Griffith v. Chelsea Condominimum

2026 Ohio 928

• Court: Ohio Court of Appeals
• Decided: March 19, 2026
• Docket: 115032
• Status: Published

Opinion

[Cite as Griffith v. Chelsea Condominimum, 2026-Ohio-928.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

CHARLES GRIFFITH, ET AL., :

Plaintiffs-Appellants, : No. 115032 v. :

THE CHELSEA CONDOMINIUM ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED RELEASED AND JOURNALIZED: March 19, 2026

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-856562

Appearances:

Kehoe and Associates, LLC, Robert D. Kehoe, and Kevin P. Shannon, for appellants.

Collins, Roche, Utley & Garner, LLC, Kurt Anderson, and Megan D. Stricker, for appellee.

EMANUELLA D. GROVES, P.J.:

Plaintiffs-appellants Charles Griffith and John Griffith as powers of

attorney for Robert Griffith, Amelia Joynes, Charles Niles, Sheila Niles, Mindy Silverstein nee Spero, William Steinbrink, Anne Tavill, and The Ruska Wasserstein

Trust (collectively, the “Owners”) appeal the decision granting defendant-appellee

the Chelsea Condominium Association’s (the “Association”) motion to enforce

settlement agreement and imposition of attorney’s fees.1 For the reasons that follow,

we affirm the decision in part, reverse in part, and remand for further proceedings

consistent with this opinion.

Factual and Procedural History

In December 2015, the Owners filed a verified class action and

derivative complaint against the Association, the Chelsea Condominium’s Board

(the “Board”), TransCon Builders, Inc. (“TransCon”), Owner’s Management

Company (“OM”), Peter Rzepka (“Peter”), and Fred Rzepka (“Fred”) (collectively,

the “Defendants”). The Owners, a group of current and former owners of units in

the Association, requested, as a class, declaratory judgment regarding the makeup

of the Board, and the Owners also raised claims for breach of fiduciary duty, breach

of contract, and negligence. The trial court ultimately denied the Owners’ request

for class certification. In addition, the Owners asserted derivative claims on behalf

of the Association against TransCon for negligent construction and against OM for

gross negligence and breach of contract.

During the course of litigation, Nationwide Mutual Insurance

Company, Nationwide Mutual Fire Insurance Company, and Nationwide Property

1One of the original plaintiffs, Dr. Anthony Tavill, passed away during the pendency of the litigation. & Casualty Insurance Company (collectively, “Nationwide”) moved to intervene in

the litigation for the purposes of filing a declaratory judgment action to determine

whether they had a duty to insure the Association, the Board, Transcon, OM, Peter,

and Fred. The trial court granted the motion.

The parties vigorously litigated the case and resolved the dispute

under two settlement agreements. The first agreement, the Confidential Mutual

Release and Settlement Agreement (the “CMRSA”), addressed the claims between

the Owners, Nationwide, and the Defendants. The CMRSA was not entered into the

record. The second agreement, the derivative settlement agreement (the “DSA”),

resolved the Owners’ derivative claims on behalf of the Association.

In September 2020, the Owners filed a joint motion to approve the

DSA. The DSA amended the original complaint and added Peter and Fred as

derivative defendants along with TransCon and OM (collectively, the “Derivative

Defendants”). The DSA required a $300,000 payment from the Derivative

Defendants to the Association to resolve all derivative claims. A complete copy of

the DSA was attached to the motion.

In November 2020, the court approved the DSA. In its order, the trial

court retained jurisdiction over the implementation, administration, and

enforcement of the DSA. The trial court then dismissed the derivative claims, with

prejudice, noting that “[t]he Derivative Claims are dismissed as against all

[Derivative Defendants] on the merits and with prejudice, with no fees or costs assessed against any party except as expressly provided in the [DSA] and this

Judgment.”

In December 2021, the trial court filed a journal entry dismissing the

remainder of the case with prejudice based on the parties’ representation that all

claims, counterclaims, crossclaims, and intervening claims were settled. The trial

court did not retain jurisdiction over the CMRSA.

In February 2021, the Association filed a motion to enforce the DSA

and a motion to show cause. The Association alleged that the Owners violated the

terms of the DSA when they only distributed a partial payment of $290,144.66 and

the Owners’ attorneys retained $9,855.34 for various expenses. The Association

further alleged that the Owners’ attorney initially sent the partial payment with an

explanation that certain funds had been withheld to cover expenses. The letter also

noted that if the Association accepted the check, they agreed that the Owners’

attorneys properly withheld the funds. The Association returned the check and filed

the motion to enforce the DSA. The Association also requested that the trial court

order the payment of attorney’s fees, interest, and sanctions.

