[Cite as Ginley v. Hamilton, 2014-Ohio-2642.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                      No. 100361



                                      BRYAN GINLEY
                                                      PLAINTIFF-APPELLANT

                                                vs.

                                 TAMMY HAMILTON
                                                      DEFENDANT-APPELLEE




                                           JUDGMENT:
                                            AFFIRMED



                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-12-778492


        BEFORE: Celebrezze, P.J., Keough, J., and Stewart, J.

        RELEASED AND JOURNALIZED: June 19, 2014
FOR APPELLANT

Bryan P. Ginley, pro se
1445 Cordova Avenue
Lakewood, Ohio 44107


ATTORNEYS FOR APPELLEE

Stephen M. Beaudry
James T. Tyminski, Jr.
Gallagher Sharp
6th Floor, Bulkley Building
1501 Euclid Avenue
Cleveland, Ohio 44115
FRANK D. CELEBREZZE, JR., P.J.:

       {¶1} Appellant, Bryan Ginley, appeals from the enforcement of a settlement

agreement to which he purports he did not consent. In this pro se appeal, he claims that

his attorney agreed to settle his personal injury action for $3,500 without his knowledge

or consent. After a thorough review of the record and law, we affirm the decision of the

trial court.

                          I. Factual and Procedural History

       {¶2} According to Ginley’s complaint filed on March 20, 2012, Ginley was riding

his bicycle near West Avalon Drive in Westlake, Ohio, on June 11, 2008, at

approximately 3:00 p.m. He was struck by a vehicle driven by Tammy Hamilton near the

intersection of Hilliard Boulevard and West Avalon Drive as he walked his bike through

the crosswalk. Ginley claimed to have severe injuries from the collision including partial

paralysis. Hamilton answered and asserted several defenses. Her pretrial statement

asserted that Ginley actually struck her vehicle as she was stopped at the intersection.

She claimed, as the police report documented, that damage occurred to the front driver’s

side quarter panel of her vehicle including marks on the driver’s side tire. She further

claimed that Ginley was cited by Westlake police and found to be at fault for the accident.

       {¶3} As part of the pretrial process, Ginley’s treating chiropractor, Carl J. Valenti,

II, D.C., was deposed as if testifying at trial on March 5, 2013, by both sides. Dr. Valenti

first examined Ginley on July 1, 2008, and developed a history, listened to symptoms as

reported by Ginley, and conducted an examination.          This examination resulted in a
finding that Ginley had minor injuries including “segmental dysfunction in the cervical

and thoracic spine, lumbosacral sprain/strain injury, which is the lower back, and a

segmental dysfunction of the left hip and knee joints.”         Valenti opined that these

conditions could be consistent with injuries sustained by being struck by an automobile if

several presumptions set forth by appellant’s attorney were true. Valenti continued to treat

Ginley several times a month for 11 to 12 months.

       {¶4} Valenti testified that, on further treatment, Ginley reported his symptoms

would sometimes alternate between left and right hamstring. Valenti’s observations of

Ginley’s injuries also did not align with Ginley’s subjective complaints. Valenti could

find no evidence of paralysis or that his intestines fell out, both of which Ginley had

stated resulted from the accident.          MRI results also demonstrated that Ginley’s

complaints of herniated disks in his spine were not true. Dr. Valenti testified that Ginley

clearly exaggerated his injuries. Because of Ginley’s varying accounts of what occurred,

their conflict with the police report, and his exaggerations of his injuries, Dr. Valenti

stated, “it becomes impossible for me to determine based on everything that I know

exactly what that mechanism of injury is.”

       {¶5} Ginley’s attorney, Daniel Ryan, testified at a hearing that, after Valenti’s

deposition, Ryan explained to Ginley how damaging Valenti’s testimony was to the case.

Ryan also explained that Ginley’s other doctors had refused to testify on his behalf.

