[Cite as D'Amore v. Matthews, 2011-Ohio-2038.]


         Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                          JOURNAL ENTRY AND OPINION
                                   No. 95632




                                REGINA D’AMORE
                                                       PLAINTIFF-APPELLANT

                                                 vs.

        RONALD E. MATTHEWS, TRUSTEE, ETC.
                                                       DEFENDANTS-APPELLEES




                                        JUDGMENT:
                                         AFFIRMED


                                 Civil Appeal from the
                        Cuyahoga County Court of Common Pleas
                                 Case No. CV-644219

        BEFORE:          Cooney, J., Boyle, P.J., and Rocco, J.

    RELEASED AND JOURNALIZED: April 28, 2011
ATTORNEY FOR APPELLANT
                                     2


John A. Huettner
610 Skylight Office Tower
1660 West Second Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEES

Timothy S. Rankin
Benjamin W. Ogg
Onda, Labuhn, Rankin & Boggs Co., LPA
266 North Fourth Street
Suite 100
Columbus, Ohio 43215-2511




COLLEEN CONWAY COONEY, J.:

      {¶ 1} Plaintiff-appellant, Regina D’Amore (“D’Amore”), appeals the

trial court’s grant of summary judgment in favor of defendants-appellees,

Ronald E. Matthews (“Matthews”), Trustee of the J. Harvey Crow Trust (“the

Trust”), and Matthews, individually, as successor in interest to the Trust

property (collectively referred to “appellees”). We find no merit to the appeal

and affirm.

      {¶ 2} D’Amore brought this action seeking to recover compensation she

claims J. Harvey Crow (“Crow”) owed her pursuant to a contract. In the

amended complaint, D’Amore alleges that in 1995 she and Crow executed a

handwritten agreement (the “1995 agreement”) in which Crow promised to
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compensate her for services she would perform in connection with the

development of various properties.              The 1995 agreement provided that

D’Amore would be compensated as follows: (1) $300,000 in property, cash, or

services for the years between 1995 and 1998; (2) a vested interest in the

profits derived from the operation, which shall not be less than 15%; and (3)

reimbursement for out-of-pocket expenses.1

       {¶ 3} In 1998, Crow organized Parkwood Ltd. (“Parkwood”), an Ohio

limited liability company, with John MacDonald (“MacDonald”) to develop

property.     Crow transferred approximately 90 acres of land he owned in

Brecksville, Ohio, to Parkwood.              In 1999, Crow executed an operating

agreement relating to the formation, operation, and control of Parkwood. He

never granted an equity interest in Parkwood to D’Amore.

       {¶ 4} In December 2003, Crow, as grantor/settlor, and his grandson

Matthews, as trustee, executed a trust agreement for the J. Harvey Crow

Trust. Crow transferred various assets to the Trust including his interest in

Parkwood.       Upon the transfer, the Trust became the majority owner of

Parkwood.




            In an affidavit submitted in support of summary judgment, Matthews states that Crow
       1


never developed any of the property described in this agreement. Thus, Matthews concludes that
neither party to the 1995 agreement performed under the contract.
                                                 4

       {¶ 5} On August 18, 2004, Crow passed away at the age of 101.                              On

September 14, 2004, the Madison County Probate Court appointed Matthews

the executor of Crow’s estate.

       {¶ 6} On December 11, 2007, D’Amore filed the instant case alleging

breach of contract and promissory estoppel, which she later amended to

include a fraudulent transfer claim. 2                 She did not name the Estate of J.

Harvey Crow or Matthews in his capacity as executor of the estate. She

alleged that Crow fraudulently transferred his assets to the Crow Trust to

avoid paying her the compensation he owed her under the 1995 agreement.

       {¶ 7} Matthews filed a motion for summary judgment claiming that: (1)

D’Amore should have sued Crow’s estate rather than the Trust, (2) her claims

are barred by the applicable statute of limitations, and (3) her claims are

barred by res judicata. Matthews argued that D’Amore’s claims were barred

by res judicata because, as the fourth lawsuit related to Crow’s development

projects, the issues in this case have already been litigated or should have

been litigated in one of the earlier lawsuits. 3                 The trial court agreed and




        This court reversed the trial court in a prior appeal and remanded the case to allow the filing
       2


of an amended complaint. D’Amore v. Matthews, Cuyahoga App. No. 91420, 2009-Ohio-131.