The Owners filed a motion for leave to file a reply brief in opposition

under seal and include the CMRSA. The Owners argued that it would be necessary

to disclose information from the CMRSA, which included a confidentiality clause.

Nationwide and the Association both filed briefs in opposition to the Owners’

motion to file under seal. After additional briefing, the trial court denied the

Owners’ motion. While the trial court ruled that the CMRSA could not be filed under seal, it authorized the parties to stipulate to the disclosure of any provisions relevant

to the Association’s motion to enforce the DSA. In the interim and at the suggestion

of the court, the Owners distributed the undisputed settlement funds to the

Association.

The Owners appealed the decision denying their request to submit

their brief under seal. The trial court stayed the case pending appeal. The appeal

was dismissed for lack of a final appealable order. Griffith v. Chelsea Condominium,

No. 108988 (8th Dist. Oct. 23, 2019). The Owners appealed that dismissal to the

Ohio Supreme Court, which declined jurisdiction. 02/18/2020 Case

Announcements, 2020-Ohio-518, Griffith v. Chelsea Condominium, No. 2019-1693

(appeals not accepted for review). The trial court reactivated the case in September

2022.

The Owners subsequently filed a brief in opposition to the

Association’s motion to enforce the DSA. They also filed a cross-motion to enforce

the DSA, arguing that most of the Association’s arguments were moot because the

Owners had distributed the undisputed portion of the settlement fund to the

Association. The Owners asserted that the Association received a substantial benefit

from the derivative claims litigation and should bear some of the costs. The Owners

noted that “(1) the retention agreement between counsel and [Owners], made on

behalf of the Association, requires payment of expenses, (2) industry practice and

the Rules of Professional Conduct require the clients to pay expenses of litigation

and (3) it would be inequitable for the Association to take the benefit of the settlement fund without paying the burden of litigation expenses.” The Owners did

not raise claims from the CMRSA because the parties were unable to agree to any

stipulations.

In January 2023, the trial court scheduled a hearing on the

Association’s motion to enforce the DSA and the responsive briefs. After listening

to the arguments of counsel, the trial court took the issue under advisement. The

Owners asked to proffer exhibits, which the trial court allowed.

The trial court issued a judgment entry (the “May 2, 2023 order”)

finding that the DSA unambiguously promised and entitled the Association to the

full $300,000 payment. The court further found that the Owners’ attorney never

raised a claim for litigation expenses at the time of the DSA and court order and,

therefore, any such claims were waived. The trial court ordered the Owners’

attorney to deliver the remaining balance of the settlement fund to the Association.

The trial court did not address the Association’s request for attorney’s fees, interest,

or sanctions in its order.

The Owners appealed the May 2, 2023 order. The Association filed a

motion to dismiss the appeal arguing that the May 2, 2023 order was not a final

appealable order. In the meantime, the Association filed a motion for clarification

and reconsideration, or relief from judgment in the trial court. The Association

argued that they were entitled to prejudgment interest under R.C. 1343.03, and that

they were entitled to attorney’s fees as actual damages for successfully litigating the

motion to enforce the DSA. Simultaneously, the Association filed a motion in this court requesting a remand to the trial court for consideration of its motion, which

was denied as moot after this court granted the Association’s motion to dismiss the

appeal because the trial court’s May 2, 2023 order was not final and appealable.

Griffith v. The Chelsea Condominium, No. 112703 (8th Dist. June 12, 2023) (motion

Nos. 564312 and 564689).

Subsequently, the trial court issued an order granting the

Association’s request for prejudgment interest and explicitly denying their request

for attorney’s fees and sanctions (“June 29, 2023 order”). The order did not include

a calculation of prejudgment interest but noted that the amount would be

determined upon confirmation of the payment date.

The Association filed a motion for reconsideration, an amended

motion for reconsideration, and an alternative motion for relief from judgment. The

Owners filed a brief in opposition to the motion for reconsideration. Subsequently,

the Association filed an appeal to the June 29, 2023 order, and the Owners filed a

cross-appeal. The Association filed a motion asking this court to remand the case to

the trial court to allow it to consider its amended motion for reconsideration. This

court granted the motion for remand, advising the parties that if the trial court

resolved the issue they were to move to dismiss the appeal.

After the matter was remanded, the Owners filed a brief in opposition

to the Association’s amended motion and a hearing was held.

After listening to arguments of counsel at the hearing, the trial court

granted the Association’s amended motion for reconsideration (the “October 26, 2023 order”). The trial court found that the June 29, 2023 order was not a final

order under R.C. 2505.02(B)(4), and that it, therefore, could be reconsidered. The

court then amended the June 29, 2023 order only as to its ruling on attorney’s fees.

The court found that the Owners acted contrary to the DSA and the original

judgment that ordered the Owners to distribute $9,855.34 to the Association. As a

result, the Association was entitled to reasonable attorney’s fees to be determined

after a hearing on the issue. Thereafter, following the trial court’s instructions when

granting the earlier motion to remand, the appellants moved to voluntarily dismiss,

which this court granted. Griffith v. Chelsea Condominium, No. 113031 (8th Dist.

Oct. 27, 2023) (motion Nos. 568980 and 568983).

As is relevant to the present appeal, in March 2025, the trial court

issued a journal entry awarding the Association $40,338.95 in attorney’s fees; the

$9,855 outstanding settlement balance rounded to the nearest dollar; prejudgment

interest on the $300,000 from February 2, 2021, through March 25, 2021, and on

the $9,855 from March 26, 2021, through June 26, 2024; and statutory post-

judgment interest (the “March 19, 2025 order”).

The Owners appeal the trial court’s ruling on the motion to file

documents under seal and the May 2, 2023, June 29, 2023, October 26, 2023, and

March 19, 2025 orders, raising the following assignments of error for our review.

Assignment of Error No. 1

The trial court erred by failing to accept the global settlement agreement under seal. Assignment of Error No. 2

The trial court erred by finding that the Association should not be required to pay its pro rata share of litigation expenses.

Assignment of Error No. 3

The trial court erred by finding that [the Owners] had breached the settlement agreement and awarding fees to the Association.

Assignment of Error No. 4

The trial court erred in its calculation of attorney’s fees.

Assignment of Error No. 5

The trial court erred by denying [the Owners’] cross-motion to enforce the settlement agreement.

Law and Analysis

For ease of analysis, we will address the Owners’ assignments of error

out of order and in combination when necessary.

I. Ruling on the Motions to Enforce Settlement Agreement

We begin with the Owners’ first, second, and fifth assignments of

error, which all challenge the trial court’s decision to grant the Association’s motion

to enforce the settlement agreement. In the first and second assignments of error,

the Owners argue that the trial court erred when it failed to consider the CMRSA

under seal, the Owners’ fee agreement with their counsel, common practice for

contingency fee agreements, the Rules of Professional Conduct, the common fund

doctrine, and equitable principles. For the same reasons, the Owners argue that the

trial court erred when it denied their cross-motion to enforce the settlement agreement in the fifth assignment of error. The Owners’ arguments are not well

taken.

A. Standard of Review

The standard of review for a decision on a motion to enforce a

settlement agreement depends on the issue presented. “‘If the question is an

evidentiary one, this court will not overturn the trial court’s findings if there was

sufficient evidence to support the finding.’” Kingsbury v. Cornerstone Family

Office L.L.C., 2022-Ohio-18, ¶ 18 (8th Dist.), quoting Turoczy Bonding Co. v.

Mitchell, 2018-Ohio-3173, ¶ 15 (8th Dist.), citing Chirchiglia v. Ohio Bur. of

Workers’ Comp., 138 Ohio App.3d 676, 679 (7th Dist. 2000). “If the issue is a

question of contract law, the reviewing court must determine whether the trial

court’s order is based on an erroneous standard or a misconstruction of law.” Al-

Zubi v. Cosmetic & Implant Dental Ctr. of Cincinnati, Inc., 2020-Ohio-3272, ¶ 7 (1st

Dist.), citing Turoczy at id.; Continental W. Condominium Unit Owners Assn. v.

Howard E. Ferguson, Inc., 74 Ohio St. 3d 501, 502 (1996). In other words, the issue

is “whether the trial court erred as a matter of law in sustaining the motion to enforce

the settlement agreement.” Chirchiglia at id., citing Continental at id.

The facts in this case are undisputed. The Owners withheld $9,855.34

from the agreed settlement amount ostensibly to cover the Association’s purported

share of litigation expenses. Therefore, the question for this court is whether the

trial court erred as a matter of law when it found that the Owners violated the DSA and granted the Association’s motion to enforce the settlement agreement. This

question requires a review of settlement-agreement law.

B. Settlement Agreements

Preliminarily, a settlement agreement is a contract “designed to

terminate a claim by preventing or ending litigation and that such agreements are

valid and enforceable by either party.” Continental at 502, citing Spercel v. Sterling

Industries, 31 Ohio St. 2d 36, 38 (1972). Settlement agreements “are highly favored

in the law.” Id., citing State ex rel. Wright v. Weyandt, 50 Ohio St.2d 194 (1977);

Spercel at id. Accordingly, contract law applies when examining the terms of a

settlement agreement. Issues regarding the construction of written contracts are

reviewed de novo, with the “purpose . . . to realize and give effect to the intent of the

parties.” J. Griffin Ricker Assocs., LLC v. Well, 2022-Ohio-1470, ¶ 21, citing

Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241 (1978), paragraph one of the

syllabus, and Skivolocki v. E. Ohio Gas Co., 38 Ohio St.2d 244 (1974), paragraph

one of the syllabus.

Where the terms of a contract are unambiguous, the court determines

the intent of the parties from the contract itself. F & L Ctr. Co. v. H. Goodman, Inc.,

2004-Ohio-5856, ¶ 6 (8th Dist.), citing Mattlin-Tiano v. Tiano, 2001 Ohio App.

LEXIS 32, *5 (10th Dist. Jan. 9, 2001); Starr v. Ohio Dept. of Commerce Div. of

Real Estate & Professional Licensing, 2021-Ohio-2243, ¶ 42; Antonucci v. Ohio

Dept. of Taxation, 2010-Ohio-3326, ¶ 8 (10th Dist.) (“Indeed, when contract terms

are clear and unambiguous, courts will not, in effect, create a new contract by finding an intent which is not expressed in the clear language utilized by parties.”).

“Extrinsic evidence may be considered only when the language of the contract is

unclear or ambiguous or when the circumstances surrounding the agreement invest

the language of the contract with a special meaning.” F & L at ¶ 6, citing Shifrin v.

Forest City Ent., Inc., 64 Ohio St.3d 635 (1992).

Turning to the first assignment of error, the Owners argue that the

trial court erred when it refused to allow them to submit the CMRSA under seal

because a review of the CMRSA was a “necessary inquiry in determining if the [DSA

had] been breached.” The Owners do not argue that the DSA was unclear or

ambiguous. Rather, they argue that the circumstances surrounding the agreement

required the trial court to look at extrinsic evidence to determine whether they

violated the DSA.

Our first consideration is whether the DSA is ambiguous. If the DSA

is unambiguous, we may not consider extrinsic evidence to create an ambiguity that

does not appear on the face of the document. Shifrin at 638.

A review of the DSA establishes that the terms regarding the amount

of the payment to the Association are unambiguous. At Section II(F), the DSA

provides that the Association and its counsel “believe the $300,000 payment to the

Association is sufficient consideration for the settlement and discharge of the

Derivative Claims.” Section IV(B) indicates that the Derivative Defendants would

pay $300,000 to the Owners, who were charged with distributing the funds to the

Association. The Owners argue that the word “distribution” implies that they were

entitled to deduct expenses; however, the plain language of the contract does not

support this interpretation:

Payment of the Settlement Amount. Pursuant to the terms of the proposed Settlement, no later than ten (10) days after the Settlement’s Effective Date, Derivative Defendants agree to cause to be paid $300,000 to the [Owners] for subsequent distribution to the [Association] to settle the derivative claims.

To find that this language entitles the Owners to deduct their

expenses, this court would have to add language to the DSA. The DSA simply and

unambiguously calls for the Derivative Defendants to present $300,000 to the

Owners, after which the Owners were to distribute the $300,000 to the Association.

Furthermore, the DSA contains a release, which states that on the

effective date of the settlement, all parties release any claims for “recovery for

liabilities, damages, losses, attorney’s fees, costs or expenses” based on the

derivative claims.

Because we find the settlement language to be unambiguous, the trial

court did not err when it denied the Owners’ motion to submit the CMRSA under

seal. The trial court was not permitted to go beyond the DSA to understand its

terms; thus, the first assignment of error is overruled.

