COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69469 RICK FUGO : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION WHITE OAK CONDOMINIUM ASSOCIATION, : ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION JUNE 27, 1996 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 195528 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: ANTHONY J. COYNE, ESQ. ROBERT J. ROTATORI, ESQ. THOMAS B. BRALLIAR, JR., ESQ. RICHARD L. STOPER, JR., ESQ. Mansour, Gavin, Gerlack & Gold, Rotatori & Schwartz Manos Co., L.P.A. Co., L.P.A. 55 Public Square Building 1500 Leader Building Suite 2150 526 Superior Avenue, N.E. Cleveland, Ohio 44113-1994 Cleveland, Ohio 44114 - 2 - JAMES M. PORTER, J., Plaintiff-appellant Rick Fugo appeals from the order of the trial court denying his Civ. R. 60(B) motion for relief from judgment following a settlement and dismissal with prejudice of his claims against the defendant-appellee White Oak Condominium Association. We find no error and affirm. In August 1990, plaintiff Fugo and four other plaintiffs, purchasers of condominium units, brought suit against the association, the builder and other defendants for fraudulent misrepresentations and breach of an implied warranty of performance in a workmanlike manner in the original construction of the condominium units. This is the second time this case is before the Court. On February 14, 1992, the trial court granted summary judgment in favor of the defendants on various grounds. Plaintiffs appealed the grant of summary judgment. This Court reversed the judgment of the trial court as to the builder of the units on the claims of fraud and breach of implied warranty. Fugo, et al. v. White Oak Condominium Ass'n., Inc., et al. (Aug. 19, 1993), Cuyahoga App. No. 63440, unreported. The case was remanded to the lower court for trial on the merits. The case was spun-off by the Honorable Anthony J. Calabrese, the assigned judge, to the Honorable Harry Jaffe, a visiting judge. Four of the plaintiffs settled with the defendants prior to trial through buy-back arrangements. However, plaintiff Fugo did not - 3 - want to settle at that time. He claimed he had invested $7,000 in the unit and did not want to leave the property. His case was scheduled for trial on November 16, 1994. On the day of trial, a settlement conference was held with Judge Jaffe. A settlement was worked out in chambers whereby the builders would repurchase the condominium unit and then rent it back to plaintiff Fugo for a period of years at an agreed monthly rate. Plaintiff originally paid $74,900 for the condominium unit and was to receive $82,000 from the builders in the buy back settlement offer. Plaintiff was also to rent the unit for five years, the first two at $700 per month and the last three for $800 per month. Following the settlement, the parties, through their attorneys, filed a Stipulation for Dismissal and Judgment Entry stating "that the within case has been settled and is hereby dismissed with prejudice." This was executed for plaintiff by her attorney, Mary Beth Ballard, for defendants, by their counsel Richard Stoper, and Judge Jaffe. The terms of the settlement were not incorporated in this journal entry, but were read into the record by the attorneys in chambers as follows: MR. STOPER: For the defendants, I am Richard Stoper. The defendants agree to pay the plaintiff, Rick Fugo, $82,000 in purchase of Unit A-6, at 7601 First Place Drive, Oakwood Village. We are also agreeing to a five-year lease of the property to Mr. Fugo, at $700 for year one and year two; $800 for year three, four and five. - 4 - MR. BALLARD: Mr. Stoper means to say $700 per month. MR. STOPER: Per month, yes. MR. BALLARD: And $800 per month. MR. STOPER: At $700 a month for years one and two; $800 per month for years three, four and five. Mr. Fugo could terminate the lease any time within 60 days notice. We agree to make three specific repairs to the property: Number one, to fix the sewer; number two, seal the garage door; number three, fix cracks in the walls. MR. KOBERG: That's it. MR. STOPER: I think so. THE COURT: Okay. (Nov. 16, 1993 Tr. at 11-12). These settlement terms were agreed to after plaintiff's counsel consulted with their client, who was present in the courtroom outside chambers. Id. at 10. Problems soon arose, however, concerning the agreed settlement. Plaintiff apparently decided he did not want to rent the condominium and wanted additional cash for the buy-back. The repurchase of the unit did not take place, and on January 17, 1995, two months following the settlement, plaintiff's attorneys filed a motion to withdraw as counsel based on plaintiff's "refusal to honor the terms of the settlement reached between the parties on the day of trial." On January 27, 1995, the plaintiff filed a pro se "motion to vacate" the settlement agreement. Plaintiff attached an affidavit - 5 - to his motion expressing dissatisfaction with the settlement and stating that he had not agreed to it. Plaintiff's affidavit dated January 26, 1995 states: Now comes Richard