficient evidence.
{¶36} Finally, the Estate’s demand for an evidentiary hearing is also
misplaced. The Estate insists that pursuant to the Ohio Supreme Court’s holding in
Rulli, 79 Ohio St.3d 374, it was entitled to an evidentiary hearing because it disputed
the validity of the settlement agreement. However, the Estate’s argument is
distinguishable from the issue present in Rulli because the Estate failed to raise a
legitimate dispute. While the Estate takes issue with the existence of the settlement
agreement, its arguments fail to legitimately bring into dispute the existence of a
binding settlement agreement. In borrowing the language of the trial court, an
argument that is not “objectively reasonable” cannot serve as a legitimate basis to
challenge the validity of a settlement agreement. Therefore, because the Estate has
failed to raise a legitimate dispute as to the validity of the settlement agreement, it was
not entitled to a Rulli evidentiary hearing.
{¶37} Accordingly, the Estate’s first assignment of error is overruled.
B. Error in Interpreting Duke’s Obligation to Minimize the Estate’s Tax Liability
{¶38} In its second assignment of error, the Estate alleges that the court
misinterpreted the term in the parties’ 2019 settlement agreement that required Duke
to cooperate with the Estate to minimize the Estate’s tax liability.
{¶39} Interpreting the terms of an unambiguous contract presents issues of
16 OHIO FIRST DISTRICT COURT OF APPEALS
law that we review de novo. Texlo, LLC, v. Gator Hillcrest Partners, 2024-Ohio-5686,
¶ 12 (1st Dist.), citing Qiming He v. Half Price Heating & Air, 2021-Ohio-1599, ¶ 6 (1st
Dist.). However, when the terms of a contract are ambiguous, “the meaning of the
words in the contract becomes a question of fact, and the trial court’s interpretation
will not be overturned on appeal absent a showing that the court abused its discretion.”
Murphy Elevator Co. v. 11320 Chest LLC, 2018-Ohio-1362, ¶ 17 (1st Dist.), citing
Kelley Dewatering and Constr. Co. v. R.E. Holland Excavating, Inc., 2003-Ohio-
5670, ¶ 21. A court abuses its discretion where its conduct exceeds a “mere error of
judgment,” and it conducts itself in an “arbitrary, unreasonable or unconscionable”
manner. Gipson v. Mercy Health Sys. of S.W. Ohio., 2025-Ohio-2208, ¶ 12 (1st Dist.).
{¶40} The test for whether a term is ambiguous is whether the term is subject
to more than one reasonable interpretation. DATFT LLC v. AM Reflections Cleaning
Servs. LLC, 2023-Ohio-1348, ¶ 14 (1st Dist.). “Common words appearing in a written
instrument will be given their ordinary meaning unless manifest absurdity results, or
unless some other meaning is clearly evidenced from the face or overall contents of the
instrument.” Shifrin v. Forest City Ents., Inc., 64 Ohio St.3d 635, 638 (1992), quoting
Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 246 (1978).
{¶41} Here, the tax term was ambiguous. The court’s journalization of the
terms of the contract identified that each party would bear their own tax consequences,
but that Duke would agree to cooperate with the Estate to minimize tax liabilities.
When plainly reading the court’s journalized terms of the settlement agreement, the
extent of Duke’s obligations under the term, “[Duke agrees] to cooperate with the
Estate to minimize tax liabilities,” lacks certainty and could be interpreted in several
reasonable ways. It is not readily apparent what constitutes satisfactory cooperation.
The court appropriately then looked to parol evidence and considered the transcript
17 OHIO FIRST DISTRICT COURT OF APPEALS
of the parties’ settlement conference as well as testimony and exhibits introduced at
the evidentiary hearing. The court noted that the transcript of the settlement
conference reflects that the parties identified that Duke would provide information to
the Estate upon request, including depreciation schedules to the extent available.
Nowhere in the transcript does either party mention their intention to amend prior
tax returns. In fact, Duke’s General Counsel, at the evidentiary hearing, expressly
stated that Duke had no intention of amending its previously filed tax returns. Upon
reviewing the court’s resolution of the tax ambiguity, we cannot say the court abused
its discretion. Accordingly, the Estate’s second assignment of error is overruled.
C. Mutual Mistake
{¶42} The Estate’s third assignment of error contends the court erred when it
denied the Estate’s motion to reconsider whether the 2019 settlement agreement was
enforceable. Building off of its second assignment of error, the Estate insists that there
was a mutual mistake between the parties regarding the intended effect and meaning
of the term “Duke will cooperate.” The motion goes on to state that there was never a
meeting of the minds between the parties. The Estate also argues that it was entitled
to an evidentiary hearing in the presence of a jury under Civ.R. 38.
