Nicholas McCracken, Plaintiff-Appellee, v. Frederick Lee, Defendant-Appellant, Nicole Felter et al., Defendants-Appellees.
Nos. 19AP-236 and 19AP-553
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
May 28, 2020
2020-Ohio-3125
BROWN, J. SADLER, P.J., and LUPER SCHUSTER, J., concur.
(C.P.C. No. 18CV-3294); (REGULAR CALENDAR); APPEALS from the Franklin County Court of Common Pleas
On brief: Stansbury Weaver, Ltd., and Mark K. Stansbury, for appellant Frederick Lee. Argued: Mark K. Stansbury.
DECISION
Rendered on May 28, 2020
BROWN, J.
{¶ 1} Defendant-appellant, Frederick Lee, appeals from two judgments of the Franklin County Court of Common Pleas that granted the motion to enforce settlement agreement of plaintiff-appellee, Nicholas McCracken, and denied Lee‘s motion for relief from judgment pursuant to
{¶ 3} In December 2018, the parties began settlement talks through counsel. In the last offer, Lee‘s counsel sent the following e-mail: “Fred can do $20k now, plus $34k cognovit note due in 18 months from Actual and Fred.” (Feb. 12, 2019 Mot. to Enforce Settlement Agreement, Ex. 1 at 3.) On February 1, 2019, McCracken accepted the offer and drafted a cognovit note and expected Lee‘s counsel to draft the settlement agreement. Lee‘s counsel assured McCracken‘s counsel that he would begin drafting the settlement agreement.
{¶ 4} Subsequently, Lee was accused of sexually harassing numerous women. On February 8, 2019, Lee‘s counsel began preparing to file a Chapter 11 bankruptcy petition for Actual Brewing and informed McCracken they could no longer continue settlement discussions. On February 12, 2019, McCracken filed a motion to enforce settlement agreement in the trial court. The bankruptcy petition was filed in the Bankruptcy Court of the Southern District of Ohio, Eastern Division on February 14, 2019. The common pleas court was not informed of the bankruptcy filing and the automatic stay.
{¶ 5} Lee, Felter, and Actual Brewing did not respond to McCracken‘s motion to enforce settlement agreement. On March 18, 2019, the trial court granted McCracken‘s motion to enforce settlement agreement and ordered the following:
1. Within seven days of this entry, Lee shall transfer the $20,000 held by his counsel in its trust account to the plaintiff. Lee shall also pay interest on this $20,000 obligation at the statutory rate running from February 1, 2019, until the $20,000 payment is made by Lee;
2. Within seven days of this entry, Actual Brewing and Lee shall execute the $34,000 cognovit promissory note attached hereto as Exhibit 1 (“Cognovit Note“). Dismissals With Prejudice; Release of Claims:
3. Within 14 days of receiving full payment in accordance with Paragraph 1 above and on the Cognovit Note, the plaintiff will file a notice of dismissal of this matter.
4. McCracken, as a part of the total settlement of all claims referenced herein, and for himself, his agents, employees, affiliates, representatives, heirs, beneficiaries, executors, administrators, successors, and assigns, does fully, finally and unconditionally release, acquit, and discharge the Defendants and their current and former employees, members, officers, shareholders, representatives, subsidiaries, affiliates, attorneys, successors, and assigns, without admitting any liability to the other but expressly denying any such liability, from any and all claims of any kind or nature whatsoever, whether based in statutory violation, contract, tort, or otherwise, as well as all claims, demands, damages, actions, causes of action, or suits of any kind or nature whatsoever, relating to the claims set forth in the Complaint.
[5.] This Entry shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns.
[6.] The Franklin County Court of Common Pleas, General Division shall retain jurisdiction of this matter only to the extent necessary to enforce the terms of this entry.
This entry resolves all claims by all parties in this matter.
(Mar. 18, 2019 Decision & Entry at 5-6.)
{¶ 6} On March 27, 2019, Actual Brewing filed a notice of the bankruptcy filing and suggestion of stay. On April 15, 2019, Lee filed a notice of appeal. Lee filed a motion for relief from judgment, pursuant to
{¶ 7} Along with the
{¶ 8} Lee assigns the following two assignments of error for our review:
- The Trial Court erred by concluding that Appellant was liable to pay the $20,000 Trust Money.
- The Trial Court erred by concluding the stay of the proceedings against Actual as a result of the Petition did not affect Appellant‘s liability for any amounts due under the settlement agreement.
{¶ 9} Initially, although neither party has questioned our jurisdiction over this appeal, our review of the March 16, 2019 decision and entry prompted this court to consider whether we have final, appealable orders. Appellate courts have a duty to sua sponte examine any deficiencies in jurisdiction. Riverside v. State, 190 Ohio App.3d 765, 2010-Ohio-5868, ¶ 8 (10th Dist.); Price v. Jillisky, 10th Dist. No. 03AP-801, 2004-Ohio-1221, ¶ 7.
