[Cite as Horstman v. Fanning, 2019-Ohio-2483.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT PUTNAM COUNTY
TED HORSTMAN ET AL.,
PLAINTIFFS-APPELLEES, CASE NO. 12-18-14
v.
DAVID FANNING, OPINION
DEFENDANT-APPELLANT.
Appeal from Putnam County Common Pleas Court Trial Court No. 17 CV 102
Judgment Affirmed
Date of Decision: June 24, 2019
APPEARANCES:
Richard M. Kerger and Kimberly A. Conklin for Appellant
Bruce Comly French for Appellees Case No. 12-18-14
PRESTON, J.
{¶1} Defendant-appellant, David Fanning (“Fanning”), appeals the October
24, 2018 judgment of the Putnam County Court of Common Pleas. For the reasons
that follow, we affirm.
{¶2} This case stems from a business dispute between plaintiffs-appellees,
Ted and Rick Horstman (“Ted” and “Rick”) (collectively the “Horstmans”),
Fanning, and a fourth individual, Vincent Snell (“Snell”). Ted, Rick, Fanning, and
Snell were members of Ultimate Systems, Ltd. (“Ultimate Systems”), an Ohio
limited liability company that produced colorized rubber materials and end-user
products such as rubber flooring. (See Doc. No. 48, Snell’s Sept. 13, 2018 Depo.,
Ex. B). Each held a 25 percent member interest in Ultimate Systems. (Id.). In
2013, a plan was devised to “freeze” Snell out of Ultimate Systems. (See Oct. 19,
2018 Tr. at 8). Robert Honigford (“Honigford”), Ultimate Systems’s chief financial
officer and corporate attorney, was the “mouthpiece” of the scheme to acquire
Snell’s interest in Ultimate Systems. (Id. at 8-9). In late 2013, Snell’s 25 percent
interest in Ultimate Systems was “eliminated in exchange for a payment of
$525,000” based upon a valuation provided by an accounting firm hired by
Honigford. (Doc. No. 48, Snell’s Sept. 13, 2018 Depo., Ex. B). The acquisition of
Snell’s interest in Ultimate Systems was accomplished in conjunction with a merger
between Ultimate Systems and RDT Manufacturing, LLC (“RDT”), an entity
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owned equally by Ted, Rick, and Fanning, with RDT as the surviving entity. (Id.).
In 2014, the assets of RDT, along with the assets of other entities owned by the
Horstmans and Fanning, were sold to a subsidiary of Accella Performance
Materials, Inc. (“Accella”) for $40 million. (Id.); (Doc. No. 19, Ted’s Jan. 25, 2018
Depo. at 8-9).
{¶3} Soon after the Accella transaction was consummated, Snell, through
Lynx Services, Ltd. (“Lynx”), a company he had previously formed to hold his
interest in Ultimate Systems, filed a complaint against the Horstmans and Fanning
in the United States District Court for the Northern District of Ohio alleging that the
plan to freeze him out of Ultimate Systems violated Ohio law. (See Oct. 19, 2018
Tr. at 8-9); (See Doc. No. 28, Ex. A). Honigford was later added as a defendant to
the federal lawsuit. (See Doc. No. 28, Ex. A).
{¶4} In late September 2016, Snell was subjected to deposition in Columbus,
Ohio. The Horstmans and Fanning were present at Snell’s deposition; Honigford
was not. (See Oct. 19, 2018 Tr. at 11, 37). On September 30, 2016, the second day
of Snell’s deposition, Snell, Fanning, and the Horstmans met privately to discuss
the possibility of settling the federal lawsuit. (Id. at 11). (See Sept. 30, 2016 Tr. at
3). Eventually, Snell, Fanning, and the Horstmans agreed that Lynx would dismiss
the federal lawsuit in exchange for $4.5 million. (Oct. 19, 2018 Tr. at 11, 37). That
day, the parties recited the general terms of their settlement agreement into the
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record. (Sept. 30, 2016 Tr. at 3-5). Later, the parties executed a “Global Settlement
Agreement and General Release” providing that Lynx would dismiss the federal
lawsuit with prejudice in exchange for $4.5 million, $3 million of which was due on
or before November 15, 2016 and $1.5 million of which was due on or before April
30, 2017. (Doc. No. 21, Ex. G). Neither the settlement agreement as recited into
the record nor the written settlement agreement specify who was responsible for
paying what percentage of the $4.5 million. According to the Horstmans and Snell,
the Horstmans were to be responsible for paying $1.5 million each, Fanning was to
pay $1.5 million, and Honigford was not to pay any part of the $4.5 million. (See
Doc. No. 21, Ex. E); (See Oct. 19, 2018 Tr. at 13-14, 21-23). According to Fanning,
however, he never agreed to contribute a specific sum toward the $4.5 million
settlement, and he did not agree that Honigford should not have to pay at all. (See
Fanning Affidavit at 4).
{¶5} After the parties adopted the written settlement agreement, the
Horstmans each paid $1.5 million to Lynx.1 Subsequently, on or about April 22,
2017, Fanning advised the Horstmans that he did not intend to pay Lynx the
remaining $1.5 million. (Doc. Nos. 1, 7). As a result, the Horstmans decided to
1 The written settlement agreement provided that Lynx would move to dismiss the federal lawsuit within one day after receiving the “Initial Payment” of $3 million due in November 2016. (See Doc. No. 21, Ex. G). Although $1.5 million of the $4.5 million remained outstanding in November 2016, because the Horstmans made the required $3 million Initial Payment in November 2016, the federal lawsuit was dismissed with prejudice in November 2016.
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split the remaining $1.5 million payment evenly, with Ted and Rick each paying
Lynx an additional $750,000. (Oct. 19, 2018 Tr. at 16).
{¶6} On June 22, 2017, the Horstmans filed a complaint in the trial court
against Fanning requesting a judgment for $1,501,748.73 plus interest.2 (Doc. No.
1). On August 4, 2017, Fanning filed his answer to the Horstmans’ complaint.
(Doc. No. 7).
{¶7} On March 26, 2018, the Horstmans filed a motion for summary
judgment. (Doc. No. 21). On April 24, 2018, Fanning filed a memorandum in
opposition to the Horstmans’ motion for summary judgment as well as a cross-
motion for summary judgment. (Doc. No. 28). On May 7, 2018, the Horstmans
filed a memorandum in opposition to Fanning’s cross-motion for summary
judgment. (Doc. No. 29). On May 9, 2018, Fanning filed a brief in reply to the
Horstmans’ memorandum in opposition to his cross-motion for summary judgment.
(Doc. No. 31).
{¶8} Following a May 10, 2018 hearing on the motions for summary
judgment, the trial court partially granted the Horstmans’ motion for summary
judgment. (Doc. No. 33). First, the trial court found that the Horstmans and Fanning
“agreed to the settlement amount and incorporated that agreement on the record and
2 The additional $1,748.73 represents “taxes due to an adjustment to the December 31, 2014, Form 1040 for RDT Manufacturing, LLC in the sum of one-third (1/3) of $1,290.68; and the sum for additional attorneys’ fees from Bugbee & Conkle in the aggregate sum of $1,318.50.” (Doc. No. 1).
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as a future written settlement agreement” but that “[t]he settlement agreement was
silent as to the contribution amounts as it would pertain to any of the parties.” (Id.).
The trial court concluded that the Horstmans had established that “an agreement to
pay a settlement in the Federal case does exist.” (Id.). In essence, the trial court
concluded that the only issue in dispute was the precise amount of money Fanning
would be required to pay toward the $4.5 million settlement. (See id.).
Consequently, the trial court denied the Horstmans’ motion for summary judgment
in part so that the parties could “be heard on the matter as to contribution.” (Id.).
Finally, the trial court denied Fanning’s cross-motion for summary judgment in its
entirety. (Id.).
{¶9} On October 19, 2018, a bench trial was held to determine the sole
“remaining issue before the Court” which was “the allocation of contribution on
[the Horstmans’] Complaint for Money Damages.” (Doc. No. 56). On October 24,
2018, the trial court entered judgment for the Horstmans in the amount of $1.5
million. (Id.).
{¶10} Fanning filed a notice of appeal on November 21, 2018. (Doc. No.
64). He raises one assignment of error for our review.
Assignment of Error
The trial court’s judgment is against the manifest weight of the evidence and contrary to law.
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{¶11} In his assignment of error, Fanning argues that the trial court’s
judgment in favor of the Horstmans is against the manifest weight of the evidence
or otherwise contrary to law. Specifically, Fanning argues that “in the absence of
proof of an agreement as to the amounts to be paid by each settling defendant, a
judgment against [him] for $1.5 million is improper.” (Appellant’s Brief at 8).
Furthermore, he argues that the trial court’s judgment is contrary to law because it
is based on a conclusion that Honigford, as an employee of Ultimate Systems, could
not have been compelled to make payments toward the settlement agreement. (Id.
at 11). Fanning contends that this conclusion is erroneous as a matter of law. (See
id.). Finally, Fanning argues that even if he did agree to pay $1.5 million, this
agreement would be unenforceable under R.C. 1335.05, Ohio’s Statute of Frauds.
(Id. at 13-14).
{¶12} “‘When reviewing a civil appeal from a bench trial, we apply a
manifest weight standard of review.’” Lump v. Larson, 3d Dist. Logan No. 8-14-
14, 2015-Ohio-469, ¶ 9, quoting San Allen, Inc. v. Buehrer, 8th Dist. Cuyahoga No.
99786, 2014-Ohio-2071, ¶ 89, citing Revilo Tyluka, L.L.C. v. Simon Roofing &
Sheet Metal Corp., 193 Ohio App.3d 535, 2011-Ohio-1922, ¶ 5 (8th Dist.). “‘[A]
civil judgment “supported by some competent, credible evidence going to all the
essential elements of the case will not be reversed by a reviewing court as being
against the manifest weight of the evidence.”’” Id., quoting Warnecke v. Chaney,
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194 Ohio App.3d 459, 2011-Ohio-3007, ¶ 13 (3d Dist.), quoting C.E. Morris Co. v.
Foley Constr. Co., 54 Ohio St.2d 279 (1978), syllabus.
{¶13} “‘“[W]hen reviewing a judgment under a manifest-weight-of-the-
evidence standard, a court has an obligation to presume that the findings of the trier
of fact are correct.”’” Id. at ¶ 10, quoting Warnecke at ¶ 13, quoting State v. Wilson,
113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 24. “‘The rationale for this presumption is
that the trial court is in the best position to evaluate the evidence by viewing
witnesses and observing their demeanor, voice inflection, and gestures.’” Id.,
quoting Warnecke at ¶ 13, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d
77, 80 (1984). “‘“A reviewing court should not reverse a decision simply because
it holds a different opinion concerning the credibility of the witnesses and evidence
submitted before the trial court.”’” Id., quoting Warnecke at ¶ 13, quoting Seasons
Coal Co. at 81. “‘“A finding of an error in law is a legitimate ground for reversal,
but a difference of opinion on credibility of witnesses and evidence is not.”’” Id.,
quoting Warnecke at ¶ 13, quoting Seasons Coal Co. at 81.
{¶14} We conclude that competent, credible evidence supports the trial
court’s $1.5 million judgment in favor of the Horstmans. At the outset, we
acknowledge the trial court’s finding that “[t]here were never any discussions as to
who would pay what percentage of the $4,500,000.” (Doc. No. 56). We also
recognize that both the written settlement agreement and the agreement as recited
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into the record fail to include provisions allocating responsibility for paying the $4.5
million between the Horstmans, Fanning, and Honigford. Nevertheless, the record
supports that at the time the settlement agreement was finalized, it was understood
that Ted, Rick, and Fanning would each be responsible for paying Lynx $1.5 million
and that Honigford would not be required to pay any part of the $4.5 million. Thus,
the trial court’s conclusion that Fanning should reimburse the Horstmans for the
$1.5 million they paid to discharge his obligation under the settlement agreement is
not against the manifest weight of the evidence.
{¶15} The testimony of Snell and Ted, as well as other documentary
evidence submitted during the case, support that it was the parties’ understanding
that Fanning would be required to pay $1.5 million and Honigford would be
required to pay nothing. In connection with their motion for summary judgment,
the Horstmans submitted an affidavit executed by Snell that provides:
[D]uring September 2016, a meeting took place between myself,
[Ted], [Rick], and [Fanning].
The purpose of the meeting was to agree [to] an out of court
settlement. After some negotiations, it was agreed that a payment of
$4.5 million would be paid.
It was agreed by Ted and Rick Horstman that they would settle their
share of $3 million within 30 days, Dave Fanning asked if I would
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wait until the end of April 2017 for him to settle his share of $1.5
million as he said it would take about six months to get that amount
realized.
I agreed to this and then reported our agreement and payment terms
to my lawyer * * *.
(Doc. No. 21, Ex. E). Snell’s deposition testimony further supports that this was the
arrangement contemplated by the parties present at the settlement negotiations. In
his deposition testimony, Snell confirmed that he, the Horstmans, and Fanning
negotiated to settle the federal lawsuit for $4.5 million. (See Doc. No. 48, Snell’s
Sept. 13, 2018 Depo. Tr. at 8-9). Snell testified that the terms of the agreement were
that he “wanted all the cash immediately.” (Id. at 9). According to Snell, the
Horstmans said that they could have their share within a matter of days but Fanning
“said, * * * after it was agreed, he would need approximately six months to realize
his share of it, which was a third, because we were talking * * * one and a half
million dollars each.” (Id.). He testified that he expected to receive the final
installment of $1.5 million from Fanning in April 2017 and that he incentivized
Fanning to get the money to him sooner by providing a $5,000 per month discount
for early payment. (Id. at 9-10). Snell stated: “The agreement was [that Fanning]
was going to pay [Snell] one and a half million at the end of April the following
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year.” (Id. at 14). He testified that he believed that the terms of the agreement and
the parties’ understanding of the agreement were “crystal clear.” (Id.).
{¶16} On cross-examination, Snell acknowledged that Honigford was also a
defendant in the federal lawsuit. (Id. at 24-25). However, he testified that
Honigford was not present at the settlement negotiations and that it was his
understanding that the $4.5 million payment was to be divided between the three
defendants present at the deposition, namely the Horstmans and Fanning. (Id. at
28). Furthermore, Snell testified that he remembered hearing Fanning state that he
would pay $1.5 million. (Id.). Finally, Snell stated that he later called Fanning to
“make sure that the one and a half million was still coming along” but that he had
not spoken to Fanning since. (Id. at 32-33).
{¶17} Ted’s deposition testimony and trial testimony further corroborate
Snell’s account of the settlement negotiations and the agreement reached by the
parties. Ted remembered the settlement negotiations as follows:
So after an hour’s worth of discussion, we came upon a number * * *.
And that number was $4.5 million, of which Rick and I were going to
pay 1.5 apiece * * * and get that done because it was going to take a
while for us to get our money out of our different entities to get a $1.5
million, we needed a month so that gave it to October 31.
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Mr. Fanning, because he had just purchased a company, * * * said,
Vince, I need more time, * * * because I’m just purchasing a company,
I don’t have the money right now. * * * Vince gave him an additional
six months, th[at] being the * * * end of April deadline.
Vince Snell also said, I tell you what, I’ll give you $5,000 a month
credit for every month before April that you can pay me off.
(Doc. No. 19, Ted’s Jan. 25, 2018 Depo. Tr. at 20-21). (See Oct. 19, 2018 Tr. at 11-
13). Ted insisted repeatedly that at the end of the September 30, 2016 settlement
negotiations, they “ended up settling [on] 4 and a half, which was a million and a
half a piece” with the understanding that he and Rick “were each to pay a million
and a half, [and] Mr. Fanning was to pay a million and a half, with a $30,000
incentive if he could pay it off early.” (Oct. 19, 2018 Tr. at 11-12). Ted testified
that he did not question why the written settlement agreement failed to specify who
would be responsible for paying what portion of the $4.5 million “[b]ecause as
[they] were all in the room, the four of [them], that would be Mr. Snell, Rick,
[Fanning], and [himself], [they] had [their] agreement amongst [themselves]. * * *
[They] decided how it was going to be settled.” (Doc. No. 19, Ted’s Jan. 25, 2018
Depo. Tr. at 25). He remarked that Fanning understood that the $1.5 million due in
April 2017 was “his portion to pay.” (Id. at 28).
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{¶18} As to Honigford’s payment obligations under the settlement
agreement, Ted testified that Honigford “wasn’t involved in the pay-out” to Snell at
all because “[h]e was not an owner” of Ultimate Systems. (Id. at 22). He stated that
“it was agreed upon between [Rick], and [Fanning], and [himself], [that] Mr.
Honigford was just the attorney, he had nothing in it.” (Id. at 22-23). According to
Ted, the parties understood that Honigford did not “have the asset base” to pay into
the settlement. (Id. at 23). Ted testified that he knew that Honigford would agree
to the terms of the settlement agreement because “when the four of [them] came out
of that room with an agreement, it was * * * one million and a half dollars for
[himself], one million and [a] half dollars for Rick, and one million and a half dollars
for Dave Fanning”; it was “agreed there would be no contribution by Mr.
Honigford” and “nothing [was] coming out of his pocket.” (Oct. 19, 2018 Tr. at
23). He stated that Honigford’s ultimate assent to the terms of the settlement
agreement was based on Honigford’s understanding that he would not be liable for
any part of the $4.5 million. (See id. at 13-14). Finally, Ted testified that Fanning
did not say or do anything at the settlement negotiations suggesting that he was
dissatisfied with the arrangement obligating him to pay $1.5 million and he did not
suggest that Honigford should pay some portion of the $4.5 million. (Id. at 17-18).
{¶19} In contrast, Fanning’s recollection of the settlement negotiations and
the arrangement agreed to by the parties deviates significantly from the version
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advanced by Ted and Snell. Fanning’s version of events is well summarized by an
affidavit he submitted with his cross-motion for summary judgment. His affidavit
provides, in relevant part:
Ted, Rick, [Snell], and I went into a room without lawyers and Ted
announced that [Snell] wanted $5 million to settle and we were
offering $4.5 million. [Snell] said okay and the conversation went on
about how 3 million would get paid in 30 days and then the rest by
April of 2017.
There was never an agreement as to how the 4.5 million would be paid
among the four Defendants- and since Honigford was not even at this
meeting my assumption was that we would work it out later. I recall
Ted suggesting that we all pay an even 1.5 million, but that left
Honigford out and I never agreed to it. Later Ted informed me that
Honigford “couldn’t pay” so we were just going to forget about him
and so I had to pay $1.5 million. At no time did I agree to pay 1.5
million towards the settlement.
(Fanning Affidavit at 4).
{¶20} In his deposition testimony and trial testimony, Fanning reiterated that,
with respect to the division of responsibility for paying the $4.5 million settlement,
they “never agreed upon who owed what.” (Doc. No. 20, Fanning’s Jan. 25, 2018
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Depo. Tr. at 41). (See Oct. 19, 2018 Tr. at 44). He testified that there was an
agreement that the federal lawsuit would be settled but that “there was no package
put together” concerning how payment for the $4.5 million would be allocated.
(Doc. No. 20, Fanning’s Jan. 25, 2018 Depo. Tr. at 44). Fanning stated that he was
silent throughout the settlement negotiations until it was generally agreed that the
federal lawsuit would be settled for $4.5 million, at which point he “just told them
[he] had all [his] money tied up and there was no way [he] could do it.” (Oct. 19,
2018 Tr. at 39-40, 42-43). Fanning conceded, however, that during the settlement
negotiations, he never said that he was not going to pay anything toward the $4.5
million and he never expressed the “slightest concern on [his] part about paying the
bill.” (Id. at 44-45). He further acknowledged that he owes “some” obligation to
pay a portion of the $4.5 million, but he testified that he never specifically agreed
to pay $1.5 million. (Doc. No. 20, Fanning’s Jan. 25, 2018 Depo. Tr. at 57-59, 70).
{¶21} Fanning disputed Ted’s and Snell’s testimony that the $1.5 million due
in April 2017, along with the $5,000 per month discount for early payment, was
meant to accommodate his inability to pay $1.5 million in 2016. Fanning testified
that all “that was said [was that Ted and Rick would] pay in 30 days * * * and then
six months from now 1.5.” (Oct. 19, 2018 Tr. at 50). He insisted that it was not his
understanding that he would have to pay the $1.5 million due in April 2017 but that
“it * * * just laid out on the table that’s just how the payments would go.” (Id.).
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According to Fanning, “[i]t was never laid out who was going to do what, when and
where. * * * It was just lump numbers.” (Id.). Nevertheless, he testified that it was
“probably” a “perfectly fair conclusion” that, because the Horstmans were paying
$1.5 million each and there was $1.5 million “out there for six months,” he was
responsible for paying the $1.5 million due in April 2017. (Id. at 51).
