[Cite as Savoy Hospitality, L.L.C. v. 5839 Monore St. Assocs., L.L.C., 2015-Ohio-4879.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
SAVOY HOSPITALITY, LLC, D/B/A MELTING POT RESTAURANT, ET AL., CASE NO. L-14-1144 PLAINTIFFS-APPELLEES,
v.
5839 MONROE STREET ASSOCIATES OPINION LLC, D/B/A MONROE ASSOCIATES, LLC,
DEFENDANT-APPELLANT.
Appeal from Lucas County Common Pleas Court
Trial Court No. CI-2011-02783
Judgment Affirmed
Date of Decision: November 13, 2015
APPEARANCES:
Erik G. Chappell for Appellant
Anthony J. Calamunci and Amy L. Butler for Appellees Case No. CL-2014-01144
PRESTON, J.
{¶1} Defendant-appellant, 5839 Monroe Street Associates, LLC, d/b/a
Monroe Associates, LLC (“Monroe”), appeals the June 13, 2014 judgment of the
Lucas County Court of Common Pleas. For the reasons that follow, we affirm the
decision of the trial court.
{¶2} On April 13, 2011, plaintiffs-appellees, Savoy Hospitality, LLC, d/b/a
Melting Pot Restaurant (“Savoy”), Nicole D. Duhart (“Nicole”), and Myron C.
Duhart (“Myron”) (collectively, “Plaintiffs”) filed a complaint against Monroe
alleging breach of a lease agreement. (Doc. No. 1). On June 8, 2011, Monroe
filed its answer and counterclaim. (Doc. No. 9). On August 17, 2011, Monroe
filed its first amended counterclaim. (Doc. No. 26).
{¶3} On September 6, 2011, Monroe filed a “Motion for Immediate
Hearing on Defendant’s Claim for Eviction (Count II of the First Amended
Counterclaim), and for Restitution of the Premises.” (Doc. No. 27).
{¶4} On September 16, 2011, Plaintiffs filed their answer to Monroe’s
counterclaim and first amended counterclaim. (Doc. No. 29).
{¶5} On October 25, 2011, the parties reached a written settlement
agreement. (See Doc. No. 49).
{¶6} On November 29, 2011, Monroe filed a motion for leave to file its
second amended counterclaim instanter. (Doc. No. 30). On January 4, 2012, the
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trial court granted Monroe’s motion for leave to file a second amended
counterclaim instanter. (Doc. No. 33). On January 18, 2012, Monroe filed its
second amended counterclaim. (Doc. No. 34).
{¶7} On January 19, 2012, Plaintiffs filed a motion for leave to file a
motion to enforce the settlement agreement instanter. (Doc. No. 35). On February
3, 2012, Monroe filed a memorandum in opposition to Plaintiffs’ motion to
enforce the settlement agreement. (Doc. No. 37). On February 10, 2012, Monroe
filed a supplemental memorandum in opposition to Plaintiffs’ motion to enforce
the settlement agreement. (Doc. No. 38). On February 21, 2012, Plaintiffs filed a
supplemental memorandum and affidavit in support of their motion to enforce the
settlement agreement. (Doc. No. 41). On March 2, 2012, the trial court granted
Plaintiffs’ motion for leave to file their motion to enforce the settlement agreement
instanter, and Plaintiffs filed a motion to enforce the settlement agreement. (Doc.
Nos. 42, 44). That same day, Monroe filed its response to Plaintiffs’ supplemental
memorandum and affidavit in support of its motion to enforce the settlement
agreement. (Doc. No. 43).
{¶8} On March 5, 2012, the trial court granted Plaintiffs’ oral motion for
leave to file a response to Monroe’s second amended counterclaim. (Doc. No.
45).
{¶9} On April 11, 2012, the trial court granted Plaintiffs’ motion to enforce
the settlement agreement “insofar as the court finds that a settlement agreement
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exists and an evidentiary hearing to determine whether the plaintiffs have
defaulted on their obligations under the agreement is justified.” (Doc. No. 47).
On May 1, 2012, a hearing was held to determine the scope of the parties’
remaining rights and obligations under the settlement agreement. (Doc. Nos. 48,
49). The trial court filed its entry on May 18, 2012,1 in which it ordered Plaintiffs
to effect certain repairs to the premises—to replace light fixtures and light
switches, to take out the rest of a walk-in refrigerator, to replace awnings, to
replace a speaker/stereo system, and to clean—and ordered Monroe to return
Plaintiffs’ security deposit once those repairs were completed. (Doc. No. 49).
{¶10} On June 11, 2012, Monroe filed a motion for attorney fees. (Doc.
No. 50). On June 19, 2012, Plaintiffs filed a memorandum in opposition to
Monroe’s motion for attorney fees and a “countermotion” for sanctions. (Doc.
No. 51). On June 27, 2012, Monroe filed a “Reply in Further Support of Its
Motion for Attorneys’ Fees and Opposition to Plaintiffs’ Counter-Motion for
Sanctions.” (Doc. No. 52).
{¶11} On September 10, 2012, Plaintiffs filed a motion to enforce the May
18, 2012 order. (Doc. No. 53). On September 25, 2012, Monroe filed a
memorandum in opposition to Plaintiffs’ motion to enforce the May 18, 2012
order. (Doc. No. 54). On September 28, 2012, Plaintiffs filed a reply
1 The judgment entry was file stamped May 18, 2012 and e-journalized May 22, 2012.
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memorandum in support of its motion to enforce the May 18, 2012 order. (Doc.
No. 55).
{¶12} On November 30, 2012, the trial court denied Monroe’s June 11,
2012 motion for attorney fees and Plaintiffs’ June 19, 2012 “countermotion” for
sanctions and granted Plaintiffs’ September 10, 2012 motion for the return of the
security deposit. (Doc. No. 58). The trial court ordered Monroe to return the
balance of the security deposit still in its possession. (Id.).
{¶13} On December 31, 2012, Plaintiffs filed a motion for contempt. (Doc.
No. 59). On January 8, 2013, Monroe filed a memorandum in opposition to
Plaintiffs’ motion for contempt. (Doc. No. 60).
{¶14} On January 8, 2013, Monroe filed a motion to enforce the settlement
agreement and the mutual release. (Doc. No. 61). On January 18, 2013, Plaintiffs
filed a reply memorandum in support of their motion for contempt, a
memorandum in opposition to Monroe’s motion to enforce the settlement
agreement and the mutual release, and a request for a hearing. (Doc. No. 62).
{¶15} On January 22, 2013, Plaintiffs filed a motion for an emergency
order to secure the security deposit and for additional sanctions. (Doc. No. 63).
On January 24, 2013, Monroe filed a memorandum in opposition to Plaintiffs’
motion for an emergency order to secure the security deposit and for additional
sanctions. (Doc. No. 64).
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{¶16} On February 20, 2013, the trial court “asked the parties to attempt to
negotiate a stipulated resolution of the remaining issues”—“plaintiffs’ motion for
contempt filed under seal on December 31, 2012; [Monroe’s] motion to enforce
settlement agreement filed under seal January 8, 2013; and [Plaintiffs’] motion for
an emergency order to secure deposit and for additional sanctions, filed January
22, 2013”—“by March 1, 2013.” (Doc. No. 65).
{¶17} On July 9, 2013,2 the trial court granted Plaintiffs’ December 31,
2012 motion, which the trial court construed “as a motion for the defendant and its
counsel to show cause why they should not be held in contempt,” scheduled a
contempt hearing for August 12, 2013, and denied Monroe’s January 8, 2013
motion to enforce the settlement agreement. (Doc. No. 66).
{¶18} Monroe filed a notice of appeal on August 2, 2013 of the July 9,
2013 judgment entry. (Doc. No. 70). On August 6, 2013, the parties stipulated
that the amount of the security deposit is $18,000.00. (Doc. No. 71).
{¶19} On April 14, 2014, this court sua sponte dismissed the appeal after
concluding that the July 9, 2013 judgment entry was not a final and appealable
order under R.C. 2505.02 and Civ.R. 54(B). (Doc. No. 75).
{¶20} On June 13, 2014,3 the trial court issued a “Stipulated Order
Regarding Journal Entry, Journalized on July 12, 2013.” (Doc. No. 76).
2 The judgment entry was file stamped July 9, 2013 and e-journalized July 12, 2013. 3 The judgment entry was file stamped June 13, 2014 and e-journalized June 17, 2014.
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{¶21} Monroe filed its notice of appeal on July 1, 2014. (Doc. No. 18).
Monroe raises three assignments of error. For ease of our discussion, we will
address together Monroe’s first and third assignments of error, followed by
Monroe’s second assignment of error.
Assignment of Error No. I
The Trial Court Erred When It Granted Appellees’ Motion To Enforce Settlement Agreement.
Assignment of Error No. III
The Trial Court Erred When It Denied Appellant’s Motion To Enforce Settlement Agreement And Mutual Release.
{¶22} In its first and third assignments of error, Monroe argues that the trial
court erred by granting Plaintiffs’ motion to enforce the settlement agreement and
by denying Monroe’s motion to enforce the settlement agreement and mutual
release. Specifically, in its first assignment of error, Monroe argues that the trial
court erred by granting Plaintiffs’ motion to enforce the settlement agreement
because Plaintiffs failed to pay a utility bill and to execute certain repairs as they
were obligated to do under the settlement agreement, and because Plaintiffs
improperly removed property from the leased premises. In its third assignment of
error, Monroe specifically argues that the trial court erred in ordering Monroe to
return Plaintiffs’ security deposit because Plaintiffs waived any claims—including
any claim to the security deposit—through the mutual release, which is attached to
the settlement agreement.
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{¶23} “Settlement agreements are essentially a contract and are governed
by the law of contracts.” Raymond J. Schaefer, Inc. v. Pytlik, 6th Dist. Ottawa No.
OT-09-026, 2010-Ohio-4714, ¶ 24, citing Rondy, Inc. v. Goodyear Tire Rubber
Co., 9th Dist. Summit No. 21608, 2004-Ohio-835, ¶ 7. “A settlement agreement is
a contract designed to terminate a claim by preventing or ending litigation.”
Infinite Sec. Solutions, L.L.C. v. Karam Propertis, II, Ltd., 143 Ohio St.3d 346,
2015-Ohio-1101, ¶ 16. “Because a settlement agreement constitutes a binding
contract, a trial court has authority to enforce the agreement in a pending lawsuit.”
Id.
{¶24} “Generally, if a motion to enforce a settlement agreement surrounds
an agreement of undisputed terms, the issue is one of contract law; thus the
standard of review is whether the trial court erred as a matter of law.” Moore v.
Johnson Industries Corp., 10th Dist. Franklin Nos. 96APE11-1579, 96APE12-
1638, and 96 APE12-1703, 1997 WL 771015, *12 (Dec. 11, 1997), citing
Continental W. Condominium Unit Owners Assn. v. Howard E. Ferguson, Inc., 74
Ohio St.3d 501, 502 (1996). “De novo review requires us to conduct an
independent review of the record without deference to the trial court’s decision.”
Matrix Technologies, Inc. v. Kuss Corp., 6th Dist. Lucas No. L-07-1301, 2008-
Ohio-1301, ¶ 11, citing Brown v. Cty. Commrs. of Scioto Cty., 87 Ohio App.3d
704, 711 (4th Dist.1993).
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{¶25} “However, if the agreement’s terms are in dispute, the issue of
whether the trial judge should enforce the alleged settlement agreement is
reviewed under an abuse of discretion standard.” Moore at *12, citing Rulli v. Fan
Co., 79 Ohio St.3d 374, 376 (1997). “T*he abuse of discretion standard focuses
on more than whether an error of law has occurred; it also addresses whether the
trial court’s attitude is unreasonable, arbitrary or unconscionable.” Id., citing State
ex rel. Hillyer v. Tuscarawas Cty. Bd. of Commrs., 70 Ohio St.3d 94, 97 (1994).
“‘[I]t is within the sound discretion of the trial court to enforce a settlement
agreement, and its judgment will not be reversed where the record contains some
competent, credible evidence to support its findings regarding the settlement.’”
Bankers Trust Co. v. Wright, 6th Dist. Fulton No. F-09-009, 2010-Ohio-1697, ¶
15, quoting Mentor v. Lagoons Point Land Co., 11th Dist. Lake No. 98-L190,
1999 WL 1313674, *4 (Dec. 17, 1999). See also Fine v. U.S. Erie Islands Co.,
Ltd., 6th Dist. Ottawa No. OT-07-048, 2009-Ohio-1531, ¶ 25, citing The Four
Howards, Ltd. v. J & F Wenz Rd. Invest., L.L.C., 179 Ohio App.3d 399, 2008-
Ohio-6174, ¶ 63 (6th Dist.), citing State v. Clements, 5th Dist. Licking No. 08 CA
31, 2008-Ohio-5549, ¶ 11. “Where there is a dispute regarding the meaning of the
terms of a settlement agreement or where there is a dispute of whether a valid
settlement agreement exists, a trial court must conduct an evidentiary hearing.”
