[Cite as Geisenfeld v. Geisenfeld, 2026-Ohio-205.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
RICHARD I. GEISENFELD : : C.A. No. 30487 Appellees : : Trial Court Case No. 2022 CV 02376 v. : : (Civil Appeal from Common Pleas DIANE R. GEISENFELD, ETC., ET AL. : Court) : Appellant : FINAL JUDGMENT ENTRY & : OPINION
...........
Pursuant to the opinion of this court rendered on January 23, 2026, the judgment of
the trial court is affirmed. Appellee’s motion to strike appellant’s reply brief or to disregard
parts of it is sustained.
Costs to be paid as stated in App.R. 24.
Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately
serve notice of this judgment upon all parties and make a note in the docket of the service.
Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified
copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note
the service on the appellate docket.
For the court,
ROBERT G. HANSEMAN, JUDGE
LEWIS, P.J., and HUFFMAN, J., concur. OPINION MONTGOMERY C.A. No. 30487
KEITH R. KEARNEY, Attorney for Appellant RICHARD L. CARR, JR., Attorney for Appellee Richard I. Geisenfeld
HANSEMAN, J.
{¶ 1} In this case, defendant-appellant Diane Geisenfeld appeals from a judgment in
a civil action regarding her administration of the revocable living trust of her deceased
mother. The trial court determined that Diane had fraudulently induced a settlement
agreement to resolve the civil action and that she had violated fiduciary duties, and thus it
awarded damages and attorney fees to plaintiff-appellee Richard Geisenfeld. According to
Diane, the trial court abused its discretion in interpreting the parties’ settlement agreement
and in finding she violated fiduciary duties. Diane further contends that even if she is found
to have breached the agreement, the court abused its discretion in awarding Richard the full
amount of his litigation costs and attorney fees.
{¶ 2} Having reviewed the record and the applicable law, we agree with the trial court
that Diane fraudulently induced Richard to sign a settlement agreement. The agreement was
ambiguous, and therefore the court was allowed to hear extrinsic evidence. After doing so,
the court found that Diane had acted maliciously and that she had violated her fiduciary duty
by failing to disclose that the items for which Richard had bargained were wholly
meaningless, worthless, or non-existent. No error occurred in that regard. The court also did
not abuse its discretion in awarding damages and attorney fees to Richard. Accordingly, the
judgment of the trial court is affirmed.
2 {¶ 3} As a further matter, Richard’s motion to strike Diane’s reply brief or to disregard
portions of the brief relating to punitive damages is sustained. Diane improperly raised new
issues in the reply brief that she had not previously asserted.
I. Facts and Course of Proceedings
{¶ 4} This case arose from a dispute among siblings over administration of a
revocable living trust (“Trust”) of their mother, Beverly Geisenfeld. In May 2022, Richard filed
a complaint for breach of duty to report and for breach of fiduciary duty against Diane and
another sister, Nancy Seaman. According to the complaint, Beverly died in August 2020,
and Diane was the trustee of the Trust, which had been established in November 2018. All
three children were equal beneficiaries. Under the complaint’s first cause of action, Richard
alleged that Diane had committed various improper acts, including removing personal items
from Beverly’s home and refusing to provide an accounting; failing to provide copies of the
final trust tax return; failing to provide a status and accounting of antiques consigned to an
auctioneer; failing to provide an accounting of full expense line items from 2020 and 2021,
including legal fees and disbursements to Diane and Nancy; and failing to provide a list of
the personal property items in Diane’s and Nancy’s possession. In the second cause of
action, Richard alleged that Diane had failed to equally divide Beverly’s assets between
beneficiaries and that she had taken Beverly’s jewels, furs, and other personal items in
violation of her fiduciary duty.
{¶ 5} After being served, Diane filed an answer and counterclaim, which alleged that
Richard had taken trust property without the trustee’s consent and had either retained trust
property or transferred it to third parties. Shortly thereafter, Richard responded to the
counterclaim. Service was ultimately made on Nancy, and she filed an answer in July 2022.
Following a scheduling conference, the court set a bench trial to begin in June 2023.
3 {¶ 6} Richard filed an amended complaint in August 2022, which added breach of
contract claims against Nancy and Diane, asserting that they allegedly conspired to block
the property administration and account of Bevely’s trust. Nancy followed with a motion to
dismiss the breach of contract claim under Civ.R.12(B)(6). The court granted the motion in
September 2022 and dismissed Nancy as a party. The dispute thereafter continued between
only Richard and Diane.
{¶ 7} In May 2023, the parties filed an agreed entry stating they had decided to
participate in mediation and asked the court to order mediation. The court did so and vacated
the trial date and all associated orders. Although the parties participated in mediation in late
August 2023, they did not reach a settlement agreement. The court then set a bench trial for
February 8, 2024. In January 2024, the court filed an order of dismissal, noting that the case
had been settled and that it would be conditionally dismissed without prejudice until such
time as the parties filed a final dismissal entry with prejudice. Order of Dismissal (Jan. 18,
2024), p. 1. The court retained jurisdiction to enforce the settlement agreement. Id. The court
later granted Richard’s request for an extension of time and gave the parties leave until
March 8, 2024, to file the final dismissal entry.
{¶ 8} On March 8, Richard asked for a 10-day extension of time to file either the
dismissal entry or a motion to enforce the settlement. The court granted the motion, and on
March 11, Richard filed a motion seeking to enforce the settlement. Richard attached a copy
of the settlement agreement (“Agreement”) to the motion. In the motion, Richard claimed
that Diane had failed to deliver several items of “sentimental and (pecuniary value)” to him
as required by the Agreement. These included a wood holder for a Chinese set; an original
golf bag bearing the name tag of Richard’s father; and a cookbook kept by the parties’
mother. Motion to Enforce Settlement (Mar. 11, 2024) (“Enforcement Motion”), p. 2. Richard
4 asked the court to enforce the Agreement and to let him “recover the reasonable attorney
fees and expenses incurred in doing so as compensatory damages.” Id. at p. 3.
{¶ 9} In response, Diane filed a motion to dismiss Richard’s motion. Motion to Dismiss
Plaintiff’s Motion to Enforce Settlement Agreement (Mar. 21, 2024). In the motion, Diane
claimed that she had complied with the Agreement and also asked for attorney fees. Id. at
p. 1-3. After Richard replied, the court set a hearing on the motion to enforce the settlement.
Ultimately, the court held the hearing on January 10, 2025.