{¶43} First, the Estate is not entitled to an evidentiary hearing before a jury.
The Estate’s motion for reconsideration asked that the court set aside the parties’
settlement agreement. Ohio courts have long held that a plaintiff is not entitled to a
jury trial when their claims solely seek equitable relief. Porter v. Hammond N.
Condominium Assn., 2025-Ohio-2210, ¶ 49 (1st Dist.). Contract recission is a form of
equitable relief. Feichtner v. Zicka Homes, Inc., 1983 Ohio App. LEXIS 14225, *4 (1st
Dist. Mar. 23, 1983). Therefore, the court did not improperly deny the Estate’s request
for a jury trial.
18 OHIO FIRST DISTRICT COURT OF APPEALS
{¶44} Similar to its second assignment of error, the Estate’s arguments that
the contract was unenforceable are unpersuasive. When faced with a claim of mutual
mistake on appeal, we review whether the proponent of reformation has demonstrated
by clear and convincing evidence that the parties were mutually mistaken when
agreeing to contract. Madeira Crossing Ltd. v. Milgo Madeira Properties, Ltd., 2014-
Ohio-4179, ¶ 25 (1st Dist.), citing Wagner v. Natl. Fire Ins. Co., 132 Ohio St. 405, 412
(1937), citing Stewart v. Gordon, 60 Ohio St. 170, 174 (1899). A mutual mistake of fact
requires that both parties at the time the contract was entered into made a mistake “as
to a basic assumption on which the contract was made” and that the mistake had a
material effect on the parties’ performance obligations. Marchbanks v. Ice House
Ventures, 2023-Ohio-1866, ¶ 15, citing Reilley v. Richards, 69 Ohio St.3d 352, 354
(1994).
{¶45} We review whether the parties entered into an enforceable contract de
novo. Swan, 2024-Ohio-2313, at ¶ 19 (1st Dist.). For the parties to have entered into
an enforceable contract, they need to have had a meeting of the minds on all essential
terms of the agreement. Id. at ¶ 17. “There may not be a meeting of the minds if
contract provisions are ambiguous, and the ambiguity cannot be resolved.” Kar v. TN
Dental Mgt., LLC, 2024-Ohio-6075, ¶ 38 (2d Dist.).
{¶46} Here, the court appropriately determined that the Estate failed to meet
its burden. While the Estate insisted that there was a “stark dichotomy” between the
parties’ interpretation of the tax term, the court concluded that the Estate’s mistake
was unilateral. While the extent of Duke’s cooperation was unclear, the court’s
evidentiary hearing and reliance upon parol evidence resolved the ambiguity.
Ultimately, the court concluded that Duke’s interpretation of the tax term was correct.
Because Duke’s interpretation was correct, there was no mutual mistake between the
19 OHIO FIRST DISTRICT COURT OF APPEALS
parties as to the definition of the tax term. At best the Estate was unilaterally mistaken
as to the term, however, because the Estate has failed to argue for recission on this
basis, we decline to do so on its behalf. State v. Brunson, 2022-Ohio-4299, ¶ 24, citing
State v. Quarterman, 2014-Ohio-4034, ¶ 19 (“This court is not obligated to formulate
legal arguments on behalf of the parties, because acting as an appellate court, we
preside as arbiters of the legal questions presented and argued by the
parties.”)(Emphasis added.).
{¶47} For these reasons, the Estate’s third assignment of error is overruled.
D. Enforceability of the 2009 Settlement Agreement
{¶48} In its first cross-assignment of error, Duke argues that the court erred
when it failed to find the 2009 settlement agreement enforceable. Specifically, Duke
argues the court erred when it inferred that the resolution of an easement across
Kenwood Commons to access the Sibcy Property was an essential term and now argues
that this was a nonessential term of the parties’ settlement agreement that would not
have impeded the parties’ 2009 settlement agreement from being enforceable.
{¶49} Whether parties to a contract had a meeting of the minds on all essential
terms of the agreement so that a contract is enforceable is a question of law we review
de novo. Swan, 2024-Ohio-2313, at ¶ 17, 19 (1st Dist.). But if we are faced with a factual
review, such as whether an offer and acceptance was made, then an appellate court
will not overturn the trial court’s finding so long as there was sufficient evidence in the
record to support the finding. Kinnett v. Corp. Document Solutions, Inc., 2019-Ohio-
2025, ¶ 19 (1st Dist.). The essential terms of a contract generally include “the subject
matter, the identity of the parties bound, consideration, price, and quantity.” North
Side Bank & Trust Co. v. Trinity Aviation LLC, 2020-Ohio-1470, ¶ 15 (1st Dist.).