For the same reasons, the Owners’ second and fifth assignments of

error must be overruled. The Owners argue that the trial court should have

considered that (1) their counsel was effectively the Association’s attorney for the

derivative claims and that his fee agreement with them should apply to the Association allowing the deduction of litigation expenses from the settlement fund;

(2) it is common practice under contingency fee agreements for the attorney to

deduct litigation expenses from the settlement funds; (3) such a deduction was

proper because the Rules of Professional Conduct prevent the Owners’ counsel from

paying the expenses himself; and (4) both the common fund doctrine and equitable

principles require the Association to pay its share of litigation expenses. Further,

they argue that for these same reasons, the trial court erred when it failed to grant

their cross-motion to enforce the settlement agreement.

Each of these challenges requires the court to consider factors outside

of the DSA. Beginning with the Owners’ contract with their attorney, we cannot find

that the trial court erred when it did not consider the fee agreement. Assuming for

the sake of argument that the contract between the Owners and their attorney

applied to the Association, the trial court was not permitted to consider that separate

contract to understand the terms of the DSA where its terms were unambiguous.

In Ward v. Eaton US Holdings, 2017-Ohio-543 (8th Dist.), the

plaintiff agreed in a separate matter to reimburse his employer the sum of $5,000.

When he suffered an injury on the job, the plaintiff and the employer agreed to a

settlement of $20,000. However, instead of remitting $20,000, the employer

remitted $15,000, deducting the $5,000 owed from the total. The plaintiff filed a

motion to enforce the settlement agreement, but the trial court denied the motion.

On appeal, this court overturned the trial court’s decision finding that where the

settlement agreement was clear and unambiguous and did not provide for the deduction of any funds from the settlement amount, the plaintiff was entitled to the

full amount. Id. at ¶ 14.

The Owners’ remaining arguments suggest that common legal

practices, rules of conduct, and law and equity should require the Association to pay

its portion of litigation expenses. We recognize that generally a derivative plaintiff

may recover attorney’s fees. Nordquist v. Schwartz, 2012-Ohio-4571, ¶ 21 (7th

Dist.), citing Apicella v. PAF Corp., 17 Ohio App.3d 245, 250 (8th Dist. 1984).

However, a party to a contract may choose to forego certain benefits to avoid the risk

of trial. “A settlement agreement does not have to be fair and equitable to be binding

and enforceable, so long as it is not procured by fraud, duress, overreaching or

undue influence.” Alotech Ltd. L.L.C. v. Barnes, 2017-Ohio-5569, ¶ 12 (8th Dist.),

citing Vasilakis v. Vasilakis, 1996 Ohio App. LEXIS 2569, *5-6 (8th Dist. June 20,

1996). The Owners have not argued that they were improperly induced into entering

the DSA; therefore, we give effect to the intent of the parties as established by the

contract. In this case that includes the Owners’ choice to forego reimbursement of

their litigation expenses.

Accordingly, the second and fifth assignments of error are overruled.

II. Reconsideration of the June 29, 2023 Order

In the third assignment of error, the Owners argue that the trial court

erred when it reconsidered its June 29, 2023 order, found that the Owners breached

the DSA, and ordered them to pay the Association’s attorney’s fees. Specifically, the

Owners argue that the trial court’s June 29, 2023 order was a final order that could not be reconsidered. According to the Owners, even if it could be reconsidered, they

did not breach the DSA; they merely deducted expenses that the Association was

purportedly required to pay. Further, they challenge the trial court’s remedy,

arguing that attorney’s fees were discretionary, not mandatory. Therefore, it was

unnecessary for the trial court to reconsider its June 29, 2023 order to impose

attorney’s fees.

A. Reconsideration of Final Orders

The Owners argue that the June 29, 2023 order was a final order

because it disposed of all pending issues, except the calculation of prejudgment

interest. Citing this court’s decision in Zappola v. Rock Capital Sound Corp., 2014-

Ohio-2261, ¶ 26 (8th Dist.), the Owners argue that the calculation of prejudgment

interest is a ministerial task that does not prevent a judgment from being a final

order. Therefore, the trial court erred when it reconsidered that order. The Owners’

arguments lack merit.