{¶ 10} At the end of the hearing, the court informed the parties of its preliminary
conclusions about the only two items remaining in contention. These were a golf bag and
Beverly’s hand-written recipes. Concerning these items, the court found that (1) Beverly had
gifted the golf bag to Diane’s son, and it had exited the trust at that time; and (2) Diane, as
trustee, would have had superior knowledge about the recipes and would have had a duty
to prevent ambiguities from arising. The court further found the recipes did exist and that
Diane needed to copy any of those recipes in her control and provide them to Richard. As a
possible solution, the court suggested that Diane redouble her efforts to locate the recipes,
make a good-faith effort, and provide copies of the recipes to Richard. The court then set a
telephone conference for February 6 for the parties to report back to the court. See
Transcript of Proceedings (Jan. 10, 2025) (“Tr.”), 150-157 (stating the court’s preliminary
conclusions).
{¶ 11} On the day of the telephone conference, the court filed an order setting a
deadline of February 13 for the parties to submit written filings regarding the search and
production of any handwritten recipes. The parties responded, and Diane filed an affidavit
about her attempts to locate the recipes, which resulted in her finding and giving Richard
18 handwritten recipes, many of which he already had. The court then filed a decision
5 granting Richard’s motion to enforce the settlement agreement. See Decision, Order and
Entry Granting Plaintiff’s Motion to Enforce Settlement Agreement (Handwritten Recipes),
Awarding Nominal Damages (Handwritten Recipes) and Full Litigation Attorneys’ Fees and
Costs as Punitive Damages (Apr. 22, 2025) (“Settlement Order”).
{¶ 12} Per the court’s directive in the Settlement Order, Richard submitted a notice of
attorney fees and expenses, which included $38,042 in attorney fees and $2,887.21 in
expenses, representing fees and expenses since the beginning of the litigation. Evidence
on these matters had already been presented at the hearing. The court then filed a judgment
entry ordering Diane to pay Richard a total of $41,929.71, which included his full litigation
costs and attorney fees as well as a $1,000 damages award concerning the recipes. Final
Judgment Entry (Apr. 28, 2025).
{¶ 13} Before the time to appeal had expired, Diane asked for a telephone conference
to clarify the amount of attorney fees because the court had previously stated in the hearing
that if fees were awarded, the court would only be looking at fees incurred in connection with
enforcing the settlement. However, the court denied the request. Decision, Order, and Entry
Denying Defendant’s Motion for Telephone Conference to Clarify Judgment Entry (May 19,
2025). Diane timely appealed from the April 28, 2025 final judgment. Her appeal raises two
assignments of error.
II. Settlement Agreement
{¶ 14} Diane’s first assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT
DIANE KNEW OR SHOULD HAVE KNOWN THAT VARIOUS LOOSE-LEAF
HANDWRITTEN RECIPES WERE CONTEMPLATED WHEN RICHARD
6 NEGOTIATED RECEIVING A COPY OF DECEDENT’S COOKBOOK IN THE
PARTIES’ SETTLEMENT AGREEMENT.
{¶ 15} Under this assignment of error, Diane contends that the terms in the
Agreement were not ambiguous, and the trial court erred by effectively creating a new
contract the parties did not contemplate. Diane further argues Richard failed to present
sufficient evidence for the court to find that he met the burden of establishing a breach of
contract. Before we consider these issues, we outline the pertinent law.
A. Law Relating to Settlement Agreements
{¶ 16} “It is axiomatic that a settlement agreement is a contract designed to terminate
a claim by preventing or ending litigation and that such agreements are valid and
enforceable by either party.” (Citations omitted.) Continental W. Condominium Unit Owners
Assn. v. Howard E. Ferguson, Inc., 74 Ohio St.3d 501, 502 (1996). The law highly favors
these agreements. Id. “Settlement agreements are essentially a contract and are governed
by the law of contracts. . . . To establish a breach of a settlement agreement, the party
alleging the breach must prove: 1) existence of the Settlement Agreement, 2) performance
by the plaintiff, 3) breach by the defendant, 4) resulting damages or loss to the plaintiff.”
Raymond J. Schaefer, Inc. v. Pytlik, 2010-Ohio-4714, ¶ 24 (6th Dist.), citing Rondy, Inc. v.
Goodyear Tire Rubber Co, 2004-Ohio-835, ¶ 7 (9th Dist.).
{¶ 17} “The role of courts in examining contracts is to ascertain the intent of the
parties.” St. Marys v. Auglaize Cty. Bd. of Commrs., 2007-Ohio-5026, ¶ 18, citing Hamilton
Ins. Servs., Inc. v. Nationwide Ins. Cos., 86 Ohio St.3d 270 (1999). “The intent of the parties
to a contract is presumed to reside in the language they chose to employ in the agreement.”
Kelly v. Med. Life Ins. Co., 31 Ohio St.3d 130 (1987), paragraph one of the syllabus. “Where
the terms in a contract are not ambiguous, courts are constrained to apply the plain language
7 of the contract.” St. Marys at ¶ 18, citing Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm,
73 Ohio St.3d 107 (1995). “Intentions not expressed in the writing are deemed to have no
existence and may not be shown by parol evidence.” Aultman Hosp. Assn. v. Community
Mut. Ins. Co., 46 Ohio St.3d 51, 53 (1989) (citing cases).
{¶ 18} “Contractual language is ‘ambiguous’ only where its meaning cannot be
determined from the four corners of the agreement or where the language is susceptible of
two or more reasonable interpretations.” United States Fid. & Guar. Co. v. St. Elizabeth Med.
Ctr., 129 Ohio App.3d 45, 55-56 (2d Dist. 1998), citing Potti v. Duramed Pharmaceuticals,
Inc., 938 F.2d 641, 647 (6th Cir. 1991). Where contracts are ambiguous, courts may properly
consider “‘extrinsic evidence,’ i.e., evidence outside the four corners of the contract,” to
decide the parties’ intent. Id., citing Blosser v. Carter, 67 Ohio App.3d 215, 219 (4th Dist.
1990). Extrinsic evidence can include: “(1) the circumstances surrounding the parties at the
time the contract was made, (2) the objectives the parties intended to accomplish by entering
into the contract, and (3) any acts by the parties that demonstrate the construction they gave
to their agreement.” Id. at 56. “However, courts may not use extrinsic evidence to create an
ambiguity; rather, the ambiguity must be patent, i.e., apparent on the face of the contract.”
Id., citing Schachner v. Blue Cross & Blue Shield of Ohio, 77 F.3d 889, 893 (6th Cir. 1996).
