COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61061 ALBERT TEPPER, ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION LARAINE HECK, ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 10, 1992 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case Nos. 153721 & 181318 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: For Defendants-Appellees: MARK B. COHN, ESQ. EDWARD KANCLER, ESQ. JEFFREY A. HUTH, ESQ. DAVID W. NEEL, ESQ. MCCARTHY, LEBIT, CRYSTAL BENESCH, FRIEDLANDER, & HAIMAN CO., L.P.A. COPLAN & ARONOFF 1800 Midland Building 1100 Citizens Building 101 Prospect Avenue 850 Euclid Avenue Cleveland, Ohio 44115 Cleveland, Ohio 44114 - 1 - DYKE, J.: In July of 1988, appellants, Albert Tepper, Mary Tepper and Northfield Investment Co., brought suit against appellees, Laraine Heck, Richard W. Heck, Jr., and T & S Lumber Co., (Case No. 153721) for an accounting and declaratory judgment, breach of contract, and breach of a lease. Appellees counterclaimed for declaratory judgment and damages for tortious interference with the operation of appellees' business and the use of appellees' premises. At a pre-trial in July of 1989 the attorneys for the parties signed a "stipulation for dismissal and judgment entry" which stated "complaint and counterclaim dismissed, parties to submit journal entry, after execution of settlement agreement." The trial judge subsequently issued a journal entry which stated "Dismissed with prejudice." On appeal this court modified the judgment to be "without prejudice." Tepper, et al. v. Heck, et al. (July 5, 1990), Cuyahoga App. No. 58904. Appellees filed a motion to enforce the oral settlement agreement and filed a separate action against appellants seeking specific performance of the settlement agreement. (Case no. 181318.) Appellants counterclaimed for the claims in the first action. The actions were consolidated below and the trial judge held an evidentiary hearing to determine whether a settlement was reached and, if so, what the terms had been. The trial judge concluded that a complete settlement had been reached on all terms except the number of inspections Albert Tepper could - 2 - conduct in a year and the method of notice before the inspections. On appeal appellants assign three errors for review. I THE TRIAL COURT ERRED IN HOLDING THE EVIDENTIARY HEARING BEFORE THE ORIGINAL TRIAL JUDGE WHEN A HEARING ON A MOTION TO ENFORCE AN ALLEGED IN-COURT SETTLEMENT MUST BE HELD BEFORE A JUDGE OTHER THAN THE ORIGINAL TRIAL JUDGE IN THE ACTION. Appellants note that at the time of the pre-trial there was no journal entry of the terms and the agreement was not read into the record. Appellants contend that if the agreement is arrived at in the presence of the trial court ("in-court") and the terms are not in the record there must be an evidentiary hearing conducted by a different judge. Appellants cite Bolen v. Young (1982), 8 Ohio App.3d 36 and Akbar Consulting Corp. v. M.J. Kelley Co. (February 15, 1990), Cuyahoga App. No. 58057, unreported but this court dealt with an alleged in-court settlement agreement by remanding the case for an evidentiary hearing and making no mention of a new judge. Zigmont v. Toto (1988), 47 Ohio App.3d 181. Appellants insist that the agreement was the result of discussions with the judge. Appellants cite appellees' motion which states that the judge was advised of the parties' progress and the status of negotiations. Appellants filed a motion to have the trial judge recuse himself but after appellees' attorney stated that the judges' recollections would not be relied upon, the motion was withdrawn. - 3 - Appellants argue that the motion was renewed only when appellees said they were now seeking the judge's "counsel" and thus appellees indicated they intended to rely on the judge's memory. Appellants further contend that appellees' former attorney testified that discussions were had with the judge regarding possible settlement. Appellees first contend that appellants waived the error because the renewal was improper when there was no reason for appellants to believe the judge would be a witness. Appellees' opening statement did relate that the parties had sought the judge's counsel (Tr. 7), received assistance (Tr. 10) and, although the attorney could not remember the words of advice given, within a half hour the case was settled (Tr. 7). The renewal of the motion was proper. The judge stated that he didn't remember the details and didn't have anything to do with working out the settlement. (Tr. 31.) There was no evidence that the judge was told