“‘“A final order . . . is one disposing of the whole case or some separate

and distinct branch thereof.”’” Zunshine v. Cott, 2007-Ohio-1475, ¶ 20 (10th Dist.),

citing Noble v. Colwell, 44 Ohio St.3d 92, 94 (1989), quoting Lantsberry v. Tilley

Lamp Co., 27 Ohio St.2d 303, 306 (1971). Where a judgment is not final or

appealable, the trial court is permitted to reconsider it at any time prior to entry of

its final judgment. Id. at ¶ 23. A trial court’s decision that occurs before the

“‘judgment adjudicating all the claims and the rights and liabilities of all the parties’” is subject to reconsideration. Assunta Rossi Personalty Revocable Living v.

Keehan, 2023-Ohio-3710, ¶ 11 (8th Dist.), quoting Civ.R. 54(B).

With respect to prejudgment interest, this court has noted that “[a]

judgment that leaves issues unresolved and contemplates further action is not a

final, appealable order under R.C. 2505.02(B)(1) unless the remaining issue is

mechanical and involved only a ministerial task.” Third Wing, Inc. v. Columbia Cas.

Co., 2011-Ohio-4827, ¶ 6 (8th Dist.), citing State v. Threatt, 2006-Ohio-905, ¶ 20.

The Ohio Supreme Court has noted:

Prejudgment interest is neither damages nor an easily computed cost. Determining whether to grant prejudgment interest is not a merely ministerial task; it requires the trial court to find that “the party required to pay the judgment failed to make a good faith effort to settle” and that “the party to whom the judgment is to be paid did not fail to make a good faith effort to settle the case.” Moskovitz v. Mt. Sinai Med. Ctr. [69 Ohio St.3d 638, 658 (1994)]. See R.C. 1343.03(C). Determining whether prejudgment interest should be awarded requires judicial fact-finding and the exercise of judicial discretion. We conclude that, as between damages and costs, prejudgment interest is more in the nature of damages.

Miller v. First Internatl. Fid. & Trust Bldg., 2007-Ohio-2457, ¶ 7.

In summary, a judgment that does not completely address damages

is final and appealable “‘where the computation of damages is mechanical and

unlikely to produce a second appeal because only a ministerial task similar to

assessing costs remains.’” Lucio v. Safe Auto Ins. Co., 2010-Ohio-2528, ¶ 23 (7th

Dist.).

In the instant case, the trial court granted the motion to enforce the

DSA in the May 2, 2023 order but did not address the request for prejudgment interest, attorney’s fees, or sanctions. This court dismissed the subsequent appeal

finding that the May 2, 2023 order was not a final, appealable order because of those

outstanding issues. Griffith v. Chelsea Condominium Assn., No. 112703 (8th Dist.

June 12, 2023). The June 29, 2023 order followed, which denied the Association’s

request for attorney’s fees and sanctions and found that the Association was

“entitled to prejudgment interest as a matter of law which shall be calculated upon

confirmation of the date of payment.”

Two factors in this case signal that the calculation of prejudgment

interest was not merely ministerial. First, the court’s order depended on the Owners

remitting the disputed funds to the Association. Until the date of remittal was

known, the calculation could not be completed. Additionally, both parties had

vigorously litigated the case, filing two appeals prior to the settlement agreement,

and three after the Association filed its motion to enforce. Given the foregoing, there

was sufficient evidence in the record to find that the calculation of prejudgment

interest was not merely ministerial, and given the history, there was no certainty

that calculation of prejudgment interest would prevent further appeals. Lucio at

¶ 23 (“[I]f only a ministerial task similar to executing a judgment or assessing costs

remains and there is a low possibility of disputes concerning . . . individual claims,

the order can be appealed without waiting for performance of that ministerial

task.”). For those reasons, we find that the June 29, 2023 order was not a final order,

and the trial court was permitted to reconsider it. B. Breach of the Settlement Agreement

Next the Owners argue that the trial court erred in finding that they

breached the DSA. They argue that they merely withheld funds the Association was

required to pay. Further, they argue that the imposition of attorney’s fees is

discretionary, not mandatory.

As we have already noted, a settlement agreement is a contract and

contract law applies to its evaluation. To succeed on a breach-of-contract claim, a

party must establish (1) the existence of a contract, (2) a breach of that contract, and

(3) they suffered damages resulting from that breach. R. Gibson Properties, L.L.C.

v. Genmoncha, L.L.C., 2021-Ohio-3732, ¶ 23 (8th Dist.), citing Superior Piping

Contrs., Inc. v. Reilly Industries, Inc., 2008-Ohio-4858, ¶ 15, (8th Dist.), citing

Lawrence v. Lorain Cty. Community College, 127 Ohio App.3d 546, 549 (9th Dist.