Bankers Trust Co. at ¶ 15, citing Rulli at syllabus.
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{¶26} “To establish a breach of a settlement agreement, the party alleging
the breach must prove: 1) existence of the [s]ettlement [a]greement, 2)
performance by the [nonbreaching party], 3) breach by the [other party], 4)
resulting damages or loss to the [nonbreaching party].” Raymond J. Schaefer,
Inc., 2010-Ohio-4714, at ¶ 24. “The party seeking to enforce the settlement
agreement bears the burden to prove, by a preponderance of the evidence, all of
the elements of a claim for breach of a settlement agreement.” Rondy, Inc., 2004-
Ohio-835, at ¶ 7, citing Cooper & Pachell v. Haslage, 142 Ohio App.3d 704, 707
(9th Dist.2001), quoting AMF, Inc. v. Mravec, 2 Ohio App.3d 29 (8th Dist.1981),
paragraph two of the syllabus.
{¶27} “In cases where the facts are undisputed, and the only question to be
resolved is whether a breach of contract occurred, a question of law exists for the
court to decide.” Blake Homes, Ltd. v. FirstEnergy Corp., 173 Ohio App.3d 230,
2007-Ohio-4606, ¶ 77 (6th Dist.), citing Farmers Market Drive-In Shopping Ctrs.,
Inc. v. Magana, 10th Dist. Franklin No. 06AP-532, 2007-Ohio-2653, ¶ 32.
{¶28} However, when parties dispute whether their respective actions were
sufficient to satisfy the terms of a settlement agreement, the trial court is presented
with a question of fact to decide. Nippon Life Ins. Co. of Am. v. One Source Mgt.,
Ltd., 6th Dist. Lucas No. L-10-1247, 2011-Ohio-2175, ¶ 17, citing Blake Homes,
Ltd. at ¶ 77, citing Farmers Market Drive-In Shopping Ctrs., Inc. at ¶ 32 and
Butler Cty. Bd. of Commrs. v. Hamilton, 145 Ohio App.3d 454, 478 (12th
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Dist.2001) (concluding that disputed good-faith efforts to satisfy contract
conditions are factual issues). “In either a civil or criminal trial, ‘the weight to be
given the evidence and the credibility of the witnesses are primarily for the trier of
the facts.’” Blake Homes, Ltd. at ¶ 78, quoting State v. DeHass, 10 Ohio St.2d 230
(1967), paragraph one of the syllabus. “On appeal, a reviewing court must defer
to the determination of the [trier of fact] as to such issues, because it was ‘in the
best position to observe the witness’ demeanor, voice inflection, and
mannerisms.’” Id., quoting State v. Ballard, 8th Dist. Cuyahoga No. 88279, 2007-
Ohio-4017, ¶ 23, citing DeHass at paragraph one of the syllabus. Accordingly, an
appellate court reviews whether the trial court’s findings are against the manifest
weight of the evidence and will not disturb the trial court’s findings if they are
supported by some competent, credible evidence. Nippon Life Ins. Co. at ¶ 18;
Business Resource Group, L.L.C., 9th Dist. Wayne No. 09CA0069, 2011-Ohio-
399, ¶ 11.
{¶29} “A court’s primary objective in the construction of any written
agreement is to ascertain and give effect to the intent of the parties by examining
the language that they chose to employ.” O.E. Meyer Co. v. BOC Group, Inc., 6th
Dist. Erie No. E-99-002, 2000 WL 234549, *5 (Mar. 3, 2000), citing Foster
Wheeler Enviresponse, Inc. v. Franklin Cty. Convention Facilities Auth., 78 Ohio
St.3d 353, 361 (1997). First, a court must determine whether the disputed
language is plain and unambiguous. Beverly v. Parilla, 165 Ohio App.3d 802,
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2006-Ohio-1286, ¶ 24 (7th Dist.). See also Aultman Hosp. Assn v. Community
Mut. Ins. Co., 46 Ohio St.3d 51, 55 (1989). “The language is unambiguous if,
from reading only the four corners of the instrument, the language is clear,
definite, and subject to only one interpretation.” Beverly at ¶ 24. “Contract
language is ambiguous ‘if it is unclear, indefinite, and reasonably subject to dual
interpretations.’” Mulchin v. ZZZ Anesthesia, Inc., 6th Dist. Erie No. E-05-045,
2006-Ohio-5773, ¶ 36, quoting Beverly at ¶ 24. See also Bay Coast Properties,
Inc. v. Natl. City Bank, 6th Dist. Huron No. H-05-015, 2006-Ohio-2348, ¶ 15
(noting that “[t]he test for determining whether contract terms are ambiguous” is:
“Common words appearing in a written instrument will be given their ordinary
meaning unless manifest absurdity results, or unless some other meaning is clearly
evidenced from the face or overall contents of the instrument”), quoting Alexander
v. Buckeye Pipe Line Co., 53 Ohio St.2d 241 (1978), paragraph two of the
syllabus.
{¶30} “If it is clear and unambiguous, the court need not go beyond the
plain language of the agreement to determine the rights and obligations of the
parties” and “[t]he interpretation of a written agreement is * * * a matter of law for
the court,” which an appellate court reviews de novo. O.E. Meyer Co. at *5, citing
Aultman Hosp. Assn. at 53; Bottomline Ink, Corp. v. Huntington Bancshares, Inc.,
6th Dist. Wood No. WD-08-003, 2008-Ohio-2987, ¶ 11, citing Alexander at
paragraph one of the syllabus; Matrix Technologies, Inc., 2008-Ohio-1301, at ¶ 11,
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citing Grabnic v. Doskocil, 11th Dist. Portage No. 02-P-0116, 2005-Ohio-2887, ¶
12.
{¶31} “When a court finds an ambiguity in the contract language, the intent
of the parties becomes a question of fact; in order to ascertain such intent, the trier
of fact may rely on extrinsic evidence.” Mulchin at ¶ 36, citing Beverly at ¶ 26.
