[Cite as Horstman v. Fanning, 2019-Ohio-2483.]




                     IN THE COURT OF APPEALS OF OHIO
                         THIRD APPELLATE DISTRICT
                             PUTNAM COUNTY




TED HORSTMAN ET AL.,

        PLAINTIFFS-APPELLEES,                             CASE NO. 12-18-14

        v.

DAVID FANNING,                                            OPINION

        DEFENDANT-APPELLANT.




                Appeal from Putnam County Common Pleas Court
                           Trial Court No. 17 CV 102

                                    Judgment Affirmed

                            Date of Decision:    June 24, 2019




APPEARANCES:

        Richard M. Kerger and Kimberly A. Conklin for Appellant

        Bruce Comly French for Appellees
Case No. 12-18-14


PRESTON, J.

       {¶1} Defendant-appellant, David Fanning (“Fanning”), appeals the October

24, 2018 judgment of the Putnam County Court of Common Pleas. For the reasons

that follow, we affirm.

       {¶2} This case stems from a business dispute between plaintiffs-appellees,

Ted and Rick Horstman (“Ted” and “Rick”) (collectively the “Horstmans”),

Fanning, and a fourth individual, Vincent Snell (“Snell”). Ted, Rick, Fanning, and

Snell were members of Ultimate Systems, Ltd. (“Ultimate Systems”), an Ohio

limited liability company that produced colorized rubber materials and end-user

products such as rubber flooring. (See Doc. No. 48, Snell’s Sept. 13, 2018 Depo.,

Ex. B). Each held a 25 percent member interest in Ultimate Systems. (Id.). In

2013, a plan was devised to “freeze” Snell out of Ultimate Systems. (See Oct. 19,

2018 Tr. at 8). Robert Honigford (“Honigford”), Ultimate Systems’s chief financial

officer and corporate attorney, was the “mouthpiece” of the scheme to acquire

Snell’s interest in Ultimate Systems. (Id. at 8-9). In late 2013, Snell’s 25 percent

interest in Ultimate Systems was “eliminated in exchange for a payment of

$525,000” based upon a valuation provided by an accounting firm hired by

Honigford. (Doc. No. 48, Snell’s Sept. 13, 2018 Depo., Ex. B). The acquisition of

Snell’s interest in Ultimate Systems was accomplished in conjunction with a merger

between Ultimate Systems and RDT Manufacturing, LLC (“RDT”), an entity


                                        -2-
Case No. 12-18-14


owned equally by Ted, Rick, and Fanning, with RDT as the surviving entity. (Id.).

In 2014, the assets of RDT, along with the assets of other entities owned by the

Horstmans and Fanning, were sold to a subsidiary of Accella Performance

Materials, Inc. (“Accella”) for $40 million. (Id.); (Doc. No. 19, Ted’s Jan. 25, 2018

Depo. at 8-9).

       {¶3} Soon after the Accella transaction was consummated, Snell, through

Lynx Services, Ltd. (“Lynx”), a company he had previously formed to hold his

interest in Ultimate Systems, filed a complaint against the Horstmans and Fanning

in the United States District Court for the Northern District of Ohio alleging that the

plan to freeze him out of Ultimate Systems violated Ohio law. (See Oct. 19, 2018

Tr. at 8-9); (See Doc. No. 28, Ex. A). Honigford was later added as a defendant to

the federal lawsuit. (See Doc. No. 28, Ex. A).

       {¶4} In late September 2016, Snell was subjected to deposition in Columbus,

Ohio. The Horstmans and Fanning were present at Snell’s deposition; Honigford

was not. (See Oct. 19, 2018 Tr. at 11, 37). On September 30, 2016, the second day

of Snell’s deposition, Snell, Fanning, and the Horstmans met privately to discuss

the possibility of settling the federal lawsuit. (Id. at 11). (See Sept. 30, 2016 Tr. at

3). Eventually, Snell, Fanning, and the Horstmans agreed that Lynx would dismiss

the federal lawsuit in exchange for $4.5 million. (Oct. 19, 2018 Tr. at 11, 37). That

day, the parties recited the general terms of their settlement agreement into the


                                          -3-
Case No. 12-18-14


record. (Sept. 30, 2016 Tr. at 3-5). Later, the parties executed a “Global Settlement

Agreement and General Release” providing that Lynx would dismiss the federal

lawsuit with prejudice in exchange for $4.5 million, $3 million of which was due on

or before November 15, 2016 and $1.5 million of which was due on or before April

30, 2017. (Doc. No. 21, Ex. G). Neither the settlement agreement as recited into

the record nor the written settlement agreement specify who was responsible for

paying what percentage of the $4.5 million. According to the Horstmans and Snell,

the Horstmans were to be responsible for paying $1.5 million each, Fanning was to

pay $1.5 million, and Honigford was not to pay any part of the $4.5 million. (See

Doc. No. 21, Ex. E); (See Oct. 19, 2018 Tr. at 13-14, 21-23). According to Fanning,

however, he never agreed to contribute a specific sum toward the $4.5 million

settlement, and he did not agree that Honigford should not have to pay at all. (See

Fanning Affidavit at 4).

        {¶5} After the parties adopted the written settlement agreement, the

Horstmans each paid $1.5 million to Lynx.1 Subsequently, on or about April 22,

2017, Fanning advised the Horstmans that he did not intend to pay Lynx the

remaining $1.5 million. (Doc. Nos. 1, 7). As a result, the Horstmans decided to




1
  The written settlement agreement provided that Lynx would move to dismiss the federal lawsuit within one
day after receiving the “Initial Payment” of $3 million due in November 2016. (See Doc. No. 21, Ex. G).
Although $1.5 million of the $4.5 million remained outstanding in November 2016, because the Horstmans
made the required $3 million Initial Payment in November 2016, the federal lawsuit was dismissed with
prejudice in November 2016.

                                                   -4-
Case No. 12-18-14


split the remaining $1.5 million payment evenly, with Ted and Rick each paying

Lynx an additional $750,000. (Oct. 19, 2018 Tr. at 16).

        {¶6} On June 22, 2017, the Horstmans filed a complaint in the trial court

against Fanning requesting a judgment for $1,501,748.73 plus interest.2 (Doc. No.

1). On August 4, 2017, Fanning filed his answer to the Horstmans’ complaint.

(Doc. No. 7).

        {¶7} On March 26, 2018, the Horstmans filed a motion for summary

judgment. (Doc. No. 21). On April 24, 2018, Fanning filed a memorandum in

opposition to the Horstmans’ motion for summary judgment as well as a cross-

motion for summary judgment. (Doc. No. 28). On May 7, 2018, the Horstmans

filed a memorandum in opposition to Fanning’s cross-motion for summary

judgment. (Doc. No. 29). On May 9, 2018, Fanning filed a brief in reply to the

Horstmans’ memorandum in opposition to his cross-motion for summary judgment.

(Doc. No. 31).

        {¶8} Following a May 10, 2018 hearing on the motions for summary

judgment, the trial court partially granted the Horstmans’ motion for summary

judgment. (Doc. No. 33). First, the trial court found that the Horstmans and Fanning

“agreed to the settlement amount and incorporated that agreement on the record and



2
  The additional $1,748.73 represents “taxes due to an adjustment to the December 31, 2014, Form 1040 for
RDT Manufacturing, LLC in the sum of one-third (1/3) of $1,290.68; and the sum for additional attorneys’
fees from Bugbee & Conkle in the aggregate sum of $1,318.50.” (Doc. No. 1).

                                                  -5-
Case No. 12-18-14


as a future written settlement agreement” but that “[t]he settlement agreement was

silent as to the contribution amounts as it would pertain to any of the parties.” (Id.).

The trial court concluded that the Horstmans had established that “an agreement to

pay a settlement in the Federal case does exist.” (Id.). In essence, the trial court

concluded that the only issue in dispute was the precise amount of money Fanning

would be required to pay toward the $4.5 million settlement.                 (See id.).

Consequently, the trial court denied the Horstmans’ motion for summary judgment

in part so that the parties could “be heard on the matter as to contribution.” (Id.).

Finally, the trial court denied Fanning’s cross-motion for summary judgment in its

entirety. (Id.).

       {¶9} On October 19, 2018, a bench trial was held to determine the sole

“remaining issue before the Court” which was “the allocation of contribution on

[the Horstmans’] Complaint for Money Damages.” (Doc. No. 56). On October 24,

2018, the trial court entered judgment for the Horstmans in the amount of $1.5

million. (Id.).

       {¶10} Fanning filed a notice of appeal on November 21, 2018. (Doc. No.

64). He raises one assignment of error for our review.

                                Assignment of Error

       The trial court’s judgment is against the manifest weight of the
       evidence and contrary to law.



