[Cite as Sullinger v. Reed, 2021-Ohio-2872.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

HARDIN COUNTY 

 

DOUG SULLINGER, 

 CASE NO. 6-20-14 

 PLAINTIFF-APPELLANT, 

 v. 

 

DOUG REED, DBA R & R FARMS, ET AL., O P I N I O N 

 DEFENDANTS-APPELLEES. 

 

Appeal from Hardin County Common Pleas Court 

Trial Court No. CVH 20191047 

Judgment Affirmed 

Date of Decision: August 23, 2021 

 

APPEARANCES: 

Joseph B. Clark for Appellant 

David R. Watkins for Appellees, Doug and Kathy Reed, DBA R & R 

Farms 

 
Case No. 6-20-14 

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WILLAMOWKSI, P.J. 

{¶1} Plaintiff-appellant Douglas A. Sullinger (“Doug”) appeals the judgment 

of the Hardin County Court of Common Pleas, alleging that the trial court erred in 

(1) finding that a valid lease agreement existed in this case; (2) finding that Doug 

was a third party beneficiary of this lease agreement; and (3) not granting Doug’s 

motion to dismiss. For the reasons set forth below, the judgment of the trial court 

is affirmed. 

Facts and Procedural History 

{¶2} In 2016, Doug and his brother, Don J. Sullinger (“Don”), came into 

ownership of a property called the Silver Creek Farm (“Silver Creek”). Tr. 168. 

However, their mother, Joan A. Sullinger (“Joan”), still had a life estate in this 

property. Tr. 168. On March 21, 2017, Don, as attorney-in-fact for Joan, entered 

into a lease agreement (“2017 Lease”) with Douglas R. Reed (“Reed”) and his wife, 

Kathy Reed (collectively “the Reeds”). Doc. 1. Ex. A. The Reeds did business as 

R & R Farms. Tr. 21-22. Ex. A. Doc. 1. 

{¶3} The 2017 Lease gave the Reeds the right to farm Silver Creek and 

contained the following provision: 

The term of said lease is a continuing contract based on the life of 

Joan A. Sullinger starting with the crop year 2017. The lease 

terminates on December 31 of the then current crop year that 

Joan A. Sullinger passes away prior to July 1st of that year. Or, 

the lease terminates on December 31 of the following year that 

Joan A. Sullinger passes away after June 30th of the then current 

crop year. Or either party may terminate the lease by written 
Case No. 6-20-14 

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notice delivered on or before November 1 of any year to be 

effective on December 31 of the following year. 

Ex. A. Further, the Reeds were to make the rental payments due under the 2017 

Lease on a quarterly basis. Ex. A. Tr. 23. 

{¶4} In 2018, Reed spent roughly $6,400.00 to plant a cover crop at Silver 

Creek to “benefit the soil” for the 2019 season. Tr. 27-28. Ex. M. He also took 

soil samples from the fields to determine where nutrients may need to be applied. 

Tr. 40. Reed testified that the lease required him to take soil samples and that this 

cost him approximately $3,000.00. Tr. 42. Doc. 1. In 2018, Reed made the first 

three quarterly payments that were due under the 2017 Lease to Joan. Tr. 24-25. 

{¶5} But on November 28, 2018, Joan passed away, “vesting the [Silver 

Creek] property equally in her two sons and remaindermen[, Don] and his brother 

Doug Sullinger, as tenant(s) in common[.]” Doc. 30, Ex. 2. See Tr. 169. In 

December of 2018, the final quarterly payment came due. Ex. A. In accordance 

with the terms of the 2017 Lease, Reed tendered half of the fourth quarterly payment 

to Don and tendered the other half to Doug. Tr. 25, 170. Ex. A. Both Doug and 

Don cashed the checks that Reed had issued. Tr. 26, 169. 

{¶6} On December 12, 2018, Doug’s attorney, Kimberly Savich (“Savich”), 

sent an email to Don that read as follows: 

My condolences on the passing of your mother. Doug has asked 

me to handle the Silver Creek property for him. I understand 

that you will be taking the necessary steps to clear the property of 

the life estate designation. Please keep me apprised. Also, 
Case No. 6-20-14 

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according to the lease that you entered into on behalf of the farm, 

the lease with Doug Reed will terminate after next planting 

season. As Doug has mentioned previously, he is unhappy that 

the land is tied up in a lease for another year after the life estate 

ends. He would like to know whether Mr. Reed intends to 

purchase the property or if you are interested in purchasing the 

property. Mr. Reed can send Doug’s 1⁄2 of the quarterly payment 

to [Address Omitted]. 

Ex. B. On February 8, 2019, Savich emailed Reed the following statement: 

Doug Sullinger has received the documents that you sent. Thank

you for providing those to us quickly. * * * 

As you are aware, Doug Sullinger disagrees with Don’s 

interpretation of the farm lease. We believe that it terminated 

when the life estate terminated as neither Don through the POA,

nor Joan Sullinger had the authority to extend the lease out past 

the life estate. Please advise us as to your intentions with regards 

to the 2019 crop season by Friday, February 15th[, 2019]. 

Ex. E. Reed testified that the documents referred to in this email contained the 

results of the soil samples that he paid to have taken on Silver Creek. Tr. 41. He 

sent these documents because Doug had requested these results earlier in 2019. Tr. 

41, 178. Reed was not reimbursed for the expenses related to procuring these soil 

samples. Tr. 43, 179. On February 26, 2019, Savich sent Reed the following email: 

On Friday, February 8 I emailed you regarding the Silver Creek 

Farm lease. In that email, I explained our position with regard to 

the termination of the lease and that we do not believe that the 

lease is in effect. I asked you to respond by Friday, February 15 

with your intentions with respect to this planting season. You

have yet to respond. Let me reiterate our position: You do not

have the right to enter the Silver Creek property. You may not

prepare the land for planting, plant, or take any other action to 

move forward with in the usage of that property for the 2019 crop 

year. Should you have any equipment or personal property left 
Case No. 6-20-14 

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on the Silver Creek property, it must be removed by March 15, 

2019. If we have not received a response indicating that you will 

not be taking actions to move forward with the 2019 crop year on 

the Silver Creek property by that date, be advised that we intend 

to file an injunction and will be enforcing our property rights to 

the fullest extent under the law. * * * 

Ex. F. However, on March 1, 2019, Don sent the following email to Reed: 

I am writing to you to invite you to continue farming the Silver 

Creek property for the 2019 crop year, and I intend to honor the 

lease agreement entered into with the Joan Sullinger Life Estate 

as it is currently written. As we both know, at the end of 2018 you 

invested significant time, capital, and energy in preparing the

property for the 2019 season. The ability to realize a return on 

this investment is critical, for both you as a tenant and me as an 

owner of the property. Without showing a history of profitability 

on the property, the value of that property is diminished and will 

impact the final sale value. 

My intentions were further illustrated by cashing the rental check 

that you sent at the end of 2018. By cashing the check, I 

acknowledged that the lease was valid after the ending of the Life 

Estate. I appreciate you remitting the lease payments in a timely 

manner. 

Finally with regards to my Brother Doug, by attempting to 

enforce his interpretation of the lease with regards to termination 

he and his counsel are denying my right to earn rental income 

from the property. A clear indication of this is that they have not 

come forward with anyone willing to rent the property. 

Furthermore, to my knowledge he and his counsel have not 

provided you with any plan on reimbursement for the investment 

you have made into the 2019 season. 

 * * * 

 Don J. Sullinger, Sr. 
Case No. 6-20-14 

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Ex. C. On March 25, 2019, Reed tendered the first quarterly payment of the year to 

Don and Doug by issuing each of them checks for one half of the sum that was due. 

Tr. 43. Don negotiated this check and kept the funds, but Doug did not negotiate 

this check. Doc. 106. Reed testified that Doug also did not return this check to him. 

Tr. 46-47. See Tr. 173, 176-177. 

{¶7} On April 9, 2019, the sheriff and Doug’s counsel served Reed with a 

notice that directed the Reeds to leave the Silver Creek premises within three days. 

Doc. 1, Ex. B. Tr. 51-52. Reed testified that this notice came “right at planting 

season.” Tr. 51-52. On April 16, 2019, Doug filed a complaint that named Don and 

the Reeds as defendants. Doc. 1. Doug raised several claims, including a request 

for a declaratory judgment that stated the 2017 Lease was no longer in effect. Doc. 

1. 

{¶8} On April 20, 2019, Reed sent an email to Savich, stating that he 

“intend[ed] to exercise [his] * * * right to farm the Silver Creek property as set forth 

in the rental agreement.” Ex. F. However, Reed testified that he ultimately did not 

plant any crops at Silver Creek during the 2019 planting season because of the 

eviction notice that had been served on him at Doug’s direction. Tr. 51-52. Doc. 

106. 

{¶9} On May 10, 2019, Don filed an answer and counterclaims, requesting a 

partition of Silver Creek and raising a claim for unjust enrichment. Doc. 14. On 

May 29, 2019, the Reeds filed an answer and counterclaim. Doc. 21. The Reeds 
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requested damages for the expenses that they incurred in preparing Silver Creek for 

the 2019 planting season and for the lost profits that came from being unable to farm 

Silver Creek in 2019. Doc. 21. On July 29, 2019, Don filed a motion to dismiss 

Doug’s complaint for failure to state a claim upon which relief could be granted. 

Doc. 16. 

{¶10} On February 7, 2020, the trial court granted Don’s motion to dismiss 

the claims raised in Doug’s complaint. Doc. 75.1, 2 After this order, only the 

counterclaims raised by Don and the Reeds remained. Doc. 75. On April 6, 2020, 

after reaching an agreement to resolve their disputes, Don and Doug filed a joint 

notice of voluntary dismissal with prejudice under which the parties agreed to 

dismiss the claims against each other. Doc. 93. At this point, only the counterclaims 

filed by the Reeds against Doug remained for trial. 

{¶11} On May 13, 2020, Doug filed a motion to dismiss the Reeds’ 

counterclaims for failure to state a claim upon which relief could be granted. Doc. 

99. Doug argued, in part, that the Reeds had failed to demonstrate a basis on which 

he could be held liable under the 2017 Lease. Doc. 99. On June 3, 2020, Reed and 

1

 Doug’s claims for forcible entry and detainer, rescission, and a declaratory judgment were rendered moot 

by the fact that the contested lease expired on December 31, 2019. Doc. 75. The trial court dismissed his 

slander of title claim for failure of proof; his quiet title claim as his interest in the property was not a contested 

issue between the parties; and his “duties to joint tenant” claim as no damages were established. Doc. 75. 2

 On March 6, 2020, Doug appealed the trial court’s decision to dismiss his amended complaint. Sullinger 

v. Sullinger, 3d Dist. Hardin No. 6-20-06, 2020-Ohio-5225, ¶ 9-10. In this prior appeal, we affirmed the 

ruling of the trial court in a decision that was released on November 9, 2020. Id. at ¶ 42. 
Case No. 6-20-14 

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Doug both testified at a bench trial. Tr. 1, 19, 167. The trial court also considered 

arguments regarding Doug’s motion to dismiss.3

 Tr. 6. 

{¶12} On August 24, 2020, the trial court issued its judgment entry. Doc. 

106. The trial court found that Don affirmed the 2017 Lease in writing through the 

March 1, 2019 email; that the Reeds accepted the continuation of the lease by 

continuing to make the quarterly payments that were due; that Doug “wrongfully 

prohibited” the Reeds from entering into the Silver Creek premises; that Doug’s 

conduct caused the Reeds to incur damages. Doc. 106. 

{¶13} The trial court determined that the Reeds had suffered a total of 

$62,545.91 in damages. Doc. 106. However, Doug was entitled to a total of 

$19,947.00 in rental payments under the lease agreement. Doc. 106. The trial court 

offset the total amount of damages that the Reeds incurred by the total amount of 

rental payments that Doug was due. Thus, the trial court then ordered Doug to pay 

the Reeds a total of $42,598.91 in damages. Doc. 106. 

{¶14} Doug filed his notice of appeal on September 21, 2020. Doc. 108. On 

appeal, he raises the following three assignments of error: 

First Assignment of Error 

The trial court erred in finding a valid lease agreement, 

enforceable against the Appellant, where no contractual privity

existed to bind the Appellant without his assent or authorization 

to the contract. 

3

 At trial, the trial court stated that “[t]he motion [to dismiss] is really a motion in summary judgment” and 

that it would hear the relevant arguments “as part of the case and rule on it all at once.” Tr. 6. 
Case No. 6-20-14 

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Second Assignment of Error 

The trial court erred in finding that Appellant was a third-party 

beneficiary under a renewed lease agreement between Don J. 

Sullinger and Appellees and imposing contractual obligations 

pursuant thereto. 

Third Assignment of Error 

The trial court erred in denying Appellant’s Motion to Dismiss 

for failure to state a claim upon which relief could be granted as 

Appellees could prove no set of facts to support a breach of 

contract claim entitling them to relief and where Appellees failed 

to join all necessary parties, despite numerous opportunities to do 

so, thereby preventing full adjudication of the claims at trial. 

First Assignment of Error 

{¶15} Doug makes three arguments under this assignment of error. He 

asserts (1) that the trial court erred by relying on inadmissible hearsay in reaching 

its decision; (2) that the 2017 Lease was unenforceable against Joan’s heirs; and (3) 

that a tenant in common cannot contractually obligate a cotenant without that 

cotenant’s authorization or acceptance. We will consider each of these arguments 

in three separate analyses. 

Legal Standard for the First Argument 

{¶16} In general, “[t]he decision to admit or exclude evidence rests in the 

trial court’s sound discretion and we will not reverse its decision absent an abuse of 

that discretion.” Brown v. Brown, 2017-Ohio-8938, 102 N.E.3d 72, ¶ 46 (3d Dist.). 

However, if “[a] party[] fail[s] “to object to the receipt or use of evidence when the 

alleged error could be remedied,” then that party “waives * * * [the] right to address 
Case No. 6-20-14 

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that issue on appeal.” Cunningham v. Goodyear Tire & Rubber Co., 104 Ohio 

App.3d 385, 662 N.E.2d 73 (9th Dist. 1995). See Wall v. McMillan, 3d Dist. Shelby 

No. 17-01-11, 2002-Ohio-1022, 2002 WL 358464, *5 (Mar. 5, 2002) (holding that 

“the failure to object to the admission of evidence generally waives the right to 

assign error on appeal”). 

Legal Analysis for the First Argument 

{¶17} On appeal, Doug argues that the trial court erred in admitting an email 

(“Exhibit C”) that was sent from Don to Reed on March 1, 2019 into evidence. At 

the bench trial in this case, Reed was asked to identify Exhibit C. Tr. 43. Before 

Reed had identified Exhibit C, Doug objected. Tr. 43. In response, the trial court 

stated the following: 

We’re not talking about admitting evidence, we’re just simply 

identifying the evidence. You’ll get a chance when they move—if 

they move admission, that’s when I think your objection at that

point would be more appropriate. So I’ll overrule at this time. 

You [Reed] can go ahead and identify it and then you all fight over 

these things when they’re moved into admission, if they are. 

Tr. 44. After Doug and Reed had testified, the trial court asked the parties to offer 

their exhibits for admission into evidence. Tr. 155. At this time, the following 

exchange occurred: 

[Trial Court]: Mr. Clarke [Doug’s counsel], A is being offered. 

 Mr. Clarke: No objection. 

 (Reed Exhibit A admitted.) 
Case No. 6-20-14 

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 [Trial Court]: All right. B is being offered. 

 Mr. Clarke: No objection. 

 (Reed Exhibit B admitted.) 

 [Trial Court]: All right. C? 

 Mr. Clarke: No objection. 

 (Reed Exhibit C admitted.) 

 [Trial Court]: D? 

 Mr. Clarke: Objection. Hearsay. 

(Emphasis added.) Tr. 155-156. Thus, Doug did not raise an objection when 

Exhibit C was offered for admission into evidence, though he did raise objections 

to three other exhibits that were subsequently offered by the Reeds. Tr. 156-158. 

{¶18} In Genesis Respiratory Services, Inc. v. Hall, the Fourth District Court 

of Appeals considered a factually similar situation. Genesis Respiratory Services, 

Inc. v. Hall, 99 Ohio App.3d 23, 30-31, 649 N.E.2d 1266 (4th Dist. 1994). On 

appeal, appellant challenged the admission of “Exhibit Six,” alleging that it 

contained inadmissible hearsay. Id. at 30. The Fourth District noted that, while 

“appellant raised a hearsay objection to the testimony regarding the exhibit, 

appellant failed to object to the admission of the exhibit itself.” Id. In fact, when 

Exhibit Six was offered for admission into evidence, appellant said, “I have no 

objection to [Exhibits] 35, 6, and 7.” Id. at 31. The Fourth District concluded that 
Case No. 6-20-14 

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“[b]y failing to object to the admission of the exhibit at trial, appellant waived any 

error concerning the admission of the exhibit.” Id. 

{¶19} Turning to the facts of the case before us, the trial court expressly 

directed Doug to raise any objections that he had regarding the admissibility of 

Exhibit C when it was being offered for admission into evidence. Tr. 44. At the 

end of this bench trial, the trial court asked Doug whether he had any objections to 

each of the exhibits offered by Reed. Tr. 155-158. Doug ultimately chose not to 

object to Exhibit C when the opportunity to challenge its admissibility arose. Tr. 

155-156. In fact, he expressly stated that he had “no objection” to Exhibit C. Tr. 

156. 

{¶20} Since Doug did not object to the admission of Exhibit C before the 

trial court, he has waived this issue on appeal. See Amerifirst Savings Bank of Xenia 

v. Krug, 136 Ohio App.3d 468, 482, 737 N.E.2d 68, 77 (2d Dist. 1999); Van Scyoc 

v. Huba, 9th Dist. Summit No. 22637, 2005-Ohio-6322, ¶ 18-19; Merriman v. 

Merriman, 11th Dist. Portage Nos. 2003-P-0030, 2003-P-0076, 2004-Ohio-3511, ¶ 

30. As such, Doug’s first argument under this assignment of error is without merit. 

Legal Standard for the Second Argument 

{¶21} A life estate is “an estate held only for the duration of a specified 

person’s life.” Black’s Law Dictionary (11th ed. 2019). This person—the life 

tenant—is, “until death, * * * beneficially entitled to [the] property” subject to the 

life estate. Id. “A person possessing a life estate in specified property can lease the 
Case No. 6-20-14 

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property to someone else for the duration of the life estate.” Durben v. Malek, 5th 

Dist. Tuscarawas No. 2013 AP 08 0032, 2014-Ohio-2611, ¶ 66. However, “[l]eases 

given by the life tenant expire on the death of the original measuring life.” Fruth v. 

Shultz, 6th Dist. Wood No. WD-94-052, 1995 WL 283891, *3 (May 12, 1995), 

quoting 2 Powell on Real Property (1994), 15-57, 15-58, Paragraph 203[3]. 

{¶22} For these reasons, on the death of a lessor-life tenant, “a lease made 

by the life tenant ordinarily terminates even though the stated term for which it was 

made has not expired, and, as to the remainderman, the lease becomes void.” 31 

Corpus Juris Secundum, Estates, Section 65 (2021). 

[T]he lessee may not be entitled to any rights under the lease 

unless there is a ratification of the lease by the remainderman, 

and the ratification may be required to be in writing. It is not 

necessary that the ratification be indorsed on the lease itself, and 

any writing denoting recognition and approval amounts to 

ratification. 

Id. Further, “[t]he acceptance of rent from the lessee by the remainderman after the 

life tenant dies does not itself ratify or adopt the lease * * *.” Id. 

Legal Analysis for the Second Argument 

{¶23} In this case, the 2017 Lease between Joan and the Reeds contained the 

following provision: 

The term of said lease is a continuing contract based upon the life 

of Joan A. Sullinger starting with crop year 2017. The lease 

terminates on December 31 of the then current crop year that 

Joan A. Sullinger passes away prior to July 1st of that year. Or, 

the lease terminates on December 31 of the following year that 
Case No. 6-20-14 

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Joan A. Sullinger passes away after June 30th of the then current 

crop year. * * * 

Ex. A. Under the strict wording of this provision, the 2017 Lease was set to expire 

on December 31, 2019 since Joan passed away on November 28, 2018. Tr. 169. 

{¶24} But while the language of the 2017 Lease provided for the 

continuation of this agreement beyond Joan’s life, she only had a life estate in Silver 

Creek. Tr. 168. “Leases given by the life tenant expire on the death of the original 

measuring life.” Fruth, supra, at *3. See 31 Corpus Juris Secundum, Estates, 

Section 51, at 101 (1996) (“The general rule [is] that a life tenant cannot create by 

lease any term that will outlast his own estate * * *.”). Nonetheless, the Reeds, as 

lessees, could still have rights under the 2017 Lease if “there [was] a ratification of 

the lease by the remainderman * * *.” 31 Corpus Juris Secundum, Estates, Section 

65 (2021). 

{¶25} In this case, Don, as a remainderman of Joan’s life estate, expressly 

ratified the terms of the 2017 Lease in an email he sent to Reed on March 1, 2019. 