         D’Amore moved for leave to file a second amended complaint on March 15, 2010, a month
       3


after the deadline the court set for filing dispositive motions.
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granted summary judgment in favor of Matthews. D’Amore now appeals,

raising three assignments of error.

       {¶ 8} An appellate court reviews a trial court’s decision on a motion for summary

judgment de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d

241.   Summary judgment is appropriate when, construing the evidence most strongly in favor

of the nonmoving party, (1) there is no genuine issue of material fact; (2) the moving party is

entitled to judgment as a matter of law; and (3) reasonable minds can come to but one

conclusion, that conclusion being adverse to the nonmoving party. Zivich v. Mentor Soccer

Club, Inc. (1998), 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201, citing Horton v. Harwick

Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, paragraph three of the syllabus.

       {¶ 9} As a preliminary matter, Matthews notes that D’Amore’s claims

arise out of Crow’s alleged breach of the 1995 agreement and that, as Crow’s

creditor, her claims should have been brought against Crow’s estate pursuant

to R.C. 2117.06 and not against Matthews or the J. Harvey Crow Trust. This

court has previously held that a claim for money damages arising out of an

alleged breach of contract “comes within the purview of R.C. 2117.06.” Willis

v. McDermott (June 30, 1988), Cuyahoga App. No. 53820.                                   R.C.

2117.06(A)(1)(a) provides that “[a]ll creditors having claims against an estate,

including claims arising out of contract, [or] out of tort * * * whether due or
                                      6

not, secured or unsecured, liquidated or unliquidated, shall present their

claims * * * [t]o executor or administrator in writing.” If the claim is denied,

then claims may be brought by filing a complaint in accordance with R.C.

2117.06.

      {¶ 10} Further, non-probate assets, such as a trust, are not part of the

decedent’s estate and thus are not liable for the estate’s indebtedness. In re

Chadwick (1958), 167 Ohio St.3d 373, 149 N.E.2d 5, paragraph three of the

syllabus.   Therefore, because D’Amore’s complaint fails to state a claim

against the named appellees upon which relief might be granted, we find no

error in the summary judgment granted in favor of the Trust and Matthews.

      {¶ 11} In her second assignment of error, D’Amore argues the trial court

erred in granting summary judgment in favor of appellees because “none of

the defendant’s [sic] arguments for dismissal were meritorious.”      Appellees

argued, inter alia, that D’Amore’s claims are barred by the applicable statutes

of limitations.

      {¶ 12} R.C. 2117.06(B) provides that tort and breach of contract claims

against an estate must be brought within six months.         D’Amore’s claims

consisted of breach of contract, promissory estoppel (a quasi-contract), and

fraudulent transfer (tort).   R.C. 5806.04 provides a two-year statute of

limitations to challenge the validity of a transfer to a trust. Crow passed
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away on August 18, 2004.       On September 14, 2004, the Madison County

Probate Court appointed Matthews as executor of Crow’s estate.         D’Amore

was aware of Crow’s death and of Matthews’s appointment as executor

because she caused her attorney to file a Statutory Agent Update with the

Ohio Secretary of State naming her attorney the new statutory agent for

Parkwood in Crow’s stead five days after Crow’s death. Because D’Amore

did not file her complaint in this case until December 11, 2007, over three

years after Crow’s death, her claims are barred by both R.C. 2117.06(B) and

5806.04, the applicable statutes of limitations.

      {¶ 13} Accordingly, we find D’Amore’s first and third assignments of

error relating to res judicata and the denial of D’Amore’s motion for leave to

file another amended complaint to be moot.

      Judgment affirmed.

      It is ordered that appellees recover of appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court 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.
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______________________________________________
COLLEEN CONWAY COONEY, JUDGE

MARY J. BOYLE, P.J., and
KENNETH A. ROCCO, J., CONCUR
