COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59875 LEOLA ELLINGTON : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION TRUST HOME IMPROVEMENT COMPANY, INC., ET AL : : Defendants-appellants : : DATE OF ANNOUNCEMENT : OF DECISION : FEBRUARY 20, 1992 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 096,005 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendants-appellants: ROBERT J. SAWYER, ESQ. JOHN P. LUTSECK, ESQ. 300 Superior Building 14 East Monroe 815 Superior Avenue Bedford, Ohio 44146 Cleveland, Ohio 44114 - 2 - J.F. CORRIGAN, J., Defendants Trust Home Improvement Co. and Mark Bruckner appeal from the order of the trial court entered in favor of plaintiff Leola Ellington in plaintiff's action for breach of contract and negligence. For the reasons set forth below, we affirm. I. Plaintiff filed this action against defendants on August 12, 1985 alleging that defendants had breached a contract for the installation of a roof, and had acted negligently and in contravention of the Cleveland Building Code, by installing a roof over three existing roofs on plaintiff's dwelling. On May 26, 1987, the trial court issued a stipulation for dismissal and judgment entry which provided: "Case is settled and dismissed with prejudice subject to prior agreement at Defendants' costs." This prior agreement (hereafter referred to as "the prior agreement") in turn provided, in relevant part, as follows: "Agreement" 1) Trust will remover [sic] layers of roofing on the porch of the house so that only two layers remain and will then apply one layer of roofing of the same quality as originally supplied to the roof over the main structure of the house. 2) An Inspector of the City of Cleveland Building Department will examine the roof area of the remainder of the house (Excluding - 3 - the porch roof) to determine the number of layers of roofing on the main portion of the house. If the total number of layers of roof on the main portion of the house exceed [sic] three layers, Trust will remove the excess layers over two layers and then apply a new roof layer of comparable quality to that which was originally supplied, so that there will be no more than three layers of roofing on the main roof. If the inspector determines that there are no more than three layers on the main portion of the house roofing, Trust will not have to perform any work on the main portion of the roof. *** This work will commence by July 1, 1987. This time of the year is selected as being the time of the year when it is least likely to rain. /s/ Leola Ellington /s/ Mark Bruckner Leola Ellington Trust Home Improvement Co., Inc. by Mark Bruckner, President Thereafter, on December 9, 1988 plaintiff moved the trial court for an order to show cause why defendants should not be held in contempt of court and to set the case for hearing on the merits. Plaintiff appended an affidavit to this motion in which she averred that defendants had repeatedly refused to perform their obligations under the agreement. The attorneys for the parties subsequently signed a second agreement which indicated that a follow-up inspection was necessary to ascertain the number of roofs on the dwelling, and that such inspection was to be completed by a contractor chosen by the trial court. - 4 - Thereafter, on January 26, 1990, American Insurance Repair Co. submitted a report to the trial judge which indicated that the main portion of the house had four layers of roofing material, that the front dormer had five layers of roofing material, and that the existing roofs could be removed and new roofing installed at a cost of $4,595. Finally, on May 1, 1990, the trial court issued a final entry which provided, in relevant part, as follows: "This cause came on for hearing on the 21st day of February, 1990, upon the motion of the plaintiff for contempt. ****. "This court, upon its own motion, ordered an independent inspection of the roof so as to determine the number of legal roof on the premises of the plaintiff, *** "American Insurance Repair Corperation [sic] reported to this court as result of an impartial inspection finding said premises of the plaintiff to consist of four (4) roofs on the premises of the plaintiff, and that three (3) roofs are the legal limit for said residential dwelling. "Said impartial inspection further rendered an estimate to this court for the cost of repairs in the sum of Four Thousand Five Hundred Ninety-Five ($4,594.00) [sic] Dollars. "*** "The court further finds that counsel for defendants has dutifully notified the defendants of the pretrial of February 12, 1990, and that defendants have failed to appear for said hearing or contact their lawyer. "IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that judgment is rendered in favor of - 5 - the plaintiff in the sum of of [sic] Four Thousand Five Hundred Ninety-Five ($4,595.00) Dollars ****." Defendants now appeal, assigning three errors. II. Defendants' first assignment of error provides: "THE TRIAL COURT ERRED IN MODIFYING THE MAY 26, 1987 SETTLEMENT AGREEMENT DULY ENTERED INTO BETWEEN THE PARTIES." Defendants' second assignment of error provides: "THE TRIAL COURT HAD NO JURISDICTION TO USE ITS CONTEMPT POWERS TO ALTER THE ORIGINAL