Court of Appeals of Ohio, Second District, Champaign
SUSAN C. SIMON, et al. Plaintiffs-Appellees
JAY A. UNDERWOOD, et al. Defendants-Appellants
Appeal from Common Pleas Court T.C. NO. 14CV131
A. SKROBOT, Atty., ROBERT J. SIMON, Atty., Attorneys for
E. SOUTHWARD, Atty., GREGORY R. FLAX, Atty. Attorneys for
Defendants-Appellants Jay A. Underwood and John J. Underwood
1} This matter is before the Court on the Notice of
Appeal of brothers Jay A. Underwood and John J. Underwood,
filed July 15, 2016 (collectively, "the brothers").
The brothers appeal from the June 30, 2016 decision of the
trial court overruling their objections to the report of the
Commissioner, which concluded that property devised by their
father's Last Will and Testament ("will") to
them and their sisters, Susan Simon and Sara Thompson
(collectively, "the sisters"), as
life-tenants-in-common, cannot be equitably partitioned
between the four siblings. We hereby affirm the judgment of
the trial court.
2} The sisters filed a complaint against the
brothers on August 5, 2014. Jay, John, Susan and Sara are the
children of J.A. Underwood ("Underwood"). Pursuant
to Underwood's June 8, 1981 will, the siblings each
received an equal and undivided life estate in: 1) a 25 acre
lot identified as parcel no. G21-07-11-09-00-016-00; 2) a 115
acre lot identified as parcel nos. G21-07-11-24-00-014-00;
and 3) a 6.7 acre lot identified as parcel nos.
G21-07-11-09-00-002-01 and G21-07-11-10-00-008-00
(collectively, "the Property").
3} A copy of the will is attached to the complaint
and provides in relevant part as follows:
I give and devise all of my real property of my real estate,
wheresoever situate, to my wife, Alice L. Underwood, for and
during the term of her natural life or so long as she may
After the death of my wife, or in the event or her
remarriage, the interest in remainder in said real estate in
which I have devised to her a life estate, I give and devise
to my four children, Susan C. Simon, Sara Beth Underwood,
John Jeffry Underwood and Jay A. Underwood for and during the
term of their natural lives.
After the death or remarriage of my wife and upon the death
of all of my four children, the interest in remainder in said
real estate I give, devise and bequeath to all of my
grandchildren living at the death of the last of my four
children, equally, share and share alike, absolutely and in
4} The complaint further alleges that on December
20, 2007, the siblings created the Underwood Family
Partnership ("UFP"), an Ohio general partnership.
According to the complaint, the "UFP has failed to be an
effective way to manage the Property as the Property is not
being properly managed, the partners are deadlocked on major
decisions, the financial potential of the Property is not
being met, and the partners of the UFP are not acting in the
best interests of the UFP." Specifically, the complaint
alleges that on January 1, 2013, the Property was appraised
at $763, 000.00, but in 2012, the UFP made a profit of only
$5, 466.00, to be divided between the siblings.
5} According to the complaint, the brothers refuse
to cooperate in the efficient operation of the UFP and to pay
reasonable rental values for the Property. The complaint sets
forth the following rents, which are allegedly "well
below fair market value": 1) Jay rents 20.27 acres of
the 115-acre lot for $80.00 per acre per year; 2) Jay rents a
25-acre lot and pays rent of $200.00 per acre per year; 3)
John rents 30.23 acres of the 115-acre lot and pays $80.00
per acre per year; and 4) John "does not pay rent for
approximately 2 acres of the 115 acre [lot] where his home
resides, approximately 18 acres of the 115 acre lot for
grazing cattle, and approximately 4.3 acres of the 115 lot
for growing hay." The complaint alleges that the rental
prices are below market value and "the UFP could not
reach an agreed upon rental amount for the Property and the
Defendants have used the Property without the UFP's
6} The complaint further alleges that the brothers
"have also misused and devalued the buildings and assets
located on the Property." Specifically, the complaint
alleges that John has harvested timber from the 115-acre lot.