1998). When the issue is a breach of settlement, courts have found that the failure

to perform an aspect of the settlement that necessitates the other party starting

litigation establishes the breach. Tejada-Hercules v. State Auto. Ins. Co., 2008-

Ohio-5066, ¶ 21 (10th Dist.). “The rationale behind the exception for allowing

attorney’s fees expended as a result of enforcing a settlement agreement is that ‘any

fees incurred after the breach of the settlement agreement were relevant to the

determination of compensatory damages, including those fees [a party was] “forced”

to incur by filing the action.’” Brown v. Spitzer Chevrolet Co., 2012-Ohio-5623, ¶ 20

(5th Dist.), quoting Tejada-Hercules at ¶ 10. Here, the Owners’ action in withholding litigation expenses led to the Association’s motion to enforce the DSA

and resulted in additional attorney’s fees, which established the breach.

Based on the foregoing, the trial court did not err when it found that

the Owners breached the DSA.

C. Imposition of Attorney’s Fees

Finally, the Owners argue that this court’s decision in Rayco, 2019-

Ohio-3756 (8th Dist.), did not mandate attorney’s fees when a party prevails after

the filing of a motion to enforce settlement agreement. The Owners presume that

the trial court imposed attorney’s fees on reconsideration based on a belief that

Rayco mandated the award. Even if the trial court properly applied Rayco to the

facts of this case, the Owners believe Rayco has been impliedly overruled by the

Ohio Supreme Court’s decision in Cruz v. English Nanny & Governess School,

2022-Ohio-3586, such that it was error to impose attorney’s fees at all.

We agree that the language of Rayco is discretionary because it

indicates a court “can” award attorney’s fees when a party prevails on a motion to

enforce settlement agreement. Rayco at ¶ 4.

Cruz does not directly address the Rayco decision. The Cruz Court

explicitly addressed the award of attorney’s fees for appellate work and found that

this court erred when it denied the appellant’s request for appellate attorney’s fees

where punitive damages had been awarded. The Cruz Court chose not to address

the finding in Rayco and other appellate decisions that allow an award of attorney’s

fees as compensatory damages toward the prevailing party in a settlement- enforcement case.2 From our review, Cruz does not impliedly overrule the finding

in Rayco.

Accordingly, we find that the trial court had discretion to order

attorney’s fees when it found that the Owners breached the DSA. Therefore, the

third assignment of error is overruled.

III. Award of Attorney Fees and Expenses

Finally, in the fourth assignment of error, the Owners challenge the

reasonableness of the trial court’s award of attorney’s fees. We find that the Owners’

argument has merit.

An appellate court reviews a trial court’s award of attorney’s fees

under the abuse-of-discretion standard. Barker v. McCoy, 2015-Ohio-3127, ¶ 32

(4th Dist.), citing Bittner v. Tri-County Toyota, Inc., 58 Ohio St.3d 143, 146 (1991).

An abuse of discretion occurs when a trial court’s decision is “unreasonable,

arbitrary, or unconscionable.” State v. Hill, 2022-Ohio-4544, ¶ 9, quoting State v.

Beasley, 2018-Ohio-16, ¶ 12, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983). Unless we find an abuse of discretion, we will not disturb the trial court’s

ruling. Cleveland v. CapitalSource Bank, 2016-Ohio-3172, ¶ 8 (8th Dist.).

B. Reasonableness of Attorney’s Fees

2 Recently, the Ohio Supreme Court accepted Dornette v. Green Bldg. Consulting,

L.L.C., 2025-Ohio-4944 (1st Dist.), a case that directly challenges the holding in Rayco. 02/17/2026 Case Announcements, 2026-Ohio-475, Dornette v. Green Bldg. Consulting, L.L.C., No. 2025-1637 (appeals accepted for review). A trial court’s reasonableness determination regarding attorney’s fees

must be “based upon the actual value of the necessary services performed by the

attorney, and evidence must exist in support of the court’s determination.” Benton

Village Condominium Owners’ Assn. v. Bridge, 2018-Ohio-4896, ¶ 28 (8th Dist.),

citing Bolek v. Miller-McNeal, 2016-Ohio-1383. Further, a court looks to a number

of factors including: (1) the time and labor involved, the novelty of the issues raised,

and the necessary skill to pursue the course of action; (2) the customary fees for

similar legal services in the locality; (3) the amount involved and the results

obtained; and (4) the reputation, experience, and ability of counsel. CapitalSource

Bank at ¶ 11, citing Pyle v. Pyle, 11 Ohio App.3d 31, 35 (8th Dist. 1983), citing

Swanson v. Swanson, 48 Ohio App.2d 85 (8th Dist. 1976), and Prof.Cond.R. 1.5.

