[Cite as Ott Equip. Servs., Inc. v. Summit Automotive Equip., 2015-Ohio-4263.]


STATE OF OHIO                     )                        IN THE COURT OF APPEALS
                                  )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

OTT EQUIPMENT SERVICES INC.                                C.A. No.         27534

        Appellee

        v.                                                 APPEAL FROM JUDGMENT
                                                           ENTERED IN THE
SUMMIT AUTOMOTIVE EQUIPMENT,                               COURT OF COMMON PLEAS
et al.                                                     COUNTY OF SUMMIT, OHIO
                                                           CASE No.   CV-2012-03-1271
        Appellants

                                 DECISION AND JOURNAL ENTRY

Dated: October 14, 2015



        MOORE, Judge.

        {¶1}     Defendant-Appellant Christopher Sunkin, dba Summit Automotive Equipment

appeals the entry of the Summit County Court of Common Pleas. We vacate the September 5,

2014 entry.

                                                      I.

        {¶2}     In 2011, Plaintiff-Appellee Ott Equipment Services, Inc. (“Ott”) filed a complaint

against Summit Automotive Equipment for account, conversion, and quantum meruit in Stark

County. Ott alleged that Summit Automotive Equipment purchased certain equipment valued at

$59,148.75 from Hunter Engineering Company (“Hunter”) through Ott, Hunter’s distributor.

The equipment was shipped to Summit Automotive Equipment’s client, AT&T. Ott paid Hunter

for the equipment and Summit Automotive Equipment failed to pay Ott.

        {¶3}     Mr. Sunkin, dba Summit Automotive Equipment answered and filed

counterclaims. Mr. Sunkin alleged that Summit Automotive Equipment entered into a contract
                                                2


with Hunter, not Ott and that Hunter delivered the equipment to AT&T. According to Mr.

Sunkin, Ott revealed Mr. Sunkin’s confidential pricing information to AT&T, causing AT&T to

terminate its relationship with Summit Automotive Equipment. Thus, Mr. Sunkin alleged that

Ott tortiously interfered with Mr. Sunkin’s business relationship with AT&T and committed

negligence.

       {¶4}   Following a motion to transfer for improper venue, the matter was transferred to

Summit County in 2012. Shortly thereafter, Ott was granted leave to file an amended complaint;

the amended complaint corrected the Defendant’s designation to that of Christopher Sunkin, dba

Summit Automotive Equipment and added a claim for replevin.

       {¶5}   Mr. Sunkin filed a motion for summary judgment seeking judgment as to the

complaint. Ott opposed the motion asserting genuine issues of material fact remained. Ott

thereafter filed a motion seeking summary judgment on the counterclaims, which was opposed

by Mr. Sunkin, who began representing himself pro se. The trial court ultimately denied both

motions. Ott filed a motion for reconsideration with respect to the counterclaims, but the trial

court denied the motion.

       {¶6}   On June 4, 2014, the trial court entered an order stating:

       Having been advised that the parties have reached an agreement in this case, the
       Court orders this matter to be marked “SETTLED and DISMISSED[.]”

       This is a final order pursuant to Rule 7(A), Rules of the Superintendence for
       Courts of Common Pleas, with costs to be split between [Ott] and [Mr. Sunkin]
       unless another order is filed within 30 days by the attorneys for [Ott] or [Mr.
       Sunkin].

       {¶7}   On August 15, 2014, Ott filed a “Motion to Order Judgment[,]” seeking to enforce

the terms of the settlement agreement and asserting that Mr. Sunkin breached the terms of that

agreement. On August 19, 2014, Ott filed a “Nunc Pro Tunc Motion to Order Judgment[,]” and
                                                 3


this time also filed a copy of the settlement agreement. Mr. Sunkin opposed the motion and

moved to strike it.

          {¶8}   On September 5, 2014, the trial court found that Mr. Sunkin “failed to make any

payments as required under the Settlement Agreement” and ordered him to pay $25,000 plus

costs.

          {¶9}   Mr. Sunkin, has appealed, pro se, raising three assignments of error for our

review.

                                                 II.

                                  ASSIGNMENT OF ERROR I

          THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE FACTS IN
          EVIDENCE WHEN RENDERING ITS DECISION OF JUDGMENT[.]

                                  ASSIGNMENT OF ERROR II

          THE TRIAL COURT ERRED IN FAILING TO RECOGNIZE AND
          CONSIDER THE PARTIES’ SETTLEMENT AGREEMENT AS A
          CONTRACT.

                                 ASSIGNMENT OF ERROR III

          THE TRIAL COURT ERRED IN FAILING TO CONSIDER IF OTT ACTED
          UNDER THE STANDARDS OF GOOD FAITH AND FAIR DEALING IN
          FAILING TO NOTIFY [MR.] SUNKIN OF THE LACK OF RECEIPT OF
          PAYMENT[.]

          {¶10} All of Mr. Sunkin’s assignments of error relate to the merits of the trial court’s

decision granting judgment to Ott in the amount of $25,000 and enforcing the settlement

agreement. However, because we conclude that the trial court lacked jurisdiction to enforce the

settlement agreement, we conclude that its September 5, 2014 judgment is void and vacate it.

          {¶11} “A settlement agreement is a contract designed to terminate a claim by preventing

or ending litigation. The law highly favors settlement agreements, and a trial judge generally has

discretion to promote and encourage settlements to prevent litigation. Because a settlement
                                                4


agreement constitutes a binding contract, a trial court has authority to enforce the agreement in a

pending lawsuit.” (Internal citations omitted.) Infinite Security Solutions, L.L.C. v. Karam

Properties, II, Ltd., 143 Ohio St.3d 346, 2015-Ohio-1101, ¶ 16.

       {¶12} In Infinite Security Solutions, the Supreme Court of Ohio grappled with whether,

and if so, under what circumstances, trial courts have jurisdiction to enforce settlement

agreements after a dismissal entry has been filed in the case. See id. at ¶ 1. Previously, the

Supreme Court had concluded that, “a trial court loses authority to proceed when it

unconditionally dismisses a case.” Id. at ¶ 21. Thus, many appellate courts began to focus on

whether a dismissal was “conditional[.]” See id. A “conditional” dismissal was described “as a

dismissal that depends on a stated event, like compliance with a settlement agreement, the failure

of which will trigger a resurrection of the court’s jurisdiction.” Id. at ¶ 19. However, the

Supreme Court rejected the idea of “conditional” dismissal. Id. at ¶ 2. The Court noted that “the

Ohio Rules of Civil Procedure do not provide for a conditional dismissal. Instead, Civ.R. 41

provides for voluntary or involuntary dismissals and for dismissals with or without prejudice.”

Id. at ¶ 22. Nonetheless, the high court concluded that, “as a general principle, a trial court may

retain jurisdiction to enforce a settlement agreement when it dismisses a civil case.” Id. at ¶ 25.

Thus, the Supreme Court of Ohio held that, “[a] trial court has jurisdiction to enforce a

settlement agreement after a case has been dismissed only if the dismissal entry incorporated the

terms of the agreement or expressly stated that the court retained jurisdiction to enforce the

agreement.” Id. at syllabus.

       {¶13} Here, as recited above, the trial court’s June 4, 2014 entry provided that:

       Having been advised that the parties have reached an agreement in this case, the
       Court orders this matter to be marked “SETTLED and DISMISSED[.]”
                                                  5


        This is a final order pursuant to Rule 7(A), Rules of the Superintendence for
        Courts of Common Pleas, with costs to be split between [Ott] and [Mr. Sunkin]
        unless another order is filed within 30 days by the attorneys for [Ott] or [Mr.
        Sunkin].

        {¶14} There is nothing in the entry that incorporates the terms of the settlement

agreement or expressly states that the trial court was retaining jurisdiction to enforce the

agreement. See Infinite Security Solutions, L.L.C. at syllabus. The Supreme Court noted that,

“[n]either the parties nor a reviewing court should have to review the trial court record to

determine the court’s intentions. Rather, the entry must reflect the trial court’s action in clear

and succinct terms.” Id. at ¶ 29. Thus, “[a]bsent a clear indication that the trial court intends to

retain jurisdiction to enforce the parties’ settlement agreement, parties must be entitled to rely on

the finality of the court’s action, subject to any right the plaintiff may have to refile the claims.”

Id. at ¶ 30.

        {¶15} We cannot say that the trial court’s June 4, 2014 entry complies with the

foregoing. While the parties might point to the second sentence of the trial court’s entry as some

attempt by the trial court to retain jurisdiction, that language fails to comport with the

requirements set forth in the syllabus of Infinite Security Solutions, L.L.C. Moreover, the

language used is somewhat ambiguous and confusing; we are not even certain of the purpose of

the second sentence. Assuming without deciding, that the second sentence was an attempt “to

condition its dismissal on the parties’ filing of a later entry[.]” the time period for filing such an

entry expired before Ott filed a motion requesting enforcement of the settlement agreement. See

id. at ¶ 32.

        {¶16} Accordingly, the trial court lacked jurisdiction to take further action in the case

and could not grant Ott’s motion to enforce the settlement agreement. See Smith v. Nagel, 9th

Dist. Summit No. 22664, 2005-Ohio-6222, ¶ 6; see also Infinite Security Solutions, L.L.C. at ¶ 26
                                                 6


(citing Smith with approval). Thus, the September 5, 2014 entry of the trial court is void and

must be vacated. Therefore, Mr. Sunkin’s assignments of error are not properly before us. See

Hairline Clinic, Inc. v. Riggs-Fejes, 9th Dist. Summit No. 25171, 2011-Ohio-5894, ¶ 12.

                                                III.

       {¶17} The September 5, 2014 judgment of the Summit County Court of Common Pleas

is vacated.

                                                                               Judgment vacated.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                       CARLA MOORE
                                                       FOR THE COURT
                                        7


HENSAL, P. J.
WHITMORE, J.
CONCUR.

APPEARANCES:

CHRISTOPHER T. SUNKIN, pro so, Appellant.

J. REID YODER and BENJAMIN R. SORBER, Attorneys at Law, for Appellee.
