[Cite as Wilmington Savs. Fund Soc. v. Medvec Properties, L.L.C., 2019-Ohio-4133.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                         LAKE COUNTY, OHIO


 WILMINGTON SAVINGS FUND                                 :          OPINION
 SOCIETY, FSB, d.b.a. CHRISTIANA
 TRUST, NOT INDIVIDUALLY BUT AS                          :
 TRUSTEE FOR PRETIUM MORTGAGE                                       CASE NO. 2019-L-012
 ACQUISITION TRUST,                                      :

                  Plaintiff-Appellee,                    :

         - vs -                                          :

 MEDVEC PROPERTIES LLC, et al.,                          :

                  Defendants-Appellants.                 :


 Civil Appeal from the Lake County Court of Common Pleas, Case No. 2015 CF 001998.

 Judgment: Affirmed.


 Matthew J. Richardson and Matthew P. Curry, Manley Deas Kochalski, LLC, P.O. Box
 165028, Columbus, OH 43216 (For Plaintiff-Appellee).

 Bruce M. Broyles, The Law Offices of Bruce Broyles, 2670 North Columbus Street, Suite
 L, Lancaster, OH 43130 (For Defendants-Appellants).


MATT LYNCH, J.

        {¶1}      Defendants-appellants, Fabian Medvec and Medvec Properties, appeal

from the judgment of the Lake County Court of Common Pleas, confirming the sale of

their foreclosed upon property and implicitly denying their Motion to Vacate. The issue

before this court is whether a settlement agreement should be vacated when the

mortgagee takes action to enter the property and winterize it during a time at which the
mortgagor is attempting, under the agreement, to sell the property. For the following

reasons, we affirm the judgment of the court below.

      {¶2}   On November 17, 2015, plaintiff-appellee, Wilmington Savings Fund

Society, filed a Complaint in the Lake County Court of Common Pleas against Medvec

Properties and Fabian Medvec, seeking a money judgment, decree of foreclosure, and

order of sale for the subject premises, located in Painesville, Ohio. The Complaint alleged

that Fabian Medvec was in default on a Note and owed $111,496.09. Fabian Medvec

and Medvec Properties filed separate Answers on November 4, 2016.

      {¶3}   Wilmington filed a November 28, 2016 Motion for Summary Judgment,

attached to which was an affidavit from Angela Farmer, Vice President of Rushmore Loan

Management Services, who averred that the Note and Mortgage were in default due to

nonpayment. Appellants opposed summary judgment.

      {¶4}   On December 1, 2016, appellants filed a Motion for Leave to File

Counterclaim.

      {¶5}   On January 5, 2017, the court issued a Judgment Entry and Decree in

Foreclosure granting Wilmington’s Motion for Summary Judgment and ordering

foreclosure of the property. In a Journal Entry on the same date, the court granted leave

to appellants to file their counterclaim instanter and stayed “the issuance of a praecipe

for sale until such time as the issues raised by the newly filed counterclaim are decided.”

      {¶6}   Appellants’ counterclaim, filed on January 25, 2017, alleged that Wilmington

had interfered with their ability to lease or sell the property by informing a tenant of

foreclosure proceedings and had caused damages while installing new locks.            The

counterclaim requested damages in excess of $10,000. On May 24, 2017, the appellants




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filed a Notice of Dismissal of Counterclaim with prejudice.

       {¶7}   An Order of Sale was issued and the property was sold to Wilmington for

$58,000 on August 28, 2017.

       {¶8}   On September 18, 2017, appellants filed a Motion for Relief from Judgment

pursuant to Civil Rule 60(B) from the January 5, 2017 Judgment Entry and the dismissal

of their counterclaim.

       {¶9}   Wilmington filed an October 2, 2017 Motion to Enforce Settlement

Agreement, attached to which was a May 2017 Settlement Agreement in which appellants

agreed to dismiss their counterclaim in return for a monetary payment from Wilmington.

Appellants opposed the motion.

       {¶10} On February 23, 2018, appellants filed a Motion to Stay Confirmation of the

August 28, 2017 Sheriff’s Sale.

       {¶11} An Agreed Order was issued on August 14, 2018, in which the parties

agreed that appellants would withdraw their September 18, 2017 Motion for Relief from

Judgment, Wilmington would withdraw its Motion to Enforce Settlement Agreement, and

the appellants would have 90 days to sell the property for a price guaranteeing Wilmington

a payoff of no less than $106,000. It directed that if the property was not sold, “Plaintiff

shall file a motion to confirm the August 28, 2017 sale and the Court will process the

matter for confirmation of the August 28, 2017 Sheriff’s sale to Plaintiff.”

       {¶12} On November 14, 2018, appellants filed a Motion to Vacate the Agreed

Order, in which they requested to “reinstate proceedings” on their Motion for Relief from

Judgment, and moved to stay confirmation of the sheriff’s sale. They argued that during

the 90-day period when they were permitted to sell the property, Wilmington entered the




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home, caused physical damage to the exterior door, and put up stickers stating it had

authorized the winterization of the home. They contended that “these acts by Plaintiff

made it apparent to all who viewed the property that Defendants were not ‘willing sellers.’”

       {¶13} On January 9, 2019, the trial court issued a Confirmation Entry, confirming

the sale of the property and distributing the proceeds. It did not rule on the November

14, 2018 Motion to Vacate.

       {¶14} Appellants timely appeal and raise the following assignment of error:

       {¶15} “The trial court erred in denying the motion to vacate the agreed entry and

confirming the sheriff’s sale instead of reinstating the matter to consider the Appellants’

motion for relief from judgment.”

       {¶16} As an initial matter, in its brief, Wilmington contends that the appeal is “likely

moot” since appellants did not obtain a stay of the distribution of the sale proceedings.

       {¶17} This court has previously found that, in the case of foreclosure proceedings,

where the sheriff’s sale has occurred, “an appellate court is unable to grant any effectual

relief at that point,” rendering an appeal moot. Charter One Bank, F.S.B. v. Mysyk, 11th

Dist. Geauga No. 2003-G-2528, 2004-Ohio-4391, ¶ 4; Alegis Group L.P. v. Allen, 11th

Dist. Portage No. 2002-P-0026, 2003-Ohio-3501, ¶ 10 (“because appellant did not obtain

a stay of the foreclosure order and the sheriff’s sale has already been completed, the

issues appellant now raises are moot”). However, it has subsequently held that “relief [in

a foreclosure proceeding], if so required, can be granted to appellant in the form of

restitution,” applying this holding in cases where a defendant has sought a stay but was

unable to pay the bond, and also “in the interest of justice * * * despite the fact that no

stay was obtained.” Ameriquest Mtge. v. Wilson, 11th Dist. Ashtabula No. 2006-A-0032,




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2007-Ohio-2576, ¶ 17; Governors Place Condominium Owners Assn., Inc. v. Unknown

Heirs of Polson, 11th Dist. Lake No. 2016-L-070, 2017-Ohio-885, ¶ 31.

        {¶18} In the present matter, a sheriff’s sale of the property occurred August 28,

2017. Appellants subsequently filed a Motion to Vacate the foreclosure and, on February

23, 2018, moved to stay confirmation of the sale. When they moved to vacate the Agreed

Order on November 14, 2018, they again moved to stay confirmation of the sheriff’s sale.

Although no stay was granted, this is not the case where the defendants entirely failed to

act or intended to voluntarily satisfy the judgment.1 Moreover, the appellants, through

moving to have the Agreed Order vacated, also sought to have their September 18, 2017

Motion for Relief from Judgment reinstated, which related, in part, to the dismissal of the

counterclaim and request for damages in excess of $10,000. The sale of the property

and its confirmation did not prevent appellants from recovering damages on the

counterclaim if relief were to be granted. Based on the foregoing, we will consider the

merits of the appeal.