                                          -6-
Case No. 12-18-14


       {¶11} In his assignment of error, Fanning argues that the trial court’s

judgment in favor of the Horstmans is against the manifest weight of the evidence

or otherwise contrary to law. Specifically, Fanning argues that “in the absence of

proof of an agreement as to the amounts to be paid by each settling defendant, a

judgment against [him] for $1.5 million is improper.” (Appellant’s Brief at 8).

Furthermore, he argues that the trial court’s judgment is contrary to law because it

is based on a conclusion that Honigford, as an employee of Ultimate Systems, could

not have been compelled to make payments toward the settlement agreement. (Id.

at 11). Fanning contends that this conclusion is erroneous as a matter of law. (See

id.). Finally, Fanning argues that even if he did agree to pay $1.5 million, this

agreement would be unenforceable under R.C. 1335.05, Ohio’s Statute of Frauds.

(Id. at 13-14).

       {¶12} “‘When reviewing a civil appeal from a bench trial, we apply a

manifest weight standard of review.’” Lump v. Larson, 3d Dist. Logan No. 8-14-

14, 2015-Ohio-469, ¶ 9, quoting San Allen, Inc. v. Buehrer, 8th Dist. Cuyahoga No.

99786, 2014-Ohio-2071, ¶ 89, citing Revilo Tyluka, L.L.C. v. Simon Roofing &

Sheet Metal Corp., 193 Ohio App.3d 535, 2011-Ohio-1922, ¶ 5 (8th Dist.). “‘[A]

civil judgment “supported by some competent, credible evidence going to all the

essential elements of the case will not be reversed by a reviewing court as being

against the manifest weight of the evidence.”’” Id., quoting Warnecke v. Chaney,


                                        -7-
Case No. 12-18-14


194 Ohio App.3d 459, 2011-Ohio-3007, ¶ 13 (3d Dist.), quoting C.E. Morris Co. v.

Foley Constr. Co., 54 Ohio St.2d 279 (1978), syllabus.

       {¶13} “‘“[W]hen reviewing a judgment under a manifest-weight-of-the-

evidence standard, a court has an obligation to presume that the findings of the trier

of fact are correct.”’” Id. at ¶ 10, quoting Warnecke at ¶ 13, quoting State v. Wilson,

113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 24. “‘The rationale for this presumption is

that the trial court is in the best position to evaluate the evidence by viewing

witnesses and observing their demeanor, voice inflection, and gestures.’” Id.,

quoting Warnecke at ¶ 13, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d

77, 80 (1984). “‘“A reviewing court should not reverse a decision simply because

it holds a different opinion concerning the credibility of the witnesses and evidence

submitted before the trial court.”’” Id., quoting Warnecke at ¶ 13, quoting Seasons

Coal Co. at 81. “‘“A finding of an error in law is a legitimate ground for reversal,

but a difference of opinion on credibility of witnesses and evidence is not.”’” Id.,

quoting Warnecke at ¶ 13, quoting Seasons Coal Co. at 81.

       {¶14} We conclude that competent, credible evidence supports the trial

court’s $1.5 million judgment in favor of the Horstmans. At the outset, we

acknowledge the trial court’s finding that “[t]here were never any discussions as to

who would pay what percentage of the $4,500,000.” (Doc. No. 56). We also

recognize that both the written settlement agreement and the agreement as recited


                                         -8-
Case No. 12-18-14


into the record fail to include provisions allocating responsibility for paying the $4.5

million between the Horstmans, Fanning, and Honigford. Nevertheless, the record

supports that at the time the settlement agreement was finalized, it was understood

that Ted, Rick, and Fanning would each be responsible for paying Lynx $1.5 million

and that Honigford would not be required to pay any part of the $4.5 million. Thus,

the trial court’s conclusion that Fanning should reimburse the Horstmans for the

$1.5 million they paid to discharge his obligation under the settlement agreement is

not against the manifest weight of the evidence.

       {¶15} The testimony of Snell and Ted, as well as other documentary

evidence submitted during the case, support that it was the parties’ understanding

that Fanning would be required to pay $1.5 million and Honigford would be

required to pay nothing. In connection with their motion for summary judgment,

the Horstmans submitted an affidavit executed by Snell that provides:

       [D]uring September 2016, a meeting took place between myself,

       [Ted], [Rick], and [Fanning].

       The purpose of the meeting was to agree [to] an out of court

       settlement. After some negotiations, it was agreed that a payment of

       $4.5 million would be paid.

       It was agreed by Ted and Rick Horstman that they would settle their

       share of $3 million within 30 days, Dave Fanning asked if I would


                                          -9-
Case No. 12-18-14


       wait until the end of April 2017 for him to settle his share of $1.5

       million as he said it would take about six months to get that amount

       realized.

