[Cite as Keybank Natl. Assn. v. Thalman, 2020-Ohio-660.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

KEYBANK NATIONAL ASSOCIATION,
TRUSTEE,                      :

                Plaintiff-Appellee,                   :
                                                            No. 108123
                v.                                    :

HEATHER THALMAN, ET AL.,                              :

                Defendants-Appellants.                :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: February 27, 2020


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                                   Probate Division
                              Case No. 2012 ADV 179748


                                           Appearances:

                Giffen & Kaminski, L.L.C., Kerin Lyn Kaminski, Tina Y.
                Rhodes, and Karen L. Giffen, for appellee.

                Law Office of Mark E. Porter, L.L.C., and Mark E. Porter;
                Law Office of Rebecca Yingst Price, L.L.C., and Rebecca
                Yingst Price, for appellants.


EILEEN T. GALLAGHER, A.J.:

                  Defendants-appellants, Heather Thalman, et al., (collectively the

“Clough Heirs”) appeal from the final judgment entered on December 18, 2018, in
the Cuyahoga Court of Common Pleas, Probate Division. The Clough Heirs raise the

following assignments of error for review:

      1. The trial court erred to the prejudice of the Clough Heirs by failing
      to order KeyBank to distribute to the Clough Heirs today’s fair market
      value of the assets in the FBO JSC Trust, less the partial distribution
      received, since the Trust vested in them upon the death of Dr. Schlitt
      on July 4, 2011, and was liquidated without their consent.

      2. The trial court erred to the prejudice of the Clough Heirs by failing
      to impose prejudgment interest and postjudgment interest under R.C.
      1343.03(A) on the assets held in the FBO JSC Trust after the Court of
      Appeals ruled on May 5, 2016, that the FBO JSC Trust created on
      December 7, 2008, was for the sole benefit of the Clough Heirs.

      3. The trial court erred to the prejudice of the Clough Heirs by failing
      to hold a hearing on their motion for payment of their costs and
      attorney fees pursuant to R.C. 5810.04 since they were the prevailing
      party.

      4. The trial court erred to the prejudice of the Clough Heirs by failing
      to order that KeyBank pay the Clough Heirs compensatory damages in
      the amount of $1,161,807 as computed by the Clough Heirs’ expert
      witness, William Hyde, in his report of May 28, 2014, as updated
      December 15, 2016.

      5. The trial court erred to the prejudice of the Clough Heirs by failing
      to hold a hearing on the Clough Heirs’ request for punitive damages
      against KeyBank, effectively denying their claim for punitive damages.

              After careful review of the record and relevant case law, we affirm the

trial court’s judgment.

                      I. Procedural and Factual History

              In 1935, Howard Couse established a trust (the “Couse Trust”) that

provided income for his two grandchildren, Jeanne Clough and Howard Schlitt.

Upon the death of either Clough or Schlitt, their heirs would become trust
beneficiaries. Upon the death of both Clough and Schlitt, the trust corpus would be

divided into two, equal shares: one share payable to Clough’s children and heirs

Heather Thalman, DeWayne Richey III, Douglas Richey and Margaret Nelson (the

“Clough Heirs”); the other share payable to Schlitt’s children and heirs Cynthia

Desformes, Andrea Weaver, and Lorraine Schlitt (the “Schlitt Heirs.”). The Couse

Trust authorized the beneficiaries to receive payment of any sum deemed necessary

for their support, ease, and maintenance.

               By 2006, Clough and Schlitt had developed different ideas on how the

trustee, KeyBank National Association (“KeyBank”), should manage the trust

investments.   Clough sought a conservative investment approach in order to

maximize long-term growth of the trust corpus. In contrast, Schlitt preferred a more

aggressive investment approach in order to maximize monthly income. In July

2006, Schlitt sent a letter to KeyBank stating that the income from the Couse Trust

was “totally inadequate.” Dr. Schlitt also threatened that if the performance of the

trust did not improve immediately, he would move the trust to be managed by

another trustee.

               KeyBank was unsure if it had the authority to divide the Couse Trust.

At the time, Clough and Schlitt were also the beneficiaries of a second trust — the

Margaret Schlitt Trust — which specifically authorized division of the trust corpus.

KeyBank told Clough and Schlitt that it could divide the Margaret Schlitt Trust, but

because the Couse Trust lacked similar language specifically authorizing division, it
was “working with our Internal Trust counsel to clarify the issues in protecting your

respective family’s [sic] interests in the Couse Trust if it were divided as well.”

               KeyBank apparently took no action with regard to dividing the trust

until late 2008, when Jeanne Clough died. Several weeks after her death, KeyBank

divided the trust into two investment accounts: one for the benefit of Clough (“FBO

JSC”); the other for the benefit of Schlitt (“FBO HHS”). Trust income would be paid

to the Clough heirs from the Clough account, while trust income to Howard Schlitt

would be paid from the Schlitt account. The beneficiaries were given account

statements only from their respectively divided accounts. They were not provided

account statements for the entire Couse Trust.

               KeyBank informed the Clough Heirs that they would be entitled to

quarterly income distributions from the FBO JSC account until Schlitt’s death.

KeyBank also told one of the Clough Heirs that following Schlitt’s death, “the Couse

Trust FBO JSC will terminate, and the remaining proceeds will be distributed

equally between you and your siblings.” In a March 2009 letter sent after Jeanne

Clough’s death, KeyBank informed each of the four Clough Heirs that the “Howard

A. Couse Trust * * * will continue for the benefit of you and your siblings.” KeyBank

also informed the four Clough Heirs that “[t]he current market value is $653,605

(including income cash). Your one-fourth share is approximately $163,401.”

               In April 2008, Schlitt, through his long-time companion, made a

request for additional income because his declining health required intensive

medical care. Exercising its discretionary trust authority to provide for the “support,
ease and maintenance” of the beneficiaries, KeyBank paid Schlitt $12,000 per

month exclusively from the Schlitt account. KeyBank’s internal documentation of

the discretionary distributions to Schlitt specifically referenced the FBO HHS

account and, under a heading called “Document Dispositive Provisions,” stated,

“Upon the death of Howard H. Schlitt, the trust will distribute to his then living

lineal descendants.” The discretionary payments continued until Schlitt died in

2011. None of the Clough Heirs were aware that KeyBank was making additional

payments to Schlitt because they were not informed by KeyBank and they were not

receiving any statements for the FBO HHS account.

              When Schlitt died, the Clough Heirs notified KeyBank, seeking

liquidation of the FBO JSC account. KeyBank replied to one of the Clough Heirs,

noting that the FBO JSC trust share had been segregated for the “equal benefit of

you and your siblings” and that “[y]ou are correct in that pursuant to the terms of

the Couse Trust FBO JSC, Dr. Schlitt’s death will result in the termination of the

Howard A. Couse Trust FBO JSC in equal shares to you and your siblings.”

              In response to demands by the Schlitt Heirs to liquidate the Couse

Trust, KeyBank informed them that it could not yet act on liquidation “due to a

difference of interpretation of the final dispositive provisions of the Howard A.

Couse Trust.” KeyBank told the Schlitt Heirs that its trust counsel was reviewing the

trust agreement and “[i]t may be that both of the Howard Couse Trusts, your father’s

and Jeanne Clough’s portions, will be combined and then divided, per stirpes,

amongst you and your siblings and Jeanne’s four children as well.” KeyBank told the
Schlitt Heirs that if the two accounts had to be recombined, it would need approval

from the Clough Heirs to complete liquidation. The Schlitt Heirs responded by

threatening KeyBank with legal action should it fail to put the trust assets into their

account. The following day, KeyBank informed the Schlitt Heirs that “our trust

counsel has determined that both of the Howard Couse Trusts (the one for the

benefit of your father and the other for the benefit of Jeanne Clough) are to be

distributed 50% to the three of you and 50% to the four Clough children.” KeyBank

reaffirmed to the Schlitt Heirs that “you and your sisters will split 50% of your

father’s trust and also split 50% of the Jeanne Clough Trust.” At the time, the FBO

JSC account was valued at $934,000; the additional distributions to Howard Schlitt

left $460,000 in the FBO HHS account. Thus, the combining of the accounts

resulted in $237,000 being taken from the FBO JSC account for distribution to the

Schlitt Heirs.

