[Cite as Jones v. Mellinger, 2014-Ohio-722.]
                          STATE OF OHIO, COLUMBIANA COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

WILLIAM JONES, et al.,                         )   CASE NO.     13 CO 11
                                               )
        PLAINTIFFS-APPELLANTS,                 )
                                               )
VS.                                            )   OPINION
                                               )
DAVID MELLINGER, et al.,                       )
                                               )
        DEFENDANTS-APPELLEES.                  )

CHARACTER OF PROCEEDINGS:                          Civil Appeal from Common Pleas Court,
                                                   Case No. 12CV194.

JUDGMENT:                                          Reversed and Remanded.

APPEARANCES:
For Plaintiffs-Appellants:                         Attorney Donald Leone
                                                   4800 Market Street, Suite D
                                                   Youngstown, Ohio 44512

For Defendants-Appellees:                          David Mellinger, Pro se
                                                   16254 John Street
                                                   East Liverpool, Ohio 43290

                                                   Attorney Andrew Kabat
                                                   737 Bolivar Road, Suite 4400
                                                   Cleveland, Ohio 44115
                                                   (For Karen Smith dba Tri Ohio Realty)

                                                   Attorney Catherine Peters
                                                   Sixth Floor – Bulkley Building
                                                   1502 Euclid Avenue
                                                   Cleveland, Ohio 44115
                                                   (For George Gbur)
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro

                                                   Dated: February 18, 2014
[Cite as Jones v. Mellinger, 2014-Ohio-722.]
VUKOVICH, J.


        {¶1}     Plaintiff-appellants William and Kimberly Jones appeal the decision of
the Columbiana County Common Pleas Court granting the motion to enforce
settlement filed jointly by multiple defendants.          The defendants’ position was
essentially that, although the surveyor expressed issues with replatting, a settlement
was reached which was not dependent on such issues and that a free and clear title
could still transfer.      The plaintiffs asserted that the condition of a free and clear
transfer may not be attainable and also urged that there was no agreement.
        {¶2}     We conclude that the trial court should have held an evidentiary hearing
before enforcing the alleged settlement agreement. For the following reasons, the
judgment of the trial court is reversed, and the case is remanded for such a hearing.
                                   STATEMENT OF THE CASE
        {¶3}     David and Eileen Mellinger owned real property in St. Clair Township
containing structures with addresses: 16254, 16260, 16270A, and 16270B Jones
Road, East Liverpool, Ohio. The structures shared a gravel drive which met the
street at the property addressed 16254. In March 2011, the Mellingers sold the two
houses at 16270 to the Joneses. They entered a purchase agreement evidencing
the sale of the property known as 16270 Jones Road for $27,500.
        {¶4}     The June 2011 deed only ended up transferring a parcel of property
containing 16270B. Apparently, a different parcel contained 16270A, the house into
which the Joneses moved. The latter parcel also contained 16260, which house was
not part of the purchase agreement.
        {¶5}     In February of 2012, the Columbiana County Treasurer initiated a
foreclosure action for unpaid taxes against the Mellingers regarding the parcel
containing the house in which the Joneses lived. It was then they realized that the
deed only transferred the smaller house in the southwest corner of the Mellingers’
property and did not also transfer the larger house in the northwest corner.
        {¶6}     A month later, the Joneses filed suit against the Mellingers, their realtor
Karen Smith dba TriOhio Realty, and Attorney George Gbur. (They also named the
treasurer and the water and sewer department due to the potential liens.) They
                                                                                     -2-