SETTLEMENT AGREEMENT OF THE PARTIES." In these interrelated assignments of error, defendants assert that the trial court was bound to the limited provisions of the parties' prior agreement and could only modify the prior agreement through a Civ. R. 60(B) motion for relief from judgment. Defendants further assert that because the statutory remedies for contempt are limited, the trial court lacked jurisdiction to modify the prior agreement through contempt proceedings. These claims lack merit. As an initial matter, we note that the matter was "settled and dismissed *** subject to [the parties'] prior agreement." The prior Agreement in turn outlined an agreement for the future discharge of plaintiff's claim and was therefore an "accord executory." See Banc Ohio National Bank v. Abbey Lane Ltd. (1984), 13 Ohio App. 3d 446, where the court stated: - 6 - "An accord executory is not in itself at once operative as a discharge of a claim unless the agreement itself specifically provides therefor. Corbin, supra, Section 1269, at 75. "In this regard, an accord executory generally resembles what is called a 'unilateral contract,' or the exchange of a promise for a performance. A creditor promises to discharge a debt upon the debtor's performance of a certain act, usually the deliverance of a lesser sum of money or some valuable object to the creditor, or the performance of some service. The creditor does not want to give up his right to sue the debtor for the full amount owed in exchange for the debtor's promise to deliver something of value to him. Rather, he wants possession of the money or object, or a performance of the service, before discharging the debt. "*** "As noted above, there must be a clear indication of a creditor's intention to discharge a debt in return for a debtor's promise to pay a lesser sum in order to enforce such an agreement. Absent such clear indicia of intent, we must hold that only the performance of the requested act, not the mere promise to perform, can discharge the debt." Id. at 447-448. Thus, the settlement rendered here was clearly contingent upon defendants' actual performance of their obligations pursuant to the parties' prior agreement, and the trial court therefore retained jurisdiction over the matter to determine whether the conditions were met before entering a judgment. Cf. Morform Tool Corp. v. Keco Industries, Inc. (1971), 30 Ohio App. 2d 207, 210. - 7 - Moreover, while counsel for defendants now claims that the trial court modified the parties' prior agreement, over his objection, to provide for reinspection by a contractor of the court's choosing, the record clearly indicates otherwise. Counsel for plaintiff and counsel for defendant modified the prior agreement when they both signed a proposed journal entry finding that a follow-up inspection was necessary and that it was to be completed by a contractor chosen by the trial court. Finally, as to defendants' claim that the court acted beyond its powers to punish for contempt, it is well-established that the statutory powers to deal with contempt are merely cumulative and in addition to inherent authority of the court, State ex rel. Johnson, v. County Court of Perry County (1982) 25 Ohio St. 3d 53, 54. Further, the modifications at issue here were effected through the agreed entry signed by the attorneys. Thus, defendants' claim that the court modified the agreement in contravention of the statutory limitations in contempt proceedings cannot be maintained. Defendants' first and second assignments of error are overruled. III. Defendants' third assignment of error states: "THE TRIAL COURT DENIED APPELLANTS THEIR RIGHT TO DUE PROCESS OF LAW BY FAILING TO HOLD AN EVIDENTIARY HEARING ON APPELLEE'S MOTION TO SHOW CAUSE." - 8 - In this assignment of error, defendants claim that the trial court erred in modifying the parties' prior agreement because plaintiff's motion to show cause did not meet the requirements of a motion for relief from judgment pursuant to Civ. R. 60(B), and because the allegations of the motion are not evidence. Defendants further claim that they were denied due process because no evidence was presented in support of the final entry and because they were not permitted to cross-examine plaintiff. These claims are untenable. First, as noted previously, the court retained jurisdiction over the matter to ascertain whether the parties' agreement had been met, and Civ. R. 60(B) was therefore not implicated here. Second, the modification was effected through the entry signed by counsel. Third, defendants do not claim that the cause improperly proceeded in their absence, and indeed the final entry recites that defendants were given notice of the hearing. Accordingly, because defendants have not favored us with a transcript of the proceedings upon which the final entry was based, we must presume regularity and cannot credit defendants' claim that no evidence was presented, or that their rights to due process were violated. App. R. 9. Judgment affirmed. - 9 - It is ordered that appellee recover of appellants their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, C.J., and HARPER, J., CONCUR. JUDGE JOHN F. CORRIGAN N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .