{¶ 2} On February 22, 1996, appellees, George and Betty Black, filed a complaint against appellants, David and JoAnne Pheils, for monetary damages based upon the tort claims of abuse of process and malicious prosecution. The claims stemmed from the 1994 case instituted by appellants for nuisance and trespass; the case was decided in appellees' favor and was affirmed by this court. See Pheils v. Black (Oct. 13, 1995), 6th Dist. No. WD-95-028.1
{¶ 3} In appellees' complaint, they alleged that appellants, through appellant, David Pheils, an attorney, instituted the above action without probable cause and for a malicious purpose. Appellees further claimed that assuming that the action was instituted with probable cause, that cause was perverted to accomplish an improper purpose. Appellants, pro se, filed a counterclaim alleging that Betty Black, the named owner of an adjacent parcel of property, caused water to be diverted onto appellants' property causing damage.
{¶ 4} On October 15, 1997, the trial court granted summary judgment in favor of appellees on appellants' counterclaim. The court found that the counterclaim was the subject of appellants' 1994 complaint and, thus, was barred by the doctrine of res judicata. Summary judgment was granted to appellants on appellees' malicious prosecution claim; appellees did not dispute that the claim lacked merit under Ohio law.
{¶ 5} On April 23, 1998, appellants were awarded summary judgment as to appellees' remaining abuse of process claim. On appeal, this court affirmed the trial court's award of summary judgment as to appellants' counterclaim and appellees' malicious prosecution claim. We found, however, that genuine issues of material fact precluded summary judgment as to appellees' abuse of process claim and remanded the matter. See Black v. Pheils (Dec. 4, 1998), 6th Dist. No. WD-98-029.
{¶ 6} On September 24, 1999, appellant JoAnne Pheils' newly retained attorney filed an entry of appearance. Appellant, David Pheils, continued to represent himself. On September 6, 2000, the parties stipulated that the case would be tried before the court on November 13, 2000.
{¶ 7} At the October 19, 2000 pretrial, settlement negotiations were held between the judge, David Pheils, and appellees' then-attorney, Jodie Stearns. A $25,000 offer was extended by Mr. Pheils to remain open for 24 hours. Later that evening, an acceptance letter was faxed to Mr. Pheils. On October 20, via facsimile, Mr. Pheils indicated that the settlement was acceptable to him and his wife. It is undisputed that neither JoAnne Pheils nor her attorney were present at the October 19 pretrial, or directly involved in the subsequent negotiations.
{¶ 8} On November 3, 2000, appellees filed a motion to enforce the settlement agreement due to appellants' refusal to execute the mutual releases absent the inclusion of confidentiality and indemnity provisions. Shortly thereafter, a new trial judge was appointed and appellants renewed their request for a jury trial as to the enforceability of the agreement. On October 4, 2001, appellees' attorney filed a suggestion of death of appellee Betty Black and a request that the executor of her estate, George Black, be substituted as a party.
{¶ 9} On October 16, 2001, the matter proceeded to a hearing on the following issues: (1) the enforceability of the settlement agreement; (2) whether appellants were entitled to a jury trial; (3) whether Betty Black's claim survived her death; (4) appellants' objections to the successor judge; and (5) Betty Black's failure to attend her deposition scheduled prior to her death. Appellees also requested attorney fees and expenses.
{¶ 10} In its February 25, 2002 judgment, the trial court found that the parties had reached an enforceable settlement agreement and granted appellees' request for attorney fees and expenses. The court granted appellees' motion for substitution of party and denied appellants' motions to dismiss Betty Black's claim and for sanctions.
{¶ 11} Appellants' appeal to this court was subsequently dismissed upon appellees' motion because the trial court, in awarding attorney fees, failed to determine the amount of the fees. On May 9, 2003, the trial court issued detailed findings of fact and conclusions of law, including a specific sum of attorney fees. Appellants again filed a notice of appeal.
{¶ 12} On August 6, 2003, this court granted appellees' motion for a temporary remand and stay of proceedings to allow the trial court to rule on appellees' motion for partial relief from judgment under Civ.R. 60(B)(5). Appellees sought relief from the trial court's failure, in addition to finding frivolous conduct under R.C.
{¶ 13} Following the September 2, 2003 hearing on the matter and memoranda filed by the parties, the trial court granted appellees' Civ.R. 60(B)(5) motion and found that appellants' refusal to perform the settlement agreement unless the confidentiality and indemnification provisions were added served merely to harass or maliciously injure appellees. The court reaffirmed its May 9, 2003 judgment in all other respects. Appellants then filed an amended notice of appeal.
{¶ 14} Appellants now raise the following six assignments of error:
{¶ 15} "I. Judge Yarbrough erred to defendants' prejudice in acting as the fact finder.
{¶ 16} "II. Judge Yarbrough erred in finding that her co-defendant husband had authority to agree to the settlement on Mrs. Pheils' behalf by either implication or estoppel and denying Mrs. Pheils' motion for summary judgment.
{¶ 17} "III. Judge Yarbrough erred in refusing to dismiss Mrs. Black's claim and then granting a judgment for the estate of decedent Mrs. Black.
{¶ 18} "IV. Judge Yarbrough erred in finding that an enforceable settlement agreement was reached among both plaintiffs and defendants.
{¶ 19} "V. Judge Yarbrough erred in awarding plaintiffs' attorney fees against defendants for merely defending plaintiffs' breach of contract claims when there was no evidence supporting such fees under O.R.C. §
{¶ 20} "VI. Judge Yarbrough erred in using a 60(B)(5) hearing as a retrial on issues already tried and without notice in direct contravention of this court's mandate on temporary remand"
{¶ 21} In their first assignment of error, appellants contend that because a settlement agreement is a type of contract, the dispute over the enforceability of the agreement was a proper subject for a jury. Appellants next argue that the jury waiver they signed was limited to the underlying abuse of process claim and to a trial before the former trial judge. Finally, appellants argue that because the trial court participated in settlement discussions, it was improper for the judge to act as the factfinder.
{¶ 22} In Rulli v. Fan Co. (1997),
{¶ 23} We note that as a general matter, a party is not entitled to a jury trial when he or she seeks specific performance. Gleason v. Gleason (1991),
{¶ 24} In the instant case, we find that the trial court did not err by denying appellants' request for a jury trial. Appellees opposed appellants' request for a jury trial and the court held a thorough evidentiary hearing on the issue of the settlement agreement.
{¶ 25} Appellants also contend that because the judge participated in prior settlement negotiations, he was precluded from acting as the factfinder on the motion to enforce the settlement pursuant to Canon 3(E)(1)(a) of the Code of Judicial Conduct.2 Prior to the start of the October 16, 2001 hearing on the motion to enforce the settlement agreement, the judge summarized his recollection of the negotiations as follows:
{¶ 26} "THE COURT: * * *. First of all, I don't remember if we had them on the Record. I don't remember. I have some specificity of recollection, but not a great deal. My specificity of recollection is that there was a sum of money, there was a possibility of wider litigation, and litigation becoming more complicated and more protracted; and in that I encouraged both sides to make some adjustment to their position. I also have a specific recollection of saying I don't care about outcomes, I care about process and I care about resolution. * * *.
{¶ 27} "* * *.
{¶ 28} "THE COURT: I don't recall it. I don't recall opining any firm way other than say outcomes can be different than expectations, and encouraging people to adjust their positions. The only information I believe I may have taken, which I think you may be referring to, is action that may or may not be taken by a disciplinary counsel, which is part of the case. That was clearly discussed. Now that's my recollection of it as best I can. I don't remember the details. $25,000 is the number that sticks in my mind. Other than that, if I've misspoke, please disagree with me.
{¶ 29} "MR. PHEILS: I think that's a pretty good summary, Your Honor."
{¶ 30} It is clear from the hearing transcript that the judge had very little recollection of the evidentiary facts of the proceeding. Further, appellants are not claiming that the judge was biased or prejudiced in any way. Accordingly, we find that the trial court did not err by remaining in the role of factfinder.
{¶ 31} Based on the foregoing, we find that appellants' first assignment of error is not well-taken.
{¶ 32} Appellants next argue, in their second assignment of error, that the trial court erroneously determined that Mr. Pheils had the authority to agree to a settlement on his wife's behalf when counsel represented her. Conversely, appellees contend that based upon Mr. Pheils' actions, they reasonably concluded that he was acting on his wife's behalf.
{¶ 33} We agree that no presumption of agency between a husband and wife exists merely based upon their marital relationship. "However, an agency relationship may be created either by an express grant of authority, by implication, or by agency by estoppel." (Citations omitted.) McSweeney v. Jackson
(1996),
{¶ 34} In the present case, David Pheils represented his wife from the 1994 commencement of the underlying case until September 1999, when her counsel entered an appearance. During the October 19, 2000 pretrial, settlement negotiations were held absent JoAnne Pheils and her counsel. According to the deposition of appellees' former attorney, Jodie Stearns, the trial judge indicated that Mr. Pheils' desire to settle the case stemmed from health concerns. The settlement offer made at the courthouse was $20,000. Ms. Stearns indicated that she would speak to her clients and Mr. Pheils stated that he would discuss it with his wife.
{¶ 35} That evening, Mr. Pheils telephoned Ms. Stearns with a $25,000 offer which would remain open for 24 hours. Ms. Stearns testified that she spoke with her clients and faxed Mr. Pheils a written acceptance and release; the letter also contained a condition precluding Mr. Pheils or any of his associates from representing any person or entity against appellees in relation to the subject property.3 On the morning of October 20, 2000, Mr. Pheils faxed the letter back to Ms. Stearns with the handwritten notation: "Agreed on my and my wife's behalf 10/20/00 @ 8:17 A.M. [signed] David R. Pheils."
{¶ 36} During JoAnne Pheils' July 28, 2001 deposition, she stated that she was aware of settlement negotiations between her husband, Ms. Stearns, and appellees and of the alleged settlement. Though she felt that $25,000 was "way too much," she agreed to the amount in exchange for being finished with the case. Mrs. Pheils stated that she would assume that the settlement would have included mutual releases, but because the details were not agreed upon there was no settlement.
{¶ 37} Based on the foregoing, we find that Mr. Pheils' representation that he was acting on his wife's behalf coupled with her subsequent ratification established an agency by estoppel. Mrs. Pheils stated that she agreed with the idea of the settlement; she disputes the specific terms of the agreement. Accordingly, appellants' second assignment of error is not well-taken.
{¶ 38} Appellants' third assignment of error avers that the trial court erred by refusing to dismiss Mrs. Black's claim and subsequently entering a judgment in favor of her estate. Appellants argue that Mrs. Black's abuse of process claim extinguished upon her death. Appellants also contend that the court should have dismissed Mrs. Black's claim due to her failure to appear at a scheduled deposition. Conversely, appellees assert that because Mrs. Black agreed to the settlement of the claim prior to her death, the enforcement of the settlement is contractual in nature and survives her death. Appellees also state that the court did not abuse its discretion by refusing to dismiss Mrs. Black's claim because she failed to attend the scheduled deposition.
{¶ 39} Appellants correctly state that Mrs. Black's abuse of process claim, a non-personal injury tort claim, abated upon her death. See Lewis v. City of St. Bernard (1952),
{¶ 40} Appellants also believe that the trial court erred when it denied their motion to dismiss Mrs. Black as a party for her failure to attend a scheduled deposition.
{¶ 41} We first note that discovery sanctions are within the discretion of the trial court. Restivo v. Fifth Third Bank ofNorthwestern Ohio, N.A. (1996),
{¶ 42} Civ.R. 37(D) provides, in part:
{¶ 43} "If a party or an officer, director, or a managing agent of a party or a person designated under Rule 30(B)(5) or Rule 31(A) to testify on behalf of a party fails (1) to appear before the officer who is to take his deposition after being served with a proper notice, * * * the court in which the action is pending on motion and notice may make such orders in regard to the failure as are just, and among others it may take any action authorized under subsections (a), (b), and (c) of subdivision (B)(2) of this rule. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising him or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court expressly finds that the failure was substantially justified or that other circumstances make an award of expenses unjust."
{¶ 44} Civ.R. 37(B)(2)(c) provides that a trial court may dismiss a party's complaint if the party fails to comply with a discovery order. Dismissal may be imposed as a discovery sanction where there is a showing of willfulness or bad faith on the part of the party failing to comply with the discovery order. Toney,
supra, at 458. Dismissal of a party's complaint is a harsh sanction reserved only where "the conduct of the plaintiff is so negligent, irresponsible, contumacious or dilatory as to outweigh the policy that disposition of litigation should be upon its merits." Evans v. Smith (1991),
{¶ 45} The facts of the present case do not suggest that Mrs. Black's failure to appear was a deliberate or willful act. Newly appointed counsel, as evidenced by his July 10, 2001 letter confirming the depositions of Mr. Black, the Pheils', and Jodie Stearns, was not aware that Mrs. Black's deposition was also to be taken. Testimony presented at the hearing evidenced that Mrs. Black was very ill on the deposition date; she died just days thereafter.
{¶ 46} Accordingly, we find that the trial court did not abuse its discretion by denying appellants' motion to dismiss Mrs. Black's claim. Appellants' third assignment of error is not well-taken.
{¶ 47} In appellants' fourth assignment of error, they argue that the trial court erred in finding that an enforceable settlement agreement was reached. Appellants contend that because there was a dispute as to the settlement terms, there was no meeting of the minds. Appellees counter that because the essential terms were agreed upon, there was an enforceable settlement agreement.
{¶ 48} As set forth above, a settlement agreement is a particular type of contract. Noroski v. Fallet (1982),
{¶ 49} "`To constitute a valid settlement agreement, the terms of the agreement must be reasonably certain and clear,' and if there is uncertainty as to the terms then the court should hold a hearing to determine if an enforceable settlement exists.Rulli v. Fan Co. (1997),
{¶ 50} The parties do not dispute their agreement that appellants would pay appellees the sum of $25,000 for the dismissal of their complaint. Appellants, however, contend that because the settlement was dependent upon conditions precedent, one of which was illegal, there was no enforceable settlement. Appellants also contend that there was no meeting of the minds as to the terms of the settlement.
{¶ 51} The October 19, 2000 letter faxed to Mr. Pheils from appellees' then-attorney Jodie Stearns, provided:
{¶ 52} "After a great deal of discussion and thought, my clients, Dr. and Mrs. George Black, accept your offer of settlement in the above-referenced case in the amount of $25,000.00. This acceptance is expressly conditioned upon the execution and exchange of mutual releases and specifically a release from you and Joanne Pheils forever relinquishing any and all claims against the Blacks concerning their ownership, use or improvement of the subject property. Said Release must also contain language precluding you or your law firm from representing, in any capacity, any person or entity against the Blacks relative to the Blacks' ownership, use or improvement of the subject property."
{¶ 53} As to the above-quoted letter, appellants claim that the execution of the releases was never accomplished and that the language precluding Mr. Pheils or his law firm from representing any person or entity against the Blacks is violative of DR2-108(B).4 Appellees contend that legal custom and practice provides that it is not necessary for releases to be signed at the time of settlement. Further, while they do not dispute that the provision restricting Mr. Pheils' representation was invalid, they contend that it was voluntarily abandoned and may be severed from the agreement.
{¶ 54} Upon review, we find that the fact that the releases had not been executed at the time of the agreement does not prevent enforcement of the agreement. See Palmer v. KaiserFoundation Health (1991),
{¶ 55} As to the provision improperly restricting Mr. Pheils and his law firm, the condition was abandoned by appellees. Further, the doctrine of severability provides that "where a contract consists of several agreements, one of which is illegal, the illegal portion can be severed if it does not destroy the symmetry of the contract." (Citation omitted.) Vincent v. SantaCruz (1982),
{¶ 56} We further find that a meeting of the minds occurred as to the essential terms of the agreement, again, to settle the matter for $25,000 and release the parties from further litigation in the matter. Accordingly, we find that appellants' fourth assignment of error is not well-taken.
{¶ 57} Appellants' fifth assignment of error asserts that the trial court erroneously awarded appellees' attorney fees upon a finding of frivolous conduct under R.C.
{¶ 58} In this case, the court found "harassing" conduct, R.C.
{¶ 59} As to R.C.
{¶ 60} Upon review, we cannot say that the trial court abused its discretion when it concluded that appellants' refusal to abide by the settlement was merely to harass or injure appellees. The trial judge in this matter was appointed in early 2001, and, throughout the proceedings, had ample opportunity to observe the conduct of the parties.
{¶ 61} Reviewing, de novo, the court's findings under R.C.
{¶ 62} Appellants' sixth and final assignment of error asserts that the trial court erred in granting appellees' motion for partial relief from judgment under Civ.R. 60(B)(5) and by granting an evidentiary hearing on the motion. Appellants argue that this court's remand of the matter was limited only to granting relief from judgment, not to change the trial court's opinion.
{¶ 63} It is well settled that a motion for relief from judgment pursuant to Civ.R. 60(B) is left to the sound discretion of the trial court, and the court's ruling will not be disturbed absent a showing of abuse of discretion. Griffey v. Rajan
(1987),
{¶ 64} Civ.R. 60(B) sets forth the following grounds for relief from judgment:
{¶ 65} "(1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment."
{¶ 66} In order to obtain relief from judgment pursuant to Civ.R. 60(B), a movant must demonstrate that:
{¶ 67} "(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 made within a reasonable time, and, where the grounds for relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken." GTE Automatic Elec., Inc. v. ARC Indus., Inc., 47 Ohio St.2d at paragraph two of the syllabus.
{¶ 68} These requirements must be shown by "operative facts" which demonstrate the movant's entitlement to relief. RoseChevrolet, Inc. v. Adams (1988),
{¶ 69} In the instant case, we find that appellees' memorandum in support of their motion for relief from judgment contained sufficient operative facts describing why relief should be granted, thus, warranting an evidentiary hearing on the motion. Upon review of the court's September 5, 2003 judgment granting relief, we cannot say that the trial court abused its broad discretion under Civ.R. 60(B). Accordingly, appellants' sixth assignment of error is not well-taken.
{¶ 70} On consideration whereof, we find that substantial justice was done the party complaining, and the judgment of the Wood County Court of Common Pleas is affirmed. Pursuant to App.R. 24, appellants are ordered to pay the court costs of this proceeding.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98.
Pietrykowski, J., Lanzinger, J. and Singer, J. Concur.
Notes
{¶ b} "(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
{¶ c} "(a) The judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding; * * *."