See also Inland Refuse Transfer Co. v. Browning-Ferris Industries of Ohio, Inc.,
15 Ohio St.3d 321, 322 (1984) (“However, if a term cannot be determined from
the four corners of a contract, factual determination of intent or reasonableness
may be necessary to supply the missing term.”). “‘We will not reverse a factual
finding of the trial court so long as some competent, credible evidence supports
it.’” Am. Servicing Corp. v. Wannemacher, 3d Dist. Putnam No. 12-14-01, 2014-
Ohio-3984, ¶ 15, quoting Crane Hollow, Inc. v. Marathon Ashland Pipe Line,
LLC, 138 Ohio App.3d 57, 74 (4th Dist.2000), citing C.E. Morris Co. v. Foley
Constr. Co., 54 Ohio St.2d 279 (1978), syllabus. See also Myers v. Garson, 66
Ohio St.3d 610, 614 (1993).
{¶32} “The parol evidence rule prohibits a party from contradicting or
supplementing a written, fully-integrated contract with extrinsic evidence of prior
or contemporaneous agreements, whether oral or written.” Bottomline Ink, Corp.
at ¶ 11, citing Ed Schory & Sons, Inc. v. Society Natl. Bank, 75 Ohio St.3d 433,
440 (1996). “Only when the language of a contract is unclear or ambiguous, or
when the circumstances surrounding the agreement invest the language of the
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contract with a special meaning will extrinsic evidence be considered in an effort
to give effect to the parties’ intentions.” Huff v. FirstEnergy Corp., 130 Ohio
St.3d 196, 2011-Ohio-5083, ¶ 12.
{¶33} The parties do not dispute that they executed a valid settlement
agreement but dispute whether the trial court erred in enforcing the settlement
agreement after determining that Monroe failed to satisfy its burden of
demonstrating that Plaintiffs breached the settlement agreement. In particular,
Monroe argues (1) that Plaintiffs’ failure to timely remit the outstanding utility bill
breached the settlement agreement and (2) that Plaintiffs’ “failure to undertake the
necessary repairs and replacements as delineated after Monroe’s inspection”
“constituted a breach of the settlement agreement,” even though Plaintiffs
“ultimately made the repairs and replacements after being ordered to do so by the
trial court.” (Appellant’s Brief at 21).
{¶34} Monroe is essentially arguing that the trial court erred as a matter of
law in enforcing the settlement agreement because the trial court erred as a matter
of law in concluding that Plaintiffs did not breach the settlement agreement. As
such, Monroe urges this court to review de novo the enforcement of the settlement
agreement and whether Plaintiffs breached the settlement agreement.
{¶35} We review the trial court’s decision to grant Plaintiffs’ motion to
enforce the settlement agreement for an abuse of discretion because the parties
dispute the settlement agreement’s terms. To determine whether to enforce the
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settlement agreement in this case, the trial court was required to interpret the
language the parties chose to employ in their settlement agreement to determine
whether Monroe satisfied its burden of proving that Plaintiffs breached that
settlement agreement. Specifically, to accomplish that, the trial court interpreted
Paragraphs 5 and 10 of the settlement agreement.
{¶36} We first address Monroe’s argument that Plaintiffs’ late remittance
of the utility bill constituted a breach under Paragraph 5 of the settlement
agreement. Accordingly, we are tasked with reviewing (1) the trial court’s
interpretation of Paragraph 5 of the settlement agreement, (2) the trial court’s
conclusion that Plaintiffs did not breach Paragraph 5 of the settlement agreement,
and (3) the trial court’s decision to grant Plaintiffs’ motion to enforce the
settlement agreement with respect to payment of the utility bill. Because it is a
matter of contract interpretation, we review de novo the trial court’s interpretation
of Paragraph 5 of the settlement agreement. However, we review the trial court’s
conclusion that Plaintiffs did not breach Paragraph 5 of the settlement agreement
under a manifest-weight-of-the-evidence standard because the parties dispute
whether Plaintiffs’ actions were sufficient to comply with Paragraph 5. Because
whether Monroe satisfied its burden of proving that Plaintiffs breached Paragraph
5 of the settlement agreement is dispositive, we need not address the other
elements of breach of a settlement agreement.
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{¶37} Paragraph 5 of the settlement agreement provides, in relevant part,
“5. Payment of Utilities. [Plaintiffs], jointly and severally, promise to pay all
utilities during the Base Possession Period4 * * *.” (Bold and underline sic.)
(May 1, 2012 Tr., Defendant’s Ex. 5).
{¶38} The parties dispute whether Plaintiffs were required to pay the utility
bill by its due date—December 20, 2011. To determine whether Monroe
established that Plaintiffs breached the settlement agreement by not paying the
utility bill on December 20, 2011, the trial court looked to the language the parties
employed in the settlement agreement related to the payment of utilities during the
term of the lease. The trial court concluded that the language in Paragraph 5 of the
settlement agreement is clear and unambiguous. In particular, the trial court noted
that Paragraph 5 of the settlement agreement “provides that the plaintiffs ‘promise
to pay all utilities during’ their possession.” (Doc. No. 49, quoting Settlement
Agreement at Paragraph 5).
{¶39} Based on that language, the trial court concluded, “There is no
requirement that the bills for utilities must be paid by a certain date or within a
certain amount of days after being billed, so the plaintiffs can’t be said to have
failed to perform a specific obligation.” (Id.). Therefore, the trial court concluded
that Plaintiffs did not breach the settlement agreement by paying the utility bill in
February 2012. Specifically, the trial court concluded that the late payment of the
4 “Base Possession Period” refers to Plaintiffs’ “continuing possession” of the premises until November 30, 2011 under the settlement agreement. (May 1, 2012 Tr., Defendant’s Ex. 5).
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bill did not constitute a breach of the settlement agreement because Plaintiffs
substantially performed and there was no requirement in the settlement agreement
that utilities must be paid by a certain time.
{¶40} We conclude that, as the trial court did, Paragraph 5 of the settlement
agreement is clear and unambiguous and required Plaintiffs to pay all utilities.
The settlement agreement does not specify a date for performance and, “[a]s a
general rule, the time for performance is not assumed to be of the essence.”
Nippon Life Ins. Co., 2011-Ohio-2175, at ¶ 23, citing Brown v. Brown, 90 Ohio
App.3d 781, 784 (11th Dist.1993). See also Mays v. Hartman, 81 Ohio App. 408
(1st Dist.1947), paragraph one of the syllabus (“Unless the nature of the contract
makes performance on the exact date of vital importance, or the contract expressly
so provides, failure to perform on the day stated does not discharge the duty of the
other contracting party.”).