       I agreed to this and then reported our agreement and payment terms

       to my lawyer * * *.

(Doc. No. 21, Ex. E). Snell’s deposition testimony further supports that this was the

arrangement contemplated by the parties present at the settlement negotiations. In

his deposition testimony, Snell confirmed that he, the Horstmans, and Fanning

negotiated to settle the federal lawsuit for $4.5 million. (See Doc. No. 48, Snell’s

Sept. 13, 2018 Depo. Tr. at 8-9). Snell testified that the terms of the agreement were

that he “wanted all the cash immediately.” (Id. at 9). According to Snell, the

Horstmans said that they could have their share within a matter of days but Fanning

“said, * * * after it was agreed, he would need approximately six months to realize

his share of it, which was a third, because we were talking * * * one and a half

million dollars each.” (Id.). He testified that he expected to receive the final

installment of $1.5 million from Fanning in April 2017 and that he incentivized

Fanning to get the money to him sooner by providing a $5,000 per month discount

for early payment. (Id. at 9-10). Snell stated: “The agreement was [that Fanning]

was going to pay [Snell] one and a half million at the end of April the following




                                        -10-
Case No. 12-18-14


year.” (Id. at 14). He testified that he believed that the terms of the agreement and

the parties’ understanding of the agreement were “crystal clear.” (Id.).

       {¶16} On cross-examination, Snell acknowledged that Honigford was also a

defendant in the federal lawsuit.      (Id. at 24-25).   However, he testified that

Honigford was not present at the settlement negotiations and that it was his

understanding that the $4.5 million payment was to be divided between the three

defendants present at the deposition, namely the Horstmans and Fanning. (Id. at

28). Furthermore, Snell testified that he remembered hearing Fanning state that he

would pay $1.5 million. (Id.). Finally, Snell stated that he later called Fanning to

“make sure that the one and a half million was still coming along” but that he had

not spoken to Fanning since. (Id. at 32-33).

       {¶17} Ted’s deposition testimony and trial testimony further corroborate

Snell’s account of the settlement negotiations and the agreement reached by the

parties. Ted remembered the settlement negotiations as follows:

       So after an hour’s worth of discussion, we came upon a number * * *.

       And that number was $4.5 million, of which Rick and I were going to

       pay 1.5 apiece * * * and get that done because it was going to take a

       while for us to get our money out of our different entities to get a $1.5

       million, we needed a month so that gave it to October 31.




                                         -11-
Case No. 12-18-14


       Mr. Fanning, because he had just purchased a company, * * * said,

       Vince, I need more time, * * * because I’m just purchasing a company,

       I don’t have the money right now. * * * Vince gave him an additional

       six months, th[at] being the * * * end of April deadline.

       Vince Snell also said, I tell you what, I’ll give you $5,000 a month

       credit for every month before April that you can pay me off.

(Doc. No. 19, Ted’s Jan. 25, 2018 Depo. Tr. at 20-21). (See Oct. 19, 2018 Tr. at 11-

13). Ted insisted repeatedly that at the end of the September 30, 2016 settlement

negotiations, they “ended up settling [on] 4 and a half, which was a million and a

half a piece” with the understanding that he and Rick “were each to pay a million

and a half, [and] Mr. Fanning was to pay a million and a half, with a $30,000

incentive if he could pay it off early.” (Oct. 19, 2018 Tr. at 11-12). Ted testified

that he did not question why the written settlement agreement failed to specify who

would be responsible for paying what portion of the $4.5 million “[b]ecause as

[they] were all in the room, the four of [them], that would be Mr. Snell, Rick,

[Fanning], and [himself], [they] had [their] agreement amongst [themselves]. * * *

[They] decided how it was going to be settled.” (Doc. No. 19, Ted’s Jan. 25, 2018

Depo. Tr. at 25). He remarked that Fanning understood that the $1.5 million due in

April 2017 was “his portion to pay.” (Id. at 28).




                                        -12-
Case No. 12-18-14


       {¶18} As to Honigford’s payment obligations under the settlement

agreement, Ted testified that Honigford “wasn’t involved in the pay-out” to Snell at

all because “[h]e was not an owner” of Ultimate Systems. (Id. at 22). He stated that

“it was agreed upon between [Rick], and [Fanning], and [himself], [that] Mr.

