[Cite as Rayco Mfg., Inc. v. Murphy, Rogers, Sloss & Gambel, 2018-Ohio-4782.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 106714


                                 RAYCO MANUFACTURING, INC.

                                                           PLAINTIFF-APPELLANT/
                                                           CROSS-APPELLEE

                                                     vs.

 MURPHY, ROGERS, SLOSS & GAMBEL, A PROFESSIONAL LAW CORPORATION,
                              ET AL.

                                                           DEFENDANTS-APPELLEES/
                                                           CROSS-APPELLANTS



                                        JUDGMENT:
                            AFFIRMED IN PART; REVERSED IN PART;
                                        REMANDED



                                        Civil Appeal from the
                               Cuyahoga County Court of Common Pleas
                                      Case No. CV-13-815844

        BEFORE: E.A. Gallagher, A.J., Stewart, J., and Boyle, J.

        RELEASED AND JOURNALIZED:                     November 29, 2018
ATTORNEYS FOR APPELLANT/CROSS-APPELLEE

Robert D. Kehoe
Kevin P. Shannon
Kehoe & Associates, L.L.C.
900 Baker Building
1940 East Sixth Street
Cleveland, Ohio 44114

J. Douglas Drushal
Andrew P. Lycans
Critchfield, Critchfield & Johnston Ltd.
P.O. Box 599
225 N. Market Street
Wooster, Ohio 44691

Steven J. Shrock
Critchfield, Critchfield & Johnston Ltd.
138 E. Jackson Street
Millersburg, Ohio 44654


ATTORNEYS FOR APPELLEES MURPHY, ROGERS, SLOSS & GAMBEL, A
PROFESSIONAL LAW CORPORATION, ROBERT H. MURPHY, PETER B. SLOSS,
GARY J. GAMBEL AND DONALD R. WING

Ernest E. Vargo
Michael E. Mumford
Baker & Hostetler, L.L.P.
127 Public Square, Suite 2000
Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEES/CROSS-APPELLANTS CAVITCH, FAMILIO &
DURKIN CO., L.P.A., DOUGLAS A. DIPALMA, MICHAEL C. COHAN AND ERIC J.
WEISS

Timothy Brick
Gallagher Sharp L.L.P.
Sixth Floor, Bulkley Building
1501 Euclid Avenue
Cleveland, Ohio 44115

Steven D. Strong
Gallagher Sharp L.L.P.
35 North Fourth Street
Suite 200
Columbus, Ohio 43215


EILEEN A. GALLAGHER, A.J.:

        {¶1} Plaintiff-appellant/cross-appellee Rayco Manufacturing, Inc. (“Rayco”) appeals from

the   trial   court’s    decision     granting    defendants-appellees/cross-appellants’         (collectively,

“appellees”)1 motion to enforce a settlement agreement that resolved legal malpractice claims

Rayco had filed against appellees. Rayco contends that the trial court erred in finding that there

was an enforceable settlement agreement. In their cross-appeal, appellees contend that the trial

court erred in denying their request to recover the attorney fees they incurred to enforce the

settlement agreement.      For the reasons that follow, we affirm the trial court’s decision to the

extent that it grants appellees’ motion to enforce the settlement agreement, reverse the trial court’s

decision to the extent that it denies appellees’ motion for attorney fees and remand the case for

further proceedings.

        Factual Background and Procedural History

        {¶2} In October 2013, Rayco filed a complaint against appellees for legal malpractice

arising out of appellees’ handling of a prior lawsuit Rayco had filed against Deutz Corporation and

Deutz AG (collectively, “Deutz”) for breach of warranty and other claims arising out of Deutz’s

sale of engines to Rayco. In that case, summary judgment was granted in favor of Deutz and

affirmed by the United States Court of Appeals for the Sixth Circuit.




1
Defendants-appellees/cross-appellants consist of Murphy, Rogers, Sloss & Gamble, A Professional Law Corporation;
Robert H. Murphy, Peter B. Sloss, Gary J. Gambel and Ronald R. Wing (collectively, “Murphy”); Cavitch, Familo &
Durkin Co., L.P.A., Douglas DiPalma, Michael C. Cohan and Eric J. Weiss (collectively, “Cavitch”).
       {¶3} In February 2015 and June 2016, the parties attempted to mediate their dispute with

the assistance of a retired judge as the mediator. At the second mediation, Rayco authorized the

mediator to convey a settlement demand of $3,050,000, in the aggregate, to appellees. At the

conclusion of the second mediation, no agreement had been reached but efforts to settle the case

continued.

       {¶4} In July 2016, the mediator issued a written recommendation to the parties,

recommending that they settle the case for $2,650,000 in the aggregate. Rayco’s counsel advised

the mediator that Rayco did not agree with the recommendation and that appellees would have to

pay the full $3,050,000 it had demanded to settle the case. In September 2016, with the consent

of all parties, the mediator met with Rayco’s chief executive, John Bowling, to further discuss the

possibility of resolving the case.   After the meeting, the mediator continued to have settlement

discussions with Rayco and its counsel by telephone.

       {¶5} In the fall of 2016, several pretrial conferences were cancelled at the parties’ request

due to ongoing settlement negotiations.   During this time period, one of Rayco’s attorneys, Robert

Kehoe, had discussions with appellees’ counsel in which he reiterated that the only way to settle

the case would be to pay Rayco’s full settlement demand of $3,050,000. Given the amount of the

demand, appellees needed to request additional authority from their insurance carriers to settle the

case. To that end, in late 2016, Murphy’s counsel and Cavitch’s counsel separately requested

written settlement demands from Rayco that they could submit to their insurance carriers.        In

January 2017, Cavitch’s counsel emailed Attorney Kehoe inquiring about the status of the

“demand letter” from Rayco.    Attorney Kehoe replied that he was “working on it.”

       {¶6} On January 26, 2017, Attorney Kehoe sent letters to Murphy’s counsel and Cavitch’s

counsel. He indicated that he was writing “to follow up on the June 23, 2016 mediation and
subsequent settlement discussions with [appellees’ counsel] and the mediator.” He stated that

Rayco had authorized the mediator to convey a “firm demand” of $3,050,000 to settle the case and

had “made it clear” that “$3,050,000 was an absolute aggregate amount necessary to settle the

case.” He further indicated that “[w]e have not explored the possibility of resolving Rayco’s

claims against [the Murphy and Cavitch appellees] independent[ly]” but that there was “enough

insurance coverage” for appellees “[i]n combination” to “meet Rayco’s demand.”

       {¶7} At a pretrial conference on January 30, 2017, the parties advised the trial court that

settlement negotiations were ongoing. A month later, on February 23, 2017, one of Murphy’s

attorneys, Ernie Vargo, with the consent of Cavitch’s counsel, sent an email to Rayco’s counsel,

stating as follows:

       This is in response to Rayco’s offer of settlement as set forth in your letter of
       January 26, 2017 to me. Counsel for Cavitch indicates that he has received a
       substantively similar letter on behalf of the Cavitch firm and named attorneys.

       The Murphy firm, Cavitch firm, and named lawyers from each firm accept the
       collective settlement demand of $3,050,000 in the aggregate. This acceptance is
       conditioned upon a full release and dismissal and other customary provisions to be
       negotiated and memorialized in a formal settlement agreement. Defendants agree
       to provide the initial draft of the written agreement to you for comments. Please
       expect the draft within 14 days of this email.

       Thank you for your efforts in negotiating this resolution with us.

       {¶8} Later that day, Attorney Kehoe responded to the email. He left a voicemail message

for Attorney Vargo, thanking him and requesting that he return his call, indicating, “I’d like to talk

to you briefly about the logistics and I note that you’ll take the first cut at the settlement documents

and have them in about 14 days, which is fine.” The following day, another of Rayco’s attorneys,

J. Douglas Drushal, emailed Attorney Vargo. He thanked Attorney Vargo for his February 23,
2017 email and stated that “[i]f he has not done so yet, [Attorney Kehoe] will be in touch shortly

with how we would like to proceed to finalize things.”

