Weckel v. Cole + Russell Architects, Inc.
This text of 2024 Ohio 5111 (Weckel v. Cole + Russell Architects, Inc.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
[Cite as Weckel v. Cole + Russell Architects, Inc., 2024-Ohio-5111.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
FREDERIC C. WECKEL, : APPEAL NOS. C-210425 C-230535 Plaintiff-Appellee/Cross- : C-230543 Appellant, TRIAL NO. A-1805234 : vs. : COLE + RUSSELL ARCHITECTS, INC., O P I N I O N. : Defendant-Appellant/Cross- Appellee. :
Civil Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded; Appeal Dismissed in Part in C-230535 and C-230543
Date of Judgment Entry on Appeal: October 25, 2024
Tobias, Torchia & Simon and David Torchia, for Plaintiff-Appellee/Cross-Appellant,
Keating Meuthing & Klekamp PPL and Kasey L. Bond, for Defendant- Appellant/Cross-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Presiding Judge.
{¶1} Defendant-appellant/cross-appellee Cole + Russell Architects, Inc.
(“C+R”) fired its employee, plaintiff-appellee/cross-appellant Frederic C. Weckel,
more than 20 years ago. After nearly 14 years of litigation, the failure of his claims for
wrongful termination, and unsuccessful attempts to enforce various settlement
agreements, Weckel sued C+R again in 2018, asserting a claim for breach of a
shareholder agreement. This time, Weckel prevailed. The trial court awarded him
more than a million dollars in damages.
{¶2} C+R appeals the trial court’s judgment, assigning as error the court’s
granting of Weckel’s summary-judgment motion, denying C+R’s summary-judgment
and Civ.R. 60(B) motions, and incorrectly calculating prejudgment interest. Weckel
also appeals, asserting that the trial court failed to award him contractual interest, to
properly calculate statutory prejudgment interest, and to award attorney fees.
{¶3} We overrule C+R’s first and second assignments of error and hold that
the trial court properly granted summary judgment to Weckel. The record did not
establish that Weckel’s claims were barred by res judicata or that Weckel repudiated
the Shareholder Agreement when he rejected C+R’s attempted tender of payments.
{¶4} We decline to review the merits of C+R’s third assignment of error. The
trial court lacked jurisdiction to rule on C+R’s Civ.R. 60(B) motion because doing so
was outside the scope of our 2021 limited remand.
{¶5} Next, we hold that the trial court properly determined that prejudgment
interest began to accrue in 2018. But the trial court set an improper interest rate
because the Shareholder Agreement provided that the interest rate would be set on the
date that C+R first became obligated to make payments to Weckel. We therefore
2 OHIO FIRST DISTRICT COURT OF APPEALS
sustain in part and reverse in part C+R’s fourth assignment of error, and sustain
Weckel’s second and third assignments of error. We remand the cause for the trial
court to determine, consistent with this opinion, the correct interest rate.
{¶6} As with C+R’s third assignment of error, we decline to review Weckel’s
first assignment of error. The trial court lacked jurisdiction to consider Weckel’s Civ.R.
60(B) motion, which asked the trial court to award Weckel contractual interest.
Weckel filed his motion while C+R’s notice of appeal was pending and it was outside
the scope of our limited remand.
{¶7} Finally, we overrule Weckel’s fourth assignment of error. The trial court
did not abuse its discretion in denying Weckel’s motion for attorney fees.
I. Facts and Procedure
A. Facts
{¶8} This is the fourth appeal between these parties. See Weckel v. Cole +
Russell Architects, 2013-Ohio-2718, (1st Dist.) (“Weckel I”); Weckel v. Cole + Russell
Architects, 2017-Ohio-7491 (1st Dist.) (“Weckel II”); Weckel v. Cole + Russell
Architects, 2019-Ohio-3069 (1st Dist.) (“Weckel III”).
1. The Shareholder Agreement and the ESOP
{¶9} C+R, an architectural firm based in Cincinnati, hired Weckel in 1994.
Weckel served in many roles at C+R and sat on C+R’s board of directors. In 1995,
Weckel paid $153,000 for 115 shares of C+R’s stock under a Shareholder Agreement.
When Weckel’s employment ended, he had accumulated 1,104 shares of C+R stock.
{¶10} The Shareholder Agreement provided that after Weckel’s employment
ended, Weckel would sell his shares back to C+R. The value of the shares would be
3 OHIO FIRST DISTRICT COURT OF APPEALS
determined based on a “valuation date,” which varied depending on why C+R ended
Weckel’s employment.
{¶11} In 2001, C+R formed an Employee Stock Ownership Plan (“ESOP”).
Upon his retirement, Tom Cole, a founder of C+R, sold his shares to the ESOP instead
of redeeming them under the Shareholder Agreement. Weckel stated in his affidavit
that it was anticipated that he and John Russell, the other founder of C+R, would also
be able to sell their shares to the ESOP rather than redeem them through the
Shareholder Agreement.
2. Weckel’s termination, the 2004 Agreement, and Weckel’s alleged repudiation of the Shareholder Agreement
{¶12} In 2004, C+R ended Weckel’s employment. David Arends, C+R’s CEO,
asserted, “although [C+R] believed it had a legitimate business justification for
terminating [Weckel’s] employment, [C+R] chose to not exercise its right to terminate
[Weckel] for cause . . . Instead, the Company allowed [Weckel] the opportunity to
resign and gave him numerous benefits to which he was not otherwise entitled.”
{¶13} In May 2004, the parties mediated and reached a settlement (“the 2004
Agreement”) under which Weckel would resign and sell his shares to the ESOP rather
than selling the shares under the Shareholder Agreement. The settlement terms were
memorialized in an “Outline of Settlement Terms.” The Outline of Settlement Terms
stated that Weckel would resign and the ESOP would purchase Weckel’s shares “in the
same manner” as Cole’s shares. When Weckel received the finalized 2004 Agreement
from C+R in June 2004, he claimed C+R had added terms not previously discussed,
including a requirement that he personally guarantee the loan to the ESOP used to
purchase his shares. Weckel objected and C+R suggested that he negotiate with the
4 OHIO FIRST DISTRICT COURT OF APPEALS
bank. In mid-August 2004, C+R imposed a September deadline for Weckel to
conclude his negotiations with the bank and sign the 2004 Agreement.
{¶14} Weckel did not sign the 2004 Agreement and on September 4, 2004,
C+R sent Weckel a letter stating that it considered Weckel in breach of the 2004
Agreement. As such, C+R stated that it would purchase Weckel’s shares under the
Shareholder Agreement and enclosed the first of ten annual payments for a total value
of $677,480.64. Weckel rejected the payment and his attorney returned the check with
a letter stating, “The payment is inconsistent with the settlement.”
{¶15} In April 2005, C+R communicated with Weckel about sending an
additional check and Weckel’s attorney responded, “There is no need to tender the
check, since it will be returned for the reasons stated in my letter.” C+R did not attempt
to tender any other checks to Weckel under the Shareholder Agreement after this. At
this point, C+R considered Weckel’s shares “retired.”
3. The 2004 lawsuit
{¶16} In late September 2004, Weckel sued C+R to enforce the 2004
Agreement.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as Weckel v. Cole + Russell Architects, Inc., 2024-Ohio-5111.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
FREDERIC C. WECKEL, : APPEAL NOS. C-210425 C-230535 Plaintiff-Appellee/Cross- : C-230543 Appellant, TRIAL NO. A-1805234 : vs. : COLE + RUSSELL ARCHITECTS, INC., O P I N I O N. : Defendant-Appellant/Cross- Appellee. :
Civil Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded; Appeal Dismissed in Part in C-230535 and C-230543
Date of Judgment Entry on Appeal: October 25, 2024
Tobias, Torchia & Simon and David Torchia, for Plaintiff-Appellee/Cross-Appellant,
Keating Meuthing & Klekamp PPL and Kasey L. Bond, for Defendant- Appellant/Cross-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Presiding Judge.
{¶1} Defendant-appellant/cross-appellee Cole + Russell Architects, Inc.
(“C+R”) fired its employee, plaintiff-appellee/cross-appellant Frederic C. Weckel,
more than 20 years ago. After nearly 14 years of litigation, the failure of his claims for
wrongful termination, and unsuccessful attempts to enforce various settlement
agreements, Weckel sued C+R again in 2018, asserting a claim for breach of a
shareholder agreement. This time, Weckel prevailed. The trial court awarded him
more than a million dollars in damages.
{¶2} C+R appeals the trial court’s judgment, assigning as error the court’s
granting of Weckel’s summary-judgment motion, denying C+R’s summary-judgment
and Civ.R. 60(B) motions, and incorrectly calculating prejudgment interest. Weckel
also appeals, asserting that the trial court failed to award him contractual interest, to
properly calculate statutory prejudgment interest, and to award attorney fees.
{¶3} We overrule C+R’s first and second assignments of error and hold that
the trial court properly granted summary judgment to Weckel. The record did not
establish that Weckel’s claims were barred by res judicata or that Weckel repudiated
the Shareholder Agreement when he rejected C+R’s attempted tender of payments.
{¶4} We decline to review the merits of C+R’s third assignment of error. The
trial court lacked jurisdiction to rule on C+R’s Civ.R. 60(B) motion because doing so
was outside the scope of our 2021 limited remand.
{¶5} Next, we hold that the trial court properly determined that prejudgment
interest began to accrue in 2018. But the trial court set an improper interest rate
because the Shareholder Agreement provided that the interest rate would be set on the
date that C+R first became obligated to make payments to Weckel. We therefore
2 OHIO FIRST DISTRICT COURT OF APPEALS
sustain in part and reverse in part C+R’s fourth assignment of error, and sustain
Weckel’s second and third assignments of error. We remand the cause for the trial
court to determine, consistent with this opinion, the correct interest rate.
{¶6} As with C+R’s third assignment of error, we decline to review Weckel’s
first assignment of error. The trial court lacked jurisdiction to consider Weckel’s Civ.R.
60(B) motion, which asked the trial court to award Weckel contractual interest.
Weckel filed his motion while C+R’s notice of appeal was pending and it was outside
the scope of our limited remand.
{¶7} Finally, we overrule Weckel’s fourth assignment of error. The trial court
did not abuse its discretion in denying Weckel’s motion for attorney fees.
I. Facts and Procedure
A. Facts
{¶8} This is the fourth appeal between these parties. See Weckel v. Cole +
Russell Architects, 2013-Ohio-2718, (1st Dist.) (“Weckel I”); Weckel v. Cole + Russell
Architects, 2017-Ohio-7491 (1st Dist.) (“Weckel II”); Weckel v. Cole + Russell
Architects, 2019-Ohio-3069 (1st Dist.) (“Weckel III”).
1. The Shareholder Agreement and the ESOP
{¶9} C+R, an architectural firm based in Cincinnati, hired Weckel in 1994.
Weckel served in many roles at C+R and sat on C+R’s board of directors. In 1995,
Weckel paid $153,000 for 115 shares of C+R’s stock under a Shareholder Agreement.
When Weckel’s employment ended, he had accumulated 1,104 shares of C+R stock.
{¶10} The Shareholder Agreement provided that after Weckel’s employment
ended, Weckel would sell his shares back to C+R. The value of the shares would be
3 OHIO FIRST DISTRICT COURT OF APPEALS
determined based on a “valuation date,” which varied depending on why C+R ended
Weckel’s employment.
{¶11} In 2001, C+R formed an Employee Stock Ownership Plan (“ESOP”).
Upon his retirement, Tom Cole, a founder of C+R, sold his shares to the ESOP instead
of redeeming them under the Shareholder Agreement. Weckel stated in his affidavit
that it was anticipated that he and John Russell, the other founder of C+R, would also
be able to sell their shares to the ESOP rather than redeem them through the
Shareholder Agreement.
2. Weckel’s termination, the 2004 Agreement, and Weckel’s alleged repudiation of the Shareholder Agreement
{¶12} In 2004, C+R ended Weckel’s employment. David Arends, C+R’s CEO,
asserted, “although [C+R] believed it had a legitimate business justification for
terminating [Weckel’s] employment, [C+R] chose to not exercise its right to terminate
[Weckel] for cause . . . Instead, the Company allowed [Weckel] the opportunity to
resign and gave him numerous benefits to which he was not otherwise entitled.”
{¶13} In May 2004, the parties mediated and reached a settlement (“the 2004
Agreement”) under which Weckel would resign and sell his shares to the ESOP rather
than selling the shares under the Shareholder Agreement. The settlement terms were
memorialized in an “Outline of Settlement Terms.” The Outline of Settlement Terms
stated that Weckel would resign and the ESOP would purchase Weckel’s shares “in the
same manner” as Cole’s shares. When Weckel received the finalized 2004 Agreement
from C+R in June 2004, he claimed C+R had added terms not previously discussed,
including a requirement that he personally guarantee the loan to the ESOP used to
purchase his shares. Weckel objected and C+R suggested that he negotiate with the
4 OHIO FIRST DISTRICT COURT OF APPEALS
bank. In mid-August 2004, C+R imposed a September deadline for Weckel to
conclude his negotiations with the bank and sign the 2004 Agreement.
{¶14} Weckel did not sign the 2004 Agreement and on September 4, 2004,
C+R sent Weckel a letter stating that it considered Weckel in breach of the 2004
Agreement. As such, C+R stated that it would purchase Weckel’s shares under the
Shareholder Agreement and enclosed the first of ten annual payments for a total value
of $677,480.64. Weckel rejected the payment and his attorney returned the check with
a letter stating, “The payment is inconsistent with the settlement.”
{¶15} In April 2005, C+R communicated with Weckel about sending an
additional check and Weckel’s attorney responded, “There is no need to tender the
check, since it will be returned for the reasons stated in my letter.” C+R did not attempt
to tender any other checks to Weckel under the Shareholder Agreement after this. At
this point, C+R considered Weckel’s shares “retired.”
3. The 2004 lawsuit
{¶16} In late September 2004, Weckel sued C+R to enforce the 2004
Agreement. The complaint’s allegations related to the facts of Weckel’s termination,
the agreement to repurchase his shares through the ESOP, and the failure of the 2004
Agreement.
{¶17} In November 2005, Weckel amended his complaint. He abandoned his
attempt to enforce the 2004 Agreement and asserted claims for wrongful termination.
The amended complaint alleged breach of fiduciary duty to minority shareholders and
alleged that Weckel had been fired in retaliation for Weckel’s hiring counsel to advise
him on a dispute between Weckel and C+R. See Weckel I, 2013-Ohio-2718 (1st Dist.).
5 OHIO FIRST DISTRICT COURT OF APPEALS
4. The 2008 Agreement
{¶18} The 2004 lawsuit progressed until the parties reached a settlement in
2008 (“2008 Agreement”). Under the 2008 Agreement, Weckel would sell his shares
to the ESOP. The 2008 Agreement provided that Weckel’s sale of his shares to the
ESOP was contingent on the approval of an independent advisor, Thomas Potts.
Ultimately, Potts did not approve the settlement because he determined that the
ESOP’s purchase of Weckel’s shares would create licensing issues in some states in
which C+R did business. C+R declared the 2008 Agreement void. Weckel moved to
enforce the 2008 Agreement and moved to reopen discovery to explore the basis of
Potts’s opinion. The trial court denied his motion to reopen discovery.
5. Weckel loses at trial
{¶19} In April 2011, Weckel’s wrongful termination claims proceeded to a jury
trial, which resulted in a verdict for C+R on all counts. Weckel I at ¶ 4. The jury
determined Weckel failed to prove that C+R fired him for consulting with an attorney
or for raising concerns about an issue he believed constituted fraud. Further, the jury
determined that C+R had “no legitimate overriding business justification” for
terminating his employment. Id. at ¶ 45-46.
6. Weckel attempts to invoke the Shareholder Agreement
{¶20} After the trial court denied his motion for a new trial, Weckel made his
first trip to this court, appealing both the trial court’s judgment against him and its
denial of his motion to reopen discovery into the basis of Potts’s opinion.
{¶21} In October 2011, while Weckel I was still pending, Weckel sent C+R a
letter seeking, for the first time, to redeem his stock under the terms of the Shareholder
Agreement (“2011 Demand”). The 2011 Demand requested payment of a lump-sum
6 OHIO FIRST DISTRICT COURT OF APPEALS
amount and offered two dates and values for the shares, depending on whether the
court determined that C+R fired him with or without cause. The 2011 Demand did not
suggest how Weckel came to the valuations listed in his letter.
{¶22} C+R responded to the 2011 Demand, stating that because of Weckel’s
“breach[ing] and repudiat[ing] the Shareholder Agreement” over the last seven and a
half years, C+R had no obligations under the Shareholder Agreement.
{¶23} In 2013, this court held that the trial court abused its discretion in
denying Weckel discovery into the basis of Potts’s opinion and remanded to allow
further discovery. Weckel I, 2013-Ohio-2718, at ¶ 30, 35, 40 (1st Dist.). We affirmed
the judgment in C+R’s favor on the wrongful-termination issue.
7. Weckel’s first case finally ends
{¶24} On remand, Weckel renewed his motion to enforce the 2008
Agreement. The trial court again denied the motion. We affirmed the trial court’s
judgment in Weckel II, 2017-Ohio-7491, at ¶ 35 (1st Dist.).1 The Supreme Court of Ohio
declined jurisdiction over the cause in March 2018. Weckel v. Cole & Russell
Architects, 2018-Ohio-923.
B. Procedural history
{¶25} In September 2018, Weckel initiated the action at issue in this appeal,
which seeks a declaratory judgment to determine whether he could redeem his shares
under the Shareholder Agreement. Alternatively, he sought to recover under a theory
of unjust enrichment. He later amended the complaint to include a breach-of-contract
claim.
1 The trial court later denied C+R’s motion for attorney fees, which this court affirmed in Weckel
III. 7 OHIO FIRST DISTRICT COURT OF APPEALS
{¶26} C+R moved for summary judgment, arguing that the suit was barred by
res judicata. The trial court denied the motion, reasoning that Weckel’s claims were
not “ripe until enforcement of the past settlement agreements was foreclosed.”
Following discovery, C+R renewed its motion for summary judgment, arguing that
Weckel’s claims were barred by res judicata or alternatively, that Weckel had
repudiated the Shareholder Agreement when he rejected C+R’s attempted payments
in September 2004. Weckel filed a cross-motion for summary judgment, arguing that
he was entitled to judgment on all his claims. Weckel attached the 2011 Demand Letter
to his motion for summary judgment.
{¶27} The trial court granted Weckel’s motion and denied C+R’s motion in
July 2021. The trial court determined that Weckel’s claims were not ripe until March
2018, the conclusion of Weckel’s attempt to enforce the 2008 Agreement. It also found
that Weckel had not repudiated the Shareholder Agreement. The trial court entered
judgment on Weckel’s breach of contract claim and awarded him $1,069,756.
{¶28} Weckel moved for prejudgment interest and attorney fees. After C+R
filed a notice of appeal, this court remanded the cause for the trial court to resolve the
pending prejudgment-interest and attorney-fees motions. In August 2022, C+R filed
a Civ.R. 60(B) motion for relief from judgment arguing that a question of fact
remained regarding the valuation of Weckel’s shares and requesting a damages
hearing. Weckel also filed a Civ.R. 60(B) motion arguing that, in addition to
prejudgment interest, he was entitled to contractual interest under the Shareholder
{¶29} The trial court granted Weckel’s motion for prejudgment interest and
awarded interest running from March 15, 2018—the day after the Supreme Court of
8 OHIO FIRST DISTRICT COURT OF APPEALS
Ohio declined jurisdiction from Weckel II—at a rate of 2.51 percent, for a total of
$89,086.81. The trial court denied Weckel’s motion for attorney fees and did not
award the contractual interest he sought. Finally, the trial court denied C+R’s motion
for relief from judgment, concluding that the jury in the wrongful-termination case
had determined that Weckel was terminated with cause as provided in the Shareholder
Agreement and there was no question of fact regarding the value of Weckel’s shares.
{¶30} C+R filed a second notice of appeal specific to the trial court’s
prejudgment interest award and its denial of C+R’s Civ.R. 60(B) motion. Weckel cross-
appealed. We consolidated the three appeals.
II. Law and Analysis
A. C+R’S APPEAL
{¶31} C+R asserts that the trial court erred by (1) denying its motion for
summary judgment (2) granting Weckel’s motion for summary judgment, (3) denying
C+R’s motion for relief from judgment, and (4) improperly calculating Weckel’s
prejudgment-interest award.
1. The trial court properly denied C+R’s summary-judgment motion
{¶32} C+R’s first assignment of error argues that the trial court improperly
denied its summary-judgment motion. C+R argued below that Weckel’s claims were
barred by res judicata and, even if they were not, Weckel had repudiated the
Shareholder Agreement and therefore could not enforce it.
a. Standard of review
{¶33} This court reviews a trial court’s summary-judgment ruling de novo.
Environmental Solutions & Innovations, Inc. v. Edge Eng. & Science, LLC, 2023-
Ohio-2605, ¶ 6 (1st Dist.). A court must grant summary judgment where (1) there are
9 OHIO FIRST DISTRICT COURT OF APPEALS
no genuine issues of material fact, (2) the movant is entitled to judgment as a matter
of law, and (3) when viewing the evidence most strongly in the nonmovant’s favor,
reasonable minds can come to one conclusion, and that conclusion is adverse to the
nonmovant. Civ.R. 56(C); see M.H. v. City of Cuyahoga Falls, 2012-Ohio-5336, ¶ 12.
{¶34} The movant has the initial burden on summary judgment of informing
the court of the basis of the motion and must point to evidence in the “record which
demonstrate the absence of a genuine issue of material fact on the essential element(s)
of the nonmoving party’s claims.” Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). If
the movant satisfies this initial burden, the burden shifts to the nonmovant “to set
forth specific facts showing that there is a genuine issue for trial.” Id.; see Civ.R. 56(E).
If the nonmovant fails to carry this burden, summary judgment should be granted.
Environmental Solutions & Innovations, Inc. at ¶ 7.
{¶35} A court may not weigh the evidence or choose between reasonable
inferences on summary judgment as the “purpose of summary judgment ‘is not to try
issues of fact, but rather to determine whether triable issues of fact exist.’” Id., quoting
Walker v. Hodge, 2008-Ohio-6828, ¶ 19 (1st Dist.).
b. Res judicata does not bar Weckel’s 2018 action
{¶36} C+R asserts that Weckel’s 2018 action to enforce the Shareholder
Agreement is barred by res judicata because Weckel could have asserted a claim for
breach of the Shareholder Agreement in his 2004 action. Weckel argues that (1) he
could not have asserted a claim for breach because the claim was not ripe until all his
appeals in the prior case were completed, and (2) his breach-of-contract claim did not
arise from the same transaction or occurrence as his wrongful-termination claim.
10 OHIO FIRST DISTRICT COURT OF APPEALS
{¶37} The applicability of res judicata is a question of law that the court
reviews de novo. Daniel v. Williams, 2014-Ohio-273, ¶ 18 (10th Dist.). Res judicata is
an affirmative defense and the party asserting it bears the burden of proving its
applicability to the case. Miller v. Lagos, 2008-Ohio-5863, ¶ 15 (11th Dist.).
{¶38} The doctrine of res judicata includes “the two related concepts of claim
preclusion, also known as res judicata or estoppel by judgment, and issue preclusion,
also known as collateral estoppel.” O’Nesti v. DeBartolo Realty Corp., 2007-Ohio-
1102, ¶ 6. C+R’s arguments relate to claim preclusion.
{¶39} Claim preclusion provides that a valid, final judgment on the merits bars
any future action based on any claim arising out of the same transaction or occurrence
as the first action. Grava v. Parkman Twp., 73 Ohio St.3d 379, 382 (1995). Claim
preclusion applies to “all claims which were or might have been litigated in a first
lawsuit.” (Emphasis in original.) Id. Accordingly, a party must raise every ground for
relief available at the time of the first action that arises out of the same transaction or
occurrence “or be forever barred from asserting it.” First Fin. Bank, N.A. v. Cooper,
2016-Ohio-3523, ¶ 11 (1st Dist.), quoting State ex rel. Robinson v. Huron Cty. Court
of Common Pleas, 2015-Ohio-1553, ¶ 8.
{¶40} To show that res judicata bars Weckel’s claims, C+R must establish:
(1) a prior final, valid decision on the merits by a court of competent
jurisdiction;
(2) and a second action;
(3) involving the same parties, or their privities, as the first action;
(4) raising claims that were or could have been litigated in the first
action; and
11 OHIO FIRST DISTRICT COURT OF APPEALS
(5) arising out of the transaction or occurrence that was the subject
matter of the previous action.
Portage Cty. Bd. of Commrs. v. City of Akron, 2006-Ohio-954, ¶ 84, quoting Hapgood
v. City of Warren, 127 F.3d 490, 493 (6th Cir. 1997).
{¶41} The parties dispute the last two elements. Because we hold that C+R
failed to establish that Weckel could have brought his 2018 claims in the 2004 action,
we do not reach whether the claims arise from the same transaction or occurrence.
i. Res judicata does not apply to claims that are not ripe
{¶42} Justiciability is a “threshold consideration[] in every case, without
exception.” Barrow v. New Miami, 2016-Ohio-340, ¶ 12 (12th Dist.). A case is
justiciable only when it involves “a real controversy presenting issues which are ripe
for judicial resolution.” (Emphasis added.) Stewart v. Stewart, 134 Ohio App.3d 556,
558 (4th Dist. 1999); Keller v. City of Columbus, 2003-Ohio-5599, ¶ 26; see also Saqr
v. Naji, 2017-Ohio-8142, ¶ 20 (1st Dist.).
{¶43} A court’s ripeness inquiry must include both constitutional and
prudential justiciability considerations. State v. Mims, 2023-Ohio-1044, ¶ 14 (8th
Dist.). Though ripeness is different than standing, both require a certain impending
injury. State v. Maddox, 2022-Ohio-764, ¶ 8. An injury that is sufficiently imminent
satisfies the constitutional requirement under the ripeness doctrine. Id. “The
prudential-justiciability concerns include (1) whether the claim is fit for judicial
decision and (2) whether withholding court consideration will cause hardship to the
parties.” Id.
{¶44} Because a court may not adjudicate claims that are not ripe, res judicata
does not apply to claims that were not ripe or had not accrued at the time of the first
12 OHIO FIRST DISTRICT COURT OF APPEALS
action. See State ex rel. Jones v. Husted, 2016-Ohio-5752, ¶ 22; see also Ardary v.
Stepien, 2004-Ohio-630, ¶ 25 (8th Dist.).
{¶45} Claim preclusion does not bar claims that arose after the complaint in
the first action was filed and a plaintiff need not amend the complaint to add newly-
arisen claims. See Rawe v. Liberty Mut. Fire Ins. Co., 462 F.3d 521, 530 (6th Cir.
2006) (“[W]e follow the majority rule articulated by the Wright and Miller treatise
‘that an action need include only the portions of the claim due at the time of
commencing that action,’ because ‘the opportunity to file a supplemental complaint is
not an obligation.’”); see also U.S. Bank Natl. Assn. v. Gullotta, 2008-Ohio-6268, ¶ 30
(“[A] recovery for the monthly installments due at the time the action is commenced
will not bar recovery for installments that subsequently come due.”).
{¶46} Claim preclusion does not bar claims that potentially could have been
brought in a declaratory-judgment action before the claim had accrued. See State ex
rel. Shemo v. City of Mayfield Hts., 95 Ohio St.3d 59, 69 (2002) (“[A] declaratory
judgment is not res judicata on an issue or claim not determined thereby even though
it was known and existing at the time of the original action.”); Jamestown Village
Condominium Owners Assn. v. Mkt. Media Research, 96 Ohio App.3d 678, 685 (8th
Dist. 1994); see also 1 Restatement of the Law 2d, Judgments, § 33, Comment c (1982)
(“A refusal to apply merger or bar can be defended in cases where declaratory relief is
sought before accrual of a claim for ordinary relief.”); R.C. 2721.09 (“[W]henever
necessary or proper, a court of record may grant further relief based on a declaratory
judgment or decree previously granted under this chapter.”).
13 OHIO FIRST DISTRICT COURT OF APPEALS
ii. Weckel’s breach-of-contract claim was not ripe when he amended his complaint
{¶47} Weckel amended his complaint in November 2005. Thus, this court
must determine if his claim for breach of the Shareholder Agreement had accrued by
November 2005. See Yakov RE, LLC v. Rhodes, 2014-Ohio-2025, ¶ 6 (1st Dist.) (“It is
well settled that an amended pleading supersedes the original pleading.”). Unless
Weckel’s breach-of-contract claim had accrued before the day that he amended his
complaint in the first action, res judicata does not apply.
{¶48} A claim for breach of contract requires (1) a valid contract, (2)
performance by one party, (3) breach by the other, and (4) damages resulting from the
breach. Manter v. CPF Senior Living — Northgate Park, LLC, 2024-Ohio-1385, ¶ 36
(1st Dist.). A breach-of-contract claim does not accrue until all the elements of the
claim have been met. Kincaid v. Erie Ins. Co., 2010-Ohio-6036, ¶ 13 (“Until Erie
refuses to pay a claim for a loss, Kincaid has suffered no actual damages for breach of
contract, the parties do not have adverse legal interests, and there is no justiciable
controversy.”).
{¶49} Weckel asserts that no breach occurred until 2011 as C+R had not, until
then, given any indication that it would not perform under the Shareholder
Agreement. We agree that, on this record, C+R’s breach of contract occurred in 2011,
but not because C+R provided notice that it intended to breach.
{¶50} Until 2011, C+R had attempted to perform under the contract by
tendering payments to Weckel, which Weckel rejected. As explained below, this was a
prevention of C+R’s performance, rather than an anticipatory repudiation, and C+R’s
obligations under the Shareholder Agreement remained in effect. But in 2011, Weckel
expressly demanded that C+R perform under the Shareholder Agreement and C+R 14 OHIO FIRST DISTRICT COURT OF APPEALS
refused to perform. C+R’s performance under the Shareholder Agreement was due
and C+R failed to perform. C+R was in breach of the contract at this time. See 1
Restatement of the Law 2d, Contracts, § 235 (1979) (“When performance of a duty
under a contract is due any non-performance is a breach.”).
{¶51} C+R offered various theories about when its obligations under the
contract were due. In its reply in support of its motion for summary judgment below,
C+R asserted that Weckel’s breach-of-contract claim was ripe once C+R “did not make
a payment to him in April 2006.” Thus, even if the breach occurred on the date that
C+R argued below, Weckel’s breach-of-contract claim was not ripe until after Weckel
amended his 2004 complaint and res judicata does not apply. Until C+R breached the
Shareholder Agreement, Weckel’s breach-of-contract claim did not accrue and res
judicata does not bar his breach-of-contract claim.
{¶52} The trial court erred in determining that Weckel’s claims were not ripe
until “enforcement of the past settlement agreement was foreclosed.” But “a reviewing
court should not reverse a correct judgment merely because it is based on erroneous
reasons.” Stammco, L.L.C. v. United Tel. Co. of Ohio, 2013-Ohio-3019, ¶ 51. While we
hold that the trial court erred by selecting 2018 as the date that Weckel’s claims
ripened, we agree that Weckel’s claims were not ripe when he filed his November 2005
amended complaint. Res judicata does not bar Weckel’s breach-of-contract claim.
c. The record does not establish anticipatory repudiation
{¶53} C+R argues that even if res judicata does not apply, it was entitled to
summary judgment because Weckel repudiated the Shareholder Agreement when he
refused C+R’s payments in 2004 and 2005.
15 OHIO FIRST DISTRICT COURT OF APPEALS
{¶54} Parties may defend a breach-of-contract claim based on anticipatory
repudiation. Miami Poplar Rentals, LLC v. Hudoba, 2014-Ohio-1323, ¶ 16 (12th
Dist.). To establish an anticipatory repudiation, a party must show that the alleged
repudiator refused, in advance, to perform a duty not yet due under a contract
resulting in damages to the nonrepudiating party. Haman Ents. v. Sharper
Impressions Painting Co., 2015-Ohio-4967, ¶ 23 (10th Dist.). An anticipatory
repudiation must be clear and unequivocal. Id. Whether a party’s conduct is a
repudiation or merely an expression of doubt as to the party’s willingness to perform
is generally a question of fact. Farmers Comm. Co. v. Burks, 130 Ohio App.3d 158, 172
(3d Dist. 1998).
{¶55} A party injured by the repudiation of a continuing contract may:
(1) treat the contract as rescinded and recover on a quantum meruit so
far as he has performed, or (2) keep the contract alive for the benefit of
both parties, being at all times himself ready and able to perform at the
end of the time specified in the contract, and sue and recover under the
contract, or (3) he may treat the repudiation as putting an end to the
contract for all purposes of performance and sue to recover as far as he
has performed and for the profits he would have realized if he had not
been prevented from performing.
Cleveland Co. v. Std. Amusement Co., 103 Ohio St. 382, 387-388 (1921); see David
Rentals, LLC v. Virginia Woods, LLC, 2024-Ohio-1446, ¶ 23 (1st Dist.).
{¶56} We hold that C+R was not entitled to summary judgment on the
grounds that Weckel had repudiated the Shareholder Agreement because the record
does not establish that Weckel made a clear and unequivocal statement that he was
16 OHIO FIRST DISTRICT COURT OF APPEALS
repudiating the contract. Weckel returned one tendered check and when C+R sought
to tender a second payment, Weckel told C+R that he would return any other checks
because the payment was inconsistent with the 2004 Agreement. And at that time,
Weckel was still attempting to enforce the 2004 Agreement. Weckel’s rejection of
payments in 2004 and 2005 under a belief that payments were contrary to a
settlement agreement did not rise to a clear repudiation of the Shareholder
{¶57} C+R cites Plikerd v. Mongeluzzo, 73 Ohio App.3d 115 (3d Dist. 1992) to
argue that “a party repudiates a contract by refusing payments under that contract.”
In Plikerd, the Third District held that the plaintiffs had repudiated an option contract
in which the plaintiffs gave the defendants an option to purchase the plaintiffs’ land.
Id. at 131. The plaintiffs asserted that they were rescinding the contract and rejected
the defendants’ attempts to tender payment to extend the option. Id. Later, the
plaintiffs sued the defendants and sought to recover the option payments that they had
previously rejected. Id. The court stated that by rejecting the tendered funds to extend
the option, the defendants’ “purpose in taking the option was frustrated” and the
plaintiffs had “breached the agreement to sell for the option price and . . . have not
earned the consideration promised by the [defendants] in return.” Id.
{¶58} Plikerd is inapplicable to this case. Plikerd does not involve a creditor-
debtor relationship or a relationship in which one party owed payments to another.
Further, the Plikerd plaintiffs did more than simply refuse money they were owed;
rather, they refused to perform a contractual duty to honor an option to purchase.
{¶59} Ultimately, C+R argues that Weckel prevented its performance under
the contract. Like anticipatory repudiation, prevention of performance is a defense to
17 OHIO FIRST DISTRICT COURT OF APPEALS
a breach-of-contract claim. Meyer Tool, Inc. v. Mikrolar, Inc., 2023-Ohio-704, ¶ 15
(1st Dist.). A plaintiff cannot rely on a defendant’s failure of performance in asserting
a breach-of-contract claim where the plaintiff prevented the defendant’s performance.
Lucarell v. Nationwide Mut. Ins. Co., 2018-Ohio-15, ¶ 54.
{¶60} Weckel’s rejection of the 2004 tender and his open-ended 2005
rejection constitute a prevention of performance, but only as it relates to any
installments that were due at those times. Weckel’s prevention of performance
protects C+R from a claim of breach on the payments it attempted to tender—and
relieves C+R of any obligation to pay interest on those amounts—but Weckel’s
rejection does not discharge the underlying debt. See Kennedy v. Boles Invest., Inc.,
2011 U.S. Dist. LEXIS 65327, *21-22, 30 (S.D. Ala. June 7, 2011) (“Case authorities
and treatises are legion for the proposition that a debtor whose tender is refused is not
thereby relieved from liability for the principal amount of the debt.”); R.C. 1303.68(c).
{¶61} Because the record establishes that Weckel rejected the payments in the
context of an ongoing settlement dispute, and because the rejection of tendered
payments alone does not discharge an underlying debt, C+R failed to demonstrate an
unequivocal repudiation by Weckel.
{¶62} We overrule C+R’s first assignment of error.
2. C+R failed to show that the trial court erroneously granted summary judgment in Weckel’s favor
{¶63} In its second assignment of error, C+R argues that the trial court erred
by granting summary judgment in Weckel’s favor on his breach-of-contract claim.
C+R offers no independent argument related to this assignment of error. Instead, its
entire argument on its second assignment of error states, “The trial [c]ourt’s entry
dated July 9, 2021 denied CR Architects’ Motion for Summary Judgement while 18 OHIO FIRST DISTRICT COURT OF APPEALS
granting Weckel’s Motion for Summary Judgment. As shown above, the trial court
erred in denying CR Architects’ motion. For those same reasons, as well as the reasons
outlined below, the trial court erred in granting Weckel’s Motion for Summary
Judgment.” In other words, C+R argues that res judicata and repudiation prevented
Weckel from raising his claims.2
{¶64} As discussed above, Weckel’s 2018 claim was not ripe when he amended
his complaint in November 2005, precluding the application of res judicata. And the
record does not show that Weckel repudiated the contract. We overrule C+R’s second
assignment of error.
3. The trial court lacked jurisdiction to consider C+R’s motion for relief from judgment
{¶65} In its third assignment of error, C+R argues that the trial court erred in
denying its motion for relief from judgment. That motion argued that questions of fact
remained involving the valuation of Weckel’s shares. But the trial court lacked
jurisdiction to consider C+R’s August 2022 motion for relief from judgment.
{¶66} The trial court granted Weckel summary judgment in July 2021. Weckel
then moved for attorney fees and prejudgment interest. Following those motions, C+R
filed its notice of appeal. This court remanded the case to the trial court and stayed the
appeal “until the trial court decides the motions for attorney fees and prejudgment
interest.” Following the remand, C+R filed its Civ.R. 60(B) motion in August 2022.
{¶67} A notice of appeal divests a lower court of jurisdiction to consider a
Civ.R. 60(B) motion. Smith v. Soci Petro., Inc., 2023-Ohio-907, ¶ 8 (1st Dist.). The
2 C+R arguably incorporates its arguments related to the trial court denying its Civ.R. 60(B) motion
and the prejudgment-interest award. But as discussed below, we decline to review arguments related to the motion for relief from judgment. And the trial court’s summary judgment did not involve prejudgment interest. 19 OHIO FIRST DISTRICT COURT OF APPEALS
lower court regains jurisdiction to consider the motion after appeals have been
finalized. Id. at ¶ 9. After a notice of appeal is filed, an appellate court can confer
jurisdiction on a lower court through a remand to consider a Civ.R. 60(B) motion. Id.
{¶68} But on a limited remand, the trial court’s jurisdiction is confined to
carrying out the mandate of the appellate court. Bowens v. Bowens, 2022-Ohio-1383,
¶ 13 (10th Dist.). The trial court “may not try any other issue other than that set forth
in the mandate.” Havens v. Havens, 2013-Ohio-3166, ¶ 15 (10th Dist.). A judgment
entered by a court lacking jurisdiction is void. Best Fin. Solutions, LLC v. Tifton
Packaging, LP, 2021-Ohio-2906, ¶ 9 (1st Dist.).
{¶69} Because this court’s remand order was limited to Weckel’s motion for
attorney fees and prejudgment interest, the trial court lacked jurisdiction to consider
C+R’s Civ.R. 60(B) motion. The trial court’s order denying the motion is void and “we
cannot consider the merits of [C+R’s] appeal.” Best Fin. at ¶ 12; see Broadmoor Ctr.,
LLC v. Dallin, 2016-Ohio-8541, ¶ 34 (10th Dist.) (“Accordingly, we must dismiss the
portion of the appeal related to the trial court’s June 3, 2016 decision and entry for
lack of a final appealable order.”).
{¶70} We dismiss the portion of the appeal numbered C-230543 related to the
trial court’s denial of C+R’s Civ.R. 60(B) motion and accordingly do not reach C+R’s
third assignment of error.
4. The trial court incorrectly calculated prejudgment interest
{¶71} In its final assignment of error, C+R argues that the trial court abused
its discretion when it awarded prejudgment interest running from March 15, 2018, at
a rate of 2.51 percent, on a lump-sum award. C+R argues that the trial court should
have awarded prejudgment interest from July 2021, when the trial court ordered it to
20 OHIO FIRST DISTRICT COURT OF APPEALS
pay Weckel. It further argues that the interest rate applied to the prejudgment-interest
award should have been the Section-483-of-the-Internal-Revenue-Code-of-1986 rate
(“IRS rate”) applicable in July 2021. Finally, C+R asserts that the trial court
erroneously awarded interest on the entire lump-sum amount of the award, rather
than awarding interest on yearly installments.
a. Prejudgment-interest statute and the Shareholder Agreement
{¶72} R.C. 1343.03(A) provides:
[W]hen money becomes due and payable upon any bond, bill, note, or
other instrument of writing . . . and upon all judgments . . . of any judicial
tribunal for the payment of money arising out of . . . a contract or other
transaction, the creditor is entitled to interest at the rate per annum
determined pursuant to section 5703.47 of the Revised Code, unless a
written contract provides a different rate of interest in relation to the
money that becomes due and payable, in which case the creditor is
entitled to interest at the rate provided in that contract.
{¶73} A party granted judgment on an underlying contract is entitled to
prejudgment interest as a matter of law. Ronald J. Solomon, D.D.S., Inc. v. Davisson,
2018-Ohio-2011, ¶ 7 (1st Dist.). Prejudgment interest compensates plaintiffs for the
time between when the claim accrued and the judgment, “regardless of whether the
judgment is based on a claim which was liquidated or unliquidated and even if the sum
due was not capable of ascertainment until determined by the court.” Royal Elec.
Constr. Corp. v. Ohio State Univ., 73 Ohio St.3d 110, 110-111 (1995). While R.C.
1343.03(A) sets a default statutory interest rate, if the parties’ contract provides an
interest rate “in relation to the money that becomes due,” the interest rate in the
21 OHIO FIRST DISTRICT COURT OF APPEALS
contract prevails. Eagle Realty Invests., Inc. v. Dumon, 2022-Ohio-4106, ¶ 27 (1st
Dist.).
{¶74} The date on which a claim accrues is a factual determination to be made
by the trial court. Id. at ¶ 25. Appellate courts review the trial court’s determination of
this date for an abuse of discretion. See Miller v. Lindsay-Green, Inc., 2005-Ohio-
6366, ¶ 107 (10th Dist.); Cincinnati Ins. Co. v. First Natl. Bank, 63 Ohio St.2d 220,
226 (1980) (“Generally, an award of interest is in the sound discretion of the court.”);
Miller v. Gunckle, 2002-Ohio-4932, ¶ 32, fn. 4 (observing that the Court has
“specifically and clearly declined to establish a bright-line rule regarding the accrual
date of prejudgment interest but rather left such a determination to the trial courts on
a case-by-case basis”).
b. The prejudgment-interest award was incorrectly calculated
{¶75} C+R argues that the trial court erred in awarding prejudgment interest
starting in March 2018, at the IRS rate applicable on the accrual date, on a lump-sum
payment when the Shareholder Agreement contemplated annual payments. Because
C+R has not challenged the trial court’s award of a lump-sum payment, we find that
the trial court did not err when it ordered interest on the lump-sum payment.
i. The trial court did not abuse its discretion in choosing a March 2018 interest-accrual date
{¶76} C+R argues that the trial court should have ordered interest to accrue
starting when it ordered C+R to pay Weckel in 2021. We disagree.
{¶77} Under R.C. 1343.03(A), prejudgment-interest awards compensate
plaintiffs bringing breach-of-contract claims “for the time between the accrual of the
claim and the judgment.” Hallman v. Zipperer-Davis, 2015-Ohio-2345, ¶ 8 (1st Dist.).
22 OHIO FIRST DISTRICT COURT OF APPEALS
{¶78} In Eagle Realty, the plaintiffs sent a demand letter to the defendants in
May 2018. Eagle Realty, 2022-Ohio-4106, at ¶ 26 (1st Dist.). The trial court found that
the plaintiffs’ prejudgment interest began accruing on the date that the letter imposed
as a deadline for the defendants to consent to payments. Id. This Court determined
that the trial court did not abuse its discretion because the accrual date corresponded
with that deadline. Id.
{¶79} Here, the trial court chose a prejudgment-interest accrual date that was
years after Weckel sent his demand letter to C+R and C+R refused to comply with the
demand. We held above that Weckel’s breach-of-contract claims accrued on that date.
Thus, the trial court could have chosen a prejudgment-interest accrual date years
earlier than the date the trial court chose.
{¶80} But below, Weckel requested that the trial court award him
prejudgment interest starting on March 15, 2018. The trial court agreed and set March
15, 2018, as the accrual date. Although the trial court’s choice of accrual date was years
later than it may have been, choosing March 15, 2018, was not an abuse of discretion
because Weckel asked for that date. Accordingly, we hold that Weckel’s prejudgment-
interest award began accruing on March 15, 2018.
ii. The trial court’s interest-rate determination was an abuse of discretion
{¶81} The trial court chose an improper interest rate because it failed to
comply with R.C. 1343.03(A) and the Shareholder Agreement. While R.C. 1343.03(A)
sets a default interest rate, when the parties’ contract provides “a different rate of
interest in relation to the money that becomes due and payable, . . . the creditor is
entitled to interest at the rate provided in that contract.”
23 OHIO FIRST DISTRICT COURT OF APPEALS
{¶82} The Shareholder Agreement instructed that the interest rate on any
interest due under the contract would be the applicable IRS rate “as of the date [C+R]
first becomes obligated to pay interest on any obligation created pursuant to this
Agreement.”
{¶83} The Shareholder Agreement provides that at the end of a shareholder’s
employment, C+R must purchase, and the shareholder must sell, the employee’s
ownership shares in C+R. Within 30 days “after receipt by the Company of the
appraisal report disclosing the Appraised Value for the applicable Valuation Date,”
C+R had to deliver to Weckel a promissory note and the first of ten annual payments.
That promissory note was to include a principal payment and “shall bear interest on
the unpaid balance thereof, from and after the Initial Payment Date, at the rate set
forth” in the contract. The date that C+R delivered the note and first payment “shall
be the ‘Initial Payment Date.’”
{¶84} Based on the plain language of the contract, the Initial Payment Date
was (1) the day that C+R first became obligated to pay interest under the contract and
(2) the day on which to select the applicable IRS rate. But the record does not contain
any evidence of when C+R received the “appraisal report,” which triggered C+R’s
obligation to pay and the Initial Payment Date. C+R acknowledged at oral argument
that the appraisal report is not in the record.
{¶85} There is evidence in the record suggesting that, at some point, the
appraisal report triggered C+R’s obligation to pay. First, C+R attempted to make
payments to Weckel in 2004 and 2005. Second, there appears to be no dispute that
Weckel’s shares were given values as of 2004 and 2005. Third, C+R admitted below
that it had been obligated to pay for Weckel’s shares at some point.
24 OHIO FIRST DISTRICT COURT OF APPEALS
{¶86} We conclude that C+R’s obligations under the contract did arise and
that there is an Initial Payment Date upon which to determine the interest rate. But
the parties failed to establish when, exactly, it arose.
