Aceste v. Stryker Corp.

2020 Ohio 4938

• Court: Ohio Court of Appeals
• Decided: October 16, 2020
• Docket: L-19-1166
• Status: Published

Opinion

[Cite as Aceste v. Stryker Corp., 2020-Ohio-4938.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

Frank Aceste, et al. Court of Appeals No. L-19-1166

Appellants Trial Court No. CI0201504798

v.

Stryker Corporation, et al. DECISION AND JUDGMENT

Appellees Decided: October 16, 2020

*****

Karin L. Coble, for appellants.

Susan M. Audey and Tariq M. Naeem, for appellees, Stryker Corporation and Howmedica Osteonics Corp.

Paul C. Cosgrove and Joshua A. Klarfeld, and Georgia Hatzis, for appellee, Hammill Manufacturing Company.

PIETRYKOWSKI, J.

{¶ 1} Appellants, Frank and Rhonda Aceste, appeal the judgment of the Lucas

County Court of Common Pleas, dismissing with prejudice appellants’ claims against appellees, Stryker Corporation, Howmedica Osteonics Corporation, and Hammill

Manufacturing Company. For the reasons that follow, we reverse.

I. Facts and Procedural Background

{¶ 2} The present matter was initiated on December 11, 2015, when appellants

filed a complaint against appellees for compensatory damages related to medical

problems and loss of consortium. The case was subsequently consolidated with another

pending case involving a separate plaintiff. Relevant here, the claims were mediated over

numerous sessions beginning in June 2016.

A. Trial Court Grants Appellees’ Motion to Enforce Settlement Agreement

{¶ 3} On April 10, 2017, appellees moved to enforce a settlement agreement that

was purportedly reached during the mediation sessions. In their motion, appellees

asserted that on September 30, 2016, counsel for appellants, Zoll & Kranz, LLC, sent

correspondence to appellees confirming that appellants, among others, agreed to the

settlement terms, including appellees’ payment of a sum of money to appellants,

dismissal of the lawsuit with prejudice, release of all present and future claims against

appellees, appellants’ responsibility for Medicare liens, and strict confidentiality and non-

disparagement. Appellees also asserted that Zoll & Kranz indicated, in the September 30,

2016 correspondence, that as part of the informed consent process, appellants were

provided with an explanatory form to review the terms of the settlement.

{¶ 4} The September 30, 2016 correspondence was not so specific regarding the

settlement terms, however. The correspondence stated, in its entirety,

2. We have reached at least some conclusion with all remaining

[redacted] clients.

As you know, we allocated the offer with the assistance of Special

Master Judge Richard B. McQuade. Their responses can be broken into 3

categories:

Group A

[Redacted] people have accepted the allocated offer. [Redacted] of

those have returned a signed form and we are still waiting on the remaining

[redacted]. The total amount allocated to these [redacted] was [redacted].

Group B

[Redacted] people, [redacted] and [redacted] have accepted the

allocated offer contingent on resolution of their liens such that they do not

have to pay any subrogation. Both live in “made-whole” states where

subrogation is not due until the client has been made whole and we have

sent letters to both subrogation carriers demanding that they waive their

liens. The total amount allocated to these [redacted] is [redacted].

Group C

[Redacted] people, [redacted] and [redacted], have rejected the

allocated offer. The total amount allocated to these [redacted] was

[redacted].

3. If you feel it would be helpful, we could provide Judge Welsh a

copy of the Special Master’s letter to the clients with the spreadsheet

showing each allocation and the bases for it. While the material is

confidential and privileged, we hope that she will determine that Judge

McQuade’s allocation was done fairly.

While we are still working to secure final signed acceptance as well

as aggressively pursuing the lien resolution issue on behalf of [redacted]

clients, we have essentially reached what we feel is fairly (sic) optimistic

point. We recognize there are a few contingent issues on behalf of our

clients and we are mindful that is not precisely what Stryker was seeking. I

welcome input on direction or next steps from this point.

{¶ 5} The next email, chronologically, that appellees attached to their motion to

enforce the settlement agreement was a November 23, 2016 email wherein Zoll & Kranz

sent to appellees their proposed Qualified Settlement Fund agreement (“QSF”) and

proposed Medicare and Non-Medicare releases. On November 28, 2016, appellees

replied with their proposed changes to the QSF and to the releases, and stated that if the

documents were acceptable, then appellees would need a list of the individuals

categorized into Medicare and Non-Medicare. On November 29, 2016, Zoll & Kranz

approved the documents and sent to appellees a list of the Medicare status for all settled

individuals for purposes of determining the correct release language. Appellants were

included on this list. Appellees then requested a list of the actual settlement proceeds

4. allocated to each person. In response, a second list identifying the settled individuals

with their settlement allocations was sent to appellees on November 30, 2016. Again,

appellants were included on the list.

{¶ 6} Based on the representations of Zoll & Kranz, appellees prepared the

individualized “Confidential Settlement Agreement and Full Release,” which appellees

claim memorialized the basic settlement terms to which the parties had already agreed.

This release was sent to Zoll & Kranz on December 5, 2016, and was attached to

appellees’ motion to enforce the settlement agreement as Exhibit D. The December 5,

2016 “Confidential Settlement Agreement and Full Release” is the first document that

details any of the terms of the settlement agreement. Appellants did not sign the

December 5, 2016 “Confidential Settlement Agreement and Full Release.”

{¶ 7} Also attached to appellees’ motion to enforce the settlement agreement were

several email chains discussing appellants’ unwillingness to sign the “Confidential

Settlement Agreement and Full Release.” On January 12, 2017, Zoll & Kranz advised

appellees that appellants had raised an issue with the portion of the “Confidential

Settlement Agreement and Full Release” language pertaining to Medicare. On January

27, 2017, Zoll & Kranz provided appellees with proposed edits to the release which

removed the Medicare provisions, but specifically noted “We do not have client consent

but we at least wanted to give you a draft to consider.” A further email from Zoll &

Kranz on that date reiterated “But please bear in mind I have not yet been able to get the

client on board. Very difficult situation, even though he previously had agreed in

5. writing.” On January 30, 2017, Zoll & Kranz contacted appellees to inquire on their

response to the proposed changes to the Medicare provisions, but again noted, “We do

not yet have client consent yet * * * * We hope that if the client accepts, we can quickly

get the final agreement to him for signature.” Appellees responded that they agreed to

the proposed edits, but to “keep [them] posted.” On February 3, 2017, Zoll and Kranz

advised appellees that they were sending the finalized release to appellants. The

February 3, 2017 “Confidential Settlement Agreement and Full Release” was attached to

appellees’ motion to enforce the settlement agreement as Exhibit H. Appellants have at

all times refused to sign either the December 5, 2016, or the February 3, 2017

“Confidential Settlement Agreement and Full Release.” On March 2, 2017, Zoll & Kranz

moved to withdraw as counsel.

{¶ 8} In their motion to enforce the settlement agreement, appellees argued that

appellants’ “words, deeds, and acts establish that the parties had a meeting of the minds

as to the essential terms of a settlement agreement,” which were acceptance of a

settlement in an agreed-upon amount in exchange for a dismissal of appellants’ lawsuit

with prejudice and a release of their claims. Appellees further argued that appellants’

agreement to the terms of the settlement was corroborated by the fact that appellants only

contested the Medicare release language in the December 5, 2016 “Confidential

Settlement Agreement and Full Release.” Thus, appellees concluded that a valid

settlement agreement existed that should be enforced by the trial court.

6. {¶ 9} Appellants responded by filing a pro se motion to vacate the motion to

enforce the settlement agreement. In their motion, appellants first argued that Rhonda

Aceste never agreed to the settlement, was not aware of any explanatory form regarding

the terms of the settlement agreement, never spoke with anyone from Zoll & Kranz’s

office, and never signed an informed consent letter.

{¶ 10} Additionally, appellants argued that while Frank Aceste signed an

“Informed Consent Acknowledgment and Consent to Settle” form on November 2, 2016,

he only did so after much pressure from counsel, and while he was mentally incapacitated

by pain. Furthermore, appellants contended that Frank was told by counsel that signing

the informed consent form was the only way that he could learn the terms of the

settlement, and that he would still have a right to decline the settlement once the full

terms were disclosed.

{¶ 11} The informed consent form, which was attached as an exhibit to appellants’

motion to vacate, stated, in pertinent part:

I have read and understand the terms of the foregoing letter

regarding the aggregate settlement offer being made to 22 clients of Zoll &

Kranz, LLC, including myself as well as the allocation of the funds among

the clients. I have also spoken to my attorneys and their staff on numerous

occasions leading up to this settlement and have been well-informed during

these communications.

7. I accept the terms outlined in the letter, the Gross Individual

Settlement Amount, and my settlement allocation of * * *.1 I understand

that this is an estimate and my Net Individual Settlement Amount will be the

final settlement amount that will be distributed to me after confirmation of

the Settlement Criteria listed below, deductions for contingency attorney’s

fees, litigation costs, as well as any healthcare liens that are deducted from

the “Gross Individual Settlement Amount.”

***

I agree to the appointment of Judge Richard B. McQuade to resolve

any disputes that may arise in connection with this Settlement, including

the allocation of settlement proceeds.

Notably, the “foregoing letter” that was referred to in the informed consent form, and that

contained the terms of the settlement agreement, was not included in the documents

presented to the trial court in the litigation on the motion to enforce the settlement

agreement.

{¶ 12} Finally, appellants argued in their motion to vacate that the final December

5, 2016 “Confidential Settlement Agreement and Full Release” that Frank refused to sign

was drastically different from the original informed consent form that he signed on

November 2, 2016.

1 The specific dollar amount of appellant’s settlement allocation was included in the informed consent letter, but is omitted here for purposes of confidentiality.

8. {¶ 13} For all of the above reasons, appellants requested that the court vacate the

motion to enforce the settlement agreement, require appellees to provide all medical

records and study results relating to Frank, and allow appellants additional time to find

suitable counsel.

{¶ 14} Attached to appellants’ motion to vacate was, inter alia, an email exchange

between Frank Aceste and Zoll & Kranz. The email exchange evidences that counsel

was communicating to appellants that appellants could still opt out of the settlement

agreement as of late December 2016, well after Zoll & Kranz informed appellees that

appellants had agreed to the terms of the settlement. On December 28, 2016, counsel

emailed Frank and updated him on the need for an “MSA” (Medicare Medical Savings

Account), and suggested hiring a third-party expert to conduct an MSA analysis. If an

MSA was needed, it would reduce the amount of the settlement offer that Frank would

receive. At the end of the email, counsel posed the following conundrum: “we cannot

push forward with an MSA analysis until we know if you are going to accept the

offer…and I imagine you don’t know if you’re accepting the offer until you know how

the analysis will turn out.” On January 5, 2017, Frank replied, and indicated that he

could not make a decision without more information, or without certain assurances. Zoll

& Kranz replied on January 6, 2017, that, to clarify, the choice was:

[W]e either opt in to the current settlement program, or opt out. * * * If

you opt out, then our task is to return to fighting your case in court. If

Stryker decides to settle the other 19 people without you (their option), then

9. they may approach you about settling on other terms (maybe we could ask

them to pay the MSA). Then again, when we only have 2 cases left (I have

one other person who opted-out months ago), then they may refuse any

more settlement talks and we’ll prepare for trial over the next 18-24

months.

On January 11, 2017, Frank emailed counsel to inform them that “I have decided to opt

out of the settlement agreement and to continue litigation.” After a further email from

Zoll & Kranz attempting to salvage the settlement agreement, Frank replied on January

12, 2017,

The MSA, which was brought to light with the final settlement docs,

has raised some issues I had not thought of earlier.