       {¶9} On March 2, 2017, Attorney Drushal emailed appellees’ counsel, stating, “I believe

we are waiting for the final versions of what your side wants signed in the way of releases, etc.

before presenting the package to Rayco. We need to know every detail before we can finalize.

Anything you could do to expedite that would be helpful. Thanks.”

       {¶10} On March 7, 2017, Murphy’s counsel emailed “defendants’ draft settlement

agreement and release” to Rayco’s counsel. Murphy’s counsel also inquired whether the parties

should notify the court that they had “an agreement in principle” given that a pretrial conference

was scheduled with the trial court for the following day.      Attorney Drushal responded: “Agree

that we should contact [the] court and say we don’t need the conference. I will defer to the rest of

you to coordinate that, assuming all others concur.” The trial court cancelled the March 8, 2017

pretrial conference at the parties’ request.

       {¶11} On March 10, 2017, Attorney Kehoe forwarded a red-lined version of the settlement

agreement “with suggested changes from Plaintiff’s counsel” along with a proposed dismissal entry.

 The suggested changes included a mutual release provision, i.e., in addition to Rayco’s release of

its claims against Murphy and Cavitch, Murphy and Cavitch would release any claims they had

against Rayco, and a provision that the trial court would retain jurisdiction over any disputes related

to the settlement agreement. Attorney Kehoe stated: “Kindly review and let us know if [the

suggested changes] are acceptable. If so, we will proceed to obtain our client’s signature.”
         {¶12} Appellees’ counsel made additional changes to the revised settlement agreement

circulated by Rayco’s counsel and sent a red-lined version of the document to Rayco’s counsel on

March 16, 2017.2

         {¶13} On April 4, 2017, Attorney Kehoe left a voicemail message for Attorney Vargo.

He indicated that “[t]he settlement document itself is fine” and that “[w]e had John [Bowling’s]

commitment to settle with the number that we agreed upon, but he’s being a little bit difficult in

getting the document signed.”

         {¶14} Rayco never signed the settlement agreement.

         {¶15} On June 16, 2017, appellees filed a motion to enforce the settlement agreement.

Appellees asserted that the parties had agreed to settle the case on February 23, 2017 but that

Rayco refused to sign the settlement agreement.               Appellees requested that the court enforce the

settlement agreement and award them the attorney fees they incurred to enforce the settlement

agreement.

         {¶16} Rayco opposed the motion.                It argued that there was no settlement agreement

because, by the time appellees “accepted” the $3,050,000 settlement offer Rayco made at the June

2016 mediation, it had lapsed.          Rayco further argued that its counsel’s January 26, 2017 letters

simply summarized the parties’ past settlement positions and indicated Rayco’s “willingness to

re-open negotiations” and were not settlement offers.




2
 All drafts of the settlement agreement exchanged between the parties, including the “final” version of the settlement
agreement, included a “costs” provision that stated, “[t]he Parties shall bear their own costs, expenses, and attorney
fees in connection with this agreement,” and a “specific performance” provision that stated, “[t]he Parties agree that,
in the event of a breach of the terms of this Agreement, there will be no adequate remedy at law to remedy such
breach and, accordingly, the Parties agree that specific performance may be awarded to enforce the terms of this
Agreement.”
        {¶17} The trial court held an evidentiary hearing on the motion to enforce the settlement.

The hearing was held before an advisory jury, which the trial court empaneled, sua sponte, to

address the issue of “whether the parties entered into a contract to settle the lawsuit.”

        {¶18} Attorney Vargo (one of Murphy’s attorneys), Attorney Timothy Brick (one of

Cavitch’s attorneys), and two of Rayco’s attorneys, Attorneys Kehoe and Drushal, testified at the

hearing.    The parties also submitted a joint stipulation of undisputed facts. The 38 facts to

which the parties stipulated detailed the history of the parties’ settlement negotiations and included

15 documents created or exchanged by the parties during the course of their settlement

negotiations.3

        {¶19} During their testimony, Attorneys Vargo and Brick “walked through” the parties’

stipulations and incorporated exhibits.            Appellees argued there were at least three potential

“offers” and three potential “acceptances” that gave rise to an enforceable settlement agreement.

Appellees argued that Rayco’s counsel’s January 26, 2017 letters to appellees’ counsel constituted

offers that appellees accepted by means of Attorney Vargo’s February 23, 2017 email to Rayco’s

counsel. They argued that the subsequent conduct of counsel, i.e., exchanging drafts of the

settlement agreement, constituted further evidence of the parties’ agreement to settle the case.

Alternatively, appellees argued that (1) Murphy’s counsel’s February 23, 2017 email constituted a

counteroffer to settle the case for $3,050,000 that Rayco accepted (a) by means of Attorney

Kehoe’s voicemail message to Attorney Vargo later that day or (b) by means of the email Attorney

Drushal sent to Attorney Vargo the following day or (2) Rayco’s counsel submission of the revised


3
  Prior to the hearing the parties filed a joint motion for leave to file a stipulation of undisputed facts regarding
appellees’ motion to enforce the settlement agreement. In their joint motion, the parties asserted that there were no
disputed questions of material fact relevant to the motion to enforce the settlement agreement, that an advisory jury
was no longer necessary and that “[t]he sole remaining question is whether the undisputed facts give rise to a binding
settlement agreement as a matter of law.” The trial court denied the motion.
settlement agreement (which included mutual releases and other changes) to appellees’ counsel on

March 10, 2017 constituted an offer to settle the case for $3,050,000 that appellees accepted on

March 16, 2017, when they made additional changes to the revised settlement agreement and

returned the document to Rayco’s counsel.

       {¶20} Attorney Kehoe testified upon cross-examination. He acknowledged the “tru[th]

and accura[cy]” of the facts set forth in the parties’ joint stipulation and confirmed that he was

authorized to enter into the stipulation on behalf of Rayco. He indicated that he sent the January

26, 2017 letters to appellees’ counsel in response to their request for a written settlement demand

and that Rayco had authorized him to send the letters. He further acknowledged receipt of

Attorney Vargo’s February 23, 2017 email, indicating that appellees agreed to pay the amount

Rayco had demanded ($3,050,000 in the aggregate), that he understood the email was sent on

behalf of both Murphy and Cavitch and that he and appellees’ counsel thereafter exchanged

various emails congratulating and thanking one another for “working so hard to get this done.”

Attorney Kehoe testified that after he received Attorney Vargo’s February 23, 2017 email, he

reported the settlement to Bowling. He indicated that Bowling accepted his congratulations on the

settlement and did not dispute that the case had been settled or object to the settlement at that time.

 He further testified, however, that when Bowling was presented with the settlement documents,

he was “unwilling to sign” them.       According to Attorney Kehoe, Bowling told him that he

believed the settlement of the lawsuit was like a real estate transaction, i.e., that the deal was not

finalized and there was no settlement until he signed the written settlement agreement.      Attorney

Kehoe further testified, however, that he had fully intended to consummate a settlement through

his communications with appellees’ counsel.
          {¶21} Attorney Drushal testified that he interpreted his co-counsel’s January 26, 2017

letters not as a “renewed demand” or “offer that could be accepted” but rather, as a “recitation of

the history of what had happened” and “as seeking an offer from the lawyers, law firms, and their

insurance company which would be presented to Mr. Bowling to see if he would accept it at that

point.” He further testified that, as he communicated in his March 2, 2017 email, in his view,

“everybody needed to sign off on” the final version of the agreement before the parties had a

settlement.

          {¶22} After the parties concluded their presentation of evidence and gave closing

arguments, the advisory jury deliberated.            Six interrogatories were submitted to the advisory jury.

    The advisory jury answered interrogatories indicating that the parties had entered into a settlement

agreement and signed a verdict form in favor of appellees and against Rayco on the motion to

enforce the settlement agreement.4

          {¶23} After dismissing the jury, the trial court stated that “[b]ased upon the evidence

hearing and having taken into consideration or under consideration the jury’s verdict in this case, I

find that the motion to enforce the settlement is well taken.”

          {¶24} On December 14, 2017, the trial court issued a written decision granting appellees’

motion to enforce the settlement agreement. The trial court determined, “[b]ased upon all the

evidence,” that the parties had “a contract to settle with terms clear and enforceable,” as a result of




4
  One of the trial court’s November 9, 2017 journal entries states: “The jury answered interrogatories to the effect that
the parties did enter into an enforceable settlement agreement and signed a verdict form in favor of the defendants.”
The interrogatories submitted to the advisory jury, the advisory jury’s answers to those interrogatories and the jury’s
signed verdict form were not included in the record this court received on appeal. And the jury’s answers to the
interrogatories were not read into the record. Accordingly, we do not know what specific findings were made by the
advisory jury.
Rayco’s “acceptance” of appellees’ February 23, 2017 “offer” to settle the case for $3,050,000.

As the trial court explained:

       In this case, on February 23 the defendants unambiguously offered the plaintiff a

       settlement of $3,050,000 in exchange for a dismissal of all claims against all

       defendants. The plaintiff — through counsel but with the authority of Rayco’s

       chief executive — accepted that offer as shown by trial counsel’s February 23

       voicemail and as further evidenced by: 1) plaintiff’s co-counsel’s email that same

       day, 2) the plaintiff’s March 10 proposed release of all claims leaving the figure of

       $3,050,000 undisturbed and 3) the plaintiff’s confirmation on April 4 that “the

       settlement document (release dated March 16 and drafted by the defendants) is fine”

       and that Bowling had previously accepted the proffered settlement.

The trial court ordered the parties to “conclude the settlement under the terms outlined in the

March 16, 2017, written settlement agreement.”

       {¶25} The trial court, however, denied appellees’ request to recover the attorney fees they

had incurred to enforce the settlement agreement based on the “American rule,” i.e., that each party

to a lawsuit is responsible for its own attorney fees unless they agreed otherwise, had a statutory

entitlement to attorney fees or the other party acted in bad faith. Because the parties did not agree

to shift fees, because there was no applicable statute providing for the recovery of attorney fees and

because there was “insufficient evidence of the reasons for, and nature of, Bowling’s resistance to

finalizing the settlement” to support a finding that Rayco acted in bad faith by refusing to finalize

the settlement, the trial court held that appellees were not entitled to recover the attorney fees they

incurred in enforcing the settlement agreement.

       {¶26}     Rayco appealed, raising the following three assignments of error for review:
          I. The trial court erred in finding that there was an enforceable settlement
          agreement entered into by the parties.

          II. The trial court erred by permitting appellees’ counsel to testify in violation of
          the witness advocate rule.

          III. The trial court erred in applying a preponderance of the evidence standard to

          determine whether there was an enforceable settlement agreement.

          {¶27} Murphy and Cavitch cross-appealed, raising the following single assignment of error

for review:

          Whether the trial court erred as a matter of law when it failed to award appellees

          reasonable attorney fees incurred to enforce the settlement agreement.

          {¶28} For ease of discussion, we address Rayco’s assignments of error out of order.

          Law and Analysis

          Motion to Enforce Settlement Agreement

          Standard of Review

          {¶29} The standard of review applied when reviewing a ruling on a motion to enforce a

settlement agreement depends on the question presented.             If the question is a factual or

evidentiary one, the reviewing court will not overturn the trial court’s finding if there was

sufficient evidence to support the finding. Turoczy Bonding Co. v. Mitchell, 8th Dist. Cuyahoga

No. 106494, 2018-Ohio-3173, ¶ 15, citing Chirchiglia v. Ohio Bur. of Workers’ Comp., 138 Ohio

App.3d 676, 679, 742 N.E.2d 180 (7th Dist.2000). If the issue is a question of contract law, the

reviewing court must determine whether the trial court’s order is based on an erroneous standard or

a misconstruction of the law. Turoczy at ¶ 15. Rayco raises both factual and legal issues in its

appeal.

          Requirements for an Enforceable Settlement Agreement
          {¶30} A settlement agreementis a contract designed to terminate a claim by preventing or

ending litigation. Continental W. Condominium Unit Owners Assn. v. Howard E. Ferguson, Inc.,

74 Ohio St.3d 501, 502, 660 N.E.2d 431 (1996). Like any other contract, it requires an offer,

acceptance, consideration and mutual assent between two or more parties with the legal capacity to

act. See, e.g., Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, ¶ 16; Rulli

v. Fan Co., 79 Ohio St.3d 374, 376, 683 N.E.2d 337 (1997). For a contract to be enforceable,

there must be a “meeting of the minds” as to the essential terms of the agreement.   Kostelnik at ¶

16-17.     The essential terms of the agreement must be “‘reasonably certain and clear’” and

mutually understood by the parties. Id., quoting Rulli at 376. As the Ohio Supreme Court

explained in Rulli:

          “A court cannot enforce a contract unless it can determine what it is. * * * [The
          parties] must have expressed their intentions in a manner that is capable of being
          understood. It is not even enough that they had actually agreed, if their
          expressions, when interpreted in the light of accompanying factors and
          circumstances, are not such that the court can determine what the terms of that
          agreement are.”

Rulli, at 376, quoting 1 Corbin on Contracts, Section 4.1, at 525 (Rev.Ed.1993). The burden of

establishing the existence and terms of a settlement agreement lies with the party who claims its

exists.    Turoczy at ¶ 19, citing Nilavar v. Osborn, 127 Ohio App.3d 1, 11, 711 N.E.2d 726 (2d

Dist.1998).

          {¶31} Once a settlement offer has been accepted, the settlement agreement is mutually

binding; the settlement agreement cannot be set aside simply because one of the parties later

changes its mind. See, e.g., Turoczy at ¶ 18 (“Once there is * * * a meeting of the minds, one

cannot refuse to proceed with settlement due to a mere change of mind.”), citing Mack v. Polson

Rubber Co., 14 Ohio St.3d 34, 36-37, 470 N.E.2d 902 (1984); Clark v. Corwin, 9th Dist. Summit
No. 28455, 2018-Ohio-1169, ¶ 13 (“‘[W]hen the parties agree to a settlement offer, [the]

agreement cannot be repudiated by either party, and the court has the authority to sign a journal

entry reflecting the agreementand to enforce the settlement.”); Kostelnik, 96 Ohio St.3d 1,

2002-Ohio-2985, 770 N.E.2d 58, at ¶ 17 (“‘[A]ll agreements have some degree of indefiniteness

and some degree of uncertainty’”; however, “‘people must be held to the promises they make.’”),

quoting 1 Corbin on Contracts, Section 4.1 at 530 (Perillo Rev.Ed.1993). It is only where the

parties intend that there will be no contract until the agreement is fully reduced to writing and

executed that no settlement exists unless the final, written settlement agreement is signed by all of

the parties. PNC Mtge. v. Guenther, 2d Dist. Montgomery No. 25385, 2013-Ohio-3044, ¶ 15. If

a client authorizes its attorney to negotiate a settlement and the attorney negotiates a settlement

within the scope of that authority, the client is bound by it.        See, e.g., Bromley v. Seme,

2013-Ohio-4751, 3 N.E.3d 1254, ¶ 25 (11th Dist.) (“ ‘It is well-recognized that a party may be

bound by the conduct of his or her attorney in reaching a settlement.”), quoting Saylor v. Wilde,

11th Dist. Portage No. 2006-P-0114, 2007-Ohio-4631, ¶12. A party cannot avoid a settlement

that was negotiated through counsel by claiming that his attorney lacked actual authority to enter

into the settlement. See, e.g., Fugo v. White Oak Condominium Assn., 8th Dist. Cuyahoga No.

69469, 1996 Ohio App. LEXIS 2725, 8-12 (June 27, 1996); Klever v. Stow, 13 Ohio App.3d 1, 4-5,

468 N.E.2d 58 (9th Dist.1983); see also Argo Plastic Prods. Co. v. Cleveland, 15 Ohio St.3d 389,

392-393, 474 N.E.2d 328 (1984).

       The Existence of an Enforceable Settlement Agreement

       {¶32} In its first assignment of error, Rayco contends that the trial court erred in finding

that the parties entered into an enforceable settlement agreement because (1) the $3,050,000

settlement offer Rayco made at the June 2016 mediation had lapsed by the time appellees
purported to accept it and (2) its counsel’s January 26, 2017 letters simply indicated Rayco’s

“willingness to re-open negotiations” and were not sufficiently “certain and clear regarding the

settlement terms” to constitute a valid settlement offer. Rayco asserts that these letters simply

summarized the parties’ past settlement positions and made it clear that Rayco was still willing to

consider settlement rather than specifying the terms upon which Rayco would settle the case.

Rayco further contends that the letters could not be deemed settlement offers because they did not

specifically allocate settlement amounts between Murphy and Cavitch and because they lacked

“other essential settlement terms required to execute a proper settlement agreement.”

       {¶33} The trial court, however, did not find an enforceable settlement agreement based on

the settlement demand Rayco made at the mediation or its counsel’s January 26, 2017 letters to

appellees’ counsel. Rather, the trial court found that Murphy’s counsel’s February 23, 2017 email

constituted an “unambiguous offer” to Rayco to settle the case for $3,050,000, which Rayco

accepted when its counsel, Attorney Kehoe, left a voicemail message for Murphy’s counsel later

that day. The trial court found that the parties’ agreement was “further evidenced” by (1) Attorney

Drushal’s February 24, 2017 email, (2) Rayco’s counsel’s circulation of its proposed revisions to

the settlement agreement on March 10, 2017 leaving the figure of $3,050,000 undisturbed and (3)

Attorney Kehoe’s statement on April 4, 2017 that “the settlement document is fine” and that

Bowling had previously agreed to the settlement.

       {¶34} Accordingly, Rayco’s first assignment of error is meritless.

       Standard of Proof

       {¶35} In its third assignment of error, Rayco contends that the trial court instructed the jury

regarding, and itself applied, the wrong standard of proof. Rayco argues that if the trial court had

properly instructed the jury that appellees needed to prove the existence of a settlement agreement
by clear and convincing evidence rather than a preponderance of the evidence, “the jury may well

have ruled in Rayco’s favor.” Rayco further argues that “[t]o the extent the trial court acted

independently of the advisory jury,” the trial court erred in applying a preponderance of the

evidence standard rather than a clear and convincing evidence standard in determining whether a

settlement agreement existed.

       {¶36} This was a bench trial with an advisory jury pursuant to Civ.R. 39(C)(1). The

advisory jury in this case was not the factfinder. After receiving answers to interrogatories and the

verdict from the advisory jury, the trial court made its own findings of fact and conclusions of law.

 As the trial court stated in its journal entry: “Based upon all the evidence, I find that there is a

contract to settle with terms that are clear and enforceable.” As such, any error in the trial court’s

instructions to the advisory jury was harmless.

       {¶37} There is no indication in either the trial transcript or the trial court’s decision what

standard of proof the trial court applied in determining that a settlement agreement existed. As a

general matter, “[a] presumption of regularity attaches to all judicial proceedings.”        State v.

Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, 982 N.E.2d 684, ¶ 19.               This presumption of

regularity extends to the trial court’s application of the correct burden of proof.        Thus, we

presume that the trial court applied the correct legal standard absent an affirmative demonstration

otherwise. See, e.g., In re Adoption of K.N.W., 4th Dist. Athens Nos. 15CA36 and 15CA37,

2016-Ohio-5863, ¶ 44; Wilson v. Jones, 3d Dist. Seneca No. 13-13-06, 2013-Ohio-4638, ¶ 28.

       {¶38} Citing Brilla v. Mulhearn, 168 Ohio App.3d 223, 2006-Ohio-3816, 859 N.E.2d 578,

¶ 21 (9th Dist.), Foor v. Columbus Real Estate Pros.com, 5th Dist. Delaware No. 12 CAE 08 0063,

2013-Ohio-2848, ¶ 26, and Ivanicky v. Pickus, 8th Dist. Cuyahoga No. 91690, 2009-Ohio-37, ¶ 8,

13, Rayco contends that “[w]hen asked to enforce a settlement agreement,” the “correct legal
standard” is whether the record contains clear and convincing evidence of both the terms of the

settlement agreement and the parties’ assent to those terms. Rayco further contends that since the

trial court instructed the advisory jury that appellees needed to prove the existence of a settlement

agreement by a preponderance of the evidence, we must assume that the trial court applied a

preponderance of the evidence standard in determining that the parties had agreed to settle the case

for $3,050,000.

       {¶39}      Following a thorough review of the record and the relevant case law, we cannot

say that the trial court applied the wrong standard of proof in determining that a settlement

agreement existed in this case. In the cases cited by Rayco, the evidence the court relied upon

when referencing the clear and convincing evidence standard was evidence of an oral settlement

agreement. See Brilla at ¶ 20-21 (observing that “a settlement agreement may be enforced

regardless of whether it has been reduced to writing, as long as the terms of the agreement can be

established by clear and convincing evidence” and concluding that an enforceable settlement

agreement existed where, “even disregarding the magistrate’s documentation of [the parties’

settlement] agreement,” it was clear to the court that the terms of the agreement and appellant’s

assent to those terms “may be established by clear and convincing evidence”), citing Shetler v.

Shetler, 9th Dist. Wayne No. 00CA0070, 2001 Ohio App. LEXIS 2289, 3 (May 23, 2001) (“An

oral settlement agreement ‘can be enforced by the court in those circumstances where the terms of

the agreement can be established by clear and convincing evidence.’”), quoting Pawlowski v.

Pawlowski, 83 Ohio App.3d 794, 799, 615 N.E.2d 1071 (10th Dist.1992); Foor at ¶ 5, 26 (where

during a telephone conversation, counsel agreed that the parties would each “walk away” but the

parties did not mutually understand what that meant, court erred in finding that a “completed

settlement agreement” was proven by clear and convincing evidence); see also Cugini & Capoccia
Builders, Inc. v. Tolani, 5th Dist. Delaware No. 15 CAE 10 0086, 2016-Ohio-418, ¶ 18 (“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”); Stanton v. Holler, 7th Dist.

Belmont No. 07 BE 29, 2008-Ohio-6208, ¶ 14 (“A settlement agreement that has not been reduced

to writing may be enforced if its terms can be established by clear and convincing evidence.”).

       {¶40} In this case, by contrast, the purported settlement agreement is evidenced by writings

on all sides, including the mutual exchange of drafts of the written settlement agreement that set

forth the essential terms of the settlement.

       {¶41} Further, in Ivanicky, although the appellant argued on appeal that the trial court had

erred in enforcing appellee’s motion to enforce settlement agreement because appellee did not offer

clear and convincing evidence that an oral settlement agreement had been reached, this court held

only that the trial court had erred in failing to hold an evidentiary hearing prior to confirming the

settlement; it did not indicate what standard should be applied in determining whether an

enforceable settlement agreement existed. Ivanicky at ¶ 8, 13.

       {¶42} Particularly where, as here, there is written evidence of a settlement agreement, other

courts — including this court — have indicated that a preponderance of the evidence standard

applies in determining whether a settlement agreement exists. See, e.g., Hillbrook Bldg. Co. v.

Corporate Wings, 8th Dist. Cuyahoga No. 68619, 1996 Ohio App. LEXIS 3854, 9-13 (Sept. 5,

1996) (“‘Reduced to its simplest terms, a settlement agreement is a contract. The party asserting

the contract (settlement agreement) must prove by a preponderance of the evidence the existence of

the elements of the contract, including an offer, acceptance and consideration as to the existence of

the contract and as to its terms.’”), quoting Ohio State Tie & Timber, Inc. v. Paris Lumber Co., 8

Ohio App.3d 236, 456 N.E.2d 1309 (10th Dist.1982); see also Sutter v. Henkle, 3d Dist. Mercer
No. 10-15-14, 2016-Ohio-1143, ¶ 9; Savoy Hospitality, LLC v. 5839 Monroe St. Assocs. LLC, 6th

Dist. Lucas No. L-14-1144, 2015-Ohio-4879, ¶ 26; Burrell Indus. v. Cent. Allied Ents., 7th Dist.

Belmont Nos. 96 BA 18 and 96 BA 25, 1998 Ohio App. LEXIS 6176, *12-13 (Dec. 15, 1998);

Rondy, Inc. v. Goodyear Tire Rubber Co., 9th Dist. Summit No. 21608, 2004-Ohio-835, ¶ 7; State

v. Lomaz, 11th Dist. Portage Nos. 2002-P-0118, and 2003-P-0062, 2006-Ohio-3886, ¶ 48;

DSW, Inc. v. Zina Eva, Inc., S.D.Ohio No. 2:11-cv-0036, 2011 U.S. Dist. LEXIS 143377, *5 (Dec.

13, 2011), quoting Ohio State Tie & Timber (“Although there is some suggestion that if the

agreement is oral only, the burden of proof is by clear and convincing evidence, * * * where there

is a written agreement, the burden (under Ohio law) appears to be the same as in any other case

based on breach of contract, and that is to ‘prove by a preponderance of the evidence the existence

of the elements of the contract, including offer, acceptance and consideration both as to the

existence of the contract and as to its terms.’”).

       {¶43} In this case, however, regardless of whether a preponderance of the evidence or a

clear and convincing evidence standard applies, a review of the record shows that the trial court’s

finding that the parties entered into an enforceable settlement agreement is supported by sufficient

competent, credible evidence.        Here, the material facts relating to the parties’ settlement

negotiations were undisputed. Based on the facts set forth in the parties’ joint stipulation of

undisputed facts, not only was there a clear offer and acceptance showing a mutual understanding

of the essential terms, the parties thereafter confirmed their settlement agreement in various

follow-up communications.        The only evidence Rayco offered to refute the existence of a

settlement agreement was Attorney Drushal’s testimony that he believed “everybody needed to

sign off” on the final version of the agreement before the parties had a settlement.   However, that

testimony was contradicted by (1) his co-counsel’s April 4, 2017 voicemail message to Attorney
Vargo (in which Attorney Kehoe stated indicated that “[t]he settlement document itself is fine” and

that “[w]e had John [Bowling’s] commitment to settle with the number that we agreed upon, but

he’s being a little bit difficult in getting the document signed”) and (2) Attorney Kehoe’s testimony

at the hearing that he had intended, by his words and actions, to consummate a settlement with

appellees’ counsel.   Thus, the uncontroverted evidence in this case was not only sufficient to

prove the existence of a settlement agreement by the greater weight of the evidence under a

preponderance of the evidence standard but was also sufficient to produce a firm belief or

conviction in the mind of the trier of fact as to the existence of a settlement agreement, so as to

establish the existence of a settlement agreement under a clear and convincing evidence standard.

See In re Phillips, 3d Dist. Marion Nos. 9-96-44, 9-96-45, and 9-96-46, 1997 Ohio App. LEXIS

1152, 4-8 (Mar. 13, 1997) (trial court’s improper use of a lower standard of proof was harmless

error where the evidence plainly demonstrated that the movant had proven its case by the requisite

clear and convincing evidence).

       {¶44} Accordingly, we overrule Rayco’s third assignment of error.

       The Witness-Advocate Rule

       {¶45} In its second assignment of error, Rayco argues that the trial court erred by

permitting appellees’ counsel to testify at the hearing in violation of the “witness-advocate rule.”

The “witness-advocate rule” is based on Ohio R.Prof.Cond. 3.7(a). That rule provides:

       A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a
       necessary witness unless one or more of the following applies:

       (1) the testimony relates to an uncontested issue;

       (2) the testimony relates to the nature and value of legal services rendered in the
       case;

       (3) the disqualification of the lawyer would work substantial hardship on the client.
       {¶46} Prof.Cond.R. 3.7(a), however “does not render a lawyer incompetent to testify as a

witness on behalf of his client. Rather, * * * the [r]ule functions to allow the court to exercise its

inherent power of disqualification to prevent a potential violation of [the ethics rules].” Damron

v. CSX Transp., Inc., 184 Ohio App.3d 183, 2009-Ohio-3638, 920 N.E.2d 169, ¶ 39 (2d Dist.); see

also Mentor Lagoons, Inc. v. Rubin, 31 Ohio St.3d 256, 258-259, 510 N.E.2d 379 (1987) (noting

that the “Code of Professional Responsibility ‘does not delineate rules of evidence but only sets

forth strictures on attorney conduct’” and that “[w]hen an attorney seeks to testify, his employment

as counsel goes to the weight, not the competency, of his testimony”), quoting Universal Athletic

Sales Co. v. Am. Gym, Recreational & Athletic Equip. Corp., 546 F.2d 530, 539 (3d Cir. 1976). In

Mentor Lagoons, the Ohio Supreme Court, applying the disciplinary rules then in place, set forth a

procedure for courts to follow in determining whether a lawyer can serve as both an advocate and a

witness.   Mentor Lagoons at paragraph two of the syllabus; see also 155 N. High, Ltd. v.

Cincinnati Ins. Co., 72 Ohio St.3d 423, 427-428, 650 N.E.2d 869 (1995). As the Second District

explained in Damron, when applying that procedure in the context of the subsequently adopted

Ohio Rules of Professional Conduct:

       In determining whether a lawyer can serve as both an advocate and a witness, a
       court must first determine the admissibility of his testimony without reference to the
       Disciplinary Rules. If the court finds the testimony admissible, and a party or the
       court moves for the attorney to withdraw or be disqualified, the court must then
       consider whether any exceptions to Prof.Cond.R. 3.7(a) apply to permit the attorney
       to both testify and continue representation.

Id. at ¶ 39. Where a party moves for disqualification, the moving party bears the burden of

proving that disqualification is necessary. McCormick v. Maiden, 6th Dist. Erie No. E-12-072,

2014-Ohio-1896, ¶ 11, citing Baldonado v. Tackett, 6th Dist. Wood No. WD-08-079,
2009-Ohio-4411, ¶ 20.      The burden of proving that one of the exceptions in Prof.Cond.R.

3.7(a)(1)-(3) applies falls upon the attorney seeking to claim the exception. McCormick at ¶ 11.

       {¶47} In this case, the trial court was not asked to exercise its “inherent power of

disqualification” to prevent a potential violation of the Rules of Professional Conduct. Instead,

after appellees’ counsel conducted voir dire, gave their opening statements and called their first

witness — Attorney Vargo — Rayco’s counsel objected to his testimony based on the

witness-advocate rule.

       {¶48} It should have come as no surprise that counsel for appellees would testify at the

evidentiary hearing. This is not a case in which the testimony presented could have been elicited

by other means. Aside from the mediator and the clients themselves, who were not directly

involved in the settlement negotiations after the parties stopped working with the mediator, the

only persons with personal knowledge regarding the parties’ settlement negotiations were the

parties’ attorneys. Although the parties had attempted to avoid having their attorneys testify by

submitting a joint motion for leave to file stipulation of undisputed facts regarding defendants’

motion to enforce settlement agreement, the trial court denied their request to have appellees’

motion decided based on the stipulation.