Ryan asked Ginley about settlement and, according to Ryan, he was given authority to

settle for an amount greater than $2,500.
       {¶6} On March 8, 2013, an offer and counteroffer were made between the

attorneys, and Ryan accepted an offer to settle for $3,500. A confirmation email was

sent on March 11, 2013, from Ryan to Hamilton’s attorney, which stated, “[t]hanks for

doing a great job on this in getting it settled. I think it is fair in spite of all the claims by

Mr. Ginley. I have the authority to accept $3,500 from Mr. Ginley so you have it in

writing. I have attached the W9 to use and would you please issue the check as Bryan

Ginley and his attorney RYAN LLP.”             The parties then informed the court that a

settlement had been reached.

       {¶7} On March 12, 2013, the trial court issued an order dismissing the case as

settled and directing the parties to file a more formal entry and settlement. The next day,

Ginley called the court and learned that his case had been dismissed. He became irate

and called Hamilton’s attorney and left a voicemail asserting that the case was not settled.

       {¶8} On March 13, 2013, Ginley filed a motion for time to seek new counsel or

proceed pro se, where he asked the court to reinstate the case. He argued he never gave

Mr. Ryan authority to settle. In response, Hamilton opposed the motion and filed a

motion to enforce the settlement agreement.          The trial court set a hearing date on

Hamilton’s motion to enforce and what the court styled as Ginley’s motion to set aside

the settlement.

       {¶9} At the August 14, 2013 hearing, Ginley, Ryan, and Hamilton’s attorney

testified about the settlement negotiations. The parties were not sworn prior to making

statements, but no objection was raised. The trial court found that the case settled and
granted Hamilton’s motion to enforce the settlement agreement. Ginley now appeals

from that decision assigning three unclear errors, taken verbatim from appellant’s pro se

brief:

         I. There wasn’t any agreement at all[.] * * * The presentation of
         anything to the contrary is intentional fraud & a violation of professional
         conduct (1.4) & (4.1). Breach of fiduciary duty & fraudulent
         misrepresentation. This lack of credibility & competence of the only
         (weight) evidence (witnesses) to the (secret) completely fabricated,
         unilateral & unauthorized settlement agreement was uncorroborated and
         contrary to all of the evidence & truthful accurate testimony. Which
         adversely influenced the outcome of the settlement hearing resulting in an
         erroneous (reversible) verdict.

         II. The trial court committed procedural (reversible) error and abused its
         discretion by NOT allowing ANY of my persuasive evidence including all
         of my witnesses (page 8, line 20-23) to testify on my behalf.

         III. The court committed procedural (reversible) error and abused its
         discretion by NOT ruling on or advising me regarding my attorney of record
         after he refused to represent me. Because my representation became
         ambiguous without ANY ruling Dan Ryan continued as my attorney of
         record or his representation of me. As a result my representation was
         unknown to me at the settlement hearing.

                                   II. Law and Analysis

                               A. Enforcement of Settlement

         {¶10} Settlements are a favored method of resolving disputes. In re NLO, Inc., 5

F.3d 154 (6th Cir.1993). However, parties may not be forced into a settlement to which

they did not agree.

         {¶11} Where a dispute arises about the existence of a settlement agreement, a court

may not force a party into a settlement. “To do so would be to deny the parties’ rights 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 on a mutual agreement.”

Rulli v. Fan Co., 79 Ohio St.3d 374, 377, 683 N.E.2d 337 (1997), citing Mack v. Polson

Rubber Co., 14 Ohio St.3d 34, 470 N.E.2d 902 (1984), syllabus.

       {¶12} Here, Ginley claims he did not authorize his attorney to settle the case and

had no knowledge of the discussions between counsel. “Whether a party authorized the

attorney to settle the case on certain terms is a question of fact, the resolution of which by

the trial court shall not be disturbed on appeal if supported by some competent, credible
             1
evidence.”       Schalmo Builders, Inc. v. Zama, 8th Dist. Cuyahoga No. 90782,

2008-Ohio-5879, ¶17, citing Garrison v. Daytonian Hotel, 105 Ohio App.3d 322, 327,

663 N.E.2d 1316 (2d Dist.1995). Therefore, a reviewing court should not reverse a trial

court’s decision if it merely has a difference of opinion on questions of credibility or the

weight of the evidence. A trial court’s decision should be overturned only when there is

no competent and credible supporting evidence. Northpoint Props. v. Charter One Bank,

8th Dist. Cuyahoga No. 100210, 2014-Ohio-1430, ¶ 50, citing Seasons Coal Co. v.

Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).

       {¶13} The present case is similar to one recently decided by the Eleventh District

Court of Appeals:      Bromley v. Seme, 2013-Ohio-4751, 3 N.E.3d 1254 (11th Dist.).

There, the record disclosed:




           There is a distinction between actual and apparent authority in the case law that is not
       1


implicated here. Attorney Ryan claimed, and the trial court found, that he had actual authority to
settle the case and had obtained Ginley’s consent to the settlement.
       The transcript of the July 30, 2012 “settlement” hearing shows that Attorney
       Newman unequivocally averred to the trial court that: (1) he and appellant
       had discussed the terms of the proposed settlement extensively; and (2)
       appellant was willing to be bound by the settlement. Given the specific
       nature of Attorney Newman’s statements, they were sufficient to constitute
       a prima facie showing that appellant had expressly authorized him to agree
       to the six terms that were negotiated during the prior telephonic conference.

Id. at ¶ 28. The court found that these statements were not rebutted by claims of a lack

of consent.

       {¶14}       Here,    after    Ginley    waived     attorney-client     confidentiality,    Ryan

unequivocally stated that he informed Ginley of the ongoing negotiations and that Ginley

had given him permission to settle the case for any amount greater than $2,500. Ginley

claimed to have suffered significant injury, amassed medical bills far in excess of the

settlement amount, and would never have authorized settlement for such a low amount.

Attorney Ryan explained that the deposition of the only treating physician who would

testify on Ginley’s behalf was extremely damaging to the case because Dr. Valenti stated

that appellant was exaggerating his injuries.                Ginley’s credibility was negatively

impacted by his own deposition and the deposition of his treating chiropractor, and

Ryan’s was bolstered by corroborating emails and statements made by Hamilton’s

attorney. Given this and Ginley’s other credibility issues,2 the trial court’s decision to

believe attorney Ryan over Ginley is not surprising. The trial court heard the statements,




            Ginley testified during his deposition that his intestines had fallen out as a result of the
       2


accident.    Dr. Valenti testified he could find no evidence of this.
weighed the credibility of the parties, and ruled that the settlement was valid and

enforceable. The trial court’s decision is supported by competent, credible evidence.

      {¶15} Even if Ginley had not consented to the settlement, “when an attorney

exceeds his settlement authority, that misconduct must be imputed to the client and the

client’s remedy lies elsewhere.” Lepole v. Long John Silver’s, 11th Dist. Portage No.

2003-P-0020, 2003-Ohio-7198, ¶ 16, citing       Mollis v. Rox Constr. Co., 11th Dist.

Trumbull No. 92-T-4688, 1992 Ohio App. LEXIS 6083, *12 (Dec. 4, 1992).

                               B. Scope of the Hearing

      {¶16} Ginley next complains that the trial court prevented him from presenting

evidence during the hearing and that no sworn testimony was admitted.

      {¶17} The trial court has discretion to control the mode and admission of evidence.

Evid.R. 611. Such decisions will not be reversed absent an abuse of discretion. An

abuse of discretion connotes an unreasonable, arbitrary, or unconscionable decision.

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

      {¶18} After the hearing commenced, the trial court asked for a statement from

Hamilton’s attorney because the court was addressing Hamilton’s motion to enforce the

settlement agreement. Hamilton’s attorney set forth the negotiations that took place and

the arrival at a settlement of $3,500. The court then asked Ginley to respond. Ginley

stated that he was aware of no negotiations and never agreed to settle the case. Ginley

began to wander off the topic of settlement, and the trial court advised him to limit his

statements to the settlement. Ginley also never attempted to call any witnesses who
possessed relevant knowledge of the settlement issue. He did inquire whether he could

have members of the court staff testify about his anger upon being told that the case was

settled, but this was not altogether relevant to the question of whether Ginley gave his

attorney authority to settle the case. Therefore, it was not an abuse of discretion for the

trial court to limit testimony and witnesses to those who possessed relevant information

about the questions properly before the court.

