THE HUNTINGTON NATIONAL BANK, PLAINTIFF-APPELLANT/ CROSS-APPELLEE, v. SHAWN M. GREER, DEFENDANT-APPELLEE/ CROSS-APPELLANT, -and- KELLY C. GREER, ET AL., DEFENDANTS-APPELLEES.
CASE NO. 14-15-26
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
July 25, 2016
2016-Ohio-5100
Appeal from Union County Common Pleas Court Trial Court No. 2013CV0118 Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Jessica L. Sanderson for Appellant/Cross-Appellee
Samir B. Dahman for Appellee/Cross-Appellant
SHAW, P.J.
{¶1} Plaintiff-appellant/cross-appellee, Huntington National Bank (“Huntington“), brings this appeal from the September 11, 2015 judgment of the Union County Common Pleas Court. On appeal, Huntington argues that the trial court erred by: 1) finding that Defendant-appellee/cross-appellant, Shaun Greer (“Greer“), substantially performed under the terms of the parties’ settlement agreement; 2) finding that Huntington breached the settlement agreement; 3) awarding Greer attorney‘s fees for Huntington‘s breach of the settlement agreement; 4) failing to grant Huntington‘s claim that Greer “breached” the promissory note; and 5) failing to grant Huntington‘s claims for foreclosure. On his cross-appeal, Greer argues that the trial court erred by not awarding him lost profits he claims were a direct result of Huntington‘s breach of the settlement agreement.
I. Relevant Facts and Procedural History
{¶2} Greer is a construction manager and the owner of Velocity Construction Services, LLC, a general contractor. On June 4, 2004, Greer executed a promissory note and mortgage on residential real estate at 7875 Industrial Parkway in Plain City, Ohio. It is undisputed that the note and mortgage are held by Huntington. While Greer was the only person who signed the promissory note, his wife at the time, Kelly Greer, signed the mortgage along with
a. The Original Foreclosure Action3
{¶3} The record indicates that on September 20, 2010, a foreclosure action was filed against Greer, Kelly Greer, and others who may have had an interest in the Industrial Parkway residence. (Def.‘s Trial Ex. F). The original foreclosure action proceeded to a final hearing, which was held on August 25, 2011, and September 22, 2011.
{¶4} At the August 25, 2011 hearing, Michael Goodare, a litigation specialist with Huntington National Bank, testified that Greer‘s account went into default in March of 2010. (Doc. 73, Ex. A); (Def.‘s Trial Ex. A). Goodare testified that Greer had the opportunity to cure the default by paying $6,032.84 by June 6, 2010, but he did not. Goodare did testify that Greer made a payment on
{¶5} Brittany Greer, Greer‘s new wife, then testified at the August 25, 2011 hearing. Brittany testified that in August of 2010 she was Greer‘s assistant at Velocity Construction Services. Brittany testified that on August 27, 2010, she presented a check to the teller at “the Avery Branch” of Huntington. (Def.‘s Trial Ex. A at p. 21). Brittany testified that Greer had originally put a check into a night deposit box for the amount he believed he owed, then he received a message stating that the amount was not correct, that it was “a dollar and change, some minor amount off.” (Id.) Brittany testified that Greer then sent her with a new check to the bank. Brittany testified that the teller read the amount Greer was required to pay to her, that Brittany then wrote it into the check, and presented it to the teller. Brittany testified that the teller accepted the check and gave her a receipt. (Id. at 22-23).
{¶7} A journal entry was then filed in the first foreclosure action on January 11, 2012, which stated that Greer had filed a motion to dismiss or, in the alternative, to enforce the oral settlement agreement. In its entry the court stated that the settlement agreement had been announced on the record but no journal entry “effecting that agreement has been submitted to the [c]ourt for journalization as represented by the parties. According to [Greer], this is a result of [Huntington‘s] unwillingness to adhere to the terms of the agreement.”4 (Def.‘s
{¶8} On February 27, 2012, the trial court filed a judgment entry dismissing the original foreclosure action, stating that “the [c]ourt notified [Huntington] that this case would be dismissed without prejudice if [Huntington] did not comply with its Order of said date within the time proscribed.” (Def.‘s Trial Ex. G). The court determined that Huntington had been properly served and had taken no action to comply with the order. Therefore the trial court dismissed the original foreclosure action without prejudice.
b. The Written Settlement Agreement
{¶9} Despite the fact that the trial court had dismissed the original foreclosure action, the parties executed a document titled “Settlement Agreement
This Mutual Settlement Agreement and Release of all claims is entered into * * * by [Huntington] and [Greer].
WHEREAS, [Huntington] filed a foreclosure action against Defendants Shaun Greer and Kelly Greer (“Greers“) in Union County Court of Common Pleas, Case No. 10-CV-0479 (the “Lawsuit“) for default on a promissory note from Greer to Huntington dated June 4, 2004, in the amount of $162,000.00 (the “Note“), which was secured by an Open End Mortgage (the “Mortgage“) executed by Shaun Greer and Kelly Greer. Shaun Greer filed an answer disputing the amounts owed under the Note and Mortgage;
WHEREAS, the parties have decided to resolve all issues between them according to this Settlement agreement and Mutual Release of all Claims (“Agreement“).
NOW, THEREFORE, in consideration of the foregoing mutual recitals, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby agree as follows:
1. Shaun Greer will pay to Huntington the amount of $23,147.15 within 30 days of the execution of this agreement by certified check or cashier‘s check. This amount will be credited to the Promissory Note pursuant to a standard amortization schedule. The terms and conditions of the Promissory Note and Mortgage will remain the same as they were prior to the Lawsuit, and Shaun Greer agrees to pay all payments required by the Note and Mortgage as modified herein.
2. Shaun Greer will be obligated to, and will pay, the regularly schedule Note and Mortgage payments for April, 2012, and May, 2012. Huntington agrees to accept Shaun Greer‘s Mortgage payments for February, 2012, and March, 2012, on the date that the May, 2012 payment is due. Shaun
Greer acknowledges that the February 2012, payment and the March, 2012, payment have not been paid as of the date of this Agreement. The amount of the Mortgage payment will be $1,116.85. 3. Within one week after receipt of the payment described in Paragraph one above, Huntington will request that all three credit agencies update their records relative to this loan and that the agencies remove all records that indicate payments were late and all records that reflect that the loan is or was in foreclosure. Additionally, Huntington agrees that it will not report any further negative credit information whatsoever to any credit agency relative to the Note and Mortgage after the date of this Agreement provided that Shaun Greer complies with this Agreement. Huntington will send to Shaun Greer a letter confirming the date on which Huntington requested that all three credit reporting agencies remove all records that indicate payments were late and all records that reflect that the loan is or was in foreclosure. Huntington will not be liable for any failure of the credit reporting agencies to act in accordance with these requests. Any public records reference may not be updated and Huntington makes no representation relating thereto.
4. Within two weeks of the date that this Agreement is executed, Huntington will provide Shaun Greer with a payment coupon book that accurately reflects the remaining payments.
5. If Shaun Greer fails to make the $23,147.15 payment required in Paragraph 1 or the payments set forth in Paragraph 2, Huntington will have the right to enter the attached Agreed Judgment Entry and Decree in Foreclosure and go forward with the sale of the property in this matter.
6. Upon the signing of this Agreement, the parties agree that this matter has been resolved and that the trial of this matter will not go forward. The lawsuit will remain
pending and open on the Court‘s docket for 45 days to allow Shaun Greer and Huntington to perform according to this Agreement. 7. In consideration on the terms contained herein, the parties do hereby fully and unconditionally release and/or forever discharge each other and their respective agents * * * of and from all damage, loss, claims, demands, liabilities, obligations, actions and causes of action whatsoever which one party may now have, or claim to have, against the other party as of the date of this Agreement, whether presently known or unknown, and of every nature and extent whatsoever on account of or in any way affecting, concerning, arising out of or founded upon the facts plead in the Lawsuit[.] * * * Notwithstanding the terms of the Release, Plaintiff is not releasing any claim it may have against Greers unrelated to the Lawsuit.