       {¶49}     As explained in the comments to Prof.Cond.R. 3.7, the rationale for the

advocate-witness rule is as follows:

       The tribunal has proper objection when the trier of fact may be confused or misled
       by a lawyer serving as both advocate and witness. The opposing party has proper
       objection where the combination of roles may prejudice that party's rights in the
       litigation. A witness is required to testify on the basis of personal knowledge, while
       an advocate is expected to explain and comment on evidence given by others. It
       may not be clear whether a statement by an advocate-witness should be taken as
       proof or as an analysis of the proof.

Comment 2, Prof.Cond.R. 3.7.
       {¶50} Rayco argues that it was prejudiced by appellees’ counsel serving as both witnesses

and advocates at the hearing because it enabled appellees’ counsel to refer to their own testimony

during closing arguments and urge the jury to accept their recitation of the facts — in essence

vouching for “the truthfulness of their own testimony.”

       {¶51} However, in this case, the jury had only an advisory role. The advisory jury gave its

“advice,” based on its view of the evidence, to the trial court, but its decision was not binding on

the trial court. The trial court was required to make its own independent findings of fact and

conclusions of law as if there had been no verdict from the advisory jury. The trial court was well

aware of the different roles assumed by appellees’ counsel at the hearing and was not likely to be

confused or misled by the lawyers’ dual capacities. See Michael P. Harvey Co., L.P.A. v. Ravida,

2012-Ohio-2776, 972 N.E.2d 1087, ¶ 5 (8th Dist.) (noting that “[t]he concerns expressed in the

comments to Prof.Cond.R. 3.7(a)(2)” had “no applicability” where the case was tried to the court,

the court “fully understood” that lawyer was acting pro se and “should have been able to

distinguish between his role as advocate and his role as a witness without the same risk of

confusion that might have been present had the case been tried to a jury”).

       {¶52} Further, the matters as to which appellees’ counsel testified were not in dispute. See

Prof.Cond.R. 3.7(a)(1). Appellees’ counsel’s testimony tracked the stipulation of undisputed facts

the parties had jointly submitted and admitted into evidence at the hearing. When testifying on

cross-examination, Attorney Kehoe acknowledged that 95 percent of appellees’ counsel’s

testimony was “substantively accurate” and that the “few details around the edges that [he] might *

* * state differently” were not material.
           {¶53} Accordingly, Rayco was not prejudiced by appellees’ attorneys’ testimony and the

trial court did not abuse its discretion or otherwise err in permitting appellees’ attorneys to testify

at the hearing. See Erie Air Conditioning & Heating, Inc. v. S.C. Co., 8th Dist. Cuyahoga No.

63216, 1993 Ohio App. LEXIS 3652, 19-22 (July 22, 1993) (trial court did not abuse its discretion

in failing disqualify plaintiff’s counsel or in allowing plaintiff’s counsel to testify in defense of

counterclaim and in rebuttal of defendants’ case-in-chief where motion to disqualify counsel was

filed on the eve of trial and to have prevented counsel from testifying would have worked a

substantial hardship on the client given counsel’s unique role in the contested dealings). Rayco’s

second assignment of error is overruled.

           Request for Attorneys’ Fees Incurred to Enforce the Settlement Agreement

           {¶54} In their cross-assignment of error, appellees contend that the trial court erred in

denying their request for an award of the reasonable attorney fees they incurred to enforce the

parties’ settlement agreement.      We agree.

           {¶55} Ordinarily, the decision whether to award attorney fees is within the sound discretion

of the trial court. See, e.g., Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720, 892

N.E.2d 454, ¶ 15, citing Bittner v. Tri-County Toyota, Inc., 58 Ohio St.3d 143, 146, 569 N.E.2d

464 (1991); Buck v. Pine Crest Condominium Assn. Group D-E-F, 8th Dist. Cuyahoga No. 97861,

2012-Ohio-5722, ¶ 27. Absent a clear abuse of that discretion, the trial court’s decision should

not be reversed. An abuse of discretion implies that a decision is unreasonable, arbitrary, or

unconscionable.       It may be found where the trial court applies the wrong legal standard,

misapplies the correct legal standard or relies on clearly erroneous findings of fact.           Resco

Holdings, L.L.C. v. AIU Ins. Co., 8th Dist. Cuyahoga No. 106234, 2018-Ohio-2844, ¶ 13; Thomas

at ¶ 15.
       {¶56} Public policy strongly favors the enforcement of settlement agreements. See, e.g.,

Spercel v. Sterling Industries, Inc., 31 Ohio St.2d 36, 38, 285 N.E.2d 324 (1972) (“‘The law favors

the resolution of controversies and uncertainties through compromise and settlement rather than

through litigation. * * * The resolution of controversies * * * by means of compromise and

settlement * * * results in a saving of time for the parties, the lawyers, and the courts, and it is thus

advantageous to judicial administration, and, in turn, to government as a whole.’”), quoting 15

American Jurisprudence 2d, Compromise and Settlement, Section 4 at 938; Turoczy, 8th Dist.

Cuyahoga No. 106494, 2018-Ohio-3173, at ¶ 16 (“Settlement agreements are generally favored in

the law.”); see also Fugo, 8th Dist. Cuyahoga No. 106469, 1996 Ohio App. LEXIS 2725, at 10

(“public policy strongly favors the enforcement of settlements freely arrived at”).

       {¶57} Ohio follows the “American rule,” which provides that a prevailing party in a civil

action may not generally recover their attorney fees as part of the costs of litigation unless attorney

fees are provided for by statute, the non-prevailing party acts in bad faith or there is an enforceable

contract that specifically provides for the losing party to pay the prevailing party’s attorney fees.

Wilborn v. Bank One Corp., 121 Ohio St.3d 546, 2009-Ohio-306, 906 N.E.2d 396, ¶ 7. Appellees

do not contend that any of these exceptions apply here.

       {¶58} Rather, appellees argue that, notwithstanding the American rule, they are entitled to

recover the reasonable attorney fees they incurred in enforcing the parties’ settlement agreement as

compensatory damages for Rayco’s breach of the settlement agreement.

       {¶59} This court previously addressed the issue of whether a party can recover attorney fees

as compensatory damages for breach of a settlement agreement in Berry v. Lupica, 196 Ohio

App.3d 687, 2011-Ohio-5381, 965 N.E.2d 318 (8th Dist.).
       {¶60}    In Berry, an employee, Berry, filed suit against his supervisor and employer,

Wachovia Securities (“Wachovia”), alleging that Wachovia breached an agreement to pay the full

amount of Berry’s share of an arbitration award that had been entered against Berry in an

arbitration between Berry and his former employer, Merrill Lynch. Id. at ¶ 1. The arbitration

panel awarded Merrill Lynch $250,000 on its claims against Berry and awarded Berry $125,000 on

his claim against Merrill Lynch. Id. at ¶ 2. Wachovia paid the $250,000 judgment against Berry.

Id. at ¶ 3. Berry endorsed the $125,000 check he received from Merrill Lynch and gave it to his

Wachovia branch manager with a note requesting that the check be placed on deposit “to offset the

interest due on our contract” and indicating that “[t]he $125,000 is to be returned on demand.” Id.

at ¶ 3-4. The check was deposited into a Wachovia account dedicated to legal settlements. Berry

later asked to have the check returned to him but Wachovia refused to return it. Id. at ¶ 5.

Wachovia filed a counterclaim, alleging that Berry had breached an agreement that he would

reimburse Wachovia for certain of the amounts it had paid to Merrill Lynch in satisfaction of the

arbitration award. Id. at ¶ 1, 6. It sought to recover as damages the attorney fees it would be

required to expend to enforce the agreement. Id. at ¶ 6.