{¶ 10} Under the
{¶ 11} In Ettayem v. State Auto Ins. Cos., 10th Dist. No. 17AP-377, 2017-Ohio-8464, this court stated: “[a]n order enforcing a settlement agreement contemplates further action
{¶ 12} This court determined the order appealed from was not a final, appealable order for two reasons. First, it was not final because the trial court order contemplated further action by the parties in furtherance of the settlement, and second because the trial court did not dismiss the action, but only contemplated issuing a dismissal after the parties completed their court-ordered obligations and informed the trial court of their compliance. Ettayem at ¶ 10. This court dismissed the appeal for lack of a final, appealable order.
{¶ 13} This court in Ettayem relied on several cases, including Renner. In Renner, the trial court filed a 2011 entry that dismissed the case with prejudice, stating: “[u]pon advice of counsel case is hereby settled and dismissed with prejudice subject to a more definite journal entry to follow.” Id. at ¶ 8. No agreement or further journal entry was ever filed with the court. In 2014, the trial court dismissed the case. The appellate court found that until the trial court entered the 2014 order that dismissed the case, the issues were not ripe for appeal. The first entry contemplated further action by the parties thus rendering it not a final, appealable order.
{¶ 14} A second case cited by Ettayem is Brotherwood v. Gonzalez, 3d Dist. No. 10-06-12, 2006-Ohio-4551. In Brotherwood, the plaintiff appealed from a judgment finding that he and the defendant, through his insurer, entered into a binding settlement agreement regarding the wrongful death of plaintiff‘s decedents. The trial court‘s entry provided that “this cause should be dismissed upon the payment of the policy limits of defendants’ liability policy.” Id. at ¶ 3. Additionally, the trial court‘s entry provided that after defendant, through his insurer, paid plaintiff and after plaintiff had issued a release of liability, a judgment entry of dismissal was to be filed with the trial court. Further, the trial
{¶ 15} Further, the Ettayem decision cited Colbert v. Realty X Corp., 8th Dist. No. 86151, 2005-Ohio-6726, where the trial court entry granting a motion to enforce a settlement agreement provided: “[m]otion to enforce settlement agreement is granted. Parties are ordered to finalize terms and dates of payment within 30 days of this order or face show cause hearing for failure to comply. Final. Costs of [sic] defendant. This court retains jurisdiction over all post-judgment motions.” Id. at ¶ 3. The appellate court found the judgment order was not a final, appealable order where it required the parties to finalize settlement terms, dates of payment, and did not dispose of any claim by any party. Thus, without a final, appealable order, the appellate court dismissed the appeal.
{¶ 16} In this case, the March 18, 2019 entry required Lee to transfer the $20,000 held in trust, Lee and Actual Brewing to execute the $34,000 cognovit promissory note, and within 14 days of payment and execution of the cognovit note, McCracken was required to file a notice of dismissal of this matter. The entry contemplated further action by the parties and did not actually dismiss the claims against the defendants. In Ettayem at ¶ 9, this court stated, as follows:
[A]n order enforcing a settlement agreement does not dispose of the whole case or any branch thereof when it does not actually dismiss the claims against the settling party. Brotherwood at ¶ 8; Colbert at ¶ 5. Where an order enforcing a settlement agreement either contemplates further action or fails to dispose of the case or a branch thereof, that order does not qualify as a final, appealable order. Renner, Otto, Boisselle, & Sklar, LLP at ¶ 16-17; Sturgill [v. JPMorgan Chase Bank, N.A., 4th Dist., No. 11CA7, 2012-Ohio-1087] at ¶ 4; Brotherwood at ¶ 9; Colbert at ¶ 5.
{¶ 17} The March 18, 2019 entry granting the motion to enforce settlement agreement is not a final, appealable order.
{¶ 18} Lee also filed an appeal from the trial court‘s denial of his motion for relief from judgment pursuant to
{¶ 19} In Straquadine, this court held that the trial court‘s order involuntarily dismissing the appellants’ complaint without prejudice was not a final, appealable order. Therefore, the order denying the appellants’
{¶ 20} In Jack Maxton Chevrolet, Inc. v. Hanbali, 10th Dist. No. 15AP-816, 2016-Ohio-1244, this court held that the trial court‘s decision denying the appellants’
{¶ 21} Thus, given these facts, because the trial court‘s March 18, 2019 order enforcing the settlement agreement was not a final order, the judgment denying the
{¶ 22} In the absence of final, appealable orders, we lack jurisdiction over these appeals. Accordingly, we dismiss these appeals.
Appeals dismissed.
SADLER, P.J., and LUPER SCHUSTER, J., concur.