the terms of the alleged oral settlement agreement. The motion to recuse was properly denied. There was no in-court settlement (i.e. one in which the trial judge's recollection of the existence of, or the terms of, a settlement would be pertinent). There was no error in holding the hearing before the original trial judge. Assignment of error No. I is overruled. II THE TRIAL COURT ERRED IN THAT TO ENFORCE AN ALLEGED OUT-OF-COURT SETTLEMENT IT IS - 4 - NECESSARY TO FILE EITHER A SEPARATE ACTION FOR BREACH OF CONTRACT OR A SUPPLEMENTAL PLEADING IN THE ORIGINAL ACTION AND TO PROCEED ON A MOTION TO ENFORCE A PURPORTED OUT-OF-COURT SETTLEMENT AGREEMENT WITHOUT A TRIAL DEPRIVES THE PARTY AGAINST WHOM THE AGREEMENT IS SOUGHT TO BE ENFORCED OF THAT PARTY'S RIGHT TO A JURY DETERMINATION OF THE ISSUES. I Appellees argue that appellants failed to object at the trial court level to the denial of a jury trial. However, appellants had requested a jury trial on the second action (Case 1 No. 181318) which was consolidated with the first case. 1 We note that unlike any of the cases cited in which courts entered judgments finding settlement agreements, in this case the case from which the settlement agreement arose had been dismissed. The entry did not say settled and dismissed. It merely said dismissed. In that event the judge would have had no authority to act on the motion to enforce the settlement in the first case (153721) when he had dismissed it without condition. "[A] judge loses his authority to proceed in a matter when he unconditionally dismisses it. Thus, such judge is without jurisdiction whatsoever to act...." State, ex rel. Rice v. McGrath (1991), 62 Ohio St.3d 70. See also Harper v. Frantz (1989), 61 Ohio App.3d 341, 343. However, the second action (181318) included a claim asking that the settlement agreement be enforced. That is a restatement of the motion and the judge may have properly ruled upon it and by doing so disposed of all the claims and counterclaims. However, we also note that the dismissal on November 13, 1989 was purportedly a nunc pro tunc entry. The entry is marked "nunc pro tunc entry as of and for 7- 10-89." "'[T]he power to make nunc pro tunc entries is restricted ordinarily to the subsequent recording of judicial action previously and actually taken.'" Wampler v. Bach (1975), 42 Ohio St.2d 236, 241 quoting National Life Ins. Co. v. Kohn (1937), 133 Ohio St.111, 113. In contrast, this entry attempts to dismiss what the judge intended to dismiss rather than to record a previous dismissal on July 10, 1989. There couldn't have been an unconditional dismissal when the parties agree and the record shows that the parties reached a conditional dismissal as evidenced by the stipulation on July 11, 1989. The nunc pro tunc entry is invalid. See National Life, 133 Ohio St. at - 5 - II Appellants cite Bolen v. Young (1982), 8 Ohio App.3d 36 in which the Franklin County court of appeals held that an out-of- court ("extra-judicial") settlement must be proved by either filing a supplemental pleading pursuant to Civ. R. 15(e) or a complaint for breach of contract. However, subsequently the same court held that when there is an allegation of an out-of-court settlement the trial court must conduct an evidentiary hearing as to the existence and terms of the settlement. Ohio State Tie & Timber v. Paris Lumber (1982), 8 Ohio App.3d 236 (paragraph five 2 of the syllabus). This court has held that an evidentiary hearing was an appropriate means to resolve whether parties had entered into a binding agreement to settle. Palmer v. Kaiser Foundation Health (1991), 64 Ohio App.3d 140. Palmer involved an extra-judicial paragraph three of the syllabus. The November 13, 1989 entry is vacated. Case No. 153721 survives and the trial court had jurisdiction to rule on the motion. 2 Inexplicably, Ohio State Tie cites Bolen as its authority. More recently, the Franklin County Court of Appeals cited Ohio State Tie and reiterated that an evidentiary hearing must be held when there is an allegation of an extra-judicial settlement. Irwin & Flickinger v. Christy Co. (1989), 61 Ohio App.3d 131 (paragraph one of the syllabus). Irwin cites Bolen only for the proposition that in the event of an allegation of an extra- judicial settlement the agreement can be enforced only if there is a binding contract. - 6 - settlement. Bolen was cited (as "Bolden") only for the proposition that the trial court could find an agreement and enforce it. Id. at 143. Here, the trial court did not err in enforcing the agreement after an evidentiary hearing rather