8. This agreement is binding upon the parties’ successors and assigns.
9. The parties acknowledge that this Agreement is a settlement of a disputed matter and that nothing contained herein is meant to be an admission of liability by one party to the other.
{¶10} The agreement was signed by both parties and was notarized.5 It was never successfully implemented.
c. The Current Action
{¶11} On April 19, 2013, Huntington filed a “Complaint for Money and Foreclosure” listing Greer, Kelly Greer, Jane Doe unknown spouse of Greer,6 John
{¶12} Greer filed an answer denying Huntington‘s claims and asserting multiple counterclaims. In his counterclaims Greer alleged that Huntington breached the settlement agreement, that Huntington breached its duty of care to Greer by negligently refusing to accept payments he tendered, and that Huntington breached its duty of good faith and fair dealing arising out of the agreements between the parties. Greer alleged in excess of $25,000 in damages for each of his claims and he also requested that he be awarded attorney‘s fees.
{¶13} The only defendant other than Greer to file an answer was the Union County Treasurer, which requested that “in the event of any sale of the real estate, * * * the interests of the Union County Treasurer be preserved and that all real estate taxes, including any interest and penalties, be paid.” (Doc. No. 13).
{¶15} The case then proceeded through discovery and motion practice. Huntington filed a motion to dismiss Greer‘s counterclaim and a motion for summary judgment, both of which were opposed, and ultimately overruled. The parties also proceeded unsuccessfully through mediation.
{¶16} During discovery multiple depositions were taken in an attempt, in part, to clarify the lost profits/damages Greer was claiming as a result of Huntington‘s purported breach of the settlement agreement when Huntington refused to accept his payment. Johnny Hunter was deposed on March 22, 2014.8 In his deposition Hunter testified that he was chairman of the board of the 2012 Hunter Development Project. While litigation was pending, Hunter had written two letters to Greer/his attorney regarding construction projects that Greer had originally been awarded. The first letter indicated that Greer had been “chosen” as “Construction Manager as Advisor” for the 2012 Hunter Development Project in Warren Michigan. (Def.‘s Trial Ex. S). The project was “bid out” for $9,890,723 and Greer was to be awarded a 6% fee on that total contract sum. (Id.) The first
{¶17} In his deposition, Hunter testified that because of Greer‘s foreclosure, the project could not go forward with Greer despite the fact that Greer had won the bids for the projects. Hunter testified that absent the foreclosure proceedings the project definitively would have hired Greer as its construction manager. Hunter testified they were also looking at Greer, through his company Velocity, to manage multiple other projects as well, including a $19 million mall project, but the foreclosure prevented his hiring.9
{¶18} On April 10, 2014, the case proceeded to a hearing on the merits before a magistrate. At the hearing Huntington first called Shelley Hibburt-
{¶19} Hibburt-Gomulinski testified that Greer did not remain current on his payments. Hibburt-Gomulinski testified that to “become current” at the time of the hearing Greer would have to pay $79,902.33. (Id. at 32). Hibburt-Gomulinski testified that Huntington was requesting a decree of foreclosure, and a money judgment for the balance of the loan, which with late fees was $234,524.25.
{¶20} Hibburt-Gomulinski also testified that Huntington and Greer had reached a settlement agreement in the original foreclosure action, though she testified that she did not work for Huntington at the time the agreement was made. Hibburt-Gomulinski testified that she had no personal knowledge as to Greer ever attempting to pay Huntington pursuant to the settlement agreement. Hibburt-Gomulinski testified that Huntington‘s records similarly did not contain any such information.
{¶22} Huntington then rested its case and Greer presented his case-in-chief, beginning by testifying as on direct. Greer testified that in the construction business credit scores were important because he needed “bonding” when he did public jobs. (Apr. 10, 2014, Tr. at 64). Greer testified that if a person had good credit, he could receive bonding. Greer testified that prior to the first foreclosure action, he had “decent” credit, which according to his testimony, and some exhibits he produced, was approximately 100 points higher. (Id.) Greer testified that prior to the foreclosure action he was able to obtain bonding for projects as large as $60,000,000, but since the foreclosure he could get bonding for “200,000 maybe.” (Id. at 68).
{¶23} As to how the residence in question fell into foreclosure, Greer testified that in 2010, “[m]y ex-wife and I were getting divorced. And she stayed in the house. And I thought that she was going to pay for the house; [she] thought
{¶24} Greer stated that he gave the teller the email and explained why he was at the Huntington branch. Greer stated that he told the teller that the check
{¶25} Greer indicated that he then called his attorney, who attempted to get in touch with Huntington‘s attorney to rectify the situation. Greer stated that Huntington‘s attorney would not respond and that was the last correspondence that took place until Huntington filed the current action, some eleven months later. Greer also testified that per the agreement he sent a check for $3,400 to Huntington for three months of mortgage payments but Huntington returned the check because, like the lump-sum payment, it was insufficient to bring the account current.
{¶26} As to his counterclaims, Greer testified that as a result of Huntington not following through with the settlement agreement he had
lost millions of dollars in contracts. Had to layoff maybe 15 people. And, I mean, I can‘t – I can‘t operate and I can‘t meet my obligations since this is still on my credit. I, you know, when it was thrown out in January or February, that‘s why I was
trying to continue to rectify this matter so that I could move forward. And that‘s why, even though the – the Court dismissed it, this is why I was trying to still do it in May to rectify this matter so I could move on. Because I knew that the longer this gets drug out, the more financial burden it would have on my five children, myself, my staff, and their wives, families, husbands. * * * And I was not able to do that since I wasn‘t allowed to make this payment.
(Apr. 10, 2014, Tr. at 79-80).
{¶27} Greer then testified more specifically to the jobs that he claimed he had lost because of the foreclosure. He testified regarding the Hunter Development Project, which would have earned him $593,443 in profit from Phase I, and $325,000 profit from Phase II. Greer testified that the Hunter School Project would have earned him $180,000 and the mall project would have earned Velocity, rather than him personally, $1.1 million in profit. Greer‘s testimony and exhibits indicated that altogether he and his company had lost $3,833,615 in potential profits due to the foreclosure action. (Def.‘s Trial Ex. R).
{¶28} Greer testified that the amounts he was giving related to the projects were just the amounts he would profit, “[i]t‘s just from that line item.” (Apr. 10, 2014, Tr. at 124). Greer testified that if there were payments to employees or costs for materials they were on “a separate line item.” (Id.) As to the nature of his profits for the construction management jobs he was going to do personally rather than through Velocity, Greer testified that the only overhead he had was the
{¶29} On cross-examination, and during questioning by the magistrate, Greer testified that due to timing he would not have been able to do all of the projects. He also testified that only a few projects were attributable to him personally rather than Velocity and Velocity was not a party to the lawsuit. Greer testified that the projects he had been awarded personally were the Hunter Development Project Phase I and II, and the Hunter School Project. Greer submitted exhibits indicating that some projects he had bid individually and some projects he had bid on behalf of Velocity. (Def.‘s Trial Ex. Q).
{¶30} At the conclusion of Greer‘s testimony, Greer rested his case and the magistrate took the matter under advisement. The magistrate‘s decision was filed June 23, 2014. In the decision, the magistrate determined, after analyzing the law and evidence, that Greer had substantially performed under the settlement agreement when he presented his personal check for the appropriate amount and that Huntington breached the agreement by failing to accept the payment and perform as required. The magistrate thus recommended that Huntington‘s claims for breach of the agreement be denied. The magistrate also recommended that Huntington‘s foreclosure claim be denied. In addition, the magistrate did not find
{¶31} The magistrate then analyzed Greer‘s claims for damages as a result of Huntington‘s breach and stated that Greer could not recover for Velocity‘s damages as Velocity was not part of this litigation and there was no “privity of contract” between Velocity and Huntington. (Doc. No. 115). The magistrate also determined that the damages were not actually to Greer individually, but rather to Velocity. However, the magistrate stated that even assuming Greer could recover, Greer had not sufficiently established through his testimony that he would receive the actual profits claimed.
{¶32} Both Huntington and Greer made a number of objections to the magistrate‘s findings. On August 18, 2014, the trial court filed an entry independently reviewing and analyzing the parties’ objections, and overruled them with a few exceptions. The trial court overruled Huntington‘s objections to the magistrate‘s findings that Huntington breached the settlement agreement and overruled Huntington‘s objection to the magistrate‘s finding that Greer did not breach the settlement agreement. The trial court also overruled Greer‘s objection to the magistrate‘s finding that Greer should not have been awarded lost profits. In doing so, the trial court determined that Greer had offered evidence of
{¶33} The trial court did sustain some of the parties’ objections. Most notably, the trial court determined that while a party cannot typically recover attorney‘s fees for a breach of contract, parties could recover attorney‘s fees for a breach of a settlement agreement. Unlike the magistrate, the trial court determined that Greer was entitled to attorney‘s fees for Huntington‘s breach of the settlement agreement and the trial court set the matter for a hearing on those fees.
{¶34} On October 28, 2014, a hearing was held on Greer‘s attorney‘s fees related specifically to his claims that Huntington breached the settlement agreement. Both of Greer‘s attorneys testified as to their work on this case. Then, an independent attorney provided testimony as to the reasonableness and the necessity of the fees. Ultimately the parties agreed that the fees attributable to Greer‘s claim for breach of settlement agreement were $119,186.50. However, Huntington continued to dispute whether Greer should be awarded his attorney‘s fees.
{¶35} On December 22, 2014, the trial court filed a judgment entry awarding Greer attorney‘s fees in the amount of $119,186.50. The trial court found “that the attorney fees and costs submitted are reasonable, and, as stipulated
{¶36} Both parties then filed a notice of appeal; however, this Court dismissed that original appeal as the trial court had not yet rendered a single final judgment making and incorporating all of its orders. See Huntington v. Greer, et. al, 3d Dist. Union No. 14-15-01, 2015-Ohio-3403.
{¶37} On September 11, 2015, the trial court filed a judgment entry consolidating all its orders into a single document. The entry ruled in favor of Greer on his breach of settlement agreement claim, but determined that Greer‘s remedy was limited “to an order of specific performance of the settlement and the underlying note and mortgage agreements” because Greer failed to prove he was entitled to money damages. (Doc. No. 171). The trial court thus ordered the parties to “implement the settlement agreement and * * * Huntington shall have no right to recover penalties or interest incident to its breach of the settlement agreement. Each party is ORDERED restored to status quo ante, as of May 17, 2012.” (Id.) The remaining claims of Greer and Huntington were denied, with the exception that Greer was awarded attorney‘s fees in the total amount of $119,186.50 for Huntington‘s breach of the settlement agreement.
{¶38} It is from this judgment that both Huntington and Greer appeal, asserting the following assignments of error for our review.
THE TRIAL COURT ERRED IN FINDING GREER SUBSTANTIALLY PERFORMED HIS OBLIGATIONS UNDER THE SETTLEMENT AGREEMENT.
Appellant/Cross-Appellee‘s Assignment of Error No. II
THE TRIAL COURT ERRED IN FINDING THAT HUNTINGTON BREACHED THE SETTLEMENT AGREEMENT.
Appellant/Cross-Appellee‘s Assignment of Error No. III
THE TRIAL COURT ERRED IN AWARDING ATTORNEY FEES TO GREER WHEN THE SETTLEMENT AGREEMENT ITSELF DID NOT PROVIDE FOR PAYMENTS OF FEES AND GREER FAILED TO PERFORM.
Appellant/Cross-Appellee‘s Assignment of Error No. IV
THE TRIAL COURT ERRED IN NOT GRANTING HUNTINGTON JUDGMENT ON HUNTINGTON‘S CLAIM FOR BREACH OF THE PROMISSORY NOTE.
Appellant/Cross-Appellee‘s Assignment of Error No. V
THE TRIAL COURT ERRED IN NOT GRANTING HUNTINGTON JUDGMENT ON HUNTINGTON‘S CLAIM FOR FORECLOSURE.
Appellee/Cross-Appellant‘s Assignment of Error No. I
THE TRIAL COURT ERRED IN NOT AWARDING LOST PROFITS TO MR. GREER BECAUSE MR. GREER ESTABLISHED HIS PERSONAL LOST PROFITS WITH REASONABLE CERTAINTY.
II. Huntington‘s Assignments of Error
a. First Assignment of Error
{¶39} In Huntington‘s first assignment of error, it argues that the trial court erred in determining that Greer substantially performed under the settlement
{¶40} “A settlement agreement is a contract designed to prevent or end litigation.” Selvage v. Emnett, 4th Dist. Scioto No. 08CA3239, 2009-Ohio-940, ¶ 10. Settlement agreements are highly favored as a means of resolving disputes. Id. citing State ex rel. Wright v. Weyandt, 50 Ohio St.2d 194, 197 (1977). To be enforceable as a binding contract, a settlement agreement requires no more formality than any other type of contract. B.W. Rogers Co. v. Wells Bros., 3d Dist. Shelby No. 17-11-25, 2012-Ohio-750, ¶ 27. A settlement agreement “need not necessarily be signed, as even oral settlement agreements may be enforceable.” Id. citing Kostelnik v. Helper, 96 Ohio St.3d 1, 3, 2002-Ohio-2985, ¶ 15. A trial court possesses full authority to enforce a settlement agreement voluntarily entered into by the parties. Mack v. Polson Rubber Co., 14 Ohio St.3d 34, 36 (1984).
{¶41} In this case, the parties do not dispute that a settlement agreement existed and they similarly do not dispute what was contained in the settlement
{¶42} “As a general rule, a party does not breach a contract when that party substantially performs the terms of the contract.” Whitt Sturtevant, LLP v. NC Plaza LLC, 10th Dist. Franklin No. 14AP-919, 2015-Ohio-3976, ¶ 29, citing Ohio Farmers Ins. Co. v. Cochran, 104 Ohio St. 427 (1922), paragraph two of the syllabus. Nominal, trifling, or technical departures from the terms of a contract are not sufficient to breach it. Whitt Sturtevant, supra, at ¶ 29, citing Cleveland Neighborhood Health Serv., Inc. v. St. Clair Builders, Inc., 64 Ohio App.3d 639, 582 N.E.2d 640 (8th Dist.1989). Nevertheless, if a party “fails to perform an essential or ‘material’ element of a contract, not only can it be liable for damages, but it also excuses the plaintiff from any further performance.” Nious v. Griffin Constr., Inc., 10th Dist. Franklin No. 03AP-980, 2004-Ohio-4103, ¶ 16, citing, inter alia, Bd. of Commrs. of Clermont Cty. v. Village of Batavia (Feb. 26, 2001), Clermont App. No. CA2000-06-039.
{¶43} “The considerations in determining whether performance of a contract is substantial are those for determining whether a failure is material.” 18 Ohio Jurisprudence 3d, Contracts, section 198, at 115-116 (2010); see also In re Interstate Bakeries Corp., 751 F.3d 955, 962 (8th Cir.2014) (“Substantial performance and material breach are interrelated concepts[.]“). “[A] ‘material
{¶44} “Ohio courts generally consider five factors in determining whether a breach is material,” which have been taken from the Restatement on Contracts. Kehoe Component Sales Inc. v. Best Lighting Products, Inc., 933 F.Supp.2d 974, 1004-05 (S.D.Ohio 2013). These factors include,
- the extent to which the injured party will be deprived of the benefit which he reasonably expected;
- the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;
- the extent to which the party failing to perform * * * will suffer forfeiture;
- the likelihood that the party failing to perform * * * will cure his failure, taking account of all the circumstances including any reasonable assurances;
- the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.
