[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, O P I N I O N 

 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 

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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 
Case No. 12-18-14 

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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 
Case No. 12-18-14 

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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. 
Case No. 12-18-14 

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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 crossmotion 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). 
Case No. 12-18-14 

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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. 
Case No. 12-18-14 

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{¶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, 
Case No. 12-18-14 

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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-theevidence 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 
Case No. 12-18-14 

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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 
Case No. 12-18-14 

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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 
Case No. 12-18-14 

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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. 
Case No. 12-18-14 

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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). 
Case No. 12-18-14 

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{¶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 
Case No. 12-18-14 

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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 
Case No. 12-18-14 

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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.). 
Case No. 12-18-14 

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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 
Case No. 12-18-14 

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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 
Case No. 12-18-14 

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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 
Case No. 12-18-14 

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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