COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69170 LAURIE FITZGERALD : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION THEODORE S. ZAJAC, ET AL. : : : DEFENDANTS-APPELLANTS : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 22, 1996 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-258961. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Amelia A. Bower, Esq. Paynter & Kohler 8905 Lake Avenue, Suite 305 Cleveland, Ohio 44102 For Defendants-appellants: Bruce William Boyarko, Esq. 75 Public Square, Suite 914 Cleveland, Ohio 44113 - 2 - SWEENEY, JAMES D., P.J.: Defendants-appellants Theodore Zajac and the Estate of Olga Zajac, Theodore Zajac, Executor, appeal from the trial court's decision denying their motion to vacate the dismissal of the suit filed against them by their daughter, Plaintiff-appellant Laurie Fitzgerald. The appellants also appeal the trial court's order denying their motion for summary judgment. Appellee filed an action against her parents, and they filed a counterclaim. Ms. Fitzgerald borrowed money from the appellants and issued a deed of trust on her property in Denver, Colorado, to secure the debt. Suit was filed to resolve a dispute as to whether or not the debt had been forgiven. The parties reached an agreement on both the appellee's claim and the appellants' counterclaim. On April 10, 1995, the court signed an agreed entry which settled and dismissed the action with prejudice. On May 5, 1995, the appellants moved to vacate the dismissal. The appellee filed a brief in opposition, a motion to compel settlement, and a motion for contempt. The appellants responded. On May 25, 1995, the trial court denied the motion to vacate the dismissal, granted the motion to compel settlement, and denied the motion for contempt. The appellants set forth two assignments of error, the second assignment will be reviewed first. The second assignment of error: - 3 - II THE LOWER COURT ERRED AND ABUSED ITS DISCRETION WHEN IT FAILED TO SET ASIDE THE UNCONSUMMATED SETTLEMENT WHEN IT DEVELOPED THAT MATERIAL ELEMENTS OF THE SETTLEMENT COULD NOT BE PERFORMED. The appellants contend that the settlement contained a confidentiality and non-disclosure clause which, due to a pending federal court case, became impossible to perform. The appellants argue that the trial court erred when it failed to vacate the settlement as a result of the alleged impossibility of performance. Specifically, the appellants state that the pending federal litigation included causes of action for libel and slander. They assert that a tentative settlement agreement of the federal suit included a provision for confidentiality. The appellants believed that during a trial in the state court, the confidentiality provision in the federal litigation agreement would necessarily be violated. Based upon this belief, they agreed to settle the state court litigation. Included in the state court settlement was also an agreed term of confidentiality. The appellants argue that once the tentative agreement to settle the federal claim unravelled, the state court settlement became impossible to perform. The appellants assert that the state court confidentiality agreement would prohibit them from fully litigating the federal court action, and therefore the trial court should have vacated the state court settlement agreement. - 4 - It is important to note that the law favors prevention of litigation by compromise and settlement. Ziegler v. Wendel Poultry Serv., Inc. (1993), 67 Ohio St. 3d 10, 17. The Supreme Court has held that witnesses are absolutely immune from civil suits for defamatory remarks made during and relevant to judicial proceedings. In Willitzer v. McCloud (1983), 6 Ohio St.3d 447, the court held it to be well established that judges, counsel, parties, and witnesses are absolutely immune from civil suits for defamatory remarks made during and relevant to judicial proceedings. The immunity is based upon the policy of protecting the integrity of the judicial process, and to assist in ascertaining the truth. Participants in judicial proceedings should be afforded the opportunity to make a full disclosure of all pertinent information within their knowledge. A witness must therefore be permitted to testify without fear of consequences. Willitzer, supra. In the case sub judice, without evidence to support the allegations, the appellants assert that the trial court settlement agreement would be breached by testimony they would be required to give in federal court. Since any actual testimony given by a witness is absolutely privileged so long as the testimony is made during and relevant to the judicial proceeding, the motion to vacate the settlement was not only anticipatory, it had no basis in law. The trial court did not err in refusing to grant the motion to vacate the settlement. - 5 - The appellants' second assignment of error is overruled. The first assignment of error: I THE COURT ERRED WHEN IT FAILED TO DEEM THE DEFENDANT-APPELLANT'S REQUEST FOR ADMISSIONS AS ADMITTED WHEN THE SAME WERE NOT RESPONDED TO WITHIN TWENTY-EIGHT DAYS AND FURTHER ERRED IN FAILING TO GRANT SUMMARY JUDGMENT ON DEFENDANT- APPELLANT, ZAJAC'S, COUNTER CLAIM (SIC) WHEN THERE EXISTED NO ISSUE OF MATERIAL FACT. Based upon the ruling on the second assignment of error, the first assignment of error is moot. See App.R.12(A). The appellants' first assignment of error is overruled. Judgment affirmed. - 6 - It is ordered that appellee recover of appellants her 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 Common Pleas Court 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. Exceptions. JAMES M. PORTER, J., and ANN DYKE, J., CONCUR. JAMES D. SWEENEY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .