[Cite as Ogle v. Trustee of Ogle Irrevocable Trust, 2024-Ohio-2280.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
CHARLES R. OGLE JUDGES: Hon. Andrew J. King, P.J. Plaintiff-Appellant Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2023 CA 00046 TRUSTEE of the CHARLES R. OGLE IRREVOCABLE TRUST DATED 10/21/2014, aka MICHELE R. MYERS, OPINION et al.
Defendants-Appellees
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Probate Division, Case No. 2022- 0001 A
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 13, 2024
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee Trustee Myers
CHARLES R. OGLE CHARLES M. ELSEA 11575 Donaldson Road MICKELLEA M. TENNIS Rockbridge, Ohio 43149 109 North Broad Street, Suite 200 P. O. Box 130 For Intervening Def.-Appellee Davenport Lancaster, Ohio 43130
RYAN J. SHEPLER 9 East Second Street Logan, Ohio 43138 Fairfield County, Case No. 2023 CA 00046 2
Wise, J.
{¶1} Appellant Charles R. Ogle appeals the August 3, 2022, decision of the Court
of Common Pleas, Probate Division, Fairfield County, enforcing the settlement agreement
of the parties.
{¶2} Appellees are Michele R. Myers, Trustee of the Charles R. Ogle Irrevocable
Trust dated 10/21/2014 and Melissa Davenport.
STATEMENT OF THE FACTS AND CASE
{¶3} This action arises from a settlement agreement between Appellant Charles
R. Ogle and Appellees Michele R. Myers and Melissa Davenport.
{¶4} For purposes of this appeal, the relevant facts and procedural history are
as follows:
{¶5} On or about November 7, 2020, Decedent Charles E. Ogle died in Fairfield
County, Ohio, leaving behind his three children, Charles R. Ogle, Michele R. Myers, and
Melissa S. Davenport. Prior to his death, the Decedent had established the Charles E.
Ogle Irrevocable Trust dated 10/21/2014, wherein his three children were named equal
beneficiaries, and Myers was named Trustee and the primary fiduciary in the
accompanying estate planning documents. The primary asset of the Trust was a family
farm.
{¶6} On January 10, 2022, Plaintiff-Appellant, Charles R. Ogle, filed a Complaint
in the Fairfield County Court of Common Pleas, Probate Division, against Michele R.
Myers, Trustee of the Charles E. Ogle Irrevocable Trust Dated 10/21/2014, asserting (1)
breach of fiduciary duties, and (2) declaratory relief regarding certain personal property,
alleging that the Trustee wrongfully possessed and/or dispossessed the following items Fairfield County, Case No. 23 CA 00046 3
(a) a .30-06 Browning rifle with a 3x9 adjustable Weaver scope, (b) certain cattle trophies
and banners, (c) a family heirloom farm bell sold by the Trustee, and (d) a .357 Magnum
handgun allegedly owned by Melissa Davenport.
{¶7} On February 8, 2022, Defendant-Appellee Myers filed an Answer and
Counterclaim. In her Counterclaim, Myers alleged that Ogle had engaged in an
intentional, concerted scheme to use litigation and bullying tactics to force her to,
among/other things, distribute farm property held in Trust to him in kind. The Counterclaim
identified various contested matters relating to the parties’ father’s Estate and Trust in
multiple courts over multiple counties. Myers sought a judicial declaration that she had
faithfully and lawfully administered the Trust and an Order relieving her of her fiduciary
duties; the Counterclairn also sought authorization to assess litigation counsel attorneys’
fees against Plaintiffs interest in the Trust.
{¶8} On May 4, 2022, the parties all convened at the Fairfield County Probate
Court for a status conference to discuss the remaining issues in the Trust administration.
After an hour-long recess during which Ogle and Myers' counsel conferred, the parties
reached and signed a binding settlement agreement establishing a course of resolution
for complete administration of the Trust. The Settlement Agreement was attached to an
Entry entered into the Record, and the terms were reviewed and discussed on the record
before the court. The court was satisfied that the Settlement Agreement’s terms were
reached willingly, voluntarily, and intelligently, and that the terms were comprehensive,
unambiguous, and understood by all of the parties. (See August 3, 2022, Judgment Entry
Enforcing Settlement). Fairfield County, Case No. 23 CA 00046 4
{¶9} Item six of the Settlement Agreement required the parties to enter a consent
judgment which, among other things, dismissed Counts One and Two of the Complaint
and granted Judgment to Myers on her Counterclaim, with certain provisions included
there. Counsel for the Trustee represented to the court at the hearing on May 4 that said
judgment entry would be submitted “in the next week or two”.
{¶10} No consent judgment entry was filed. Instead, on June 24, 2022, Melissa
Davenport, the sister of Plaintiff-Appellant and Defendant-Appellee Myers and the third
of the three beneficiaries of the subject Trust, moved to intervene as a Defendant, and
Davenport and Myers filed a Joint Motion to Enforce Settlement.
{¶11} On August 3, 2022, the trial court filed its Judgment Entry Enforcing
Settlement, wherein it stated:
3. On May 4, 2022, the Court held a status conference, at which
time a settlement agreement was presented to the Court (the “Settlement
Agreement”). The Settlement Agreement was attached to an Entry entered
into the Record, and the terms were reviewed and discussed on the record
before the Court. The Entry remains of record in this case, and the
Settlement Agreement’s terms need not be repeated in full here. The Court
was satisfied that the Settlement Agreement’s terms were reached willingly,
voluntarily, and intelligently. The Court was also satisfied that the
Settlement Agreement’s terms were comprehensive, unambiguous, and
understood by all parties.
{¶12} (August 3, 2022, JE at 2).
{¶13} The trial court then went on to order the following: Fairfield County, Case No. 23 CA 00046 5
7. To effectuate the Settlement Agreement of the parties,
specifically with respect to Item 1, the Court hereby ORDERS the Trustee
to make a partial distribution to the beneficiaries in the amount of $300,000
within forty-five days of the date of this Judgment.
8. To effectuate the Settlement Agreement of the parties,
specifically with respect to Items 2 and 3, the Court hereby authorizes the
Trustee to liquidate and sell the guns held by the Trustee, or distribute them
in kind, or otherwise administer them in accordance with the terms of the
Trust, including but not limited to, the .30-06 Browning rifle which was the
subject of the Plaintiff’s Complaint, and add the proceeds of sale, if sold, to
the corpus of the Trust and account for the same. This Order does not
prevent the parties from otherwise reaching an agreement between them
with respect to the ultimate distribution, including in kind, of the guns.
9. To effectuate the Settlement Agreement of the parties,
specifically with respect to Items 4 and 5, the Court hereby ORDERS the
Trustee to sell, dispose, or otherwise distribute any other personal property
as outlined in the Settlement Agreement
10. To effectuate the Settlement Agreement of the parties,
specifically with respect to Item 6, the Court hereby:
a. DISMISSES WITH PREJUDICE Counts One and Two of the
Complaint Fairfield County, Case No. 23 CA 00046 6
b. GRANTS JUDGMENT to Defendant/Counterclaimant Michele
Myers, Trustee, and by the agreement of the parties makes the following
findings and declarations
i. Any claims or causes of action relating to any action or inaction
on the part of Michele Myers, Trustee, prior to May 4, 2022 are
hereby adjudicated on the merits and forever barred;
ii. This Court will continue} to retain jurisdiction solely to enforce
the settlement of the parties;
iii. Within forty-five days of this Judgement Entry, the Trustee will
tender a provisional final account to the beneficiaries, and the
beneficiaries will have thirty days thereafter to enter objections
thereto, and if none are tendered or are thereafter determined to be
without merit, the Probate Court will enter a final judgment
terminating the Trust and releasing and forever discharging the
Trustee
c. ORDERS that all litigation expenses, costs, and attorneys’ fees
accrued by the Trustee prior to May 4, 2022 will be charged to the Trust as
a whole.
d. ORDERS that litigation expenses, including attorneys’ fees, after
May 4, 2022, will be charged to the non-prevailing party and chargeable to
their individual share of the Trust
11. The parties have stipulated that Ogle has satisfied the
requirements of Item 7 of the Settlement Agreement. Fairfield County, Case No. 23 CA 00046 7
12. To effectuate the Settlement Agreement of the parties,
specifically with respect to Items 8 and 9, the Court hereby ORDERS the
parties to submit with a final discharging judgment executed agreements in
accordance with those provisions. Should the parties fail to do so, the Court
will adopt reasonable and standard language to effectuate the clear intent
of the parties
{¶14} (August 3, 2022, JE at 2-4).
{¶15} On April 21, 2023, a final account was filed with the Probate Court.
{¶16} On May 30, 2023, Appellant filed objections to the final account.
{¶17} On June 3, 2023, Appellant filed a Motion to Compel Trustee to Produce
Legal Fees Billing Statements.
{¶18} On July 18, 2023, Appellee Myers moved the Probate Court to approve the
Final Account and for an order discharging her as Trustee.
{¶19} On August 1, 2023, Appellant filed a memorandum in opposition.
{¶20} The trial court set the Motions and Objections for hearing to be heard on
September 27, 2023.
{¶21} On September 27, 2023, the trial court filed an entry approving the Final
Account and denying Appellant’s motions.
{¶22} On October 18, 2023, a formal entry, prepared at the request of the trial
court, was adopted by the court and filed.
{¶23} On October 19, 2023, Appellant filed objections to the hearing.
{¶24} Appellant now appeals, assigning the following errors for review: Fairfield County, Case No. 23 CA 00046 8
ASSIGNMENTS OF ERROR
{¶25} “I. THE TRIAL COURT ERRED IN "ENFORCING SETTLEMENT"
(AUGUST 3, 2023 JUDGMENT ENTRY ENFORCING SETTLEMENT), WHEN THE MAY
4, 2022 "RESOLUTION" DRAFTED BY TRUSTEE'S ATTORNEY, WAS NOT AN
ENFORCEABLE "SETTLEMENT AGREEMENT".
{¶26} “II. THE TRIAL COURT ERRED IN GRANTING TRUSTEE'S JOINT
MOTION TO ENFORCE SETTLEMENT (AUGUST 3, 2023 JUDGMENT ENTRY
ENFORCING SETTLEMENT), CONTRARY TO PLAINTIFF'S OPPOSITION TO JOINT
MOTION TO ENFORCE SETTLEMENT AGREEMENT AND REQUEST FOR
MEDIATION WITH ATTACHED AFFIDAVIT, WITHOUT FIRST CONDUCTING AN
EVIDENTIARY HEARING REGARDING DISPUTED MEANING OF LANGUAGE, AND
MISREPRESENTATION OF TRUSTEE'S COUNSEL SET FORTH IN PLAINTIFF'S
OPPOSITION.
{¶27} “III. THE TRIAL COURT ERRED IN "AUTHORIZ[ING]" IN ITS AUGUST 3,
2023 JUDGMENT ENTRY ENFORCING SETTLEMENT, TRUSTEE TO "SELL"
CHARLES R. OGLE'S ".30-06 BROWNING RIFLE".
{¶28} “IV. THE TRIAL COURT ERRED IN ORDERING IN ITS AUGUST 3, 2023
JUDGMENT ENTRY ENFORCING SETTLEMENT, THAT "LITIGATION EXPENSES,
INCLUDING ATTORNEYS' FEES, AFTER MAY 4, 2022", "BE CHARGED" AGAINST
CHARLES R. OGLE'S "INDIVIDUAL SHARE OF THE TRUST".
{¶29} “V. THE TRIAL COURT ERRED IN FAILING TO APPOINT A MEDIATOR
REQUESTED BY CHARLES R. OGLE IN HIS PLAINTIFF'S OPPOSITION TO JOINT Fairfield County, Case No. 23 CA 00046 9
MEDIATION.
{¶30} “VI. THE TRIAL COURT ERRED IN STATING AND FILING OF RECORD
AS TRUE, THAT "SHEPLER FOR MELISSA DAVENPORT" WAS "PRESENT" AT THE
SEPTEMBER 27, 2023 HEARING ON TRUSTEE'S MOTION FOR APPROVAL OF
FINAL ACCOUNT, IN ITS SEPTEMBER 27, 2023 ENTRY
{¶31} “VII. THE TRIAL COURT ERRED IN "APPROV[ING]" TRUSTEE'S "FINAL
ACCOUNT" (OCTOBER 18, 2023 ENTRY GRANTING MICHELE MYERS' MOTION
FOR APPROVAL OF FINAL ACCOUNT AND ORDER DISCHARGING TRUSTEE),
WHEN IT MADE NO DETERMINATION THAT TRUSTEE WAS AUTHORIZED
PURSUANT TO THE TRUST OR ANY LAW, TO PAY ATTORNEY FEES AND COSTS
FOR PROCEEDINGS IN ESTATE OF CHARLES E. OGLE, DECEASED, ON BEHALF
OF FIDUCIARY, MELISSA S. DAVENPORT, ATTORNEY FEES FOR
REPRESENTATION OF MICHELE R. MYERS, INDIVIDUALLY, IN PROCEEDINGS IN
ESTATE OF CHARLES E. OGLE, DECEASED, REIMBURSEMENT OF ALLEGED
EXPENSES FOR CHARLES E. OGLE, DECEASED, INDIVIDUALLY, TO MICHELE R.
MYERS, INDIVIDUALLY, OR ANY/ALL PAYMENTS TRUSTEE MADE FOR DEBTS
INCURRED BY CHARLES E. OGLE, DECEASED, OR DEPOSIT INTO THE TRUST
CHECKING ACCOUNT MONIES DUE AND PAYABLE TO THE ESTATE OF CHARLES
E. OGLE, DECEASED, WHICH HAD NOT PRESENTED BY THE ESTATE FIDUCIARY
IN ESTATE PROCEEDINGS.
{¶32} “VIII. THE TRIAL COURT ERRED IN "APPROV[ING]" TRUSTEE'S "FINAL
ACCOUNT" (OCTOBER 18, 2023 ENTRY GRANTING MICHELE MYERS' MOTION Fairfield County, Case No. 23 CA 00046 10
FOR APPROVAL OF FINAL ACCOUNT AND ORDER DISCHARGING TRUSTEE),
WHEN THERE WAS NO DETERMINATION REGARDING OWNERSHIP OF
PERSONAL PROPERTY ITEMS TRUSTEE ALLEGED IN "FINAL ACCOUNT" AS
TRUST ASSETS, AS SET FORTH IN PLAINTIFF'S OBJECTION TO TRUSTEE'S
"FINAL ACCOUNT" AND RENEWED MOTION FOR INJUNCTION, OR THOSE
IDENTIFIED IN CHARLES R. OGLE'S APRIL 27, 2023 LETTER TO ATTORNEY
SITTERLEY, INCLUDING, BUT NOT LIMITED TO, CHARLES R. OGLE'S .30-06
BROWNING RIFLE WITH A 3 X 9 ADJUSTABLE WEAVER SCOPE AND CHARLES R.
OGLE'S "WALNUT LUMBER", ASSERTED IN TRUSTEE'S "FINAL ACCOUNT" AS
TRUST ASSETS.
{¶33} “IX. THE TRIAL COURT ERRED IN "APPROV[ING]" TRUSTEE'S "FINAL
ACCOUNT" (OCTOBER 18, 2023 ENTRY GRANTING MICHELE MYERS' MOTION
FOR APPROVAL OF FINAL ACCOUNT AND ORDER DISCHARGING TRUSTEE),
WHEN THE SAME HAD NOT BEEN SIGNED OR SWORN TO BY THE TRUSTEE AS
TRUE AND ACCURATE.
{¶34} “X. THE TRIAL COURT ERRED IN "APPROV[ING]" TRUSTEE'S "FINAL
ACCOUNT" (OCTOBER 18, 2023 ENTRY GRANTING MICHELE MYERS' MOTION
FOR APPROVAL OF FINAL ACCOUNT AND ORDER DISCHARGING TRUSTEE),
WHEN ANY/ALL ATTORNEY FEES BILLING STATEMENTS WERE NOT PROVIDED
THE TRIAL COURT, OR TO CHARLES R. OGLE, AS REQUESTED OF ATTORNEY
SITTERLEY ON APRIL 27, 2023.
{¶35} “XI. THE TRIAL COURT ERRED IN APPROVING TRUSTEE'S "FINAL
ACCOUNT" (OCTOBER 18, 2023 ENTRY GRANTING MICHELE MYERS' MOTION Fairfield County, Case No. 23 CA 00046 11
FOR APPROVAL OF FINAL ACCOUNT AND ORDER DISCHARGING TRUSTEE), FOR
ATTORNEY FEES CHARGED AGAINST CHARLES R. OGLE'S BENEFICIARY SHARE
WITHOUT DOCUMENTATION IN SUPPORT OF THE SAME ALLEGED IN TRUSTEE'S
"FINAL ACCOUNT", AND ORDERING/AUTHORIZING TRUSTEE TO CHARGE
"ADDITIONAL" LITIGATION ATTORNEY'S FEES AND EXPENSES AGAINST
CHARLES R. OGLE'S BENEFICIARY SHARE.
{¶36} “XII. THE TRIAL COURT ERRED IN DETERMINING (OCTOBER 18, 2023
ENTRY GRANTING MICHELE MYERS' MOTION FOR APPROVAL OF FINAL
ACCOUNT AND ORDER DISCHARGING TRUSTEE), THAT THERE HAD BEEN "[A]
MISTAKEN RE-BOOKING OF THE $11,053.60 CHARGE PREVIOUSLY SHOWN AND
PAID ON THE SEPTEMBER 15, 2022 ACCOUNT." (ENTRY "1.").
{¶37} “XIII. THE TRIAL COURT ERRED IN APPROVING TRUSTEE'S "FINAL
ACCOUNT" (OCTOBER 18, 2023 ENTRY GRANTING MICHELE MYERS' MOTION
FOR APPROVAL OF FINAL ACCOUNT AND ORDER DISCHARGING TRUSTEE), AND
TRUSTEE'S FEES, WHEN TRUSTEE'S "FINAL ACCOUNT" PROVIDES EVIDENCE OF
FRAUD BY THE TRUSTEE CONTROLLING AND FUNNELING INTANGIBLE ASSETS
AND EXPENDITURES OF THE ESTATE OF CHARLES E. OGLE, DECEASED,
THROUGH THE TRUST CHECKING ACCOUNT, AND CONTROLLING TANGIBLE
ASSETS OF THE ESTATE OF CHARLES E. OGLE, DECEASED, TO INTERFERE
WITH ESTATE VALUATION, AS WELL AS EVIDENCE THAT TRUSTEE HAD NEVER
PROVIDED CHARLES R. OGLE WITH A FIRST ANNUAL TRUST ACCOUNTING, IN
BREACH OF HER DUTY TO DO SO. Fairfield County, Case No. 23 CA 00046 12
{¶38} “XIV. THE TRIAL COURT ERRED WHEN IT FAILED TO CONDUCT AN
EVIDENTIARY HEARING IN REGARD TO THE TRUSTEE'S PERSONAL PROPERTY
ASSERTIONS AND ASSESSMENTS OF VALUE OF THE SAME DISPUTED IN THE
TRUSTEE'S "FINAL ACCOUNT", PRIOR TO ITS OCTOBER 18, 2023 ENTRY
GRANTING MICHELE MYERS' MOTION FOR APPROVAL OF FINAL ACCOUNT AND
ORDER DISCHARGING TRUSTEE.
{¶39} “XV. THE TRIAL COURT ERRED IN APPROVING TRUSTEE'S "FINAL
ACCOUNT" (OCTOBER 18, 2023 ENTRY GRANTING MICHELE MYERS' MOTION
FOR APPROVAL OF FINAL ACCOUNT AND ORDER DISCHARGING TRUSTEE),
WHEN IT DENIED OR OVERRULED ALL OF CHARLES R. OGLE'S "PENDING"
MOTIONS AND OBJECTIONS BEFORE THE TRIAL COURT.”
I.
{¶40} In his first assignment of error, Appellant argues that the May 4, 2022,
“resolution” was not an enforceable settlement. We disagree.
{¶41} It is within the sound discretion of the trial court to enforce a settlement
agreement, and its judgment will not be reversed where the record contains some
competent, credible evidence to support its findings regarding the settlement. Natl. Court
Reporters, Inc. v. Krohn & Moss, Ltd., 2011-Ohio-731, ¶ 8 (8th Dist.). Therefore, we review
the trial court's decision on the motion to enforce the settlement agreement for abuse of
discretion. The term abuse of discretion “implies that the court's attitude is unreasonable,
arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). An
abuse of discretion occurs when a court exercises its judgment in an unwarranted way Fairfield County, Case No. 23 CA 00046 13
regarding a matter over which it has discretionary authority. Johnson v. Abdullah, 2021-
Ohio-3304, ¶ 35.
{¶42} “[A] settlement agreement is a contract designed to terminate a claim by
preventing or ending litigation[.]” Continental W. Condominium Unit Owners Assn. v.
Howard E. Ferguson, Inc., 1996-Ohio-158. “ ‘A valid settlement agreement is a binding
contract between the parties which requires a meeting of the minds as well as an offer
and acceptance.’ ” Krohn & Moss, Ltd., 2011-Ohio-731, ¶ 10 (8th. Dist.), quoting Rulli v.
Fan Co., 79 Ohio St.3d 374, 376 (1997).
{¶43} The general rule is that, where the parties to an action voluntarily enter into
a settlement agreement in the presence of the trial court, the agreement is a binding
contract and may be enforced. Spercel v. Sterling Indust., 31 Ohio St.2d 36 (1972).
{¶44} Where the settlement agreement is arrived at by the parties in open court
and preserved by being read into the record or being reduced to writing and filed, then
the trial judge may, sua sponte, approve a journal entry which accurately reflects the
terms of the agreement, adopting the agreement as his judgment. Holland v. Holland, 25
Ohio App.2d 98 (1970). Where an agreement is purportedly arrived at in the presence of
the trial judge and approved by the parties but its terms are not memorialized on the
record and one of the parties later disputes the terms of the agreement by refusing to
approve an entry journalizing the agreement, the trial judge may not adopt the terms of
the agreement as he recalls and understands them in the form of a judgment entry.
Instead, the party disputing the agreement is entitled to an evidentiary hearing before
another judge * * * in which the trial judge may be called as a witness to testify as to his
recollection and understanding of the terms of the agreement and, if the court concludes Fairfield County, Case No. 23 CA 00046 14
that the parties entered into a binding contract, the settlement may be enforced. See
Spercel v. Sterling Indus., supra. If the settlement agreement is extrajudicial in the sense
that the trial judge is advised that the parties have agreed to a settlement, but he is not
advised of the terms of the agreement, then the settlement agreement can be enforced
only if the parties are found to have entered into a binding contract. Relief may be sought
through the filing of an independent action sounding in breach of contract, or it may be
sought in the same action. Bolen v. Young 8 Ohio App.3d 36, 37-38 (1982).
{¶45} Once the court determines that there is a binding agreement, a party may
not unilaterally repudiate it. Kostelnik v. Helper, 2002-Ohio-2985. The settlement
agreement may be enforced through filing a separate breach of contract action, or, as in
the instant case, by filing a motion to enforce the settlement. Id.
{¶46} Here, the record reflects that the parties had a valid settlement agreement.
The resolution was signed by all parties. Appellant indicated to the trial court, on the
record, that he understood the terms of the agreement and intended to comply with same.
(May 4, 2022, T. at 11-12).
{¶47} A trial court possesses the authority to enforce a settlement agreement
voluntarily entered by the parties to a lawsuit. Mack v. Polson Rubber Co., 14 Ohio St.3d
34 (1984).
{¶48} Based on the foregoing, we find that the trial court did not err in finding that
the resolution in this matter was an enforceable settlement agreement.
{¶49} As such, Appellant's first assignment of error is overruled. Fairfield County, Case No. 23 CA 00046 15
II., V.
{¶50} In his second and fifth assignments of error, Appellant argues the trial court
erred in granting the Joint Motion to Enforce Settlement Agreement without first
conducting an evidentiary hearing or appointing a mediator. We disagree.
{¶51} Initially, we note that an evidentiary hearing did occur in this matter on May
4, 2022, wherein all parties were present and the terms of the agreement were
memorialized on the record. At that time, Appellant stated on the record that he
understood that terms of the agreement.
{¶52} In the absence of allegations of fraud, duress, undue influence, or of any
factual dispute concerning the existence of the terms of a settlement agreement, a court
is not bound to conduct an evidentiary hearing prior to signing a journal entry reflecting
the settlement agreement. Mack v. Polson Rubber Co.,14 Ohio St.3d 34 (1984), syllabus.
{¶53} Here, the trial court was in full possession of the facts and the terms of the
settlement agreement, and found no ambiguity or legitimate dispute concerning same.
{¶54} Despite Appellant's claims now to the contrary, there was no uncertainty as
to the terms of the settlement to require an evidentiary hearing. Therefore, the trial court
did not abuse its discretion by granting the motion to enforce without holding an
evidentiary hearing.
