[Cite as Gary Moeralli Excavating, Inc. v. Trimat Constr., Inc., 2013-Ohio-1311.]
                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                        GALLIA COUNTY


GARY MODERALLI EXCAVATING,                             :
INC.,
                                                       :
        Plaintiff-Appellant,                                Case No. 12CA5
                                                       :
        vs.
                                                       :
TRIMAT CONSTRUCTION, INC., et al,                      :


DECISION AND JUDGMENT ENTRY

        Defendants-Appellees.                          :

_________________________________________________________________
                                APPEARANCES:

COUNSEL FOR APPELLANT:                     Tracey A. Laslo, 325 East Main Street, Alliance, Ohio
                                           44601, and Shirley J. Smith, 1399 East Western Reserve
                                           Road, Ste.2, Poland, Ohio 44514

COUNSEL FOR APPELLEES:                     Mark E. Sheets, Halliday, Sheets & Saunders, 19 Locust
                                           Street, P.O. Box 325, Gallipolis, Ohio 45631

CIVIL APPEAL FROM MUNICIPAL COURT
DATE JOURANALIZED: 3-26-13
ABELE, J.

        {¶ 1} This is an appeal from a Gallipolis Municipal Court judgment in an R.C. 2329.84

proceeding initiated by the Gallia County Sheriff (Sheriff). Gary Moderalli Excavating, Inc.,

plaintiff below and appellant herein, assigns the following errors for review:

                 FIRST ASSIGNMENT OF ERROR:

                 “THE TRIAL COURT’S DECISION TO HEAR A TRIAL
                 PURSUANT TO O.R.C. 2329.84 OUTSIDE OF THE
                 THREE-DAY WINDOW EXPRESSLY IMPOSED BY
GALLIA, 12CA5                                                                                       2

                   STATUTE WAS IMPERMISSIBLE UNDER OHIO LAW.
                   FURTHER, THE DENIAL OF DISMISSAL AND SUMMARY
                   JUDGMENT AS RELATES TO SUCH HEARING AS WELL AS
                   TO THE ISSUE OF OWNERSHIP WAS IMPROPERLY
                   DENIED.”

                   SECOND ASSIGNMENT OF ERROR:

                   “THE AGREEMENT REACHED BY THE PARTIES AT THE
                   TRIAL COURT LEVEL WAS PROCURED BY FRAUD ON
                   THE PART OF RONALD TOLER, AS IT WAS CONDITIONED
                   ON HIS PROVIDING OF DOCUMENTATION EVIDENCING
                   HIS ALLEGED SECURITY INTEREST IN THE PROPERTY AT
                   ISSUE – DOCUMENTS WHICH, WHEN PROVIDED,
                   ACTUALLY REVEALED THAT HE HAD NO INTEREST IN
                   SAID PROPERTY.”

        {¶ 2} Unfortunately, the record reveals little of the facts that underlie this case.

Apparently, the trial court awarded appellant a judgment for damages against Trimat

Construction, Inc. (Trimat). Appellant sought to levy execution on that judgment and the

Sheriff impounded several pieces of equipment. On April 4, 2012, the Sheriff commenced the

instant proceeding to determine the claimant’s (appellant’s) rights in the seized property.

        {¶ 3} On April 10, 2012, appellant requested summary judgment on the basis that (1)

the trial court set a hearing date outside the statutory time frame, and (2) Trimat fraudulently

transferred assets to Ronald Toler (appellee) and those assets remained the property of Trimat

and subject to the execution of its judgment lien.1 Appellant subsequently filed a supplement to

its summary judgment motion, but we find no indication in the record that Trimat or appellee

filed a response. Also, we find no indication that the trial court ruled on the motion.

        {¶ 4} On the day of the scheduled hearing, the trial court dismissed the jury and the


        1
            The relationship between Ronald Toler and Trimat, if any, is unclear from the record.
GALLIA, 12CA5                                                                                        3

parties read a settlement agreement into the record. An entry that recited the agreement was

filed on May 15, 2012 and stated that appellee is to have possession of the seized and disputed

equipment and to use “reasonable business practices as governed by Chapter 1309 of the Revised

Code” to sell or lease the equipment. The agreement recognized the judgment against Trimat

and specified that all proceeds from the equipment sale: (1) be applied to all reasonable expenses

incurred in the sale, (2) be applied to interest on the debt owed appellant, and (3) the remainder

be applied to the principal amount of the judgment awarded to appellant and against Trimat.