                  The Clough Heirs objected to combining the two investment

accounts. They maintained that KeyBank had actually split the trust corpus into two

separate trusts and that merging them back into a single trust would substantially

impair their rights as beneficiaries given the amounts paid to Schlitt. They believed

that the Schlitt Heirs should be solely affected by the income paid to Schlitt during

his last years.

                  KeyBank disagreed that it had split the Couse Trust into two separate

trusts, claiming that it had merely split the trust into two investment accounts that

it recombined before liquidating the Couse Trust. On June 18, 2012, KeyBank filed
a petition for declaratory judgment, requesting the trial court to “declare the rights

of the beneficiaries, the proper discretionary distributions and the proper allocation

of expenses, taxes and fees.”

               In response, the Clough Heirs filed counterclaims against KeyBank

alleging that it committed a statutory breach of trust by failing to keep the current

beneficiaries of the trust reasonably informed about the administration of the Couse

Trust and breached its fiduciary duty in the manner in which it managed the trust.

The Clough Heirs sought compensatory damages, punitive damages, and an award

of costs and attorney fees.

               In resolving the parties’ cross-motions for summary judgment, the

trial court determined that KeyBank had not, and could not, split the Couse Trust

into two separate trusts. Accordingly, the trial court granted summary judgment in

favor of KeyBank as to all of the Clough Heirs’ claims, and ordered the Clough Heirs

to pay KeyBank’s attorney fees.

                                   A. Thalman I

               This court reversed the summary judgment on appeal. KeyBank

Natl. Assn. v. Thalman, 8th Dist. Cuyahoga No. 102624, 2016-Ohio-2832

(“Thalman I”). As an overriding holding, the panel found the evidence showed that

“KeyBank informed the Clough Heirs that the Couse Trust had been split into two

different trusts; the Clough Trust and the Schlitt Trust.” Id. at ¶ 16. This conclusion

was reached on evidence that the trusts were given different names, different

account numbers, and had separate statements mailed to the beneficiaries of the
respective accounts.    Id. In addition, this court cited evidence that KeyBank

individually informed the Clough and Schlitt Heirs that upon Schlitt’s death, the

respective FBO accounts would be liquidated and divided among the siblings. Id. at

¶ 17. The panel found an issue of material fact existed on whether KeyBank managed

the trust in good faith. Id.

               With respect to the question of whether the trial court erred by

finding that KeyBank should combine and equally distribute the trusts, the panel

rejected KeyBank’s assertion that R.C. 5804.17 required it to combine the two

investment accounts. Noting that the statute allowed division of a trust “if the result

does not substantially impair the rights of any beneficiary or have a materially

adverse effect on the achievement of the purposes of the trust,” this court found that

KeyBank could split the trust because doing so did not substantially impair the

rights of either Jeanne Clough or Howard Schlitt. Id. at ¶ 18. This court found that

dividing the trust not only accommodated the separate investment goals of Clough

and Schlitt, but that the aggressive investment approach desired by Schlitt worked

to his benefit to finance his health and living expenses. Id. at ¶ 19. This court found

that recombining the trusts would have a materially adverse effect on Clough’s

investment goals and that a question of fact existed “regarding prejudice to the

Clough Heirs to distribute the Couse Trust equally amongst the Clough Heirs and

Schlitt Heirs.” Id.

               Lastly, the Thalman I panel considered the question of whether the

court erred by finding that the Clough Heirs did not make out a claim for breach of
fiduciary duty because they did not sustain any damages. Reiterating that “the trusts

had been in fact divided[,]” id. at ¶ 22, the panel found that by recombining the

trusts, KeyBank took $237,000 from the FBO JSC account and placed it in the FBO

HHS account. Id. at ¶ 23. Thus, this court concluded that the $237,000 was a

“potential injury to the Clough Heirs.” Id.

              On remand, the matter proceeded to a bench trial in July 2017. At the

onset of trial, both parties raised questions about the holding in Thalman I. In its

opening statement, KeyBank stated that it did not split the Couse Trust. The Clough

Heirs responded in their opening statement by wondering why KeyBank was

arguing that it never split the trusts given that this court stated in Thalman I, that

the Couse Trust had been divided into two separate trusts. During a break in trial

testimony, the Clough Heirs again reiterated that the Couse Trust had been split,

whether by agreement between Jeanne Clough and Howard Schlitt or by KeyBank.

When counsel for the Clough Heirs suggested that the issue had been conclusively

resolved by Thalman I, the trial court disagreed, stating:

      I read [Thalman I] 100 times and I thought it said that it was conducted
      a little differently. So we can agree to disagree but clearly that’s still on
      the table.

(Tr. 313.)

              At the conclusion of the trial, the trial court issued extensive findings

of fact and conclusions of law. The court determined that the Couse Trust had been

created for the lifetime benefit of Clough and Schlitt, giving them the right to equal

income distributions and discretionary distributions for their support, ease, and
maintenance. The court characterized the Couse Trust as a “pot” trust, meaning that

“all of the beneficiaries in the same beneficiary class share from one pot. A reduction

of the assets of the trust for one beneficiary necessarily results in a reduction for all

beneficiaries upon final distribution.” The court found no trust language that would

allow the trust to be divided. It further found that KeyBank did not split the trust

into two separate trusts, but created two investment sub-accounts for the single

trust.

               Regarding the pending counterclaims, the trial court concluded that

KeyBank did not breach its fiduciary duty to the Clough Heirs by creating two

investment sub-accounts. The court found that the trust instrument granted the

trustee “unrestricted power to manage all property held by it hereunder as if the

absolute owner itself,” and that KeyBank did not require beneficiary approval to

carry out transactions. It stated that “[a]lthough the money was divided into two

sub-accounts for investment purposes and for current lifetime distributions, the

Couse Trust itself was never divided into separate and distinct trusts.” The court

rejected assertions by the Clough Heirs that KeyBank’s trust officer sent letters to

them indicating that the trust had been split. The court “was persuaded by [the trust

officer’s] explanation as to what the letters he authored meant and by the fact that

[the trust officer] never thought that the Couse Trust had been permanently divided

because the Couse Trust did not allow for permanent division.”

               With respect to claims that KeyBank breached its fiduciary duty to the

Clough Heirs by making distributions to Schlitt, the trial court found KeyBank acted
within the scope of its discretion by distributing additional funds to Schlitt to

provide for his “ease.” The court found that KeyBank acted reasonably upon

information provided to it by Schlitt’s long-time companion, whom the Clough Heirs

considered as their “aunt.” The court also found no reason to believe that KeyBank

would have exercised its discretion any differently had it required additional

verification of Schlitt’s medical expenses.

               The court also rejected assertions by the Clough Heirs that KeyBank

breached its fiduciary duty because letters sent by KeyBank to the beneficiaries led

them to believe that the Couse Trust had been permanently changed in a way that

altered the manner in which the trust corpus would be distributed. Conceding that

KeyBank’s correspondences were “not a model of clarity,” the court found that the

correspondences were “not false and did not promise the Clough Heirs that the

dispositive portion of the Couse Trust had been changed.” It found that the trust

officer’s communications to the Clough Heirs used language consistent with the

position that the trust had not been split, noting for example that the trust officer

informed the Clough Heirs that the trust had been divided “into two equal shares”

with the creation of the two investment accounts designed to accommodate Schlitt’s

and the Clough Heirs’ investment goals. The court found that “[t]he word ‘shares’

in and of itself denoted that the Couse Trust remains as one trust with separate parts

or shares.” The court found that the Clough Heirs “made an assumption regarding

what the letters meant.”
               In addition, the trial court found that the Clough Heirs failed to prove

that they suffered any damage as a result of any of their claims for breach of fiduciary

duty. The court found that even if the Clough Heirs justifiably relied on KeyBank’s

correspondence to arrive at the expectation of a greater share of the trust corpus,

they failed to show detrimental reliance on that expectation by making any life

decisions or altered investment patterns based on that expectation.

               Finally, the court ordered the Clough Heirs to pay all of KeyBank’s

attorney fees incurred after the court granted the Schlitt Heirs’ first motion for

summary judgment. The court did not actually determine the amount of attorney

fees, other than to state that KeyBank’s fees “shall be paid at the usual and customary

hourly rates charged by KeyBank’s lawyer to KeyBank and for all the hours approved

for payment by KeyBank.” The court certified no just reason for delay.

                                   B. Thalman II

               In Keybank Natl. Assn. v. Thalman, 8th Dist. Cuyahoga No. 106250,

2018-Ohio-3367 (“Thalman II”), this court reversed the judgment of the trial court.

In relevant part, this court held that the decision in Thalman I, that the trustee had

divided the trust into two separate trusts for the separate benefit of the two

beneficiaries pursuant to R.C. 5804.17, was the law of the case and was binding on

all of the parties. This court explained, in relevant part:

      In [Thalman I], this court determined the dispositive question posed
      by the request for a declaratory judgment by concluding that KeyBank
      split the Couse Trust. In fact, the opinion of the court twice stated that
      conclusion. It first stated that “KeyBank informed the Clough Heirs
      that the Couse Trust had been split into two different trusts[:]; the
      Clough Trust and the Schlitt [T]rust [sic].” [Thalman I], 8th Dist.
      Cuyahoga No. 102624, 2016-Ohio-2832, at ¶ 16. We restated that
      conclusion by finding that “the account statements reflected that the
      trusts [sic] had been in fact divided” and that “[t]he record reflects that
      the trusts [sic] were in fact divided into two separate trusts.” Id. at ¶
      22.

      The panel’s statements that the Couse Trust had been divided into two
      trusts fully resolved the declaratory judgment. Notably, KeyBank did
      not seek reconsideration of this court’s decision under App.R. 26(A)(1)
      nor did it pursue a further appeal to the Ohio Supreme Court. The
      panel’s conclusions were final and binding on the trial court. Morton
      Internatl. v. Continental Ins. Co., 104 Ohio App.3d 315, 320, 662
      N.E.2d 29 (1st Dist.1995). We therefore must conclude that statements
      in [Thalman I] were the law of the case. With the determination that
      the Couse Trust had been divided, only the Clough Heirs were entitled
      to share in the funds held in the FBO JSC Trust and the Schlitt Heirs
      were entitled to share only in the funds held in the FBO HHS Trust.

      ***

      There was no room for the court to disagree with the panel’s decision.
      Despite the panel having found that “[t]he record reflects that the trusts
      were in fact divided into two separate trusts[,]” the court conducted a
      trial and found as matter of fact that “although the money was divided
      into two sub-accounts for investment purposes and for current lifetime
      distributions, the Couse Trust itself was never divided into two separate
      and distinct trusts.” This finding erroneously disregarded what had
      been established as a matter of law in [Thalman I].

Thalman II at ¶ 22-23; 29.

              Regarding the Clough Heirs’ remaining counterclaims, this court

determined that because the trust had been split as the Clough Heirs asserted, their

counterclaims were necessarily “vitiated” and/or “perfunctory” given the nature of

the requested damages. Specifically, Thalman II stated as follows:

      The court’s sole function on remand was to address the counterclaims.
      Although we stated that there were genuine issues of material fact on
      the counterclaims, a trial was not absolutely necessary. The
counterclaims were derivative to the declaratory judgment action
because they were viable only if the Couse Trust had not been split into
two trusts or, having been split, were recombined into a single trust for
distribution to the respective heirs. By necessary implication, our
holding that the trust had been split vitiated the counterclaims for
breach of trust and breach of fiduciary duty. Damages for a breach of
trust are premised on the idea that “the trust should be restored to the
position it would have been in had the harm not occurred.” General
Comment to R.C. 5810.01. Thus, the damages to be paid by a trustee
who commits a breach of trust is “[t]he amount required to restore the
value of the trust property and trust distributions to what they would
have been had the breach not occurred.” See R.C. 5810.02(A).
Damages for a trustee’s breach of fiduciary duty are similar: “A trustee
who commits a breach of trust is * * * chargeable with the amount
required to restore the values of the trust estate and trust distributions
to what they would have been if the trust had been properly
administered.” Restatement of the Law 3d, Trusts, Section 205(b)
(1990). See also Spalding v. Coulson, 8th Dist. Cuyahoga Nos. 70524
and 70538, 1998 Ohio App. LEXIS 4105, 29-30 (Sept. 3, 1998) (“As in
all other tort actions, losses incurred must be proximately caused by
the breach[.]”).

The measure of damages available for breach of trust and breach of
fiduciary duty were consistent with the prayer for damages contained
in the Clough Heirs’ counterclaims. The Clough Heirs asked the court
to “compel Key Bank [sic] to return to the Trust the amounts it
improperly and inequitably distributed to Howard Schlitt and the
Schlitt Heirs.” The procedural posture of the first appeal did not allow
us to enter judgment as a matter of law on the counterclaims — it was
left to the trial court to resolve those claims “consistent with” the
opinion. Thalman I, 8th Dist. Cuyahoga No. 102624, 2016-Ohio-2832,
at ¶ 24. Nevertheless, resolution of the counterclaims should have been
perfunctory given that the damages available to the Clough Heirs on
their counterclaims were identical to what had been ordered in the
declaratory judgment portion of the Keybank opinion. A trial was
therefore unnecessary.

We therefore conclude that the decision in [Thalman I], that the Couse
Trust had been divided into two separate trusts, is the law of the case
and is binding on all parties. KeyBank is required to disburse funds
held in the FBO JSC Trust to the Clough Heirs and disburse funds held
in the FBO HHS Trust to the Schlitt Heirs.
Id. at ¶ 30-32.

                  Finally, this court reversed the award of attorney fees in favor of

KeyBank, stating:

      The court awarded KeyBank its attorney fees “because of the Clough
      Heirs’ unwillingness to accept that the terms of the Couse Trust control
      its ultimate distribution. The Clough Heirs refused to agree that
      KeyBank’s proposed final distribution was proper.” However, the
      decision in Keybank that the Couse Trust had been split into two
      separate trusts abrogates the rationale underlying the court’s order for
      attorney fees. Therefore, the award of attorney fees must likewise be
      abrogated. We vacate the award of attorney fees to KeyBank. We
      likewise vacate the award of attorney fees to the Schlitt Heirs, because
      the court’s rationale for awarding those fees — that the Schlitt Heirs
      would not have been forced to incur legal fees but for the Clough Heirs
      litigating their claims against KeyBank — is no longer viable in light of
      our holding. The parties are to bear their own attorney fees.

(Emphasis added.) Id. at ¶ 35.

                  On remand, the Clough Heirs filed a “motion for judgment pursuant

to the Court of Appeals remand and for a hearing on punitive damages, costs and

attorney fees.”      In the motion, the Clough Heirs argued, pursuant to their

interpretation of this court’s decision in Thalman II, that the trial court was required

to reassess the merits of their counterclaims and accept this court’s finding that (1)

the Clough Heirs sustained damages as a result of KeyBank’s actions as Trustee, and

(2) the measure of damages for breach of trust and breach of fiduciary duty were

“consistent with the prayer for damages contained in the Clough Heirs’

counterclaims.” Thalman II at ¶ 31. Thus, the Clough Heirs asserted that they were

entitled to (1) judgment in the amount of $605,656.85 for the outstanding balance

of the FBO JSC account, (2) prejudgment and postjudgment interest at the statutory
rate of 4 percent per annum, (3) compensatory damages in the amount of $1,161,807

through November 30, 2016, (4) punitive damages pursuant to R.C. 2315.21, (5)

reimbursement of all trustee fees since January 1, 2009, and (6) reasonable attorney

fees, expenses and costs pursuant to R.C. 5819.04.

               KeyBank filed a brief in opposition, arguing, in relevant part:

      The Motion is not in accord with [Thalman II] and it is impossible to
      understand what argument is being made by the Clough Heirs to
      stretch [Thalman II] into a ruling that would permit them to seek
      damages, return of fees, punitive damages and attorney fees.

      ***

      In the end, the Court of Appeals decided in [Thalman II] that the Couse
      Trust had been split and that the split should be maintained for
      distribution. The Clough Heirs had filed counterclaims alleging that if
      the Couse Trust was not split for the purposes of distribution, that
      KeyBank had breached its fiduciary duties. [Thalman II] states that
      “By necessary implication, our holding that the trust had been split
      vitiated the counterclaims for breach of trust and breach of fiduciary
      duty.” There is nothing equivocal in that holding. The counterclaims
      have been vitiated.

