COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71505 CARMEN MANDATO : ACCELERATED DOCKET : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION MICHAEL MANDATO, ET AL. : : Defendant-Appellee : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION MAY 15, 1997 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 287388 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee Michael Mandato: MATTHEW J.D. LYNCH, ESQ. 16779 Chillicothe Road MICHAEL E. REARDON, ESQ. Chagrin Falls, Ohio 44023 Douglass & Associates Co., L.P.A. 55 Public Square 2000 Illuminating Bldg. Cleveland, Ohio 44113 [continued on next page] ALSO LISTED: For Defendant Star Bank: HUGH BERKSON, ESQ. 601 Rockwell Building Sixth Floor Cleveland, Ohio 44114 For Ohio Savings Bank: ROY E. LACHMAN, ESQ. 1801 East 9th Street Second Floor Cleveland, Ohio 44114 First Nationwide Bank: FIRST NATIONWIDE BANK 4065 Mayfield Road South Euclid, Ohio 44121 - 3 - PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App. R.11.1 and Loc.App.R. 25. Plaintiff-appellant Carmen Mandato appeals from a judgment entry dated September 20, 1996 granting defendant-appellee Michael Mandato's motion to reduce an in-court settlement agreement made March 11, 1996 to judgment. Plaintiff contends that no settlement agreement had been achieved because it contemplated the release of a dower interest by Patricia A. Mandato, who was not before the court nor a party to the action. Plaintiff contends he withdrew his offer to settle before any acceptance. We find no merit to the appeal and affirm the judgment entry below. This case arose out of a declaratory judgment action brought by Carmen Mandato on April 5, 1995 to determine the right to certain bank accounts which plaintiff apparently held as custodian for his nephew, defendant Michael Mandato, under the Ohio Uniform Transfers to Minors Act (R.C. 1339.31 et seq.). Plaintiff contended it was never his intention to vest the funds in Michael and that they were plaintiff's property. He apparently established the custodial accounts to protect the funds from his ex-wife with whom he was having support and visitation disputes. The affected banks were named as party defendants. - 4 - At the same time, a Petition for Accounting was pending in the Probate Court (Case No. 1108001) in which Michael Mandato, in his capacity as beneficiary pursuant to R.C. 1339.38, requested that plaintiff Carmen Mandato, in his capacity as custodian of said funds, provide an accounting of deposits and disbursements. On April 12, 1995, the Probate Court removed Carmen Mandato as custodian of the funds in question and appointed defendant Michael Mandato successor custodian. Prior to the removal, an agreed judgment entry was filed with the Probate Court wherein plaintiff Carmen Mandato agreed by and through counsel that the custodial funds would be deposited into an account at Star Bank, subject to disbursement only upon three signatures, i.e., by Carmen J. Mandato, his attorney, Michael A. Robusto, and David M. Douglass, attorney for Michael Mandato. After this action was filed, Star Bank apparently allowed plaintiff Carmen Mandato to withdraw said funds and close the two accounts without regard to the three signature requirement. Defendant Michael contends that plaintiff Carmen has refused to provide any information regarding the disposition of the funds thus obtained. During the course of discovery in the declaratory judgment action, it was alleged that a dower claim of Patricia Mandato, Michael's mother, against Uncle Carmen existed as a result of a series of real estate transfers between Carmen and his brother, - 5 - the late Michael Mandato, Sr., husband of Patricia and father of defendant Michael. A settlement conference in the declaratory judgment action was held on March 11, 1996. Prior to and during this settlement conference, defendant Michael Mandato represented to all parties that he had the authority to bind his mother, Patricia Mandato, to a universal settlement agreement whereby she would quitclaim her dower interest to plaintiff Carmen in exchange for his tendering settlement funds to defendant Michael Mandato. All parties in attendance at the settlement conference were represented by legal counsel. Patricia Mandato was not present. All parties executed a standard "Stipulation for Dismissal and Judgment Entry" which stated that "this case is dismissed with prejudice each party to pay own costs ***." The entry was signed by Carmen, his attorney, Michael, his attorney and the attorney for Star Bank. The court signed IT WAS SO ORDERED, and the entry was filed of record on March 12, 1995. The terms of the settlement were not memorialized at that time and do not appear in the file. Subsequent events revealed that pursuant to the settlement, Carmen was to pay $10,500 to Michael; Star Bank to pay $1,500 to Michael; and Patricia Mandato to release her dower interest in certain real properties owned by Carmen. However, on March 28, 1996, Carmen Mandato sent a handwritten letter to the trial judge protesting the settlement and asking him to set it aside because it was not clearly explained to him - 6 - at the time and he felt pressured into it. On June 2, 1996, defendant filed a motion to reduce the settlement agreement to judgment supported by defense counsel's affidavit setting forth the terms of the settlement. In his reply to the motion, plaintiff conceded the settlement called for the payment of $10,500 from Carmen to Michael; $1,500 from Star Bank to Michael; and the quitclaim by Patricia Mandato of specified properties to Carmen. Plaintiff did not contest the validity of the settlement agreement as set forth by defendant, nor did he request a hearing to determine same. On July 29, 1996, plaintiff's counsel sent a letter to defendant's counsel referencing the failure to get the quitclaim deeds and