F. Fugo, being duly sworn, deposes and states the following: (1) THAT, at no time throughout the past five years, was I ever willing to sell my building back to the defendants, unless a substantial settlement was to be reached. (2) THAT, both of the Plaintiffs [sic] counsel, being Mary Beth Ballard & Jeffrey L. Kober, were aware of this fact. (3) THAT, at no time on the day of the trial, did I tell the Court that I agreed with the settlement. (4) THAT, at no time was I asked by my counsel or the Court if I agreed with this settlement. (5) THAT, I was not present in the Judges' Chambers when it was read into record. (6) THAT, after driving home, the day of the trial, I immediately phoned Jeffrey L. Koberg, to tell him that I could not accept this settlement. I made it very clear to him that this was not in my best interest. (7) THAT, Jeffrey Koberg insisted I take some time to think my decision over, I didn't want to, however, I took my attorney's advice and did so. I faxed a letter to Jeffrey Koberg on November 18, 1994 to let him know that my decision was final - I could not accept this settlement. (8) THAT, I was placed under extreme pressure by my counsel to sell my property back to the Defendants. - 6 - Plaintiff's affidavit in support of his pro se motion does not say that he was unaware of the terms of the settlement, nor does he directly say that his counsel were unauthorized to agree to the terms. This January 27, 1995 pro se motion, which was filed with Judge Calabrese, was not labeled a Civ. R. 60(B) motion for relief from judgment, although it could certainly be construed as such. On January 27, 1995, Judge Calabrese granted plaintiff's attorneys' motion to withdraw as counsel. On February 2, 1995, Judge Calabrese "overruled and denied" plaintiff's pro se "motion to vacate" without opinion. On March 8, 1995, plaintiff, through his new counsel, filed a notice of appeal from the trial court's denial of his "motion to vacate." The March 8, 1995 appeal also appealed from the "judgment entered in this action on November 23, 1994." That appeal (No. 68656) was dismissed by this Court sua sponte on May 15, 1995 for "failure to file a timely notice of appeal." On June 6, 1995, plaintiff, through his new attorneys, filed a motion for relief from judgment pursuant to Civ. R. 60(B)(1) mistake, inadvertence, surprise and (5) any other reason justifying relief from judgment. The motion was later supported by an affidavit by plaintiff Fugo, dated July 6, 1995, stating that attorneys Ballard and Koberg had no authority to settle. Defendants' opposed the motion and a hearing was held on August 17, 1995 before Judge Jaffe to whom the case was re-transferred for purposes of the Civ. R. 60(B) hearing. Following this August 17, - 7 - 1995 hearing, at which plaintiff's new counsel argued that original counsel were without authority to settle the case, Judge Jaffe denied plaintiff's 60(B) motion for relief from judgment and this timely appeal ensued. Plaintiff's three assignments of error will be addressed together as they are interrelated and argued as one by plaintiff. I. THE LOWER COURT ERRED TO THE PREJUDICE OF PLAINTIFF BY DENYING PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO CIVIL RULE 60(B). II. THE LOWER COURT ERRED TO THE PREJUDICE OF PLAINTIFF BY FAILING TO VACATE THE STIPULATION FOR DISMISSAL AND JUDGMENT ENTRY DATED NOVEMBER 16, 1994, BECAUSE PLAINTIFF'S ATTORNEYS HAD NO AUTHORITY FROM PLAINTIFF TO ACCEPT THOSE, OR ANY, SETTLEMENT TERMS. III. THE LOWER COURT ERRED TO THE PREJUDICE OF PLAINTIFF BY FAILING TO VACATE THE STIPULATION FOR DISMISSAL AND JUDGMENT ENTRY DATED NOVEMBER 16, 1994, BECAUSE IT ATTEMPTS TO CREATE AN INTEREST IN LAND IN VIOLATION OF THE OHIO STATUTE OF FRAUDS. In his three assignments of error, plaintiff argues two points: (1) his original attorneys (Ballard and Koberg) did not have authority to settle his claim; and (2) the settlement which called for the builder to buy back the condominium did not satisfy the requirements of a writing required by the Statute of Frauds (R.C. 1335.05). The requirements necessary for a motion seeking relief from judgment have been set forth in paragraph two of the syllabus of GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146: - 8 - To prevail on a motion brought under Civ. R. 60(B), the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ. R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds for relief are Civ. R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken. Recently followed and quoted with approval in Strack v. Pelton (1994), 70 Ohio St.3d 172, 174. The issue on this appeal from the denial of a Civ. R. 60(B) motion for relief from judgment is whether the trial court abused its discretion. Strack v. Pelton, supra at 174; Moore v. Emmanuel Family Training Ctr. (1985), 18 Ohio St.3d 64. The term, "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. We are also mindful before disturbing the trial judge's exercise of discretion that public policy strongly favors the enforcement of settlements freely arrived at. As