[Cite as Lyon Revocable Trust v. Berry, 2025-Ohio-425.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
RENA LYON REVOCABLE TRUST, CASE NO. 8-24-07 PLAINTIFF-APPELLANT,
v.
TRENT BERRY, ET AL. OPINION
DEFENDANTS-APPELLEES.
Appeal from Logan County Common Pleas Court General Division Trial Court No. CV 22 12 0344
Judgment Reversed and Cause Remanded
Date of Decision: February 10, 2025
APPEARANCES:
Anthony C. Will for Appellant
Kaylee R. Price for Appellees Case No. 8-24-07
ZIMMERMAN, J.
{¶1} Plaintiff-appellant, the Rena Lyon Revocable Trust (“Lyon Trust”),
appeals the judgment of the Logan County Court of Common Pleas dismissing its
amended complaint against defendants-appellees, Trent Berry (“Trent”) and Faith
Berry (“Faith”) (collectively, “defendants”). For the reasons that follow, we
reverse.
{¶2} This case stems from the sale of property by Rena Lyon (“Lyon”), in
her capacity as co-trustee of the Lyon Trust, to the defendants under a residential
purchase agreement that was executed on October 28, 2022 for $450,000.00.
Except for a John Deere tractor, the residential purchase agreement did not include
the sale of any other personal property. The residential purchase agreement
provides, in its relevant part, that
XII. TIME. Time is of the essence. All understandings between the Parties are incorporated in this Agreement. The Parties intend its terms as a final, complete and exclusive expression of their Agreement with respect to its subject matter and they may not be contradicted by evidence of any prior agreement or contemporaneous oral agreement.
...
XV. ENTIRE AGREEMENT. This agreement with any attached addendums or disclosures shall supersede any and all other prior understandings and agreements, either oral or in writing, between the Parties with respect to the subject matter hereof and shall constitute the sole and only agreements between the Parties with respect to the said Property. All prior negotiations and agreements between the
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Parties with respect to the Property hereof are merged into this Agreement. Each Party to this Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any Party or by anyone acting on behalf of any Party, which are not embodied in this Agreement and that any agreement, statement or promise that is not contained in this agreement shall not be valid or binding or of any force or effect.
(Emphasis in original.) (Doc. No. 51, Ex. A).
{¶3} Notwithstanding that agreement, the Lyon Trust alleged that, in
conjunction with the negotiation for the sale of the residence, the parties also
negotiated a separate agreement regarding Lyon’s personal property. This
agreement provided that the defendants would store Lyon’s personal belongings at
the residence until her new Kentucky residence was completed in exchange for a
fee of (approximately) $80,000.00. Furthermore, under this separate agreement, the
defendants were obligated to pack, load, transport, and unload Lyon’s belongings
to her new residence. However, only Lyon signed the separate agreement and
subsequent to the real property transfer, the defendants initiated the disposal of
Lyon’s personal belongings.
{¶4} On December 29, 2022, the Lyon Trust filed a complaint against the
defendants alleging claims for fraud, unjust enrichment, and conversion. That same
day, the Lyon Trust filed a motion for a temporary restraining order and preliminary
injunction to prevent the defendants from disposing of Lyon’s personal belongings.
The trial court granted the temporary restraining order on February 6, 2023.
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{¶5} On February 13, 2023, the defendants filed their answer along with
counterclaims for fraudulent misrepresentation, breach of contract, and unjust
enrichment. That same day, the defendants filed a motion to set aside the temporary
restraining order.
{¶6} Following a hearing on February 13, 2023, the trial court’s magistrate
vacated the temporary restraining order after the parties came to an agreement
regarding the removal of Lyon’s personal belongings. After a hearing on March 13,
2023, the trial court’s magistrate ordered Lyons to remove the undisputed personal
belongings by May 15, 2023, which she did. Thereafter, the trial court’s magistrate
ordered the parties to submit an itemized statement reflecting the disputed property.
{¶7} On October 19, 2023, the Lyon Trust filed an answer to the defendants’
counterclaims along with an amended complaint, alleging claims for fraud, unjust
enrichment, conversion, and breach of contract.
