[Cite as Carbone v. Sericola, 2014-Ohio-3526.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


RALPH CARBONE, et al.,                           :    OPINION

                 Plaintiffs-Appellees,           :
                                                      CASE NO. 2013-T-0053
        - vs -                                   :

FRANK SERICOLA,                                  :

                 Defendant-Appellant.            :


Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2011 CV
1717.

Judgment: Affirmed.


Gary J. Rosati, Rosati Law Office, LLC, 860 Boardman-Canfield Road, Suite 102,
Boardman, OH 44512 (For Plaintiffs-Appellees).

Charles E. McFarland, 338 Jackson Road, New Castle, KY 40050 (For Defendant-
Appellant).



THOMAS R. WRIGHT, J.

        {¶1}     This accelerated calendar appeal is from the Trumbull County Court of

 Common Pleas. Appellant Frank Sericola appeals the trial court’s grant of summary

 judgment to appellees Ralph Carbone, Joseph R. Higley, Phillip K. Richburg, Fred

 Sargent, Maxine V. Savel, Darlene Shaulis, Raymond C. Smith, and Ron Zelenak

 (together “appellees”) for appellant’s involvement in running a Ponzi scheme

 defrauding appellees out of various amounts of money. Appellant alleges the affidavits

 supporting the summary judgment motion did not comply with Civ.R. 56(E) and the trial
court otherwise erred in finding sufficient evidence to grant summary judgment. He

also alleges that the statute of limitations ran on appellees’ complaint. For the following

reasons, we affirm.

      {¶2}   Appellees are all investors in D.J. Harriett, Inc. (“Harriett”), a company

appellees believed to be an approved “project manager” for the construction of

McDonalds and Pioneer Chicken restaurants in the Northern District of Ohio. In 2010,

appellees claim they discovered that Harriet was not a project manager for franchise

restaurants. Instead the company was a front to run an elaborate Ponzi scheme.

      {¶3}   In running the Ponzi scheme, appellees allege that appellant induced

appellees to invest by showing them interest checks he received from Harriett

demonstrating the return he received on his investment with Harriett. Appellees also

allege that appellant received various kinds of compensation for signing up new

investors to the scheme. Appellant denies having any involvement with the Ponzi

scheme.

      {¶4}   On October 10, 2012, appellees filed their motion for summary judgment

to which appellant never filed a motion in opposition. The trial court granted summary

judgment on liability deferring damages for later proceedings. In the middle of March of

2013, the parties reached a settlement agreement where appellant would turn over an

annuity worth approximately $328,000 in exchange for a release of all claims. A month

later, appellees filed a motion to enforce the settlement agreement. At a settlement

hearing held shortly thereafter, appellant notified the court that he had fired his

attorney. The court then proceeded to go forward with the settlement hearing and the

parties signed an agreed judgment entry specifying that appellant would give up his

annuity in exchange for a release of all claims.


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       {¶5}   Before we address the assignments of error, in supplemental briefing,

appellant challenges the trial court’s subject matter jurisdiction. Specifically, he argues

that appellees’ complaint is based on R.C. 1707.43(A), and that such requires appellee

to tender the securities either to the seller in person or in open court in order for the trial

court to have subject matter jurisdiction. Appellees, according to appellant, did not

tender the securities, and therefore the trial court lacked subject matter jurisdiction.

“[E]ven when not raised by either party, the issue of subject matter jurisdiction may be

raised sua sponte by the court at any stage of the proceedings, including for the first

time on appeal.” In re Graham, 147 Ohio App.3d 452, 2002-Ohio-2407, ¶29 (7th Dist.).

       {¶6}   R.C. 1707.43(A) provides that:

       {¶7}   “Subject to divisions (B) and (C) of this section, every sale or contract for

sale made in violation of Chapter 1707 of the Revised Code, is voidable at the election

of the purchaser. The person making such sale or contract for sale, and every person

that has participated in or aided the seller in any way in making such sale or contract for

sale, are jointly and severally liable to the purchaser, in an action at law in any court of

competent jurisdiction, upon tender to the seller in person or in open court of the

securities sold or of the contract made, for the full amount paid by the purchaser and for

all taxable court costs, unless the court determines that the violation did not materially

affect the protection contemplated by the violated provision.”

       {¶8}   The R.C. 1707.43 tender requirement does not go to the court’s subject

matter jurisdiction. As stated, appellees could have tendered the securities either in

person anywhere or in open court after the complaint is filed. Because a tender in

‘open’ court after filing is permitted, it follows that the open court is one with subject

matter jurisdiction even before tender. Furthermore, the Ninth District has found that


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tendering the securities at trial is sufficient to meet the requirement of R.C. 1707.43.

Wilson v. Ward, 183 Ohio App.3d 494, 2009-Ohio-2078, ¶14 (9th Dist.).                 Quite

obviously much occurs in a case before trial and it would defy all reason to conclude

that the trial court lacked subject matter jurisdiction over the pretrial proceedings prior

to tender. Moreover, at least one court has concluded the tender requirement is a

condition precedent. Crane v. Courtright, 2 Ohio App.2d 125, 128 (10th Dist.1964).

Without expressly deciding the “condition precedent” issue, it is sufficient to say that as

condition precedent can be waived, they do not go to subject matter jurisdiction. Corey

v. Big Run Indus. Park, LLC, 10th Dist. Franklin No. 09AP-176, 2009-Ohio-5129, ¶18;

State ex rel. Lawrence Dev. Co. v. Weir, 11 Ohio App.3d 96, 97 (10th Dist.1983).

Accordingly, the tender requirement does not go to the trial court’s subject matter

jurisdiction.

      {¶9}      Appellant also alleges that appellees’ failure to plead the tender of the

securities either in their complaint or their motion for summary judgment means they

lacked standing and thus the trial court lacked jurisdiction.        However, appellant’s

argument here is merely a repeat of his subject matter jurisdiction argument and for

reasons already stated likewise fails when postured in standing terms. To establish

standing, plaintiffs must show that they suffered (1) an injury that is (2) fairly traceable

to the defendant's allegedly unlawful conduct, and (3) likely to be redressed by the

requested relief. Moore v. City of Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897,

¶22. Generally speaking, appellees allege (1) appellant fraudulently induced appellees

to making certain junk investments, (2) appellees lost money as a result of the

investments they made and (3) appellees seek compensation for the damages

incurred. Accordingly, the trial court had jurisdiction.


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      {¶10} As his first assignment of error, appellant alleges that:

      {¶11} “The Trumbull County Court of Common Pleas erred in granting a motion

for summary judgment in favor of the plaintiffs.”

      {¶12} Within this assignment appellant alleges there were four reasons why

granting summary judgment was in error. First, appellant alleges the accompanying

affidavits in support of the motion for summary judgment did not comply with Civ.R.

56(E). Second, he alleges that the court erred in granting summary judgment because

two affidavits did not have a certified copy of the note attached to two affidavits and

said affidavits violated Civ.R. 56(E). Third, appellant challenges the sufficiency of the

evidence to demonstrate appellees are entitled to relief. Finally, appellant claims that

the statute of limitations on appellees’ claims has run.

      {¶13} We need not reach the merits of any of appellant’s claims.            When a

settlement is reached between the parties and the right of appeal is not explicitly

preserved, the parties waive the right to appeal any issues other than those related to

the formation or acceptance of the settlement. Kerwin v. Kerwin, 6th Dist. Lucas No. L-

04-1002, 2004-Ohio-4676, ¶9. As appellant attacks the basis of granting summary

judgment and not the settlement agreement itself, all of his issues are waived.

      {¶14} As his second assignment of error, appellant alleges that:

      {¶15} “The Trumbull county Court of Common Pleas erred in going forward with

the case when it had ruled that counsel for Frank Sericola could withdraw from the case

without taking steps to ensure that the interests of Frank Sericola were protected.”

      {¶16} Within this assignment of error, Sericola alleges that the trial court did not

properly ensure that the Rules of Professional Conduct were followed when the trial

court accepted the withdrawal of Sericola’s attorney on the day of the settlement


                                            5
enforcement hearing. First he claims that 1.16(d) was not followed because appellant

was not delivered all property that Sericola’s attorney was required to turn over to him

before appellant agreed to the settlement. He also claims that the trial court coerced

him into settling the case, which would not have happened if Sericola had an attorney.

However, his argument ignores the fact that appellant actually settled the case on

March 12, 2013, before he terminated his attorney. The April 23 agreed judgment entry

just restated the previously agreed to terms.

       {¶17} “‘Where the parties enter into a settlement agreement in the presence of

the court, such an agreement constitutes a binding contract.’ Blakemore, at ¶23, citing

Walther v. Walther (1995), 102 Ohio App.3d 378, 383, 657 N.E.2d 332. ‘The

enforceability of an in-court settlement agreement depends upon whether the parties

have manifested an intention to be bound by its terms and whether these intentions are

sufficiently definite to be specifically enforced.’   Id., quoting Franchini at ¶9, citing

Normandy Place Assoc. v. Beyer (1982), 2 Ohio St.3d 102, 105-106, 2 Ohio B. 653, 443

N.E.2d 161.” Presjak v. Presjak, 11th Dist. Trumbull No. 2009-T-0077, 2010-Ohio-

1455, ¶37.    Here, there is no indication that the trial court coerced appellant into

entering into the agreement as it was reached in March.               Moreover, appellant

affirmatively stated that he understood the settlement terms and that settlement was of

his own free will. He merely ratified the March agreement in April.

       {¶18} The judgment of the Trumbull County Court of Common Pleas is affirmed.



DIANE V. GRENDELL, J., concurs,

COLLEEN MARY O’TOOLE, J., concurs in judgment only.




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