the Ohio Supreme Court stated in Spercel v. Sterling Industries, Inc. (1972), 31 Ohio St.2d 36, 38: As noted in 15 American Jurisprudence (2d) 938, Compromise and Settlement, Section 4: "The law favors the resolution of controversies and uncertainties through compromise and settlement rather than through litigation. *** The resolution of controversies *** by means of compromise and settlement *** results in a saving of time for the parties, the lawyers, - 9 - and the courts, and it is thus advantageous to judicial administration, and, in turn, to government as a whole." To this we might add that courts today could not successfully cope with the volume of their dockets in the absence of settlement agreements. The Court added: "To permit a party to unilaterally repudiate a settlement agreement would render the entire settlement proceeding a nullity, even though the agreement is of binding force." Id. at 40. The instant case is not one where an attorney settled a case without authority to do so. In the case below, the suit was settled on the first day of trial in Judge Jaffe's chambers. The plaintiff was present in the courtroom when the case was settled. His own counsel consulted with him prior to agreeing to the essential terms of the settlement on the record. The plaintiff's own original affidavit herein does not state that his attorneys did not have authority to settle the claim. His contentions state his dissatisfaction with the terms of the settlement. His own attorneys withdrew from the case when plaintiff would not honor the settlement agreed to. Ms. Ballard's affidavit does not say she was without authority when she executed the settlement and dismissal entry, only that plaintiff "may not have fully understood the representations made to the court." (Ballard Aff. 3(B)). Mr. Koberg at the August 17, 1995 hearing conceded that he and Ms. Ballard told plaintiff what the terms of the settlement were and Mr. Koberg believed that Fugo knew what the settlement was but "he - 10 - may have been mistaken." (Tr. 15). These are not statements of attorneys claiming to be without authority. In any event, this is not the type of situation for which 60(B) is available for relief. It is well-settled that the neglect of a party's attorney will be imputed to the party for the purposes of Civ. R. 60(B)(1). Argo Plastic Products Co. v. Cleveland (1984), 15 Ohio St.3d 389, 392; GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146. In both GTE and Argo the Supreme Court held that a party may not obtain relief from judgment under Civ. R. 60(B)(1) solely on the ground of misconduct of its own attorney. See, also, Knapp v. Knapp (1986), 24 Ohio St.3d 141, 146 (60(B)(4) relief not available to challenge agreed upon settlement). As the court held in Knapp, allowing parties to utilize Civ. R. 60(B) to obtain relief from settlements would open a pandora's box of problems. Every settlement could be challenged on the theory that the attorneys exceeded their authority. Settlements and dismissal entries relating thereto would never be final. The trial court did not abuse its discretion in denying plaintiff's 60(B) motion for relief from judgment as it pertained to the authority of his attorneys. Plaintiff has also raised the argument that the settlement did not satisfy the Statute of Frauds requirement of a writing relating to real estate since the settlement actually consisted of a buy- back or sale of the condominium unit. A review of the Ohio case - 11 - law shows only one reported case that has addressed the issue. In Thomas v. Thomas (1982), 5 Ohio App.3d 94, 99, the court held: "the Statute of Frauds has no application to an 'in-court' settlement stipulation ***." In sister states that have addressed this issue, the general rule also appears to be that the Statute of Frauds has no application to an in-court settlement stipulation entered on the record. Matter of Estate of Eberle (S.D.S.Ct. 1993), 505 N.W.2d 767, 771; Sparco v. Tenney (Conn. S.Ct. 1978), 399 A.2d 1261, 1262. In any event, this Court recently reached the conclusion that a stipulated settlement of a lawsuit on the record satisfies the Statute of Frauds. See Rothfusz v. Fitzgerald (Feb. 3, 1994), Cuyahoga App. No. 64526, unreported at 3: Fitzgerald first contends that the settlement agreement was not binding because it was violative of the statute of frauds. She correctly asserts that any transfer of real estate must be in writing to be valid. However, the statute of frauds is satisfied where an agreement is memorialized after an oral promise is made. Busler v. D & H Mfg., Inc. (1992), 81 Ohio App.3d 385, 611 N.E.2d 352. The binding contract in this case was the stipulated settlement of a lawsuit. The real estate transfer was a mere by-product of the agreement to settle. Further, the agreement was memorialized by court order pursuant to the original oral agreement. Therefore, the settlement agreement between Fitzgerald and Rothfusz was valid and binding under the statute of frauds. In the case below, the actual terms of the settlement were