[Cite as Foor v. Columbus Real Estate Pros.com, 2013-Ohio-2848.]


                                      COURT OF APPEALS
                                  DELAWARE COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


CHRISTINE L. FOOR                           :                      JUDGES:
                                            :
                                            :                      Hon. W. Scott Gwin, P.J.
     Plaintiff - Appellant/Cross-Appellee   :                      Hon. Sheila G. Farmer, J.
                                            :                      Hon. Craig R. Baldwin, J.
                                            :
-vs-                                        :
                                            :
COLUMBUS REAL ESTATE PROS. COM, ET AL. :
                                            :                      Case No. 12 CAE 08 0063
                                            :
                                            :
     Defendant - Appellees/Cross-Appellants :                      OPINION



CHARACTER OF PROCEEDING:                                           Appeal from the Delaware
                                                                   County Court of Common Pleas,
                                                                   Case No. 11 CV H 04 0448



JUDGMENT:                                                          Reversed and Remanded




DATE OF JUDGMENT:                                                  June 25, 2013



APPEARANCES:

For Plaintiff-Appellant/ Cross-Appellee                      For Defendants-Appellees/Cross-
                                                             Appellants

KEVIN O'BRIEN                                                CHRISTOPHER L. TROLINGER
JONATHAN LAYMAN                                              Farlow and Associates, LLC.
Kevin O'Brien and Associates Co., L.P.A                      270 Bradenton Ave, Suite 100
995 South High Street                                        Dublin, OH 43017
Columbus, OH 43206
Delaware County, Case No. 12 CAE 08 00063                                                 2

Baldwin, J.

      {¶1}    Appellant Christine L. Foor appeals a judgment of the Delaware County

Common Pleas Court enforcing a settlement agreement and dismissing her complaint

against appellees Columbus Real Estate Pros.com, Gregory R. Babbitt and Your Estate

Pros LLC. Appellees have filed a cross-appeal assigning error to the judgment of the

court granting appellant partial summary judgment on their counterclaims.

                              STATEMENT OF FACTS AND CASE

      {¶2}    On April 8, 2011, appellant filed a complaint against appellees for failing to

properly manage a parcel of rental property owned by appellant.             The complaint

contained ten causes of action, including negligent infliction of emotional distress, fraud,

breach of contract and multiple violations of consumer statutes.         Appellees filed a

counterclaim for breach of contract, indemnification and payment of attorney fees.

      {¶3}    Both sides filed motions for summary judgment on the counterclaims for

indemnification and failure to purchase insurance on the property. The trial court denied

appellees’ motion for summary judgment and partially granted appellant’s motion for

summary judgment.

      {¶4}    On October 24, 2011, counsel for appellant sent a letter to counsel for

appellees offering to settle the case for $15,000.00. Counsel for appellees responded

by email on November 4, 2011, that appellees would settle the case in exchange for

appellant paying all of their attorney fees plus costs.

      {¶5}    Counsel for appellant emailed appellees’ attorney on November 8, 2011,

stating that he may have authority to settle the case. During a telephone conversation
Delaware County, Case No. 12 CAE 08 00063                                               3


the next day, counsel agreed that the parties would mutually “walk away.” Counsel for

appellees was to draft a written settlement agreement.

      {¶6}   On November 14, 2011, appellant filed a complaint against appellees with

the Department of Commerce. At this time, counsel for appellees discovered that he

had not sent his draft of the settlement agreement to appellant’s attorney. Counsel for

appellees sent appellant a draft of the agreement on December 2, 2011.

      {¶7}   Appellees filed a motion to enforce the settlement agreement on February

23, 2012. The court held an evidentiary hearing on July 13, 2012. At the hearing,

counsel for appellees testified that he believed there were no further details to work out

in the settlement agreement and the parties would walk away with no further judicial or

administrative proceedings being filed.    Appellant testified that she understood the

settlement to be “possible” and that it would not be final until it was in writing and she

had an opportunity to review the language.         She also testified that she did not

understand the settlement included any possible administrative proceedings, and

believed the settlement only covered the case in Delaware County.            Counsel for

appellant testified that the settlement was for the parties to “walk away,” and there were

no discussions about mutual releases or about appellant not proceeding with an

administrative complaint.

      {¶8}   The trial court found appellant’s testimony was not credible and granted

the motion to enforce the settlement agreement.          The court dismissed both the

complaint and the counterclaims based on the settlement agreement.

      {¶9}   Appellant assigns nine errors:
Delaware County, Case No. 12 CAE 08 00063                             4


     {¶10}   “I.      THE COURT ERRED AS A MATTER OF LAW IN CONSIDERING

CONFIDENTIAL COMMUNICATIONS FROM A PRIVILEGED MEDIATION PROCESS

WHEN MAKING A RULING, AS NO EXCEPTIONS TO THE PRIVILEGE APPLY.

     {¶11}   “II.     THE COURT ERRED AS A MATTER OF LAW IN DENYING

PLAINTIFF-APPELLANT’S MOTION TO STRIKE AS THE RECORD CONTAINED

TESTIMONY            AND   REFERENCES       TO   PRIVILEGED   MEDIATION

COMMUNICATIONS.

     {¶12}   “III.    THE COURT ERRED IN FINDING THAT NO VAGUENESS OR

UNCERTAINTY EXISTED IN THE TERMS OF THE ‘WALK AWAY’ AGREEEMENT

MADE BETWEEN PARTIES’ COUNSEL.

     {¶13}   “IV.     THE COURT ERRED IN FINDING THAT NO WRITING WAS

NECESSARY TO FINALIZE THE NEGOTIATIONS BETWEEN THE PARTIES AND

THAT AN ENFORCEABLE AGREEMENT EXISTED.

     {¶14}   “V.      THE COURT ERRED AS A MATTER OF LAW AND FACT IN

ENFORCING SETTLEMENT AS CLIENT REVIEW OF A FORMALIZED WRITTEN

DOCUMENT WAS NECESSARY BEFORE ANY SETTLEMENT AGREEMENT

WOULD BE FINAL.

     {¶15}   “VI.     THE COURT ERRED AS A MATTER OF LAW AND FACT IN

CLASSIFYING PLAINTIFF-APPELLANT’S ADMINISTRATIVE COMPLAINT AS AN

‘ADMINISTRATIVE CLAIM.’

     {¶16}   “VII.    THE COURT ERRED AS A MATTER OF LAW AND FACT IN

DETERMINING THE CREDIBILITY OF PLAINTIFF-APPELLANT’S TESTIMONY
Delaware County, Case No. 12 CAE 08 00063                                             5


THROUGH         OVER-THE-PHONE           COMMUNICATIONS        AND     CONFIDENTIAL

MEDIATION COMMUNICATIONS.

      {¶17}   “VIII. THE COURT ERRED AS A MATTER OF LAW IN FAILING TO

GRANT PLAINTIFF-APPELLANT’S MOTION FOR PROTECTIVE ORDER, QUASH

AND EXCLUDE DOCUMENTS, AS THE MOTION WAS UNOPPOSED AND

SUPPORTED BY SUFFICIENT SPECIFICITY AND RELEVANT CASE LAW.

      {¶18}   “IX.    THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING

THE DRAFTED AGREEMENT EX. 1 ENCOMPASSED THE TOTALITY OF THE

PARTIES’ AGREEMENT.”

      {¶19}   Appellees assign three errors on cross-appeal.

      {¶20}   “I.     THE COURT ERRED AS A MATTER OF LAW IN FINDING THAT

THE CONTRACT DID NOT REQUIRE PLAINTIFF TO INDEMNIFY DEFENDANTS.

      {¶21}   “II.    THE COURT ERRED AS A MATTER OF LAW IN FINDING THAT

PLAINTIFF HAD NOT BREACHED THE INSURANCE PROVISION OF THE

CONTRACT.

      {¶22}   “III.   THE COURT ERRED IN NOT ENJOINING THE ADMINISTRATIVE

ACTION FILED WITH THE DEPARTMENT OF COMMERCE DIVISION OF REAL

ESTATE.”

                                               III., IV., V.

      {¶23}   We address appellant’s third, fourth, and fifth assignments of error

together, as appellant does in her brief. Further, we address these assignments of error

first as they are dispositive of the appeal.
Delaware County, Case No. 12 CAE 08 00063                                                   6


       {¶24}   Settlement agreements are considered contracts and, therefore, their

interpretation is governed by the law of contracts. State v. Butts, 112 Ohio App.3d 683,

686, 679 N.E.2d 1170 (1996). The burden of establishing the existence and terms of a

settlement agreement rests on the party asserting its existence. Nilavar v. Osborn, 127

Ohio App.3d 1, 11, 711 N.E.2d 726 (1998). In addition to consideration, enforceable

contracts also require certainty and clarity, as well as a meeting of the minds. Rulli v.

Fan Co., 79 Ohio St.3d 374, 376, 683 N.E.2d 337 (1997). A “meeting of the minds”

occurs when there is an offer and an acceptance of the offer. Noroski v. Fallet, 2 Ohio

St.3d 77, 79, 442 N.E.2d 1302 (1982). Generally, conduct sufficient to show agreement,

including performance, constitutes acceptance of an offer. Nagle Heating & Air

Conditioning Co. v. Heskett , 66 Ohio App.3d 547, 550, 585 N.E.2d 866 (1990).

       {¶25}   Further, when the alleged settlement agreement is verbal and not written,

the existence and the terms of such agreement must be established by clear and

convincing evidence. Pawlowski v. Pawlowski , 83 Ohio App.3d 794, 799, 615 N.E.2d

1071 (1992). In determining whether an oral agreement has been established, the trial

court may consider the words, deeds, acts, and silence of the parties. Kostelnik v.

Helper, 96 Ohio St.3d 1, 3, 770 N.E.2d 58 (2002). Vagueness, indefiniteness or

uncertainty as to any essential term of an agreement prevents the creation of an

enforceable contract. Rulli at 376, 683 N.E.2d 337. However, if the parties proceed to

act as if the contract was in effect, the contract is enforceable. Nagle at 550, 585 N.E.2d

866.

       {¶26}   In the instant case, we find that the court erred in finding the existence of a

completed settlement agreement was proven by clear and convincing evidence. The
Delaware County, Case No. 12 CAE 08 00063                                                  7


fact that counsel for appellees was to prepare a draft of the agreement demonstrates

that the parties intended to enter into a written agreement, and that the oral agreement

was not necessarily the final agreement of the parties. Neither party made any attempt

to dismiss their claims after the alleged settlement agreement was reached on

November 9, 2011. Further, from the testimony presented at the hearing, the parties

did not have a mutual understanding as to what the terms “walk away” meant in the

context of the instant case, with appellees believing appellant would not pursue an

administrative action and appellant and her attorney believing the settlement applied

solely to the Delaware County case. The written draft of an agreement which the trial

court enforced is not signed by any of the parties or counsel, including the attorney who

drafed the agreement, indicating that this was not necessarily the final agreement of the

parties. The trial court erred in enforcing this draft of a settlement agreement.

      {¶27}   The third, fourth and fifth assignments of error are sustained.

      {¶28}   Appellant’s first, second, sixth, seventh, eighth, and ninth assignments of

error are rendered moot by our disposition of assignments of error three, four and five.

      {¶29}   We next turn to the assignments of error on cross-appeal.

                                              I., II.

      {¶30}   Appellees’ first two assignments allege error in the court granting

summary judgment to appellant on the first two counts of the counterclaim.

      {¶31}   The trial court’s summary judgment did not dismiss these two counts of

the counterclaim and the judgment is clearly an interlocutory order. The court did not

dismiss the counterclaim pursuant to summary judgment, but rather dismissed the

counterclaim pursuant to enforcement of the settlement agreement. Because we have
Delaware County, Case No. 12 CAE 08 00063                                                  8


reversed the trial court’s judgment dismissing the case pursuant to enforcement of the

settlement agreement, the complaint and counterclaim are reinstated and the summary

judgment entry is an interlocutory order, not a final judgment over which we have

jurisdiction. Pursuant to Civ. R. 54(B), this order is subject to revision by the trial court

at any time prior to entry of final judgment in the case. Accordingly, appellant’s first two

assignments of error are premature and are overruled.

                                                III.

      {¶32}   Appellees argue that the court erred in not enjoining the administrative

action filed by appellant with the Department of Commerce. This argument is based on

the settlement agreement, which we have found the court erred in enforcing.             The

assignment of error is therefore moot.
Delaware County, Case No. 12 CAE 08 00063                                            9




      {¶33}   The judgment of the Delaware County Common Pleas Court enforcing a

settlement agreement between the parties is reversed. The complaint and counterclaim

are reinstated, and this cause is remanded to that court for further proceedings. Costs

assessed to appellees.


By: Baldwin, J.

Gwin, P. J. and

Farmer, J. concur.




                                       HON. CRAIG R. BALDWIN



                                       HON. W. SCOTT GWIN



                                       HON. SHEILA G. FARMER




CRB/rad
[Cite as Foor v. Columbus Real Estate Pros.com, 2013-Ohio-2848.]


                 IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT


CHRISTINE L. FOOR                                                  :
                                                                   :
        Plaintiff -Appellant /Cross-Appellee                       :
                                                                   :
-vs-                                                               : JUDGMENT ENTRY
                                                                   :
COLUMBUS REAL ESTATE PROS. COM, ET AL.                             :
                                                                   :
        Defendants - Appellees/ Cross-Appellants                   : CASE NO. 12 CAE 08 0063


        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Delaware County, Ohio is reversed. The

complaint and counterclaim are reinstated, and this cause is remanded to that court for

further proceedings. Costs assessed to appellees.




                                                HON. CRAIG R. BALDWIN



                                                HON. W. SCOTT GWIN



                                                HON. SHEILA G. FARMER