Restatement of the Law 2d, Contracts, Section 241 (1981). see also O‘Brien v. Ohio State Univ., 10th Dist. Franklin No. 06AP-946, 2007-Ohio-4833, ¶ 60
{¶45} In this case the magistrate analyzed the evidence presented, which we summarized previously, and applied the testimony and exhibits to the factors in the Restatement on Contracts for considering whether Greer substantially performed. In doing so, the magistrate concluded that on balance, the factors weighed in favor of Greer having substantially performed under the settlement agreement. The magistrate was particularly persuaded by the argument that Huntington did not reject Greer‘s check because it was a personal check, but rather because of the amount, and the argument that the harm to Greer was “disproportionate to his failure to tender in strict compliance with the agreement.” (Doc. No. 115). In addition, the magistrate noted with concern that Huntington never responded to Greer‘s “post-tender inquiries or otherwise provided an opportunity to cure. To be certain, the issue of form of tender was raised by Huntington only in the midst of the present lawsuit filed by Huntington.” (Id.) The magistrate also determined that Greer tendered his performance in good faith.
{¶47} In our own review of the trial court‘s decision, we emphasize initially that both the magistrate and the trial court seemed to place little value or importance on the fact that for a period of many months, and even years, following the original default on this promissory note and mortgage, these parties had experienced multiple issues and disputes regarding the making and accepting of payments, including a prior failure to implement or even to obtain journalization of this settlement agreement in the pending foreclosure action, to the point the trial court felt compelled to dismiss the entire original foreclosure action.
{¶48} Then, four months after that dismissal, the parties attempted to draft the current written settlement agreement, purporting to relate it directly to a foreclosure action which was no longer pending. As a result, the agreement no longer carried any immediate ability of the trial court to monitor or enforce it. In
{¶49} Notably both the oral and written settlement agreements explicitly stated that the payment should be by certified check or cashier‘s check. Yet, despite the fact that both agreements so clearly called for the payment to be made in certified funds, the first act taken by Greer was to go to a branch of Huntington and present a check that was not in compliance with the agreement.11
{¶50} Greer claims that he presented a personal check rather than a certified check based on an email between his attorney and Huntington‘s attorney, which called simply for a “check.” First, that email is outside of the four corners of the settlement agreement and thus has little, or potentially no, value. Second, and even more importantly perhaps, the email predates the date the written settlement agreement was executed by Greer. Thus any indication that a personal check was acceptable that Greer would have received in the email in March of 2012 was directly contradicted by the written settlement agreement itself, which Greer executed in April of 2012. Therefore we cannot find Greer‘s reliance on the
{¶51} However, the magistrate and trial court seemed to be far more concerned with the fact that Huntington purportedly rejected Greer‘s check based on the amount of the check rather than the fact that it was a personal check and not a cashier‘s check. The magistrate emphasized that the form of the payment was not raised by Huntington until litigation. In addition, the magistrate and the trial court relied on the fact that Huntington could not show how it was harmed by the presentment of the personal check.
