[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. 

 1

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

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 

 2

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

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

3

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

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 
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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