The complaint also alleges that on December 30, 2007,
Jay's son, Lucas, entered into a rental agreement for the
farmhouse on Eris Road, a condition of which required him to
pay rent or "spend a certain amount of money on
maintenance and improvement of the farmhouse. However, after
August 2008 rental payments stopped and no receipts were
provided showing repairs or improvements to the
farmhouse." The complaint provides that on January 9,
2010, a "Family Partnership House Agreement was executed
wherein Defendants agreed to be responsible for the
maintenance of the farm house and its gravel lane." The
complaint alleges that "the farmhouse has steadily
deteriorated and Plaintiffs are informed and believe the
farmhouse is now a safety hazard and a potential liability to
7} The complaint alleges the brothers "benefit
from the Property more than the Plaintiffs despite the
intentions of the UFP and Defendants refuse to change or
alter the current arrangement." According to the
Complaint, "the UFP is currently in a voting deadlock
and the future of the Property is being jeopardized."
The sisters asserted a request for partition, and claims for
an accounting, unjust enrichment, breach of fiduciary duty,
and dissolution of the partnership.
8} Six joint stipulations for extensions of time for
Jay and John to answer the complaint were filed. On April 16,
2015, the sisters filed "Plaintiffs' Motion for
Injunctive and Declaratory Relief." Therein they sought
an order authorizing them "to rent certain farm land to
a third party and for a preliminary injunction restricting
Defendants Jay and John Underwood * * * from personally using
this land." Ten exhibits were attached to the motion.
The brothers opposed the motion on April 21, 2015, and the
sisters replied on April 27, 2015.
9} On April 29, 2015, the trial court issued a
"Journal Entry Denying Plaintiffs Motion for Injunctive
and Declaratory Relief." The court initially noted that
"it must be mentioned that any claim of irreparable harm
is undercut by Plaintiffs' willingness to extend the time
for filing an answer on six occasions. Furthermore,
Plaintiffs have known of the need to plan for the upcoming
growing season since at least last fall's harvest."
The court further noted that the sisters "have not
explained why any harm resulting from Defendants' alleged
failure to pay the market rate for the use of the Troy Fields
cannot be addressed through their causes of action for breach
of fiduciary duty and unjust enrichment." The court
determined that since the sisters "have not explained
why monetary damages for Defendants' alleged self-dealing
would be an inadequate remedy, they are not entitled to a
preliminary injunction." Finally, the court concluded
that "if this Court were to find in favor of Plaintiffs
on their partition claim, the source of the parties'
disagreements (i.e., the farm) would be gone. The possible
availability of this remedy to Plaintiff[s] is further reason
not to grant a preliminary injunction."
10} On May 11, 2015, the sisters filed a "First
Amended Complaint." Therein they asserted that pursuant
to Underwood's will, "the children of the
Plaintiffs' and Defendants' or their issue may obtain
an interest in the Property, " and that "[a]s all
of the Plaintiffs and Defendants are still living, the
identities of the remaindermen are not known and may change
based [upon] when the last life tenant passes." The
sisters requested the court "appoint a disinterested
person to act as a representative or guardian ad litem for
the unknown remaindermen who may have a contingent future
interest * * *."
11} On May 15, 2015, the brothers filed a motion to
dismiss the amended complaint, "for failure to file a
preliminary judicial report, pursuant to Civ.R. 12(B)(1),
12(B)(6), (12)(B)(7), 19(A)(2), and R.C. §
2329.191." Alternatively, the brothers requested that
"the court order Plaintiffs to file a preliminary
judicial report and join all necessary parties." On the
same date, the sisters filed a "Notice of Filing Title
12} On May 22, 2015, the court issued a
"Journal Entry Setting Response Time, " ordering
the sisters to respond to the motion to dismiss by May 29,
2015. In the sisters' response, they asserted as follows:
Rather than forcing potential remaindermen to be parties to
this action, Plaintiffs believe a guardian or representative
can be appointed to act in the best interest of the class.
Such appointment would satisfy Defendants' belief all
potential remaindermen must be represented in this action.
Plaintiffs hope the Court will consider this option as a way
of addressing the unknown remaindermen while protecting what
remains of the existing family relationships.
