         [Cite as MJMT, Inc. v. Geier, 2012-Ohio-813.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



MJMT, INC.,                                      :       APPEAL NO. C-110378
                                                         TRIAL NO. A-0902787
        Plaintiff-Appellant,                     :

  vs.                                            :       O P I N I O N.

WILLIAM J. GEIER, JR.,                           :

  and                                            :

BLP & ASSOCIATES, LLC,                           :

    Defendants-Appellees,                        :

  and                                            :

LAWRENCE M. HABER,                               :

    Defendant.                                   :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: March 2, 2012


Robbins, Kelly, Patterson & Tucker, Richard O. Hamilton, Jr., Jarrod M. Mohler,
and Joshua L. Vineyard, for Plaintiff-Appellant,

Kircher Arnold & Dame, LLC, and Konrad Kircher, for Defendants-Appellees.



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




H ILDEBRANDT , Presiding Judge.


       {¶1}       Plaintiff-appellant MJMT, Inc., appeals the judgment of the

Hamilton County Court of Common Pleas denying its motion to enforce a settlement

agreement in a contract dispute with defendants-appellees William J. Geier, Jr., and

BLP & Associates, LLC (“BLP”).

         The Parties’ Settlement Agreement and the Motion to Enforce

       {¶2}       In March 2009, MJMT filed suit against Geier, BLP, and Lawrence

M. Haber for an alleged breach of a guaranty arising from a commercial lease. In

May 2010, the parties entered into a settlement agreement under which the

defendants were to pay a total of $40,000. The agreement was structured to require

the defendants to make initial payments totaling $28,000 and thereafter to make

monthly payments of $1,000. The settlement agreement expressly stated that time

was of the essence with respect to the payments. The agreement further required the

defendants to effectuate the transfer of a liquor license to MJMT.

       {¶3}       The settlement agreement also provided for MJMT’s remedies in

the event of a default. The agreement stated,

       In the event Defendants default on a monthly payment, or otherwise

       fail to perform in accordance with the terms herein, then Plaintiff shall

       have the right to file a Motion for Judgment, supported by Affidavit as

       to amounts due, (which affidavit shall be conclusive to establish the

       amount in default), in Case No. A0902787 for a judgment in the

       amount of $45,000, plus interest at 11.5% per annum from March 1,

       2008, less payments received under this Agreement, plus costs of

       collection, including reasonable attorney fees.


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The trial court retained jurisdiction over the settlement agreement, expressly finding

that “the terms of the parties’ settlement are fair and reasonable.”

       {¶4}       The defendants made the initial payments totaling $28,000 due

under the settlement agreement and thereafter made monthly payments totaling

$6,000. After no further payments were made, MJMT sought enforcement of the

settlement agreement in a motion filed March 15, 2011.           MJMT submitted an

affidavit averring that it had suffered damages in the amount of $24,963.53. That

figure represented the $45,000 in damages set forth in the settlement agreement

plus interest from May 1, 2008, to the date of the motion for judgment, minus the

$34,000 paid under the agreement. MJMT also submitted an affidavit stating that

the total costs of collection, including attorney fees, were $25,788.08.

       {¶5}       In response to MJMT’s motion to enforce the settlement, Geier

argued that Haber was required to make the remainder of the monthly payments and

that he had defaulted on the monthly payments without Geier’s knowledge. Geier

further argued that he had fully complied with his obligations under the settlement

agreement, including his assistance in effectuating the transfer of a liquor license to

MJMT. Geier contended that MJMT had deliberately failed to notify him of Haber’s

default so that it could collect the amount due under the default provision of the

settlement agreement. Geier tendered $6,000 as the remainder of the balance due

before the breach of the settlement agreement, but MJMT rejected the tender.

       {¶6}       The trial court overruled MJMT’s motion to enforce the settlement

agreement, stating that enforcement would be “unfair” because the agreement had

been “satisfied in all respects within the required schedule, except for $6,000 that

Defendant Geier thought was to be paid by Defendant Haber.”




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       {¶7}       In a single assignment of error, MJMT argues that the trial court

erred in overruling its motion to enforce the settlement agreement.

                     Settlements are Favored Under the Law

       {¶8}       A trial court may not make a contract for the parties or force

parties to settle a lawsuit. Cembex Care Solutions, LLC v. Gockerman, 1st Dist. No.

C-050623, 2006-Ohio-3173, ¶ 7, citing Litsinger Sign Co., Inc. v. The American Sign

Co., Inc., 11 Ohio St.2d 1, 14, 227 N.E.2d 609 (1967). But when the parties enter into

a settlement agreement in the presence of the trial court, the agreement is a binding

contract. Cembex at ¶ 7, citing Spercel v. Sterling Industries, Inc., 31 Ohio St.2d 36,

285 N.E.2d 324 (1972), paragraph one of the syllabus.

       {¶9}       Settlement agreements are favored under the law. State ex rel.

Wright v. Wyendt, 50 Ohio St.2d 194, 197, 363 N.E.2d 1387 (1977). And where a

contract has an express provision governing disputes, such a provision is to be

applied; a court is not to rewrite the provision to achieve a more equitable result. See

Dugan & Myers Constr. Co., Inc. v. Ohio Dept of Admin. Services, 113 Ohio St.3d

226, 2007-Ohio-1687, 864 N.E.2d 68, ¶ 39. Because the dispute over the agreement

in this case involves questions of law, we review the trial court’s judgment de novo.

Cembex at ¶ 8.

       {¶10}      In the case at bar, the trial court erred in refusing to enforce the

settlement agreement. The agreement was set forth in unambiguous terms, and it

was made in connection with a commercial lease among sophisticated parties. Geier

and BLP have not demonstrated any fraud or other defect in the formation of the

contract, and they have not shown that they were mistaken about any of the

agreement’s terms. Moreover, when it accepted the agreement, the trial court itself

deemed it to be “fair and reasonable.”



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                       The Appellees’ Defenses to Enforcement

       {¶11}       In arguing that enforcement of the agreement would be

inequitable, Geier and BLP first argue that Haber had been the party in default and

that any breach of the agreement had been solely attributable to his dereliction. We

find no merit in this argument. In the recitation at the beginning of the settlement

agreement, Geier, Haber and BLP are jointly referred to as “Defendants.” And in the

remainder of the agreement, the obligations to satisfy its terms rested upon the

“Defendants” and not upon any individual party. Accordingly, the implication that

Haber was the sole party in default is not supported by the unambiguous terms of the

contract.

       {¶12}       But Geier and BLP also make the related argument that MJMT had

prevented compliance with the terms of the settlement by failing to give them notice

that Haber had been delinquent in the payments. We also find no merit in this

argument.      As Geier and BLP concede, there was no provision in the contract

requiring MJMT to give notice of default to any of the defendants, and we will not

write such a provision into the agreement. Similarly, the failure on the part of MJMT

to immediately demand payment upon default did not operate as a waiver of timely

payment, where the settlement agreement included no limitation on the time within

which MJMT could seek enforcement.

       {¶13}       Nonetheless, Geier and BLP also argue that the terms of the

settlement agreement itself were unfair. Central to the appellees’ argument is the

assertion that they had satisfied all but $6,000 due under the agreement and that the

amount of damages demanded by MJMT was disproportionate to the balance

remaining      under    the   agreement.       Again,   we   are   not   persuaded.

The agreement itself provided for a reduction in the amount of damages by the



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amount paid under the contract, and MJMT’s motion for enforcement of the

agreement reflected such a reduction.

       {¶14}     Thus, we reject any suggestion that the parties had intended

substantial compliance to be deemed an impediment to the enforcement of their

contract. And as for the accrual of interest from March 1, 2008, such a sum was

explicitly provided for in the agreement.    Accordingly, we find no merit in the

argument that the damages as calculated by MJMT represented an unconscionable

attempt on the part of MJMT to gain a windfall at the expense of Geier and BLP.

                                  Attorney Fees

       {¶15}     Finally, Geier and BLP argue that the attorney fees sought under

the motion to enforce the judgment were unreasonable. Specifically, they contend

that because the settlement agreement provided for fees only with respect to the

collection of the amount due under the agreement, the $25,788.08 figure submitted

by MJMT was clearly excessive. Therefore, Geier and BLP assert, the settlement

agreement was unconscionable and unenforceable.

       {¶16}     We are not persuaded by this argument. The mere fact that MJMT

demanded fees that were arguably excessive did not render the agreement

unenforceable in its entirety. Because of the trial court’s summary rejection of the

settlement agreement, there was no hearing on the amount of fees reasonably related

to the costs of collection. Thus, on the state of the record before us, we cannot say

what amount would be allowable under the agreement. But in any event, a wholesale

rejection of the agreement based upon a request for excessive fees would be

improper.




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                                      Conclusion

       {¶17}      Accordingly, Geier and BLP have not demonstrated any unfairness

in the enforcement of the settlement agreement, and we sustain the assignment of

error. The judgment of the trial court is reversed, and the cause is remanded for

further proceedings consistent with this opinion.

                                                Judgment reversed and cause remanded.



SUNDERMANN and HENDON, JJ., concur.


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




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