{¶ 19} “Contract interpretation is a matter of law, and questions of law are subject to
de novo review on appeal.” St. Marys, 2007-Ohio-5026, at ¶ 38, citing Nationwide Mut. Fire
Ins. Co. v. Guman Bros. Farm, 73 Ohio St.3d 107, 108 (1995). In this type of review, “we
independently review a trial court's decision and accord it no deference.” Clark v. Beyoglides,
2021-Ohio-4588, ¶ 19 (2d Dist.), citing Northeast Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of
Commrs., 121 Ohio App.3d 188, 192 (8th Dist. 1997).
{¶ 20} With these standards in mind, we consider the court’s ruling on the Agreement.
8 B. The Agreement
{¶ 21} As noted, Richard brought this case on grounds related to Diane’s
administration of the Trust and breach of fiduciary duties; Diane’s counterclaim alleged that
Roger had improperly taken Trust property. After Richard’s complaint against another sister,
Nancy, was dismissed, the parties unsuccessfully tried mediation in August 2023 and then
prepared for the scheduled February 2024 trial. They settled the case in January 2024,
shortly before trial. At all times, both sides were represented by attorneys and were also
involved in preparing the Agreement, although Richard’s attorney actually drafted it. Tr. 68.
Both parties also signed the Agreement. Richard signed on January 30, 2024, and Diane
signed on February 2, 2024. See Joint Ex. I, p. 4-5.1
{¶ 22} The Agreement stated a few basic facts about the litigation and said, in
pertinent part, as follows:
WHEREAS, the Parties, so as to avoid the cost, frustration, and
uncertainty of continued litigation, have mediated their disagreements and
come to the terms of a settlement that resolves all matters of dispute between
them.
NOW, THEREFORE, in consideration of the above promises and the
mutual release and other agreements hereinafter set forth, and for other good
and valuable consideration, the adequacy and sufficiency of which are hereby
acknowledged, and intending to be legally bound, the Parties hereby agree as
follows:
1. All references to exhibits in this opinion concern the plaintiff’s, defendant’s, and joint exhibits admitted at the January 10, 2025 hearing.
9 1. Financial Consideration Paid by the Trust to Mr. Geisenfeld
Upon Execution of This Settlement Agreement. Upon execution of this
Settlement Agreement, Thirty-Five Thousand Dollars ($35,000.00) of the cash
held by the Trust shall be paid to Mr. Geisenfeld within fifteen (15) days of the
later date of parties’ execution of this Settlement Agreement.
2. Receipt and Retention of Property by Ms. Geisenfeld. Ms.
Geisenfeld shall receive and retain all remaining items held by Ms. Geisenfeld,
including (1) items held by Furniture Man; (2) items taken back from Furniture
Man; (3) all items that are unaccounted for, including Mr. Geisenfeld’s mother’s
wedding ring, jewelry collection, and numerous furs; (4) all other items within
the appraisal; and (5) the dining room table and sundry antique chairs.
3. Receipt and Retention of Property by Mr. Geisenfeld. Mr.
Geisenfeld shall receive and retain (1) the bamboo framed Japanese
Empress; (2) 3 Chinese frame prints from Mr. Geisenfeld’s mother’s dining
room; (3) wood holder for a Yellow 5-piece Chinese set; (4) copy of Mr.
Geisenfeld’s mother’s cookbook; (5) original photo of Irving and Mildred
Sanderson in its existing frame; and (6) Mr. Geisenfeld’s father’s used golf
clubs in the original golf bag including the covers (except for one missing
cover).
...
5. Legal Fees. Mr. Geisenfeld shall pay all remaining legal fees and
expenses incurred by him as Plaintiff relating to this lawsuit. Ms. Geisenfeld
shall bear all legal fees incurred by her as Defendant relating to this lawsuit.
10 Neither Party shall be held responsible for the other Party’s legal fees and
expenses.
12. Representation by Counsel. Each party to this Settlement
Agreement has been advised by counsel in regard to the terms of this
Settlement Agreement and the execution of it or has had sufficient opportunity
to consult with counsel in regard to the same.
13. Modification; Severability. The terms of this Settlement are
contractual and not merely a recital. No modification or waiver shall be
effective unless such modification or waiver is in writing and executed by the
Parties. In the event that any of the provisions of this Settlement Agreement
are held invalid or unenforceable, all other provisions shall continue in force.
14. Entire Agreement. This Settlement Agreement (including any
ancillary agreements referenced in or relating to this Settlement Agreement)
constitutes the entire agreement between the Parties relating to the subject
matter hereof. All prior negotiations, representations, promises, and
agreements are merged in this Settlement Agreement and shall be of no force
or effect unless set forth herein.
Joint Ex. I, p. 1-3.
{¶ 23} By the time of the evidentiary hearing, Diane had complied with the Agreement
with the exception of two items: a golf bag used by the parties’ father and copies of
handwritten recipes of the parties’ mother. After hearing the evidence, the court found that
Richard had failed to carry his burden of proving that the golf bag and a name tag on the
bag still existed at the time of the Agreement. Settlement Order, p. 4.
11 {¶ 24} Concerning the cookbook, the court found that although both parties had
participated in drafting the Agreement, any ambiguities in the Agreement must be construed
against Diane, due to her fiduciary position and “concomitant superior knowledge and duties
of disclosure.” Settlement Order, p. 3. The court reasoned: “From that vantage, Richard’s
request for ‘a copy of Mr. Geisenfeld’s mother’s cookbook’ demanded clarification on the
part of Diane Geisenfeld-Pioso.” (Empasis in original.) Id.
{¶ 25} The first matter to consider is whether the Agreement itself is ambiguous.
“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.” Alexander v. Buckeye Pipe Line Co., 53 Ohio
St.2d 241 (1978), paragraph two of the syllabus. “If no ambiguity appears on the face of the
instrument, parol evidence cannot be considered in an effort to demonstrate such an
ambiguity.” Shifrin v. Forest City Ents., Inc., 64 Ohio St.3d 635, 638 (1992), citing Stony's
Trucking Co. v. Pub. Util. Comm., 32 Ohio St.2d 139, 142 (1972).
{¶ 26} A “cookbook” is commonly defined as “a book of cooking directions and
recipes.” Merriam-Webster Online, https://www.merriam-webster.com/ dictionary/cookbook
(accessed Dec. 15, 2025) [https://perma.cc/QHC8-QRYG]. A “book” is commonly defined
as “a set of written, printed, or blank sheets bound together between a front and back cover.”
Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/book
(accessed Dec. 15, 2025) [https://perma.cc/76BT-L48N].
{¶ 27} Despite the fact that cookbooks are generally thought of as bound items rather
than loose recipes in a file folder, the reference to “mother’s cookbook” here is ambiguous.
In the first place, most people have more than one cookbook, and the description fails to
convey exactly which cookbook was intended. Furthermore, including the term “mother’s” in
12 relation to the cookbook implies that the item in question may have a more personal meaning
than a commercial cookbook. Therefore, the trial court was permitted to consider extrinsic
evidence to determine the meaning. United States Fid. & Guar. Co.,129 Ohio App.3d at 55-
56.
{¶ 28} Richard’s testimony at the hearing was that his mother had kept handwritten
recipes in an accordion folder. He made it clear that the recipes were very important to him
because they were a connection to his mother, they could not be replaced, and he wanted
to make the recipes exactly the way his mother had. According to Richard, Diane took the
recipes to Boston after their mother died and said she would copy them and give the copies
to Richard and Nancy. In addition, Diane had talked about wanting to publish the recipes for
her own cookbook. Richard provided a list of 57 recipes he had seen in the folder and said
there were at least 100 recipes. Tr. 43-45, 51, 68, 69, 78-80.
{¶ 29} Richard further indicated that Nancy’s daughter Jennifer had sent him a video
of copies of some handwritten recipes she had received from a cousin. Richard identified
the recipes in the video as written in his mother’s handwriting. Richard presented testimony
from Jennifer, who stated that her grandmother had kept written recipes in a little accordion
file. Jennifer said that she had her grandmother’s banana bread recipe that Diane had sent
her (on request), as well as photos of some handwritten recipes that Jennifer took when she
was in college. Jennifer became aware of even more recipes when her second cousin Jill
sent her a stack of them as a gift. Jennifer then sent the video to Richard about a month
before the evidentiary hearing. See Tr. 46, 47, 70, 72, 94-97 (discussing the video of the
recipes); Plaintiff’s Ex. 24.3 (the video).
{¶ 30} On the other hand, Diane testified that she was not aware of an accordion file.
She said she did not have the recipes in her possession that Richard had identified. Diane
13 further said that her mother had some loose recipes that were cutouts from newspapers and
magazines. Diane said that she had thrown out those cutouts. According to Diane, her
mother did not make these recipes; she just found them interesting and stuffed them in
cookbooks and folders for future use. Diane explained that her mother would handwrite
recipes if someone asked for them. However, Diane discarded those recipes when her
mother’s house was cleaned out. Thus, if the settlement had been based on those recipes,
she would not have had any to give Richard. Tr. 123-125, 127-128. Diane did give Richard
a cookbook of traditional Jewish recipes that she and her mother had both used for years.
Richard denied this was the cookbook in question. Tr. 68-69, 121; Defendant’s Ex. H.
{¶ 31} In its decision, the court found Richard and Jennifer highly credible and Diane
“greatly lacking” in credibility concerning the recipes. Settlement Order, p. 1-2. The court
therefore found that the accordion file existed and that instead of adhering to her fiduciary
duties as a trustee, Diane placed Richard in the untenable position of bargaining for items
that either did not exist or that Diane never intended to provide. Consequently, the court
found fraud in the inducement of the Agreement. Id. at p. 4. The court also found that Diane
had acted in bad faith and with malice and that she had violated her fiduciary duties. Id.
{¶ 32} While we review contract interpretation de novo, credibility decisions are a
different matter. We defer substantially to fact-finders’ decisions and to the weight they give
witness testimony. Buckeye Retirement Co., LLC v. Busch, 2017-Ohio-4009, ¶ 55 (2d Dist.),
citing Bayes v. Dornon, 2015-Ohio-3053, ¶ 54 (2d Dist.), and State v. DeHass, 10 Ohio St.2d
230, 231 (1967). This is because fact-finders have the ability to see and hear witnesses; as
a result, they have “‘peculiar competence’” in assessing credibility. Id. at ¶ 56, quoting State
v. Lawson, 1997 WL 476684, *4 (2d Dist. Aug. 22, 1997).
14 {¶ 33} “‘A claim of fraud in the inducement arises when a party is induced to enter
into an agreement through fraud or misrepresentation. . . . 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 her detriment.’” Dayton Children’s Hosp. v. Garrett
Day, LLC, 2019-Ohio-4875, ¶ 103 (2d Dist.), quoting ABM Farms, Inc. v. Woods, 81 Ohio
St.3d 498, 502 (1998). “‘The fraud relates not to the nature or purport of the [contract], but
to the facts inducing its execution . . . .’” Miano v. Best, 2017-Ohio-343, ¶ 26 (6th Dist.),
quoting Haller v. Borror Corp., 50 Ohio St.3d 10, 14 (1990).
{¶ 34} Justifiable reliance is a prima facie element of fraudulent inducement. J.A.
Industries, Inc. v. All Am. Plastics, Inc., 133 Ohio App.3d 76, 84 (3d Dist. 1999), citing
Countrymark Coop., Inc. v. Smith, 124 Ohio App.3d 159, 171-172 (3d Dist. 1997). “‘The
question of justifiable reliance is one of fact and requires an inquiry into the relationship
between the parties.’” Amerifirst Savings Bank of Xenia v. Krug, 136 Ohio App.3d 468, 495
(2d Dist. 1999), quoting Crown Property Dev., Inc. v. Omega Oil Co., 113 Ohio App.3d 647,
657 (12th Dist. 1996). “The factors a court should consider include the nature of the
transaction, the materiality of the representation or fact concealed, the parties’ relationship,
and their respective intelligence, experience, age, mental and physical condition,
knowledge, and means of knowledge.” Fairbanks Mobile Wash, Inc. v. Hubbell, 2009-Ohio-
558, ¶ 26 (12th Dist.), citing Finomore v. Epstein, 18 Ohio App.3d 88, 90 (8th Dist. 1984).
{¶ 35} “Reliance is justified if the representation does not appear unreasonable on its
face and if, under the circumstances, there is no apparent reason to doubt the veracity of
the representation.” Crown Property at 657, citing Lepera v. Fuson, 83 Ohio App.3d 17, 26
(1st Dist. 1992). Finally, “‘[f]raudulent inducement must be proven by clear and convincing
15 evidence.’” Dayton Children’s Hosp., 2019-Ohio-4875, at ¶ 104 (2d Dist.), quoting Simon
Property Group, L.P. v. Kill, 2010-Ohio-1492 (3d Dist.).
{¶ 36} Relative to fiduciary duty, under the Ohio Trust Code, “[u]pon acceptance of a
trusteeship, the trustee shall administer the trust in good faith, in accordance with its terms
and purposes and the interests of the beneficiaries, and in accordance with Chapters 5801.
to 5811. of the Revised Code.” R.C. 5808.01. Further, R.C. 5808.02(A) requires trustees to
“administer the trust solely in the interests of the beneficiaries.” And where “a trust has two
or more beneficiaries, the trustee shall act impartially in investing, managing, and distributing
the trust property, giving due regard to the beneficiaries’ respective interests.” R.C. 5808.03.
{¶ 37} “A trustee owes a fiduciary duty to the trust beneficiaries.” O'Neill v. O'Neill,
2006-Ohio-6426, ¶ 8 (8th Dist.), citing In re Tr. of Papuk, 2002 WL 366519 (8th Dist. Mar. 7,
2002). “Fiduciary duty is defined as ‘[a] duty of utmost good faith, trust, confidence, and
candor owed by a fiduciary . . . to the beneficiary . . . ; a duty to act with the highest degree
of honesty and loyalty toward another person and in the best interests of the other person.’”
In re Testamentary Trust of Bernard, 2008-Ohio-4338, ¶ 20 (9th Dist.), quoting Black’s Law
Dictionary (8th Ed. 2004). Accord Dart v. Katz, 2021-Ohio-1429, ¶ 69 (2d Dist.).
{¶ 38} In the context of fraudulent inducement, Richard produced evidence predating
the litigation. This included events occurring immediately before his mother’s death in 2020,
such as the fact that other family members (Nancy, some cousins of Nancy’s daughter, and
Diane) were going through Beverly’s things while she was dying and before Richard was
present, and items, such as jewelry, were missing thereafter. Tr. 20, 83-85, 93-94, 98.
{¶ 39} The evidence also included other prelitigation events. After their mother’s
death, the siblings began the process by sharing some duties and dividing personal property
among themselves. During that time, Richard received property that everyone agreed on.
16 However, things became contentious when Richard asked for certain property via text in
August 2021. While Nancy said that was fine with her, Diane did not respond. Richard also
told his sisters that they could have everything in the house; he only wanted his father’s golf
bag. Tr. 21-22, 30-34; Plaintiff’s Exs. 7.2, 7.3, and 7.4. After that point, Diane was captured
on a Ring camera video at their parents’ house saying harsh things about Richard, including
that she agreed about stalling the proceedings and that she absolutely wanted to make sure
Richard had no access to personal property. Tr. 21-31, 73, 126, 129, 130; Plaintiff’s Ex. 6
(a video from the Ring camera).
{¶ 40} We have reviewed the parts of the video submitted to the trial court. The taping
on the Ring video (or at least the parts Richard presented at the hearing) occurred on
September 23, 2021, shortly before the scheduled closing on the sale of Beverly’s house.
At that time, three people were present inside the house: Nancy, Diane, and Scott Sholiton,
who was a family friend. Tr. 26-28; Plaintiff’s Ex. 6. Richard was not present. Previously, the
parties had installed the Ring video camera to provide security because they were not able
to always be present at the house. All three siblings had access to the video feed. By
September 23, the camera had been removed from the front door and had been taken inside
the house. It happened to continue to tape, and Richard listened to the video feed live and
downloaded the video. Tr. 21, 23, 26, 30-36.
{¶ 41} The context of the Ring video is that Richard had threated to stop the closing
on the property, demanding that funds from the closing be transmitted directly to him and
that he receive the personal property he wanted. The context also is that the closing was
going to occur soon, and the remaining contents needed to be removed from the house. We
express no opinion on the truth of any statements; we simply note what is on the video.
17 {¶ 42} Based on the video’s content, the matters in the excerpt labeled “27066”
occurred first. At the beginning of this part of the video, Diane was attempting to call an
attorney because she had received a letter from a beneficiary [Richard], things had spiraled
out of control, she needed to reply the next day to the letter, and she needed to retain an
attorney. At that point, Diane did not talk to the attorney; she talked to someone at his office
and asked the attorney to call her that day if he could, because she needed to respond
immediately. After the call ended, Scott told Diane that she did not need to do anything the
next day, and that although it would be nice if she could, Richard could not give her such a
short time to respond. He stated that Diane should “slow track” this whole thing, and Diane
responded that she wanted to. Plaintiff’s Ex. 6, 27066, 00:53–02:33.
{¶ 43} Scott owned a warehouse, to which the property remaining in the house was
going to be taken due to the closing. Scott told Diane that he would contact someone to
make sure not to answer the door (presumably to the warehouse). Id. at 02:47–03:08. From
the discussion, Diane and Scott apparently believed Richard would come and try to take
personal property. Nancy was silent during most of these video excerpts.
{¶ 44} During the rest of this part of the video, Scott told Diane that the funds would
have to go into the estate and be disbursed when the estate was settled. Diane agreed.
They also discussed the fact that Richard wanted all the items on his list. They noted that
an email had been sent that Nancy had opened, but Diane would not open the email. The
content of the email was unclear. Diane also said she was going to say that Richard had
been threatening her. Id. at 03:19–06:32.
{¶ 45} In the second excerpt in Plaintiff’s Ex. 6, the file labeled “83226,” Diane stated
that she was “through” with Richard when he started sending her abusive texts. Id. at 09:29–
09:39. During this part of the video, as well as before, Diane also made comments of a more
18 personal nature, such as that she had taken joy in having embarrassed Richard, that she
would call the police to remove him if he showed up at the house, that all Richard cared
about was money, and so on. Again, we express no opinion on the truth of any statements
other than that they were made.
{¶ 46} From viewing the video excerpts, it is clear that Diane was agitated and angry;
and it is safe to say unpleasant feelings existed on both sides. However, the video vividly
reveals that Diane was not acting in the position of a fiduciary, who would be neutral and act
in the best interests of all beneficiaries, including Richard. Instead, she acted as an angry
sibling who decided to act vindictively against a beneficiary. Notably, Diane was an attorney.
Tr. 73. She would have known about fiduciary requirements and should have elected to have
a neutral party appointed trustee when disagreements over property developed. She failed
to do so.
{¶ 47} Diane would also have known that she was required to account to the
beneficiaries. However, she failed to account for trust matters to the extent that Richard had
to retain an attorney and file suit. Specifically, when Richard’s attorneys wrote to Diane’s
counsel on December 12, 2021, and again on February 2, 2022, asking for an accounting
and at least a partial property distribution, they received no response until February 22,
2022—several months after the closing on the house occurred. Furthermore, the account
that was eventually produced in litigation in 2023 (the first Richard had received) reveals
that Diane did not make a partial distribution on funds from the closing ($40,000 to each
beneficiary) until April 24, 2025. At that time, Diane distributed to Nancy and herself;
however, she did not send Richard’s money until May 2, about a week later. Tr. 35-38;
Plaintiff’s Exs. 2.1, 2.2, 2.3, and 18.1. At that point (16 months after Beverly’s death), no
account had yet been provided. Richard then filed suit on May 26, 2022.
19 {¶ 48} In its decision, the trial court found that “in lieu of doing the right thing and
upholding her fiduciary duty, [Diane] instead allowed a petty sibling rivalry to morph into bad
faith and malice, in breach of her fiduciary duties of the utmost honesty, good faith, and
disclosure. In short, she placed Richard Geisenfeld into the grossly unfair position of
negotiating for items that either did not exist (and that she knew or should have known did
not exist) or that she never intended at the time to provide.” (Emphasis in original.)
Settlement Order, p. 4.
{¶ 49} We agree. The Supreme Court of Ohio has said in the context of punitive
damages that “actual malice” is “(1) that state of mind under which a person’s conduct is
characterized by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the
rights and safety of other persons that has a great probability of causing substantial harm."
Preston v. Murty, 32 Ohio St.3d 334 (1987), syllabus.
{¶ 50} Based on the testimony, it is impossible to believe that Diane was unaware of
an accordion file containing her mother’s handwritten recipes. To reach this conclusion
would require ignoring the testimony of two other family members the trial court specifically
found credible. As noted, we defer to credibility decisions of factfinders. For the reasons
stated, the first assignment of error is without merit and is overruled.
III. Award of Attorney Fees
{¶ 51} Diane’s second assignment of error states:
IN THE EVENT DIANE IS FOUND TO HAVE BREACHED THE
SETTLEMENT AGREEMENT, THE TRIAL COURT ABUSED ITS
DISCRETION IN AWARDING RICHARD HIS FULL ATTORNEYS’ FEES AND
COSTS.
20 {¶ 52} Under this assignment of error, Diane contends the trial abused its discretion
in awarding Richard the full amount of attorney fees in the litigation. In this regard, Diane
notes that Richard said in the Agreement that he would pay his own attorney fees. She
further points out that the court acknowledged during the hearing that any attorney fees
would be narrow because the case had many prongs, and the court, therefore, would be
looking “‘only at the fees incurred and the very narrow auspices of enforcement of the
settlement agreement.’” (Emphasis in original.) Appellant’s Brief, p. 17, quoting Tr. 154.
Diane further argues the trial court erred in awarding punitive damages in the form of
attorney fees rather than compensatory damages. Finally, Diane notes that in the
Agreement, Richard released her from any attorney fees “‘except for claims arising out of
or relating to this Settlement Agreement or related documents.’” (Emphasis in original.)
Id. at p. 19, quoting Agreement, p. 2. Accordingly, Diane contends the trial court went far
beyond what could have potentially been awarded.
{¶ 53} In responding, Richard argues that the trial court found multiple instances of
Diane’s breach of fiduciary duty and that punitive damages may be awarded for such
conduct if committed with actual malice. Richard suggests Diane’s “malice” is shown by the
Ring videos, where she said she was done with him. Appellee’s Brief, p. 9-10. In addition,
Richard contends that releases exculpating parties from future tortious conduct are either
void or the liability in question must be specified in the release, not generally, as was done
here. Id. at p. 10-11.
{¶ 54} In reply, Diane argues that while punitive damages can be awarded for breach
of fiduciary duty and malice, the trial court could not have awarded punitive damages here
upon awarding only nominal damages for Diane’s failure to produce the handwritten recipes.
Appellant’s Reply Brief, p. 2-4. In response, Richard filed a motion to strike the brief or
21 disregard it because it raised a “new argument.” Appellee’s Motion to Strike Brief, p. 1-2.
Both sides filed additional memoranda concerning the motion to strike.
{¶ 55} The law “is well settled that a party cannot ‘use a reply brief to raise new
issues.’” Trotwood v. S. Cent. Constr., L.L.C., 2011-Ohio-237, ¶ 40 (2d Dist.), quoting
Ostendorf v. Montgomery Cty. Bd. of Commrs., 2004-Ohio-4520, ¶ 29 (2d Dist.). Our review
reveals that Diane did not raise this issue in her initial brief, and we decline to consider it.
Accordingly, the motion to strike the brief is sustained.
{¶ 56} Returning to the attorney fee decision, the trial court found, concerning the
recipes, that they were “intentionally, recklessly, or with gross negligence destroyed, hidden,
or disbursed to others by [Diane] or by others while they were in [Diane’s] duty of
safekeeping; that she knew or should have known that these were the items being requested
by her brother; and she remained silent about the status of the handwritten recipes in the
face of a duty to both inquire and disclose.” (Emphasis in original.) Settlement Order, p. 4.
Because the recipes were sentimental and not commercial items, the court awarded Richard
nominal damages of $1,000 and also awarded him full litigation attorney fees and costs to
penalize Diane for fraudulent inducement and breach of fiduciary duty. Id. at p. 4-5.
{¶ 57} Before addressing the issues, we note that Diane did not include the full
context of the remarks the court made during the hearing. As indicated, the court gave the
parties its preliminary conclusions and urged Diane to look in good faith for the recipes.
Tr. 153-154. Though the court did indicate an intent to construe attorney fees narrowly, it
also stressed that “depending on the good faith associated with that redoubling of efforts,
the Court could decide the additional issues in the case, such as good faith and whether or
not attorney fees should be awarded in whole or in part for some component of the case.”
22 Tr. 154. Because the court’s observations were preliminary, the court had the ability to
change its mind.
{¶ 58} After the court allowed Diane to look further, Diane filed an affidavit, as noted,
concerning her additional efforts to find recipes. Based on the court’s findings on malice and
its conclusion that Diane had “stooped to punking and gaslighting” her brother when she
should have been acting as a fiduciary, the court clearly did not believe Diane made any
good-faith effort despite being given a chance to do so. Settlement Order, p. 5.
{¶ 59} As an additional matter, while the parties agreed to pay their own attorney fees
except for claims arising from the Agreement, the court found that the agreement had been
fraudulently induced. As the court noted, if Richard had known of Diane’s deception, he
could have negotiated for different terms, including choosing to continue the litigation or
obtaining more money or different property. Id. at p. 4. And contrary to Diane’s claims, this
appeal is not about whether she breached the agreement (she clearly did); it is about
whether she did so maliciously and in breach of her fiduciary duties.
{¶ 60} Having made these observations, we turn to the legal standards that apply
here.
