[Cite as Chase Home Fin., L.L.C. v. Keys, 2014-Ohio-2639.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 99920



                       CHASE HOME FINANCE, L.L.C.
                                                             PLAINTIFF-APPELLEE

                                                    vs.

      MICHELLE KEYS, INDIVIDUALLY, ETC., ET AL.
                                                             DEFENDANTS-APPELLANTS




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-10-737885


        BEFORE: E.T. Gallagher, J., Rocco, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: June 19, 2014
ATTORNEYS FOR APPELLANT

Christina E. Niro
David A. Schaefer
McCarthy, Lebit, Crystal & Liffman, Co., L.P.A.
101 West Prospect Avenue, Suite 1800
Cleveland, Ohio 44115


ATTORNEYS FOR APPELLEE

Miranda S. Hamrick
Stacy L. Hart
Lerner, Sampson & Rothfuss
P.O. Box 5480
Cincinnati, Ohio 45201
EILEEN T. GALLAGHER, J.:

       {¶1} Defendant-appellant, Michelle Keys (“Keys”), individually and as

administrator of the Estate of Dolores Thomas, appeals the denial of a motion to enforce a

settlement agreement against plaintiff-appellee, Chase Home Finance, L.L.C. (“Chase”).

We find merit to the appeal, reverse the trial court judgment, and remand the case to the

trial court to hold an evidentiary hearing.

       {¶2} In May 2008, Chase filed two foreclosure complaints against Dolores

Thomas (“Thomas”). One complaint sought foreclosure on a home in East Cleveland.

The other sought foreclosure of a home in Cleveland Heights. Following mediation, the

parties entered into a forbearance agreement, and the court dismissed the cases without

prejudice pursuant to its standing case management directive of February 2010. The

forbearance agreement required Thomas to complete a four-month payment schedule and

to provide updated financial documents to Chase for purposes of approving a permanent

loan modification. As part of the agreement, Thomas agreed to grant Chase a deed in

lieu of foreclosure on the East Cleveland home.

       {¶3} Thomas passed away during the forbearance period, and Chase was unable to

approve the permanent loan modification.          In September 2010, Chase refiled its

complaint for foreclosure against Keys, individually and as administrator of Thomas’s

estate. This case was assigned case number CV-10-737885. In June 2011, the parties

entered into another forbearance agreement in which Keys agreed to make five-monthly
payments of $385 by the first of every month for five months, and Chase agreed to refrain

from prosecuting its foreclosure action against Keys.        Accordingly, the trial court

dismissed CV-10-737885, without prejudice, pursuant to the court’s standing case

management directive because the parties had reached an agreement.

       {¶4} Several days after the court dismissed the case, it journalized an entry stating

that Keys had not obtained service of her counterclaim on Chase and ordered Keys to file

a notice of intent to proceed or her counterclaim would be dismissed on August 5, 2011.

On July 26, 2011, Keys dismissed her counterclaim without prejudice pursuant to the

court’s order and because the parties had reached an agreement.

       {¶5} The forbearance plan failed. Each side accused the other of breaching the

agreement, and Chase’s successor-in-interest, Federal Mortgage Association (“Fannie

Mae”) filed a third foreclosure complaint against Keys in CV-12-781125. Keys filed a

motion to enforce the parties’ settlement agreement in both CV-10-737885 and

CV-12-781125 because each side accused the other of breaching the agreement. Keys

also filed a counterclaim in CV-12-781125, alleging breach of the parties’ June 2011

contract to settle the litigation.

       {¶6} On April 11, 2013, the court in CV-12-781125 denied Keys’s motion to

enforce the settlement agreement, holding that the court in CV-10-737885, retained

jurisdiction. However, on April 24, 2013, the court in CV-10-737885 denied the motion.

 Keys now appeals and raises two assignment of error.

                                     Standard of Review
       {¶7} The standard of review to be applied to a ruling on a motion to enforce a

settlement agreement depends primarily on the question presented. If the question is an

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

evidence to support such finding. Chirchiglia v. Ohio Bur. of Workers’ Comp., 138 Ohio

App.3d 676, 679, 742 N.E.2d 180 (7th Dist.2000). If the dispute is a question of law, an

appellate court must review the decision de novo to determine if the trial court’s decision

whether or not to enforce the settlement agreement is based upon an erroneous standard

or a misconstruction of the law. Continental W. Condo. Owners Assn. v. Howard E.

Ferguson, Inc., 74 Ohio St.3d 501, 502, 660 N.E.2d 431 (1996).

                                   Evidentiary Hearing

       {¶8} We find the second assignment of error dispositive of this appeal. In the

second assignment of error, Keys argues the trial court in CV-10-737885 erred as a matter

of law when it sua sponte denied her motion to enforce the settlement agreement without

first holding an evidentiary hearing.

       {¶9} In its judgment entry denying Keys’s motion, the court stated:

       Defendant Michelle Keys individually and as administratrix motion to
       enforce settlement agreement filed pursuant to court order filed on 4/22/13,
       is denied. On 7/14/11, Plaintiff dismissed its claims against Defendant
       Michelle Keys. Defendant voluntarily dismissed her counterclaims in a
       journal entry recorded on 7/26/12.