       {¶61} At trial, the issue was whether the parties had agreed that the sum Berry received

from Merrill Lynch would be set off against the $250,000 Wachovia paid to Merrill Lynch to

satisfy the judgment against Berry. Id. at ¶ 7. In its closing argument, Wachovia asked the jury

to “return an award * * * for $133,691 which is the amount of the fees and expenses we’ve

incurred in defending the case.” Id. at ¶ 34. The jury found against Berry on all of his claims and

in favor of Wachovia on its counterclaim; it awarded Wachovia $432,000 in damages for the

attorney fees Wachovia incurred in enforcing the settlement agreement. Id. at ¶ 8.
       {¶62} Berry appealed to this court, asserting, among other arguments, that the award of

attorney fees to Wachovia violated the “American Rule.” Id. at ¶ 18-19. This court disagreed.

It held that Berry had breached the settlement agreement when he filed suit against Wachovia,

seeking the return of the $125,000. Id. at ¶ 15. It further held that the attorney fees Wachovia

incurred to enforce the settlement agreement were recoverable as compensatory damages resulting

from Berry’s breach of their agreement. Id. at ¶ 19-20. As the court explained:

       Ohio adheres to the rule that “a prevailing party in a civil action may not recover
       attorney fees as a part of the costs of litigation.” Wilborn v. Bank One Corp., 121
       Ohio St.3d 546, 2009 Ohio 306, 906 N.E.2d 396, at ¶ 7. However, attorney fees
       are allowed as compensatory damages when the fees are incurred as a direct result
       of the breach of a settlement agreement. See Raymond J. Schaefer, Inc. v. Pytlik,
       6th Dist. No. OT-09-026, 2010-Ohio-4714, ¶ 34; Tejada-Hercules v. State Auto.
       Ins. Co., 10th Dist. No. 08AP-150, 2008-Ohio-5066, ¶ 10. The rationale behind
       the exception for allowing attorney fees expended as a result of enforcing a
       settlement agreement is that “any fees incurred after the breach of the settlement
       agreement were relevant to the determination of compensatory damages, including
       those fees [a party was] ‘forced’ to incur by filing the action.” Tejada-Hercules at ¶
       10.

       The legal fees awarded in this case were the measure of compensatory damages
       directly related to Wachovia’s need to enforce the settlement agreement. The court
       did not err by awarding Wachovia its attorney fees as compensatory damages.

Id. at ¶ 19-20. Because it found the jury’s damages award to be “plainly excessive,” the court

gave Wachovia the option of accepting a remittitur of the damages award to $133,691 – the

amount that Wachovia requested and proved at trial — or a new trial. Id. at ¶ 44, 46.

       {¶63} Thus, under Berry, where a party breaches a settlement agreement to end litigation

and the breach causes a party to incur attorney fees through continued litigation to enforce the

settlement agreement, those fees are recoverable as “compensatory damages” for breach of the

settlement agreement.     Because the attorney fees sought in that context are regarded as

compensatory damages — rather than as costs of litigation to remedy a breach of contract — the
American rule does not preclude their recovery even where none of the other exceptions to the

American rule applies. See also Shelly Co. v. Karas Properties, 8th Dist. Cuyahoga No. 98039,

2012-Ohio-5416, ¶ 41 (observing that “[c]ourts often award attorney fees incurred after the breach

of a settlement agreement because ‘when a party breaches a settlement agreement to end litigation

and the breach causes a party to incur attorney fees in continuing litigation, those fees are

recoverable as compensatory damages in a breach of settlement claim,’” but concluding that Berry

did not apply because cross-appellant’s breach of contract claim did not involve a settlement

agreement), quoting Shanker v. Columbus Warehouse Ltd. Partnership, 10th Dist. Franklin No.

99AP-772, 2000 Ohio App. LEXIS 2391 (June 6, 2000). Berry is consistent with the strong

public policy that exists in encouraging settlements and enforcing settlement agreements.

       {¶64} A number of cases from other jurisdictions are in accord. See, e.g., Brown v. Spitzer

Chevrolet Co., 5th Dist. Stark No. 2012 Ca 00105, 2012-Ohio-5623, ¶ 19-21; Raymond J.

Schaefer, Inc. v. Pytlik, 6th Dist. Ottawa No. OT-09-026, 2010-Ohio-4714, ¶ 33-34; State ex rel.

Ohio AG v. Tabacalera Nacional, S.A.A., 10th Dist. Franklin No. 12AP-606, 2013-Ohio-2070, ¶

34-35; Tejada-Hercules v. State Auto. Ins. Co., 10th Dist. Franklin No. 08AP-150,

2008-Ohio-5066, ¶ 9-11; Shanker v. Columbus Warehouse Ltd. Partnership, 10th Dist. Franklin

No. 99AP-772, 2000 Ohio App. LEXIS 2391, 11-15 (June 6, 2000); Myron C. Wehr Props., L.L.C.

v. Petraglia, 2016-Ohio-3126, 65 N.E.3d 242, ¶ 36, 38 (7th Dist.); see also Rohrer Corp. v. Dane

Elec Corp. USA, 482 Fed.Appx. 113, 115-117 (6th Cir.2012) (“Ohio law allows a court to award

attorney’s fees as compensatory damages when a party’s breach of a settlement agreement makes

litigation necessary, even where none of the exceptions to the American Rule have been shown.”);

Wilson v. Prime Source Healthcare of Ohio, N.D.Ohio No. 1:16-cv-1298, 2018 U.S. Dist. LEXIS

34445, 8-9 (Mar. 2, 2018) (Where a settling party forces the other party to litigate a motion to
enforce the settlement, the party forced to enforce the settlement agreement is entitled to attorney

fees stemming from the additional litigation as compensatory damages).                            But see Mayfran

Internatl. v. May Conveyor, Inc., 8th Dist. Cuyahoga No. 62913, 1993 Ohio App. LEXIS 3511, 15

(July 15, 1993) (reversing trial court’s award of attorney fees as compensatory damages for breach

of settlement agreement, reasoning that “absent a statutory provision, a prevailing party is not

entitled to an award of attorney fees unless the party against whom the fees are taxed was found to

have acted in bad faith”).

        {¶65} The trial court did not address Berry in its decision below5 and Rayco does not

address this aspect of Berry in its brief.6 Instead, Rayco cites Kornick v. Zomparelli, 8th Dist.

Cuyahoga Nos. 53599, 53875, 1988 Ohio App. LEXIS 896, 9 (Mar. 17, 1988), for the proposition

that “[t]he Eighth District has specifically recognized that the American Rule applies to actions

seeking to enforce a settlement agreement,” and Mayfran at 15, Doss v. Cleveland, 8th Dist.

Cuyahoga No. 1995 Ohio App. LEXIS 659 (Feb. 23, 1995), and Ludwinski v. Seven Hills, 8th Dist.

Cuyahoga No. 52416, 1987 Ohio App. LEXIS 8659, 10-11 (Sept. 10, 1987), for the proposition

that “in the absence of a finding of bad faith, a trial court commits reversible error in awarding

attorney fees on a motion to enforce a settlement agreement.”


5
 The trial court did, however, address Shanker v. Columbus Warehouse Ltd. Partnership, 10th Dist. Franklin No.
99AP-772, 2000 Ohio App. LEXIS 2391 (June 6, 2000). The trial court refused to apply Shanker, concluding that
to “adopt[] the Shanker rationale,” would “nullify the American rule.”

6
 Although Rayco cites Berry in its brief, it does so only for the proposition that a party seeking to recover legal fees
must offer evidence showing the fees charged, the reasonableness of the fees charged and the number of hours
worked. At oral argument, for the first time, Rayco attempted to distinguish Berry on the ground that, in Berry,
Wachovia was forced to litigate the existence of the settlement agreement in a separate action rather than by filing a
motion to enforce settlement in a pending action. It also argued that the award of attorney fees in Berry could be
interpreted as an award based on Berry’s bad faith in breaching the settlement agreement. Finally, it argued that
to the extent Berry conflicts with Mayfran. Mayfran is controlling over Berry because Mayfran was decided first.
Rayco’s arguments are not persuasive.

Likewise, other than a brief discussion of Kornick, appellees failed to distinguish or otherwise address any of the
authorities cited by Rayco on this issue in their brief.
       {¶66}      In Kornick, although the court acknowledged the “general rule” that “attorney

fees are not recoverable in contract actions unless there has been a showing of bad faith or

wrongful motives,” it affirmed the trial court’s award of $225 in attorney fees to appellees for

appellant’s breach of a settlement agreement, reasoning that the award was “justified” “[g]iven

appellees’ attempts to personally enforce the agreement as well as the necessity to seek the court’s

assistance in that same regard.” Id. at 9. It is unclear from the court’s decision whether it found

that the evidence of failed “attempts to personally enforce the agreement” and “necessity to seek

the court’s assistance” was sufficient to support an award of attorney fees based on “bad faith or

wrongful motives” or whether it recognized another exception to the general rule where a party

incurs attorney fees to enforce a settlement agreement.

       {¶67} In Doss, appellants argued that they were entitled to recover their attorney fees

because appellee’s failure to timely credit their benefits constituted bad faith — of which the court

found no evidence — not as compensatory damages incurred to enforce the parties settlement

agreement.     Id. at 2, 4-6.   Similarly, in Ludwinski, this court found that the trial court did not

abuse its discretion in denying appellant’s request for attorney fees after certain appellees

“reneged” on a settlement agreement. This court noted that although the trial court enforced the

settlement, it found the appellees’ conduct to be “just” in light of the fact that the trial court had

dismissed the case based on appellant’s failure to file preliminary judicial title reports.     Id. at

10-11. No argument appears to have been made, and the court did not otherwise address, whether

attorney fees incurred in enforcing a settlement agreement could be recovered as compensatory

damages.

       {¶68} Stringer v. Dept. of Health-Ohio, 8th Dist. Cuyahoga No. 102166, 2015-Ohio-2277,

¶ 5-6. Simmons v. Lee, 8th Dist. Cuyahoga No. 103108, 2016-Ohio-25, ¶ 16, and State ex rel.
Delmonte v. Woodmere, 2005-Ohio-6489, ¶ 53 — the additional authorities upon which Rayco

relies for its argument that the trial court did not abuse its discretion in denying appellees’ request

for attorney fees — are likewise distinguishable.

       {¶69} In Stringer, the attorney fee issue was not raised on appeal. In Simmons, this court

held that the trial court acted within its discretion in denying appellant’s motion for attorney fees

based on his alleged untimely receipt of settlement proceeds from the estate, because (1) there was

no evidence in the record that the administrator “acted in bad faith, vexatiously, wantonly, or for

oppressive reasons”; (2) the alleged delay in appellant’s receipt of the settlement proceeds was

“nonexistent”; (3) appellant was the last party to sign the settlement agreement and (4) in signing

the agreement, he agreed that all pending motions were withdrawn as moot. Simmons at ¶ 5,

15-16. Once again, no argument appears to have been made, and the court did not otherwise

address, whether attorney fees incurred in enforcing a settlement agreement could be recovered as

compensatory damages.

       {¶70} In Delmonte, the village of Woodmere sought to recover its attorney fees under R.C.

2323.51, the frivolous conduct statute, after appellee breached a settlement agreement. Delmonte

at ¶ 52-56. There is no claim or argument in this case that appellees are entitled to attorney fees

under the frivolous conduct statute.

       {¶71} We acknowledge that a panel of this court reached a different result in Mayfran, 8th

Dist. Cuyahoga No. 62913, 1993 Ohio App. LEXIS 3511. However, that decision, unlike Berry,

is not controlling authority.7 Although in Berry, the nonbreaching party sought enforcement of its


7
  In the past, “reported” decisions were controlling authority in the district, and “unreported” decisions were merely
“persuasive.” As of May 1, 2002, the Supreme Court abolished the distinction between “controlling” and
“persuasive” opinions, based merely upon whether a case is “reported.” See Rep.Op.R. 3.4 (“All opinions of the
courts of appeals issued after May 1, 2002 may be cited as legal authority and weighted as deemed appropriate by
the courts without regard to whether the opinion was published or in what form it was published.”). As an
counterclaim in a separate action rather than by filing a motion to enforce settlement, we see no

reason that a different rule should apply depending on how a party seeks to enforce a settlement

agreement. See, e.g., Wilson, N.D., Ohio No.1:16-CV-1298, 2018 U.S. Dist. LEXIS 34445, at

*8-9 (“Attorney’s fees as compensatory damages are available whether a party files a separate

breach of contract suit or a motion to enforce settlement before the original trial court.”). In both

instances, a party seeking to enforce a settlement agreement is subjected to additional or continued

litigation as a result of the other party’s attempted repudiation of a settlement agreement.

        {¶72} Rayco also argues that we should affirm the trial court’s decision because appellees

presented no evidence at the hearing regarding the amount of attorney fees they incurred in

enforcing the settlement agreement or the reasonableness of those fees. However, as stated in the

trial court’s journal entry, the issue to be decided at the hearing was “whether the parties entered

into a contract to settle the lawsuit.” 8 After that issue was decided, the trial court inquired

whether it had “enough law [and] evidence” to decide “whether to award fees or not.” The trial

court granted the parties leave to submit “legal briefs” on the issue of whether “a motion to enforce

in and of itself gives rise to a potential entitlement for fees.” There was no opportunity for

appellees to present evidence as to the amount of attorney fees they contended should be awarded.

        {¶73} Accordingly, the trial court abused its discretion in denying appellees’ request for

attorney fees. Appellees’ cross-assignment of error is sustained.

        {¶74} The trial court’s judgment is affirmed to the extent that it grants appellees’ motion to

enforce the settlement agreement and reversed to the extent that it denies appellees’ motion for


unreported decision decided before May 1, 2002, Mayfran is not controlling authority. See, e.g., In re B.L., 3d
Dist. Allen Nos. 1-15-65, 1-15-66, 1-15-67, and 1-15-68, 2016-Ohio-2982, ¶ 11.

8
  Appellees also filed a motion in limine to limit testimony and evidence at the hearing to the issue of the “settlement
between the parties,” which the trial court granted.
attorney fees. Case remanded for a determination of the amount of reasonable attorney fees

appellees incurred to enforce the settlement agreement.

       {¶75} Judgment affirmed in part; reversed in part; case remanded.

       It is ordered that appellees recover from appellant the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to Cuyahoga County Court of Common Pleas to

carry this judgment into execution.

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

of Appellate Procedure.


____________________________________________________
EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE

MARY J. BOYLE, J., CONCURS;
MELODY J. STEWART, J., CONCURS IN PART AND DISSENTS IN PART


MELODY J. STEWART, J., CONCURRING IN PART, DISSENTING IN PART:

       {¶76} I would affirm the trial court’s decision in its entirety.   The American Rule — that

each party be responsible for its attorney fees — does not necessarily apply in actions to enforce a

settlement agreement. Berry v. Lupica, 196 Ohio App.3d 687, 2011-Ohio-5381, 965 N.E.2d 318,

¶ 19 (8th Dist.) (“attorney fees are allowed as compensatory damages when the fees are incurred as

a direct result of the breach of a settlement agreement.”). The key point, however, is that attorney

fees must be “compensatory damages” for enforcing a settlement, not merely attorney fees costs.

Thus, in Berry, the party seeking to enforce a settlement had to file a separate action for breach of a

settlement agreement.
       {¶77} The law firms did not file a separate action to enforce the settlement agreement in

this case. At all events, this was a legal malpractice case and the efforts to enforce the settlement

were made by motion, not by a formal complaint in a separate action. It follows that the attorney

fees were not sought as compensatory damages, but only as a cost of litigating the motion. The

court did not err by denying the motion for attorney fees.