A. Applicable Law
{¶ 61} “‘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.’” Cruz v. English Nanny & Governess School, 2022-Ohio-3586, ¶ 35,
quoting Wilborn v. Bank One Corp., 2009-Ohio-306, ¶ 7. “‘The American Rule has roots in
our common law reaching back to at least the 18th century.’” Id., quoting Baker Botts, L.L.P.
v. ASARCO, L.L.C., 576 U.S. 121, 126 (2015). “The rationale behind the American rule is
that because ‘litigation is at best uncertain one should not be penalized for merely defending
23 or prosecuting a lawsuit, and that the poor might be unjustly discouraged from instituting
actions to vindicate their rights if the penalty for losing included the fees of their opponents’
counsel.’” Id., quoting Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718
(1967).
{¶ 62} Nonetheless, three well-recognized exceptions to the rule exist: “(1) when a
statute creates a duty to pay attorney fees, (2) when the losing party acted in bad faith, and
(3) when the parties contracted to shift the fees.” Id. at ¶ 36, citing Wilborn at ¶ 7. The second
exception (involved here) “allows an award of attorney fees to the prevailing party as an
element of compensatory damages when the jury finds that punitive damages are
warranted.” Phoenix Lighting Group, L.L.C. v. Genlyte Thomas Group, L.L.C., 2020-Ohio-
1056, ¶ 9, citing Zoppo v. Homestead Ins. Co., 71 Ohio St.3d 552, 558 (1994). In this vein,
the court noted in Phoenix that “‘facts which justify the infliction of exemplary damages will
also justify the jury in adding the amount of counsel fees to the verdict, not as a part of
exemplary damages, but as compensatory damages.’” Id., quoting New York, Chicago & St.
Louis RR. Co. v. Grodek, 127 Ohio St. 22, 25 (1933). This would be true as well when a
court is the fact-finder.
{¶ 63} The statement in Phoenix is consistent with a very early case in which the
Supreme Court of Ohio stated that
In an action to recover damages for a tort which involves the ingredients
of fraud, malice, or insult, a jury may go beyond the rule of mere compensation
to the party aggrieved, and award exemplary or punitive damages; and this
they may do, although the defendant may have been punished criminally for
the same wrong.
24 . . . In such a case, the jury may, in their estimate of compensatory
damages, take into consideration and include reasonable fees of counsel
employed by the plaintiff in the prosecution of his action.
(Emphasis added.) Roberts v. Mason, 10 Ohio St. 277 (1859), paragraphs one and two of
the syllabus. Accord Cruz, 2022-Ohio-3586, at ¶ 37. Again, the same observations would
apply to judges operating as triers of fact.
{¶ 64} Trial court decisions on attorney fees are reviewed for abuse of discretion. St.
Elizabeth Med. Ctr., 129 Ohio App.3d at 58, citing Motorists Mut. Ins. Co. v. Brandenburg,
72 Ohio St.3d 157, 160 (1995). “‘Abuse of discretion’ has been defined as an attitude that is
unreasonable, arbitrary or unconscionable.” AAAA Ents., Inc. v. River Place Community
Urban Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990), citing Huffman v. Hair
Surgeon, Inc., 19 Ohio St.3d 83, 87 (1985). “[M]ost instances of abuse of discretion will result
in decisions that are simply unreasonable, rather than decisions that are unconscionable or
arbitrary. . . . A decision is unreasonable if there is no sound reasoning process that would
support that decision.” Id.
{¶ 65} Punitive damages may also be awarded for breach of fiduciary duty given proof
of implied or actual malice. Schafer v. RMS Realty, 138 Ohio App.3d 244, 301-302 (2d Dist.
2000) (discussing Dunn v. Zimmerman, 69 Ohio St.3d 304, 307 (1994)). As indicated, the
malice “necessary for an award of punitive damages, is (1) that state of mind under which a
person’s conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a conscious
disregard for the rights and safety of other persons that has a great probability of causing
substantial harm.” Preston, 32 Ohio St.3d 334, at syllabus.
{¶ 66} The Supreme Court of Ohio has said that “it is rarely possible to prove actual
malice otherwise than by conduct and surrounding circumstances. One who has committed
25 an act would scarcely admit that he was malicious about it, and so, necessarily, malice can
be inferred from conduct.” Davis v. Tunison, 168 Ohio St. 471, 475 (1959). “Moreover, actual
malice can be inferred from conduct and surrounding circumstances which may be
characterized as reckless, wanton, willful or gross.” Villella v. Waikem Motors, Inc., 45 Ohio
St.3d 36, 37 (1989), citing Columbus Finance, Inc. v. Howard, 42 Ohio St.2d 178, 184
(1975), and Rubeck v. Huffman, 54 Ohio St.2d 20, 23 (1978).2
{¶ 67} Here, in addition to the findings on breach of fiduciary duty, the trial court stated
that Diane had acted with “intentionally deceitful and malicious conduct.” Settlement Order,
p. 4. Consequently, and for the reasons already stated, the trial court had the ability to award
attorney fees. As noted, this was not simply a breach of contract situation. It also involved
malicious conduct and breach of fiduciary duties.
B. Challenges to the Award
{¶ 68} In her brief, Diane argues that the attorney fee award resulted from the trial
judge’s passion and prejudice, which was evident “in her acknowledged understanding of
‘the incredible sentimental value of the handwritten recipes,’ which she indicated she had
experienced in her own life.” Appellant’s Brief, p. 19-20, quoting Tr. 153. In Villella, the
defendant made a similar claim; the jury awarded compensatory damages that consisted of
$250 in actual damages and $15,000 in attorney fees, but it rendered a punitive damages
award of $150,000. Villella at 39-40. The context of Villella was the alleged improper conduct
of the plaintiff’s attorney. Id.
2. Villella was modified on other grounds in Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638 (1994). In Moskovitz, the court noted that “in prejudgment interest determinations pursuant to R.C. 1343.03(C), the phrase ‘failed to make a good faith effort to settle’ does not mean the same as ‘bad faith’”; in contrast, Villella had interpreted the phrase to “‘import a dishonest purpose, conscious wrongdoing or ill will in the nature of fraud.’” Moskovitz at 659, quoting Villella, 45 Ohio St.3d at 42. The case before us does not involve prejudgment interest.
26 {¶ 69} In considering the matter, the Supreme Court of Ohio remarked:
“[I]n order to determine whether excessive damages were so influenced [by
passion or prejudice], a reviewing court should consider, not only the amount
of damages returned and the disparity between the verdict and remittitur where
one had been entered, but it becomes the duty of such court to ascertain
whether the record discloses that the excessive damages were induced by . . .
misconduct on the part of the court or counsel, or . . . by any other action
occurring during the course of the trial which can reasonably be said to have
swayed the jury in their determination of the amount of [punitive] damages that
should be awarded.”
Villella, 45 Ohio St.3d at 39, quoting Fromson & Davis Co. v. Reider, 127 Ohio St. 564
(1934), paragraph three of the syllabus. Thus, this standard applies to the conduct of both
courts and attorneys. As a preliminary point, no misconduct occurred here.
{¶ 70} In considering whether the punitive damages were reasonably related to the
actual damages in Villella, the Court noted that the defendant’s “actual damages were $250
plus attorney fees.” Id. at 40. This is similar to the current case, where the trial court awarded
Richard “damages in the amount of $1,000 in nominal damages and Plaintiff’s full attorney
fees and costs of the litigation.” Settlement Order, p. 4-5. Even though the court also
classified the award as punishing Diane for her malicious conduct, it is clear that the award
was intended both punitively and as compensation for the litigation costs that Diane’s
fraudulent acts caused Richard to incur.
{¶ 71} On the subject of nominal damages, the Supreme Court of Ohio made the
following observations many years ago:
27 “According to the weight of authority, punitive damages may be recovered
although the actual damages found are only nominal in amount. It is not always
clear in what sense the term ‘nominal damages’ is used in this regard; that is,
whether by it small actual damages or damages incapable of measurement
are meant or whether it is used to designate the damages which follow in every
case of violation of mere legal rights. If used in the latter sense, these cases
go far toward destroying the practical effect of the general rule, making actual
damages a necessary predicate for exemplary damages. If, however, the
phrase ‘nominal damages’ is used in the sense of slight actual damages or
actual damages incapable of ascertainment and award, a wide scope is left for
the operation of the general rule. It will be recalled that the principal reason
given in support of the general rule requiring actual damage as a predicate for
the recovery of exemplary damages is that a private action cannot be
maintained merely to inflict punishment upon the wrongdoer. [A] number of
cases supporting the rule that a verdict for punitive damages may be supported
even where the actual damages are merely nominal take the position that if a
cause of action is made out which shows an infraction of a legal right, the
cause is complete and may be maintained and exemplary damages may be
recovered in proper cases despite the fact that the injury gives rise to no
substantial pecuniary damage or to a loss incapable of exact measurement in
money; in other words, that there is something to which exemplary damages
may attach, small in amount though it may be. See, also, 13 Ohio
Jurisprudence 243, Section 144; Clark v. McClurg, 215 Cal. 279, 9 P.2d 505,
81 A.L.R. 913; and 25 Corpus Juris Secundum, Damages, § 118, p. 713
28 Richard v. Hunter, 151 Ohio St. 185, 188-189 (1949), quoting 15 Am. Jur., § 270, at 706.
{¶ 72} In Richard, the Supreme Court used the term “actual” and nominal” damages
interchangeably, the point being that simply because damages may be small or incapable
of exact measurement, punitive damages may be awarded, because to hold otherwise would
circumvent the reason for allowing such awards. For example, an action cannot be brought
solely to obtain punitive damages. That is obvious and was not the case here; in fact, Richard
was forced into litigation to try to obtain his property and an accounting based on Diane’s
alleged breach of fiduciary duties. Later, when the case was settled, Diane acted with malice
and bad faith and violated her fiduciary duties.
{¶ 73} In Villella, the court remarked that “generally, the amount of punitive damages
to be awarded rests largely within the determination of the trier of fact,” and “the trial judge
is in the best position to determine whether an award is so excessive as to be deemed a
product of passion or prejudice.” Villella, 45 Ohio St.3d at 40 (citing cases). The court further
noted that “generally, it is not for a trial or appellate court to substitute its judgment for that
of the trier of fact.” Id.
{¶ 74} Diane has not contested the accuracy of the amount of fees incurred; her
position is that the fees were excessive. We disagree and find no abuse of discretion. “‘It is
well settled that where a court is empowered to award attorney fees by statute, the amount
of such fees is within the sound discretion of the trial court. Unless the amount of fees
determined is so high or so low as to shock the conscience, an appellate court will not
interfere.’” Bittner v. Tri-Cty. Toyota, Inc., 58 Ohio St.3d 143, 146 (1991), quoting Brooks v.
Hurst Buick-Pontiac-Olds-GMC, Inc., 23 Ohio App.3d 85, 91 (12th Dist. 1985).
{¶ 75} Furthermore, another established point is that “Ohio courts have no firm rule
on fee proportionality.” Chapel v. Wheeler Growth Co., 2023-Ohio-3988, ¶ 26 (1st Dist.).
29 “‘A rule of proportionality would make it difficult, if not impossible, for individuals with
meritorious . . . claims but relatively small potential damages to obtain redress from the
courts.’” Bittner at 144, quoting Riverside v. Rivera, 477 U.S. 561, 578 (1986). Accord
Chapel at ¶ 26.
{¶ 76} Here, the attorney fee award was substantial in proportion to the damages, but
the record reveals that even before the case was filed, Diane engaged in acts that violated
her fiduciary duties and required Richard to file suit to obtain an accounting and an
appropriate distribution of property. When the case was settled, Diane’s malicious actions
continued, resulting in Richard’s request for enforcement of the settlement agreement and
claim that Diane had fraudulently induced the settlement. When Diane “redoubled” her
efforts to find recipes, her actions were also done in bad faith, as the trial court clearly
believed.
{¶ 77} In Chapel, the court mentioned various decisions where courts had upheld
attorney fee awards that were significantly higher than the damages. Id. at ¶ 27. For
example, courts have allowed awards where the fees were between 10 and 30 times the
amount of the judgments. Id., citing DiPenti v. Park Towers Condominium Assn., 2020-Ohio-
4277, ¶ 34 (10th Dist.), Schultz v. Wurdlow, 2012-Ohio-3163, ¶ 1, 25-26 (10th Dist.), Alcorso
v. Correll, 2021-Ohio-3351, ¶ 21, 49 (8th Dist.), and Christen v. Continental Ents., 2020-
Ohio-3665, ¶ 52 (8th Dist.). This is not to say that such awards are automatically appropriate;
the point simply is that courts have rejected “challenges to attorney’s fees awards based
purely on proportionality.” Chapel at ¶ 27. Given Diane’s actions, we find the attorney fee
award was not an abuse of discretion. Instead, it was based on sound reasoning.
{¶ 78} Based on the preceding discussion, the second assignment of error is
overruled.
30 IV. Conclusion
{¶ 79} Both of Diane’s assignments of error having been overruled, the judgment of
the trial court is affirmed. In addition, Richard’s motion to strike is sustained.
.............
LEWIS, P.J., and HUFFMAN, J., concur.