This settlement is unacceptable regardless of MSA and I will take

my chances.

[Appellees] should have disclosed the full settlement details from the

start.

{¶ 15} Also attached to appellants’ motion to vacate was a December 13, 2016

email from Zoll & Kranz to Frank’s sister, Claire Aceste. The email explained,

Regarding the original offer including 22 people, but now only 20:

Stryker did make their original offer contingent on all 22 people accepting.

Back then, first one person said “no” and we called Stryker and asked if we

should even continue our work. They said “please continue,” which we

10. took to mean that they would proceed without one person. Then, when I

asked for final answers from the last 4 people (Frank was one of those last

4, as I recall), one more person said “no.” Everyone else said “yes.” Then,

Stryker considered whether they wanted to go forward for the 2 months that

followed…and very recently came back and said they would go forward

with the 20 of 22.

{¶ 16} On June 27, 2017, appellees filed their reply in support of their motion to

enforce the settlement. In their reply, appellees reiterated that appellants’ words, deeds,

and acts as conveyed through their counsel established a meeting of the minds as to the

essential terms of the settlement agreement. Appellees argued that this reality is

conclusively supported by the signed informed consent letter, in which Frank

acknowledged that he understood the terms of the agreement, that he was aware that the

gross settlement amount was subject to a series of deductions, and that he accepted the

settlement.

{¶ 17} On August 21, 2017, the trial court entered its judgment granting appellees’

motion to enforce the settlement agreement. The trial court reasoned that the informed

consent form signed by Frank on November 2, 2016, evidenced the satisfaction of the

essential terms of contract formation, namely offer, acceptance, consideration, and

manifestation of mutual assent. The court further found that there was no evidence in the

record to support appellants’ claim that Frank’s signature on the informed consent form

11. was the product of mental incapacity or undue influence. Thus, the court held that a

binding settlement agreement existed.

{¶ 18} As to Rhonda’s claim for loss of consortium, the trial court found that such

a claim is a derivative claim that cannot survive if the main claim at issue is dismissed.

Thus, the court held that Rhonda’s claim was no longer enforceable, and that it was

subject to the settlement agreement.

{¶ 19} Finally, the court held that even if the informed consent form did not

establish that a settlement agreement existed, an agreement nonetheless materialized

when appellants presented a counter-offer to appellees—that included changes to the

Medicare language—which appellees accepted when they agreed to the modified

language.

B. Appellants Initiate Repeated Challenges to the Trial Court’s Judgment Granting the Motion to Enforce the Settlement Agreement

{¶ 20} On September 26, 2017, appellants appealed the trial court’s judgment

granting the motion to enforce the settlement agreement. On December 6, 2017, this

court dismissed appellants’ appeal for lack of a final appealable order.

{¶ 21} In the meantime, appellants filed a pro se motion to stay the trial court’s

August 21, 2017 judgment. In their motion, appellants argued that Frank suffered from

diminished mental capacity, as evidenced by an attached listing of the prescription drugs

he takes, as well as notes from his psychiatrist relating the treatments and effects Frank

has experienced. Appellants further argued that extreme pressure from counsel was

placed upon Frank to induce him to sign the informed consent form. Finally, appellants

12. argued that their prior counsel failed to look into Frank’s medical situation, and that

appellants have requested, but have not obtained, all of Frank’s records held by appellees.

{¶ 22} Notably, attached to appellants’ motion to stay was a December 6, 2016

letter from counsel to appellants that accompanied the December 5, 2016 “Confidential

Settlement Agreement and Full Release.”2 In the letter, counsel stated that they had been

waiting to hear if appellees would go forward with the settlement with only 20 of the 22

claimants agreeing to the settlement, and that counsel was now happy to report that

appellees had “agreed to go forward with the settlement.” Further, the letter stated that

“Stryker has made its revised offer contingent on all 20 people accepting the final terms.

If any of the 20 clients does not finalize the settlement, then the offer is withdrawn as to

all clients.”

{¶ 23} Appellees filed their opposition to appellant’s motion to stay, and included

a motion to amend the trial court’s August 21, 2017 judgment to set forth the parties’

respective obligations in light of the court’s decision to grant the motion to enforce the

settlement agreement. Appellees requested that the court amend its entry to order

appellants to execute the “Confidential Settlement Agreement and Full Release” setting

forth the terms of the settlement agreement and dismissing the claims with prejudice.

While not explicit, appellees referred to the December 5, 2016 “Confidential Settlement

Agreement and Full Release” in their motion to amend.

2 Later, the record reveals that the December 6, 2016 correspondence also included a “Revised Informed Consent” form, although that form was not attached to appellants’ motion to stay.

13. {¶ 24} Appellants then filed their reply in support of their motion to stay. In the

reply, appellants argued that the September 30, 2016 email chain relied upon by appellees

in their motion to enforce the settlement agreement did not support the existence of a

settlement agreement. Additionally, appellants asserted that there was never oral or

written discussion on the issue of dismissal with prejudice, and thus that term was not

part of the original settlement offer. Lastly, appellants stated that there was never

acceptance of the settlement offer, that they had the understanding that they still had the

choice to opt out of the settlement agreement, that the purported counter-offer from

appellants was not accepted by appellees because they only agreed to three of the seven

proposed changes, and that Frank’s mental illness precluded him from being able to enter

into the settlement agreement.

{¶ 25} Following our mandate dismissing appellants’ appeal for lack of a final

appealable order, appellants filed a pro se motion for a temporary restraining order and

preliminary injunction. Although not entirely clear, in their motion for a temporary

restraining order, appellants appeared to request that the court prohibit any further

litigation on appellees’ motion to enforce the settlement agreement because the

settlement agreement was negotiated on behalf of appellees by an attorney who is not

licensed to practice law in Ohio.

{¶ 26} Appellees responded, arguing that appellants’ motion was frivolous, and

that any litigation appellees participated in, including the motion to enforce the settlement

agreement, was properly brought by Ohio-licensed counsel.

14. {¶ 27} Appellants replied in support of their motion for a temporary restraining

order, and also filed an opposition to appellees’ October 23, 2017 motion to amend the

trial court’s August 21, 2017 judgment entry. As to the opposition to the motion to

amend, appellants argued that the motion was untimely pursuant to Lucas County Court

of Common Pleas Local Rule 5.05(C) and (D).

{¶ 28} On May 16, 2018, the trial court entered its judgment denying appellants’

pro se motion to stay the judgment and pro se motion for a temporary restraining order,

and granting appellees’ motion to amend the August 21, 2017 judgment. The trial court

reasoned that appellants’ motion to stay was moot by virtue of the fact that the August

21, 2017 judgment was determined not to be a final appealable order. Further, to the

extent that appellants argued that the trial court’s judgment on the motion to enforce the

settlement agreement was erroneous, the trial court found that appellants’ arguments were

the same as in its opposition to the motion to enforce and the court found them to be

unpersuasive. As to appellants’ motion for a temporary restraining order, the trial court

found the motion to be without merit because all of the litigation in the case had been

conducted on behalf of appellees by an attorney licensed in Ohio. Finally, as to

appellees’ motion to amend the August 21, 2017 judgment entry, the trial court agreed,

and in an effort to enter a final appealable order, the trial court ordered:

Both Plaintiffs and Defendants herein are hereby ordered to execute

the Confidential Settlement Agreement and Full Release and Joint

Dismissal and undertake their respective obligations contained within such

15. document(s). Furthermore, the parties are ordered to provide this Court

with a stipulated dismissal of all Plaintiffs’ claims, with prejudice, by

Friday, June 1, 2018, at 4:30 p.m.

The trial court did not specify whether the parties were to execute the December 5, 2016,

or the February 3, 2017 “Confidential Settlement Agreement and Full Release.”

{¶ 29} Shortly before the deadline, on May 31, 2018, appellants filed a “Proposed

Settlement Agreement and Dismissal” with the trial court. In their filing, appellants

asserted that they submitted a “General Release and Confidential Settlement Agreement”

to appellees, but that appellees have not executed the submitted agreement. Strikingly, in

the copy of the agreement that appellants submitted with their motion, appellants

included a provision that appellees pay an amount approximately 75 times more than the

settlement amount contained in the original proposed settlement agreement.

{¶ 30} On June 1, 2018, appellees filed a motion to dismiss appellants’ complaint

with prejudice, arguing that appellants have failed to comply with the terms of the trial

court’s May 16, 2018 judgment, and have attempted to extort appellees to settle their

claims.

{¶ 31} Before the trial court could rule on appellees’ motion to dismiss, appellants

appealed the court’s May 16, 2018 judgment entry ordering them to execute the

“Confidential Settlement Agreement and Full Release.”

{¶ 32} Thereafter, appellants filed their opposition to appellees’ motion to dismiss,

and a pro se motion for reconsideration of the trial court’s August 21, 2017 judgment

16. granting the motion to enforce the settlement agreement. In their filing, appellants

attached, for the first time, the “Revised Informed Consent” form sent to appellants by

Zoll & Kranz as part of the December 6, 2016 correspondence. Appellants alleged that

the “Revised Informed Consent” form—which they refused to sign—contains fraudulent

statements by appellees as well as by Zoll & Kranz. Thus, appellants requested the court

to reconsider its granting of appellees’ motion to enforce the settlement agreement, and

deny appellees’ motion to dismiss.

{¶ 33} On July 19, 2018, this court dismissed appellants’ appeal of the trial court’s

May 16, 2018 judgment entry for lack of a final appealable order.

{¶ 34} Subsequently, on November 8, 2018, the trial court entered an order

reaffirming that appellants’ complaint against appellees has been settled pursuant to the

terms of the settlement agreement that was attached to appellees’ motion to enforce the

settlement agreement. This time the trial court ordered appellants to execute the February

3, 2017 “Confidential Settlement Agreement and Full Release,” and warned them that if

they failed to do so within 21 days, then the court would grant appellees’ motion to

dismiss, and would dismiss the complaint with prejudice.

{¶ 35} Appellants appealed the trial court’s November 8, 2018 judgment entry,

which this court again dismissed for lack of a final appealable order.

{¶ 36} On January 4, 2019, following our dismissal of the most recent appeal, the

trial court again ordered appellants to execute the “Confidential Settlement Agreement

and Full Release,” but did not specify whether they should execute the December 5,

17. 2016, or the February 3, 2017 version. The court notified appellants that if they failed to

do so within ten days, appellees’ motion to dismiss would be granted, and appellants’

complaint would be dismissed with prejudice.

{¶ 37} Ten days later, on January 14, 2019, appellants filed a pro se Civ.R. 60(B)

motion for relief from judgment, arguing that Frank underwent a surgery on December 7,

2018, that uncovered new evidence in support of appellants’ claims against appellees.

{¶ 38} Appellees opposed the motion, arguing that relief from judgment under

Civ.R. 60(B) is inappropriate because no final judgment had been entered. To that end,

appellees again requested that the trial court dismiss the complaint with prejudice, noting

appellants’ flagrant refusal to comply with the trial court’s order to execute the

{¶ 39} Appellants then filed their reply in support of their motion for relief from

judgment, in which they argued that they did not give “informed” consent to settle

because Zoll & Kranz and appellees allegedly failed to disclose pertinent facts and

documents at the time of the original settlement negotiations. Appellants further alleged

that the original informed consent form that was executed on November 2, 2016, was

materially different than the version of the “Revised Informed Consent” form and

“Confidential Settlement Agreement and Full Release” that was presented to them on

December 6, 2016.

{¶ 40} On May 1, 2019, the trial court entered its judgment denying appellants’

motion for relief from judgment. Moreover, the court advised appellants “for the final

18. time” that if they do not execute the settlement agreement within 20 days, the court will

dismiss the complaint with prejudice upon a proper motion by appellees.