{¶41} The trial court’s determination that Plaintiffs did not breach the
settlement agreement under Paragraph 5 is not against the manifest weight of the
evidence. The trial court, which was in the best position to observe the witnesses,
concluded that Myron’s testimony at the evidentiary hearing that Savoy paid the
utility bill as soon as he was aware of it, in addition to a 2.1% late payment,
demonstrated that Plaintiffs performed their obligations regarding the payment of
utilities under Paragraph 5 the settlement agreement. Therefore, because the trial
court’s conclusion that Plaintiffs did not breach Paragraph 5 the settlement
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agreement is supported by some competent, credible evidence and is not against
the manifest weight of the evidence, the trial court did not abuse its discretion in
enforcing the settlement agreement with respect to the payment of the utility bill.
{¶42} We next review Monroe’s argument that Plaintiffs breached the
settlement agreement because they failed to repair and replace items identified by
Monroe after its inspection under Paragraph 10 of the settlement agreement.
Under the settlement agreement, Plaintiffs agreed to vacate the leased premises by
December 1, 2011, and there is no dispute that the Plaintiffs vacated the premises
by that date. (See Doc. No. 47). After Plaintiffs vacated the premises, Monroe
was to inspect the premises, identify any items needing to be repaired or replaced,
and notify Plaintiffs of those items. (Id.). Monroe inspected the premises and
notified Plaintiffs of the items it identified as needing to be repaired or replaced.
(Id.). However, the parties disputed the items identified by Monroe as needing to
be repaired or replaced under Paragraph 10 the settlement agreement, which
included:
1. Replacement of all light fixtures and switches;
2. Reinstallation of the wine display, including glass panels, to
its original condition;
3. Relocation of the bar back to its original location;
4. Replace any hood ventilation units;
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5. Replace any countertops, shelving, cabinetry, casework
shadowboxes, and other similar fixates;
6. Replace any walk-in refrigerator or freezer units;
7. Premises were left in filthy condition and need to be returned
to broom-clean condition;
8. Replace all ceiling tiles which were removed;
9. Replace dishwasher system;
10. Replace tables in bar area and on patio;
11. Broken water line needs to be fixed, as well as resulting water
damage due to broken line being left running;
12. Awnings were removed and need to be replaced;
13. Music System needs to be replaced; and
14. Carpet was removed and needs to be replaced.
(Id.); (May 1, 2015 Tr., Defendant’s Ex. 6).
{¶43} Because the parties disputed whether Plaintiffs’ failure to execute all
of the repairs or replacements identified in Monroe’s inspection list constituted a
breach of Paragraph 10 of the settlement agreement, the trial court concluded:
The nub of the current dispute is the parties’ inability to agree that
the undone items on the inspection list are the plaintiffs’
responsibility, so the motion to enforce the settlement agreement is,
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in essence, a request for declaratory judgment asking the court to
declare the rights and obligations of the parties under the contract.
(Doc. No. 49). Therefore, instead of interpreting Paragraph 10 of the settlement
agreement to determine whether Monroe satisfied its burden of proving that
Plaintiffs breached the settlement agreement, the trial court construed Plaintiffs’
motion to enforce the settlement agreement, with respect to Paragraph 10, as a
motion for declaratory judgment.
{¶44} A complaint seeking relief based on a breach of contract may be
treated as a claim for declaratory judgment seeking construction of the contract.
See Blackwell v. Internatl. Union, United Auto Workers, 9 Ohio App.3d 179 (8th
Dist.1983), paragraph one of the syllabus. See also R.C. 2721.04 (“a contract may
be construed by a declaratory judgment or decree either before or after a breach of
the contract”). An appellate court reviews a trial court’s determination
“concerning the appropriateness of the case for declaratory judgment” under an
abuse-of-discretion standard. See Arnott v. Arnott, 132 Ohio St.3d 401, 2012-
Ohio-3208, ¶ 1. After the trial court determines that a complaint for declaratory
judgment presents a justiciable question, an appellate court reviews de novo purely
legal issues. Id. at ¶ 17.
{¶45} “A declaratory judgment action provides a means by which parties
can eliminate uncertainty regarding their legal rights and obligations.” Mid-Am.
Fire and Cas. Co. v. Heasley, 113 Ohio St.3d 133, 2007-Ohio-1248, ¶ 8. See also
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R.C. 2721.03. “The purpose of a declaratory judgment action is to dispose of
‘uncertain or disputed obligations quickly and conclusively,’ and to achieve that
end, the declaratory judgment statutes are to be construed ‘liberally.’” Mid-Am. at
¶ 8, quoting Ohio Farmers Indemn. Co. v. Chames, 170 Ohio St.3d 209, 213
(1959). However, “the declaratory judgment statutes are not without limitation,”
and a declaratory judgment should be used “only to decide ‘an actual controversy,
the resolution of which will confer certain rights or status upon the litigants.’” Id.,
quoting Corron v. Corron, 40 Ohio St.3d 75, 79 (1980).
{¶46} The trial court did not abuse its discretion by construing Plaintiffs’
motion to enforce the settlement agreement, with respect to Paragraph 10, as a
motion for declaratory judgment because there was a justiciable controversy. That
is, determining the rights and obligations of the parties under the settlement
agreement with respect to the repairs and replacements identified in Monroe’s
inspection list would quickly and conclusively terminate the parties’ dispute
regarding their rights and obligations under Paragraph 10 of the settlement
agreement.
{¶47} Based on that conclusion, we review de novo the interpretation of
Paragraph 10 of the settlement agreement, which is at the heart of the trial court’s
declaration of the parties’ rights and obligations with respect to the repairs and
replacements identified in Monroe’s inspection list. Paragraph 10 of the
settlement agreement provides, in relevant part:
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10. Dismissal of the Lawsuit. Following the termination of
[Plaintiffs’] possession of the Premises. [sic] Monroe [] shall
conduct a physical examination of the Premises to determine items
of required repair or replacement. [Plaintiffs] agree to provide at
their expense all labor and materials necessary to repair or replace
any defective conditions identified in the inspection, excepting
reasonable wear and tear, insured casualty loss or act of god. If
[Plaintiffs] fail or refuse to make any such expenditure or perform
any such repair or replacement, Monroe [] may seek and secure
specific performance through appropriate legal proceeding or may
implement such repair, replacement or remediation for which
[Plaintiffs] agree, jointly and severally, to reimburse Monroe [] for
such costs.
(Bold and underline sic.); (Italics added.) (May 1, 2012 Tr., Defendant’s Ex. 5).
{¶48} Monroe contends that “Paragraph 10 of the [Settlement] Agreement
explicitly provides that Monroe [] alone shall determine what repairs and/or
replacements are necessary, and that [Plaintiffs] agree to make such repairs[.]”