than a supplemental pleading or a breach of contract action. Assignment of error No. II is overruled. III THE TRIAL COURT ERRED IN DETERMINING THAT AN ENFORCEABLE SETTLEMENT AGREEMENT WAS REACHED BETWEEN THE PARTIES. Appellants contended that the testimony of appellants' former attorney, appellees' attorney and Laraine Heck established that not all the terms had been agreed upon and that it was the intention of the parties that no settlement would occur until a written settlement agreement had been negotiated and signed. Appellants' former attorney testified as follows: at the pre-trial the parties agreed to the specifics of all issues except the right of inspection which, although they agreed it was Albert Tepper's right, they arranged to further negotiate with regard to frequency and notice. (Tr. 38.) He told appellees' attorney that they had settled, provided a satisfactory document could be prepared. Heck and appellees' attorney testified that they had needed a written agreement before she would pay. - 7 - The parties agreed and informed the trial judge that the journal entry dismissing the case would be submitted after execution of an agreement. However, it is apparent from a review of all the evidence that the parties had settled all the issues in the pleadings and merely had to come to an understanding on the issue of inspection and agree to the wording of the resolution of all issues. The better practice is to go on the record and recite the issues and the resolution. Short of laboriously hammering out a handwritten agreement in court the preferred process is to agree to settle on condition that the language (rather than the terms themselves) can be agreed to in the near future. To argue that there was no agreement until a written agreement was signed is to say that the parties merely suspended the trial of the case while they made a further attempt at negotiating. The stipulation belies that contention because it says that the case is dismissed albeit on condition that the parties can agree on the language. In the event that a party fails to make a good faith attempt to agree on the language the trial judge can (after hearing) determine the terms and construct a reasonable journal entry outlining the agreement. Here, the parties had resolved the claims and counterclaims and had only to agree to define the "reasonable" inspection Tepper could conduct pursuant to the right granted in the lease. The trial court properly found that there had been an enforceable oral settlement agreement. - 8 - If it is found that the parties intended to be bound, the court should not frustrate this intention, if it is reasonably possible to fill in some gaps that the parties have left, and reach a fair and just result. 1 Corbin on Contracts, 400 to 406, Section 95; 1 Williston on Contracts (3 ed.), 110 and 111, Section 37. Even though American's purported acceptance stated the price for Litsinger's services 'to be determined,' this does not indicate a mere 'agreement to agree' as to an essential term of the contract. Compare General Motors Corp. v. Keener Motors, Inc. (1952), 194 F.2d 669, 63 Ohio Law Abs.392. Rather, it merely refers to Litsinger's offer to do the work for 'ordinary industry prices,' a way of filling a blank on its purchase order in the absence of a specified liquidated amount. Further, the term, 'ordinary industry prices,' sets a standard ascertainable by proof, which would permit enforcement of the parties' express contract. 1 Corbin on Contracts, 408, 409 and 433, Sections 95 and 98 (recourse to market - a standard usually enforceable). Litsinger Sign Co. v. American Sign Co. (1967), 11 Ohio St.2d 1, 14. The trial judge's decision granting the motion to enforce the oral agreement treats this term, defining "reasonable" inspections, as a term which would be reasonably possible to fill. - 9 - We find that the definition of "reasonable," as it relates to the timing and frequency of inspections of the property by Tepper, is not an essential element of the agreement. The evidence adduced at the hearing supports the trial judge's decision that an enforceable settlement agreement had been reached. See, C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. Accordingly, we affirm the trial court's decision to grant appellee's motion to enforce the settlement agreement. - 10 - Judgment affirmed. It is ordered that appellees 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. FRANCIS E. SWEENEY, J., AND KRUPANSKY, J., CONCUR PRESIDING JUDGE ANN DYKE 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. .