{¶ 41} On May 23, 2019, because appellants continued to refuse to sign the

“Confidential Settlement Agreement and Full Release,” appellees moved to dismiss the

complaint with prejudice.

{¶ 42} On June 5, 2019, appellants filed their opposition, in which they raised a

number of issues: (1) Rhonda’s claim for loss of consortium is still enforceable; (2)

appellees’ counsel committed the unauthorized practice of law; (3) appellee Hammill

Manufacturing was not a party to the motion to enforce the settlement agreement; (4)

appellees are in default for failing to file an answer to appellants’ complaint; (5) the

September 2, 2016 informed consent letter did not contain the material terms of the

settlement agreement, including the dismissal of claims with prejudice; (6) the September

2, 2016 informed consent letter and the revised December 6, 2016 informed consent letter

state that if any client rejects the offer, then the offer is withdrawn as to all clients; (7)

appellants submitted a proposed settlement and dismissal to appellees on May 30, 2018,

which received no response; and (8) Frank’s mental illnesses and prescription

medications impacted his ability to enter into a settlement agreement.

{¶ 43} Attached to the opposition, for the first time, was the full September 2,

2016 letter from Zoll & Kranz to appellants describing the proposed settlement

agreement, and requesting appellants’ informed consent to the agreement. The letter

conveyed that appellees insisted that the settlement offer be accepted by all 22 clients,

19. and if any client rejects the offer, then it is withdrawn as to all clients. Also included, for

the first time, was a portion of the December 6, 2016 letter from Zoll & Kranz to

appellants reporting that two people opted out of the original settlement offer, but counsel

continued to negotiate and appellees agreed to settle with the remaining 20 clients. Zoll

& Kranz again conveyed that “Stryker has made its revised offer contingent on all 20

people accepting the final terms. If any of the 20 clients does not finalize the settlement,

then the offer is withdrawn as to all clients.”

{¶ 44} Because appellants did not execute the “Confidential Settlement

Agreement and Full Release,” the trial court, on July 25, 2019, entered its judgment

dismissing appellants’ complaints with prejudice.

II. Assignments of Error

{¶ 45} Appellants timely appealed the trial court’s July 25, 2019 judgment entry,

and filed a pro se appellate brief setting forth 16 assignments of error. Thereafter,

appellants were able to retain counsel, and this court permitted counsel to submit a

supplemental brief, but this court ordered that counsel was “bound by the assignments of

error raised in [appellants’] pro se briefs and may not assert new, additional assignments

of error.” The 16 assignments of error set forth by appellants are:

1. Hundreds of pages of sealed Documents and Exhibits A-M were

not provided after the withdrawal of former appellants’ attorney’s Zoll &

Kranz on 3/6/2017.

20. 2. The contents of these Exhibits and Documents, which were in the

possession of Zoll & Kranz and were essential to making an informed

consent and were not disclosed to appellants before the delayed signing of

the informed consent on November 2, 2016.

3. These Exhibits and Documents were belatedly released to

Appellants by former Attorney Jim O’Brien, Zoll & Kranz on 6/29/2018.

4. Appellees Stryker et al refused to provide these Exhibits and

Documents.

5. The trial court issued a judgment based on untrue allegations

presented by Appellees’ attorneys without the full understanding of the

Appellant Frank A. Aceste mental condition (Exhibit 5 Page 3 of 6 of

Plaintiffs’ Pro Se Motion to Vacate Stryker’s Motion to Enforce Settlement

filed 6/16/2017) and (Exhibit A of Appellants’ Pro Se Motion for Stay on

Judgment filed 10/10/2017) due to an oversight of the trial court’s non

recognition of proof of Frank’s mental incapacity to enter into an agreement

due to MDD (Major Depressive Disorder), Anxiety, and the prescription

medications’ (Effexor, Klonopin, Neurontin, Ambien) side effects on

decision making.

6. Frank A. Aceste was coerced into signing the first informed

consent, 32 days after the close of the informed consent process, without

the presence of his sister (Claire Aceste), acting as advisor due to his

21. diminished mental capacity. Frank is not capable of making a decision of

this magnitude without an advisor as stated by his psychologist and

neurologist, Dr. Una Choday MD, PA, records from 2009 through present.

7. The informed consent did not contain a non negotiable offer,

acceptance, contractual capacity, or a consideration and was verbally

declined and not signed at the Sept. 30, 2016 end of the informed consent

process as claimed by Appellee Stryker.

8. Dismissal With Prejudice was never discussed.

9. Frank’s wife Appellant Mrs. Rhonda A. Aceste was never even

spoken to once by former counsel and did not sign the 1st Informed

Consent which Appellee Stryker claims binds Mrs. Rhonda A. Aceste to

the supposed settlement agreement.

10. All of Appellants’ edits were not agreed to by Appellees and

were not just limited to Medicare as Appellees claimed. (only 3 of 7 edits

were accepted).

11. In accordance with the Judgment Entry dated 5/17/2018 by

Judge Cook, being appealed here, there is included an order to Appellants

and Defendants to execute a confidential settlement agreement, full release

and joint dismissal and undertake their respective obligations contained

within such document(s), however, this did not state which settlement

document. Appellants Frank A. Aceste and Rhonda A. Aceste in

22. compliance with the 5/16/2018 court order, submitted a proposed

settlement and dismissal to defendants and the court, filed 5/30/2018, which

received no response.

12. Appellant Frank A. Aceste entered into supposed Mediation

discussions with Appellee’s Stryker (not neutral) Mediator Honorable

Diane Welsh, a mediator at JAMS, Inc. arranged by Appellee’s attorney

Kim Catullo on 2/15/2017. She verbally admitted that not all the edits were

accepted as stated by Appellees. In this almost 2 hr. phone call former

counsel Jim O’Brien admitted to Mediator Diane Welsh that he told Mr.

Frank A. Aceste and his sister Mrs. Claire Aceste (acting as advisor) that

the Informed Consent was not final and that we still had the right of refusal

to continue litigation. The fact that Appellee Stryker scheduled this

mediation is proof that the first informed consent did not contain all the

elements necessary for settlement. The contents of the materially different

supposed settlement agreement were never disclosed to either Appellants or

their former attorney Jim O’Brien before receipt 12/6/2016.

13. Second Revised Informed Consent and First Settlement

Agreement and Full Release of 12/6/2016 was not signed and orally

rejected and contained fraudulent statements.

14. Second and Third Settlement Agreement and Full Release was

not signed and orally rejected and led to mediation phone call with the

23. Honorable Diane Welsh, Stryker’s Appellees Mediator (sic), on 2/15/2017,

which resulted in no resolution.

15. Rhonda A. Aceste loss of Consortium is an independent claim

that is still enforceable.

16. Unlawful practice of law by Stryker Attorneys Paul Asfendis and

Kim Catullo of Gibbons P.C.

III. Analysis

{¶ 46} At the outset, we note that appellants have not separately argued their

assignments of error in their appellate brief, but it is clear that the central issue at dispute

is whether a settlement agreement existed between the parties as articulated in appellants’

seventh and thirteenth assignments of error.

The standard of review to be applied to a ruling on a motion to

enforce a settlement agreement depends primarily on the question

presented. If the question is an evidentiary one, this court will not overturn

the trial court’s finding if there was sufficient evidence to support such

finding. However, in a case such as this one where the issue is a question

of contract law, reviewing courts must determine whether the trial court’s

order is based on an erroneous standard or a misconstruction of the law.

(Internal citations omitted.) Turoczy Bonding Co. v. Mitchell, 2018-Ohio-3173, 118

N.E.3d 439, ¶ 15 (8th Dist.); see also Continental W. Condominium Owners Assn. v.

Howard E. Ferguson, Inc., 74 Ohio St.3d 501, 502, 660 N.E.2d 431 (1996) (“[B]ecause

24. the issue is a question of contract law, Ohio appellate courts must determine whether the

trial court’s order is based on an erroneous standard or a misconstruction of the law. The

standard of review is whether or not the trial court erred.”).

{¶ 47} Here, the dispute is not whether the parties breached the terms of the

settlement agreement, but rather whether a settlement agreement exists in the first

instance. “We review de novo as a question of law a trial court’s decision on a motion to

enforce settlement of whether a settlement agreement exists as a contract between the

parties to terminate a claim by preventing or ending litigation.” Zimmerman v. Bowe, 6th

Dist. Lucas No. L-18-1200, 2019-Ohio-2656, ¶ 11, citing Marine Max of Ohio, Inc. v.

Moore, 6th Dist. Ottawa No. OT-15-033, 2016-Ohio-3202, ¶ 14; see also North Side

Bank & Trust Co. v. Trinity Aviation, LLC, 2020-Ohio-1470, --- N.E.3d ---, ¶ 17 (1st

Dist.) (“[W]e determine the existence of a contract as a question of law, and our standard

of review on questions of law is de novo.”); Alexander Local Sch. Dist. v. Village of

Albany, 2017-Ohio-8704, 101 N.E.3d 21, ¶ 31 (4th Dist.) (“[T]he existence of a contract

is a question of law. Therefore, the existence of a contract is a legal conclusion and not a

factual allegation.”); Union Sav. Bank v. Lawyers Title Ins. Corp., 191 Ohio App.3d 540,

2010-Ohio-6396, 946 N.E.2d 835, ¶ 20 (10th Dist.) (“Courts generally determine the

existence of a contract as a matter of law. This court reviews questions of law regarding

the existence of a contract de novo.”); Zelina v. Hillyer, 165 Ohio App.3d 255, 2005-

Ohio-5803, 846 N.E.2d 68, ¶ 12 (9th Dist.) (“The existence of a contract is a question of

law.”).

25. {¶ 48} Initially, we note that this case would have benefited greatly from a hearing

on the motion to enforce the settlement agreement, as is actually required by Rulli v. Fan

Co., 79 Ohio St.3d 374, 377, 683 N.E.2d 337 (1997) (“Where the meaning of terms of a

settlement agreement is disputed, or where there is a dispute that contests the existence of

a settlement agreement, a trial court must conduct an evidentiary hearing prior to entering

judgment.”). However, because neither appellants nor appellees ever requested a hearing

in the trial court, and because appellants did not raise the issue as an assignment of error,

the issue is waived. Wilson v. Wilson, 2018-Ohio-3820, 111 N.E.3d 110, ¶ 21 (6th Dist.)

(“If a trial court does not hold the required hearing, an appellant nonetheless waives this

error for purposes of appellate review where ‘[t]he record shows no indication that

appellant requested an evidentiary hearing or objected to the nature of the

proceedings.’”). Thus, our review will be limited to whether the evidence presented to

the trial court on the motion to enforce the settlement agreement establishes that a

settlement agreement did in fact exist.

{¶ 49} “A contract is generally defined as a promise, or a set of promises,

actionable upon breach. Essential elements of a contract include an offer, acceptance,

contractual capacity, consideration (the bargained for legal benefit and/or detriment), a

manifestation of mutual assent and legality of object and of consideration.” Kostelnik v.

Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, ¶ 16. “A meeting of the minds

as to the essential terms of the contract is a requirement to enforcing the contract.” Id.

“The burden of proof for each element is by a preponderance of the evidence on the party

26. seeking to enforce the settlement agreement.” Zimmerman at ¶ 9, citing Savoy Hosp.,

LLC v. 5839 Monroe St. Assocs. LLC, 6th Dist. Lucas No. L-14-1144, 2015-Ohio-4879, ¶

26.

{¶ 50} In this case, we find that the evidence does not support the existence of an

offer and acceptance forming an oral settlement agreement.

“An offer is the manifestation of willingness to enter into a bargain,

so made as to justify another person in understanding that his assent to that

bargain is invited and will conclude it.” 1 Restatement of the Law 2d,

Contracts (1981), Section 24. An offer is binding on the offeror when

accepted by the offeree. An offer remains open for acceptance by the

offeree until it is revoked by the offeror, rejected by the offeree, or until the

time for its acceptance has expired. Id., Section 36.

When an offer is rejected, it ceases to exist, and a subsequent

attempted acceptance is inoperative to bind the offeror. A rejection is

implied in a counteroffer, which is “interpreted as being in effect a

statement by the offeree not only that he will enter into the transaction on

the terms stated in his counteroffer, but by implication that he will not

assent to the terms of the original offer.” 1 Williston On Contracts (4 Ed.

Lord Ed.1990) 631, Section 5:3. An offeree’s power to conclude the

bargain through his acceptance of the offer is, therefore, terminated by his

making of a counteroffer. Restatement, supra, Section 39(2).

27. Garrison v. Daytonian Hotel, 105 Ohio App.3d 322, 325, 663 N.E.2d 1316 (2d

Dist.1995).

{¶ 51} Here, in a December 13, 2016 email to Frank’s sister, Zoll & Kranz

described the original offer:

Regarding the original offer including 22 people, but now only 20:

Stryker did make their original offer contingent on all 22 people accepting.

Back then, first one person said “no” and we called Stryker and asked if we

should even continue our work. They said “please continue,” which we

took to mean that they would proceed without the one person. Then, when

I asked for final answers from the last 4 people (Frank was one of those last

4, as I recall), one more person said “no.” Everyone else said “yes.” Then,

Stryker considered whether they wanted to go forward for the 2 months that

followed...and very recently came back and said they would go forward

Thus, the original offer required all 22 clients to accept it. This is supported by the

September 30, 2016 email, in which Zoll & Kranz relayed that Group A accepted the

offer, Group B accepted the offer contingent on the resolution of liens, and Group C

rejected the offer. At the end of the email, Zoll & Kranz stated, “We recognize there are

a few contingent issues on behalf of our clients and we are mindful that is not precisely

what Stryker was seeking. I welcome input on direction or next steps from this point.”

(Emphasis added.) In effect then, the September 30, 2016 email was not an acceptance of

28. the offer, but rather a counteroffer to settle with less than 22 clients. The counteroffer

constituted a rejection of the original offer, and therefore appellants’ purported

acceptance of the original offer as evidenced by Frank’s November 2, 2016 signing of the

informed consent form was ineffective to create a binding settlement agreement.3

{¶ 52} Furthermore, appellees December 5, 2016 “Confidential Settlement

Agreement and Full Release,” cannot be construed to be an acceptance of the

counteroffer because in the intervening months, the parties engaged in negotiations

resulting in changed language reflected in the December 5, 2016 “Confidential

Settlement Agreement and Full Release.” “A reply to an offer which purports to accept

but is conditional on the offeror’s assent to terms additional to or different from those

offered is not an acceptance but is a counteroffer.” Foster v. Ohio State Univ., 41 Ohio

App.3d 86, 88, 534 N.E.2d 1220 (10th Dist.1987), citing 1 Restatement of the Law 2d,

Contracts (1981) 144, Section 59. Therefore, appellees’ December 5, 2016 “Confidential

Settlement Agreement and Full Release” constituted a further counteroffer, which

3 The dissent asserts that we err by concluding that appellants’ acceptance must have occurred on November 2, 2016, or not at all. The dissent then points to the September 30, 2016 email as evidence that appellants accepted the offer. First, we note that we do not conclude that appellants must have accepted the offer on November 2, 2016, or not at all. Rather, we conclude that the November 2, 2016 signing of the informed consent form is evidence of appellants’ purported acceptance of the offer. That purported acceptance, however, was ineffective because the original offer had already been rejected by the September 30, 2016 email. Second, as discussed above, the September 30, 2016 email was not an acceptance of the offer because the offer was contingent on all 22 plaintiffs accepting, and at least two of the plaintiffs did not accept. The fact that Frank, individually, was one of the people that initially indicated acceptance of the offer does not create a binding settlement agreement where contingencies related to the offer were not met.

29. appellants clearly rejected.4 Accordingly, we hold that the record does not establish an

offer and acceptance forming a binding settlement agreement between the parties.5

{¶ 53} Nonetheless, even if we were to find that an offer and acceptance existed,

we find that the settlement agreement is unenforceable because the record contains no

evidence as to the terms of that agreement.

{¶ 54} “It is preferable that a settlement be memorialized in writing. However, an

oral settlement agreement may be enforceable if there is sufficient particularity to form a

binding contract. Terms of an oral contract may be determined from ‘words, deeds, acts,

and silence of the parties.’” (Internal citations omitted.) Kostelnik, 96 Ohio St.3d 1,

4 The dissent argues that the December 5, 2016 “Confidential Settlement Agreement and Full Release” was an acceptance of appellants’ counteroffer, but does not address the fact that the release contained additional or different terms. 5 In reaching the opposite conclusion, the dissent places great emphasis on its characterization that appellants did not contest the existence of a settlement agreement in their response to the motion to enforce the settlement agreement. This characterization, though, does not reflect appellants’ arguments, wherein Frank asserted, “In fact, it was my understanding, after numerous discussions and e-mails with my counsel that even if I signed this original [November 2, 2016] informed consent, I would indeed have the choice of accepting the final settlement, if and when, it was offered.” From this statement, Frank was clearly indicating that he did not believe there was a settlement agreement, only preliminary negotiations. Furthermore, Frank’s understanding that the settlement agreement was not final is supported by the emails from his counsel as of December 2016 informing him that he still had the option “to decline the settlement once the full terms were disclosed.” The dissent argues that poor advice or inadequate legal representation is not sufficient to repudiate a settlement agreement, but this argument misses the point that Frank’s belief that he could still decline the settlement goes to whether there was a true meeting of the minds.

30. 2002-Ohio-2985, 770 N.E.2d 58, at ¶ 15, quoting Rutledge v. Hoffman, 81 Ohio App. 85,

75 N.E.2d 608 (1st Dist.1947).

{¶ 55} “To constitute a valid settlement agreement, the terms of the agreement

must be reasonably certain and clear.” Rulli, 79 Ohio St.3d at 376, 683 N.E.2d 337.

“A court cannot enforce a contract unless it can determine what it is. It is

not enough that the parties think that they have made a contract. They must

have expressed their intentions in a manner that is capable of being

understood. It is not even enough that they had actually agreed, if their

expressions, when interpreted in the light of accompanying factors and

circumstances, are not such that the court can determine what the terms of

that agreement are.”

Id., quoting 1 Corbin on Contracts (Rev. Ed.1993) 525, Section 4.1. While “it is

generally within the discretion of the trial judge to promote and encourage settlements to

prevent litigation * * * * [a] trial judge cannot, however, force parties into a settlement.”

Id.

{¶ 56} Appellees sought to enforce the settlement agreement under the terms of

the December 5, 2016 “Confidential Settlement Agreement and Full Release.” It is

indisputable that appellants refused to sign the December 5, 2016 “Confidential

Settlement Agreement and Full Release.” Thus, to have those terms enforced, it was

incumbent upon appellees to demonstrate that those terms accurately reflected the oral

settlement agreement that was purportedly reached following the mediation sessions.

31. However, appellees presented no evidence to establish the terms of the oral settlement

{¶ 57} As evidence of the oral agreement, appellees cited the September 30, 2016

email, wherein Zoll & Kranz relayed,

[Redacted] people have accepted the allocated offer. [Redacted] of

those have returned a signed form and we are still waiting on the remaining

[redacted]. The total amount allocated to these [redacted] was [redacted].

[Redacted] people, [redacted] and [redacted] have accepted the

allocated offer contingent on resolution of their liens such that they do not

have to pay any subrogation. Both live in “made-whole” states where

subrogation is not due until the client has been made whole and we have

sent letters to both subrogation carriers demanding that they waive their

liens. The total amount allocated to these [redacted] is [redacted].

On appeal, appellees also point to the “Informed Consent Acknowledgment and Consent

to Settle” that appellant signed on November 2, 2016, as evidence that a settlement

agreement was reached. Yet, neither the September 30, 2016 email, nor the November 2,

2016 informed consent form set forth any terms of the settlement agreement other than

32. the amount.6 Those two documents do not set forth any terms regarding Medicare

releases, confidentiality and non-disparagement, appellants’ release of any future claims

against appellees, or the dismissal of appellants’ present claims with prejudice.

{¶ 58} Appellees also cite, as evidence that a settlement agreement existed, the

inclusion of Frank Aceste on two lists sent by Zoll & Kranz on November 29 and 30,

2016. While those emails could potentially support the existence of an earlier agreement

to settle, they too—like the September 30, 2016 email and the November 2, 2016

informed consent form—do not provide any details on the terms of the settlement

agreement. Likewise, the entire email chain that began on November 23, 2016, does not

describe any of the terms of the settlement agreement.

{¶ 59} The first, and only, evidence of the specific terms of a settlement

agreement is found in the December 5, 2016 “Confidential Settlement Agreement and

Full Release.” But there is nothing in the record tying those terms to the oral settlement

agreement that was allegedly reached following the mediation sessions; there is no

separate evidence of the terms of the oral settlement agreement for comparison, there is

no affidavit attesting that those were the terms of the oral settlement agreement, and there

is no testimony to that effect either. Simply put, appellees cannot rely solely on a

rejected written proposal to establish the terms of a prior oral agreement. See Apple v.

6 While the November 2, 2016 informed consent form did reference the terms of the settlement offer as set forth in an attached letter, that letter was not provided to the trial court before it entered its decision on appellees’ motion to enforce the settlement agreement.

33. Hyundai Motor Am., 2d Dist. Montgomery No. 23218, 2010-Ohio-949, ¶ 10 (“Hyundai

could not use the written settlement document to impose additional duties on the Apples

to which they had not agreed.”).

{¶ 60} Because of the lack of any evidence of the terms of the oral settlement

agreement, the present case is distinguishable from the cases relied upon by appellees.

Illustratively, appellees cite three cases as examples of settlement agreements that were

enforced even though they were made outside of the presence of the court and were not

reduced to a signed writing.

{¶ 61} In Turoczy Bonding Co. v. Mitchell, 2018-Ohio-3173, 118 N.E.3d 439, ¶ 10

(8th Dist.), the plaintiff moved to enforce a settlement agreement, arguing that the parties

had agreed to mutually dismiss their claims at their own costs. Attached to the plaintiff’s

motion was an email exchange in which counsel for the plaintiff stated, “I wanted to

confirm what we talked about earlier today. Your client will agree to a mutual dismissal

of all claims, with prejudice. Each party to bear their own costs with a broad release.

You can draft the release.” Counsel for the defendant replied, “Yes * * * provided it’s

happening ASAP and not after I do a bunch more work.” Id. at ¶ 7. Several days later,

counsel for the plaintiff inquired how the release was coming along, and counsel for the

defendant responded that he “was working on it * * * no worries.” Id. at ¶ 8. However,

several days after that, the defendant changed his mind and no longer wished to enter into

a settlement agreement. Id. The defendant argued that there was no enforceable

settlement agreement because he never signed a written agreement, and because the email

34. communications did not contain any clear and definite terms. Id. at ¶ 11. On appeal, the

Eighth District affirmed the trial court’s decision to enforce the settlement agreement,

rejecting the defendant’s contention that the terms of the settlement agreement were

vague and indefinite. The Eighth District reasoned that the emails “clearly reflect a

definite offer and acceptance concerning the parties’ agreement to mutually dismiss their

claims with prejudice at their own cost. Given the implications of a dismissal of all

claims at the parties’ own cost, no further action or discussion of additional terms was

contemplated or required. In short, no unresolved contingencies remained.” Id. at ¶ 21.

