      [Cite as In re Estate of Shoemaker, 2017-Ohio-8699.]


                        IN THE COURT OF APPEALS OF OHIO
                           FOURTH APPELLATE DISTRICT
                                 ADAMS COUNTY


IN THE MATTER OF:                                   :        Case No. 17CA1039
                                                    :
THE ESTATE OF                                       :        DECISION AND JUDGMENT
JOYCE SHOEMAKER, DECEASED                           :        ENTRY
                                                    :
                                                    :        Released: 11/16/17

                                        APPEARANCES:

John H. Lawler, West Union, Ohio, for Appellant.

David E. Grimes, West Union, Ohio, for Appellee.


McFarland, J.

      {¶1} Jean Ann Guthrie appeals the January 5, 2017 judgment entry of the

Adams County Common Pleas Court, Probate Division, which denied settlement

of the Last Will and Testament of Joyce Shoemaker as being contrary to the

testator’s intent. Appellant asserts the trial court erred in failing to approve the

settlement agreement and in compelling the parties to proceed to litigation. Here,

the record does not contain evidence that other beneficiaries were given the

opportunity to be heard and, in fact, were also in agreement with the proposed

settlement. However, based upon our de novo review of the record, we must

overrule the assignment of error and affirm the trial court’s judgment.
Adams App. No. 17CA1039                                                                           2

                                                FACTS

        {¶2} On July 25, 2015, Ms. Joyce Shoemaker, a widow with no children,

passed away. On September 10, 2015, Ms. Shoemaker’s Last Will and Testament

was filed with the Adams County Probate Court. On September 14, 2015,

Appellant, the designated personal representative under Shoemaker’s will, filed an

Application to Probate the Will.

        {¶3} Subsequent to Ms. Shoemaker’s will having been admitted to probate,

her nephew-in-law and Appellee herein, Anthony Duane Drummond1, filed a

Complaint to contest the validity of the will. Under the terms of the will, Appellee

is a beneficiary of one-half of the residue of Ms. Shoemaker’s estate. In his

complaint, Appellee alleged: (1) lack of testamentary capacity of testator; (2)

improper execution of the will; (3) fraud and/or undue influence by the executrix

(Appellant); and (4) breach of fiduciary duty. Appellee named Appellant, Donald

Burchett2, the West Union Church of Christ and the Peebles United Methodist

Church, all beneficiaries under the will, as defendants in the will contest.

        {¶4} On November 18, 2015, the trial court held a review hearing pursuant

to a request from Appellant’s counsel. Appellant and Appellee, through their

respective counsel, advised the trial court they had reached a settlement agreement



1
  Appellee’s full name is “Anthony Duane Drummond” although he was identified only as “Anthony Drummond” in
the will.
2
  Donald Burchett is the decedent’s brother.
Adams App. No. 17CA1039                                                                  3

which would resolve all matters within the will contest.3 The trial court’s approval

of the settlement was jointly requested. The trial court then ordered counsel for the

parties to brief the relevant legal authority regarding the settlement of will contests

by agreement. The Court also appointed a receiver to manage Shoemaker’s estate

during the pendency of the proceedings.

           {¶5} Subsequently, counsel for Appellant and Appellee submitted briefs to

the trial court urging approval of the settlement. On January 3, 2017, a review of

the accounting by the receiver took place. At this hearing, the trial court engaged

in dialogue with the parties and their counsel regarding the settlement agreement.

On January 5, 2017, the trial court filed its written opinion denying approval of the

parties’ settlement agreement.

           {¶6} This timely appeal followed. Additional facts are set forth below

where relevant. Appellant requests this court to reverse the trial court’s journal

entry and remand the case with instructions to immediately approve the settlement

presented to the trial court. Appellee, however, requests this court to affirm the

trial court’s decision and instruct the trial court to proceed with the will contest.

                                       ASSIGNMENTS OF ERROR

           “I. THE TRIAL COURT ERRED IN DENYING LITIGANTS’
           COMPLETE SETTLEMENT OF ALL ISSUES BETWEEN THEM.”



3
    A summary of the settlement agreement described on the record is set forth, infra.
Adams App. No. 17CA1039                                                          4

                             STANDARD OF REVIEW

      {¶7} The subject of the appealed-from judgment entry is the oral settlement

agreement between Appellant and Appellee. The trial court denied enforcement of

the parties’ agreement to settle at the hearing on review of accounting although

neither party had filed a formal written motion requesting enforcement. We

therefore consider the matter before us as on denial of a joint oral motion to

enforce settlement.

      {¶8} “The standard of review applicable to a ruling on a motion to enforce a

settlement agreement depends upon the issues disputed, and may present a mixed

question of law and fact.” Mathews v. Eastern Pike Local School Dist. Bd. of Edn.,

4th Dist. Pike No. 12CA831, 2013-Ohio-4437, ¶ 14, quoting Barstow v. O.U. Real

Estate, III, Inc., 4th Dist. Athens No. 01CA49, 2002-Ohio-4989, ¶ 36. “If the

dispute is an evidentiary one, we will not reverse the trial court's determination that

a settlement exists as long as the trial court had sufficient evidence before it as to

the terms of the settlement.” Id., citing 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, we must employ a de novo review to determine whether the

trial court's decision to enforce the settlement agreement is based upon an

erroneous standard or a misconstruction of the law. Barstow, supra, at ¶ 36, citing

Continental W. Condominium Unit Owners Assn. v. Howard E. Ferguson, Inc., 74
Adams App. No. 17CA1039                                                          5

Ohio St.3d 501, 502, 660 N.E.2d 431 (1996). This case presents a legal issue of

whether the trial court erred by refusing to enforce the settlement agreement based

on the trial court’s philosophy that the testator’s intent should prevail over the

parties’ presumably valid agreement.

                                LEGAL ANALYSIS

      {¶9} Appellant directs our attention to this court’s decision in Taylor v.

Connell, 26 Ohio App.2d 253, 271 N.E.2d 305 (4th Dist.1971), for the proposition

that parties may, by agreement, settle or compromise their differences and agree to

voluntarily dismiss a will contest as long as there is no fraud or collusion, and as

long as all interested parties are included in the agreement. Appellant also cites the

well-known principle that the law favors prevention of litigation by compromise

and settlement. State ex rel. Wright v. Weyandt, 50 Ohio St.2d 194, 197, 363

N.E.2d 1387 (1977). Appellant points out the agreement the parties have reached

is only slightly different than the decedent’s expressed desires in her will; the

remaining beneficiaries are to receive exactly what the will provides for them.

Appellant also notes the outcome of further litigation is much more uncertain and

costly. Finally, Appellant emphasizes that both parties to this appeal desire the

court’s approval.

      {¶10} In response, Appellee acknowledges that on November 18, 2015, the

parties attempted to enter into a settlement agreement which would have resolved
Adams App. No. 17CA1039                                                            6

all matters including the will contest. However, Appellee now expresses regret in

attempting to enter into the settlement agreement and requests this court to affirm

the trial court’s decision and remand the matter with instructions to proceed with

the will contest. Appellee further notes that since the appointment of a receiver in

this matter, as of January 3, 2017, $24,677.50 had been expended on behalf of the

estate. Appellee concludes that settlement of the matter on the original terms as set

forth in Appellant’s brief is impossible.

      {¶11} At the January 3, 2017 review hearing, the trial court addressed the

issue of the parties’ jointly proposed settlement. The trial court recognized the

public policy in favor of settlements. However, the trial court’s opinion concluded

as follows:

      “It is the humble opinion of the undersigned that the importance of
      strictly adhering to the “Will” of a Decedent has been casually and
      surprisingly cast aside by the undersigned’s more learned brethren in
      the Superior Courts.* * * It has long been established in the State of
      Ohio that when construing a Last Will and Testament, the court’s goal
      is to implement the intent of the testator as set forth in the documents.
      (Internal citations omitted.) The sole purpose of the court should be
      to ascertain and carry out the intention of the testator, and such
      intention is to clearly be ascertained from the words actually
      contained in the will. See also Stevens v. Natl. City Bank (1989), 45
      Ohio St.3d 276, 278, citing Ohio Citizens Bank v. Mills (1989), 45
      Ohio St.3d 153, 155.

       ***

      It is this Court’s fervent opinion that the intent of Testator’s Last Will
      and Testament should be upheld in strict compliance with the clearly
      ascertained terms of Declarant’s desires of disposition of her hard
Adams App. No. 17CA1039                                                           7

      earned worldly effects. Ms. Joyce Shoemaker said what she meant
      and she meant what she said when framing the terms of her Last Will
      and Testament. Settlement contrary to the Last Will and testament of
      Joyce Shoemaker is hereby denied.”

      {¶12} We begin with a review of the relevant guiding principles. A

settlement agreement is a contract designed to prevent or end litigation. Mathews,

supra, at ¶ 21; Continental W. at 502, 660 N.E.2d 431. See also Ingle-Barr, Inc. v.

Scioto Valley Local School District Bd., 4th Dist. Pike No. 07CA676, 2009-Ohio-

5345, at ¶17. “The law favors prevention of litigation by compromise and

settlement. * * *” Kirschbaum v. Dillon, 58 Ohio St.3d 58, 567 N.E.2d 1291

(1991), quoting State ex rel. Wright v. Weyandt, 50 Ohio St.2d 194, 363 N.E.2d

1387 (1977), syllabus; Shallenberger v. Motorists Mut. Ins. Co., 167 Ohio St. 494,

505, 150 N.E.2d 295, 302 (1958). So long as there is no evidence of collusion, in

bad faith, to the detriment of other, non-settling parties, the settlement of litigation

will be encouraged and upheld. Kirschbaum, supra. A trial court possesses full

authority to enforce a settlement agreement voluntarily entered into by the parties.

Matthews, supra; Mack v. Polson Rubber Co., 14 Ohio St.3d 34, 36, 470 N.E.2d

902 (1984).

      {¶13} As a preliminary matter, we find the appeal has not become moot by

virtue of Appellee’s apparent change of heart and request that the trial court’s

judgment be affirmed and the matter remanded for the purpose of proceeding with

the will contest. In Walland v. Rinehart, 8th Dist. Cuyahoga No. 51935, 52672,
Adams App. No. 17CA1039                                                          8

1987 WL 8579, an appeal of a trial court’s enforcement of an oral settlement

agreement, the appellate court observed the true basis of the appeal was whether

the appellant might unilaterally rescind a settlement agreement after thinking it

over and deciding it to be unfair. The court wrote at *2: “This issue is not new and

has been decided in the negative: mere dissatisfaction with a settlement will not

permit repudiation of the agreement. Mack v. Polson Rubber Co., 14 Ohio St.3d

34, 37, 470 N.E.2d 902 (1984); Spercel v. Sterling Industries, Inc., 31 Ohio St.2d

36, 39, 285 N.E.2d 324 (1972). Noting the strong public policy favoring the

settlement of disputes without litigation, the Rinehart court opined the trial court

did not err in ordering enforcement of the settlement since there was no issue as to

the agreement's existence or terms and since appellant's reason to set it aside was

insufficient. Once there is a meeting of the minds as to the essential terms of the

contract, one cannot refuse to proceed with settlement due to a mere change of

mind. Chase Home Finance v. Keys, 8th Dist. Cuyahoga No. 99920, 2014-Ohio-

2639, ¶ 13, quoting Mack, supra.

      {¶14} In further support of Appellee’s position that the settlement

agreement should not now be enforced, Appellee relies upon the well-established

maxim that “A court speaks through its journal.” Appellee points out the

agreement in this matter has never been journalized and argues that, as such, it is

not enforceable. Indeed, it is preferable that a settlement be memorialized in
Adams App. No. 17CA1039                                                           9

writing. Mathews, supra, at ¶ 22; Pawlowski v. Pawlowski, 83 Ohio App.3d 794,

798–799, 615 N.E.2d 1071 (10th Dist.1992). However, an oral settlement

agreement may be enforceable if there is sufficient particularity to form a binding

contract. Spercel v. Sterling Industries, Inc., supra, at 39; see also Brown v.

Dillinger, 9th Dist. Medina No. 05CA0040-M, 2009-Ohio-1307, ¶ 11. Terms of

an oral contract may be determined from “words, deeds, acts, and silence of the

parties.” Mathews, supra, at ¶ 22, quoting Rutledge v. Hoffman, 81 Ohio App. 85,

75 N.E.2d 608 (1947), paragraph one of the syllabus; see also Ford v. Tandy

Transp., Inc., 86 Ohio App.3d 364, 380, 620 N.E.2d 996 (1993). Therefore, we do

not summarily find the agreement to be unenforceable because its terms were

discussed only orally at the hearings of record.

      {¶15} “A contract is generally defined as a promise, or a set of promises,

actionable upon breach. Essential elements of a contract include 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.” Mathews, supra, at ¶ 23, quoting Perlmuter Printing Co. v. Strome,

Inc., 436 F.Supp. 409, 414 (N.D.Ohio 1976). A meeting of the minds as to the

essential terms of the contract is a requirement to enforcing the contract. Episcopal

Retirement Homes, Inc. v. Ohio Dept. of Indus. Relations, 61 Ohio St.3d 366, 369,

575 N.E.2d 134 (1991).
Adams App. No. 17CA1039                                                          10

      {¶16} “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. Mathews, supra, at ¶ 24, quoting Rulli v. Fan Co., 79 Ohio St.3d

374, 376, 377, 683 N.E.2d 337 (1997). A court cannot make a contract for the

parties or force them to settle. Listinger Sign Co. v. American Sign Co., 11 Ohio

St.2d 1, 14, 227 N.E.2d 609 (1967). If the court cannot determine from the parties'

manifestations as reasonably interpreted in the light of all the circumstances, what

the agreement is or how to enforce it, no enforceable obligation exists. Id., citing 1

Corbin on Contracts, 394 and 398, Section 95.

      {¶17} Appellant submitted a chart in her brief which compared the bequests

under Shoemaker’s will with the terms of the settlement between the parties. We

have reviewed Shoemaker’s will and the hearing transcripts of November 18, 2015

and January 3, 2017 and are satisfied that the submitted chart correctly reflects the

terms of the settlement agreement. The chart set forth is as follows:

      Bequest             Under Will          Under Settlement      Difference

      West Union
      Church of Christ $10,000.00                    $10,000.00          0.00

      Peebles Methodist $2,000.00                    $2,000.00           0.00
      Church

      Appellant           Home & 21.613 acres        $100,000.00     Unknown
Adams App. No. 17CA1039                                                         11

      Appellant           Pets & $30,000.00         Pets           $30,000.00

      Don A. Burchett     ½ Estate. Residue         ½ Estate. Residue 0.00

      Appellee            ½ Estate. Residue         ½ Estate. Residue 0.00

      {¶18} Along with consideration of the principles of contract, we recognize a

court may refuse to enforce a contract when it violates public policy. DeVito v.

Autosdirect Online, Inc., 8th Dist. Cuyahoga No. 100831, 2015-Ohio-3336, at

¶ 37; Marsh v. Lampert, 129 Ohio App.3d 685, 687, 718 N.E.2d 997 (12th

Dist.1998), citing Garretson v. S.D. Myers, Inc., 72 Ohio App.3d 785, 788, 596

N.E.2d 512 (9th Dist.1991). R.C. 1302.15, unconscionable contract or clause,

provides:

      (A) If the court as a matter of law finds the contract or any clause of
      the contract to have been unconscionable at the time it was made the
      court may refuse to enforce the contract or it may enforce the
      remainder of the contract without the unconscionable clause, or it may
      so limit the application of any unconscionable clause as to avoid any
      unconscionable result.

      (B) When it is claimed or appears to the court that the contract or any
      clause thereof may be unconscionable the parties shall be afforded a
      reasonable opportunity to present evidence as to its commercial
      setting, purpose, and effect to aid the court in making the
      determination.

      {¶19} Appellant argues that the trial court erred by denying enforcement of

the jointly proposed settlement agreement in light of the public policy favoring

settlement of litigation. In this case, while recognizing the long-standing public

policy in favor of settlements, the trial court here engaged in an in-depth discussion
Adams App. No. 17CA1039                                                           12

of the competing interests: (1) the public policy which encourages settlement of

litigation, and (2) the superiority of the testator’s intent with regard to disposition

of property. Thereafter, the trial court denied enforcement of the settlement

agreement giving preference to the testator’s intent in a will admitted to probate

and assumed to be valid on its face. The trial court’s decision made no finding that

the oral settlement agreement of Appellant and Appellee failed as to the basic

principles of contract law, violated public policy or that it was otherwise

unconscionable in some regard.

      {¶20} In 2-J Supply, Inc. v. Garrett & Parker, LLC, 4th Dist. Highland No.

13CA29, 2015-Ohio-2757, this court reviewed a trial court’s decision denying

enforcement of a valid attorney fee provision. The trial court made a finding that

attorney fees would be denied because Plaintiff-Appellant cited “no statutory

authority that allows the Court to make an award of attorney fees.” Id. at ¶ 7. In

Garrett, we looked to the Supreme Court of Ohio’s decision in Wilborn v. Bank

One Corp., 121 Ohio St.3d 546, 2009–Ohio–306, 906 N.E.2d 396, at ¶ 8, wherein

the Court explicitly acknowledged the rule that agreements to pay another's

attorney fees are normally enforceable and not void as against public policy

because it recognizes the fundamental right to contract. Garrett, at ¶ 6. In Garrett

at ¶ 15 we found: “By ignoring the well-recognized contract exception to the
Adams App. No. 17CA1039                                                          13

general rule prohibiting a prevailing party in a civil action from recovering for its

attorney fees, the trial court abused its discretion.”

       {¶21} While our decision in Garrett was within the context of an attorney

fee dispute, its reasoning is equally applicable. In Garrett, we observed:

       “Persons have a fundamental right to contract freely with the
       expectation that the terms of the contract will be enforced. * * *
       Government interference with this right must therefore be restricted to
       those exceptional cases where intrusion is absolutely necessary, such
       as contracts promoting illegal acts.” Id. at ¶ 19, quoting Nottingdale
       Homeowner’s Assoc., Inc. v. Darby, 33 Ohio St.3d at 36, 514 N.E.2d
       702 (1987).

In Garrett, we found the record contained evidence of an enforceable contract

between the parties for the payment of reasonable attorney's fees, and thus, no

evidence warranting the trial court's interference with the lawful agreement of the

parties.

       {¶22} Pertinent to this appeal, we observe the Supreme Court of Ohio’s

decision in Andes v. Shipp, 165 Ohio St. 275, 135 N.E.2d 396 (1956). Annotation,

42 A.L.R.2d 1319, which held: “By the weight of authority, agreements made by

competent adults settling or compromising will contests are valid and enforceable

and do not contravene public policy. In Skelly v. Graybill, 109 Ohio App 277, 165

N.E.2d 218 (5th Dist.1959), the appellate court quoted 57 American Jurisprudence

653, Section 1005, where it is stated:

       “According to most authorities, an agreement between the
       beneficiaries under a will, for the purpose of avoiding litigation
Adams App. No. 17CA1039                                                            14

       regarding their rights, to adopt a plan for the destruction of the estate
       different from that provided by the will is valid and enforceable,
       provided the rights of creditors are not infringed, and trust provisions
       are not modified or destroyed.”

       {¶23} In our decision in Connell, 26 Ohio App.2d 253, at 256, this court

reluctantly recognized the validity of such agreements:

       “The law in this respect seems to be well settled.