This appeal followed.

        {¶ 5} We jointly consider the assignments of error and initially point out the unusual

posture of this matter. To begin, appellant challenges a settlement to which it agreed, or at least

to which it did not object. Ohio law, however, favors settlement agreements. See Continental

W. Condominium Unit Owners Assn. v. Howard E. Ferguson, Inc., 74 Ohio St.3d 501, 502, 660

N.E.2d 431 (1996). Settlements are binding contracts. Continental W. Condominium Unit

Owners Assn., supra, at 502. Generally, if some event occurs subsequent to a settlement

agreement and a party desires to set aside the agreement, the ususal course of action is to file a

motion in the trial court that adopted the settlement agreement. See Spercel v. Sterling

Industries, Inc., 31 Ohio St.2d 36, 285 N.E.2d 324, (1972). Here, appellant appeals a settlement

agreement to which it ostensibly agreed and has not challenged in the trial court.

        {¶ 6} Appellant’s argument against the agreed settlement is set out in its brief as

follows:

        “Eventually an agreement was reached whereby Ronald Toler was to provide
        documentation proving his security interest in the property at issue. When this
        documentation was actually provided, however, it showed that the transfer was
GALLIA, 12CA5                                                                                                                      4

          indeed fraudulent – the note supposedly securing Ron Toler’s interest was far less
          valuable than had been claimed, and it was actually made out to Matt Toler
          personally and not to Trimat.”2

As best as we can understand the argument, it appears to rest on materials obtained or revealed

subsequent to the judgment at issue. Furthermore, those materials are not part of the record on

appeal and, consequently, are not properly before us. See App.R. 9(A). In any event, as we

note above, appellant should have sought to set aside the settlement agreement. Additionally, if

Trimat and appellee are involved in a fraudulent transfer of assets, appellant has recourse under

the Ohio Fraudulent Transfer Act. See generally DiBlasio v. Sinclair, 7th Dist. No. 08–MA–23,

2012-Ohio-5848, at ¶¶33-34; Dinu v. Dinu, 8th Dist. No. 91705, 2009-Ohio-2879, at ¶¶6-8.

          {¶ 7} Appellant also argues that the trial court failed to comply with the statute. R.C.

2329.84 provides:

          “If, by virtue of a writ of execution issued from a court of record in this state, an
          officer levies it on goods and chattels claimed by a person other than the
          defendant, such officer forthwith shall give written notice to a judge of the county
          court, which notice shall contain the names of the plaintiff, defendant, and
          claimant, and at the same time furnish the judge a schedule of the property
          claimed. Immediately upon the receipt of the notice and schedule, the judge shall
          make an entry of them on his docket, and issue a summons directed to the sheriff
          or any constable of the county commanding him to summon five disinterested
          men, having the qualifications of electors, to be named in the summons, to appear
          before him, at the time and place therein mentioned, which shall not be more than
          three days after the date of the writ, to try and determine the claimant's right to the
          property in controversy. The claimant shall give two days' notice, in writing, to the
          plaintiff, or other party, for whose benefit the execution was issued and levied, his
          agent, or attorney, if within the county, of the time and place of trial. The claimant
          shall prove to the satisfaction of the judge that such notice was given, or that it
          could not be given by reason of the absence of the party, his agent, or attorney.”

          2
             The identity of “Matt Toler” and his relationship to Ron Toler or Trimat is unclear. In addition, appellant seems
to use the concepts of “security interest” and “ownership interest” interchangeably in this paragraph when, in fact, they do not
necessarily mean the same thing.
GALLIA, 12CA5                                                                                                                       5

          (Emphasis added.)

Appellant argues that the trial court erred by setting the trial date beyond the mandatory three day

time limit. However, even if the trial court arguably erred in this regard3, the fact that the parties

settled the case, and no trial actually occurred, renders this alleged error harmless. See Civ.R.