       {¶19} Ginley’s second argument about unsworn testimony does not amount to

prejudicial error. Ginley failed to object to the trial court’s entertainment of statements

from the parties without first having placed them under oath. This could have been

raised at the time of the hearing and corrected. By raising this claim of error for the first

time on appeal, Ginley has waived all but plain error. Ardire v. W. Lake Planning Comm.,

8th Dist. Cuyahoga No. 61636, 1993 Ohio App. LEXIS 620, *9 (Feb. 4, 1993). To

constitute plain error, the error must be obvious on the record, palpable, and fundamental,

so that it should have been apparent to the trial court without objection. State v. Tichon,

102 Ohio App.3d 758, 767, 658 N.E.2d 16 (9th Dist.1995). Moreover, plain error does

not exist unless the appellant establishes that the outcome of the trial clearly would have

been different but for the trial court’s allegedly improper actions. State v. Waddell, 75

Ohio St.3d 163, 166, 661 N.E.2d 1043 (1996). Notice of plain error is to be taken with

utmost caution, under exceptional circumstances, and only to prevent a manifest

miscarriage of justice. State v. Phillips, 74 Ohio St.3d 72, 83, 656 N.E.2d 643 (1995).
       {¶20} Ginley is unable to meet this burden. It is highly unlikely that the results of

the hearing would have been different had the parties been administered an oath. The

attorneys who testified are under ethical obligations to speak truthfully to the court under

these circumstances. Prof.Cond.R. 3.3(a). An additional oath subjecting them to perjury

prosecution likely made no difference below. Therefore, this assigned error is overruled.

                                   C. Right to Counsel

       {¶21} Ginley finally claims that the trial court erred when it failed to rule on his

motion for time to find counsel or proceed pro se. There, Ginley made arguments akin to

a motion for relief from judgment. He also asked for 180 to 365 days to investigate his

options and find new counsel or proceed pro se. The trial court denied Ginley’s motion

for 180 days to one year to obtain new counsel and allowed him to proceed pro se on July

19, 2013.3

       {¶22} Ginley does have a right to be represented by counsel, but that right is not

absolute.

       There is an inherent right to counsel as to all matters, be it civil or criminal.
        In criminal matters, however, both the Ohio and the United States
       Constitutions expressly provide that a person shall not be denied this right
       to counsel. * * * In civil matters, however, there is no error with respect
       to a denial of counsel, unless it appears that the party expressly requested
       the right to confer with counsel and was unjustifiably denied the exercise of
       that right. The right is not absolute, but may be controlled as to time and
       circumstances.




         The trial court also denied Ginley’s motion to appoint a special prosecutor, which was
       3


another part of the combined motion, but granted his request for change of address.
Siegwald v. Curry, 40 Ohio App.2d 313, 315-316, 319 N.E.2d 381 (10th Dist.1974).

Here, the denial of Ginley’s request to continue the case for 180 to 365 days, which had

been pending since 2008 and which was settled and dismissed, was appropriate. Such a

long continuance was not reasonable where the only action potentially left was to hold an

evidentiary hearing to determine whether Ginley had given his attorney authority to settle

this case.   Ginley’s requested continuance was substantial and was made in the

alternative with a request to proceed pro se, which the court essentially granted.

Therefore, Ginley’s final assignment of error is overruled.

                                     III. Conclusion

       {¶23} The trial court conducted a hearing to determine if attorney Ryan was given

settlement authority by Ginley. The court heard testimony from all the parties and found

attorney Ryan’s testimony more credible than Ginley’s. That decision is supported by

competent, credible evidence.

       {¶24} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court 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.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
MELODY J. STEWART, J., CONCUR