{¶52} Notably, however, neither the magistrate nor the trial court mentioned the fact that the record is completely devoid of any information indicating that Greer had sufficient funds in his personal account to establish that his lump-sum payment would be honored. Thus, as the record stands, Greer is unable to establish, and we are unable to conclude, that his payment, which was already not in the proper form under the terms of the agreement, would have been honored. Under these circumstances, and considering the prior history of these parties, it is only speculation to conclude that Huntington would not have been harmed by the presentment of the personal check. Accordingly, we cannot find any reasonable basis in the record to conclude, as the trial court does, that
{¶53} Absent any evidence in the record as to the status of funds in Greer‘s bank account at the time he tendered his personal check in direct violation of the agreement, we simply cannot find that Greer‘s actions constituted substantial performance. Therefore we must respectfully disagree with the trial court‘s assessment of this issue and Huntington‘s first assignment of error is sustained.
b. Huntington‘s Second Assignment of Error
{¶54} Huntington argues in its second assignment of error that the trial court erred by determining that Huntington breached the settlement agreement. Specifically Huntington argues that Greer actually breached the agreement by not paying in certified funds, and that Huntington‘s obligations under the settlement agreement were never triggered as they were contingent upon Greer performing.
{¶55} In the first assignment of error we determined that the trial court erred in finding that Greer substantially performed under the contract. Due to our disposition of the first assignment of error, we sustain Huntington‘s second assignment of error as well. Since Greer did not substantially perform under the contract, Huntington‘s actions in rejecting his payment were justified and Huntington‘s obligations to further perform were never triggered. Thus Huntington‘s second assignment of error is sustained.
{¶56} In Huntington‘s third assignment of error, Huntington argues that the trial court erred in awarding Greer attorney‘s fees for Huntington‘s breach of the settlement agreement. As we have found that Greer, and not Huntington, breached the settlement agreement, we find that the award of attorney‘s fees in this case to Greer was improper. Therefore Huntington‘s third assignment of error is sustained.
d. Huntington‘s Fourth and Fifth Assignments of Error
{¶57} In Huntington‘s fourth and fifth assignments of error, it argues that the trial court erred by denying Huntington‘s claims that Greer “breached” the promissory note and that the trial court erred by not granting Huntington‘s claim for foreclosure.
{¶58} Originally the trial court determined that Huntington breached the settlement agreement in this case and Greer was entitled to a remedy. The trial court determined that the proper remedy was to specifically enforce the settlement agreement as the parties stood on May 17, 2012, the date Greer attempted to make a payment with his personal check.
{¶59} At the outset we note a number of difficulties with this remedy that would require reversal or dismissal of the appeal, even if we were inclined to affirm the trial court‘s remaining judgments. These difficulties stem from the fact
{¶60} More importantly, without further clarification by the trial court, the April 27, 2012 agreement itself contains numerous provisions which are entirely ambiguous and which could only invite further compliance issues, particularly given the history of such between these parties. These issues include, but are not limited to, the timing and total number of Greer‘s February, March, April and May payments; the amount and number of the payments under the future coupon book and the extent to which the entire term and payment schedule of the loan itself is to be extended by the four years of pending difficulties since May of 2012.
{¶61} While these issues are no longer relevant to our decision, they may be relevant to the trial court in proceeding with the foreclosure on remand.
{¶62} In sum, we have determined that Greer, rather than Huntington, actually breached the settlement agreement. Thus Huntington is entitled to a remedy. In Huntington‘s fourth and fifth assignments of error, it argues that the trial court should have granted its foreclosure claim. We agree. Huntington affirmatively and unequivocally established that it held the note and mortgage in question and that Greer was substantially in arrears on his obligation. Thus we find that Huntington‘s arguments in its fourth and fifth assignments of error are
III. Greer‘s Assignment of Error
{¶63} In Greer‘s assignment of error, he argues that the trial court erred by determining that Greer had not established lost profits with a reasonable certainty as a result of Huntington‘s breach of the settlement agreement. We have already determined that Greer, and not Huntington, breached the settlement agreement. Thus Greer would not be entitled to any “lost profits” regardless of what he established at the final hearing on the matter. Therefore Greer‘s sole assignment of error is overruled.
IV. Conclusion
{¶64} Having found error in all of Huntington‘s assignments of error, the trial court‘s judgment as to Huntington is reversed and this cause is remanded for further proceedings related to foreclosure matters. Having found no error in the trial court‘s judgment regarding Greer‘s sole assignment of error, the trial court‘s judgment on this issue is affirmed.
Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr