[Cite as FirstMerit Bank, N.A. v. Ashland Lakes, L.L.C., 2012-Ohio-549.]


                                       COURT OF APPEALS
                                    ASHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

FIRSTMERIT BANK, N.A.                                      JUDGES:
                                                           Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                                 Hon. W. Scott Gwin, J.
                                                           Hon. William B. Hoffman, J.
-vs-
                                                           Case No. 11-COA-017
ASHLAND LAKES, LLC, ET AL.

        Defendant-Appellant                                OPINION




CHARACTER OF PROCEEDING:                               Appeal from the Ashland County Court of
                                                       Common Pleas, Case No. 09-CFR-022


JUDGMENT:                                              Affirmed


DATE OF JUDGMENT ENTRY:                                February 10, 2012


APPEARANCES:


For Plaintiff-Appellee                                 For Defendant-Appellant


BRETT A. WALL                                          SCOTT H. KAHN
PATRICK T. LEWIS                                       GREGORY J. OCHOCKI
SARA L. WITT                                           The Galleria & Towers at Erieview
Baker & Hostetler LLP                                  McIntyre, Kahn & Kruse Co., L.P.A.
PNC Center                                             1301 East Ninth Street, Suite 2200
1900 East Ninth Street, Suite 3200                     Cleveland, Ohio 44114
Cleveland, Ohio 44114-3482
Ashland County, Case No. 11-COA-017                                                      2

Hoffman, J.


       (¶1)     Defendants-appellants Ashland Lakes, LLC, et al. appeal the June 3, 2011

Judgment Entry entered by the Ashland County Court of Common Pleas, which granted

plaintiff-appellee First Merit Bank’s motions for orders confirming the sheriff sale of two

tracts of land.

                            STATEMENT OF THE FACTS AND CASE

       (¶2)     On or about June 25, 2005, Appellants Ashland Lakes, Daniel E. Inks, and

David J. Slyman (hereinafter referred to collectively as “Ashland Lakes” and individually

as “Inks” and “Slyman”) executed a promissory note in favor of First Merit Bank (“the

Bank”). The Note was secured by a mortgage on approximately one hundred thirty

acres of real property located in Ashland County, Ohio (“the Property”).

       (¶3)     On January 12, 2009, the Bank filed a complaint in foreclosure against

Appellants, seeking to foreclose on its mortgage interest in the Property. The Bank

entered into three separate agreements with Ashland Lakes over the 2009 calendar

year: First Standstill Agreement dated February 6, 2009; Second Standstill Agreement

dated June 12, 2009; and Forbearance Agreement dated December 12, 2009.

Pursuant to the 2009 agreements, the Bank agreed to forbear from exercising its rights

and remedies under the loan documents. Ashland Lakes defaulted under the 2009

agreements by failing to repay the Note in full by June 30, 2010.

       (¶4)     The trial court entered a decree of foreclosure on August 20, 2010, which

ordered the Property be sold at public auction. Via Judgment Entry filed November 11,

2010, the trial court appointed David Bambeck, a licensed auctioneer, to conduct the

auctions.     The trial court also authorized the sale of the Property as five separate
Ashland County, Case No. 11-COA-017                                                     3


parcels. Bambeck obtained three freeholder evaluations of the Property, and scheduled

the auction for December 15, 2010.

      (¶5)   On December 14, 2010, Ashland Lakes filed a petition for bankruptcy in

the U.S. Bankruptcy Court, Northern District of Ohio. The Bank moved to dismiss the

bankruptcy action, asserting such was filed in bad faith, to hinder and delay the Bank’s

collection efforts. Ashland Lakes consented to the dismissal of the bankruptcy matter.

The bankruptcy court entered an agreed order of dismissal on January 6, 2011.

Bambeck subsequently rescheduled the auction for March 9, 2011.

      (¶6)   On January 7, 2011, Inks and Slyman met with Thomas P. Krumel, Senior

Vice President in the Managed Assets Department of the Bank, to discuss potential

avenues to resolve Ashland Lake’s indebtedness. Inks outlined a potential solution,

which included a combined cash payment with $1,000,000 in debt financing and

additional monies from the partial sale of the Property. Inks also sought the full release

of all of the guarantors’ liability, Inks, Slyman, and their respective spouses. The Bank

agreed to consider the proposal, however, the parties did not reach an agreement on

that day. The Bank requested a binding commitment letter from the proposed lender as

well as other proof the proposed transaction was viable.

      (¶7)   On February 14, 2011, Inks e-mailed Krumel a commitment letter from

Westfield Bank to finance a portion of the funds Ashland Lakes needed to meet the

Bank’s requirements.     Westfield Bank set forth a number of contingencies in its

commitment letter, including an appraisal, environmental review, payment of delinquent

taxes, and funding of $550,000 in escrow and reserves. The commitment letter expired
Ashland County, Case No. 11-COA-017                                                        4


on February 23, 2011.       Krumel suggested Ashland Lakes purchase the appraisal

completed by Aaron C. Wright.

       (¶8)   The parties had no further contacted until March 3, 2011, when Inks once

again telephoned Krumel, seeking to negotiate a deal to stop the auction.            Krumel

verbally outlined the basic terms for such a deal, which included a $200,000 deposit and

the payment of $9,000 for the Wright appraisal. Pursuant to Inks’ request, Krumel

issued a term sheet which set forth the broad terms and conditions upon which the

Bank might agree to cancel the auction. The term sheet expressly conditioned the

cancellation of the auction on the execution of a written forbearance agreement.

Krumel e-mailed a draft forbearance agreement on March 7, 2011, which reflected not

only the terms and conditions set forth in the term sheet, but also additional terms and

conditions. The draft agreement required Ashland Lakes to make the $200,000 deposit

and pay the $9,000 appraisal fee by the close of business that day.

       (¶9)   During a telephone conversation on March 7, 2011, Inks informed Krumel

he was unsure he could pay the full $209,000, and asked if the Bank would accept

$150,000. Krumel advised Inks to continue to try to raise the full amount, but indicated

the Bank would consider accepting the $150,000 payment as well as the $9,000

appraisal fee. Later that day, Inks delivered a letter to Krumel, setting forth objections to

the draft forbearance agreement and requesting several substantive changes. Krumel

rejected Ashland Lakes’ request to defer payment of the appraisal fee as well as its

demand the Bank represent and warrant the appraisal.

       (¶10) The following day, March 8, 2011, Inks and Krumel spoke on the

telephone on at least two occasions. Krumel expressed to Inks his belief Inks’ plan was
Ashland County, Case No. 11-COA-017                                                        5


not viable, and also indicated he doubted a forbearance deal could be negotiated and

completed in time to cancel the auction. Inks insisted he would have $150,000 later that

day. Inks tried several times throughout the day to contact Krumel, however, Krumel

was unavailable until approximately 3 p.m. Krumel subsequently telephoned Inks, and

told Inks it was too late for the Bank to cancel the auction. Krumel suggested Inks bid

on the property at the auction.

       (¶11) The auction proceeded as scheduled with four of the five parcels of the

Property sold. On March 25, 2011, the Bank filed two motions for orders confirming the

sales and distribution of the sales proceeds. On April 7, 2011, Ashland Lakes filed its

Supplement Motion to Set Aside the Sheriff’s Sale, Opposition to First Merit’s Motion to

Confirm Sheriff’s Sale and Request for Evidentiary Hearing. Ashland Lakes objected to

the confirmation of the sales, asserting the freeholder valuations used in the auction

were defective, and the auction was barred by a verbal forbearance agreement between

the Bank and Ashland Lakes.

       (¶12) Via Judgment Entry filed April 15, 2011, the trial court found Ashland

Lakes’ assertion the auction was barred lacked merit as Ashland Lake had “failed to

establish that any forbearance agreement precluding the sale was ever consummated

by the parties.” The trial court further found a hearing on the legal sufficiency of the

appraisals was appropriate and scheduled the same for April 25, 2011. Via Judgment

Entry filed June 3, 2011, the trial court found the freeholder appraisal was in substantial

conformity with statutory requirements, and Ashland Lakes had “failed to establish, by

clear and convincing evidence, that the freeholder appraisal [was] in error.” The trial

court confirmed the sale of the Property and ordered distribution of the sales proceeds.
Ashland County, Case No. 11-COA-017                                                    6


      (¶13) It is from the April 15, 2011 Judgment Entry and the June 3, 2011

Judgment Entry Ashland Lakes appeals, raising as error:

      (¶14) “I.    WHETHER       THE     TRIAL       COURT     ERRED     IN    DENYING

DEFENDANT/APPELLANT ASHLAND LAKES, LLC’S ‘AMENDED MOTION TO STAY

CONFIRMATION’ AND/OR ‘SUPPLEMENT [SIC] MOTION TO SET ASIDE MARCH 9,

2011 SHERIFF’S SALE, OPPOSITION TO FIRSTMERIT’S MOTION TO CONFIRM

SHERIFF’S SALE AND REQUEST FOR HEARING’ WITHOUT CONDUCTING AN

EVIDENTIARY HEARING, IN THAT SAID MOTIONS WERE PREMISED ON AN ORAL

SETTLEMENT REACHED BY AND BETWEEN THE PARTIES.

      (¶15) “II.   WHETHER       THE     TRIAL       COURT    ERRED     IN    GRANTING

PLAINTIFF/APPELLEE        FIRSTMERIT      BANK,      N.A.’S   MOTION    FOR    ORDERS

CONFIRMING SALE WHEN THE APPRAISALS CONDUCTED IN CONNECTION

WITH THE SALES WERE PROCEDURALLY AND SUBSTANTIVELY DEFECTIVE

AND BIASED.”

                                                 I

      (¶16) In the first assignment of error, Ashland Lakes contends because the

parties had entered into a forbearance agreement, the trial court erred in confirming the

sheriff’s sale without holding an evidentiary hearing pursuant to Rulli v. Fan Co., 79

Ohio St.3d 374, 683 N.E.2d 337, 1997-Ohio-380.

      (¶17) In Rulli, the Ohio Supreme Court held a trial court erred by enforcing a

purported settlement agreement between the parties without first conducting an

evidentiary hearing where there was a legitimate dispute between the parties as to the

existence of the settlement agreement. Id. at 377. The Rulli Court stated:
Ashland County, Case No. 11-COA-017                                                      7


              (¶18) Where      parties   dispute   the   meaning     or

              existence of a settlement agreement, a court may not

              force an agreement upon the parties. To do so would

              be to deny the parties' right to control the litigation,

              and to implicitly adopt (or explicitly, as the trial court

              did here) the interpretation of one party, rather than

              enter judgment based upon a mutual agreement.

              (Emphasis added). Id.

      (¶19) Unlike the situation in Rulli, the trial court herein refused to enforce what

Ashland Lakes purported to be an enforceable, oral settlement agreement between the

parties, after finding the parties had never actually reached a settlement agreement.

      (¶20) In his Affidavit, Thomas Krumel averred, on March 4, 2011, he provided

Inks with a term sheet which outlined the general terms and conditions upon which the

Bank would agree to cancel the auction. The term sheet expressly required the parties

enter into a written forbearance agreement before the Bank would agree to forbear from

exercising its rights. Krumel e-mailed Inks a copy of a draft forbearance agreement on

March 7, 2011.     Inks responded with a counteroffer which included six substantive

changes to the draft agreement. Krumel advised Inks the Bank would not defer the

payment of the appraisal fee nor include warranty provisions.

      (¶21) In his Affidavit, Daniel Inks sets forth his account of the attempts he made

to reach a forbearance agreement with the Bank. Inks indicates he provided Krumel

with written objections to the agreement.    Attached to Inks’ Affidavit is a copy of those

objections.
Ashland County, Case No. 11-COA-017                                                      8


      (¶22) Inks’ Affidavit does not establish the parties ever reached a meeting of the

minds as to all the terms. In fact, Inks states the March 4, 2011 term sheet contained a

“new $200,000 deposit requirement along with other terms which had never been

discussed.” Affidavit of Daniel E. Inks at para. 15. Based upon the evidence, we find

the trial court correctly found a settlement agreement did not exist between the parties.

In the absence of such a legitimate factual dispute, the trial court was not required to

conduct an evidentiary hearing. Mack v. Polson Rubber Co. (1984), 14 Ohio St.3d 34,

syllabus.

      (¶23) Ashland Lakes’ first assignment of error is overruled.

                                                II

      (¶24) In the second assignment of error, Ashland Lakes maintains the trial court

abused its discretion by confirming the sheriff’s sale as the appraisals completed in

connection therewith were procedurally and substantively defective.

      (¶25) To set aside an appraisement, a movant must demonstrate by clear and

convincing evidence not only that the appraisement was in error, but also that the

movant was prejudiced thereby. Conseco Fin. ServicingCorp. v. Taylor, Ashland App.

No. 01 COA 1442, 2002-Ohio-2504. Clear and convincing evidence has been defined

as that measure of proof which is more than a mere preponderance of the evidence but

less than the extent of certainty required in establishing proof beyond a reasonable

doubt in criminal cases. Cincinnati Bar Assn. v. Massengale (1991), 58 Ohio St.3d 121,

122, 568 N.E.2d 1222. The decision as to whether the appraisement should be set

aside because it is in error is within the discretion of the trial court. Ohio Sav. Bank v.

Ambrose (1990), 56 Ohio St.3d 53, 55, 563 N.E.2d 1388. In order to find an abuse of
Ashland County, Case No. 11-COA-017                                                    9


discretion, we must determine that the trial court's decision was unreasonable, arbitrary

or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore

(1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

       (¶26) Ashland Lakes contends the appraisals were defective for three reasons.

First, Ashland Lakes submits the freeholders who conducted the appraisals did not take

the oath required by R.C. 2329.17(A). Next, Ashland Lakes argues the freeholders did

not view a majority of the property. Finally, Ashland Lakes contends the freeholders did

not have special professional qualifications which were necessary due to the unique

nature of the property.

       (¶27) R.C. 2329.17, which governs the appraisal process performed in

preparation for a mortgage foreclosure sale, provides, in pertinent part:

              (¶28) (A) When execution is levied upon lands and

              tenements, the officer who makes the levy shall call

              an   inquest   of   three   disinterested   freeholders,

              residents of the county where the lands taken in

              execution are situated, and administer to them an

              oath impartially to appraise the property so levied

              upon, upon actual view. They forthwith shall return to

              such officer, under their hands, an estimate of the real

              value of the property in money. R.C. 2329.17(A).

       (¶29) We find Ashland Lakes has not established it was prejudiced as a result of

the auctioneer’s failure to administer oaths to the freeholders who appraised the

Property. Further, the three freeholders subsequently testified under oath at the hearing
Ashland County, Case No. 11-COA-017                                                    10


or through deposition testimony they conducted an impartial appraisal of the Property.

For a similar result, see, Cardinal Fed. S. & L. v. Michaels Bldg Co., Summit App. No.

13518, 13584, 1988 WL 87291 (Aug. 17, 1988)(no error in trial court’s refusal to set

aside the freeholder appraisals as the individuals were disinterested parties, and each

subsequently testified under oath his appraisal was his independent opinion).

      (¶30) We now turn to Ashland Lakes’ assertion the freeholders failed to satisfy

the “actual view” requirement of R.C. 2329.17(A). In Old Kent Mortgage Co. v. Stancik,

Cuyahoga App. No. 80548, 2002-Ohio-3436, the Eight District Court of Appeals

addressed the validity of a sheriff’s sale where the appraisers did not conduct an “actual

view” of the building’s interior.   The Old Kent Court discussed the abundant, yet

inconsistent case law on the issue, and found:

             (¶31) To the extent the appraisers' failure to view the

             inside of the premises is a deviation from the terms of

             R.C. 2329.17, the authority suggests the sale be set

             aside only when the condition of the house may have

             an impact on the value of the real estate. To prevail,

             the appellant must show that he was prejudiced by

             the alleged failure of the appraisers to enter the house

             on the property at issue and view the interior before

             appraising the property. Id. at para. 11 (Citation

             omitted).

      (¶32) Upon review of the record, we find Ashland Lakes has failed to show it

was prejudiced by the freeholders’ failure to view the entire Property. The freeholders
Ashland County, Case No. 11-COA-017                                                    11


viewed the interior of a number of offices and units within the triplexes, as well as two

single-family homes on the Property. Further, Ashland Lakes has failed to establish it

was prejudiced by the freeholders’ failure to walk the entire 130 acres of the Property.

There is no evidence had the freeholders’ estimates of value would have changed had

they done so. Further, R.C. 2329.17 does not require an appraiser to conduct a pace

by pace walk of the Property.

      (¶33) With respect to Ashland Lakes’ position the appraisers needed

professional qualifications due to the unique nature of the property, we find such

requirement is not found in R.C. 2329.17. R.C. 2329.17(A) merely requires the persons

valuing a property for judicial sale be disinterested; own property in the county; and

reside in the county. The freeholders in the instant action met those requirements. Any

lack of qualifications on the part of the freeholder would go to the weight given to their

valuation. Such does not invalidate the appraisal.

      (¶34) Ashland Lakes’ second assignment of error is overruled.

      (¶35) The judgment of the Ashland County Court of Common Pleas is affirmed.

By: Hoffman, J.

Delaney, P.J. and

Gwin, J. concur                             s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ Patricia A. Delaney _________________
                                            HON. PATRICIA A. DELANEY


                                            s/ W. Scott Gwin _____________________
                                            HON. W. SCOTT GWIN
Ashland County, Case No. 11-COA-017                                             12


            IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


FIRSTMERIT BANK, N.A.                     :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :        JUDGMENT ENTRY
                                          :
ASHLAND LAKES, LLC, ET AL.                :
                                          :
       Defendant-Appellant                :        Case No. 11-COA-017


       For the reasons stated in our accompanying Opinion, the judgment of the

Ashland County Court of Common Pleas is affirmed. Costs to Appellants.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ Patricia A. Delaney _________________
                                          HON. PATRICIA A. DELANEY


                                          s/ W. Scott Gwin_____________________
                                          HON. W. SCOTT GWIN
