         [Cite as Swaters v. Lawson, 2014-Ohio-2252.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO


FLORENCE SWATERS,                                :      APPEAL NOS. C-130604
                                                                     C-130627
        Plaintiff-Appellee,                      :      TRIAL NO. A-1001370

  vs.                                            :
                                                          O P I N I O N.
KRISTINE KLEVE LAWSON,                           :

  and                                            :

JOSEPH L. FORD III,                              :

        Defendants-Appellants,                   :

  and                                            :

CHRISTOPHER GARDNER,                             :

        Intervenor-Appellee.                     :




Civil Appeals From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Final Judgment Entered

Date of Judgment Entry on Appeal: May 28, 2014

Graydon, Head & Ritchey LLP, Scott K. Jones and Stacy A. Cole, for Plaintiff-
Appellee Florence Swaters,

Timothy A. Smith, for Defendant-Appellant Kristine Kleve Lawson,

Joseph L. Ford III, pro se,

Gottesman & Associates and Zachary Gottesman, for Intervenor-Appellee.



Please note: This case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




H ILDEBRANDT , Judge.


       {¶1}       Defendants-appellants Kristine Kleve Lawson and Joseph L. Ford

III appeal the judgment of the Hamilton County Court of Common Pleas granting a

motion to enforce a settlement agreement and dismissing all claims filed in a dispute

over the ownership of a vintage automobile.

                                 Ownership Claims

       {¶2}       Plaintiff-appellee Florence Swaters is a resident of Belgium. In

February 2010, she filed a complaint alleging that her father Jacques Swaters had

purchased the chassis of a vintage Ferrari that had been previously reported stolen in

Ohio from Karl Kleve, Lawson’s father. According to the complaint, the automobile

had been cleared for sale by Belgian authorities, and Jacques Swaters had purchased

the car in good faith. Swaters sought possession of the remaining parts of the vehicle

from Lawson and others, asserting that her father had settled all ownership issues

with Kleve.

       {¶3}       Lawson, as a beneficiary of Kleve’s estate, filed an answer and

counterclaim in which she alleged that Jacques Swaters and others had wrongfully

gained possession of the car.     The dispute over the ownership of the Ferrari

continued for several years, with Ford and intervenor-appellee Christopher Gardner

also asserting interests.

       {¶4}       In March 2013, the parties executed a document titled “Heads of

Agreement.” The purpose of the agreement, according to its own terms, was “to

extinguish all claims and counterclaims” among the parties in relation to the Ferrari.

The agreement provided for delivery of the various automobile parts to an auction

house in London and for distribution of the proceeds after the car had been sold.


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                        OHIO FIRST DISTRICT COURT OF APPEALS



       {¶5}       The agreement identified the parties as the “BC,” the Belgian

contingency, and the “OC,” the Ohio contingency. Paragraph 2 of the agreement

stated the following:

       All claims and counterclaims between BC and OC whether, already

       asserted or not, [sic] are hereby waived and permanently extinguished on

       distribution of the funds from the sale to the signees of this agreement.

       BC and the OC parties will promptly enter an agreement discontinuing all

       action in Ohio in such form as is appropriate under Ohio law.

       {¶6}       Although Paragraph 2 of the agreement made reference to

dismissal under Ohio law, Paragraph 12 stated that “[t]his Agreement shall be

governed by English law and any dispute in relation to it will be determined by the

High Court of Justice in London.”

       {¶7}       On July 23, 2013, Florence Swaters filed a motion to enforce the

Heads of Agreement and to dismiss the action. On August 19, 2013, the trial court

issued a judgment entry granting the motion. In its entry, the court made specific

orders concerning the delivery of the various parts of the Ferrari, the transfer of title,

and the disposition of the proceeds from the auction. In the same judgment entry,

the court dismissed all pending claims and counterclaims with prejudice.

                The Motion to Dismiss the Instant Appeal as Moot

       {¶8}       As a threshold issue, we must address the appellees’ motion to

dismiss the appeals on the basis that judgment has been satisfied and that the

appeals are therefore moot. In support of the motion, Swaters and Gardner have

submitted an affidavit and other documents purporting to demonstrate that Lawson

and Ford have fulfilled their obligations under the agreement and under the trial

court’s order enforcing that agreement.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶9}       We find no merit in the motion to dismiss. The affidavit and other

exhibits submitted to this court by Swaters and Gardner were not before the trial

court and are not part of the appellate record within the meaning of App.R. 9(A).

See, e.g., Willis v. Martin, 4th Dist. Scioto No. 06CA3053, 2006-Ohio-4846, ¶ 24

(affidavit submitted to the court of appeals but not to the trial court was not

cognizable under App.R. 9). Thus, we cannot consider those materials, and we

hereby overrule the motion to dismiss.

          The Trial Court’s Enforcement of the Settlement Agreement

       {¶10}      We turn now to the merits of the appeals.           In three related

assignments of error, Lawson and Ford argue that the trial court erred in dismissing

their claims prior to the distribution of the proceeds of sale; that the court erred in

holding that the Heads of Agreement was enforceable; and that the court erred in

failing to find Florence Swaters in breach of the agreement. Because we conclude

that the trial court erred in failing to enforce the forum-selection clause in paragraph

12 of the agreement, we reverse the judgment.

       {¶11}      A court must construe a contract as a whole and give effect to each

of its provisions if it is reasonable to do so. Saunders v. Mortensen, 101 Ohio St.3d

86, 2004-Ohio-24, 801 N.E.2d 452, ¶ 16. The court must enforce the plain and

ordinary meaning of the contract if its terms are unambiguous. Adaranijo v. Morris

Invest. Co., 1st Dist. Hamilton No. C-070453, 2008-Ohio-2705, ¶ 6, citing Saunders

at ¶ 9. The construction of a contract is a question of law, and we accordingly review

the judgment of the trial court de novo. Cincinnati Entertainment Assoc., Ltd. v. Bd.

of Commrs. of Hamilton Cty., 141 Ohio App.3d 803, 810, 753 N.E.2d 884 (1st

Dist.2001).




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶12}      “Forum-selection clauses are ‘presumptively valid’ and have

generally been enforced.” Zilbert v. Proficio Mtge. Ventures, L.L.C., 8th Dist.

Cuyahoga No. 100299, 2014-Ohio-1838, ¶ 20, citing Conway v. Huntington Natl.

Bank, 10th Dist. Franklin No. 11AP-1105, 2013-Ohio-1201.

       {¶13}      In this case, the parties do not dispute the validity of the forum-

selection clause. The clause unambiguously requires any dispute arising under the

Heads of Agreement to be resolved in the High Court of Justice in London. Thus, the

trial court erred in enforcing the terms of the Heads of Agreement, because the

forum-selection clause divested it of any authority to implement the agreement. And

because the trial court’s dismissal of all claims was based on the erroneous premise

that the court had the authority to enforce the agreement, the granting of the motion

to dismiss was also improper.

       {¶14}      Therefore, to the extent that Lawson and Ford contend that the

trial court erred in enforcing the Heads of Agreement and in dismissing the claims,

we sustain the assignments of error.

                                       Conclusion

       {¶15}      We reverse the judgment of the trial court and enter judgment

denying the motion to enforce the Heads of Agreement and reinstating the pending

claims dismissed by the trial court.

                                       Judgment reversed and final judgment entered.



CUNNINGHAM, P.J., and FISCHER, J., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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