Honigford was just the attorney, he had nothing in it.” (Id. at 22-23). According to

Ted, the parties understood that Honigford did not “have the asset base” to pay into

the settlement. (Id. at 23). Ted testified that he knew that Honigford would agree

to the terms of the settlement agreement because “when the four of [them] came out

of that room with an agreement, it was * * * one million and a half dollars for

[himself], one million and [a] half dollars for Rick, and one million and a half dollars

for Dave Fanning”; it was “agreed there would be no contribution by Mr.

Honigford” and “nothing [was] coming out of his pocket.” (Oct. 19, 2018 Tr. at

23). He stated that Honigford’s ultimate assent to the terms of the settlement

agreement was based on Honigford’s understanding that he would not be liable for

any part of the $4.5 million. (See id. at 13-14). Finally, Ted testified that Fanning

did not say or do anything at the settlement negotiations suggesting that he was

dissatisfied with the arrangement obligating him to pay $1.5 million and he did not

suggest that Honigford should pay some portion of the $4.5 million. (Id. at 17-18).

       {¶19} In contrast, Fanning’s recollection of the settlement negotiations and

the arrangement agreed to by the parties deviates significantly from the version


                                         -13-
Case No. 12-18-14


advanced by Ted and Snell. Fanning’s version of events is well summarized by an

affidavit he submitted with his cross-motion for summary judgment. His affidavit

provides, in relevant part:

       Ted, Rick, [Snell], and I went into a room without lawyers and Ted

       announced that [Snell] wanted $5 million to settle and we were

       offering $4.5 million. [Snell] said okay and the conversation went on

       about how 3 million would get paid in 30 days and then the rest by

       April of 2017.

       There was never an agreement as to how the 4.5 million would be paid

       among the four Defendants- and since Honigford was not even at this

       meeting my assumption was that we would work it out later. I recall

       Ted suggesting that we all pay an even 1.5 million, but that left

       Honigford out and I never agreed to it. Later Ted informed me that

       Honigford “couldn’t pay” so we were just going to forget about him

       and so I had to pay $1.5 million. At no time did I agree to pay 1.5

       million towards the settlement.

(Fanning Affidavit at 4).

       {¶20} In his deposition testimony and trial testimony, Fanning reiterated that,

with respect to the division of responsibility for paying the $4.5 million settlement,

they “never agreed upon who owed what.” (Doc. No. 20, Fanning’s Jan. 25, 2018


                                         -14-
Case No. 12-18-14


Depo. Tr. at 41). (See Oct. 19, 2018 Tr. at 44). He testified that there was an

agreement that the federal lawsuit would be settled but that “there was no package

put together” concerning how payment for the $4.5 million would be allocated.

(Doc. No. 20, Fanning’s Jan. 25, 2018 Depo. Tr. at 44). Fanning stated that he was

silent throughout the settlement negotiations until it was generally agreed that the

federal lawsuit would be settled for $4.5 million, at which point he “just told them

[he] had all [his] money tied up and there was no way [he] could do it.” (Oct. 19,

2018 Tr. at 39-40, 42-43). Fanning conceded, however, that during the settlement

negotiations, he never said that he was not going to pay anything toward the $4.5

million and he never expressed the “slightest concern on [his] part about paying the

bill.” (Id. at 44-45). He further acknowledged that he owes “some” obligation to

pay a portion of the $4.5 million, but he testified that he never specifically agreed

to pay $1.5 million. (Doc. No. 20, Fanning’s Jan. 25, 2018 Depo. Tr. at 57-59, 70).

       {¶21} Fanning disputed Ted’s and Snell’s testimony that the $1.5 million due

in April 2017, along with the $5,000 per month discount for early payment, was

meant to accommodate his inability to pay $1.5 million in 2016. Fanning testified

that all “that was said [was that Ted and Rick would] pay in 30 days * * * and then

six months from now 1.5.” (Oct. 19, 2018 Tr. at 50). He insisted that it was not his

understanding that he would have to pay the $1.5 million due in April 2017 but that

“it * * * just laid out on the table that’s just how the payments would go.” (Id.).


                                        -15-
Case No. 12-18-14


According to Fanning, “[i]t was never laid out who was going to do what, when and

where. * * * It was just lump numbers.” (Id.). Nevertheless, he testified that it was

“probably” a “perfectly fair conclusion” that, because the Horstmans were paying

$1.5 million each and there was $1.5 million “out there for six months,” he was

responsible for paying the $1.5 million due in April 2017. (Id. at 51).