61. To address this issue now, after the case has been settled, is in the order of an advisory

opinion. Tewksbury v. Tewksbury, 194 Ohio App.3d 603, 2011-Ohio-3358, 957 N.E.2d 362, at

¶13 (4th Dist. 2011); McClead v. McClead, 4th Dist. No. 06CA67, 2007-Ohio-4624, at ¶12.

          {¶ 8} Appellant also asserts that the trial court erred by denying its summary judgment

motion.4 First, we once again note that appellant agreed to settle the case and this agreement

relieves the trial court of the obligation to decide the motion. Second, it is not entirely clear that

a summary judgment motion lies in R.C. 2329.84 proceedings. In Ayetenew Best Buy, Inc. v.

Warsaw Supermarket, Inc., 8th Dist. No. 67866&67878, 1995 WL 371320 (Jun. 22, 1995), the

court appears to have assumed that it does, but the court did not actually discuss the issue.

However, a year earlier the same court wrote that “we need not decide whether Civ.R. 56 may be

used in conjunction with R.C. 2329.84" which suggests that a question may indeed be involved

in this issue. See Morris v. Erieway, Inc., 93 Ohio App.3d 239, 243, 638 N.E.2d 142 (8th Dist.

1994).


          3
            The trial court explained in an April 5, 2012 entry that its "congested docket" prevented it from convening within
the statutory time frame.
          4
               It does not appear, from our review of the record, that the trial court ruled on this motion. In such instances we
treat a trial court’s inaction as implicitly overruling the motion. See e.g. Watershed Management, LLC. V. Neff, 4th Dist. No.
10CA42, 2012- Ohio-1020, at ¶31; Chrysler Fin. Servs. v. Henderson, 4th Dist. No. 11CA4, 2012-Ohio-6813, at ¶13.
[Cite as Gary Moeralli Excavating, Inc. v. Trimat Constr., Inc., 2013-Ohio-1311.]
        {¶ 9} Finally, even if we assume that the parties' settlement did not result in appellant's

waiver of its summary judgment motion, and further assuming that a Civ.R. 56 motion may be

used in R.C. 2329.84 proceedings, it is unclear whether such motions may be used in the

particular manner that appellant sought to use it. Appellant cites no precedent, and we have

found none in our own research, for the proposition that R.C. 2329.84 can be used as a means to

set aside transfers made to defraud creditors. It is true that the statute provides a remedy to

determine the ownership of goods that have been levied upon. Morris, supra, at 242. However,

the statute's principal purpose is to protect the sheriff from liability (in amercement) for levying

on goods that belong to someone other than a judgment debtor. Id. This is a summary

proceeding and title to the seized property is neither confirmed, acquired nor affected in any way.

Id. citing Armstrong v. Harvey, 11 Ohio St. 527, 531 (1860); Patty v. Mansfield, 8 Ohio 369,

370-371 (1838). Once again, other means exist to set aside fraudulent transfers. We question

whether a proceeding principally intended to protect a sheriff from liability for wrongful levy is

appropriate means to set aside allegedly fraudulent transfers.

        {¶ 10} Therefore, in view of the foregoing reasons, we conclude that the trial court did

not err by failing to grant summary judgment in favor of appellant. Accordingly, we hereby

overrule appellant's assignments of error and affirm the trial court’s judgment.

                                                                     JUDGMENT AFFIRMED.
[Cite as Gary Moeralli Excavating, Inc. v. Trimat Constr., Inc., 2013-Ohio-1311.]
                                           JUDGMENT ENTRY

        It is ordered that the trial court’s judgment be affirmed and that appellees recover of

appellants costs herein taxed.

        The Court finds there were reasonable grounds for this appeal.

        It is ordered that a special mandate issue out of this Court directing the Gallipolis

Municipal Court to carry this judgment into execution.

        A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

        McFarland, P.J. & Harsha, J.: Concur in Judgment & Opinion
                             For the Court




                                                                  BY:
                                                 Peter B. Abele, 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.
