      [Cite as Said v. Admr., Bur. of Workers' Comp., 2014-Ohio-841.]

                            IN THE COURT OF APPEALS
                   FIRST APPELLATE DISTRICT OF OHIO
                             HAMILTON COUNTY, OHIO



   TINA R. SAID (Deceased),                        :          APPEAL NO. C-130355
                                                                         C-130360
      and                                          :          TRIAL NO. A-1006028

   STEVEN M. SAID                                  :
   (Widower/Claimant),                                                  O P I N I O N.
                                                   :
       Plaintiffs-Appellees/Cross-
       Appellants,                                 :

      vs.                                          :

   ADMINISTRATOR, OHIO BUREAU :
   OF WORKERS’ COMPENSATION,
                                  :
       Defendant-Appellant/Cross-
       Appellee,                  :

     and                                           :

   BLUE CHIP 2000 COMMERICAL                       :
   CLEANING,

        Defendant.                                 :


Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part and Reversed in Part

Date of Judgment Entry on Appeal: March 7, 2014


Manley Burke, LPA, and George F. Moeller, for Plaintiffs-Appellees/Cross-Appellants,

Michael DeWine, Attorney General, and Thomas J. Straus, Assistant Attorney General, for
Defendant-Appellant/Cross-Appellee.


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



D INKELACKER , Judge.

                                  I.   Factual Background

       {¶1}   Plaintiff-appellee/cross-appellant Tina Said was injured in an industrial

accident at her place of employment. She committed suicide on December 21, 2005, as a

result of depression arising from her injury.        Her husband, plaintiff-appellee/cross-

appellant Steven M. Said, filed an application for death benefits.               Defendant-

appellant/cross-appellee the administrator of the Bureau of Workers’ Compensation (“the

bureau”) assigned Steven’s application the same claim number as Tina’s, and granted it

because Tina’s suicide was a direct and proximate result of her workplace accident.

       {¶2}   Subsequently, the bureau filed a motion alleging that Steven was not living

with Tina at the time of her death, as he had claimed in his application for benefits. It

sought a finding of fraud, termination of the death benefits, and a finding of overpayment

related to the benefits Steven had already received. The Industrial Commission granted the

bureau’s motion, terminated the death benefits, and found that Steven had been overpaid by

$76,759.28.

       {¶3}   Steven appealed the Industrial Commission’s order to the court of common

pleas. Subsequently, the parties entered into a settlement agreement. Under the terms of

the agreement, the bureau awarded Steven $95,000. But the agreement also provided that

“[a]ny overpayment in any of the decedent’s workers’ compensation claims may be deducted

from the amount of this settlement[.]” On September 14, 2011, the trial court journalized an

entry dismissing the case. The bureau then issued Steven a check for $18,240.72, which was

the settlement amount of $95,000 less the overpayment of $76,759.28.

       {¶4}   Subsequently, Steven filed a Civ.R. 60(B) motion for relief from judgment in

which he alleged that there had been no “meeting of minds” in the drafting of the settlement

agreement. He argued that Tina’s workers’ compensation claim was separate from his claim

for death benefits and that he had never agreed to have the alleged overpayment deducted



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from the settlement award of $95,000. He also filed a motion to enforce the settlement

agreement, in which he contended that the bureau should have paid him the $95,000 “less

any overpayment made in the claim of the decedent – Tina Said.”

       {¶5}   The trial court granted Steven’s Civ.R. 60(B) motion because “there was no

meeting of the minds as to the executed Settlement Agreement.” It denied Steven’s motion

to enforce the settlement agreement. Both parties have appealed the trial court’s judgment.

                      II. Motion to Enforce the Settlement Agreement

       {¶6}   We address Steven’s cross-appeal first. In his sole assignment of error, he

contends that the trial court erred in denying his motion to enforce the settlement

agreement. He also argues that under the plain language of the agreement the $95,000

payment should only have been set-off against any overpayment of Tina’s workers’

compensation claim, not his separate claim for death benefits. We need not reach the

merits of that argument, because we hold that the trial court lacked jurisdiction to enforce

the settlement agreement after the filing of the entry dismissing the case.

       {¶7}   A trial court possesses authority to enforce a settlement agreement voluntarily

entered into by the parties to a lawsuit because the agreement is a binding contract. Mack

v. Polson Rubber Co., 14 Ohio St.3d 34, 36, 470 N.E.2d 902 (1984); Infinite Security

Solutions, LLC v. Karam Properties I., Ltd., 6th Dist. Lucas No. L-12-1313, 2013-Ohio-4415,

¶ 11. But a trial court loses jurisdiction to proceed when the court has unconditionally

dismissed the action. State ex rel. Rice v. McGrath, 62 Ohio St.3d 70, 71, 577 N.E.2d 1100

(1991); Infinite Security Solutions at ¶ 11. The determination of whether a dismissal order is

unconditional and the court is thus deprived of jurisdiction to entertain a motion to enforce

a settlement agreement is dependent on the terms of the dismissal order. Infinite Security

Solutions at ¶ 12; Showcase Homes v. Ravenna Sav. Bank, 126 Ohio App.3d 328, 331, 710

N.E.2d 347 (3d Dist.1998).

       {¶8}   This court discussed the issue in Lamp v. Richard Goettle, Inc., 1st Dist.

Hamilton No. C-040461, 2005-Ohio-1877. We stated:


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         To enforce a settlement agreement after an entry of dismissal, the terms of the

         settlement must be embodied in an order of dismissal or the order must

         contain a provision for the court’s continuing jurisdiction over disputes that

         may arise out of the settlement. If instead the court enters a general and

         unconditional order of dismissal or there is a general notice of dismissal, the

         court cannot entertain a subsequent motion to enforce a settlement

         agreement.

Id. at ¶ 10.

         {¶9}   In this case, the entry of dismissal stated in its entirety: “Case settled and

dismissed with prejudice by agreement of the parties. No record. Costs are to be paid by

the Plaintiff.” Because the trial court’s entry of dismissal was unconditional, the trial court

did not have jurisdiction to enforce the settlement agreement.

         {¶10} Steven argues that because the dismissal entry referred to the settlement
agreement, it was not unconditional. We disagree. The entry does not actually refer to the

settlement agreement. It says only that the case had been settled. But, even if it actually

referred to the agreement, this court specifically stated in Lamp that unless the entry of

dismissal contains the terms of the agreement or specifically retains jurisdiction to enforce

the settlement agreement, the trial court has no jurisdiction to enforce it. But see Infinite

Security Solutions at ¶ 13-16; State ex rel. Spies v. Lent, 5th Dist. Tuscarawas No. 2008 AP

05 0033, 2009-Ohio-3844, ¶ 47. Consequently, we overrule Steven’s sole assignment of

error.

         {¶11} In a related matter, the bureau argues in its second assignment of error that
because the dismissal was unconditional, the trial court had no jurisdiction to “set aside” the

settlement agreement. Essentially, it argues that the trial court did not have jurisdiction to

consider Steven’s Civ.R. 60(B) motion for relief from judgment. But, in Lamp, this court

specifically stated that “[w]here there is a general order or notice of dismissal, the party

seeking enforcement of a settlement agreement must file either a new action for breach of


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                         OHIO FIRST DISTRICT COURT OF APPEALS



contract or a motion to vacate the dismissal.” Lamp at ¶ 10. Consequently, the trial court

had jurisdiction to decide Steven’s motion for relief from the dismissal entry, and we

overrule the bureau’s second assignment of error.

                      III. Civ.R. 60(B) Motion for Relief from Judgment

       {¶12} In its first assignment of error, the bureau contends that the trial court erred
in granting Steven’s Civ.R. 60(B) motion for relief from judgment. It argues that he failed to

show any of the grounds under Civ.R. 60(B)(1) through (5) justifying relief from judgment

or that he had a meritorious defense. This assignment of error is well taken.

       {¶13} To prevail on a Civ.R. 60(B) motion for relief from judgment, the moving
party bears the burden to demonstrate that (1) the party has a meritorious defense or claim

to present if relief is granted; (2) the party is entitled to relief under one of the grounds

stated in Civ.R. 60(B)(1) through (5); and (3) the motion is timely made. GTE Automatic

Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two

of the syllabus; Kell v. Verderber, 1st Dist. Hamilton No. C-120665, 2013-Ohio-4223, ¶ 35.

The decision whether to grant relief from judgment lies within the trial court’s discretion.

Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988); Kell at ¶ 35.

       {¶14} Steven did not specify in his motion the subsection of Civ.R. 60(B) on which
he relied. He argued that there was “no meeting of the minds” on the settlement agreement,

a claim which does not fall within any of the grounds for relief set forth in Civ.R. 60(B)(1)

through (4). He argues on appeal that his claim for relief fell under Civ.R. 60(B)(5), the

“catchall provision,” which allows a court to set aside a judgment for “any other reason

justifying relief from judgment.” See Kell at ¶ 36.

       {¶15} The grounds for invoking Civ.R. 60(B)(5) must be substantial; it cannot be
used as a substitute for the more specific provisions of Civ.R. 60(B). Caruso-Ciresi, Inc. v.

Lohman, 5 Ohio St.3d 64, 448 N.E.2d 1365 (1983), paragraphs one and two of the syllabus;

Kell at ¶ 36. Public policy favors the finality of judgments, and this case does not present

the exceptional circumstances necessary to afford relief from the judgment, especially when


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                          OHIO FIRST DISTRICT COURT OF APPEALS



Steven can file a separate action challenging the settlement agreement. See Wine v. Wine,

4th Dist. Hocking No. 06CA6, 2006-Ohio-6995, ¶ 18.

       {¶16} While Steven’s claim may survive in another action in another jurisdiction, he
is not entitled to relief from judgment in the present case. We hold that the trial court erred

in granting his Civ.R. 60(B) motion. We sustain the bureau’s first assignment of error, and

reverse that part of the trial court’s judgment granting Steven’s Civ.R. 60(B) motion for

relief from judgment.

                                                           Affirmed in part and reversed in part.


HENDON, 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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