[Cite as Foor v. Columbus Real Estate Pros.com, 2013-Ohio-2848.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
CHRISTINE L. FOOR : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff - Appellant/Cross-Appellee : Hon. Sheila G. Farmer, J. : Hon. Craig R. Baldwin, J. : -vs- : : COLUMBUS REAL ESTATE PROS. COM, ET AL. : : Case No. 12 CAE 08 0063 : : Defendant - Appellees/Cross-Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 11 CV H 04 0448
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: June 25, 2013
APPEARANCES:
For Plaintiff-Appellant/ Cross-Appellee For Defendants-Appellees/Cross- Appellants
KEVIN O'BRIEN CHRISTOPHER L. TROLINGER JONATHAN LAYMAN Farlow and Associates, LLC. Kevin O'Brien and Associates Co., L.P.A 270 Bradenton Ave, Suite 100 995 South High Street Dublin, OH 43017 Columbus, OH 43206 Delaware County, Case No. 12 CAE 08 00063 2
Baldwin, J.
{¶1} Appellant Christine L. Foor appeals a judgment of the Delaware County
Common Pleas Court enforcing a settlement agreement and dismissing her complaint
against appellees Columbus Real Estate Pros.com, Gregory R. Babbitt and Your Estate
Pros LLC. Appellees have filed a cross-appeal assigning error to the judgment of the
court granting appellant partial summary judgment on their counterclaims.
STATEMENT OF FACTS AND CASE
{¶2} On April 8, 2011, appellant filed a complaint against appellees for failing to
properly manage a parcel of rental property owned by appellant. The complaint
contained ten causes of action, including negligent infliction of emotional distress, fraud,
breach of contract and multiple violations of consumer statutes. Appellees filed a
counterclaim for breach of contract, indemnification and payment of attorney fees.
{¶3} Both sides filed motions for summary judgment on the counterclaims for
indemnification and failure to purchase insurance on the property. The trial court denied
appellees’ motion for summary judgment and partially granted appellant’s motion for
summary judgment.
{¶4} On October 24, 2011, counsel for appellant sent a letter to counsel for
appellees offering to settle the case for $15,000.00. Counsel for appellees responded
by email on November 4, 2011, that appellees would settle the case in exchange for
appellant paying all of their attorney fees plus costs.
{¶5} Counsel for appellant emailed appellees’ attorney on November 8, 2011,
stating that he may have authority to settle the case. During a telephone conversation Delaware County, Case No. 12 CAE 08 00063 3
the next day, counsel agreed that the parties would mutually “walk away.” Counsel for
appellees was to draft a written settlement agreement.
{¶6} On November 14, 2011, appellant filed a complaint against appellees with
the Department of Commerce. At this time, counsel for appellees discovered that he
had not sent his draft of the settlement agreement to appellant’s attorney. Counsel for
appellees sent appellant a draft of the agreement on December 2, 2011.
{¶7} Appellees filed a motion to enforce the settlement agreement on February
23, 2012. The court held an evidentiary hearing on July 13, 2012. At the hearing,
counsel for appellees testified that he believed there were no further details to work out
in the settlement agreement and the parties would walk away with no further judicial or
administrative proceedings being filed. Appellant testified that she understood the
settlement to be “possible” and that it would not be final until it was in writing and she
had an opportunity to review the language. She also testified that she did not
understand the settlement included any possible administrative proceedings, and
believed the settlement only covered the case in Delaware County. Counsel for
appellant testified that the settlement was for the parties to “walk away,” and there were
no discussions about mutual releases or about appellant not proceeding with an
administrative complaint.
{¶8} The trial court found appellant’s testimony was not credible and granted
the motion to enforce the settlement agreement. The court dismissed both the
complaint and the counterclaims based on the settlement agreement.
{¶9} Appellant assigns nine errors: Delaware County, Case No. 12 CAE 08 00063 4
{¶10} “I. THE COURT ERRED AS A MATTER OF LAW IN CONSIDERING
CONFIDENTIAL COMMUNICATIONS FROM A PRIVILEGED MEDIATION PROCESS
WHEN MAKING A RULING, AS NO EXCEPTIONS TO THE PRIVILEGE APPLY.