      ***

      As to attorney fees, [Thalman II] is likewise clear, it holds that “We
      vacate the award of attorney fees to KeyBank” and “The parties are to
      bear their own attorney fees.” Again, this seems final and not an issue
      which requires further action or a hearing by the trial court.
              On December 18, 2018, the trial court issued a judgment entry

ordering KeyBank to disburse the funds held in the FBO JSC trust to the Clough

Heirs and to disburse the funds held in the FBO HHS Trust to the Schlitt Heirs. In

addition, the trial court vacated the award of attorney fees to KeyBank and the

Schlitt Heirs, stating “that the parties are to bear their own attorney fees.”
               On December 18, 2018, the trial court issued a separate judgment

entry denying the Clough Heirs’ “motion for judgment pursuant to the Court of

Appeals remand and for a hearing on punitive damages, costs and attorney fees.”

The trial court found, in relevant part:

      The Court finds that [Thalman II] determines that “resolution of the
      counterclaims should have been perfunctory given that the damages
      available to the Clough Heirs on their counterclaims were identical to
      what had been ordered in the declaratory judgment portion of
      [Thalman I].” The amount of potential damages ordered in [Thalman
      I] at paragraph 23 is “237,000.00 to the Clough Heirs.” The Court finds
      that [Thalman II] specifically instructs this Court as to the damages to
      the Clough Heirs and payment of attorney fees. The Court further finds
      that the opinion does not provide for a further hearing on damages.

               The Clough Heirs now appeal from the trial court’s judgment.

                               II. Law and Analysis

               In their first assignment of error, the Clough Heirs argue the trial

court erred by failing to order KeyBank to pay the present fair market value of the

assets that were in the FBO JSC when it vested on July 4, 2011. In their second

assignment of error, the Clough Heirs argue the trial court erred by failing to award

prejudgment interest and postjudgment interest pursuant to R.C. 1343.03(A). In

their third assignment of error, the Clough Heirs argue the trial court erred by failing

to award them attorney fees and costs pursuant to R.C. 5810.04. In their fourth

assignment of error, the Clough Heirs argue the trial court erred by failing to order

KeyBank to pay $1,161,087.00 in compensatory damages “for the losses that they

sustained that were caused by KeyBank’s breach of trust and breach of fiduciary

duty.” In their fifth assignment of error, the Clough Heirs argue the trial court erred
by failing to conduct a hearing on their request for punitive damages. We address

these assigned errors together.

              As referenced in Thalman II,

      “The law-of-the-case doctrine provides that the decision of a reviewing
      court in a case remains the law of that case on the legal questions
      involved for all subsequent proceedings in the case at both the trial and
      reviewing levels.” Huntington Natl. Bank v. Dixon, 8th Dist. Cuyahoga
      No. 101273, 2015-Ohio-1735, ¶ 9 (citations and internal quotations
      omitted). The law-of-the-case doctrine is a rule of practice that ensures
      consistency of results in a case, avoids endless litigation of settled
      issues, and preserves the structure of superior and inferior courts as
      designed by the Ohio Constitution. Hopkins v. Dyer, 104 Ohio St.3d
      461, 2004-Ohio-6769, 820 N.E.2d 329, ¶ 15; Nolan v. Nolan, 11 Ohio
      St.3d 1, 3, 462 N.E.2d 410 (1984).

Thalman II, 8th Dist. Cuyahoga No. 106250, 2018-Ohio-3367, at ¶ 20.

              Similarly, this court has explained the implications of the appellate

court mandate rule as follows:

      An appellate mandate works in two ways: it vests the lower court on
      remand with jurisdiction and it gives the lower court on remand the
      authority to render judgment consistent with the appellate court’s
      judgment. Under the “mandate rule,” a lower court must “carry the
      mandate of the upper court into execution and not consider the
      questions which the mandate laid at rest.” Sprague v. Ticonic Natl.
      Bank, 307 U.S. 161, 168, 59 S.Ct. 777, 83 L.Ed. 1184 (1939); see also
      State ex rel. Cordray v. Marshall, 123 Ohio St.3d 229, 2009-Ohio-
      4986, at ¶ 32, 915 N.E.2d 633 (“We have expressly held that the Ohio
      Constitution does not grant to a court of common pleas jurisdiction to
      review a prior mandate of a court of appeals.”). The lower court may,
      however, rule on issues left open by the mandate. Id. But when the
      mandate leaves nothing left to decide, the lower court is bound to
      execute it. Id. We have stated that the mandate rule “provides that a
      lower court on remand must implement both the letter and the spirit of
      the appellate court’s mandate and may not disregard the explicit
      directives of that court.” State v. Larkins, 8th Dist. No. 85877, 2006-
      Ohio-90, at ¶ 31.
State v. Carlisle, 8th Dist. Cuyahoga No. 93266, 2010-Ohio-3407, ¶ 16.