made part of the record of the case and the Statute of Frauds does not apply to the in-court stipulation of settlement under such circumstances. - 12 - Defendants-appellees invoke R.C. 2323.51 and Civ. R. 11 to obtain an award of attorney fees "for the reason that Fugo's actions are frivolous and not well grounded in fact or law." (Appee's Brf. at 19). Defendants requested attorney fees in a motion filed on June 8, 1992. The trial court ruled the motion moot as the case was being appealed by plaintiff. Following plaintiff's successful appeal, in opposition to the plaintiff's motions for relief from judgment, the defendants renewed their request for attorney fees. Although the trial court did not formally rule on same, we will presume the requests were denied. Motions not specifically ruled on are deemed denied on appeal. Wiltsie v. Teamor (1993), 89 Ohio App.3d 380, 389; Newman v. Al Castrucci Ford Motor Sales, Inc. (1988), 54 Ohio App.3d 166, 169; Solon v. Solon Baptist Temple, Inc. (1982), 8 Ohio App.3d 347, 352. Defendants have also failed to file a cross-appeal pursuant to App. R. 3(C). Harvey v. Ohio Dept. of Adm. Serv. (1993), 85 Ohio App.3d 156, 160. Accordingly, we have no jurisdiction to address this issue on appeal. Duracote Corp. v. Goodyear Tire & Rubber Co. (1983), 2 Ohio St.3d 160, 163 ("Assignments of error of an appellee who has not appealed from a judgment may be considered by a reviewing court only when necessary to prevent a reversal of the judgment under review"); Valescu v. Cleveland Metroparks Sys. (1993), 90 Ohio App.3d 516, 524; Parks v. Baltimore & Ohio RR. (1991), 77 Ohio App.3d 426, 428-29. Assignments of error I, II and III are overruled. Judgment affirmed. - 13 - It is ordered that appellees recover of appellant its 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, P.J., CONCURS. PATTON, J., DISSENTS. (See dissenting opinion attached) JAMES M. PORTER 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 it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69469 RICK FUGO : : DISSENTING Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION WHITE OAKS CONDOMINIUM : ASSOCIATION, ET AL. : : Defendant-appellees : : DATE PATTON, J., DISSENTING: I respectfully dissent for the reason that I believe the trial judge abused his discretion by failing to conduct a full hearing addressing the grounds for relief raised by plaintiff's motion for relief from judgment. Plaintiff's motion sought relief on grounds that his attorneys lacked authority to bind him to a settlement agreement. To support the motion, he appended the affidavit of an attorney who represented him at the time. The affidavit recounted the factual circumstances at the time of the purported settlement, including the fact that settlement discussions occurred in the trial judge's chambers without the presence of the parties. Moreover, the - 2 - affidavit confirms plaintiff's contention that the hurried negotiations left the parties with nothing more than an agreement in principle which omitted so many important terms that the settlement now appears to be no settlement at all. The trial court did not address any of these grounds with a hearing. While the parties did assemble in court, that assembly was limited to the trial judge recounting his recollection of events at the time the parties believed they reached a settlement. Rather than address plaintiff's contention that his attorneys lacked authority to enter into a settlement which did not dispose of numerous points of contention between the parties, the trial judge simply noted he assumed under the circumstances plaintiff's attorneys had authority to enter into a settlement by virtue of the fact that they signed a notice of dismissal on plaintiff's behalf. The judge refused to consider the possibility that there were problems with the settlement itself. In Zigmont v. Toto (1988), 47 Ohio App.3d 181, we held that a court "*** should not reduce an agreement to judgment without reliably determining its content. Thus, the court should hold an evidentiary hearing to resolve any dispute about the existence of an agreement or its terms." Id. at 185; see also Fada v. Information Sys. & Networks Corp. (1994), 98 Ohio App.3d 785, 796. I find the circumstances compel a factual determination on the issue whether the parties agreed to a sufficient number of terms to create an enforceable agreement in the first instance. The - 3 - purported settlement did not address who had responsibility to satisfy the mortgage and how the property would be transferred. In fact, the parties have not prepared any contract in furtherance of the supposed settlement. The issue, then, is whether the trial court conducted a hearing on the merits of plaintiff's motion for relief from judgment. This issue has nothing to do with enforcing the settlement agreement. We fail to promote any legitimate public policy by binding parties to indefinite and uncertain agreements. Plaintiff's motion for relief from judgment asserted grounds sufficient to justify a full hearing on the merits. Since the .