{¶87} We hold that the trial court abused its discretion when it calculated
prejudgment interest based on a March 2018 rate-determination date because it was
contrary to the plain language of the contract. We reverse the trial court’s
prejudgment-interest award and remand the cause to the trial court to determine the
correct Initial Payment Date and prejudgment-interest rate, and to calculate the
prejudgment-interest award based on that date and its chosen March 15, 2018 accrual
date. Accordingly, we sustain in part and overrule in part C+R’s fourth assignment of
error.
B. WECKEL’S APPEAL
{¶88} Weckel’s cross-appeal asserts that the trial court erred by (1) failing to
award him contractual interest under the Shareholder Agreement apart from statutory
prejudgment interest, (2) selecting an inappropriate prejudgment-interest rate, (3)
miscalculating prejudgment interest, and (4) failing to award attorney fees.
1. The trial court lacked jurisdiction to consider Weckel’s Civ.R. 60(B) motion
{¶89} In his first assignment of error, Weckel argues that the trial court erred
in denying his Civ.R. 60(B)(5) motion, which sought modification of Weckel’s
damages award to include the contractual interest payments that he would have
received over the 10 years in which C+R was obligated to purchase his shares.3 But like
C+R’s Civ.R. 60(B) motion, Weckel’s motion was outside the scope of our limited
3 Weckel’s motion did not explain why he was entitled to relief under Civ.R. 60(B)(5).
25 OHIO FIRST DISTRICT COURT OF APPEALS
remand and the trial court lacked jurisdiction to consider it.
{¶90} The trial court granted Weckel’s motion for summary judgment in July
2021. The trial court awarded Weckel $1,069,756 in damages, which reflects the
amount that Weckel had requested in his summary-judgment motion. In other words,
Weckel’s requested damages only accounted for the principal value of Weckel’s shares
and did not include a request for the interest payments that would have accrued over
the ten years the Shareholder Agreement contemplated payment.
{¶91} After the trial court granted summary judgment, Weckel moved for
prejudgment interest and attorney fees in August 2021. C+R then filed its notice of
appeal. We remanded the cause in October 2021 for the trial court to resolve Weckel’s
two pending motions. Weckel filed his motion to “supplement motion for PJI and for
relief under Rule 60(B)” in August 2022. The trial court ruled in September 2023,
stating, “Weckel’s request to modify the valuation of Weckel’s shares is DENIED and
the court finds the proper valuation is still $1,069,756.”
{¶92} For the same reason as explained under C+R’s third assignment of
error, the trial court lacked jurisdiction to consider Weckel’s Civ.R. 60(B) motion, and
to the extent that it considered Weckel’s Civ.R. its ruling is void. See Mitchell & Assocs.,
Inc. v. Professional Investigators & Sec., Inc., 1989 Ohio App. LEXIS 5129, *4 (8th
Dist. Dec. 7, 1989) (“Civ. R. 60(B)(1) is a proper motion to correct a judgment amount.
. . . A trial court cannot act on a Civ. R. 60(B) motion during the pendency of an
appeal.”).
{¶93} We dismiss the portion of Weckel’s appeal related to the trial court’s
denial of his Civ.R. 60(B) motion for lack of a final appealable order and accordingly
do not reach Weckel’s first assignment of error.
26 OHIO FIRST DISTRICT COURT OF APPEALS
2. The trial court’s prejudgment-interest award was an abuse of discretion
{¶94} In his second and third assignments of error, Weckel asserts that the
trial court applied an incorrect interest rate and improperly calculated prejudgment
interest. As discussed above, the trial court incorrectly determined the date for which
to determine the IRS rate. We sustain Weckel’s second and third assignments of error,
reverse the trial court’s prejudgment-interest calculation, and remand the cause to the
trial court to properly determine prejudgment interest consistent with this opinion.
3. The trial court’s denial of attorney fees was not an abuse of discretion
{¶95} In his final assignment of error, Weckel argues that the trial court
abused its discretion in denying his motion for attorney fees. He asserts that he is
entitled to attorney fees under the “bad faith” exception to the “American Rule.” We
review a trial court’s ruling on a motion for attorney fees based on the bad faith of a
litigant for abuse of discretion. See SST Bearing Corp. v. Twin City Fan Cos., 2012-
Ohio-2490, ¶ 29 (1st Dist.).
{¶96} Under the “American rule,” parties to a civil action bear their own
attorney fees. Weckel III, 2019-Ohio-3069, at ¶ 7 (1st Dist.). There are limited
exceptions to this rule. A court may award attorney fees to a prevailing party if (1)
authorized by a contract between the parties, (2) authorized by statute, or (3) the
prevailing party demonstrates that the unsuccessful party acted in “bad faith,
vexatiously, wantonly, obdurately, or for oppressive reasons.” Sorin v. Bd. of Edn., 46
Ohio St.2d 177, 181 (1976); see Weckel III at ¶ 7. The Shareholder Agreement does not
authorize attorney fees.
{¶97} The Ohio Supreme Court has defined “bad faith” in the negative as “[a]
lack of good faith.” Hoskins v. Aetna Life Ins. Co., 6 Ohio St.3d 272, 276 (1983). 27 OHIO FIRST DISTRICT COURT OF APPEALS
[A]lthough not susceptible of concrete definition, [bad faith] embraces
more than bad judgment or negligence. It imports a dishonest purpose,
moral obliquity, conscious wrongdoing, breach of a known duty through
some ulterior motive or ill will partaking of the nature of fraud. It also
embraces actual intent to mislead or deceive another.
Id.
{¶98} Weckel asserts that the terms of the Shareholder Agreement were “clear
and unambiguous” and that C+R refused to comply with its obligations “through
pretextual arguments.” The trial court, noting that this case has a “tortured and
complicated history,” did not find that C+R had engaged in bad faith. Though C+R did
not prevail below, its arguments regarding res judicata and anticipatory repudiation
were not frivolous. Moreover, although Weckel claims the terms of the Shareholder
Agreement are clear, he has taken conflicting and self-serving positions on issues
interpreting the contract. Regardless, he failed to show that the trial court abused its
discretion. We overrule Weckel’s fourth assignment of error.
III. Conclusion
{¶99} For the foregoing reasons, in the appeal numbered C-210425, we
overrule C+R’s first and second assignments of error. In the appeal numbered C-
230543, we dismiss the portion of the appeal related to the trial court’s denial of C+R’s
Civ.R. 60(B) motion and sustain C+R’s fourth assignment. In the appeal numbered C-
230535, we dismiss the portion of the appeal related to the trial court’s denial of
Weckel’s Civ.R. 60(B) motion, and sustain his second and third assignments of error,
but overrule his fourth assignment of error. The trial court’s judgment is affirmed in
28 OHIO FIRST DISTRICT COURT OF APPEALS
part, reversed in part, and this cause is remanded for further proceedings consistent
with the law and this opinion.
Judgment accordingly.
ZAYAS and CROUSE, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
Related
Cite This Page — Counsel Stack
2024 Ohio 5111, 255 N.E.3d 221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weckel-v-cole-russell-architects-inc-ohioctapp-2024.