Quadracast, Inc. v. Columbia Plastics, Inc.

2 Ohio App. Unrep. 250

• Court: Ohio Court of Appeals
• Decided: March 5, 1990
• Docket: Case No. CA-7875
• Status: Published

Opinions

PUTMAN, P.J.

This is an appeal from a civil money judgment entered in the Court of Common Pleas of Stark County, Ohio, on May 17, 1989, in favor of the plaintiff, Quadracast, Inc., and against the defendants, Columbia Plastics, Inc., and Frank Bargides, in the amount of $42,393.15 plus interest from the date of judgment and the cost of the action. The record shows that the court has personal jurisdiction over both the defendants Columbia Plastics, Inc., the corporation, and the individual, Frank Bargides. They appeared through counsel at the evidentiary hearing before the Honorable John G. Haas, judge, on May 5, 1989, and, without objection to the form of the proceedings or any other procedural matter, participated in the taking of evidence upon the plaintiffs claim that a contract of settlement had been made and was sought to be enforced.

The court heard sworn testimony on the subject of the contract settlement and entered the judgment appealed from. The testimony at page six of the record supports the promise to pay the sum of $18,000 plus $6,000, for a total of $24,000, and the testimony at page seventeen of the record supports a finding of a promise to pay an additional sum of $18,118.14. The total figure of the settlement supported by testimony was $42,118.54.

The individual appellant Bargides was offered an opportunity to file an affidavit after the hearing for the court's consideration and failed to file anything. Thereafter, the judgment appealed from was entered.

We note that the pleading asking for enforcement of the settlement agreement listed consecutively the amounts of $18,000 in back rent, $6,000 in lease payments, and $18,118.14 in back city water charges.

Two errors are assigned to the judgment. We overrule each of them except that we modify the judgment to reduce it to the amount of $42,118.54, no amendment in a demand for money contained in the pleading having been filed.

Our reasons follow.

I

The first assignment of error claims that the trial court "lacks jurisdiction to interpretor otherwise modify a consent judgment." This assignment of error is without merit. The trial court had subject matter jurisdiction over a contractof settlementand the partiespersonally appeared and participated in the proceedings without objection to any procedural aspect thereof.

II

The second assignment of error complains of the sufficiency of the evidence to support the judgment. Actually, the evidence only supports judgment in the amount of $42,118.54, as previously outlined above.

We are in complete agreement with the general proposition of law contained in Judge Milligan's dissent. However, they were never called to the attention of the trial court in any procedural form.

The appellant only registereddissatisfaction after the trial judge announced the winner. Even the no procedural irregularities were complained of in the trial court.

The matters discussed in the dissent were raised for the first time in the Court of Appeals.

Accordingly, the judgment will be modified to constitute a judgment in the amount of $42,118.54 and, as modified, affirmed.

Judgment affirmed as modified.

SMART, J. Concurs and MILLIGAN, J. Dissents