        {¶19} The present appeal arises from the denial of appellants’ Motion to Vacate

the August 14, 2018 Agreed Order. The trial court did not rule on this motion but instead

issued a final Confirmation Entry of Sale and Distribution of Proceeds. The motion was

implicitly overruled since, “[i]f a trial court fails to issue a written ruling on a pending motion

prior to the release of final judgment in a civil action, it is presumed that the court intended

to deny that motion.” State ex rel. Ames v. Reinbold, 11th Dist. Portage Nos. 2019-P-

0009 and 2019-P-0010, 2019-Ohio-1169, ¶ 9.

        {¶20} Appellants argue that the trial court should have found Wilmington breached



1. No motion for stay was filed following the issuance of the order of confirmation.


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the Agreed Order allowing appellants 90 days to sell the property by failing to exercise

the duty of good faith and fair dealing when it “broke into the premises and damaged the

property while securing the property which had not been abandoned.” They contend that

this court should consider whether the lower court erred as a matter of law, the standard

applicable when addressing a motion to enforce a settlement agreement.

       {¶21} Since a settlement agreement is a contract, “it must comply with the

requirements of contract law.” Baumgartner v. AIM Leasing, 11th Dist. Trumbull No.

2012-T-0070, 2013-Ohio-883, ¶ 20. “[B]ecause the issue is a question of contract law,

‘Ohio appellate courts must determine whether the trial court’s order is based on an

erroneous standard or a misconstruction of the law. The standard of review is whether

or not the trial court erred.’” (Citation omitted.) N.E. Cable Television Sys. v. Pantalone,

11th Dist. Trumbull No. 2011-T-0023, 2011-Ohio-6840, ¶ 8 (“the question before us is

whether the trial court erred as a matter of law in granting the motion to enforce the

settlement agreement”). While “in so doing” an appellate court gives due deference to

findings of fact supported by competent, credible evidence, Meeker R&D, Inc. v. Evenflo

Co., Inc., 2016-Ohio-2688, 52 N.E.3d 1207, ¶ 52 (11th Dist.), no factual findings were

made in this case since the trial court did not explicitly overrule appellants’ motion.

       {¶22} While appellants did not file a motion to enforce the settlement agreement

but rather a Motion to Vacate the agreement, such a motion has been construed in such

a manner for the purposes of determining whether the settlement agreement is

enforceable. Parkhurst Mall Corp. v. Taneyhill, 11th Dist. Trumbull No. 2006-T-0082,

2007-Ohio-340, ¶ 5, fn.1, 21-26 (the trial court construed the motion to vacate a

settlement agreement as a motion to enforce where the opposing party was alleged to




                                              6
have breached terms of the agreement and its terms were invalidated); Wilson v. Pride,

8th Dist. Cuyahoga No. 107793, 2019-Ohio-3513, ¶ 29-43 (applying principles of contract

interpretation in reversing the trial court’s decision to deny appellant’s motion to vacate a

settlement agreement).

         {¶23} In contrast, Wilmington argues that, since appellants moved to vacate the

judgment rather than filing a motion to enforce the settlement agreement, the proper

grounds to vacate the agreed order would be either through a motion for reconsideration

or a Civ.R. 60(B) motion, depending upon considerations of finality of the settlement

agreement.     “To prevail on a motion brought under Civ.R. 60(B), the movant must

demonstrate that: (1) the party has a meritorious defense or claim to present if relief is

granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1)

through (5); and (3) the motion is made within a reasonable time, and, where the grounds

of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order

or proceeding was entered or taken.” GTE Automatic Elec., Inc. v. ARC Industries, Inc.,

47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus. Whether to

grant a Civ.R. 60(B) motion is evaluated under an abuse of discretion standard of

review. In re Whitman, 81 Ohio St.3d 239, 242, 690 N.E.2d 535 (1998). Similarly,

although a motion for reconsideration of a trial court’s final order is a nullity, appellate

courts review “[a] trial court’s decision whether to reconsider a previous interlocutory order

* * * under an abuse of discretion standard.” Savage v. Kucharski, 11th Dist. Lake No.

2005-L-141, 2006-Ohio-5165, ¶ 37.

         {¶24} Under either party’s argument, the appellants’ assignment of error lacks

merit.




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      {¶25} Appellants argue that Wilmington violated the implied duty of good faith and

fair dealing implicit in the settlement agreement, which prevented them from selling the

property. Parties to a contract are “bound toward one another by standards of good faith

and fair dealing.” (Citation omitted.) McWreath v. Cortland Bank, 11th Dist. Trumbull No.

2010-T-0023, 2012-Ohio-3013, ¶ 27. The duty of good faith is a “‘compact reference to

an implied undertaking not to take opportunistic advantage in a way that could not have

been contemplated at the time of drafting, and which therefore was not resolved explicitly

by the parties.’” (Citation omitted.) Ed Schory & Sons, Inc. v. Soc. Natl. Bank, 75 Ohio

St.3d 433, 443-44, 662 N.E.2d 1074 (1996). That duty is not violated “unless there is a

breach of a specific obligation imposed by the contract, such as one that permits a party

to exercise discretion in performing a contractual duty or in rejecting the other party’s

performance.” Lucarell v. Nationwide Mut. Ins. Co., 152 Ohio St.3d 453, 2018-Ohio-15,

97 N.E.3d 458, ¶ 43.

      {¶26} In their Motion to Vacate and attached affidavit, appellants alleged that

representatives from Wilmington entered the property, causing damage to a door handle,

and placed stickers in the house stating that the mortgage company authorized the

winterization of the property, and that appellants were ultimately unable to sell the

property. This does not demonstrate, however, that Wilmington acted in a manner

inconsistent with the expectations of the parties when entering the settlement agreement

or that it acted in bad faith by breaching a specific obligation imposed by the contract.

The terms of the agreement stated that appellants would have the opportunity to sell the

property for 90 days but did not contain any provisions preventing Wilmington from

entering or maintaining the property during that time period. Paragraph 9 of the parties’




                                            8
mortgage provides that if the borrower fails to perform the covenants in the security

agreement, “the Lender may do and pay for whatever is reasonable or appropriate to

protect Lender’s interest in the Property and rights under this Security Instrument,

including protecting * * * the value of the Property, and securing and/or repairing the

Property.” Securing the property includes “entering the Property to make repairs, change

locks, * * * drain water from pipes, * * * and have utilities turned on or off.” Winterizing

the property and placing documentation of that fact within the house was consistent with

the parties’ mortgage and reasonably allowed Wilmington to protect the property in the

event that appellants did not sell it.

       {¶27} Appellants also argue that they were entitled to a hearing for the trial court

to determine whether the settlement agreement was breached. It has been held that, in

the case where a party has moved to enforce a settlement agreement, the trial court is

not required to conduct an evidentiary hearing “[i]n the absence of a legitimate factual

dispute.” Brahm v. DHSC, LLC, 5th Dist. Stark No. 2018CA00100, 2019-Ohio-766, ¶ 57.

Appellants’ allegations do not demonstrate a legitimate factual dispute which would

warrant holding a hearing or support a finding that a breach occurred.

       {¶28} As to the issue of Civ.R. 60(B) relief, presuming such a motion was proper

from a settlement agreement which contemplated future action dependent upon whether

appellants sold the property, no relief would be warranted. If the appellants’ Motion to

Vacate were construed as one for such relief, it would lack merit since appellants did not

set forth the specific provision or provisions of Civ.R. 60(B)(1) through (5) that would be

applicable or demonstrate they were entitled to relief under any of these provisions. See

LaRosa v. LaRosa, 11th Dist. Geauga No. 2001-G-2339, 2002 WL 408074, *4 (Mar. 15,




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2002).

         {¶29} Finally, although appellants did not seek to have the trial court “reconsider”

any of the terms of the Agreement, even construed as such a motion, it would fail for the

reasons outlined above.

         {¶30} The sole assignment of error is without merit.

         {¶31} For the foregoing reasons, the judgment of the Lake County Court of

Common Pleas, confirming the sale of the property and implicitly denying the appellants’

Motion to Vacate, is affirmed. Costs to be taxed against appellants.



CYNTHIA WESTCOTT RICE, J.,

TIMOTHY P. CANNON, J.,

concur.




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