{¶ 62} In Cugini & Capoccia Builders, Inc. v. Tolani, 5th Dist. Delaware No. 15

CAE 10 0086, 2016-Ohio-418, ¶ 11, the plaintiffs filed a motion to enforce a settlement

agreement, which the trial court granted. The court ordered, “In accordance with the

parties’ settlement agreement, judgment is granted in favor of the Plaintiff against the

Defendants for $35,000, and the Plaintiff is ordered to complete the designated list of

work items.” Id. at 25. On appeal, the Fifth District affirmed. The Fifth District found

that the trial court had reviewed the correspondence between the parties, and that the

correspondence showed that the parties agreed that (1) the defendants would pay the

plaintiff $35,000, (2) the plaintiff would complete a defined list of work items; and (3)

the defendants would deposit the funds into their attorney’s trust account, and the funds

would be released upon completion of the work. Id. at ¶ 19. Thus, the Fifth District

concluded that the trial court’s order finding the existence of a completed settlement

agreement was proven by clear and convincing evidence. Id. at ¶ 21.

35. {¶ 63} Finally, in Apple v. Hyundai Motor Am., 2d Dist. Montgomery No. 23218,

2010-Ohio-949, ¶ 10, the Tenth District affirmed the trial court’s decision to grant the

defendant’s motion to enforce a settlement agreement. In that case, the plaintiffs sued the

defendant for breach of Ohio’s Lemon Law. The plaintiffs orally proposed to settle the

lawsuit in return for a $7,000 payment from the defendant. The defendant accepted the

offer, and confirmed acceptance by sending a letter to counsel for the plaintiffs. The

defendant then sent the plaintiffs a copy of a standard form of release that it used when

settling litigation. Id. at ¶ 3. The next day, counsel for the plaintiffs sent the standard

release back to the defendant with two of the paragraphs crossed out. Notations in the

margin explained that the paragraphs had not been agreed to by the plaintiffs. The

paragraphs provided for non-disclosure, and that the plaintiffs would indemnify the

defendant for future losses arising from claims by third parties. Counsel for the plaintiffs

explained that the settlement would remain intact if those two paragraphs were removed

from the release. Id. at ¶ 4. Before the defendant responded, the plaintiffs contacted their

counsel and explained that they no longer wished to settle because they were continuing

to have problems with their car. Id. at ¶ 5. Counsel then relayed that the plaintiffs would

not abide by the settlement agreement, and the defendant responded by filing a motion to

enforce the settlement agreement, while agreeing in the process to delete the two

objectionable paragraphs. Id. On appeal, the Tenth District reasoned that while the

defendant could not use the written settlement document to impose additional duties, the

36. plaintiffs could not repudiate their performance promised in the oral agreement. Id. at ¶

10.

{¶ 64} Turoczy, Cugini, and Apple, are all distinguishable from the present case,

because in each of them, although the settlement agreements were not reduced to a signed

writing, evidence was presented establishing enforceable terms of an oral agreement. For

the same reasons, appellees reliance on Santomauro v. Sumss Property Mgmt., LLC,

2019-Ohio-4335, 134 N.E.3d 1250, ¶ 4 (9th Dist.) (settlement agreement read into the

record in open court); Mathews v. E. Pike Local School Dist. Bd. Of Edn., 4th Dist. Pike

No. 12CA831, 2013-Ohio-4437, ¶ 11 (the trial court held a hearing and received

testimony that Mathews’ attorney was authorized to accept the settlement agreement);

Aber v. Vilamoura, Inc., 184 Ohio App.3d 658, 2009-Ohio-3364, 922 N.E.2d 236 (9th

Dist.) (testimony taken at a hearing on the motion to enforce the settlement agreement

from the parties’ lawyers); Kostelnik, 96 Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58

(examined the evidence surrounding the settlement agreement—which included a letter

from one of the defendants confirming the settlement agreement, the releases separately

provided by the two defendants, Kostelnik’s conduct of not objecting to the terms of the

releases and seeking approval of the settlement and distribution of the proceeds from the

probate court, and Kostelnik’s later action of seeking relief from judgment against only

one of the defendants—and concluded that joint and several liability was not one of the

terms of the settlement agreement); and Spercel v. Sterling Indus., Inc., 31 Ohio St.2d 36,

38, 285 N.E.2d 324 (1972) (hearing was held on the motion to vacate, at which the trial

37. judge in the original action testified that the parties had come to a firm agreement), is

likewise misplaced.

{¶ 65} In contrast, here, the only term of the oral settlement agreement that

appellees have established is the amount. There is no evidence that the remainder of the

terms contained in the December 5, 2016 “Confidential Settlement Agreement and Full

Release” were part of the oral settlement agreement.7 Thus, even if we held that there

was an offer and acceptance of the oral settlement agreement, that agreement is not

enforceable because the terms have not been defined. See Rulli, 79 Ohio St.3d at 376,

683 N.E.2d 337 (“A court cannot enforce a contract unless it can determine what it is. It

is not enough that the parties think that they have made a contract.”). Therefore, we hold

that the record does not demonstrate an enforceable oral settlement agreement.

{¶ 66} Finally, we find that Zoll & Kranz’s conduct following appellants’

rejection of the December 5, 2016 “Confidential Settlement Agreement and Full Release”

cannot establish a settlement agreement between the parties. In its decision granting the

motion to enforce the settlement agreement, the trial court alternatively found that Zoll &

Kranz’s raising of an issue regarding the Medicare language of the December 5, 2016

“Confidential Settlement Agreement and Full Release” constituted a counteroffer, which

appellees accepted. The trial court’s alternative reasoning, however, ignores that in all of

its correspondence on this issue, Zoll & Kranz expressly notified appellees that it did not

7 Notably, despite concluding that the terms of the rejected “Confidential Settlement Agreement and Full Release” should be enforced, the dissent does not point to any evidence linking those terms to the terms of any purported oral settlement agreement.

38. have client consent: on January 27, 2017, “We do not have client consent but we at least

wanted to give you a draft to consider;” also on January 27, 2017, “I have not yet been

able to get the client on board;” and on January 30, 2017, “We do not yet have client

consent yet.” “An attorney who is without special authorization has no implied or

apparent authority, solely by virtue of his general retainer, to compromise and settle his

client’s claim or cause of action.” Morr v. Crouch, 19 Ohio St.2d 24, 249 N.E.2d 780

(1969), paragraph two of the syllabus. Thus, because appellants never gave consent to

settle, Zoll & Kranz’s actions following the December 5, 2016 “Confidential Settlement

Agreement and Full Release” could not create a binding settlement agreement.8

{¶ 67} Therefore, for the above reasons, we hold that the trial court erred when it

granted appellees’ motion to enforce the December 5, 2016 “Confidential Settlement

Agreement and Full Release.”

8 In concluding otherwise, the dissent asserts that although counsel acknowledged that it did not have client consent, it nonetheless was acting at appellants’ behest because it presented the Medicare changes requested by appellants. We find two faults with this logic. First, and primarily, the dissent’s conclusion reaches the curious result that counsel’s actions, openly done without the clients’ consent, can nonetheless bind the clients to a settlement agreement. Second, the dissent’s conclusion is based on a faulty premise, which is that appellees agreed to all of the changes proposed by appellants. The dissent infers from appellants’ opposition to the motion to enforce the settlement agreement that appellants only proposed changes to the Medicare release language. In so doing, the dissent expresses confusion as to why appellants would state that appellees “did not agree to all the changes.” In fact, appellants proposed multiple changes to the “Confidential Settlement Agreement and Full Release,” including a change to the amount of the settlement, but appellants’ counsel only presented the Medicare release language proposals to appellees. (See markups to “Confidential Settlement Agreement and Full Release” attached to appellants’ October 10, 2017 pro se motion for stay on judgment.)

39. {¶ 68} Accordingly, appellant’s seventh and thirteenth assignments of error are

well-taken.

{¶ 69} Because we hold that the record does not demonstrate an enforceable

settlement agreement between the parties, appellants’ remaining assignments of error are

denied as moot.

IV. Conclusion

{¶ 70} For the foregoing reasons, we find that substantial justice has not been done

the party complaining. The August 21, 2017 judgment entry granting appellees’ motion

to enforce settlement agreement, and the July 25, 2019, judgment entry dismissing the

case with prejudice, are hereby reversed and vacated, and this matter is remanded to the

trial court for further proceedings consistent with this decision. Appellees are ordered to

pay the costs of this appeal pursuant to App.R. 24.

Judgment reversed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. CONCUR. ______________________________ JUDGE

Christine E. Mayle, J., DISSENTS AND WRITES SEPARATELY.

40. MAYLE, J.

{¶ 71} Respectfully, I dissent. In my view, the record clearly demonstrates that

the parties reached a binding settlement agreement. Indeed, Frank Aceste filed a pro se

response to appellees’ motion in which he did not contest the existence of a settlement

agreement. Instead, he argued that “the settlement agreement should be voided” because

his attorneys supposedly pressured him into it while he was in pain and lacked the

capacity to contract, and because his attorneys allegedly provided inadequate advice and

poor legal representation during the pendency of his case. The record, however, is

devoid of any evidence to support such claims—which, in any event, are not a valid basis

to void a binding contract. I would therefore affirm the trial court’s August 21, 2017

order to the extent that it enforced the parties’ settlement agreement.

{¶ 72} But, I believe that the trial court erred on May 16, 2018, when it amended

its August 21, 2017 decision by adding an ambiguous statement of relief. That is—as

appellants argue in their eleventh assignment of error—the May 16, 2018 order is

ambiguous because the statement of relief does not specify which version of the

Confidential Settlement Agreement and Full Release and Joint Dismissal must be signed.

This ambiguity is problematic because “a court order cannot be enforced in contempt

unless the order was ‘clear and definite, unambiguous, and not subject to dual

interpretations.’” City of Toledo v. State, 154 Ohio St.3d 41, 2018-Ohio-2358, 110

N.E.3d 1257, ¶ 23.

41. {¶ 73} Because the trial court dismissed the action as a sanction for appellants’

contempt of court—i.e., their failure to follow an ambiguous court order— I would find

appellants’ eleventh assignment of error well taken. I would reverse and remand this

matter to the trial court so that it could enter judgment pursuant to the terms of the

settlement agreement and dismiss the case with prejudice. That way, both parties—not

just appellees—would receive the benefit of the contract they agreed upon.

1. The parties agreed upon the essential elements of a contract.

{¶ 74} The “[e]ssential elements” of any contract, including settlement

agreements, include “an offer, acceptance, contractual capacity, consideration (the

bargained for legal benefit and/or detriment), a manifestation of mutual asset and legality

of object and of consideration.” Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985,

770 N.E.2d 58, ¶16, quoting Perlmuter Printing Co. v. Strome, Inc., 436 F.Supp. 409,

414 (N.D. Ohio 1976). Oral settlement agreements are enforceable in Ohio, and the

terms of such agreements “may be determined from ‘words, deeds, acts, and silence of

the parties.’” Id. at ¶15, quoting Rutledge v. Hoffman, 81 Ohio App. 85, 75 N.E.2d 698

(1st Dist.1947), paragraph one of the syllabus. As this court has recognized, “[c]omplete

clarity in every term of the agreement is unnecessary because all agreements have some

degree of indefiniteness and uncertainty.” Advantage Renovations, Inc. v. Maui Sands

Resort, Co., LLC, 6th Dist. Erie No. E-11-040, 2012-Ohio-1866, ¶ 18, citing Kostelnik at

¶ 17. Indeed, “seldom, if ever, does the evidence in proof of an oral contract present its

42. terms in the exact words of offer and acceptance found in formal written contracts. And

no such precision is required.” Id., quoting Rutledge at 86. Courts enforce oral contracts

for one simple reason: people must be held to the promises they make. Id.