{¶8} On October 15, 2023, the defendants filed a motion to dismiss the Lyon
Trust’s amended complaint under Civ.R. 12(B)(6), arguing that the residential
purchase agreement constituted the parties’ complete agreement. The defendants
appended the residential purchase agreement, the separate personal property
agreement, and a comparable market analysis to their motion to dismiss. On
November 8, 2023, the Lyon Trust filed a memorandum in opposition to the
defendants’ motion to dismiss its amended complaint, arguing that the parties had
fully performed their obligations under the residential purchase agreement and that
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the agreement regarding Lyon’s personal belongings was a separate and distinct
contract. On November 14, 2023, the defendants filed their reply to the Lyon
Trust’s memorandum in opposition to their motion to dismiss the amended
complaint.
{¶9} On December 29, 2023, the trial court granted the defendants’ motion
to dismiss the amended complaint under Civ.R. 12(B)(6). (Doc. No. 54). Although
the defendants’ counterclaims remain pending, the trial court certified that there is
no just reason for delay under Civ.R. 54(B) on January 23, 2024.
{¶10} On February 21, 2024, the Lyon Trust filed a notice of appeal.
Subsequently, on March 25, 2024, the defendants filed a motion to dismiss the Lyon
Trust’s appeal in this court, arguing that the appeal had been rendered moot by a
February 9, 2024 settlement agreement. In their motion, the defendants
alternatively requested that this court stay the Lyon Trust’s appeal and remand the
case to the trial court for a determination regarding the settlement agreement’s
enforceability. On April 18, 2024, this court denied the defendants’ motion to
dismiss the Lyon Trust’s appeal but granted their alternative request to stay the
appeal and remand the case to the trial court for a determination of the settlement
agreement’s enforceability. Following a hearing on August 16, 2024, the trial court
on August 30, 2024 denied the defendants’ motion to enforce the settlement
agreement, finding that the parties’ agreement extended only to the dismissal of the
defendants’ claims against the Lyon Trust in exchange for $35,000.00, and did not
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include a waiver of the Lyon Trust’s right to appeal the trial court’s December 29,
2023 entry.
{¶11} The Lyon Trust raises five assignments of error for our review.
Though they did not file a cross-appeal, the defendants raise a defensive cross-
assignment of error. We will begin by addressing the Lyon Trust’s assignments of
error together, followed by the defendants’ cross-assignment of error.
Lyon Trust’s First Assignment of Error
The Trial Court [erred] as a matter of law by applying the Parole Evidence Rule to bar admission of any evidence in support of the parties’ separate storage/moving agreement, resulting in the dismissal of Counts Two and Four of the Plaintiff’s Amended Complaint (unjust enrichment and breach of contract, respectively) for failure to state a claim upon which relief may be granted.
Lyon Trust’s Second Assignment of Error
The Trial Court [erred] as a matter of law in applying the Parole Evidence Rule to a claim based in equity, to wit: unjust enrichment.
Lyon Trust’s Third Assignment of Error
The trial Court [erred] as a matter of law in applying the Parole Evidence Rule to bar admission of any evidence in support of the Plaintiff’s fraud claim, resulting in the dismissal of Count 1 of the Plaintiff’s Amended Complaint (fraud) for failure to state a claim upon which relief may be granted.
Lyon Trust’s Fourth Assignment of Error
The trial Court [erred] as a matter of law in dismissing Count 3 of the Plaintiff’s Amended Complaint (conversion).
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Lyon Trust’s Fifth Assignment of Error
The trial Court [erred] as a matter of law by failing to convert the Defendants’ Motion to Dismiss to a Motion for Summary Judgment and by failing to follow the notice and evidence procedures required by Civ.R. 56, et. seq.
{¶12} The Lyon Trust’s assignments of error challenge the trial court’s
decision granting the defendants’ Civ.R. 12(B)(6) motion to dismiss. First, in its
fourth and fifth assignments of error, the Lyon Trust argues that the trial court
improperly considered evidence outside the four corners of the amended complaint.
Next, in its first, second, and third assignments of error, the Lyon Trust contends
that the trial court erred by applying the parol evidence rule based on its
consideration of the residential purchase agreement, thereby improperly barring the
Lyon Trust’s claims for unjust enrichment, breach of contract, and fraud.
Standard of Review
{¶13} “We review de novo a judgment on a Civ.R. 12(B)(6) motion to
dismiss for failure to state a claim upon which relief can be granted.” Bd. of Health
of Defiance Cty. v. McCalla, 2012-Ohio-4107, ¶ 33 (3d Dist.). “Under de novo
analysis, we are required to ‘accept all factual allegations of the complaint as true
and draw all reasonable inferences in favor of the nonmoving party.’” McBroom v.