Ex. C. This email reads as follows: 

I am writing to you to invite you to continue farming the Silver 

Creek property for the 2019 crop year, and I intend to honor the 

lease agreement entered into with the Joan Sullinger Life Estate 

as it is currently written. As we both know, at the end of 2018 you 

invested significant time, capital, and energy in preparing the

property for the 2019 season. The ability to realize a return on 

this investment is critical, for both you as a tenant and me as an 

owner of the property. Without showing a history of profitability 

on the property, the value of that property is diminished and will 

impact the final sale value. 
Case No. 6-20-14 

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My intentions were further illustrated by cashing the rental check 

that you sent at the end of 2018. By cashing the check, I 

acknowledged that the lease was valid after the ending of the Life 

Estate. I appreciate you remitting the lease payments in a timely 

manner. 

* * * 

Don J. Sullinger, Sr. 

Ex. C. Thus, Don did more than accept rental payments from the Reeds. 31 Corpus 

Juris Secundum, Estates, Section 65 (2021). He issued Reed a “writing [that] 

denot[ed] recognition and approval” of the 2017 Lease. Id. In response to this 

email, Reed continued to fulfill his obligations under the 2017 Lease by tendering 

all four of the quarterly payments that were due in 2019 to Don. Doc. 106. 

{¶26} In conclusion, even though Joan’s death had terminated her life estate 

in the Silver Creek property, the Reeds still had rights under the 2017 Lease 

agreement because Don, as a remainderman, ratified the terms of the 2017 Lease. 

Contrary to Doug’s argument, the 2017 Lease was an enforceable agreement. For 

these reasons, Doug’s second argument under this assignment of error is without 

merit. 

Legal Standard for the Third Argument 

{¶27} “A tenancy in common is a joint interest in property” in which the 

cotenants have “a unity or right of possession.” Koster v. Boudreaux, 11 Ohio 

App.3d 1, 5, 463 N.E.2d 39, 43 (6th Dist. 1982). In this arrangement, “[t]enants in 
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common hold * * * distinct titles, with unity of possession.” 86 Corpus Juris 

Secundum, Tenants in Common, Section 3, at 261 (1997). Because cotenants have 

distinct titles, “one cotenant cannot convey away the interest of another cotenant.” 

Lewellyn v. Village of South Zanesville, 43 Ohio App. 385, 390, 183 N.E. 306, 308 

(5th Dist. 1932). However, since 

‘[e]ach tenant in common has a separate and distinct title, and * 

* * holds this title independently of the other cotenants,’ * * * 

‘[e]ach cotenant’s interest can be transferred, devised or 

encumbered separately and without the consent of the other 

cotenants.’ 

Marks v. Aurora Bd. of Zoning Appeals, 2016-Ohio-5183, 69 N.E.3d 216, ¶ 42 (11th 

Dist.), quoting Koster, at 5. 

{¶28} While cotenants have distinct titles, “each tenant in common is equally 

entitled to the use, benefit, and possession of the common property * * *.” 86 

Corpus Juris Secundum, Tenancy in Common, Section 17, at 278 (1997). 

A tenant in common has an interest in the possession of every part 

of the common property and has the right to occupy the whole of

the property and every part thereof, but is not entitled to exclusive 

possession of the whole or of any particular part, as against the 

other cotenants, except by agreement with them. 

 

Id., Section 22, at 281. 

Any co-owner of real property has a right to enter upon the 

common estates and take possession of the property, subject to the 

right of his co-tenants to take possession. Further, one * * * [co-] 

tenant cannot recover sole possession from another co-tenant, but 

can only share possession. 

Collins v. Jackson, 34 Ohio App.3d 101, 103, 517 N.E.2d 269, 271 (8th Dist. 1986). 
Case No. 6-20-14 

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{¶29} “[T]he law * * * presume[s] that the possession of some cotenants is 

the possession of all.” Ferenbaugh v. Ferenbaugh, 104 Ohio St. 556, 559-560, 136 

N.E. 213, 214-215 (1922). Thus, one cotenant cannot dispossess another cotenant 

of the common property, and a cotenant in possession of the property is not subject 

to eviction by another cotenant. Collins at *103. However, “a tenant in common * 

* * who * * * has sole possession of the premises, is liable to account to his cotenants 

for their share of the reasonable rental value of such occupancy, possession and 

use.” Cohen v. Cohen, 157 Ohio St. 503, 106 N.E.2d 77 (1952), at the syllabus. 

Accordingly, a tenant in common may “recover * * * his share of rents and profits 

* * *” from a cotenant. R.C. 5307.21. 

{¶30} Since each cotenant is “equally entitled to the use, benefit, and 

possession of the common property, and may exercise acts of ownership” over the 

common property, a cotenant generally “may authorize a third person to do 

whatever the [co]tenant could have done.” 86 Corpus Juris Secundum, Tenancy in 

Common, Section 17, at 278 (1997). “A tenant in common may properly bind 

himself and his own interests in the common property * * *.” Id., Section 124, at 

382. 

But it is fundamental that a tenant in common cannot convey or 

incumber [sic] the interest of his cotenant, nor by any act of his 

divest his interest as cotenant in the entire tract, or defeat, defer 

or limit his rights as a tenant in common, and any attempt to do 

so is ineffectual. 
Case No. 6-20-14 

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Heiden v. Howes, 77 Ohio App. 525, 531, 67 N.E.2d 641, 644 (1st Dist. 1945), 

quoting Lauer v. Green, 99 Ohio St. 20, 25, 121 N.E. 821, 823 (1918). 

