[Cite as Sturgill v. JP Morgan Chase Bank, 2013-Ohio-688.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY
DENVER G. STURGILL, : : Plaintiff-Appellant, : Case No. 12CA8 : vs. : : DECISION AND JUDGMENT JP MORGAN CHASE & CO. : ENTRY : Defendant-Appellee. : Released: 02/19/13 _____________________________________________________________ APPEARANCES:
Denver Golden Sturgill, Garrison, Kentucky, Appellant, pro se.
James C. Carpenter and Vincent I. Holzhall, Steptoe & Johnson, PLLC, Columbus, Ohio, for Appellee. _____________________________________________________________
McFarland, P.J.
{¶1} This is an appeal from a Hocking County Court of Common
Pleas judgment entry upholding a settlement agreement between Appellant,
Denver Sturgill, and Appellee, JPMorgan Chase Bank, and dismissing
Appellant’s complaint with prejudice. On appeal, Appellant contends that 1)
the trial court erred as a matter of law in concluding that a settlement had
been reached among the parties; and 2) the trial court erred as a matter of
law in considering the August 5, 2010, agreement without allowing any
discussion about the agreement at issue, which Appellant contends provided Hocking App. No. 12CA8 2
for a cooling off period during which consent to settlement could be
withdrawn. In light of our determination that Appellant’s cashing of the
settlement check forfeited his right to appeal and has rendered the issues
raised herein moot, we dismiss Appellant’s appeal.
FACTS
{¶2} Appellant filed a pro se complaint on May 4, 2009, against
Appellee alleging that it improperly paid several checks Appellant claimed
had been forged. The trial court referred the matter to civil mediation. At
the end of mediation, which was held on August 5, 2010, the parties
executed a handwritten settlement agreement, which essentially provided
that Appellant would accept the payment of $8,300.00 as full settlement;
however, Appellant later questioned the existence and enforceability of the
settlement agreement and refused to sign a release.
{¶3} The trial court held a hearing on September 24, 2010, regarding
whether the agreement was enforceable and concluded it was. That same
day, the trial court issued a judgment entry finding the parties agreed to
settle all claims on the terms set forth in the handwritten settlement
agreement and therefore upheld the August 5, 2010, settlement agreement,
finding it to be valid and binding on all parties, and dismissed the matter Hocking App. No. 12CA8 3
with prejudice. Specifically, the trial court’s judgment entry included the
following language:
“All claims in this matter having been resolved by said
settlement agreement of the parties, this matter is hereby
dismissed with prejudice upon payment of the settlement
amount;1 each party to bear their own costs. This Order is a
final order. The clerk of courts should designate this case as
terminated.”
Further, the entry bears a stamp indicating it was a final, appealable order.
{¶4} Appellant filed a notice of appeal from the September 24, 2010,
judgment entry; however upon motion of Appellee, this Court dismissed
Appellant’s original appeal for lack of a final, appealable order. In reaching
this decision, we determined that because the judgment entry anticipated
further action from Appellee – the payment of the settlement amount – the
entry appealed from was not a final, appealable order, relying on Colbert v.
Realty X Corp., 8th Dist. No. 86151, 2005-Ohio-6726, in support.
{¶5} After accepting delivery of the settlement check on February
15, 2011,2 Appellant filed a second notice of appeal on March 8, 2011.
1 The italicized phrase was handwritten into the judgment entry and initialed by the judge. 2 The copy of the check contained in the record bears an issue date of September 24, 2010. The record further indicates that the check was not mailed to Appellant because Appellant requested he be able to pick the check up from Appellee’s counsel’s office. Appellee failed to pick the check up but apparently finally Hocking App. No. 12CA8 4
However, this Court once again dismissed Appellant’s appeal for lack of a
final, appealable order, based upon our reasoning that the judgment entry
expressly required the parties to refer to another document, namely the
August 5, 2010, settlement agreement itself, to determine their respective
rights and obligations. After that dismissal, the trial court held a status
conference and on May 15 2012, filed a Final Judgment Entry which found
that the parties’ August 5, 2010, settlement agreement was valid and
binding.
{¶6} The entry further found that Appellant had agreed to settle and
release all claims against Appellee in exchange for the agreed upon
settlement amount of $8,300.00, that Appellee had delivered to Appellant its
settlement check in that amount, that Appellee had received the check and
further cashed the check, and that as such, the August 5, 2010, settlement
agreement had been fully completed. Based upon these findings, the trial
court dismissed Appellant’s complaint with prejudice, concluded its order
was final, and stated that there was no just cause for delay in entering final
judgment. It is from this final judgment entry that Appellant now brings his
current appeal, assigning the following errors for our review.
agreed to accept the check by mail in February. Our record on appeal further contains a “NOTICE OF FILING OF AN UNCASHED CHECK ISSUED BY CHASE BANK TO DENVER G. STURGILL” filed on March 11, 2011, which indicates that Appellant had received the check and it was being held in escrow pending resolution of the appeal. Hocking App. No. 12CA8 5
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN CONCLUDING THAT A SETTLEMENT HAD BEEN REACHED AMONG THE PARTIES.
II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN CONSIDERING THE MARCH 5, 2010 [SIC] AGREEMENT WITHOUT ALLOWING ANY DISCUSSION ABOUT THE AGREEMENT AT ISSUE PROVIDED FOR [SIC] A COOLING OFF PERIOD DURING WHICH CONSENT TO A SETTLEMENT CAN BE WITHDRAWN.”
LEGAL ANALYSIS
{¶7} Before we reach the merits of Appellant’s assignments of error,
we must address an initial, threshold procedural matter. As set forth above,
Appellant has filed several appeals in this matter. In our first consideration
of this matter, we dismissed Appellant’s appeal for lack of a final,
appealable order based upon the fact that the settlement amount had not been
paid, payment of which was a condition precedent according to the express
terms of the judgment entry, to the entry becoming final and appealable. In
dismissing the prior appeal we recognized that Appellant was “in a difficult
position[,]” citing Horen v. Summit Homes, 6th Dist. No. WD-04-001, 2004-
Ohio-2218, which reasoned that a party forfeits his right to appeal when he
accepts payment of a judgment amount, and specifically by accepting and
cashing a check from the opposing party. Hocking App. No. 12CA8 6
{¶8} As such, in dismissing the appeal, we noted that Appellant had
three options which would allow him to both finalize the dismissal and
pursue an appeal, without rendering his appeal moot. Specifically, we stated
as follows:
“First, Mr. Sturgill can file a motion with the trial court asking
it to reconsider its entry and instead enter judgment in his favor
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[Cite as Sturgill v. JP Morgan Chase Bank, 2013-Ohio-688.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY
DENVER G. STURGILL, : : Plaintiff-Appellant, : Case No. 12CA8 : vs. : : DECISION AND JUDGMENT JP MORGAN CHASE & CO. : ENTRY : Defendant-Appellee. : Released: 02/19/13 _____________________________________________________________ APPEARANCES:
Denver Golden Sturgill, Garrison, Kentucky, Appellant, pro se.
James C. Carpenter and Vincent I. Holzhall, Steptoe & Johnson, PLLC, Columbus, Ohio, for Appellee. _____________________________________________________________
McFarland, P.J.
{¶1} This is an appeal from a Hocking County Court of Common
Pleas judgment entry upholding a settlement agreement between Appellant,
Denver Sturgill, and Appellee, JPMorgan Chase Bank, and dismissing
Appellant’s complaint with prejudice. On appeal, Appellant contends that 1)
the trial court erred as a matter of law in concluding that a settlement had
been reached among the parties; and 2) the trial court erred as a matter of
law in considering the August 5, 2010, agreement without allowing any
discussion about the agreement at issue, which Appellant contends provided Hocking App. No. 12CA8 2
for a cooling off period during which consent to settlement could be
withdrawn. In light of our determination that Appellant’s cashing of the
settlement check forfeited his right to appeal and has rendered the issues
raised herein moot, we dismiss Appellant’s appeal.
FACTS
{¶2} Appellant filed a pro se complaint on May 4, 2009, against
Appellee alleging that it improperly paid several checks Appellant claimed
had been forged. The trial court referred the matter to civil mediation. At
the end of mediation, which was held on August 5, 2010, the parties
executed a handwritten settlement agreement, which essentially provided
that Appellant would accept the payment of $8,300.00 as full settlement;
however, Appellant later questioned the existence and enforceability of the
settlement agreement and refused to sign a release.
{¶3} The trial court held a hearing on September 24, 2010, regarding
whether the agreement was enforceable and concluded it was. That same
day, the trial court issued a judgment entry finding the parties agreed to
settle all claims on the terms set forth in the handwritten settlement
agreement and therefore upheld the August 5, 2010, settlement agreement,
finding it to be valid and binding on all parties, and dismissed the matter Hocking App. No. 12CA8 3
with prejudice. Specifically, the trial court’s judgment entry included the
following language:
“All claims in this matter having been resolved by said
settlement agreement of the parties, this matter is hereby
dismissed with prejudice upon payment of the settlement
amount;1 each party to bear their own costs. This Order is a
final order. The clerk of courts should designate this case as
terminated.”
Further, the entry bears a stamp indicating it was a final, appealable order.
{¶4} Appellant filed a notice of appeal from the September 24, 2010,
judgment entry; however upon motion of Appellee, this Court dismissed
Appellant’s original appeal for lack of a final, appealable order. In reaching
this decision, we determined that because the judgment entry anticipated
further action from Appellee – the payment of the settlement amount – the
entry appealed from was not a final, appealable order, relying on Colbert v.
Realty X Corp., 8th Dist. No. 86151, 2005-Ohio-6726, in support.
{¶5} After accepting delivery of the settlement check on February
15, 2011,2 Appellant filed a second notice of appeal on March 8, 2011.
1 The italicized phrase was handwritten into the judgment entry and initialed by the judge. 2 The copy of the check contained in the record bears an issue date of September 24, 2010. The record further indicates that the check was not mailed to Appellant because Appellant requested he be able to pick the check up from Appellee’s counsel’s office. Appellee failed to pick the check up but apparently finally Hocking App. No. 12CA8 4
However, this Court once again dismissed Appellant’s appeal for lack of a
final, appealable order, based upon our reasoning that the judgment entry
expressly required the parties to refer to another document, namely the
August 5, 2010, settlement agreement itself, to determine their respective
rights and obligations. After that dismissal, the trial court held a status
conference and on May 15 2012, filed a Final Judgment Entry which found
that the parties’ August 5, 2010, settlement agreement was valid and
binding.
{¶6} The entry further found that Appellant had agreed to settle and
release all claims against Appellee in exchange for the agreed upon
settlement amount of $8,300.00, that Appellee had delivered to Appellant its
settlement check in that amount, that Appellee had received the check and
further cashed the check, and that as such, the August 5, 2010, settlement
agreement had been fully completed. Based upon these findings, the trial
court dismissed Appellant’s complaint with prejudice, concluded its order
was final, and stated that there was no just cause for delay in entering final
judgment. It is from this final judgment entry that Appellant now brings his
current appeal, assigning the following errors for our review.
agreed to accept the check by mail in February. Our record on appeal further contains a “NOTICE OF FILING OF AN UNCASHED CHECK ISSUED BY CHASE BANK TO DENVER G. STURGILL” filed on March 11, 2011, which indicates that Appellant had received the check and it was being held in escrow pending resolution of the appeal. Hocking App. No. 12CA8 5
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN CONCLUDING THAT A SETTLEMENT HAD BEEN REACHED AMONG THE PARTIES.
II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN CONSIDERING THE MARCH 5, 2010 [SIC] AGREEMENT WITHOUT ALLOWING ANY DISCUSSION ABOUT THE AGREEMENT AT ISSUE PROVIDED FOR [SIC] A COOLING OFF PERIOD DURING WHICH CONSENT TO A SETTLEMENT CAN BE WITHDRAWN.”
LEGAL ANALYSIS
{¶7} Before we reach the merits of Appellant’s assignments of error,
we must address an initial, threshold procedural matter. As set forth above,
Appellant has filed several appeals in this matter. In our first consideration
of this matter, we dismissed Appellant’s appeal for lack of a final,
appealable order based upon the fact that the settlement amount had not been
paid, payment of which was a condition precedent according to the express
terms of the judgment entry, to the entry becoming final and appealable. In
dismissing the prior appeal we recognized that Appellant was “in a difficult
position[,]” citing Horen v. Summit Homes, 6th Dist. No. WD-04-001, 2004-
Ohio-2218, which reasoned that a party forfeits his right to appeal when he
accepts payment of a judgment amount, and specifically by accepting and
cashing a check from the opposing party. Hocking App. No. 12CA8 6
{¶8} As such, in dismissing the appeal, we noted that Appellant had
three options which would allow him to both finalize the dismissal and
pursue an appeal, without rendering his appeal moot. Specifically, we stated
as follows:
“First, Mr. Sturgill can file a motion with the trial court asking
it to reconsider its entry and instead enter judgment in his favor
in the amount of the settlement rather than requiring that the
Bank pay the settlement amount to him before the case is
dismissed. Second, Mr. Sturgill can accept but not cash the
check from the Bank. And third, Mr. Sturgill can find an
escrow agent to hold the money until an appeal is concluded.”
(Emphasis added).
{¶9} However, a review of the trial court’s judgment entry dated
May 15, 2012, states that it was admitted and undisputed that, after receiving
the settlement check, Appellant cashed the check and subsequently spent the
settlement proceeds. In his appellate brief, Appellant clearly states that he
has cashed the check. Appellant contends, however, that he cashed the
$8,300.00 check from Appellee “under the on going [sic] reservation and
without prejudice to Appellant’s rights * * *.” Appellant further argues that
“[s]ince there was never a meeting of the minds and no agreement, the check Hocking App. No. 12CA8 7
$8,300.00. [sic] acted as merely a partial payment and this Appellant seeks
to recover the balance from the Appellee, JPMorgan Chase Bank.”
{¶10} In Horen v. Summit Homes, supra, at ¶ 41, Horen “accepted
payment of the entire judgment [$5,000.00] and also appealed from that
judgment, contending that the judgment was too low.” Summit Homes
argued that the case was moot because the judgment had been paid. Based
upon these facts, the Sixth District Court of Appeals found “that by cashing
the check for $5,000 the Horens forfeited their right to appeal the judgment.”
See also, Blodgett v. Blodgett, 49 Ohio St.3d 243, 551 N.E.2d 1249 (1990)
(finding wife’s appeal was moot as a result of her accepting payment of the
judgment amount); Lynch v. Bd. of Educ., 116 Ohio St. 361, 156 N.E. 188 at
paragraph three of the syllabus (1927) (“Where the court rendering judgment
has jurisdiction of the subject-matter of the action and of the parties, and
fraud has not intervened, and the judgment is voluntarily paid and satisfied,
such payment puts an end to the controversy, and takes away from the
defendant the right to appeal or prosecute error or even to move for vacation
of judgment.”). We find the reasoning of Horen, Blodgett and Lynch to be
persuasive and therefore find that Appellant’s cashing of the settlement
check in the amount of $8,300.00, which represents the full amount of the Hocking App. No. 12CA8 8
judgment, caused him to forfeit his right to appeal, thereby rendering his
appeal moot.
{¶11} However, Appellant seems to also argue that he cashed the
check under protest, or under a reservation of rights, and therefore is
permitted to pursue his appeal. This issue was also addressed in Horen at ¶
48 where the Horens claimed that because they signed the check at issue
under protest, there was no accord and satisfaction and “they retained their
right to challenge the amount of the judgment on appeal.” In response to
this argument, the Horen court reasoned that accord and satisfaction “is
applicable only when there is a disagreement as to the amount owed,” and
stated that the case did not involve such a situation in light of the fact that
the amount to be paid to satisfy the judgment was $5,000 and there was no
dispute about that. Id. at ¶ 50. In reaching its decision, the court further
reasoned as follows:
“The Horens' notation that the check was cashed “under
protest” does not help them because all discussion of R.C.
1301.133 is irrelevant. Summit Homes wrote the check to
satisfy the judgment and not to settle a dispute over what the
Horens believe the judgment should have been. Pursuant to
3 We note that R.C. 1301.13 was amended and recodified as R.C. 1301.308 as of June 29, 2011. Hocking App. No. 12CA8 9
R.C. 1301.13, an “under protest” notation means that the
creditor understands that the debtor is tendering the check as
payment in full of a disputed debt, and that in cashing the check
the creditor is reserving the right to collect further amounts it
asserts are due. However, the entire amount of the judgment is
$5,000; the Horens may dispute that the judgment is fair or
lawful, but they cannot assert that the judgment is greater than
$5,000. Voluntary payment and voluntary acceptance of
payment of the entire judgment is the only thing needed to make
the appeal moot pursuant to Blodgett, supra.” Id. at ¶ 51.
{¶12} As in Horen, the amount owed is the undisputed amount of the
judgment, which in the case sub judice was $8,300.00. Though Appellant
might disagree that this amount was fair, he cannot assert that the judgment
was greater than $8,300.00. Likewise, his voluntary acceptance of the
payment of the entire judgment, and specifically his act of cashing the
check, rather than placing it in escrow, has rendered his appeal moot.
Accordingly, the appeal is dismissed.
APPEAL DISMISSED. Hocking App. No. 12CA8 10
JUDGMENT ENTRY
It is ordered that the APPEAL BE DISMISSED. Costs herein are assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Hocking County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Harsha, J: Concurs in Judgment and Opinion. Abele, J.: Concurs in Judgment Only.
For the Court,
BY: ____________________ Matthew W. McFarland Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.