{¶ 75} Acccording to the record, on or about August 11, 2016, a private mediation

session between appellees and Zoll & Kranz, legal counsel for 22 different CerviCore and

FlexiCore recipients, including Frank Aceste, resulted in a global settlement offer from

appellees for a set amount, to be allocated between the 22 claimants, in exchange for their

dismissal of claims against the appellees. The mediation was conducted by former

federal Magistrate Judge Diane M. Welch. In addition, Zoll & Kranz retained former

federal district court Judge Richard B. McQuade as a special master to determine the

allocation of the settlement monies amongst the settling claimants.

{¶ 76} On September 30, 2016, Zoll & Kranz sent an email to appellees’

counsel—with a copy to Judge Welch—indicating that appellants (among other

claimants) “have accepted the allocated offer,” and that Zoll & Kranz had received signed

forms back from some—but not all—of the claimants that had accepted. This email also

states that two of the 22 claimants rejected the offer.

{¶ 77} On November 2, 2016, Frank Aceste signed a form for his attorneys titled

“Informed Consent Acknowledgment and Consent to Settle” in which he confirms that he

agreed to settle his claim in exchange for his allocation of the settlement proceeds (which

is specified by dollar amount in the document). Although this document was intended to

be a confidential attorney-client communication (indeed, it is specifically marked as

43. such), Frank Aceste attached the Informed Consent document to his pro se response to

appellees’ motion to enforce settlement. He did not, however, attach the accompanying

letter from his attorneys (that is referenced in the document) that outlines the terms of the

parties’ settlement agreement beyond the essential terms that are summarized in the

Informed Consent.9

{¶ 78} From there, the parties anticipated that there would be two different

versions of the written settlement agreement and release—one form would be used for

Medicare recipients, and another form would be used for non-Medicare recipients. To

that end, on November 29, 2016, Zoll & Kranz emailed appellees’ counsel with an

attached document that listed all settled individuals and their Medicare status. Frank

Aceste is on the list of settled individuals, and he is identified as a Medicare recipient. In

response to this email, appellees’ counsel asked for another list that includes “the actual

allocations to each person.”

{¶ 79} The next day, November 30, 2016, Zoll & Kranz sent appellees’ counsel

another spreadsheet, this one identifying all of the settling claimants and their allocated

9 Frank did, eventually, submit the accompanying letter from Zoll & Kranz to the trial court, and the letter does, in fact, outline additional details of the parties’ settlement agreement. But, as the majority recognizes, that letter was not before the trial court when it ruled on appellees’ motion. Although that letter would have made it even easier for the trial court to have found an enforceable settlement agreement, I agree that we should not consider it because it was not before the trial court when it ruled on the motion. Regardless, for reasons discussed, the record before the trial court at the time of appellees’ motion fully supports its decision to enforce the parties’ settlement agreement.

44. settlement amount. Once again, the spreadsheet that Zoll & Kranz sent to appellees’

counsel identified Frank Aceste as a settled individual.

{¶ 80} On December 5, 2016, appellees’ counsel emailed a written “Confidential

Settlement Agreement and Full Release” to plaintiffs’ counsel. The written agreement

identifies Frank and Rhonda Aceste as the “RELEASORS,” and the appellees as the

“RELEASEES.” Most relevant to the current dispute, the written settlement agreement

contains four separate paragraphs addressing various implications that Medicare may

have on the parties’ settlement as a matter of law, including the following:

2.12 RELEASORS understand that should the Center for Medicare

and Medicaid Services (“CMS”) find that a Medicare Set-Aside Allocation

should have been established and/or that Medicare’s interests were not

adequately protected, CMS (Medicare) may require RELEASORS to

expend up to the entire settlement amount on Medicare covered expenses

related to the injury before Medicare will provide coverage for the injury. *

**

{¶ 81} As demonstrated through the confidential attorney-client communications

that Frank Aceste attached to his pro se response to appellees’ motion, this provision

regarding a potential Medicare Set-Aside (“MSA”) prompted Frank to raise some issues

with his attorneys that were, apparently, never discussed before. Specifically, it appears

that Frank asked Zoll & Kranz whether he would need an MSA, and for how much, given

that two doctors in New York had told him that he will need explant surgery to remove

45. the medical device. On December 28, 2016, Zoll & Kranz advised him that he “may”

need an MSA if he has future medical costs, but that they would have to do an MSA

analysis after the settlement was finalized. In response, on January 5, 2017, Frank sent

Zoll & Kranz an email that included the following:

I would think that this should have been done initially before

determining the share amount of the settlement. The people who had the

device removed are getting more money to cover the medicare payback but

I have to set aside money for future medical costs without any monetary

consideration to offset the set aside. I cannot make a decision without

knowing what the MSA will be. If you are confident that there will be no

MSA as previously stated and are willing to move ahead with the

settlement on that statement I might be able to reach a decision. I might

also consider settling if the amount was adjusted to cover an MSA in your

point system.

{¶ 82} On January 6, 2017, Zoll & Kranz responded via email, telling him that the

allocation was done by a neutral third party (retired Judge McQuade) and that they could

not change his settlement allocation. His attorney also stated:

[Y]ou are right that I didn’t know of the need for the MSA until you

brought up that 2 doctors in NY told you that you needed the explant

surgery. I had reviewed all your medical records before talking to you and

did not see any indication that a neurosurgeon was recommending the

46. surgery, so I saw no need for the MSA. Once you told me that, though, I

realized we do need the independent analysis. Normally I would have seen

this situation coming much sooner, but, please remember that we didn’t

order the medical records from these doctors based on your request that we

do not order them.

{¶ 83} Zoll & Kranz went on to explain that if he decides to “opt out” of the

settlement, then the defendants could possibly approach him about settling on other

terms, but they could also “refuse any more settlement talks and we’ll prepare for trial

over the next 18-24 months.”

{¶ 84} In response, Frank told his attorneys on January 11, 2017, that “I have

decided to opt out of the settlement agreement and to continue litigation.” His attorney at

Zoll & Kranz responded that day, stating that “you had said ‘yes’ to the settlement when

our estimated proceeds were [x].10 That hasn’t changed, right? I mean, if the MSA was

zero, you would be signing everything, right?” In that same email, his attorney suggested

that they get the MSA done at a certain percentage that he could live with, and that he is

“still pushing for zero, and if not zero, then 5% or 8% or 10%...etc.” The next day—

January 12, 2017—Frank responded by stating:

The MSA, which was brought to light with the final settlement docs,

10 The specific dollar amount of appellants’ settlement proceeds has been omitted for confidentiality purposes.

47. This settlement is unacceptable regardless of MSA and I will take

Stryker should have disclosed the full settlement details from the

Notably, Frank Aceste did not submit any correspondence that he may have had with his

attorneys after January 12, 2017.

{¶ 85} Appellees, however, submitted an email from Zoll & Kranz to appellees’

counsel that was sent 15 days later—on January 27, 2017—that attached a revised

version of the written settlement agreement and release between the parties. The

proposed revisions from Zoll & Kranz deleted the four paragraphs that had addressed

potential Medicare-related issues, including the possibility of an MSA. In addition, Zoll

& Kranz provided a letter stating that they had “provided Frank with an opinion letter

that a Medicare Set Aside (“MSA”) is not required in his case” and explaining why, in

their opinion, an MSA would not be required for Frank Aceste. The letter further advises

appellees that Zoll & Kranz would directly hold harmless and indemnify appellees from

any potential Medicare-related liability in connection with Frank Aceste.

{¶ 86} On January 30, 2017, appellees’ counsel accepted the opinion letter, along

with the proposed edits to the written agreement, and proposed the addition of one

“clarifying edit” to specify that the Release releases future claims as well as present

claims. On February 3, 2017, Zoll & Kranz e-mailed appellees’ counsel “a copy of the

48. final release” that incorporated the proposed edits of January 27, as well as the additional

edit that appellees’ counsel had sent on January 30.

{¶ 87} Although the Zoll & Kranz email dated January 27, 2017, stated that “[w]e

do not have client consent but we at least wanted to give you a draft to consider,” and the

Zoll & Kranz email dated February 3, 2017, stated “[w]e still have not heard from the

client but we are going to overnight this document to him along with a copy of the

opinion letter,” the record suggests that counsel’s negotiations regarding the language of

the written settlement agreement and release was, in fact, done at Frank Aceste’s behest.

That is, Frank Aceste states in his pro se response to appellees’ motion:

I relayed my concerns with respect to the final settlement agreement.

The agreement contained language prohibiting the use of Medicare which is

my only source of medical coverage. I told them I would be committing

fraud if I signed the statement as it was. There were also issues regarding

the potential need for a Medicare set aside, which also, were never

disclosed or discussed until this point. (Exhibit 3). After much back and

forth, the partner, requested my edits and finally agreed to present them

to Stryker. The partner relayed that Stryker agreed to the changes, but

when the final settlement agreement was sent, it did not reflect all the

changes. I was then told that Stryker did not agree to all the changes.

49. It is unclear why Frank Aceste argued that appellees “did not agree to all the changes”

because, from the record before the court, appellees accepted all of the proposed edits

that they received from plaintiffs’ counsel.11

{¶ 88} Regardless, it is abundantly clear from the record that the essential

elements of a settlement agreement existed—i.e., the parties had expressed their mutual

assent to settle the litigation for an agreed-upon sum of money—thereby forming a valid

settlement agreement. That is, the record demonstrates that, at the mediation session

before Judge Welch, the appellees made an offer to settle with all 22 claimants for a

global sum, which was to be allocated between those 22 claimants by special master

Judge McQuade. This offer was accepted by Frank Aceste, as communicated to

11 The majority maintains that appellees did not agree to all of Frank’s changes, and references a handwritten markup of the Confidential Settlement Agreement and Full Release that Frank sent to his attorneys on January 19, 2017. That communication, however, was not before the trial court when it decided the appellees’ motion and, therefore, that document should not be considered by this court. And, we do not know what attorney-client communications transpired between January 19, the date of that document, and January 27, when Zoll & Kranz emailed appellees with proposed edits on the written contract. Regardless, as the majority points out, the major edit that Frank proposed in that January 19 document—other than the deletion of the Medicare-related provisions—was an upward adjustment of his settlement allocation (by more than 75%) because, as he writes in the margin, “I have been told by a physician that device needs to be removed.” But, as I discuss further below, Frank had already agreed to accept his settlement allocation—which was an essential element of the parties’ agreement—and, as evidenced by the attorney-client communications that Frank did attach to his response to appellee’s motion, Zoll & Kranz had already properly advised him that “[w]e cannot change the allocation; that’s set now.”

50. appellees through his attorneys’ emails dated September 30, 2016, November 29, 2016,

and November 30, 2016, and as he confirmed in writing to his attorneys on November 2,

2016.

{¶ 89} Moreover, in my view, the back-and-forth communications between Frank

Aceste and Zoll & Kranz also confirm that Frank agreed to settle his claims for his

allocated share of settlement funds. That is, once the possibility of an MSA was brought

to light through the language of the proposed settlement agreement and release, Frank

Aceste wanted to undo the settlement because he feared that an MSA would eviscerate

his ultimate recovery of settlement proceeds. Indeed, Frank did not correct his attorney

when he stated “you had said ‘yes’ to the settlement when our estimated proceeds were

[x].” Instead, Frank responded by stating that “[t]he MSA, which was brought to light

with the final settlement docs, has raised some issues I had not thought of earlier.” The

settlement agreement is not any less enforceable just because Frank Aceste may have

believed, in hindsight, that he made a bad deal.