{¶31} However, a tenant in common may still lease his or her undivided 

interest in the common property because, “when an owner conveys a leasehold 

estate[,] the owner retains his fee simple interest in the property.” Broerman v. 

Blanke, 3d Dist. Auglaize No. 2-98-30, 1999 WL 280288, *2 (Apr. 23, 1999). 

Further, 

[w]hen an owner of real property conveys a leasehold interest in 

that property, he conveys to the lessee his right to possess the 

property, and the possession of the lessee is the possession of the 

lessor. That is, during the lease term, the lessee possesses the 

property for the lessor. 

H & H Farms, Inc. v. Huddle, N.D. Ohio No. 3:13 CV 371, 2013 WL 2251762, *5 

(May 22, 2013). Thus, “Ohio law holds that a lease does not divest cotenants of 

their interests in property.” Id. at *4. 

{¶32} As such, a tenant in common may “convey a leasehold interest 

transferring his right to physically possess” the common property without divesting 

any other cotenant of their interests. H & H Farms, at *6. 

Ordinarily one tenant in common may by * * * lease * * *, confer 

on another person the right to occupy and use the property of the 

cotenancy as fully as the lessor * * * might have used or occupied 

it, if the lease * * * had not been granted. 

86 Corpus Juris Secundum, Tenancy in Common, Section 130, at 385-386 (1997). 

Further, a tenant in common may convey such a lease of his or her undivided interest 
Case No. 6-20-14 

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in the common property without obtaining the consent of any other cotenant. H & 

H Farms, supra, at *4-5; 86 Corpus Juris Secundum, Tenancy in Common, Section

130, 134, at 385-386, 390 (1997) (“A tenant in common may, without the authority 

of his or her cotenants, let his own share of the common property * * *.”). 

{¶33} In a situation where a tenant in common has leased his or her 

undivided share in a tenancy in common without the assent or authorization of any 

other cotenant, the following is the general rule that applies to the non-leasing 

cotenants: 

[o]rdinarily a tenant in common who has not assented to a lease

by his or her cotenant is entitled to share possession with his

cotenant’s lessee, but he is not entitled to oust such lessee and take 

sole possession * * *. A nonleasing tenant in common who does 

not himself wish to cultivate the property may not prevent his 

cotenant’s lessee from doing so * * *. 

86 Corpus Juris Secundum, Tenancy in Common, Section 132, at 388 (1997). See 

H & H Farms, supra, at *2, 5 (holding that “a cotenant who takes possession is not 

subject to eviction” and that “possession of the lessee is the possession of the lessor[-

tenant in common]”). 

Legal Analysis for the Third Argument 

{¶34} On appeal, Doug asserts that he could not be held liable in this case 

because he was not a party to the lease agreement between Don and the Reeds. 

Doug argues that to hold him liable under this lease agreement would be to hold that 

Don could bind him contractually without his authorization. The general rule is 
Case No. 6-20-14 

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“that one tenant in common cannot bind his cotenant to a contract if the contract is 

made without the cotenant’s authority * * *.” H & H Farms, supra, at *5. 

{¶35} However, while Don could not bind Doug contractually, Don could

bind himself contractually and convey his rights to possess Silver Creek to the 

Reeds. H & H Farms, supra, at *6; 86 Corpus Juris Secundum, Tenancy in 

Common, Section 130, at 385 (1997). The primary issue in this case is not whether 

Don, as a tenant in common, could bind Doug contractually but whether Doug had 

the right, as a tenant in common, to prevent the Reeds from exercising the rights 

that Don had conveyed to them. We turn now to examining the legal basis of the 

liability that the trial court imposed on Doug. 

{¶36} In this case, Don and Doug were tenants in common who each had an 

equal, undivided interest in Silver Creek. Doc. 30, Ex. 2. Doc. 37. Tr. 183. As 

such, each of them “ha[d] a right to enter upon the common estate[] and take 

possession of the property * * *.” H & H Farms, supra, at *4-5. As a tenant in 

common with an undivided interest in Silver Creek, Don “ha[d] the right to occupy 

the whole of the property * * *.” 86 Corpus Juris Secundum, Tenancy in Common, 

Section 22, at 281 (1997). Since Don had the right to “occupy the whole of the 

property,” he could convey his right to “occupy the whole of the property” to a third 

party through a lease agreement. Id., Section 22, at 281. See Id., Section 130, at 

385-386; H & H Farms, supra, at *4-5. 
Case No. 6-20-14 

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{¶37} For this reason, Don had the authority, in this case, to convey his rights 

to enter, possess, and cultivate his undivided interest in Silver Creek to the Reeds 

through a lease agreement by ratifying the 2017 Lease. H & H Farms, supra, at *4. 

See Ex. A, C. Further, Don had the authority to convey his rights to the Reeds 

through a lease agreement without Doug’s authorization. H & H Farms, supra, at 

*5-6 (“Ohio law permits one cotenant to lease his interest to a third party without 

his cotenant’s agreement.”), citing Cahen v. Cahen, 2d Dist. Franklin No. 3115, 

1940 WL 7483, *3 (Feb. 21, 1940); 86 Corpus Juris Secundum, Tenancy in 

Common, Section 130, 134, at 385-386, 390 (1997). 

{¶38} After Don expressly ratified the 2017 Lease, the Reeds’ possession of 

Silver Creek would have been “equal to” Don’s possession of Silver Creek because 

“a tenant’s possession of property is the landlord’s possession of the property * * 

*.” H & H Farms, supra, at *4, citing Broerman, supra, at *3. As such, Doug could 

take no action against the lessees that he could not take against the lessor. 86 Corpus 

Juris Secundum, Tenancy in Common, Section 134, at 390 (1997) (When a tenant 

in common leases an undivided interest, the “lessees on entry will have the same 

right with respect to the other cotenants as the lessor had.”). Because “a cotenant 

who takes possession is not subject to eviction * * *,” the Reeds, as lessees, were 

also not, as a general matter, subject to eviction for simply exercising the rights of 

possession given to them by Don. H & H Farms, supra, at *2. 
Case No. 6-20-14 

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{¶39} However, Doug chose to take steps to evict the Reeds from Silver 

Creek and to prevent them from exercising their rights under the lease agreement 

with Don. On February 26, 2019, Doug’s counsel sent the following email to Reed: 

You do not have the right to enter the Silver Creek property. You 

may not prepare the land for planting, plant, or take any other

action to move forward with in the usage of that property for the 

2019 crop year. Should you have any equipment or personal 

property left on the Silver Creek property, it must be removed by 

March 15, 2019. If we have not received a response indicating 

that you will not be taking actions to move forward with the 2019 

crop year on the Silver Creek property by that date, be advised

that we intend to file an injunction and will be enforcing our 

property rights to the fullest extent under the law. 

Ex. F. Tr. 51. Then Doug had his counsel and a sheriff’s deputy serve Reed with a 

notice of eviction on April 9, 2019. Tr. 51-52, 179. Finally, Doug filed the 

complaint that initiated the instant action because he was “seek[ing] to evict” the 

Reeds. Doc. 1. See Tr. 180. Reed testified that he, in response to these actions, did 

not plant crops on Silver Creek in 2019. Tr. 51-52. 

{¶40} In general, Doug, as a cotenant out of possession, would have to 

demonstrate that another cotenant made “an assertion of ownership to the exclusion 

of the cotenant out of possession” to establish a violation of his interests because 

“[t]he law presumes the possession of some cotenants is the possession of all.” H 

& H Farms, supra, at *5, citing Ferenbaugh, supra, at 559. But there is no 

indication in the record that such a situation existed in this case. 
Case No. 6-20-14 

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{¶41} But as a tenant in common, Don could convey the rights to enter, 

possess, and cultivate Silver Creek to the Reeds through a lease agreement without 

affecting Doug’s title to the common property. Broerman, supra, at *2; H & H 

Farms, supra, at *4-5. Further, the record contains no evidence that Doug wanted 

to physically possess or cultivate Silver Creek. See H & H Farms, supra, at *3; 86 

Corpus Juris Secundum, Tenancy in Common, Section 132, at 388 (1997) (“A 

nonleasing tenant in common who does not himself wish to cultivate the property 

may not prevent his cotenant’s lessee from doing so * * *.”). Thus, the lease 

agreement between Don and the Reeds was in no way “contrary to [Doug’s] * * * 

ownership interest” in Silver Creek. H & H Farm, Inc., supra, at *3. 

{¶42} Further, Doug, as “[a] cotenant out of possession[, was] entitled to 

receive his share of the reasonable rental value of the property exclusively used by 

the cotenant in possession * * *.”4

 H & H Farms, supra, at *3. In this case, the 

lease agreement required Reed to pay rent. Ex. A, C. Reed tendered the four 

quarterly rental payments that were due under the lease agreement in 2019 to Don, 

who accepted each of these checks. Doc. 106. However, Doug refused to negotiate 

the rental payment that Reed tendered to him. Tr. 46-47, 173, 176-177. Thus, Doug 

4

 In H & H Farms, the court noted that the word “possession” in this context does not exclusively refer to 

“physical possession” because “[a]n estate which gives the right to possess or to a participation in the fruits 

of possession is sufficient.” H & H Farms, supra, at fn. 1, quoting Rawson v. Brown, 104 Ohio St. 537, 546, 

136 N.E. 209 (1922). “Thus, someone retains legal possession of land so long as he is ‘entitled to enjoy the 

present rents * * * as one of the cotenants.’” H & H Farms, supra, at fn. 1, quoting Rawson at 546-547. 
Case No. 6-20-14 

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cannot argue that Reed or Don withheld “his share of the reasonable rental value of 

the property.” H & H Farms, supra, at *3. 

{¶43} After examining the facts of this case, the trial court stated the 

following conclusion in its judgment entry: 

Doug Sullinger had a right as a tenant in common to evict anyone 

who entered on the property without legal right, color of title or 

permission. But he did not have the right to prohibit persons in 

legal possession from entering upon the land. The Reeds were 

properly in legal possession under the terms of the lease, and 

therefore were wrongfully prohibited from access to the property. 

Doc. 106. The trial court then found Doug liable for the profits that the Reeds lost 

because they were prevented from cultivating Silver Creek in 2019. Doc. 106. 

{¶44} Having reviewed the record, we cannot conclude that the trial court 

erred in holding Doug liable in this case. Don, as a tenant in common, conveyed 

the rights to enter, possess, and cultivate Silver Creek to the Reeds through a lease 

agreement. As lessees, the Reeds stood in the place of the lessor-tenant in common. 

In this case, Doug undertook actions against the lessees that he could not have 

undertaken against the lessor. The record contains no apparent legal basis for 

Doug’s decision to exclude the Reeds from Silver Creek and to deny them the 

opportunity to exercise the rights conferred upon them by Don. 

{¶45} In conclusion, the fact that Don did not have the authority to bind Doug 

contractually is irrelevant to the disposition of this case. Don had the authority to 

confer rights to Silver Creek on the Reeds by a lease agreement. Doug did not have 
Case No. 6-20-14 

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the authority to exclude them from Silver Creek. At trial, the Reeds established that 

Doug’s decision to prevent them from exercising their legal rights caused them to 

lose profits. Ex. G-S. Doc. 106. Because Doug did not have a legal justification to 

so act, the trial court did not err in holding him liable for these lost profits. For these 

reasons, Doug’s third argument herein is without merit, and his first assignment of 

error is overruled. 

Second Assignment of Error 

{¶46} Doug argues that the trial court incorrectly imposed contractual 

liability on him because he was a third-party beneficiary to the lease agreement 

between Don and the Reeds. 

Legal Standard 

{¶47} “A third party beneficiary is one for whose benefit a promise has been 

made in a contract but who is not a party to the contract.” Maghie & Savage, Inc. 

v. P.J. Dick Inc., 10th Dist. Franklin No. 08APP-487, 2009-Ohio-2164, ¶ 40, 

quoting Chitlik v. Allstate Ins. Co., 34 Ohio App.2d 193, 196, 299 N.E.2d 295 (8th 

Dist. 1973). “[M]ere status as a beneficiary does not bind a party to perform 

contractual duties.” Jankovsky v. Grana-Morris, 2d Dist. Miami No. 2000-CA-62, 

2001 WL 1018337, * (Sept. 7, 2001), citing Tractor-Trailer Supply Co. v. NCR 

Corp., 873 S.W.2d 627, 629 (Mo.App. 1994). 
Case No. 6-20-14 

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Legal Analysis 

{¶48} Doug argues that he was not a party to the lease agreement between 

Don and the Reeds and that the trial court imposed contractual liability on him by 

finding him to be a third-party beneficiary of the agreement. To support this 

argument, Doug points to the fact that the trial court referred to him as a third-party 

beneficiary in its judgment entry. This relevant statements reads as follows: 

Doug Sullinger, as co-tenant in common, became a third-party 

beneficiary of the lease agreement between Don Sullinger, Sr. and 

the Reeds, and was thereby entitled to the $19,947.00 lease 

payment for the year. * * * 

Doc. 106. The trial court then found that Doug “caused the breach of the contract 

by his conduct as a co-tenant in common effectively evicting the Reeds from the 

property.” (Emphasis added.) Doc. 106. 

{¶49} However, the trial court did not impose contractual liability on Doug 

because he was a third-party beneficiary of the lease agreement. The trial court 

found him to be a third-party beneficiary in the process of calculating damages. 

Doc. 106. As a third-party beneficiary, Doug was entitled to $19,947.00 in rental 

payments under the lease agreement. Doc. 106. As such, the trial court reduced the 

$62,545.91 the Reeds proved in damages by the $19,947.00 that Doug was entitled 

to as a third-party beneficiary of the lease agreement. Thus, the trial court found 

Doug was a third-party beneficiary not to impose liability but to reduce his liability. 
Case No. 6-20-14 

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{¶50} Ultimately, Doug uses this argument to again assert that he could not 

be held liable in this case because he was not a party to the lease agreement between 

Don and the Reeds. But as we noted in the first assignment of error, Doug did not 

need to enter into the lease agreement to be held liable for the damages caused by 

“wrongfully prohibiting” the Reeds from entering and cultivating Silver Creek. 

Doc. 106. For these stated reasons, Doug’s second assignment of error is overruled. 

Third Assignment of Error 

{¶51} Doug argues that the trial court erred in failing to grant his motion to 

dismiss for failure to state a claim upon which relief could be granted. 

Legal Standard 

{¶52} Appellate courts are to “decide each assignment of error” raised on 

appeal “unless an assignment of error is made moot by a ruling on another 

assignment of error * * *.” App.R. 12(A)(1)(c). An issue is moot when it 

“involve[s] no actual genuine, live controversy, the decision of which can definitely 

affect existing legal relations.” Culver v. City of Warren, 84 Ohio App. 373, 83 

N.E.2d 82 (7th Dist. 1948), quoting Borchard, Declaratory Judgments, at 35 (2d 

Ed. 1941). “Put differently, an assignment of error is moot when an appellant 

presents issues that are no longer live as a result of some other decision rendered by 

the appellate court.” State v. Gideon, --- Ohio St.3d ---, 2020-Ohio-6961, --- N.E.3d 

---, ¶ 26. 
Case No. 6-20-14 

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Legal Analysis 

{¶53} Doug argues that the Reeds failed to state a claim on which relief could 

be granted because they could not establish that he was a party to the lease 

agreement. Thus, he asserts the trial court did not have legal grounds to hold him 

liable in this case and that the trial court should have instead granted his motion to 

dismiss. However, under the first assignment of error, we have already concluded 

that there were legal grounds for the trial court to hold Doug liable in this case. 

Reaching this conclusion in the first assignment of error has rendered the issues 

raised in this assignment of error moot. As such, we decline to address the issues 

raised in Doug’s third assignment of error pursuant to App.R. 12(A)(1)(c). 

Conclusion 

{¶54} Having found no error prejudicial to the appellant in the particulars 

assigned and argued, the judgment of Hardin County Court of Common Pleas is 

affirmed. 

Judgment Affirmed 

ZIMMERMAN and MILLER, J.J., concur. 

/hls