asserted breach of contract, constructive trust, reformation of the deed, realtor
malpractice, and attorney malpractice. A trial was set for April of 2013, and a pretrial
telephone conference was held in September of 2012.
       {¶7}   On December 7, 2012, the main defendants filed a joint motion to
enforce settlement, claiming that a settlement agreement was reached but the
plaintiffs would not sign the release. Attached to the motion were various emails
used to support the claim that a settlement had been reached.
       {¶8}   The first attachment was a June 22, 2012 email from defense counsel
to the plaintiffs’ attorney, which provided an increased and final offer, stating that
Mellinger would contribute $3,000 and execute the necessary documents to transfer
the subject property and the attorney and the realtor would each contribute $5,000
for a total of $13,000. The email opined that this should satisfy the plaintiffs’ last
request that the defendants pay the entire $11,921.66 tax delinquency and $1,500 for
surveying and replatting costs. The email stated that the offer would remain open
until June 29, 2012.
       {¶9}   The defendants’ second attachment was the emailed response from
counsel for the plaintiffs, which provided:
              Thank you for your letter of June 22, 2012. Your proposal is
       acceptable as long as we get the full cooperation of Mr and Mrs.
       Mellinger and we are delivered a free and clear title to the premises
       after payment of the taxes from the settlement proceeds.
              Please forward the funds in the amount of $13,000 payable to
       William H. Jones, Kimberly Jones and their Attorney Donald Leone.
              To avoid the problem of potential intervening liens, hopefully we
       can have this matter resolved in the next 14 days. Please prepare
       release and settlement agreement for the parties to sign.
(Email of June 29, 2012)
       {¶10} The defendants’ third attachment was the notice of dismissal and
release that the defense prepared for the plaintiffs’ signatures.           The fourth
attachment was an August 15, 2012 email from defense counsel said to be
                                                                                    -3-

confirming plaintiff’s counsel’s oral statements that the notice of dismissal and
release were acceptable and that he expected the plat map work to be completed by
the end of the month. Therein, defense counsel also asked that plaintiffs sign the
documents in the interim and return them to him
      {¶11} The fifth attachment was an October 23, 2012 letter from plaintiffs’
counsel enclosing the survey and a letter from the surveyor. The surveyor stated that
both the East Liverpool Planning Commission and the Columbiana County GIS/Tax
Map Department denied approval of the proposed subdivision of the properties. The
first problem was that the Columbiana County Conveyance Standards require a
minimum of 30 feet of frontage along a dedicated and approved public right-of-way
but these properties are landlocked and over 157 feet from the nearest public right-
of-way. The second problem he encountered was the Columbiana County Health
Department’s requirement of a separate water well and septic system and a minimum
lot area on a parcel for each residence, with which these properties would not
comply.
      {¶12} The surveyor’s letter concluded, “Though the proposed subdivision was
denied, these parcels may be conveyed in their current configuration but would be
considered non conforming, and would still not meet the forementioned Columbiana
County Health Department requirements.”         Based on the surveyor’s letter, the
plaintiffs’ counsel concluded:     “This new information adds problems, costs and
additional potential liability to the plaintiffs that makes our proposed settlement not
workable.”
      {¶13} The defendants’ motion argued that the settlement was reached before
and without regard to the potential issues articulated by the surveyor.            The
defendants characterized this as a mere change of mind and urged that the
settlement should not be eliminated simply because additional costs may be
associated with the transaction.
      {¶14} On December 10, 2012, the trial court filed an entry providing the
plaintiffs until January 4, 2013 to respond and stating: “Thereafter, the Court will
                                                                                         -4-

review all the filings pertaining to the Motion to Enforce and either set the matter for
Telephone Conference or actual Evidentiary Hearing.”
       {¶15} The plaintiffs filed a timely response. The response stated that any
settlement was clearly based upon the Mellingers delivering a clear title to the
disputed property and alleged that this could not be done due to the major problems
outlined in the surveyor’s letter. The response contended that no title transfer can be
completed because of the objections of the city and county. The response also
noted that the defendants engaged in no further efforts after the survey to correct the
problems.
       {¶16} The plaintiffs then characterized the emails as mere discussions of
compromise rather than an actual settlement agreement, stating that the delivery of
clear title was a precondition to an agreement. The response also stated that the
defendants presented insufficient evidence of a binding settlement agreement,
mentioning a lack of corroborating evidence and claiming the emails are excluded by
Evid.R. 408 as settlement discussions.         The affidavit of plaintiffs’ attorney was
attached wherein he stated that no binding agreement was made, the discussions in
the documents were offers of compromise, and a “condition precedent to any
discussion agreement was that Defendants Mellinger must provide and transfer * * *
a free and clear title.” The attorney pointed to the surveyor’s letter and concluded
that no title transfer could be completed.
       {¶17} On January 14, 2013, the defendants filed a reply, which urged that the
emails do not represent mere settlement discussions but show a clear and
unequivocal acceptance. The reply stated that the Mellingers are ready, willing, and
able to deliver free and clear title to the property and insisted that the surveyor’s letter
does not preclude settlement because it concludes by stating that the parcels may be
conveyed in their current configuration (but they would be considered non-
conforming). The reply voiced that the right-of-way and septic/well issues are items
that plaintiffs would have had to contend with if the property was transferred at the
outset, noting that those issues were not specifically part of this lawsuit and there are
unexpected costs associated with many real estate transactions.
                                                                                     -5-

       {¶18} On January 22, 2013, the trial court granted the defendants’ motion to
enforce settlement without holding the telephone conference or evidentiary hearing
specified in the court’s December 10, 2012 judgment entry. The court’s January 22
entry enforcing settlement stated that the court elected to handle the matter on a
non-oral basis. The court quoted the email from plaintiffs’ counsel and highlighted
the portion stating, “Your proposal is acceptable * * *.” The court noted that the
plaintiffs did not dispute the claim that they later agreed with the dismissal entry and
release presented by the defendants.          The court concluded that the written
communication clearly shows a settlement agreement.
       {¶19} After agreeing that any settlement required the delivery of free and
clear title after payment of taxes from the settlement proceeds, the court concluded
that the surveyor’s letter (submitted by both parties) indicated that the problems cited
do not prevent conveyance of the property. The court also opined that any problems
that arose here would have occurred if the transfer had been previously
accomplished. The court thus ordered the plaintiffs to execute the dismissal and the
release agreed upon and the defendant to pay $13,000 and execute all necessary
documentation to transfer the subject property.
       {¶20} On February 1, 2013, the plaintiffs filed a motion for a new trial under
Civ.R. 59(A)(1) urging in part that the defendants misinterpreted the surveyor’s letter
as the defendants could not in fact deliver free and clear title, attaching an affidavit
from the surveyor clarifying the inability to transfer free and clear title and a letter
from the city requiring a 30 foot access strip to a legally defined road is provided. On
February 20, 2013, the trial court denied the motion for new trial.
       {¶21} On February 21, 2013, the plaintiffs filed a timely notice of appeal. As
this appeal is only from the January 22, 2013 judgment entry granting the motion to
enforce settlement, the attachments to the motion for new trial cannot be relied upon
in this appeal. Appellants raise the following two assignments of error on appeal:
       {¶22} “THAT THE TRIAL COURT’S FINDING THAT THERE WAS A VALID
ENFORCEABLE SETTLEMENT AGREEMENT BETWEEN THE PLAINTIFFS AND
                                                                                      -6-

DEFENDANTS IS CONTRARY TO LAW AND AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.”
        {¶23} “THAT     THE     TRIAL     COURT’S          DECISION   WAS   BASED    ON
ARGUMENT AND BRIEF OF COUNSEL AND NO EVIDENTIARY HEARING WAS
HELD PRIOR TO THE COURT’S JUDGMENT AND ORDER AS REQUIRED BY
LAW.”
                                      GENERAL LAW
        {¶24} A settlement agreement is a contract designed to terminate a claim by
preventing or ending litigation and is valid and enforceable by either party.
Continental W. Condominium Unit Owners Assn. v. Howard E. Ferguson, Inc., 74
Ohio St.3d 501, 502, 660 N.E.2d 431 (1995). A meeting of the minds as to the
essential terms of the contract is required. Kostelnik v. Helper, 96 Ohio St.3d 1,
2002-Ohio-2985, 770 N.E.2d 58, ¶ 15-16 (although it is preferable that a settlement
be memorialized in writing, an oral settlement agreement may be enforceable if there
is sufficient particularity to form a binding contract).
        {¶25} Once there is such a meeting of the minds, one cannot refuse to
proceed with settlement due to a mere change of mind.           See, e.g., Mack v. Polson
Rubber Co., 14 Ohio St.3d 34, 37, 470 N.E.2d 902 (1984); Stanton v. Holler, 7th Dist.
No. 07BE29, 2008-Ohio-6208, ¶ 1; Charvat v. Oasis Mtg., Inc., 10th Dist. No. 02AP-
1090, 2003-Ohio-2879, ¶ 14.           For instance, we concluded in Stanton that a
settlement agreement was enforceable where the plaintiff wished to avoid the
settlement because counsel may have made a mistake in his research regarding the
preservation of another claim. Stanton, 7th Dist. No. 07BE29. And, in Mack, the
appellant filed no response to the motion to enforce and counsel agreed at an oral
hearing that a settlement was reached but the client was no longer satisfied with the
agreement.
        {¶26} Even if the parties actually entered an agreement, the trial court
evaluating a motion to enforce settlement must evaluate whether the parties’
expressions are uncertain due to or “in light of accompanying factors and
circumstances” arising in the particular case. Rulli v. Fan Co. (1997), 79 Ohio St.3d
                                                                                      -7-

374, 376, 683 N.E.2d 337 (1997). “ ’To constitute a valid settlement agreement, the
terms of the agreement must be reasonably certain and clear,’ and if there is
uncertainty as to the terms then the court should hold a hearing to determine if an
enforceable settlement exists.” Kostelnik, 96 Ohio St.3d 1 at ¶ 17, quoting Rulli, 79
Ohio St.3d at 376-377. The Kostelnik Court did note, however, that “[a]ll agreements
have some degree of indefiniteness and some degree of uncertainty. Id. at ¶ 17.
        {¶27} Thus, it is a well-established principle that where the parties dispute the
existence, the terms, or the meaning of the terms of a settlement agreement, the trial
court must conduct a hearing before entering judgment for a party and is precluded
from adopting the movant’s written position without conducting a hearing to resolve
the dispute. Rulli, 79 Ohio St.3d at 377. See also Mack, 14 Ohio St.3d at 37 (an
evidentiary hearing is required if there is a factual dispute as to the existence or the
terms of the agreement or there are allegations of fraud, duress, or undue influence).
                                 LACK OF A HEARING
        {¶28} Appellants said the offer was acceptable, instructed the defendants to
send a $13,000 check in the joint names of the plaintiffs and their attorney, and
asked them to prepare the formal dismissal and release, expressing hope that they
could have the matter resolved in the next 14 days.           Appellants qualified their
acceptance with a condition regarding the cooperation of the Mellingers and the
delivery of free and clear title. The defendants urged and the trial court found that
the issues mentioned by the surveyor would have arisen anyway at the time of sale if
the defendants had transferred all the property intended. But, this does not mean
that plaintiffs would have been forced to accept the property upon discovery of these
issues or that plaintiff would have even been responsible for the costs to replat at that
time.
        {¶29} We emphasize that the house in which the Joneses live sits on a parcel
of land that is not entirely being transferred. That is, the Joneses did not claim to
purchase the entire parcel on which their house sits; the 16260 address is on that
parcel as well. Thus, a subdivision and replatting had to be accomplished as can be
seen in the defendants’ own offer. As such, agreeing to transfer “the premises” can
                                                                                      -8-

be seen as unclear where the parcel to be transferred had to be surveyed and where
the replatting is then denied by city and county officials. With a key term yet to be
ascertained and a subsequent issue arising with the replat, a dispute as to the
meaning of terms has been established.
          {¶30} Additionally, the trial court found that the transfer was not blocked and
that title can still transfer. The court relied upon the last statement in the surveyor’s
report:     “Though the proposed subdivision was denied, these parcels may be
conveyed in their current configuration but would be considered non conforming, and
would still not meet the forementioned Columbiana County Health Department
requirements.”
          {¶31} This statement is not clear as it says the parcels can be conveyed in
their current configuration, but it says nothing about a free and clear title. It is also
confusing in that it states that the parcels could be conveyed but would be non-
conforming and then states “and would still not meet” the county requirements,
suggesting that even if there was a way around the city issue, there would still be the
county obstacle. Plus, it is unclear what the “current configuration” mentioned by the
surveyor constitutes since the replat was rejected.
          {¶32} Plus, this concluding sentence cannot be read in isolation.          The
surveyor reported that he performed a survey and subdivision of 16270 & 16260 but
“regretfully” the city and county both denied approval of the proposed subdivision
because the properties are landlocked without minimum frontage and because one of
the properties does not have its own well and septic and is too small to have well and
septic constructed thereon.
          {¶33} The statements within the report and the implications of those
statements are far from clear. Whether any conveyance would in fact be a “clear and
free title” as required by the alleged settlement agreement could not be assumed
from the letter and was disputed by the timely response of the plaintiffs. That timely
response included the affidavit of plaintiffs’ counsel stating that based upon the
survey, the title transfer could not be completed.
                                                                                      -9-

       {¶34} As it was not reasonably certain as to whether a clear and free title
could be passed, the trial court could not summarily conclude that title could so pass.
At the time of the settlement, the parcel to be transferred was not yet defined or in
existence as it was part of another parcel. The terms requiring transfer of “a free and
clear title to the premises” were in dispute due to “accompanying factors and
circumstances” brought to the trial court’s attention. See Rulli, 79 Ohio St.3d at 376.
       {¶35} As aforementioned, where the parties do not dispute the terms,
meaning, or existence of a settlement agreement, an evidentiary hearing is not
required.   Rulli, 79 Ohio St.3d at 377.    However, if there is a dispute as to the
existence or the terms of the agreement, a hearing is required. Kostelnik, 96 Ohio
St.3d 1 at ¶ 17; Rulli, 79 Ohio St.3d at 376; Mack, 14 Ohio St.3d at 37. Thus, if a
question arises as to whether the defendant is permitted by the government to
transfer free and clear title to the plaintiff, which is a term of the settlement, we
believe it is unreasonable to compel the plaintiff to proceed to settle without holding a
hearing on the matter to ascertain the factual dispute and the ramifications of the
replatting issues with regards to terms of the alleged agreement.
       {¶36} Moreover, an evidentiary hearing can be required where a genuine
factual dispute regarding impossibility or impracticability of settlement has arisen
regarding a certain term. See LEH Properties, Inc. v. Pheasant Run Assn., 9th Dist.
No. 10CA009780, 2011-Ohio-516, ¶ 11. In that case, a hearing was not required
because it was clear that the issue raised in support of the impracticability argument
was known at the time of settlement as it is addressed in the agreement itself. Id.
       {¶37} Here, there is no indication that the issues with replatting were known
prior to the settlement.   And, contrary to a claim of the defendants, there is no
indication that this was merely a matter of increased costs anticipated under the
settlement. The plaintiffs were under the belief that free and clear title could not be
transferred. It was not proper for the trial court to disagree with this belief based
upon the one sentence of the surveyor’s report without holding an evidentiary
                                                                                                    -10-

hearing.1     For all of these reasons, we reverse and remand for an evidentiary
hearing.
                                             WRITINGS
        {¶38} Finally, we address appellant’s contentions concerning the ability to
consider the writings submitted in support of the defendants’ argument that a
settlement was reached. In a one-sentence statement, appellants state that there
must be a writing that satisfies the statute of frauds since this is a real property
matter. After that lone sentence, appellants do not cite the statute, and the cases
they cite do not mention the statute of frauds. Pursuant to R.C. 1335.05, an action
cannot charge a defendant upon a contract or sale of lands or interests in or
concerning them unless the agreement upon which the action is brought is in writing
signed by the party to be charged or by a person authorized by him. Appellees
contend that the statute of frauds is inapplicable to settlement agreements, noting
that oral settlements of lawsuits are regularly enforced without regard to the statute of
frauds (although they cite cases which did not involve realty).
        {¶39} The lawsuit was filed by the plaintiff-appellant for land already
purchased under a written contract that was inadvertently not included in the deed;
this was an action to enforce a prior purchase agreement and to reform a deed that
inadvertently failed to include all of the land included in the signed purchase
agreement. The motion to enforce the alleged settlement filed within that suit was
not itself an action charging a defendant or a land transfer itself but was a motion by
a defendant to enforce an agreement to perform.                    The agreement concerned a
defendant consenting to transfer the very land requested by plaintiff in the plaintiff’s
own complaint.


        1
           We note that the defendants’ motion to enforce settlement reviewed a case and noted that
after holding an evidentiary hearing, the trial court enforced the settlement agreement where the
plaintiff merely changed his mind. See Stanton, 7th Dist. No. 07BE29. There was no indication that
the defendants, at the time they filed their motion, believed the matter would be ruled upon without a
hearing. In fact, the trial court ignored its own order which specifically ruled that the court would
review the filings as of January 4, 2013 and either set the matter for telephone conference or for actual
evidentiary hearing. The court did neither of these things and instead ruled without allowing further
comment from the plaintiffs.
                                                                                      -11-

       {¶40} In any event, appellants’ brief (like their response below) does not
actually argue that the writings would not satisfy the statute of frauds or why they
would not. Rather, appellants’ focus here is on their attempt to eliminate the ability of
the trial court to consider the writings by arguing the writings are inadmissible.
       {¶41} That is, appellants assert that there must be admissible corroborating
evidence of the defendants claim that there was a settlement. They review various
cases dealing with enforcement of settlements and the evidence presented in each
case. See, e.g., Spercel v. Sterling Industries, Inc., 31 Ohio St.2d 36, 285 N.E.2d
324 (1972) (involving an in-court settlement); Burrell Indus., Inc. v. Central Allied Ent.,
7th Dist. Nos. 96BA18, 96BA25 (Dec. 15, 1998) (where there was hearing due to
latent ambiguities in settlement and where movant presented testimony at hearing on
motion to enforce settlement and other party did not refute the main claims); Clemens
v. Clemens, 2d Dist. No. 07CA73, 2008-Ohio-4730 (speaking of the need for
corroborating evidence besides the movant’s statement).
       {¶42} Appellants then urge that the writings cannot be corroborating evidence
of defense counsel’s argument because they are excluded from consideration by
Evid.R. 408. This rule states that evidence of (1) furnishing, offering, or promising to
furnish or (2) accepting, offering, or promising to accept consideration in
compromising or attempting to compromise a claim which was disputed as to validity
or amount, is not admissible to prove liability for or invalidity of the claim or its
amount.     Evid.R. 408. Evidence of conduct or statements made in compromise
negotiations is likewise not admissible. Id.
       {¶43} The rule then specifies that it does not require exclusion when the
evidence is offered for another purpose. Id. The rule is to preclude the use of
negotiations or actual settlements at later trials for instance.               Here, the
communications were not offered to prove liability for or the invalidity of the claim or
its amount. Rather, the communications were offered to establish that a settlement
offer had been accepted by the plaintiffs.
       {¶44} Thus, Evid.R. 408 is inapplicable to the use of the alleged offer and
acceptance settlement communications in ruling on a motion to enforce settlement.
                                                                                    -12-

See Hopes v. Barry, 11th Dist. No. 2010-A-0042, 2011-Ohio-6688, ¶ 36. Otherwise,
there would be no such doctrine as court enforcement of out-of-court oral
settlements, which doctrine does exist.      See, e.g., Mack, 14 Ohio St.3d at 36.
Accordingly, the arguments concerning the trial court’s ability to consider the emails
and other attachments to the defendants’ motion are without merit.
      {¶45} For the reasons set forth in this opinion, the judgment of the trial court is
hereby reversed and the case is remanded for an evidentiary hearing.

Donofrio, J., concurs.
DeGenaro, P.J., concurs.