At the hearing, both the Association’s and the Owners’ witnesses

testified that $225 per hour was a reasonable rate for an experienced civil-litigation

attorney. The Owners’ witness argued that it was unreasonable for the Association’s

attorney to increase the rate of pay from $150 to $225. However, the evidence

revealed that Nationwide paid the Association’s attorney’s fees under their

insurance policy. The rate Nationwide received was discounted based on the volume

of business Nationwide provided to the law firm. When Nationwide ceased covering

the attorney’s fees, the Association’s attorney negotiated $225 per hour, the

undiscounted rate. Based on the foregoing, there was sufficient evidence in the

record to establish that the rate was reasonable. Accordingly, the trial court did not

abuse its discretion in finding that $225 per hour was reasonable. Next, with respect to the award of expert fees, the Owners merely

argue that Rayco does not permit such an award. However, Rayco does not forbid

it either. The Owners do not cite to any other case law to support their argument

that expert fees are not allowed; accordingly, we decline to address it. App.R.

12(A)(2); App.R. 16(A)(7).

Finally, the Owners argue that it was unreasonable for the Association

to continue to pursue the enforcement action when the Owners offered to pay the

disputed amount in March 2022. The Board’s president testified that the Owners

offered to settle the enforcement action by paying the disputed amount. However,

the Board and the Association refused the offer because it did not include all the

accumulated prejudgment interest or attorney’s fees. The offer was made a year

after the motion to enforce was filed and almost 19 months before the trial court

found that attorney’s fees were appropriate. The Owners argue it was unreasonable

to continue to pursue the litigation after the settlement offer was made. The

Association argues that its choice to continue the litigation does not factor into the

reasonableness of attorney’s fees. The Owners’ argument may have merit.

Under Rayco, the prevailing party in a motion to enforce a settlement

agreement is entitled to attorney’s fees as compensatory damages to reimburse that

party for having to resort to litigation to enforce the agreement. Rayco, 2019-Ohio-

3756, at ¶ 4 (8th Dist.). ‘“Compensatory damages . . . shall be the result of the injury

alleged and proved, and . . . the amount awarded shall be precisely commensurate

with the injury suffered, neither more nor less. . . .”’ Whitaker v. M.T. Auto., Inc., 2006-Ohio-5481, ¶ 18, quoting Birdsall v. Coolidge, 93 U.S. 64 (1876). “[A] party

who has been wronged by a breach of contract may not unreasonably sit idly by and

allow damages to accumulate.” Ritter v. Fairway Park Properties, L.L.C., 2004-

Ohio-2518, ¶ 14 (9th Dist.), quoting Calamari & Perillo, The Law of Contracts, § 562

at 14.15 (4th Ed. 1998). This court has held:

Under Ohio law, the injured party in a breach-of-contract action has a duty to mitigate damages, meaning that the injured party cannot recover damages that it could have prevented by reasonable affirmative action. First Fin. Bank, N.A. v. Cooper, 2016-Ohio-3523, ¶ 23 (1st Dist.). An injured party need only use reasonable, practical care and diligence, not extraordinary measures to avoid excessive damages. Id. The burden of proof for the affirmative defense of failure to mitigate damages lies with the breaching party. Id.

(Cleaned up.) Benton Village Condominium Owners’ Assn., Inc., 2024-Ohio-1990

at ¶ 32 (8th Dist.).

The Owners presented testimony that they offered a settlement in the

amount of the disputed funds to resolve the dispute prior to the trial court’s ruling.

However, the Association presented testimony that that offer did not include

interest or attorney’s fees. This issue raises the question of whether the Association

mitigated its damages. Because we cannot tell from the trial court’s order whether

it considered mitigation of damages, we reverse the trial court’s award of attorney’s

fees and remand to the trial court to address that concern.

Judgment affirmed in part, reversed in part, and remanded for the

trial court to consider whether the Association mitigated its damages.

It is ordered that appellee and appellants split the costs herein taxed. The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

EMANUELLA D. GROVES, PRESIDING JUDGE

MICHAEL JOHN RYAN, J., and TIMOTHY W. CLARY, J., CONCUR