       Though in some jurisdictions an agreement to dispense with the
       probate of a will has been declared to be against public policy and
       void, in a majority of the decisions on the point, it has been held that
       all the persons interested in a decedent's estate may by agreement
       divide the estate among themselves, without probating such decedent's
       will or administering the estate, and the validity of a contract having
       for its sole purpose the disposition of property in a manner different
       from that proposed by a testator, even where the contract
       contemplates the rejection of the will when offered for probate or its
       setting aside when admitted to probate, when it is entirely free from
       fraud, and is made by all the parties in interest, would seem to be
       freely conceded.”

As did the trial court herein, we opined at the time of the Connell decision that

“[t]he propriety of the rule that contracts to suppress valid wills are themselves

valid is, at best, very doubtful.” Id.

       {¶24} In light of the applicable Ohio case law, therefore, it would appear

that by refusing to enforce the presumably valid oral settlement agreement

proposed by Appellant and Appellee, the trial court erred as a matter of law.

However, our de novo review has yielded no evidence as to whether the other

parties to the will contest were given the opportunity to be heard as to the proposed
Adams App. No. 17CA1039                                                            15

settlement. In Bland v. Graves, 99 Ohio App.3d 123, 650 N.E.2d 117, (9th

Dist.1994), a will contest action, one of the arguments on appeal challenged that

certain settlement agreements were void as against public policy, collusive, and the

result of improper ex parte hearings conducted in violation of Canon 3(A)(4) of the

Code of Judicial Conduct. However, the appellate court found the contentions to

be without merit. In particular, the appellate court cited Krischbaum v. Dillon, 58

Ohio St.3d 58, 69–70, 567 N.E.2d 1291, 1302, (1991), noting that “[s]o long as

there is no evidence of collusion, in bad faith, to the detriment of other, non-

settling parties, the settlement of litigation will be encouraged and upheld.”

      {¶25} The Graves court found the Krischbaum decision to be particularly

illuminating in respect to the appellants' attack on the validity of the settlement

agreements. In Krischbaum, the plaintiffs, heirs at law, brought a will contest

action alleging lack of testamentary capacity and undue influence. The defendants

in Krischbaum were the two named beneficiaries in the decedent's will. Prior to

trial, one of the defendants, Riker, settled with the will contestants. On appeal, the

other defendant, Dillon, contended that it was contrary to public policy to permit

the will contestants to settle the action with one beneficiary to the detriment of the

remaining beneficiary. The Supreme Court rejected Dillon's argument, finding that

“[a]lthough, as a result of settling with the contestants, Riker abandoned his

position in the litigation, he had no obligation to maintain his position
Adams App. No. 17CA1039                                                                                       16

notwithstanding that he had reached a satisfactory settlement with the contestants.”

Id. at 69, 567 N.E.2d at 1302. Thus, the court concluded that in the absence of

evidence that the settlement agreement was the product of collusion, made in bad

faith, or otherwise detrimental to a non-settling party, the settlement was valid and

enforceable.

         {¶26} In Graves, although the appellants were challenging the validity of

the settlement agreements as will contestants, not beneficiaries, the court found

that the same result as in Krischbaum followed. The appellate court noted the

Graves appellants had offered only broad, general, and conclusory allegations of

collusion and bad faith while absolutely failing to point to any specific evidence in

the record that would substantiate their allegations or support invalidating the

settlement agreements. The Graves appellants had directed the appellate court’s

attention to Canon 3(A)(4), regarding ex parte communication, which the court

found to be wholly misplaced.4

         {¶27} The Graves court found the appellants’ argument that the probate

court's ex parte and in camera review of the settlement agreements denied them a

full right to be heard to be meritless. Importantly, the appellate court wrote:


4
  Canon 3(A)(4) of the Ohio Code of Judicial Conduct provides:
“A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard
according to law, and, except as authorized by law, neither initiate not consider ex parte or other communications
concerning a pending or impending proceeding. * * * Nothing contained herein, however, shall preclude a judge
from non-substantive ex parte communications on procedural matters and matters affecting prompt disposal of the
business of the court.”
Adams App. No. 17CA1039                                                           17

      “The main impetus for the October 14 evidentiary hearing was to
      evaluate the possibility of settlement, and the appellants were present,
      had an opportunity to be heard and, in fact, indicated that they might
      consider a settlement offer. Clearly, the October 14 hearing was not
      ex parte, and the probate court did nothing after the hearing to restrict
      the appellants from fully and equally participating in any settlement
      negotiations with the defendants-appellees.”

      {¶28} The Graves court found the record did not contain any evidence that

the settlement agreements were the product of collusion, made in bad faith, or

otherwise detrimental to the appellants, the non-settling parties in the litigation.

The Graves court concluded absent such evidence, the settlement agreements must

have been upheld.

      {¶29} Here, there was no evidentiary hearing. Evidentiary hearings, as

previously explained, are normally requested when terms of a settlement

agreement or existence of a settlement agreement are in question. The hearings

herein, where settlement was discussed, were not the legal equivalents of

evidentiary hearings. See Aristech Chem. Corp. v. Carboline Co., 85 Ohio App.3d

251, 257, 620 N.E.2d 258 (4th Dist.1993).

      {¶30} Ostensibly, due to the fact that the other interested parties in this case,

Donald Burchett and representatives of the two churches, were “included” in the

settlement agreement, and due to the fact the agreement provided the same

provisions for them as did the will, it may have appeared that an evidentiary

hearing was not required. However, unlike the defendants in Graves, the other
Adams App. No. 17CA1039                                                                                18

beneficiaries here did not have an opportunity to be heard, consider the settlement

offer, and otherwise participate in the negotiations. While Appellant and Appellee

agreed to various terms to settle the will contest, as set forth in the submitted chart,

the record is void of any representations of counsel or sworn testimony that the

other defendants to this will contest were in agreement with the disposition.

        {¶31} In Aristech, supra, 620 N.E.2d 258, 262, we quoted the United States

Court of Appeals for the District of Columbia Circuit which observed:

        “A motion to enforce a settlement contract is neither ordinary nor
        routine. * * * Its relative simplicity is a concession to the policy
        favoring settlements, but only to the extent that full and fair
        opportunities to prove one's point are substantially preserved. The
        parties on both sides of appellants' lawsuit had valuable interests at
        stake in the motion proceeding * * *. To the extent that their several
        representations to the court left issues of fact for determination, they
        are entitled to an evidentiary hearing.” Autera v. Robinson (C.A.D.C.,
        1969), 419 F.2d 1197, 1203.”5

        {¶32} In this matter, we find an evidentiary hearing should have been

conducted to determine whether the decedent’s brother and any representatives of

the two churches named in decedent’s will had objections to the settlement. Just

because the submitted agreement included them does not mean they were

consulted in any way when the negotiations occurred, given the absence of

evidence on this point. Just because the submitted agreement provided the same


5
 Ohio courts have reached similar holdings. Aristech, supra, at 620 N.E.2d 258, 262. See Chiampo v. Williams
(Sept. 8, 1991), 9th Dist. Summit No. 14903, 1991 WL 184826; Ohio State Tie & Timber, Inc. v. Paris Lumber Co.,
8 Ohio App.3d 236, 239, 456 N.E.2d 1309, 1313 ( 1982).
Adams App. No. 17CA1039                                                       19

disposition for the other beneficiaries as in the will does not mean those

beneficiaries should not have had an opportunity to be heard on the matter

involving them, prior to dismissal of the will contest action.

         {¶33} As such, the sole assignment of error is hereby overruled.

Accordingly, we affirm the judgment of the trial court, albeit on an alternative

basis.

                                                       JUDGMENT AFFIRMED.
Adams App. No. 17CA1039                                                        20

                              JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and costs be 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
Adams County Common Pleas Court, Probate Division, 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.

Abele, J. & Hoover, J.: Concur in Judgment Only.


                                       For the Court,


                                BY: ______________________________
                                    Matthew W. McFarland, 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.