Safford, 2012-Ohio-1919, ¶ 9 (10th Dist.), quoting Grey v. Walgreen Co., 2011-
Ohio-6167, ¶ 3 (8th Dist.).
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Analysis
{¶14} “Before responding to a complaint by answering, Civ.R. 12(B)(6)
allows a party to file a motion to dismiss asserting that the complaint fails to state a
claim upon which relief may be granted.” Pond v. E & E Towing & Recovery, LLC,
2024-Ohio-800, ¶ 16 (10th Dist.). “A motion to dismiss under Civ.R. 12(B)(6) ‘is
a procedural mechanism that tests the sufficiency of the allegations in the
complaint.’” Id., quoting State Auto. Mut. Ins. Co. v. Titanium Metals Corp., 2006-
Ohio-1713, ¶ 8. “In order for a trial court to grant a motion to dismiss for failure to
state a claim upon which relief can be granted, it must appear ‘beyond doubt from
the complaint that the plaintiff can prove no set of facts entitling her to relief.’”
McBroom at ¶ 7, quoting Grey at ¶ 3. “[A]s long as there is a set of facts, consistent
with the plaintiff’s complaint, which would allow the plaintiff to recover, the court
may not grant a defendant’s motion to dismiss.” York v. Ohio State Hwy. Patrol,
60 Ohio St.3d 143, 144 (1991).
{¶15} “‘When reviewing a Civ.R. 12(B)(6) motion, courts are confined to
the allegations contained in the complaint.’” Betscher v. Governing Bd. of Putnam
Cty. Educational Serv. Ctr., 2015-Ohio-4727, ¶ 9 (3d Dist.), quoting Cooper v.
Highland Cty. Bd. Of Commrs., 2002-Ohio-2353, ¶ 9 (4th Dist.). “If a motion to
dismiss refers to, or depends on matters outside the pleadings, the motion to dismiss
must be converted to a motion for summary judgment under Civ.R. 56(C).” Id. at ¶
10, quoting Cooper at ¶ 9. “‘If the court converts the motion to dismiss to a motion
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for summary judgment, the parties must be given notice and a reasonable
opportunity to present all of the available evidence that Civ.R. 56(C) permits.’” Id.,
quoting Cooper at ¶ 9. See also Brust v. Franklin Cty. Sheriff’s Office, 2015-Ohio-
5090, ¶ 7 (10th Dist.) (“‘However, a trial court may not, on its own motion, convert
a Civ.R. 12(B)(6) motion to dismiss to a motion for summary judgment and thus
dispose of it without giving notice to the parties of its intent to do so and fully
complying with Civ.R. 12(B) and Civ.R. 56 in its considerations.’”), quoting Powell
v. Vorys, Sater, Seymour & Pease, 131 Ohio App.3d 681, 684-685 (10th Dist. 1998).
“‘Failure to notify the parties that the court is converting a Civ.R. 12(B)(6) motion
to dismiss into one for summary judgment is, itself, reversible error.’” Brust at ¶ 7,
quoting Powell at 685.
{¶16} In this case, the trial court granted the defendants’ motion to dismiss
the amended complaint under Civ.R. 12(B)(6), determining that the Lyon Trust
could prove no set of facts that would entitle it to relief. Specifically, the trial court
determined that the Lyon Trust’s claims for unjust enrichment, breach of contract,
and fraud were barred by the parol evidence rule based on the terms of the residential
purchase agreement. Moreover, the trial court dismissed the Lyon Trust’s
conversion claim, finding that, under the March 14, 2023 magistrate’s order, Lyon
had been granted permission to remove her personal belongings from the residence
by May 15, 2023. Particularly, the trial court determined that the Lyon Trust could
not maintain its conversion claim since the magistrate’s order declared that any
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items not removed (or contracted for removal) by that date could be treated as
abandoned property by the defendants.