Presumably, the court’s basis for overruling the motion was simply that it lacked

jurisdiction because both sides had voluntarily dismissed their claims. However, the

docket reflects that Chase never voluntarily dismissed its claims against Keys.             As
previously stated, the court dismissed Chase’s action without prejudice pursuant to a

standing order because the parties had entered into a forbearance agreement.

      {¶10} A trial court generally has authority to enforce settlement agreements

voluntarily entered into by the parties to a lawsuit. Continental W. Condo. Owners Assn.

at 502. However, when the parties voluntarily dismiss their respective claims pursuant to

Civ.R. 41(A), the court “patently and unambiguously lacks jurisdiction to proceed.”

State ex rel. Northpoint Props., Inc. v. Judge Richard Markus, 8th Dist. Cuyahoga No.

82848, 2003-Ohio-5252, ¶ 19.

      {¶11} The determination of whether a dismissal is unconditional is dependent

upon the terms of the dismissal order. Id. at ¶ 20. “[W]hen an action is dismissed

pursuant to a stated condition, such as the existence of a settlement agreement, the court

retains authority to enforce such an agreement in the event the condition does not occur.”

Id., quoting Berger v. Riddle, 8th Dist. Cuyahoga Nos. 66195 and 66200, 1994 Ohio App.

LEXIS 3623 (Aug. 18, 1984). “[R]eference to a settlement agreement in the court’s

dismissal entry is sufficient to retain jurisdiction over the enforcement of a settlement

agreement.”     Jonas v. W.P. Hickman Sys., 8th Dist. Cuyahoga No. 99793,

2013-Ohio-4484, ¶ 12.

      {¶12} In its dismissal entry, the court stated:

      On July 8, 2011, plaintiff notified the court of a forbearance plan. Pursuant
      to this court’s standing case management directive, the case is dismissed
      without prejudice.
Thus, the court’s dismissal entry was premised on its receipt of a notice of forbearance

agreement. The notice of forbearance, filed by Chase, states in its entirety:

       Now comes Chase Home Finance LLC, by and through counsel, and
       pursuant to this Honorable Court’s Standing Case Management Order,
       hereby gives Notice that it has entered into a Forbearance Agreement with
       Defendant, Michelle Keys, for the purpose of curing the mortgage loan
       arrearage.

Therefore, the dismissal was conditional, and the trial court retained jurisdiction to hear

Keys’s motion to enforce the settlement agreement.

       {¶13} A settlement agreement is an enforceable contract to resolve a legal dispute

by preventing or ending litigation. Continental W. Condo. Unit Owners Assn., 74 Ohio

St.3d at 502, 660 N.E.2d 431. “A contract is generally defined as a promise, or a set of

promises, actionable upon breach.”          Kostelnik v. Helper, 96 Ohio St.3d 1,

2002-Ohio-2985, 770 N.E.2d 58, ¶ 16, quoting Perlmuter Printing Co. v. Strome, Inc.,

436 F.Supp. 409, 414 (N.D.Ohio 1976). To be enforceable, a contract must have “an

offer, acceptance, contractual capacity, consideration (the bargained for legal benefit

and/or detriment), a manifestation of mutual assent and legality of object and of

consideration.” Id. There must also be a meeting of the minds as to the essential terms

of the contract. Id. Once there is such a meeting of the minds, one cannot refuse to

proceed with settlement due to a mere change of mind. Mack v. Polson Rubber Co., 14

Ohio St.3d 34, 37, 470 N.E.2d 902 (1984).

       {¶14} “‘To constitute a valid settlement agreement, the terms of the agreement

must be reasonably certain and clear,’ and if there is uncertainty as to the terms then the
court should hold a hearing to determine if an enforceable settlement exists.”            Id.,

quoting Rulli v. Fan Co., 79 Ohio St.3d 374, 376, 377, 683 N.E.2d 337 (1997).

       {¶15} In support of her motion to enforce the settlement agreement, Keys

submitted an affidavit in which she avers she made all the necessary payments and

submitted updated financial information to Chase as required by the agreement.

According to Keys, she complied with all of her obligations under the agreement, but

alleges that Chase, now Fannie Mae, decided it no longer wanted to resolve the case

according to the terms of the agreement.

       {¶16} The record does not contain a complete copy of the forbearance agreement.

Although Chase (Fannie Mae) recites some of the terms of the agreement in its brief,

without a certified copy of the entire agreement, it is impossible to ascertain its terms with

any degree of certainty. Since there was no way the court could determine whether the

terms were “reasonably certain and clear,” it should have held an evidentiary hearing to

determine if an enforceable settlement exists.

       {¶17} Therefore, we sustain the second assignment of error.

       {¶18} The first assignment of error, in which Keys argues the court erred in

summarily denying her motion to enforce the settlement agreement without any

explanation, is moot.

       {¶19} Judgment reversed. Case is remanded to the trial court for an evidentiary

hearing on Keys’s motion to enforce the settlement agreement.

       It is ordered that appellant recover from appellee costs herein taxed.
      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to 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.



EILEEN T. GALLAGHER, JUDGE

KENNETH A. ROCCO, P.J., and
MARY EILEEN KILBANE, J., CONCUR