       {¶22} Finally, regarding Honigford’s potential responsibility to pay a portion

of the $4.5 million, Fanning testified that “Ted said that Honigford didn’t have any

money so [they were] not even going to ask him” to pay. (Id. at 56). Fanning stated

that he believed that he should ask about Honigford’s contribution but that he did

not ask and he did not know why he did not ask other than that the Horstmans were

“driving” the settlement negotiations. (Id.). Fanning testified that there was no

conversation during the settlement negotiations about whether Honigford would

contribute to the settlement agreement. (Id. at 58). He testified that he believed that

he suggested that Honigford pay something toward the settlement but he could not

remember when he said so. (Id.). However, Fanning stated that he did not express

concern that Honigford was absent from the settlement discussions. (Id. at 37).

       {¶23} In this case, the trial court was tasked with selecting between two

competing narratives. In one, the version urged by the Horstmans, it was clearly

understood by all parties at the time the settlement agreement was finalized that the

$4.5 million payment would be divided equally between Ted, Rick, and Fanning


                                         -16-
Case No. 12-18-14


and that Honigford would not be liable for any share of the $4.5 million. In the

other, promoted by Fanning, the parties agreed that $4.5 million would be paid to

Lynx but there was no understanding as to who would be responsible for paying

what portion of the $4.5 million. Ultimately, the trial court credited the Horstmans’

version of events over Fanning’s, and as detailed above, there is ample evidence in

the record supporting the trial court’s decision to do so. Therefore, the trial court’s

conclusion that Fanning incurred a $1.5 million obligation under the settlement

agreement and that he should reimburse the Horstmans for paying his obligation is

not against the manifest weight of the evidence.

       {¶24} In addition to arguing that the trial court’s judgment is against the

manifest weight of the evidence, Fanning also argues that the trial court’s judgment

is contrary to law. First, Fanning argues that the trial court’s judgment is contrary

to law because it is based, at least in part, on the trial court’s incorrect legal

conclusion that Honigford “was an employee of the business and would not have

responsibility to contribut[e] to the settlement.” (Doc. No. 56). Fanning’s argument

is without merit. Assuming (without deciding) that Fanning is correct that the trial

court erred by concluding that Honigford would not have responsibility to contribute

to the settlement because he was merely an employee of Ultimate Systems, such

error would have no impact on whether Honigford has a responsibility to pay any

part of the $4.5 million. Here, Honigford’s liability, or lack thereof, is not rooted in


                                         -17-
Case No. 12-18-14


general principles of employment or agency law.         Rather, Honigford is not

responsible for paying a portion of the $4.5 million settlement because the parties

agreed that Honigford would bear no responsibility for any part of the $4.5 million.

Thus, even if Honigford would be liable under the default rules of employment or

agency law, the parties, through their arrangement, bypassed those rules.

       {¶25} Furthermore, Fanning argues that the trial court’s judgment is contrary

to law because any oral agreement he may have made to pay $1.5 million is

unenforceable under R.C. 1335.05, Ohio’s Statute of Frauds. Specifically, Fanning

argues that any promise to pay Lynx $1.5 million would necessarily include a

promise to pay part of Honigford’s share of the $4.5 million settlement figure.

(Appellant’s Brief at 13-14). He contends that “[b]y agreeing to let Honigford out

without paying a dime, [he] would not have been serving his own business or

pecuniary interest * * *.” (Id. at 14). According to Fanning, “any promise * * * to

pay [Honigford’s] share would have needed to be in writing and signed pursuant to

R.C. 1335.05.” (Id.).

       {¶26} Fanning’s argument is misplaced. R.C. 1335.05 provides:

       No action shall be brought whereby to charge the defendant, upon a

       special promise, to answer for the debt, default, or miscarriage of

       another person * * * unless the agreement upon which such action is

       brought, or some memorandum or note thereof, is in writing and


                                       -18-
Case No. 12-18-14


       signed by the party to be charged therewith or some other person

       thereunto by him or her lawfully authorized.

Thus, the existence of a promise to answer for a “debt, default, or miscarriage of

another person” is essential to the applicability of R.C. 1335.05. Under the trial

court’s factual findings, which, as discussed above, are supported by competent,

credible evidence, Honigford did not incur any debt in connection with the federal

lawsuit. The entire debt owed to Lynx, $4.5 million, arose from the settlement

agreement and was divided equally between Fanning and the Horstmans. Therefore,

Fanning’s assent to paying $1.5 million was not a promise to answer for the debt of

another; it was a promise to pay his own debt and his own debt alone.

       {¶27} Fanning’s assignment of error is overruled.

       {¶28} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.

/jlr




                                        -19-