{¶ 90} In fact, Frank Aceste’s own representations to the trial court are perhaps the

strongest evidence of a binding contract. In his pro se response to appellees’ motion,

Frank did not dispute that he accepted the offer and did not dispute the existence of a

settlement agreement. Rather, he argued that “the settlement agreement should be

voided” and “relay[ed] the reasons [he] believe[d] the settlement should not be enforced.”

He claimed that he agreed to the settlement “under extreme pressure, while in a

depressive state, without my full and complete knowledge of both what I was agreeing to

51. and the ramifications of the agreement.” That is, he argued that the parties’ settlement

agreement should be voided because (1) he lacked capacity to contract, (2) he was under

undue influence from his attorneys to settle, and (3) his attorneys had advised him that he

could change his mind after reviewing the written settlement agreement.12 The trial court

properly rejected these arguments.

{¶ 91} First, the record is devoid of any evidence—let alone clear and convincing

evidence—that Frank Aceste lacked the capacity to contract. In re Estate of Flowers,

2017-Ohio-1310, 88 N.E.3d 539, ¶ 84 (6th Dist.) (lack of mental capacity must be

established by clear and convincing evidence). Although Frank claimed that he did not

understand that he was entering a binding contract, there is no evidence that any mental

illness affected his mind to such a degree that he was incapable of understanding that he

was entering a binding contract. Miller v. Miller, 9th Dist. Summit No. 21770, 2004-

Ohio-1989, ¶ 16 (a party lacks capacity to contract where his mind was so affected “as to

destroy [his] ability to understand the nature of the act in which he [wa]s engaged, its

scope and effect or its nature and consequences.”).

12 Frank also argued in his pro se response that his wife and co-plaintiff, Rhonda Aceste, “was never involved in any of the discussions nor agreed to any part of the settlement.” Rhonda, however, did not sign the pro se filing, and Frank could not make any arguments on Rhonda’s behalf because he is not a licensed attorney. Regardless, Rhonda’s claim is derivative of Frank’s claims and, accordingly, could not stand on its own after Frank settled his claims with appellees. Wagner v. Westfield Cos., 6th Dist. Fulton No. F-02- 013, 2002-Ohio-6367, ¶ 21 (if the main claim is dismissed, “the derivative claim fails as well.”) It is notable, however, that while Frank argued that Rhonda did not agree to the settlement, he never argued that he did not agree to the settlement.

52. {¶ 92} Second, regarding Frank’s claims of undue influence, “[t]o avoid

a contract on the basis of duress, a party must prove coercion by the other party to

the contract. It is not enough to show that one assented merely because of difficult

circumstances that are not the fault of the other party.” (Emphasis added.) Patton v.

Wood Cty Humane Soc., 157 Ohio App.3d 670, 2003-Ohio-5200, 798 N.E.3d 676, ¶ 27

(6th Dist.), quoting Blodgett v. Blodgett, 49 Ohio St.3d 243, 551 N.E.2d 1249 (1990),

syllabus. Frank did not allege any undue influence by appellees.

{¶ 93} Finally, Frank argued that his attorneys advised him that “[he] would still

have a right to decline the settlement once the full terms were disclosed.” That, however,

is not a valid basis to unravel an otherwise valid settlement agreement. “In spite of the

ignorance as to the language they speak and write, with resulting error and

misunderstanding, people must be held to the promises they make.” Kostelnik, 96 Ohio

St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, at ¶ 17. The majority maintains that “Frank’s

belief that he could still decline the settlement goes to whether there was a true meeting

of the minds.” To the contrary,

[i]f one person does not intend to be bound by an agreement he has

made, and the other person is not aware of that lack of intention, there is no

‘meeting of the minds’ as a layman might understand the phrase.

Nevertheless, unless there is a mutual mistake or some like occurrence, the

law is only interested in objective manifestations of intent. * * *

Expressions of assent are generally sufficient to show a meeting of the

53. minds. Thus, one person’s unexpressed reservation does not prevent there

being a meeting of the minds as that term is recognized in law.

Rudd v. Online Res., Inc., 2d Dist. Montgomery No. 17500, 1999 WL 397351, *5 (June

18, 1999), citing Nilavar v. Osborn, 127 Ohio App.3d 1, 711 N.E.2d 726 (2d Dist.1998).

Indeed, as this court has recognized, “a contracting party is bound by the apparent

intention he outwardly manifests to the other contracting party. To the extent that his

real, secret intention differs therefrom, it is entirely immaterial.” Bulger v. Bulkowski,

6th Dist. Sandusky No. S-83-3, 1983 WL 6799, *2 (May 20, 1983), quoting Perlmuter

Printing Co. 436 F.Supp. at 415. Here, because Frank’s outward manifestations are

sufficient to show a meeting of the minds, there is a binding agreement even though

Frank may have believed—for whatever reason—that he could change his mind later.

{¶ 94} Moreover, even if it is assumed—for purposes of argument only—that

Frank received poor advice or inadequate legal representation from his attorneys, “[a]

party cannot attempt to repudiate a settlement agreement by simply asserting a change of

heart or an assertion of poor legal advice.” Kerwin v. Kerwin, 6th Dist. Lucas No. L-04-

1002, 2004-Ohio-4676, ¶ 7. Indeed, much of Frank Aceste’s pro se response to

appellees’ motion is devoted to complaints about his attorneys. For example, he argues

the settlement agreement should be undone because “[n]o discovery was ever requested,”

“[c]ounsel did not research my case at all,” and because his attorneys failed to solicit “all

of [his] doctors * * * for information and records about my condition.” Any such issues

54. between Frank and his attorneys have no bearing on the enforceability of the parties’

settlement agreement.

{¶ 95} For all these reasons, I believe that the essential elements of a settlement

agreement exists between the parties.

2. The majority’s view of offer and acceptance is too narrow.

{¶ 96} The majority, however, finds that the evidence does not support the

existence of an offer and acceptance because (1) the original offer required all 22

claimants to accept and two claimants rejected the offer, which means that the Zoll &

Kranz email on September 30, 2016, was actually a counteroffer to settle with less than

all claimants, which rejected the initial offer, and (2) the December 5, 2016 email from

appellees’ counsel, attaching the initial draft of the Confidential Settlement Agreement

and Full Release, constituted yet another counteroffer that the appellants rejected. I

disagree.

{¶ 97} First, it is true that appellees’ initial settlement offer required all 22

claimants to accept, and the September 30, 2016 email from plaintiffs’ counsel stated that

20 claimants (including appellants) accepted the offer but two claimants had rejected.

The majority reasons that the September 30 email was actually a counteroffer that

“constituted a rejection of the original offer, and therefore appellants’ purported

acceptance of the original offer as evidenced by Frank’s November 2, 2016 signing of the

informed consent form was ineffective to create a binding settlement agreement.”

55. {¶ 98} But even if the September 30, 2016 email from plaintiffs’ counsel was a

counteroffer that rejected appellees’ original offer, it was necessarily a counteroffer from

the 20 claimants that wished to dismiss their claims for their allocated share of the

settlement funds—including Frank Aceste. And appellees accepted that counteroffer

from Frank, as demonstrated by their counsel’s December 5, 2016 email that forwarded a

draft agreement and release to memorialize the parties’ settlement. Kostelnik, 96 Ohio

St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, at ¶ 16 (a contract may be determined from the

“words, deeds, acts, and silence of the parties”). Indeed, as plaintiffs’ counsel confirmed

in an email to Frank’s sister on December 13, 2016, appellees “said they would go

forward with the 20 of 22”—i.e., they accepted Frank’s counteroffer.

{¶ 99} In my view, the majority errs by focusing on the date that Frank signed the

Informed Consent document as if that document is the only evidence that Frank accepted

appellees’ settlement offer—which, in turn, leads the majority to conclude that Frank’s

acceptance must have occurred on November 2, 2016, or not at all. While that document

is certainly the clearest indication of Frank’s acceptance—it states “I accept,” specifies

the amount of his settlement allocation, and includes his signature at the bottom—it is not

the only evidence that Frank agreed to accept his allocated share to dismiss his case.13 As

13 For these same reasons, appellants’ reliance upon an unexecuted “Revised” Informed Consent document, dated December 6, 2016, is misplaced. It is unclear when, or why, Zoll & Kranz sent that document to appellants for their signature, and that document was not before the trial court when it ruled on the motion to enforce settlement agreement. Regardless, as explained above, there is still a great deal of evidence in the record that

56. this court has recognized, such formal precision in terms of “I offer” and “I accept” is not

required when dealing with oral contracts because “seldom, if ever, does the evidence in

proof of an oral contract present its terms in the exact words of offer and acceptance

found in formal written contracts.” Advantage Renovations, 6th Dist. Erie No. E-11-040,

2012-Ohio-1866, at ¶ 18, quoting Rutledge, 81 Ohio App. at 86, 75 N.E.2d 608.

{¶ 100} Here, the September 30, 2016 email from plaintiffs’ counsel indicated that

20 claimants “have accepted the allocated offer,” but they were still waiting for signed

forms from a few of the claimants—which demonstrates that Frank Aceste had already

accepted the offer as of September 30, and then subsequently confirmed his acceptance

by signing the Informed Consent for his attorneys.14 Frank’s acceptance is further

confirmed through his back-and-forth discussions with his attorneys—which, in my view,

show that he did, in fact, accept the allocated offer but had a change of heart after

realizing that his case could require an MSA. Indeed, the Medicare-related provisions of

the written agreement were the only terms of the written settlement agreement that he

disputed in those privileged communications with his attorneys—further demonstrating

his prior acceptance of the essential elements of the contract. Finally—and most

crucially, in my opinion—Frank Aceste recognizes the existence of a settlement

demonstrates Frank’s acceptance of appellees’ offer to settle—including but not limited to Frank Aceste’s own statements to the trial court. 14 If the September 30 email is more properly viewed as a counteroffer, then Frank Aceste confirmed his counteroffer to settle for his allocated share when he signed the Informed Consent on November 2.

57. agreement, repeatedly, and in his own words, throughout his pro se response to appellees’

motion. The majority ignores those admissions, but in my view, those admissions

demonstrate that the essential elements of the settlement agreement were undisputed.

{¶ 101} I also disagree with the majority’s view that the December 5, 2016 email

from appellees’ counsel, attaching the initial draft of the Confidential Settlement

Agreement and Full Release, “constituted yet another counteroffer that the appellants

rejected.” To the contrary, “[t]he mere fact that parties who have reached a verbal

agreement have agreed to reduce their contract to writing does not prevent the agreement

from being a contract if the writing is not made.” Santomauro v. Sumss Prop. Mgmt.,

2019-Ohio-4335, 134 N.E.3d 1250, ¶ 37 (9th Dist.), quoting PNC Mtge. v. Guenther, 2d

Dist. Montgomery No. 25385, 2013-Ohio-3044, ¶ 15. “It is only where the parties intend

that there will be no contract until the agreement is fully reduced to writing and executed

that no settlement exists unless the final, written settlement agreement is signed by all of

the parties.” Id., quoting Rayco Mfg., Inc. v. Murphy, Rogers, Sloss & Gambel, 2019-

Ohio-3756, 142 N.E.3d 1267, ¶ 69 (8th Dist.), appeal allowed by, 157 Ohio St.3d 1535,

2020-Ohio-122, 137 N.E.3d 1207 (2020). Here, there is no evidence in the record to

suggest that the parties intended that there would be no contract until the anticipated

written document was formally executed. And, as discussed further below, the record

demonstrates that the parties agreed to all of the terms of that written contract other than

the Medicare-related provisions.