{¶11} “II. THE COURT ERRED AS A MATTER OF LAW IN DENYING
PLAINTIFF-APPELLANT’S MOTION TO STRIKE AS THE RECORD CONTAINED
TESTIMONY AND REFERENCES TO PRIVILEGED MEDIATION
COMMUNICATIONS.
{¶12} “III. THE COURT ERRED IN FINDING THAT NO VAGUENESS OR
UNCERTAINTY EXISTED IN THE TERMS OF THE ‘WALK AWAY’ AGREEEMENT
MADE BETWEEN PARTIES’ COUNSEL.
{¶13} “IV. THE COURT ERRED IN FINDING THAT NO WRITING WAS
NECESSARY TO FINALIZE THE NEGOTIATIONS BETWEEN THE PARTIES AND
THAT AN ENFORCEABLE AGREEMENT EXISTED.
{¶14} “V. THE COURT ERRED AS A MATTER OF LAW AND FACT IN
ENFORCING SETTLEMENT AS CLIENT REVIEW OF A FORMALIZED WRITTEN
DOCUMENT WAS NECESSARY BEFORE ANY SETTLEMENT AGREEMENT
WOULD BE FINAL.
{¶15} “VI. THE COURT ERRED AS A MATTER OF LAW AND FACT IN
CLASSIFYING PLAINTIFF-APPELLANT’S ADMINISTRATIVE COMPLAINT AS AN
‘ADMINISTRATIVE CLAIM.’
{¶16} “VII. THE COURT ERRED AS A MATTER OF LAW AND FACT IN
DETERMINING THE CREDIBILITY OF PLAINTIFF-APPELLANT’S TESTIMONY Delaware County, Case No. 12 CAE 08 00063 5
THROUGH OVER-THE-PHONE COMMUNICATIONS AND CONFIDENTIAL
MEDIATION COMMUNICATIONS.
{¶17} “VIII. THE COURT ERRED AS A MATTER OF LAW IN FAILING TO
GRANT PLAINTIFF-APPELLANT’S MOTION FOR PROTECTIVE ORDER, QUASH
AND EXCLUDE DOCUMENTS, AS THE MOTION WAS UNOPPOSED AND
SUPPORTED BY SUFFICIENT SPECIFICITY AND RELEVANT CASE LAW.
{¶18} “IX. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING
THE DRAFTED AGREEMENT EX. 1 ENCOMPASSED THE TOTALITY OF THE
PARTIES’ AGREEMENT.”
{¶19} Appellees assign three errors on cross-appeal.
{¶20} “I. THE COURT ERRED AS A MATTER OF LAW IN FINDING THAT
THE CONTRACT DID NOT REQUIRE PLAINTIFF TO INDEMNIFY DEFENDANTS.
{¶21} “II. THE COURT ERRED AS A MATTER OF LAW IN FINDING THAT
PLAINTIFF HAD NOT BREACHED THE INSURANCE PROVISION OF THE
CONTRACT.
{¶22} “III. THE COURT ERRED IN NOT ENJOINING THE ADMINISTRATIVE
ACTION FILED WITH THE DEPARTMENT OF COMMERCE DIVISION OF REAL
ESTATE.”
III., IV., V.
{¶23} We address appellant’s third, fourth, and fifth assignments of error
together, as appellant does in her brief. Further, we address these assignments of error
first as they are dispositive of the appeal. Delaware County, Case No. 12 CAE 08 00063 6
{¶24} Settlement agreements are considered contracts and, therefore, their
interpretation is governed by the law of contracts. State v. Butts, 112 Ohio App.3d 683,
686, 679 N.E.2d 1170 (1996). The burden of establishing the existence and terms of a
settlement agreement rests on the party asserting its existence. Nilavar v. Osborn, 127
Ohio App.3d 1, 11, 711 N.E.2d 726 (1998). In addition to consideration, enforceable
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[Cite as Foor v. Columbus Real Estate Pros.com, 2013-Ohio-2848.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
CHRISTINE L. FOOR : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff - Appellant/Cross-Appellee : Hon. Sheila G. Farmer, J. : Hon. Craig R. Baldwin, J. : -vs- : : COLUMBUS REAL ESTATE PROS. COM, ET AL. : : Case No. 12 CAE 08 0063 : : Defendant - Appellees/Cross-Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 11 CV H 04 0448
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: June 25, 2013
APPEARANCES:
For Plaintiff-Appellant/ Cross-Appellee For Defendants-Appellees/Cross- Appellants
KEVIN O'BRIEN CHRISTOPHER L. TROLINGER JONATHAN LAYMAN Farlow and Associates, LLC. Kevin O'Brien and Associates Co., L.P.A 270 Bradenton Ave, Suite 100 995 South High Street Dublin, OH 43017 Columbus, OH 43206 Delaware County, Case No. 12 CAE 08 00063 2
Baldwin, J.