13} On June 4, 2015, the court issued a
"Journal Entry Granting Plaintiffs Leave to File Second
Amended Complaint." The court noted that the filing of
the commitment for title insurance rendered moot the
brothers' argument regarding the failure to file a
preliminary judicial report. Citing R.C. 5303.22, the court
further noted that "[n]o distinction is made between
vested and contingent future interests. Instead, all
persons in being who are interested in the estate or may
become interested in the estate must be made parties to the
action." The court found Underwood's 13
grandchildren to be "essential parties" to the
14} On June 8, 2015, the "Reply of Defendants
Jay A. Underwood and John J. Underwood in Support of Their
Motion to Dismiss Plaintiffs' Amended Complaint" was
filed. On June 26, 2015, the sisters, James Patrick Thompson,
Steven Charles Thompson, Isabelle Jean Thompson-Demoss, Amy
Caroline Yeager, Robert Joseph Simon, and Christen Beth Simon
Fails filed a "Second Amended Complaint" against
the brothers, Nathan Jeffry Underwood, Heath Asbury
Underwood, Zachary Ryan Underwood, Lucas Wayne Underwood,
Levi Russell Underwood, Logan Lowell Underwood, and Eli
Asbury Underwood, asserting a request for partition, and
claims for an accounting, unjust enrichment, breach of
fiduciary duty, and dissolution of the partnership.
15} On July 10, 2015, the brothers answered the
amended complaint. On August 24, 2015, the "Answer of
Defendants Nathan J. Underwood, Heath A. Underwood, Zachary
R. Underwood, Lucas W. Underwood, Levi R. Underwood, Logan L.
Underwood, and Eli A. Underwood to Plaintiffs' Second
Amended Complaint" was filed.
16} On September 2, 2015, the "Motion of
Plaintiffs Susan Simon and Sara Thompson for the Appointment
of a Commissioner and to Issue a Writ of Partition" was
filed, attached to which is a proposed order. The motion
provides in part as follows:
* * * As Plaintiffs have a legal right to the Property, they
request the Property be partitioned and a commissioner
appointed to determine if the Property can be partitioned.
After the Court's appointment, R.C. 5307.06 states
"the commissioner or commissioners shall view and
examine the estate and, on their oaths and having due regard
to the improvements, situation, and quality of the different
parts, set it apart in lots that will be most advantageous
and equitable." Plaintiffs request upon appointment, the
commissioner should investigate and examine the Property to
determine if partition is possible. Plaintiffs ask that any
physical partition of the Property take into consideration
the interests of the Remaindermen as potential heirs to the
In the event the Commissioner determines the partitioning of
the Property would cause a manifest injury to the value of
the Property or the physical partitioning of the Property is
impossible or impractical, Plaintiffs request the
Commissioner to appraise the Property and provide a just
valuation so the parties have an opportunity to exercise
their right to purchase the Property.
17} The Magistrate set the motion for a hearing on
October 6, 2015, and the brothers moved for a continuance, or
in the alternative, to set the matter for a scheduling
conference. On September 30, 2015, the "Magistrate's
Order Denying Defendants' Motion to Continue
Hearing" was filed. Therein the Magistrate noted in part
that the "Court's need to clarify the legal basis
for Count One of the Second Amended Complaint was one of the
reasons for scheduling a hearing on Plaintiffs' motion.
This need remains unfulfilled."
18} Also on September 30, 2015,
"Plaintiffs' Partial Opposition to Joint Motion of
Defendants to Continue Hearing on Plaintiffs' Motion for
Partial Summary Judgment and/or Convert Same into a
Scheduling Conference" was filed. Therein, the
Plaintiffs asserted that they do not oppose the request for a
scheduling conference, that mediation should not delay the
appointment of a Commissioner, and that they have every right
to move for the appointment of a Commissioner.
19} On October 9, 2015, a "Magistrate's
Order Setting Scheduling Conference" was issued after
the hearing on October 6th. The order provides in part as
Extensive discussion was held concerning Count One of the
Second Amended Complaint. Although captioned as a partition
claim, Count One may actually be seeking relief under the
disentailment statute, R. C. 5303.21, since it seeks the sale
of real property, with the proceeds held in trust. There was
also discussion about whether Count One should proceed
separately from the remaining claims, which concern the
partnership that the Underwood siblings * * * created to
manage the day-today activities of the farm after they took
possession as co-life tenants.
20} The court scheduled a conference before the
Magistrate on December 2, 2015, and indicated that it
"anticipates resolving the following issues":
(1) Whether Count One of the Second Amended Complaint seeks
the partition of the life estate, the partition of the entire
fee, disentailment pursuant to R.C. 5303.21, or some other
form of relief. Plaintiffs may seek leave to amend their
(2)The names of persons to serve as commissioners should
Count One of the Second Amended Complaint proceed as a
(3) Whether Count One of the Second Amended Complaint should
proceed separately from the remaining causes of action.
21} On November 5, 2016, a "Consent for
Plaintiffs to File Third Amended Complaint" was filed,
along with a "Third Amended Complaint." Paragraph
24 of the newly amended complaint provides: "As
Plaintiffs believe the Property cannot be physically
partitioned without creating undue hardship, manifest injury,
and/or substantial damage to the value of the Property,
Plaintiffs respectfully request the Property be
partitioned." [Sic] Section (b) of the prayer for relief
of the newly amended complaint provides that Plaintiffs
request "that the net proceeds from the sale of the
Property or the respective life estates be distributed as the
Court determines appropriate."
22} On November 9, 2015, "Plaintiffs Susan
Simon and Sara Thompson's Renewed Motion for the
Appointment of a Commissioner to Issue Writ of
Partition" was filed. On November 20, 2015, the
"Answer of Defendants Nathan J. Underwood, Heath A.
Underwood, Zachary R. Underwood, Lucas W. Underwood, Levi R.
Underwood, Logan L. Underwood, and Eli A. Underwood to
Plaintiffs Third Amended Complaint" was filed.
23} On November 24, 2015, a "Memorandum of
Defendants J. A. Underwood and John J. Underwood in
Opposition to Plaintiffs' Renewed Motion for Partial
Summary Judgment, " was filed. The Magistrate then set a
scheduling conference to be held on December 16, 2015. On
January 5, 2016, a "Motion of Defendants for Leave to
File their Answer to Third Amended Complaint Instanter,
" and "Agreed Entry, " and the "Answer of
Defendants Jay. A. Underwood and John J. Underwood to
Plaintiffs' Third Amended Complaint" were filed.
24} On February 23, 2016 the court issued a
"Journal Entry Ordering Partition and Appointing
Commissioner." The entry provides in part as follows
Plaintiffs Susan Celia Simon and Sara Beth Thompson, and
Defendants, Jay A. Underwood and John J. Underwood, are
co-life-tenants currently in possession of real property
located in Champaign County * * * Upon the passing of the
last life tenant, their children, if they survive all of the
life tenants, will obtain a fee simple interest in the
Property. If a child should predecease the last life tenant
with issue, such issue shall take the deceased's
child's share of the Property.
Each co-life tenant possesses an undivided one-quarter
interest in the Property for the remainder of their lives.
Plaintiffs, Susan Celia Simon and Sara Beth Thompson, seek to
hold their respective one-quarter interests in the Property
severally from the interests of Defendants, Jay A. Underwood
and John J. Underwood. Wherefore, Plaintiffs, Susan Celia
Simon and Sara Beth Thompson, are entitled to partition of
their interests in the Property as prayed for in the Third
IT IS THEREFORE ORDERED that partition of the co-life
tenants' interest in the Property shall take place.
IT IS FURTHER ORDERED that Jerry Simpson, a suitable
disinterested person, is appointed Commissioner to divide the
co-life tenants' interests in the Property. The
Commissioner shall view and examine the Property, taking into
account the improvements, situations, location, and quality
of the different parts of the Property.
If the co-life tenants' interest in the Property can be
equitably divided, the Commissioner shall report that to the
Court and shall set off each co-life tenants' one-quarter
interest in the Property.
In dividing the Property, the Commissioner shall set off to
each co-life tenant his or her interest in each of the
several tracts comprising the Property, or the Commissioner
may set off the share of any co-life tenant, in all tracts
comprising the Property, according to the Commissioner's
If the Commissioner divides one or more of the tracts
comprising the Property, said tract(s) shall be surveyed and
platted in accordance with sections 711.001 to 711.15 of the
Revised Code and with the rules adopted pursuant to these
If the Commissioner is of the opinion that these interests
cannot be equitably divided among the life tenants, the
Commissioner shall report that to the Court with a just
valuation of the fee simple interest of the Property. This
figure will be used to determine the value of the co-life
tenants' interests in the Property. The Commissioner
shall also report the reasons for concluding that the co-life
tenants' interests in the Property cannot be equitably
Upon receipt of the Commissioner's report,
Plaintiffs' request for partition of the co-life
tenants' interests in the Property will proceed in
accordance with Chapter 5307 of the Revised Code.
25} On April 7, 2016, the court issued a
"Journal Entry" that provides that the Commissioner
viewed and examined the Property and forwarded his report to
the Court. The entry provides in part as follows:
In his report, Commissioner Simpson concludes that * * * the
co-life tenants' interests in the Property cannot be
equitably divided. He has also fixed the value of the fee
simple interest of the Property.
The Second District Court of Appeals has characterized the
commissioner's report in a partition action to be akin to
a magistrate's decision. See McGill v. Roush, 87
Ohio App.3d 66, 77, 21 N.E.2d 585 (2d Dist. 1993). Given
this characterization, the Court will give the parties the
opportunity to file written objections to Commissioner
26} The Commissioner's report is attached to the
"Journal Entry." The first page of the report
On March 1[, ] 2016, I physically viewed the five parcels
owned by Susan C. Simon Etal, [sic] Further described in the
attached Legal Description, being case number 2014 C.V. 131,
in the Champaign County Common Pleas Court.
The purpose of this viewing is to determine if it is possible
to equally divide the five parcels into four equal parts.
The five parcels are approximately 2 to 4 miles apart.
A parcel on Old Troy Pike is Parcel Number
G22-07-11-09-00-016-00, consisting of approximately 25.05
acres, more or less. Most of which is tillable. This is a
highly productive parcel of farm land, with a good natural
Two parcels on State Route 560, being Parcel Number
G22-07-11-09-00-001-01 with approximately 1.362 acre[s], more
or less. This parcel has no road frontage. Parcel [N]umber
G22-07-11-10-00-008-01 has approximately 5.352 acres, more or
less with road frontage.
The two parcels join and are tree covered and may be in a
flood zone. A surveyor could determine if these parcels are
in a flood zone.
Land on Eris Road consists of two parcels.
One being parcel number G21-07-11-24-00-014-000 which is
approximately 105.22 acres more or less.
The other parcel on Eris Road is parcel number
G21-07-11-18-00-009-00 and is 10 acres, more or less.
The parcels join. Of this acreage, approximately 55 acres is
tillable, according to the Champaign County FSA Office.
This farm lays in an L shape.
There is an old, two story house and various out buildings on
There is also a mobile home on the site.
the subject land is very rolling and classified as Highly
Erosive. Due to the distance between the five parcels and the
difference in production potential and the small amount of
road frontage of the [Eris] Road parcels, it is my opinion,
that I cannot divide the subject land into four equal
27} On the following page, a "Letter of
Transmittal" provides that the Eris Road parcels have an
estimated market value of $490, 000.00; that the vacant land
on State Route 560 has an estimated market value of $16,
500.00; and that the parcel on Old Troy Pike has an estimated
market value of $230, 000.00. All estimated values are as of
March 8, 2016.
28} Regarding the property on Old Troy Pike, the
report provides as follows:
The subject lays in one field.
The topography is mostly level.
soil type is Fox Silt. This is a highly productive soil type
and has a good natural drainage.
This subject is a very desirable parcel of land.
There are no signs of development in the immediate subject
Due to this fact, I see no reason to believe there will be a
land use change in the near future.
29} The land appraisal report for the property on
State Route 560 provides: "The subject is in a flood
zone. None of the comparables are in a flood zone. It is my
opinion [d]ue to this fact * * * an adjustment should be made
as to value. Due to the fact a potential home builder would
have the expense of flood insurance."
30} Regarding the Eris Road property, the Report
The subject has two dwellings.
One is an old, one and half story single family residence.
This house appears to be in a fair condition.
The residence has two types of siding.
The roof appears to be in good condition.
bank barn is in a fair to poor condition and does not meet
today[']s modern farming practices.
An attached lean[-]to on this bank barn is used to store
Two, small grain bins are on the site.
Other small out buildings contribute no value, in my opinion.
An old, mobile home on a concrete foundation is also on this
The subject land shows much deferred maintenance.
The fence rows are over grown with trees.
open ditches are also over grown with trees and need to be
cleared to work better.
Much of the tillable land is classified as Highly Erosive.
There are no sod water ways in place for drainage.
Many areas of the tillable land show erosion taking place.
The fields are sm[a]ll which makes it difficult to operate
modern farm machinery in the acreage.
Much of the subject farm is wooded and there is not very much
31} The attached appraisal report for the Eris Road
property provide: "This appraisal is of the real estate
and improvements only. No personal property is included in
the estimated value of the subject."
32} On April 21, 2016, the "Objections of
Defendants Jay A. Underwood and John J. Underwood to the
Report of Commissioner Jerry L. Simpson" were filed. The
brothers objected as follows:
1.The Commissioner's Report over-states the value of the
subject real estate by failing to deduct, therefrom, the
value of Defendant John J. Underwood's personal property
and improvements, including a mobile home, water well, and
2. The Commissioner's Report includes an appraisal of the
subject real estate in fee simple, but does not arrive at a
value for the life tenants' estates. See R.C. §
5307.09 (stating that "the commissioner . . . shall
return . . . to the court of common pleas [ ] a just
valuation of the estate"). Defendants reserve the right
to object to such value when it is established. In its Entry
dated February 23, 2016, the Court stated that the fee simple
valuation established by Commissioner Simpson will be used to
calculate "the value of the co-life tenants'
interests in the Property." It may be appropriate for
the parties to submit briefs setting forth the proposed
methodologies for valuing the life estate.
3. The Commissioner's Report fails to set forth a plan
for equitably dividing the farm or a finding that it cannot
be divided "without manifest injury to its value"
as required by R.C. § 5307.09. See McGill v.
Roush, 87 Ohio App.3d 66, 75 (Second Dist. 1993)
(stating that a commissioner has a "duty to explore
every reasonable possibility of equitably dividing the
property"). Defendants have previously put forth, to
Plaintiffs, a plan for dividing approximately 43 acres of
property occupied by Defendant John J. Underwood from the
balance of the farm and believe that such division can be
made without causing "manifest injury." Further,
such division will simplify these proceedings and obviate the
need for the Court to determine the ownership and value of
improvements constructed on the premises by Defendant John J.
respectfully request that the Court schedule a conference
and/or an evidentiary hearing to resolve the issues
33} On April 28, 2016, a "Memorandum Contra of
Plaintiffs' [sic] to Defendant Jay A. Underwood and John
J. Underwood's Objections to Report of Commissioner Jerry
L. Simpson" was filed. After noting that they requested
the appraisal be reduced based upon the value of John's
personal property and improvements to the Property, the
sisters asserted that they did not object to reducing the
appraisal if the brothers "can produce a sworn statement
identifying which items are his personal property, were not
constructed for the benefit of the family partnership, and/or
provide evidence of ownership, all of which can then be
provided to the Commissioner."
34} Regarding the valuation of the life estates, the
sisters asserted that briefing "different methodologies
is unnecessary as the valuation only establishes a price at
which the parties can exercise their respective right to
elect to purchase the property." The sisters further
asserted that "R.C. 5307.06 states once the
Commissioner's report is approved, one or more of the
parties can elect to take the property at the appraised
value. If none of the parties elect to purchase, pursuant to
R.C. 5307.11, the property can be sold at auction." The
sisters argued that, in the event of an auction, the
"auction will determine the true value of the life
35} Finally, the sisters noted that "Defendants
propose to physically partition part of the farm and assign
it to one of the life tenants, Defendant John Underwood,
" a proposal the sisters asserted "fails for
numerous reasons." The sisters argued that after
Defendants' objections, they "are only requesting
the partitioning of the four (4) life estates. Therefore, as
soon as the first life tenant passes, the three remaining
life tenants will be back to this court again requesting
partition of the property into thirds and Defendants'
proposal provides no finality." Further, the sisters
argued, "Defendants' plan offers no plan to
distribute the rest of the property amongst the remaining
life tenants. Although Defendant John Underwood can identify
what he wants from the farm, there are three (3) others that
need to be equally compensated." The sisters argued that
they have "previously offered to physically partition
the property. However, Defendants have rejected these offers
as they want to trim off the choice parts of the farm for
themselves and dump the carcass on the Plaintiffs." The
sisters asserted that "the value of the farm is as a
single operational farm." They argued that
"Defendants' proposal does not result in a single
claim being resolved or party being dismissed, "
contrary to Defendants' assertion that "division