58. 3. The parties agreed to the terms of the Confidential Settlement Agreement and Full Release, minus the Medicare-related provisions.

{¶ 102} I disagree with the majority’s position that appellants “rejected” the

Confidential Settlement Agreement and Full Release. In my view, the back-and-forth

correspondence in the record—including the correspondence between Frank Aceste and

his attorneys at Zoll & Kranz, as well as the correspondence between Zoll & Kranz and

appellees—shows that the parties agreed upon all of the terms of the Confidential

Settlement Agreement and Full Release except the Medicare-related provisions.

{¶ 103} This case is similar to Apple v. Hyundai Motor America, 2d Dist.

Montgomery No. 23218, 2010-Ohio-949. In that case, the Apples sued Hyundai for

violations of the Ohio Lemon Law, R.C. 1345.72, after experiencing numerous problems

with their vehicle. The Apples orally agreed to settle their lawsuit in return for a

$7,021.19 payment from Hyundai. Counsel for Hyundai then sent counsel for the Apples

“a copy of a standard form of release that Hyundai has used when settling litigation.” Id.

at ¶ 3.

{¶ 104} Regarding the terms of parties’ agreement, the Apples took issue with

only two provisions—one that provided for non-disclosure, and one that provided for

indemnification of third-party claims. Id. at ¶ 4. Counsel for the Apples relayed these

concerns to Hyundai. Before Hyundai responded, the Apples had a change of heart and

decided they no longer wished to settle. Hyundai filed a motion to enforce settlement

agreement, seeking to enforce the written contract minus the two provisions to which the

59. Apples had objected. The trial court enforced the settlement, and that decision was

affirmed on appeal, wherein the appellate court stated:

Hyundai could not use the written settlement document to impose

additional duties on the Apples to which they had not agreed. However,

neither could the Apples repudiate their performance promised in the oral

agreement when Hyundai agreed to remove the offending two paragraphs

from the written settlement document, restoring the status quo ante. Absent

the two paragraphs to which the Apples did not agree, the oral settlement

agreement remains enforceable. Id. at ¶ 10.

{¶ 105} Similarly here, Frank never disputed any provision of the written contract

other than the Medicare-related provisions. Ultimately, appellees agreed to delete those

provisions, including the provision regarding an MSA. Like the agreement at issue in

Apple, the written settlement agreement remains enforceable—minus those Medicare-

related provisions. As the trial court properly concluded, Frank signaled his acceptance

of the remainder of the written provisions through his “words, deeds, acts, and silence.”

Kostelnik, 96 Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, at ¶ 15.

{¶ 106} The majority, however, wholly discards the trial court’s interpretation

because Zoll & Kranz stated that they “do not have client consent” when they proposed

edits to the settlement agreement that deleted the Medicare-related provisions but left the

rest of the agreement untouched. But despite counsel’s statements in those emails, there

is still sufficient evidence in the record to support the trial court’s conclusion that Zoll &

60. Kranz did act with Frank Aceste’s authority when it sent those edits. Most importantly,

Frank Aceste makes an express representation in his pro se response to appellees’ motion

that he relayed his “concerns” with the language in the written agreement—which was

limited to the Medicare provisions—to his attorneys, and “[a]fter much back and forth,

the partner, requested my edits and finally agreed to present them to Stryker.” Notably,

Frank made those representations after reading appellees’ motion—which attaches and

relies upon those edits that Zoll & Kranz actually presented to Stryker—and Frank did

not claim that his attorneys lacked the authority to present those edits to Stryker on his

behalf.

{¶ 107} Moreover, this statement is largely consistent with the back-and-forth

attorney-client communications that Frank attached to his pro se filing. Although Frank

did not attach any attorney-client communications after January 12, 2017—when he told

his attorneys that the “settlement is unacceptable”—the record contains sufficient

evidence that subsequent attorney-client communications occurred (although not

submitted for review) and likely culminated in the Zoll & Kranz opinion letter regarding

an MSA and corresponding revisions to the settlement agreement that deleted the

Medicare provisions. Again, Frank’s own words are the strongest evidence of this.

{¶ 108} It is true that the trial court should have held a hearing on the appellees’

motion. Not only was a hearing required under Rulli v. Fan Co., 79 Ohio St.3d 374, 683

N.E.2d 337 (1997), a hearing would have placed the trial court in a much better position

to make the required credibility determinations regarding what Frank authorized (or

61. didn’t authorize) Zoll & Kranz to do on his behalf. Unfortunately, neither appellants nor

appellees requested a hearing, and appellants did not raise the trial court’s failure to hold

a hearing as an assignment of error on appeal. In these situations, appellate courts review

the evidentiary record that was before the trial court when it ruled on the motion to

enforce settlement agreement. See, e.g., Turoczy Bonding Co. v. Mitchell, 2018-Ohio-

3173, 118 N.E.3d 439 (8th Dist.) (where there was no hearing and no assignment of error

relating to the lack of a hearing, the appellate court reviewed the record before the trial

court—consisting of various correspondence between the parties—to determine whether

the trial court erred by granting motion to enforce settlement); Cugini & Capoccia

Builders, Inc. v. Tolani, 5th Dist. Delaware No. 15 CAE 10 0086, 2016-Ohio-418 (same).

{¶ 109} In this case, although no hearing was held, the record nonetheless contains

express representations from Frank Aceste to the trial court—in which he expressly

recognizes the existence of a settlement agreement, and states that his attorney presented

“his edits” on the written document to appellees. In my view, although there are some

inconsistencies in the evidence before the trial court (which should have been addressed

at a hearing), Frank’s own admissions to the trial court are more than sufficient to support

the trial court’s conclusion that counsel’s actions were done with Frank Aceste’s consent

and, consequently, there is a binding settlement agreement between the parties. Indeed,

all of Frank’s objective and outward manifestations of assent—i.e., his words, acts,

deeds, and silence (as I discuss at length above)—demonstrate that the parties had

reached a settlement agreement, which Frank wished to “void” because he wanted more

62. money given the possibility of an MSA. In other words, this is nothing more than a case

of “buyer’s remorse.” Because the record before the trial court firmly demonstrates the

existence of a binding settlement agreement, I would affirm the trial court’s enforcement

of that agreement.

4. The May 16, 2018 order is ambiguous and cannot be enforced in contempt.

{¶ 110} Although the trial court enforced the parties’ settlement agreement on

August 21, 2017, its order did not include a statement of relief or dismiss the appellants’

claims. For those reasons, this court dismissed the appellants’ initial appeal on December

6, 2017, so that the trial court could add a statement of relief that “set forth the parties’

rights and obligations under the agreement” and dismiss the appellants’ claims with

prejudice.

{¶ 111} The trial court, however, did not do that. Instead, on May 16, 2018, the

trial court amended its August 21, 2017 order by adding a statement of relief that ordered

the parties to execute the “Confidential Settlement Agreement and Full Release and Joint

Dismissal,” to undertake their respective obligations in that document, and provide the

court with a stipulated dismissal with prejudice by June 1, 2018. The order did not

clearly and unambiguously state which version of the settlement agreement should be

executed.

{¶ 112} The appellants then filed a second appeal, which we dismissed on July 19,

2018, for lack of a final, appealable order. Thereafter, on November 8, 2018, the trial

63. court ordered the parties to “execute the Confidential Settlement Agreement and Full

Release and Joint Dismissal” within 21 days.

{¶ 113} The appellants filed a third appeal instead. The third appeal was

dismissed on December 20, 2018, for lack of a final, appealable order.

{¶ 114} Thereafter, on January 4, 2019, the trial court ordered the parties to

execute the Confidential Settlement Agreement and Full Release and Joint Dismissal

within ten days. When appellants did not sign, the trial court issued an order on May 1,

2019, stating “this is Plaintiffs [sic] final advisement: If they do not execute the

settlement agreement with Defendants within twenty days of the filing of this judgment

entry with the clerk of courts, the Court will dismiss this case upon a proper motion by

Defendants.” The appellants did not sign, appellees filed a motion to dismiss, and the

trial court dismissed appellants’ claims, with prejudice, on July 25, 2019.

{¶ 115} In my view, this chain of events is problematic for several reasons. First

and foremost, as appellants argue in their eleventh assignment of error, the May 16, 2018

order—which amended the August 21, 2017 order that enforced the parties’ settlement

agreement—is ambiguous because the statement of relief does not specify which version

of the Confidential Settlement Agreement and Full Release and Joint Dismissal must be

signed. “[A] court order cannot be enforced in contempt unless the order was ‘clear and

definite, unambiguous, and not subject to dual interpretations.’” City of Toledo v. State,

154 Ohio St.3d 41, 2018-Ohio-2358, 110 N.E.3d 1257, ¶ 23. Because the trial court’s

order was ambiguous, it could not be enforced in contempt.

64. {¶ 116} Moreover, even if the trial court had specified which version of the

Confidential Settlement Agreement and Full Release and Joint Dismissal must be signed,

I would still have serious concerns regarding an order that merely compels the parties to

sign the settlement agreement. In that situation, a party that disputes the existence or

terms of the settlement agreement is forced to either (1) obey the order by signing the

settlement agreement, thereby waiving its right to appeal the existence or terms of that

agreement, or (2) disobey the order, thereby suffering the imposition of sanctions (here,

dismissal with prejudice) or an order of contempt.

{¶ 117} In my view, trial courts should enforce settlement agreements by entering

judgment that incorporates the terms of the settlement agreement. Not only does such an

order preserve the parties’ appellate rights, it also avoids any guesswork on appeal

regarding what, exactly, the trial court found the parties had agreed upon. See Spercel v.

Sterling Indus., Inc., 31 Ohio St.2d 36, 39, 285 N.E.2d 324 (1972), quoting Herndon v.

Herndon, 183 S.E.2d 386, 388 (Ga.1971) (when enforcing a settlement agreement

between the parties, “it is the duty of the court to make the agreement the judgment of the

court and thereby terminate the litigation.”).

{¶ 118} For example, in Campbell v. Buzzelli, 9th Dist. Medina No. 07CA0048-

M, 2008-Ohio-425, years after the parties’ divorce, Buzzelli filed a motion to modify

parental rights and responsibilities, child support, and tax exemptions. The parties settled

their dispute at a hearing before the court, and agreed to draft an entry representing the

parties’ agreement. When Campbell refused to sign the entry, Buzzelli filed a motion to

65. enforce settlement agreement. The trial court ordered the parties to submit an agreed

entry by January 19, 2017, or all pending motions would be dismissed. The parties never

filed an agreed entry, and the trial court dismissed all pending motions, including the

motion to enforce settlement agreement.

{¶ 119} The appellate court found this was error. It concluded that the trial court

should have incorporated the parties’ settlement agreement into a judgment of the court.

The court stated “[w]hile we understand the trial court’s frustration with the parties’

inability to file an agreed upon entry, such inaction by the parties does not grant the trial

court authority to ignore their settlement agreement.” Id. at ¶ 11.

{¶ 120} Similarly here, I certainly understand the trial court’s frustration with

appellants. By all accounts, the trial court was very accommodating and bent over

backwards to give appellants enough time and leeway to resolve this dispute themselves.

But in doing so, the trial court never issued a final, appealable order that actually

enforced the parties’ settlement agreement and preserved the rights and obligations of

both parties under that agreement.

{¶ 121} For all of these reasons, I respectfully dissent. I would affirm the trial

court’s August 21, 2017 order to the extent that it concluded that the parties have a

binding settlement agreement. I would, however, find appellants’ eleventh assignment of

error well taken, and reverse and remand this matter to the trial court to issue a final

judgment pursuant to the parties’ settlement agreement that includes dismissal with

66. This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

67.