{¶1} Appellant Christine L. Foor appeals a judgment of the Delaware County
Common Pleas Court enforcing a settlement agreement and dismissing her complaint
against appellees Columbus Real Estate Pros.com, Gregory R. Babbitt and Your Estate
Pros LLC. Appellees have filed a cross-appeal assigning error to the judgment of the
court granting appellant partial summary judgment on their counterclaims.
STATEMENT OF FACTS AND CASE
{¶2} On April 8, 2011, appellant filed a complaint against appellees for failing to
properly manage a parcel of rental property owned by appellant. The complaint
contained ten causes of action, including negligent infliction of emotional distress, fraud,
breach of contract and multiple violations of consumer statutes. Appellees filed a
counterclaim for breach of contract, indemnification and payment of attorney fees.
{¶3} Both sides filed motions for summary judgment on the counterclaims for
indemnification and failure to purchase insurance on the property. The trial court denied
appellees’ motion for summary judgment and partially granted appellant’s motion for
summary judgment.
{¶4} On October 24, 2011, counsel for appellant sent a letter to counsel for
appellees offering to settle the case for $15,000.00. Counsel for appellees responded
by email on November 4, 2011, that appellees would settle the case in exchange for
appellant paying all of their attorney fees plus costs.
{¶5} Counsel for appellant emailed appellees’ attorney on November 8, 2011,
stating that he may have authority to settle the case. During a telephone conversation Delaware County, Case No. 12 CAE 08 00063 3
the next day, counsel agreed that the parties would mutually “walk away.” Counsel for
appellees was to draft a written settlement agreement.
{¶6} On November 14, 2011, appellant filed a complaint against appellees with
the Department of Commerce. At this time, counsel for appellees discovered that he
had not sent his draft of the settlement agreement to appellant’s attorney. Counsel for
appellees sent appellant a draft of the agreement on December 2, 2011.
{¶7} Appellees filed a motion to enforce the settlement agreement on February
23, 2012. The court held an evidentiary hearing on July 13, 2012. At the hearing,
counsel for appellees testified that he believed there were no further details to work out
in the settlement agreement and the parties would walk away with no further judicial or
administrative proceedings being filed. Appellant testified that she understood the
settlement to be “possible” and that it would not be final until it was in writing and she
had an opportunity to review the language. She also testified that she did not
understand the settlement included any possible administrative proceedings, and
believed the settlement only covered the case in Delaware County. Counsel for
appellant testified that the settlement was for the parties to “walk away,” and there were
no discussions about mutual releases or about appellant not proceeding with an
administrative complaint.
{¶8} The trial court found appellant’s testimony was not credible and granted
the motion to enforce the settlement agreement. The court dismissed both the
complaint and the counterclaims based on the settlement agreement.
{¶9} Appellant assigns nine errors: Delaware County, Case No. 12 CAE 08 00063 4
{¶10} “I. THE COURT ERRED AS A MATTER OF LAW IN CONSIDERING
CONFIDENTIAL COMMUNICATIONS FROM A PRIVILEGED MEDIATION PROCESS
WHEN MAKING A RULING, AS NO EXCEPTIONS TO THE PRIVILEGE APPLY.
{¶11} “II. THE COURT ERRED AS A MATTER OF LAW IN DENYING
PLAINTIFF-APPELLANT’S MOTION TO STRIKE AS THE RECORD CONTAINED
TESTIMONY AND REFERENCES TO PRIVILEGED MEDIATION
COMMUNICATIONS.