               After careful consideration, we find the trial court’s judgment

rendered on December 18, 2018, complied fully with the express directives of our

mandate in Thalman II. Contrary to their position on appeal, this court did not

instruct the trial court to enter judgment in favor of the Clough Heirs on their

counterclaims. In fact, the Thalman II panel characterized the counterclaims as

perfunctory. Thus, having laid the merits of the counterclaims at rest, Thalman II

instructed the court to (1) find the Couse Trust was divided into two trusts pursuant

to the law-of-the-case doctrine, (2) order KeyBank to disburse funds held in the FBO

JSC Trust to the Clough Heirs, (3) vacate the award of attorney fees to KeyBank and

the Schlitt Heirs, and (4) order that the parties bear their own attorney fees. This

court’s mandate left nothing else to decide. On remand, the trial court then executed

the mandate of this court in full compliance with the language set forth in Thalman

II.

               For these same reasons, we find the trial court did not err in denying

the Clough Heirs’ “motion for judgment pursuant to the Court of Appeals remand

and for a hearing on punitive damages, costs and attorney fees.” Preliminarily, we

note that arguments concerning the scope of damages requested in this appeal were

previously requested by the Clough Heirs in Thalman II. For instance, appellants

asked this court to:

      1. Enter judgment in favor of the Clough Heirs for KeyBank’s liability
      for breach of fiduciary duty and trust;
      2. Order KeyBank to pay the Clough Heirs the sum of $609,608.85 (the
      value of the FBOJSC trust on July 4, 2011) from the Couse Trust, with
      an additional amount to be paid by KeyBank equal to interest at the
      statutory rate of 4 percent per annum from July 28, 2011 until paid
      (prejudgment interest);

      3. Order KeyBank to pay the Clough Heirs for their lost investment
      income in the amount of $552,198.15, plus interest at the statutory rate
      of 4 percent per annum from the date of judgment until paid;

      ***

      5. Remand the case for hearing on the Clough Heirs entitlement to an
      award of punitive damages, costs and their attorney fees.

These issues were therefore presented and carefully considered by this court in

Thalman II.     Ultimately, however, this court denied the requested relief by

emphatically stating that the applicable damages in this case are limited to “what

had been ordered in the declaratory judgment portion of [Thalman I],” i.e. —

distribution of the FBO JSC Trust to the Clough Heirs, including the $237,000 that

was taken from the FBO JSC Trust and distributed to the Schlitt Heirs. Thalman II,

8th Dist. Cuyahoga No. 106250, 2018-Ohio-3367, at ¶ 31, citing Thalman I, 8th Dist.

Cuyahoga No. 102624, 2016-Ohio-2832, at ¶ 23. This court explained that “our

holding that the trust had been split vitiated the counterclaims for breach of trust

and breach of fiduciary duty.” Id. at ¶ 30. This is because the Thalman II panel

determined that the distribution of trust funds ordered in the declaratory judgment

were “identical” to the “damages available to the Clough Heirs on their

counterclaims,” thereby rendering the counterclaims “perfunctory,” or moot. Id. at

¶ 31. The panel further held that the parties are to bear the cost of their own attorney
fees. Id. at ¶ 35. The forgoing resolution of posed legal questions constituted the

law of the case.

               We recognize that the Clough Heirs disagree with portions of this

court’s decision in Thalman II. However, no appeal was taken from Thalman II,

and this court will not reconsider its prior decision outside the time period

prescribed by App.R. 26. As such, the trial court did not err in denying the Clough

Heirs’ request to seek attorney fees and additional damages.

               The Clough Heirs’ first, second, third, fourth, and fifth assignments

of error are overruled.

               Judgment affirmed.

      It is ordered that appellee recover from appellants costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to the common pleas court,

probate division, to carry this judgment into execution.




      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, ADMINISTRATIVE JUDGE

SEAN C. GALLAGHER, J., and
LARRY A. JONES, SR., J., CONCUR