{¶50} As all parties agree, the issue of the easement was never resolved by the
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parties. The court’s entry noted that the issue was outstanding, and whether the issue
of the easement rose to an essential term turned on when the issue was asserted by the
Estate. Below the court considered a number of emails, as well as testimony
concerning offers and draft agreements that were met with counteroffers and
redlining, and concluded that the parties never squarely resolved the issue on the
placement of an easement. The emails on September 4, 2009, December 13, 2009,
January 4, 2010, April 1, 2010, and September 29, 2010, are evidence that the issue of
an easement remained open.
{¶51} As captured in the court’s well-reasoned opinion below, the location of
the easement was appropriately classified as an essential term, as the Estate’s ability
to access the Sibcy Property—an otherwise landlocked parcel—was inherently part of
the subject matter of the agreement. Therefore, the parties failed to have a meeting of
the minds as to all essential terms and thus failed to enter into an enforceable contract.
Accordingly, the court did not err in concluding that the 2009 agreement was
unenforceable, and we thus overrule Duke’s first cross-assignment of error.
E. Interpreting the $150,000 Payment Term
{¶52} Duke’s second assignment of error takes issue with the court’s
interpretation of one of the terms of the 2019 settlement agreement. Duke insists that
the court erred in classifying the $150,000 immediate payment as separate from the
total $2.35 million settlement award.
{¶53} Although we review de novo whether a clause or a term in a contract is
ambiguous, we review a court’s interpretation of ambiguous terms for an abuse of
discretion. Murphy Elevator Co., 2018-Ohio-1362, at ¶ 17 (1st Dist.). A contract is
ambiguous where its terms either cannot be understood by a clear reading of the whole
contract, or if the contract could reasonably be subjected to multiple interpretations.
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Id. When a contract is unambiguous and clear on its face, we need not look past the
plain language of the contract to determine the responsibilities of the parties. World
Harvest Church v. Grange Mut. Cas. Co., 2016-Ohio-2913, ¶ 36.
{¶54} Here, the parties’ oral settlement agreement was not ambiguous. The
court’s journalized terms provided, “Defendants shall pay the Estate of Robert D.
Hodory the total sum of $2,350,000.00” and “As part of the payment in paragraph 1,
an immediate payment to The Estate of Robert D. Hodory in the amount of $150,000
will be made.” The court also directed that two previous checks were voided. Upon a
plain reading of the parties’ settlement agreement, the $150,000 was a part of the
$2.35 million payment. Therefore, the court erred as a matter of law when it concluded
the payment term of the 2019 settlement agreement was ambiguous.
{¶55} Even if the term was ambiguous, the court’s interpretation of the
payment term was unreasonable. The parol evidence shows that the $150,000 was a
component of the total payment. As reflected in the settlement-conference transcript,
the parties agreed that there would be “no further distributions other than what’s
included in the $2.35 million” and “of that, we will distribute $150,000 to the Estate
immediately.” Further, Marcie’s own email with her siblings the day following the
settlement conference recorded that the $150,000 payment was a part of the total
award. In her email, Marcie stated,
Duke’s settlement number of $2.35 million is assuming a sale price of
the Kenwood Commons that is equal to the appraisal value of $7 million
(which purportedly translates into $1.6 million for the Estate’s
partnership interest in KOA), and not [the third party] purchase offer of
$6.6 million. The rest of the settlement consists of $600,000 for
damages and $150,000 for the distribution check (this is a replacement
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check for the two prior uncashable checks that were wrongly made
payable to the [Estate]).
{¶56} The court’s interpretation of the agreement that the $150,000 payment
was in addition to the total settlement award does not comport with the record. The
journalized terms, the recorded discussion from the settlement conference, as well
Marcie’s email do not support the court’s conclusion. Thus, the court’s interpretation
of the $150,000 payment being separate from and in addition to the $2.35 million
total was unreasonable and therefore constituted an abuse of discretion. Accordingly,
Duke’s second cross-assignment of error is sustained.
IV. Conclusion
{¶57} In sum, the parties’ 2009 settlement agreement was unenforceable,
while the 2019 settlement agreement was enforceable. The Estate has failed to
demonstrate that the latter agreement was a product of duress, fraudulent
inducement, or mutual mistake. While the court correctly recognized that the tax term
was ambiguous, the court erred when it determined the payment term was ambiguous.
The $150,000 payment was contemplated as a component of the total $2.35 million
settlement award. Therefore, the trial court’s judgment is affirmed in part and
reversed in part, and the cause is remanded for further proceedings consistent with
this opinion and the law.
Judgment affirmed in part, reversed in part, and cause remanded.
ZAYAS, P.J., and NESTOR, J., concur.