{¶55} As to Appellant’s motion for mediation, it is within the trial court's discretion
to promote settlement and prevent litigation. Rulli v. Fan Co., 79 Ohio St.3d 374, 376
(1997). By its very nature, mediation is a voluntary process and there is no law or rule
that requires a trial court to offer mediation. U.S. Bank Nat. Assn. v. Morales, 2009-Ohio-
5635, ¶ 23 (11th Dist). We review whether a trial court grants or denies a motion for Fairfield County, Case No. 23 CA 00046 16
mediation under an abuse of discretion standard. Bank of New York v. Stilwell, 2012-
Ohio-4123, ¶ 40 (5th Dist.); Bank of Am. v. Litteral, 2010-Ohio-5884, ¶ 21 (2nd Dist.).
{¶56} Here, the parties had reached a valid settlement in this matter. We therefore
find no abuse of discretion in the trial court not referring the matter for mediation.
{¶57} Appellant’s second and fifth assignments of error are overruled
III., IV.
{¶58} In his third and fourth assignments of error, Appellant argues the trial court
erred in authorizing the Trustee to sell the .30-.06 Browning Rifle in this matter and
ordering any future litigation expenses charged against his individual share of the trust.
We disagree.
{¶59} In paragraphs 2 and 3 of the Resolution/Settlement Agreement signed by
the parties, filed May 4, 2022, the parties agreed:
2. The guns held by the trustee would be distributed in kind to
Melissa Davenport and Charles Ogle per their agreement in writing,
tendered to the Trustee. This in-kind distribution would have an agreed,
assessed monetary value of $0.00 dollars. In other words, whatever the
agreement is between Ms. Davenport and Mr. Ogle, the Trustee would
honor it and distribute accordingly without any cash or monetary offset in
her own favor as the third beneficiary. The terms of this provision are
expressly dependent on the receiving beneficiary being legally authorized
to own and possess the guns, the Trustee being released of any liability
relating to the same, and the trustee, with counsel’s advice, effecting the
transfer in a lawful manner. Fairfield County, Case No. 23 CA 00046 17
3. Absent an agreement by those two beneficiaries, the Trustee
would sell the guns and add the proceeds of sale to the trust.
6. ***
***
d. All future litigation expenses, including attorneys’ fees, after the
date of the consent judgment, would be paid by the non-prevailing party and
chargeable to their individual share of the trust.
{¶60} On the record, paragraphs 2 and 3 were specifically addressed. The
parties, including Appellant, all agreed that Appellant Ogle and Appellee Davenport would
submit their written agreement concerning the in-kind distribution of the guns within thirty
days. (May 4, 2022, T. at 7). Appellee Myers' counsel then stated that if the Ogle/
Davenport agreement was not received by June 3, 2022, the Trust would sell the guns,
to which Ogle responded "got it." (May 4, 2022, T. at 8). The trial court confirmed
Appellant's understanding and consent to the settlement agreement:
THE COURT: And, Mr. Ogle, you've heard the rendition that Mr. Elsea has
indicated and you've reviewed the written agreement and signed it; is that
correct?
MR. OGLE: Yes, sir, it is.
THE COURT: Do you want to add anything?
MR. OGLE: No, other than I just -- which I think he covered -- just when
the final paperwork gets submitted, we do both have the right -- Susie and
I both have the right to look it over and object to anything that we feel Fairfield County, Case No. 23 CA 00046 18
might -- may be incorrect. And that's -- Mr. Elsea has that covered, so,
yes, that's fine.
THE COURT: Okay.
{¶61} (May 4, 2022, T. at 11-12).
{¶62} The parties herein agreed, as set forth in detail, that if an agreement as to
an in-kind distribution could not be reached between the two siblings as to the firearms,
the Trustee would sell same and add the proceeds to the Trust.
{¶63} We find no error on the part of the trial court in authorizing the sale of the
.30-.06 Browning Rifle in this matter, pursuant to the terms of the agreement of the parties.
{¶64} Appellant also argues that the trial court erred in ordering him to pay
“litigation expenses, including attorneys’ fees, after May 4, 2022.” “Ohio follows the
‘American Rule,’ under which a prevailing party generally may not recover their attorney
fees and costs from the opposing, non-prevailing party.” Burdick v. Burd Brothers, Inc.,
2019-Ohio-1593, ¶ 18, (12th Dist)., citing State ex rel. Gmoser v. Village at Beckett Ridge
Condominium Owners’ Assn., Inc., 2016-Ohio-8451, ¶ 44 (12th Dist). There is an
exception to this rule, however, that provides that “[a]ttorney fees may be awarded when
a statute or an enforceable contract specifically provides for the losing party to pay the
prevailing party's attorney fees * * *.” Wilborn v. Bank One Corp., 2009-Ohio-306, ¶ 7,
citing Nottingdale Homeowners’ Assn., Inc. v. Darby, 33 Ohio St.3d 32, 34, 514 N.E.2d
702 (1987).
{¶65} As set forth above, the parties agreed that all future litigations expenses,
including attorney fees, would be paid by the non-prevailing party. Fairfield County, Case No. 23 CA 00046 19
{¶66} Again, once the trial court determines that there is a binding agreement, a
party may not unilaterally repudiate it. Id. at ¶ 11, citing Kostelnik v. Helper, 2002-Ohio-
2985.
{¶67} We find no abuse of discretion in the trial court’s decision enforcing the
terms of the settlement agreement.
{¶68} Appellant’s third and fourth assignments of error are overruled
VI.
{¶69} In his sixth assignment of error, Appellant assigns error to the trial court’s
statement in its Entry that Attorney Shepler was present on behalf of Appellee Melissa
Davenport at the hearing held on September 27, 2023.
{¶70} Appellee agrees that Atty. Shepler was not present at said hearing.
{¶71} Upon review of this inaccuracy in the trial court’s Entry, we find such error
to be harmless as Appellant has failed to show how such resulted in any prejudice to him.
We note that harmless error is described as “[a]ny error, defect, irregularity, or variance
which does not affect substantial rights shall be disregarded.” Crim.R. 52(A).
{¶72} Appellant’s sixth assignment of error is overruled.
VII., VIII., IX., X., XI., XII., XIII., XIV., XV.
{¶73} In the remaining nine assignments of error, Appellant argues that the trial
court erred in approving the Trustee’s Final account. We disagree.
{¶74} First, Appellant argues the trial court erred in failing to make a determination
that the Trustee was authorized, pursuant to the Trust, to pay attorney fees, costs and
reimbursements incurred in the Estate proceedings or to make deposits into the Trust
which were payable to the Estate. Fairfield County, Case No. 23 CA 00046 20
{¶75} Here, Charles E. Ogle’s Last Will and Testament was set up as a pour-over
will to the Charles E. Ogle Irrevocable Trust, which means that all of the Estate's assets
go to the Trust. In other words, the sole beneficiary of the will is the trust. The Will
nominated Appellee Myers as the fiduciary and as the sole beneficiary of the Estate in
her capacity as Trustee. After Appellant Ogle objected, the parties agreed to Appellee
Davenport serving as fiduciary.
{¶76} Upon review, we find no error in the trial court granting the legal fees
incurred by the Appellees arising out of the Estate proceedings. Appellant has failed to
point to anything in the record to show that any payments, deposits or reimbursements
were not permitted under the Estate, the Trust, or the Ohio Trust Code.
{¶77} As to Appellant’s allegations that actions taken by Appellee Myers with
regard to Estate assets were fraudulent, we find that Appellant appears to have never
raised any allegations of fraud before the trial court. “It is well-settled law that issues not
raised in the trial court may not be raised for the first time on appeal because such issues
are deemed waived.” Columbus v. Ridley, 2015-Ohio-4968, 50 N.E.3d 934, ¶ 28 (10th
Dist.), quoting State v. Barrett, 10th Dist. Franklin No. 11AP-375, 2011-Ohio-4986, 2011
WL 4489169, ¶ 13; see State v. Comen, 50 Ohio St.3d 206, 211, 553 N.E.2d 640 (1990).
{¶78} Appellant further argues that the trial court erred in not holding an
evidentiary hearing to determine the ownership of certain personal property, more
specifically the Browning .30-.06 rifle and some walnut lumber.
{¶79} Again, having found that the settlement agreement in this matter was valid
and enforceable, we find that disposal of the Browning .30-.06 rifle and “any other
personal property” was done under the authority of and in accordance with same. Fairfield County, Case No. 23 CA 00046 21
{¶80} We further find that an evidentiary hearing on the Motion to Approve the
Final Account and Appellant’s Objections did take place on September 27, 2023, wherein
Appellant had the opportunity to raise any and all concerns and objections.
{¶81} Appellant next argues that the trial court erred in accepting the Final
Account in this matter because Trustee Myers failed to sign or swear that the Final
Account was true and accurate.
{¶82} Appellant cites no legal authority in support of this argument. Accordingly,
Appellant's brief does not comply with App.R.16(A)(7), which provides,
The appellant shall include in its brief, under the headings and in the
order indicated, all of the following * * * An argument containing the
contentions of the appellant with respect to each assignment of error
presented for review and the reasons in support of the contentions, with
citations to the authorities, statutes, and parts of the record on which
appellant relies. The argument may be preceded by a summary.
{¶83} “If an argument exists that can support [an] assignment of error, it is not this
court's duty to root it out.” Thomas v. Harmon, 4th Dist. Lawrence No. 08CA17, 2009-
Ohio-3299, ¶14, quoting State v. Carman, 8th Dist. Cuyahoga No. 90512, 2008-Ohio-
4368, ¶31. “It is not the function of this court to construct a foundation for [an appellant's]
claims; failure to comply with the rules governing practice in the appellate courts is a tactic
which is ordinarily fatal.” Kremer v. Cox, 114 Ohio App.3d 41, 60 (9th Dist.). Therefore,
“[w]e may disregard any assignment of error that fails to present any citations to case law
or statutes in support of its assertions.” Frye v. Holzer Clinic, Inc., 2008-Ohio-2194, ¶12
(4th Dist.). See, also, App.R. 16(A)(7); App.R. 12(A)(2); State v. Norman, 2011-Ohio-596, Fairfield County, Case No. 23 CA 00046 22
¶29 (5th Dist.); State v. United, 2007-Ohio-1804, ¶141 (5th Dist.); Matter of T.S., 2022-
Ohio-975, ¶¶ 22-23 (5th Dist).
{¶84} Upon review, we find that Appellant Myers, as Trustee, had a fiduciary duty
to the trust. The duties and responsibilities owed by a trustee to the trust beneficiaries are
well established. These duties generally include the duty to be loyal to the trust
beneficiaries; to keep and render clear and accurate accounts with respect to the
administration of the trust; to keep trust property separate and not commingle it with the
trustee's personal property; to make the trust property productive; to pay income to the
trust beneficiaries at reasonable intervals; and, finally, to account and pay over the corpus
on termination of the trust.” Homer v. Wullenweber, 89 Ohio App. 255, 259, (1951);
Sredniawa v. Sredniawa, 2006-Ohio-1597, ¶ 13 (8th Dist.).
{¶85} Also, the documents motion and documents presented to the trial court
were signed by counsel. Civ.R. 11 requires “at least one attorney of record” of a
represented party or a “party who is not represented by an attorney” to sign every motion,
pleading, or other document filed in a civil action. This signature serves as a certificate
that (1) the attorney of record or pro se party filing the document has read the document,
(2) everything contained in it is true to the best of the individual's knowledge, (3) there is
a good ground to support it, and (4) its purpose was not to delay. Civ.R. 11; Fast Property
Solutions, Inc. v. Jurczenko, 11th Dist. Lake Nos. 2012-L-015 & 2012-L-016, 2013-Ohio-
60, ¶52.
{¶86} Based on the foregoing, we find no error in the trial court’s acceptance of
the Final Account without a sworn statement by the trustee. Fairfield County, Case No. 23 CA 00046 23
{¶87} Appellant also argues approval of the Final Account was improper because
the billing statements provided to him were incomplete and contained redactions.
{¶88} The Ohio Supreme Court has recognized that “the narrative portions of
itemized attorney-billing statements containing descriptions of legal services performed
by counsel for a client are protected by the attorney-client privilege.” State ex rel.
Anderson v. Vermilion, 2012-Ohio-5320, ¶ 13, citing State ex rel. Dawson v. Bloom–
Carroll Local School Dist., 2011-Ohio-6009, ¶ 28–29, and State ex rel. McCaffrey v.
Mahoning Cty. Prosecutor's Office, 2012-Ohio-4246, ¶ 36; State ex rel. Pietrangelo v.
Avon Lake, 2016-Ohio-2974, ¶ 32.
{¶89} Here, the record does not reflect that the trial court undertook an
individualized scrutiny of the attorney bill, nor does it appear that Appellant requested the
trial court to do so. Nor has the trial court's failure in this regard been assigned as error
on appeal.
{¶90} Again, we find no error in acceptance of the Final Account.
{¶91} Next, Appellant assigns error to the identification and rectification of a re-
booking mistake as to attorneys’ fees which resulted in a decrease in fees owed by
Appellant from $14,942.96 to $3,889.36, and an increase of $11,053.60 in Plaintiff’s share
in the proceeds on the Final Account.
{¶92} This mistake was raised and corrected by Appellee Myers’ counsel at the
September 27, 2023, hearing, and included, and the motion correcting same was granted
in the October 18, 2023, Entry Granting Michele Myers’ Motion for Approval of Final
Account and Order Discharging Trustee. Fairfield County, Case No. 23 CA 00046 24
{¶93} Upon review, we find that Appellant is raising this issue for the first time on
appeal. We further fail to find how the correction of this mistake, which was to the benefit
of Appellant, resulted in substantial harm to Appellant.
{¶94} Finally, Appellant argues the trial court erred in approving the Final Account
“when it denied or overruled all of [Appellant’s] ‘pending’ motions and objections before
the trial court”. More specifically, Appellant claims “[n]o oral hearing was held on a single
request or motion filed by [Appellant], including to prevent Trustee from selling his rifle, or
his motion for partial summary judgment with attached affidavit and evidence regarding
his rifle.”
{¶95} As stated above, the trial court did hold an oral hearing on September 27,
2023, on Appellant’s Objections to Trustee’s Final Account and Renewed Motion for
Injunction, and Appellant’s Motion to Compel Trustee to Produce “Legal Fees” Billing
Statements.
{¶96} Additionally, the May 4, 2022, settlement agreement obviated the need for
any additional hearings concerning ownership of certain personal property, namely the
Browning .30-.06 rifle. Fairfield County, Case No. 23 CA 00046 25
{¶97} Based on the foregoing, we find no error in the trial court’s acceptance of
the Final Account in this matter.
{¶98} Appellant’s remaining assignments of error are overruled.
{¶99} Accordingly, the judgment of the Court of Common Pleas, Probate Division,
Fairfield County, Ohio, is affirmed.
By: Wise, J.
King, P. J., and
Baldwin, J., concur.
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