{¶12} “III. THE COURT ERRED IN FINDING THAT NO VAGUENESS OR
UNCERTAINTY EXISTED IN THE TERMS OF THE ‘WALK AWAY’ AGREEEMENT
MADE BETWEEN PARTIES’ COUNSEL.
{¶13} “IV. THE COURT ERRED IN FINDING THAT NO WRITING WAS
NECESSARY TO FINALIZE THE NEGOTIATIONS BETWEEN THE PARTIES AND
THAT AN ENFORCEABLE AGREEMENT EXISTED.
{¶14} “V. THE COURT ERRED AS A MATTER OF LAW AND FACT IN
ENFORCING SETTLEMENT AS CLIENT REVIEW OF A FORMALIZED WRITTEN
DOCUMENT WAS NECESSARY BEFORE ANY SETTLEMENT AGREEMENT
WOULD BE FINAL.
{¶15} “VI. THE COURT ERRED AS A MATTER OF LAW AND FACT IN
CLASSIFYING PLAINTIFF-APPELLANT’S ADMINISTRATIVE COMPLAINT AS AN
‘ADMINISTRATIVE CLAIM.’
{¶16} “VII. THE COURT ERRED AS A MATTER OF LAW AND FACT IN
DETERMINING THE CREDIBILITY OF PLAINTIFF-APPELLANT’S TESTIMONY Delaware County, Case No. 12 CAE 08 00063 5
THROUGH OVER-THE-PHONE COMMUNICATIONS AND CONFIDENTIAL
MEDIATION COMMUNICATIONS.
{¶17} “VIII. THE COURT ERRED AS A MATTER OF LAW IN FAILING TO
GRANT PLAINTIFF-APPELLANT’S MOTION FOR PROTECTIVE ORDER, QUASH
AND EXCLUDE DOCUMENTS, AS THE MOTION WAS UNOPPOSED AND
SUPPORTED BY SUFFICIENT SPECIFICITY AND RELEVANT CASE LAW.
{¶18} “IX. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING
THE DRAFTED AGREEMENT EX. 1 ENCOMPASSED THE TOTALITY OF THE
PARTIES’ AGREEMENT.”
{¶19} Appellees assign three errors on cross-appeal.
{¶20} “I. THE COURT ERRED AS A MATTER OF LAW IN FINDING THAT
THE CONTRACT DID NOT REQUIRE PLAINTIFF TO INDEMNIFY DEFENDANTS.
{¶21} “II. THE COURT ERRED AS A MATTER OF LAW IN FINDING THAT
PLAINTIFF HAD NOT BREACHED THE INSURANCE PROVISION OF THE
CONTRACT.
{¶22} “III. THE COURT ERRED IN NOT ENJOINING THE ADMINISTRATIVE
ACTION FILED WITH THE DEPARTMENT OF COMMERCE DIVISION OF REAL
ESTATE.”
III., IV., V.
{¶23} We address appellant’s third, fourth, and fifth assignments of error
together, as appellant does in her brief. Further, we address these assignments of error
first as they are dispositive of the appeal. Delaware County, Case No. 12 CAE 08 00063 6
{¶24} Settlement agreements are considered contracts and, therefore, their
interpretation is governed by the law of contracts. State v. Butts, 112 Ohio App.3d 683,
686, 679 N.E.2d 1170 (1996). The burden of establishing the existence and terms of a
settlement agreement rests on the party asserting its existence. Nilavar v. Osborn, 127
Ohio App.3d 1, 11, 711 N.E.2d 726 (1998). In addition to consideration, enforceable
contracts also require certainty and clarity, as well as a meeting of the minds. Rulli v.
Fan Co., 79 Ohio St.3d 374, 376, 683 N.E.2d 337 (1997). A “meeting of the minds”
occurs when there is an offer and an acceptance of the offer. Noroski v. Fallet, 2 Ohio
St.3d 77, 79, 442 N.E.2d 1302 (1982). Generally, conduct sufficient to show agreement,
including performance, constitutes acceptance of an offer. Nagle Heating & Air
Conditioning Co. v. Heskett , 66 Ohio App.3d 547, 550, 585 N.E.2d 866 (1990).