(Doc. No. 37). Plaintiffs alternatively contend that Monroe was “overreaching in
its requested repairs and replacements” identified as defective conditions in its
inspection list. (Doc. No. 44).
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{¶49} In interpreting the rights and obligations of the parties under the
settlement agreement, it appears that the trial court concluded that Paragraph 10 of
the settlement agreement is unclear and ambiguous because the trial court
concluded that it must be interpreted in conjunction with the lease, landlord
agreement, and the landlord rider. In particular, the trial court found that
Monroe’s
interpretation, however, ignores the other written agreements
between the parties, namely the landlord rider and landlord
agreement. [Monroe] was well aware that much of the equipment
and other property the plaintiffs brought to the premises were either
proprietary to The Melting Pot Restaurants, Inc. or collateral of UPS
Business Credit, and there is no evidence that the parties intended to
override [Monroe’s] lien waivers when they agreed to the settlement.
(Doc. No. 49).
{¶50} We conclude that Paragraph 10’s requirement that Plaintiffs
“‘provide at their expense all labor and materials necessary to repair or replace any
defective conditions identified in the inspection’” is unclear, indefinite, and
reasonably subject to dual interpretations. That Paragraph 10’s phrase requiring
Plaintiffs to remedy “any defective conditions” is unclear, indefinite, and
reasonably subject to dual interpretations is highlighted by the parties’ dispute
regarding what items Plaintiffs were required to repair or replace under Monroe’s
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inspection list. See Sandusky v. Erie Cty. Bd. of Comms., 6th Dist. Erie No. E-15-
010, 2015-Ohio-2231, ¶ 20 (concluding that a phrase in the parties’ agreement was
ambiguous because it was reasonably susceptible to dual interpretations); Money
Station, Inc. v. Electronic Payment Serv., Inc., 136 Ohio App.3d 65, 71 (1st
Dist.1999) (holding that the settlement agreement was ambiguous because “the
parties presented arguably supportable, but different, interpretations of the
disputed paragraph”). The interpretations advanced by the parties are
reasonable—namely, although the plain language of the settlement agreement
requires Plaintiffs to remedy all defective conditions, simply because an item is
identified in the inspection list as a defective condition does not automatically
mean that it is defective.
{¶51} Thus, because Paragraph 10 of the settlement agreement is
ambiguous, the parties’ intent relative to what constituted a defective condition
must be ascertained. Because the parties’ intent relative to Paragraph 10 of the
settlement agreement is a question of fact, we will not reverse the trial court’s
interpretation of the parties’ intent so long as its factual determinations are based
on some competent, credible evidence. Am. Servicing Corp., 2014-Ohio-3984, at
¶ 15. We conclude that the trial court’s factual determinations regarding the
parties’ intent as to what defective conditions had to be remedied under Paragraph
10 of the settlement agreement are supported by some competent, credible
evidence.
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{¶52} To explain the intended meaning of Paragraph 10, the parties, as well
as the trial court, resorted to extrinsic evidence. In particular, in the inspection
report that Monroe provided Plaintiffs on December 16, 2011, Monroe relied on
the settlement agreement and the lease agreement in support of its list of defective
conditions that it determined Plaintiffs were required to remedy. (May 1, 2012
Tr., Defendant’s Ex. 6). In their December 19, 2011 response letter to Monroe,
Plaintiffs responded that the defective conditions identified in Monroe’s inspection
report were subject to the landlord agreement and landlord rider. (May 1, 2012
Tr., Defendant’s Ex. 7). Accordingly, the trial court took “into account whether
the various items [Monroe] wants to be returned or replaced [were] [Monroe’s]
property under section 6(b) of the lease or were exempted from that section by the
landlord rider or landlord agreement.” (Doc. No. 49).
With regard to the landlord agreement, the trial court found:
Monroe agreed to the landlord agreement knowing that it was
insisted upon by Savoy’s lender, UPS Capital Business Credit. The
agreement describes UPS’s collateral for the loan to Savoy as ‘all
property’ subject to a security agreement between Savoy and UPS,
including ‘all furniture, removable trade fixtures, removable kitchen
equipment, dining tables and booths’ and all substitutions for any
such equipment. By the agreement, Monroe acknowledged that the
collateral ‘shall be deemed to be personal property of [Savoy] and
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not a fixture or part of the Premises’ and agreed to waive any right it
might otherwise have as to any of the collateral.
(Footnotes omitted.) (Doc. No. 49, quoting May 1, 2012 Tr., Plaintiffs’ Ex. B).
And, with respect to the landlord rider, the trial court found:
Monroe agreed to the landlord rider knowing that it was insisted
upon by Savoy’s franchisor, The Melting Pot Restaurants, Inc. By
the rider, at paragraph number 6, Monroe agreed to waive ‘lien
rights for’ 15 categories of Melting Pot equipment or fixtures listed
in sub-paragraphs 6(a) through 6(o). [Myron] summarized this list
as items that are ‘proprietary’ to The Melting Pot, many of which
bore a Melting Pot logo.
(Footnote omitted.) (Id., quoting May 1, 2012 Tr., Plaintiffs’ Ex. A).
{¶53} The trial court individually analyzed Monroe’s requested repairs and
replacements and determined whether Plaintiffs were required to execute that
repair or replacement under Paragraph 10 of the settlement agreement.
Specifically, the trial court addressed in detail each of the 14 items requested to be
repaired or replaced against the lease agreement, landlord agreement, and landlord
rider, and ordered Plaintiffs to effect the repairs or replacements required by the
lease agreement and settlement agreement that were not completed or restricted by
the landlord agreement or landlord rider.
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{¶54} In particular, the trial court concluded that Plaintiffs did not need to
repair or replace items 5, 6,5 9, and 10 as requested by Monroe because they were
exempted by the landlord agreement or landlord rider. (Doc. No. 49). The trial
court concluded that evidence was presented at the evidentiary hearing that
Plaintiffs completed items 2, 3, and 4 of Monroe’s inspection list and that there
was insufficient evidence presented that Plaintiffs needed to complete items 8 and
11. (Id.). The trial court ordered Plaintiffs to repair or replace the light switches
as indicated by item 1 of Monroe’s inspection list as well as items 12 and 13, and
Plaintiffs conceded that they would replace the light fixtures in the “lovers’ lane”
portion of the leased premises. (Id.). Finally, the trial court ordered Plaintiffs to
clean the premises and described the cleaning that should be accomplished. (Id.).