{¶22} Finally, regarding Honigford’s potential responsibility to pay a portion
of the $4.5 million, Fanning testified that “Ted said that Honigford didn’t have any
money so [they were] not even going to ask him” to pay. (Id. at 56). Fanning stated
that he believed that he should ask about Honigford’s contribution but that he did
not ask and he did not know why he did not ask other than that the Horstmans were
“driving” the settlement negotiations. (Id.). Fanning testified that there was no
conversation during the settlement negotiations about whether Honigford would
contribute to the settlement agreement. (Id. at 58). He testified that he believed that
he suggested that Honigford pay something toward the settlement but he could not
remember when he said so. (Id.). However, Fanning stated that he did not express
concern that Honigford was absent from the settlement discussions. (Id. at 37).
{¶23} In this case, the trial court was tasked with selecting between two
competing narratives. In one, the version urged by the Horstmans, it was clearly
understood by all parties at the time the settlement agreement was finalized that the
$4.5 million payment would be divided equally between Ted, Rick, and Fanning
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and that Honigford would not be liable for any share of the $4.5 million. In the
other, promoted by Fanning, the parties agreed that $4.5 million would be paid to
Lynx but there was no understanding as to who would be responsible for paying
what portion of the $4.5 million. Ultimately, the trial court credited the Horstmans’
version of events over Fanning’s, and as detailed above, there is ample evidence in
the record supporting the trial court’s decision to do so. Therefore, the trial court’s
conclusion that Fanning incurred a $1.5 million obligation under the settlement
agreement and that he should reimburse the Horstmans for paying his obligation is
{¶24} In addition to arguing that the trial court’s judgment is against the
manifest weight of the evidence, Fanning also argues that the trial court’s judgment
is contrary to law. First, Fanning argues that the trial court’s judgment is contrary
to law because it is based, at least in part, on the trial court’s incorrect legal
conclusion that Honigford “was an employee of the business and would not have
responsibility to contribut[e] to the settlement.” (Doc. No. 56). Fanning’s argument
is without merit. Assuming (without deciding) that Fanning is correct that the trial
court erred by concluding that Honigford would not have responsibility to contribute
to the settlement because he was merely an employee of Ultimate Systems, such
error would have no impact on whether Honigford has a responsibility to pay any
part of the $4.5 million. Here, Honigford’s liability, or lack thereof, is not rooted in
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general principles of employment or agency law. Rather, Honigford is not
responsible for paying a portion of the $4.5 million settlement because the parties
agreed that Honigford would bear no responsibility for any part of the $4.5 million.
Thus, even if Honigford would be liable under the default rules of employment or
agency law, the parties, through their arrangement, bypassed those rules.
{¶25} Furthermore, Fanning argues that the trial court’s judgment is contrary
to law because any oral agreement he may have made to pay $1.5 million is
unenforceable under R.C. 1335.05, Ohio’s Statute of Frauds. Specifically, Fanning
argues that any promise to pay Lynx $1.5 million would necessarily include a
promise to pay part of Honigford’s share of the $4.5 million settlement figure.
(Appellant’s Brief at 13-14). He contends that “[b]y agreeing to let Honigford out
without paying a dime, [he] would not have been serving his own business or
pecuniary interest * * *.” (Id. at 14). According to Fanning, “any promise * * * to
pay [Honigford’s] share would have needed to be in writing and signed pursuant to
R.C. 1335.05.” (Id.).
{¶26} Fanning’s argument is misplaced. R.C. 1335.05 provides:
No action shall be brought whereby to charge the defendant, upon a
special promise, to answer for the debt, default, or miscarriage of
another person * * * unless the agreement upon which such action is
brought, or some memorandum or note thereof, is in writing and
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signed by the party to be charged therewith or some other person
thereunto by him or her lawfully authorized.
Thus, the existence of a promise to answer for a “debt, default, or miscarriage of
another person” is essential to the applicability of R.C. 1335.05. Under the trial
court’s factual findings, which, as discussed above, are supported by competent,
credible evidence, Honigford did not incur any debt in connection with the federal
lawsuit. The entire debt owed to Lynx, $4.5 million, arose from the settlement
agreement and was divided equally between Fanning and the Horstmans. Therefore,
Fanning’s assent to paying $1.5 million was not a promise to answer for the debt of
another; it was a promise to pay his own debt and his own debt alone.
{¶27} Fanning’s assignment of error is overruled.
{¶28} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.
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