{¶25} Further, when the alleged settlement agreement is verbal and not written,
the existence and the terms of such agreement must be established by clear and
convincing evidence. Pawlowski v. Pawlowski , 83 Ohio App.3d 794, 799, 615 N.E.2d
1071 (1992). In determining whether an oral agreement has been established, the trial
court may consider the words, deeds, acts, and silence of the parties. Kostelnik v.
Helper, 96 Ohio St.3d 1, 3, 770 N.E.2d 58 (2002). Vagueness, indefiniteness or
uncertainty as to any essential term of an agreement prevents the creation of an
enforceable contract. Rulli at 376, 683 N.E.2d 337. However, if the parties proceed to
act as if the contract was in effect, the contract is enforceable. Nagle at 550, 585 N.E.2d
866.
{¶26} In the instant case, we find that the court erred in finding the existence of a
completed settlement agreement was proven by clear and convincing evidence. The Delaware County, Case No. 12 CAE 08 00063 7
fact that counsel for appellees was to prepare a draft of the agreement demonstrates
that the parties intended to enter into a written agreement, and that the oral agreement
was not necessarily the final agreement of the parties. Neither party made any attempt
to dismiss their claims after the alleged settlement agreement was reached on
November 9, 2011. Further, from the testimony presented at the hearing, the parties
did not have a mutual understanding as to what the terms “walk away” meant in the
context of the instant case, with appellees believing appellant would not pursue an
administrative action and appellant and her attorney believing the settlement applied
solely to the Delaware County case. The written draft of an agreement which the trial
court enforced is not signed by any of the parties or counsel, including the attorney who
drafed the agreement, indicating that this was not necessarily the final agreement of the
parties. The trial court erred in enforcing this draft of a settlement agreement.
{¶27} The third, fourth and fifth assignments of error are sustained.
{¶28} Appellant’s first, second, sixth, seventh, eighth, and ninth assignments of
error are rendered moot by our disposition of assignments of error three, four and five.
{¶29} We next turn to the assignments of error on cross-appeal.
I., II.
{¶30} Appellees’ first two assignments allege error in the court granting
summary judgment to appellant on the first two counts of the counterclaim.
{¶31} The trial court’s summary judgment did not dismiss these two counts of
the counterclaim and the judgment is clearly an interlocutory order. The court did not
dismiss the counterclaim pursuant to summary judgment, but rather dismissed the
counterclaim pursuant to enforcement of the settlement agreement. Because we have Delaware County, Case No. 12 CAE 08 00063 8
reversed the trial court’s judgment dismissing the case pursuant to enforcement of the
settlement agreement, the complaint and counterclaim are reinstated and the summary
judgment entry is an interlocutory order, not a final judgment over which we have
jurisdiction. Pursuant to Civ. R. 54(B), this order is subject to revision by the trial court
at any time prior to entry of final judgment in the case. Accordingly, appellant’s first two
assignments of error are premature and are overruled.
III.
{¶32} Appellees argue that the court erred in not enjoining the administrative
action filed by appellant with the Department of Commerce. This argument is based on
the settlement agreement, which we have found the court erred in enforcing. The
assignment of error is therefore moot. Delaware County, Case No. 12 CAE 08 00063 9
{¶33} The judgment of the Delaware County Common Pleas Court enforcing a
settlement agreement between the parties is reversed. The complaint and counterclaim
are reinstated, and this cause is remanded to that court for further proceedings. Costs
assessed to appellees.
By: Baldwin, J.
Gwin, P. J. and
Farmer, J. concur.
HON. CRAIG R. BALDWIN
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER
CRB/rad [Cite as Foor v. Columbus Real Estate Pros.com, 2013-Ohio-2848.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CHRISTINE L. FOOR : : Plaintiff -Appellant /Cross-Appellee : : -vs- : JUDGMENT ENTRY : COLUMBUS REAL ESTATE PROS. COM, ET AL. : : Defendants - Appellees/ Cross-Appellants : CASE NO. 12 CAE 08 0063
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Delaware County, Ohio is reversed. The
complaint and counterclaim are reinstated, and this cause is remanded to that court for
further proceedings. Costs assessed to appellees.