{¶55} The landlord agreement was executed between Monroe and
Plaintiffs’ lender, UPS Capital Business Credit, in relation to the lease executed
between Plaintiffs and Monroe. (May 1, 2012 Tr., Plaintiffs’ Ex. B). The landlord
agreement states that it covers, in part,
all property (the “Collateral”) which is subject to the Security
Agreement between [Plaintiffs] and the Lender including but not
limited to all furniture, removable trade fixtures, removable kitchen
equipment, dining tables and booths (including fondue cooking
equipment) located in the Premises, as well as all substitutions,
5 While the trial court concluded that Plaintiffs did not need to repair or replace the walk-in refrigerator or freezer unit, it ordered Plaintiffs to fully remove the remaining portions of the unit. (Doc. No. 49).
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accessions, replacements thereto that is [sic] now owned or hereafter
acquired by [Plaintiffs.] * * * But for purposes of this Agreement,
the term Collateral does not include any item of personal property
that is now or hereafter permanently affixed to the Premises; or if
[Plaintiffs] removes from the Premises any trade fixture or
equipment owned by [Monroe] that are identified on Schedules A
through G attached hereto as “on premises” and replaces that
removed fixture or equipment “the replacement fixture or
equipment”; any components of HVAC, plumbing and similar
systems now or hereafter serving the Premises. * * *
[Monroe] and Lender hereby covenant and agree as follows:
2. [Monroe] consents to the location of the Collateral at the
Premises and acknowledges that, at all times, the Collateral shall be
deemed to be personal property of [Plaintiffs] and not a fixture or
part of the Premises;
3. [Monroe] hereby subordinates, waives and releases any claim,
right, title or lien in the Collateral, which Landlord now has or may
hereafter acquire, either by statute, agreement or otherwise;
***
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6. Subject to the rights of The Melting Pot Restaurants, Inc.,
[Monroe] consents to an assignment of the Lease by [Plaintiffs] to
Lender * * *.
(Id.)
{¶56} The landlord rider, which was executed simultaneously with the
lease, was executed by Plaintiffs and Monroe and describes the rights of the
franchisor, The Melting Pot Restaurants, Inc., under the lease between Plaintiffs
and Monroe. (May 1, 2012 Tr., Plaintiffs’ Ex. A). In particular, it states,
By entering into a franchise relationship with the Franchisor,
[Plaintiffs] has [sic] agreed to grant the Franchisor a security interest
in the Lease, all of the furniture, removable trade fixtures, kitchen
equipment dining tables and booths (including fondue cooking
equipment), lamps and lighting fixtures, inventory, licenses and
supplies located in the Premises as collateral for: (a) the payment of
any obligation, liability or other amount owed by the Tenant or its
affiliates to [Monroe] arising under the Lease; (b) any default or
breach of any of the terms and provisions of the Lease; and (c) for
any default or breach of any of the terms and provisions of the
Franchise License with the Franchise License. * * *
6. Waiver of Landlord’s Lien. [Monroe] waives lien rights for the
following items to the Franchisor:
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(a) Bottle Light Fixtures – Either wall mounted, inset or hanging.
(j) Signage – Any type of signage, interior or exterior, bearing in
any form The Melting Pot® logo, name or insignia.
(k) Branded Items, Menus and Point of Sale Materials – Any
item bearing in any form The Melting Pot® logo, name or insignia,
including: Dinner, Dessert and Souvenir Menus, wine lists; table
tent; check presenters; matches; napkins; glassware; welcome mats;
mints; sugar packets, etc.
9. Amendment. [Monroe] and [Plaintiffs] will not cancel,
terminate, modify or amend the Lease including, without limitation,
Franchisor’s rights under this Rider, without the Franchisor’s prior
written consent * * *.
(Emphasis sic.) (Id.).
{¶57} At the evidentiary hearing, Myron testified about the items Monroe
identified as needing repaired or replaced in its inspection list. (See Doc. No. 49 at
4). Myron testified that items 2, 3, 4, and 8 of Monroe’s inspection list were
completed. (May 1, 2012 Tr. at 100). With regard to the ceiling tiles, Myron
testified that “any ceiling tiles that were removed, they were replaced.” (Id. at 64).
Myron testified that he was unaware of a broken water line as alleged by Monroe
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under item 11. (Id. at 53, 55-56, 65, 101, 131, 135). He also testified that no
countertops were removed as indicated by item 5. (Id. at 57, 101, 132)
{¶58} Myron conceded that Plaintiffs would replace the light fixtures in
“lover’s lane.” (Id.). He further conceded that Plaintiffs would repair or replace
light switches identified in item 1 so long as “they are not propriety in nature.”
(Id. at 128-129). In regard to the carpet identified in item 14, Myron testified that
Plaintiffs did not remove any carpet, but conceded that “[i]f there was an area
under a table that needed to have a patch or something put down to get this case
resolved, [Plaintiffs] were willing to do that.” (Id. at 71, 102). Lastly, Myron
conceded that Plaintiffs needed to clean the premises as indicated in item 7. (Id. at
64, 100, 128).
{¶59} Myron’s testimony also highlighted that items 6, 9, 10, 12, and 13
were exempted by the landlord agreement or the landlord rider. (Id. at 61-62, 64-
66, 69, 102-104, 132). However, Myron acknowledged that, although Plaintiffs
removed the walls, the door, and the ceiling of the walk-in refrigerator, the bottom
portion of the walk-in refrigerator identified in item 6 remained at the premises.
(Id. at 61). Myron also acknowledged that items, including green and white
awnings and a music system, from previous tenants were discarded. (Id. at 67-69).
{¶60} Monroe did not provide any testimony at the evidentiary hearing.
Instead, Monroe submitted photographic evidence depicting the condition of the
premises. (See May 1, 2012 Tr., Defendant’s Exs. 10-25).
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{¶61} Therefore, these facts and circumstances constitute some competent,
credible evidence regarding the parties’ intent as to what defective conditions were
required to be remedied by Plaintiffs under Paragraph 10 of the settlement
{¶62} Nevertheless, Monroe maintains that the trial court abused its
discretion by enforcing the settlement agreement after concluding that Monroe did
not satisfy its burden of proving that Plaintiffs breached Paragraph 10 of the
settlement agreement. It is undisputed that Plaintiffs completed the items that the
trial court ordered it to repair or replace. (Appellant’s Brief at 21); (Appellee’s
Brief at 4); (Doc. No. 66). Because it is undisputed that Plaintiffs complied with
the terms of Paragraph 10, Plaintiffs as a matter of law did not breach Paragraph
10 of the settlement agreement. Because Plaintiffs did not breach Paragraph 10 of
the settlement agreement as a matter of law, we need not address the other
elements of breach of a settlement agreement. Thus, the trial court did not abuse
its discretion in enforcing the settlement agreement with respect to Plaintiffs’
actions under Paragraph 10.
{¶63} Therefore, because Monroe did not satisfy its burden of proving that
Plaintiffs breached Paragraphs 5 and 10 of the settlement agreement, the trial court
did not abuse its discretion by granting Plaintiffs motion to enforce the settlement
agreement. Monroe’s first assignment of error is overruled.
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{¶64} In its third assignment of error, Monroe argues that the trial court
erred by denying its motion to enforce the settlement agreement and mutual
release. Although the caption of Monroe’s third assignment of error states that it
is assigning as error the trial court’s denial of Monroe’s motion to enforce the
settlement agreement and mutual release, Monroe is essentially arguing that, based
on the arguments presented in its brief, the trial court erred in ordering it to return
Plaintiffs’ security deposit after erroneously interpreting the settlement agreement
and erroneously concluding that Plaintiffs did not breach the settlement
agreement. Specifically, Monroe argues that the mutual release, which is attached
to the settlement agreement, releases Monroe from any claims not asserted by
Plaintiffs—namely, that the mutual release extinguishes Plaintiffs’ claim to the
security deposit. As such, we will address whether the trial court erred in ordering
Monroe to return Plaintiffs’ security deposit in light of the mutual release.
{¶65} Based on our holding in Monroe’s first assignment of error, we need
to address only whether, in light of the mutual release, the trial court erred in
ordering Monroe to return Plaintiffs’ security deposit, which, as a matter of
contract interpretation, we review de novo.
{¶66} We conclude that the trial court did not err in ordering Monroe to
return Plaintiffs’ security deposit based on the clear and unambiguous language of
the settlement agreement with respect to the mutual release. In particular, the
settlement agreement states, with respect to the mutual release, “Simultaneously
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with the execution of the Stipulation of Dismissal With Prejudice, the Parties shall
execute a Mutual Release, in the form attached as Exhibit B.” (See May 1, 2012
Tr., Defendant’s Ex. 5). The language of the settlement agreement with respect to
the mutual release clearly and unambiguously states that the mutual release will be
executed simultaneously with the “Stipulation of Dismissal With Prejudice.”
There is no evidence in the record that the parties executed the “Stipulation of
Dismissal With Prejudice” or the mutual release. “[C]ourts will give effect to the
manifest intent of the parties where there is clear evidence demonstrating that the
parties did not intend to be bound by the terms of an agreement until formalized in
a written document and signed by both.’” Artisan Mechanical, Inc. v. Beiser, 12th
Dist. Butler No. CA2010-02-039, 2010-Ohio-5427, ¶ 33, quoting Richard A.
Berjian, D.O., Inc. v. Ohio Bell Tel. Co., 54 Oho St.2d 147, 151-152 (1978).
Therefore, since there is clear evidence that the parties did not intend to be bound
by the mutual release until they executed the “Stipulation of Dismissal With
Prejudice,” the trial court did not err in ordering Monroe to return Plaintiffs’
security deposit. As such, the trial court did not err by denying Monroe’s motion
to enforce the settlement agreement. Monroe’s third assignment of error is
overruled.
Assignment of Error No. II
The Trial Court Erred When It Denied Appellant’s Motion for Attorney Fees.
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{¶67} In its second assignment of error, Monroe argues that the trial court
erred when it denied its motion for attorney fees stemming from Plaintiffs’ breach
of the settlement agreement. Specifically, Monroe argues that it is entitled to
$19,740.00 in attorney fees it incurred from Plaintiffs’ failure to comply with their
obligations under the settlement agreement.
{¶68} “The decision to award attorney fees and the amount thereof are
within the discretion of the trial court.” Technical Constr. Specialties, Inc. v. New
Era Builders, Inc., 9th Dist. Summit No. 25776, 2012-Ohio-1328, ¶ 26, citing
Cassaro v. Cassaro, 50 Ohio App.2d 368, 373-374 (8th Dist.1976). See also
Raymond J. Schaefer, Inc., 2010-Ohio-4714, at ¶ 34 (“the trial court’s decision to
award attorney fees should not be reversed absent an abuse of discretion”), citing
Brittner v. Tri-County Toyota, Inc., 58 Ohio St.3d 143, 146 (1991).
{¶69} “Attorney fees are generally not recoverable in contract actions.”
Technical Constr. Specialties, Inc. at ¶ 26, citing First Bank of Marietta v. L.C.
Ltd., 10th Dist. Franklin No. 99AP-304, 1999 WL 1262058, *8 (Dec. 28, 1999).
“Such a principle comports with the ‘American Rule’ that requires each party
involved in litigation to pay its own attorney fees in most circumstances.” Id.,
citing Sorin v. Bd. of Edn., 46 Ohio St.2d 177, 179 (1976). “As exceptions to that
rule, recovery of attorney fees may be permitted if (1) a statute creates a duty to
pay fees, (2) the losing party has acted in bad faith, or (3) the parties contract to
shift fees.” Id., citing McConnell v. Hunt Sports Ents., 132 Ohio App.3d 657, 699
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(10th Dist.1999), citing Pegan v. Crawmer, 79 Ohio St.3d 155, 156 (1997). “[A]
party may receive attorney fees resulting from the other party’s breach of the
settlement agreement as a form of compensatory damages.” Raymond J. Schaefer,
Inc. at ¶ 34, citing Tejada-Hercules v. State Auto. Ins. Co., 10th Dist. Franklin No.
08AP-150, 2008-Ohio-5066, ¶ 10 and Shanker v. Columbus Warehouse Ltd.
Partnership, 10th Dist. Franklin No. 96APE09-1269, 1997 WL 142723 (Mar. 31,
1997).
{¶70} Because we determined in Monroe’s first assignment of error that the
trial court did not err in concluding that Plaintiffs did not breach the settlement
agreement, no exceptions to the American rule permitting the recovery of attorney
fees apply. Therefore, the trial court did not abuse its discretion by denying
Monroe’s motion for attorney fees. Monroe’s second assignment of error is
{¶71} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
SHAW and WILLAMOWSKI, J.J., concur.
/hlo
Judges Stephen R. Shaw, Vernon L. Preston and John R. Willamowski from the Third District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.
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