{¶17} To begin with, the Lyon Trust contends that the trial court erred by
granting the defendants’ Civ.R. 12(B)(6) motion to dismiss because it “categorically
went outside the face of the Amended Complaint in making its ruling on the
Defendants’ Motion to Dismiss.” (Appellant’s Brief at 25). The Lyon Trust asserts
that, if the trial court converted the motion to dismiss into a motion for summary
judgment, it erred by failing to provide notice to the parties of its intent to treat the
motion as a motion for summary judgment. The defendants dispute the Lyon
Trust’s position, arguing that the trial court properly considered the residential
purchase agreement, the personal property agreement, and the comparable market
analysis because those documents were incorporated by reference in the Lyon
Trust’s amended complaint.1
{¶18} The defendants’ reliance on those documents to support their motion
to dismiss is misplaced. While courts may consider documents that are attached or
incorporated into the complaint, the Supreme Court of Ohio has expressly rejected
expanding the evidence which may be considered for purposes of determining a
Civ.R. 12(B)(6) motion to dismiss. See State ex rel. Ames v. Baker, Dublikar, Beck,
1 Because Ohio is a notice pleading state, a complaint need only “a short and plain statement of the claim showing that the party is entitled to relief.” Civ.R. 8(A). Thus, even though it did not append any contract to the compliant, the Lyon Trust’s allegations in the complaint adequately state a cause of action. See Ri’Chard v. Bank of Am., 2020-Ohio-4688, ¶ 12 (1st Dist.) (“Accordingly, viewing the allegations in the complaint in a light most favorable to Ri’Chard and drawing reasonable inferences, we find that her pleadings, while inartful, were adequate as to her cause of action.”).
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Wiley & Mathews, 2023-Ohio-2668, ¶ 16 (asserting that the Ohio Supreme Court
“has not adopted the broader standard” used by federal courts “for deciding a Civ.R.
12(B)(6) motion”). In this case, the residential purchase agreement, the personal
property agreement, and the comparable market analysis, while potentially relevant
to the dispute, were not attached or incorporated into the amended complaint.
Therefore, absent converting the motion to dismiss into a motion for summary
judgment, the trial court was precluded from considering those evidentiary materials
in its Civ.R. 12(B)(6) analysis. Accord Pond, 2024-Ohio-800, at ¶ 20 (10th Dist.).
{¶19} Based on our review of the trial court’s analysis, it is evident that the
trial court explicitly considered the residential purchase agreement to reach its
conclusion that such agreement precluded the Lyon’s Trust’s claims for unjust
enrichment, breach of contract, and fraud. Compare Timberlake Apts. LLC v.
Underwriters at Lloyds London, 2022-Ohio-29, ¶ 19 (2d Dist.) (determining that “in
finding that coverage issues remained unresolved, the trial court certainly
considered and credited [the defendant’s] evidentiary materials” without converting
the motion to a motion for summary judgment and providing the plaintiff an
opportunity to respond). By considering evidentiary materials outside of the
complaint, the trial court effectively converted the defendants’ motion to dismiss
into a motion for summary judgment. Importantly, the record is clear that the trial
court failed to notify the parties of its intention to convert the motion to dismiss into
a motion for summary judgment.
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{¶20} Typically, a failure to provide such notice to the parties constitutes
reversible error. However, the defendants dispute the claim of a lack of notice,
arguing that any lack of formal notice should be considered harmless error due to
the Lyon Trust’s sufficient opportunity to respond. Indeed, a trial court’s failure to
provide the required notice that it is converting a motion to dismiss into a motion
for summary judgment can be harmless error if the nonmoving party had a sufficient
opportunity to respond. Sullinger v. Sullinger, 2020-Ohio-5225, ¶ 15 (3d Dist.). In
such situation, “[w]here it is clear from the record that both parties submitted
additional evidence and the nonmoving party had sufficient opportunity to respond,
the trial court’s failure to give notice may be harmless error.” Williams v. MJS
Enterprises, Ltd., 2022-Ohio-3695, ¶ 30 (4th Dist.).
{¶21} Our review of the record reveals that the error was not harmless in this
case. Accord id. at ¶ 31. While the Lyon Trust filed a memorandum in opposition
to the defendants’ motion to dismiss, such pleading (in this case) did not constitute
a meaningful opportunity to respond to summary judgment as contemplated by
Civ.R. 56(C). See Gardner v. Paxton, 2018-Ohio-52, ¶ 13 (4th Dist.). Moreover,
the record lacks any evidence indicating that the trial court conducted a hearing or
notified the Lyon Trust of its ability to submit materials beyond the complaint as
provided by Civ.R. 56, which the Lyon Trust did not do. See Williams at ¶ 31
(concluding that the trial court’s failure to notify the parties that it was converting
the motion to dismiss to a motion for summary judgment was not harmless error
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because “[t]he trial court did not hold an evidentiary hearing” and Williams was not
notified that he could submit Civ.R. 56(C) material beyond the face of the
complaint, [and] he did not do so”).
{¶22} For these reasons, the trial court erred by considering additional
evidence beyond the evidence contained in the amended complaint. It should have
either excluded the evidence or converted the motion to dismiss to a motion for
summary judgment in accordance with Civ.R. 12(B). Accord id. at ¶ 32. Therefore,
we conclude that the trial court erred by dismissing the Lyon Trust’s claims for
unjust enrichment, breach of contract, and fraud. Consequently, the Lyon Trust’s
claims for unjust enrichment, breach of contract, and fraud will remain pending on
remand along with the defendants’ Civ.R. 12(B)(6) motion and supporting
evidentiary materials. If the trial court elects to consider those materials and convert
the motion to a motion for summary judgment, the Lyon Trust will have an
opportunity to present its own evidence and address whether the residential purchase
agreement constitutes the parties’ complete agreement.
{¶23} Having determined that the trial court erred by dismissing the Lyon
Trust’s claims for unjust enrichment, breach of contract, and fraud, we must now
consider whether the trial court erred by dismissing the Lyon Trust’s conversion
claim. “Conversion is the ‘“wrongful exercise of dominion over property to the
exclusion of the rights of the owner, or withholding it from his possession under a
claim inconsistent with his rights.”’” Warnecke v. Chaney, 2011-Ohio-3007, ¶ 15
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(3d Dist.), quoting State ex rel. Toma v. Corrigan, 92 Ohio St.3d 589, 592 (2001),
quoting Joyce v. Gen. Motors Corp., 49 Ohio St.3d 93, 96 (1990). “‘The elements
of conversion are: (1) plaintiff’s ownership or right to possession of the property at
the time of the conversion; (2) defendant’s conversion by a wrongful act or
disposition of plaintiff’s property rights; and (3) damages.’” Id., quoting Miller v.
Cass, 2010-Ohio-1930, ¶ 32 (3d Dist.).
{¶24} The trial court, relying on the March 14, 2023 magistrate’s order,
determined that the Lyon Trust’s conversion claim was ripe for dismissal under
Civ.R. 12(B)(6) because Lyon was permitted to remove her personal belongings by
May 15, 2023, and any property not timely removed by that date could be disposed
of as being abandoned property. While we have discussed that a court generally
may “not rely on documents outside the four corners of the complaint when deciding
a motion to dismiss under Civ.R. 12(B)(6),” there are limited exceptions to the rule.
State ex rel. Castellon v. Gallagher, 2023-Ohio-2964, ¶ 6 (8th Dist.). As relevant
here, “a court may consider evidence and events that causes a case to become
moot—even extrinsic evidence outside of the record” or take “judicial notice of the
pleadings and orders . . . when these are not subject to reasonable dispute, at least
insofar as they affect the present original action.” Id.; State ex rel. Smith v. Mackey,
2024-Ohio-4643, ¶ 28 (10th Dist.).
{¶25} Here, the Lyon Trust does not dispute that Lyon removed her personal
belongings by May 15, 2023, but instead argues that the trial court overlooked the
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portion of the magistrate’s order requiring that any disputed personal property
marked with a red dot sticker not be removed from the residence and that a hearing
be scheduled to resolve the dispute. Thus, since items remain in dispute, the Lyon
Trust contends that the trial court erred by dismissing its conversion claim. The
defendants counter that the Lyon Trust failed to specify the particular personal
property items allegedly being wrongfully withheld by the defendants, as the
magistrate’s order does not determine ownership of the “red dot” items but simply
maintains the status quo.
{¶26} Even though the trial court could rely on the magistrate’s order to
determine whether the Lyon Trust’s conversion claim was ripe for dismissal under
Civ.R. 12(B)(6), the magistrate’s order did not render the claim moot or otherwise
resolve the claim. Notably, the magistrate’s order deferred the resolution of the
disputed items, identified by a red dot sticker, pending a future determination of
ownership. Indeed, contrary to the defendants’ argument on appeal, the Lyon Trust
was not required to establish actual ownership of any personal property it claimed
to own for its conversion claim to survive dismissal under Civ.R. 12(B)(6). Accord
Pond, 2024-Ohio-800, at ¶ 21 (10th Dist.) (“Because ‘a plaintiff is not required to
prove his or her case at the pleading stage,’ the Ponds were not required to establish
actual ownership of any vehicle they claimed to own for their claims to survive
dismissal under Civ.R. 12(B)(6).”), quoting York, 60 Ohio St.3d at 144-145.
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{¶27} Consequently, based on the question of legal ownership of the
disputed items, dismissal of the Lyon Trust’s conversion claim under Civ.R.
12(B)(6) was premature. Compare id. at ¶ 23 (concluding that the trial court erred
by dismissing the Ponds’ conversion claim under Civ.R. 12(B)(6) because “the
Ponds adequately stated a claim for conversion”), citing Bugoni v. C&M Towing,
2012-Ohio-4508, ¶ 9 (10th Dist.) (reversing dismissal of the conversion claim under
Civ.R. 12(B)(6) because the plaintiff’s allegation that “defendants took his vehicle
without his consent and [were] refusing to return it unless he pays them money”
sufficiently stated a claim for conversion). Therefore, we conclude that the trial
court erred by dismissing the Lyon Trust’s conversion claim.
{¶28} For these reasons, the Lyon Trust’s fourth and fifth assignments of
error are sustained.2
The Defendants’ Assignment of Error
Additional Assignment of Error in Support of Affirmants [sic] Pursuant to O.R.C. Section 2505.22
{¶29} The defendants raise a defensive cross-assignment of error under R.C.
2505.22. “‘An appellee who has not filed a notice of appeal (cross-appeal) can file
cross-assignments of error under R.C. 2505.22.’” Byers v. Robinson, 2008-Ohio-
2 Based on our decision to sustain the Lyon Trust’s fifth assignment error on procedural grounds, we decline to address the substantive merits of the Lyon Trust’s first, second, and third assignments of error. Accord Williams v. MJS Enterprises, Ltd., 2022-Ohio-3695, ¶ 33 (4th Dist.) (declining “to address the substantive merits of Williams’s second assignment of error because [the court] sustain[ed] it on other procedural grounds”).
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4833, ¶ 49 (10th Dist.), quoting Chapman v. Ohio State Dental Bd., 33 Ohio App.3d
324, 327 (9th Dist. 1986), and citing R.C. 2505.22 and App.R. 3(C)(2). “Such
assignments of error, however, ‘are only for the limited purpose of preventing the
reversal of the judgment under review.’” Id., quoting Chapman at 327-328.
“Accordingly, while defendants may not use their cross-assignment of error as a
sword, they may use it as a shield in defense of the trial court’s judgment.” Id. at ¶
50. Based on our disposition of the Lyon Trust’s fourth and fifth assignments of
error, resulting in a reversal of the trial court’s decision, we must consider the
defendants’ properly asserted defensive cross-assignment of error. R.C. 2505.22;
Brenneman Bros. v. Allen Cty. Commrs., 2013-Ohio-4635, ¶ 38 (3d Dist.).
{¶30} In their cross assignment of error, the defendants argue that the Lyon
Trust’s appeal has been rendered moot by a February 9, 2024 settlement agreement
between the parties. Specifically, the defendants contend that the trial court erred
by denying their motion to enforce the settlement, maintaining that the agreement’s
silence regarding the Lyon Trust’s right to appeal does not invalidate its
enforceability.
{¶31} “The standard of review to be applied to a ruling on a motion to
enforce a settlement agreement depends primarily on the question presented.”
Kaple v. Benchmark Materials, 2004-Ohio-2620, ¶ 4 (3d Dist.). “Generally, if a
motion to enforce a settlement agreement surrounds an agreement of undisputed
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terms, the issue is one of contract law; thus the standard of review is whether the
trial court erred as a matter of law.” Moore v. Johnson Industries Corp., 1997 WL
771015, *12 (10th Dist. Dec. 11, 1997). See also Kaple at ¶ 4 (“If the dispute is a
question of law, an appellate court must review the decision de novo to determine
whether the trial court’s decision to enforce the settlement agreement is based upon
an erroneous standard or a misconstruction of the law.”). “De novo review requires
us to conduct an independent review of the record without deference to the trial
court’s decision.” Matrix Technologies, Inc. v. Kuss Corp., 2008-Ohio-1301, ¶ 11
(6th Dist.).
{¶32} “A settlement agreement is viewed as a particularized form of a
contract.” Brotherwood v. Gonzalez, 2007-Ohio-3340, ¶ 11 (3d Dist.). “It is a
contract designed to terminate a claim by preventing or ending litigation, and such
agreements are valid and enforceable by either party.” Id. “Therefore, the
interpretation of a settlement agreement is governed by the law of contracts.” Id.
{¶33} In the present case, the validity of the settlement agreement is not in
dispute. Rather, the parties’ disagreement centers on the interpretation of the
agreement’s terms and whether those terms preclude the Lyon Trust from pursuing
an appeal of the trial court’s order dismissing its claims. Consequently, since the
issue before us concerns contract interpretation, our role is to give effect to the intent
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of the contracting parties. Reinhart v. Fostoria Plumbing, Heating & Elec. Supply,
Inc., 2010-Ohio-4825, ¶ 16 (3d Dist.).
{¶34} “‘Generally, courts presume that the intent of the parties to a contract
resides in the language they chose to employ in the agreement.’” Graham v.
Boerger, 2015-Ohio-3261, ¶ 13 (2d Dist.), quoting First Capital Corp. v. G & J
Industries, Inc., 131 Ohio App.3d 106, 115 (8th Dist. 1999). “‘When the terms in a
contract are unambiguous, courts cannot in effect create a new contract by finding
an intent not expressed in the clear language employed by the parties.’” Id. at ¶ 13,
quoting Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 246 (1978). “‘[I]f
no ambiguity exists, the terms of the contract must simply be applied without
resorting to methods of construction and interpretation.’” Id., quoting Buckeye
Check Cashing, Inc. v. Madison, 2008-Ohio-5124, ¶ 12 (8th Dist.). Therefore, “‘[i]f
a contract is clear and unambiguous, then its interpretation is a matter of law and
there is no issue of fact to be determined.’” Barhorst, Inc. v. Hanson Pipe & Prods.
Ohio, Inc., 2006 Ohio-6858, ¶ 10 (3d Dist.), quoting Inland Refuse Transfer Co. v.
Browning Ferris Industries of Ohio, Inc., 15 Ohio St.3d 321, 322 (1984).
{¶35} Here, the settlement agreement is clear and unambiguous. That is, the
settlement agreement was intended to finalize only the defendants’ claims. Indeed,
the settlement agreement provides, in its relevant part, as follows:
The parties have each filed claims within a civil action [and have] denied the claims asserted by the other.
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NOW THEREFORE, with the intent to be legally bound, and in consideration of the terms and conditions set forth below, the Parties wish to fully and finally resolve all issues pertaining to this matter, and therefore agree as follows:
1. Ms. Lyon agrees to pay to the [defendants] the sum of $35,000.00.
2. In exchange for the promise to pay described above . . . the [defendants] shall cause a dismissal with prejudice to be filed in the Action, dismissing all claims against Ms. Lyon.
3. Release Clause
The [defendants], for and in consideration of this settlement and other good and valuable consideration . . . do . . . fully and forever release, settle, cancel, acquit and discharge Ms. Lyon . . . from any and all manner of claims, demands, causes of action, liabilities, damages, actions, asserted or unasserted, in law or in equity, which the [defendants] had, now have, or may have against Ms. Lyon, known or unknown, including but not limited to all claims which were raised or could have been raised in connection with the Action.
(Emphasis in original.) (Ex. A).
{¶36} While the settlement agreement contains general language stating the
parties’ intent “to fully and finally resolve all issues pertaining to this matter,” the
agreement’s subsequent, express terms confine its scope only to the defendants’
claims. (Id.). The absence of any language specifically addressing the Lyon Trust’s
claims demonstrates that the parties did not intend to resolve those claims through
the agreement. To construe the agreement as encompassing the Lyon Trust’s claims
would require the trial court to improperly rewrite the agreement by adding terms
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not agreed upon by the parties. See Graham at ¶ 15. This interpretation is further
bolstered by correspondence between the parties, wherein the defendants
acknowledged their intention to settle only their claims following the trial court’s
dismissal of the Lyon Trust’s claims. Accordingly, we conclude that the trial court
properly denied the defendants’ motion to enforce the settlement agreement.
{¶37} The defendants’ cross-assignment of error is therefore overruled.
{¶38} Having found error prejudicial to the appellant herein in the particulars
assigned and argued in assignments of error four and five, we reverse the judgment
of the trial court and remand for further proceedings consistent with this opinion.
WALDICK, P.J. and WILLAMOWSKI, J., concur.
/hls
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