identifying the real problem at this time was that Carmen Mandato simply did not want to pay any money, i.e., the agreed upon $10,500. Plaintiff's counsel, in an effort to implement the settlement, stated that "we could have" Mrs. [Patricia] Mandato convey the property to her son [Michael], and then agree to an Entry ordering him to convey the property upon receipt of the funds." Although this was proposed as an agreed entry, it is in effect what eventually took place as a result of defendant Michael Mandato's action. On August 27, 1996, Patricia Mandato, for a valuable consideration, assigned her dower interest in certain properties owned by plaintiff Carmen Mandato, to Michael Mandato. - 7 - The assignment was recorded with the Cuyahoga County Recorder on August 28, 1996. Thereafter, the entry reducing the settlement agreement to judgment was filed on September 20, 1996, stating in full text as follows: Defendant, Michael Mandato's Motion to Reduce Settlement Agreement to Judgment is hereby granted. The Settlement Agreement made on March 11, 1996, with all parties present with counsel, requires Plaintiff, Carmen J. Mandato, to pay Defendant, Michael Mandato, the sum of Ten Thousand Five Hundred Dollars ($10,500.00), as consideration the settlement agreement and upon receipt of the sum of Ten Thousand Five Hundred Dollars ($10,500.00), Michael Mandato is hereby ordered to quitclaim his interest in the real estate located at 2645 East 112th Street, Cleveland, Ohio 44104; 3618 East 151st Street, Cleveland, Ohio 44120; and 23540 Aurora Road, Bedford Heights, Ohio, 44146, to Carmen Mandato, which deeds have been prepared by Plaintiff's counsel and which shall be recorded at Plaintiff's cost. Defendant, Star Bank, N.A., agreed and did in fact pay Defendant, Michael Mandato, One Thousand Five Hundred Dollars ($1,500.00), as agreed on March 11, 1996. The settlement agreement is hereby reduced to a money judgment in the amount of $10,500.00 against Plaintiff, Carmen J. Mandato, with interest accruing from the date of judgment, Plaintiff to pay costs. From this entry, plaintiff Carmen Mandato has pursued this timely appeal. Plaintiff's sole assignment of error states as follows: I. THE TRIAL COURT ERRED WHEN IT ISSUED IT'S [SIC] ORDER ON SEPTEMBER 20, 1996 GRANTING DEFENDANT/APPELLANT'S MOTION TO REDUCE SETTLEMENT TO JUDGMENT WHEN NO SETTLEMENT HAD BEEN AGREED UPON. - 8 - It is undisputed that Patricia Mandato was not a party to this action, nor was she physically present at the settlement conference of March 11, 1996. Based on that, plaintiff Carmen Mandato advances for the first time on the record the argument that Patricia Mandato was not a party to the settlement agreement and the "offer of settlement" was withdrawn prior to acceptance. This argument was not raised below, nor was it contained in Carmen's March 29th letter to the trial court. Nor was it raised on March 11, 1996 when the parties and their lawyers plus the judge all personally signed the stipulation and dismissal entry. It is a well-accepted rule of law that an issue may not be raised at the appellate level if it has not been raised or adjudicated at the trial level. Stores Realty Co. v. Cleveland Board of Building Standards and Building Appeals (1975), 41 Ohio St.2d 41; Miller v. Wikel Mfg. Co. (1989), 46 Ohio St.3d 76, 78; Little Forest Med. Ctr. of Akron v. Ohio Civ. Rights Comm. (1993), 91 Ohio App.3d 76, 80; McCarthy, Lebit, Crystal & Haiman Co., L.P.A. v. First Union Mgt., Inc. (1993), 87 Ohio App.3d 613, 620. When defendant Michael Mandato filed his motion to reduce the settlement agreement to judgment, plaintiff Carmen Mandato's opposition brief raised only one issue: that Patricia Mandato was not a party to the action and the court could not order her to convey her dower interest to plaintiff. This argument was duly rejected by the trial court and the motion to reduce settlement agreement to judgment was granted. In any event, - 9 - given the fact that Patricia Mandato subsequently assigned her dower interest to defendant Michael Mandato who was prepared to quitclaim his interest to Carmen, the objection was cured after the fact. The record is clear that plaintiff Carmen Mandato entered into a settlement agreement with defendant Michael Mandato and other interested parties on March 11, 1995. Whether Patricia Mandato was present or authorized the settlement at that time is immaterial. The parties thought they had a settlement and each party understood he was to comply with the terms agreed to. Plaintiff Carmen Mandato's handwritten letter to the trial judge, dated March 28, 1996, by its' own language, stated that: "I'm unable to live with the decision that I've made in the custodial case, ***." This indicated that plaintiff Carmen was fully cognizant that he entered into a binding settlement agreement, only to later regret the decision that he made. There is no language in the letter which suggested a withdrawal of an offer before it was consumated. Rather, he specifically asks the court "to please nullify this extremely pressured decision." "It is axiomatic that a settlement agreement is a contract designed to terminate a claim by preventing or ending litigation and that such agreements are valid and enforceable by either party." Continental W. Condominium Unit Owners Assn. v. Howard E. Ferguson, Inc. (1996), 74 Ohio St.3d 501, 502; Spercel v. Sterling Industries (1972), 31 Ohio St.2d 36, 38; Bauer v. Bauer - 10 - (April 2, 1981), Cuyahoga App. No. 42805, unreported. As recently stated by this Court in Hillbrook Bldg. Co. v. Corporate Wings, Inc. (Sept. 5, 1996), Cuyahoga App. No. 68619, unreported at 8: Where the parties to an action voluntarily enter into a settlement agreement in the presence of the trial court, the agreement is a binding and enforceable contract. Spercel v. Sterling Industries (1972), 31 Ohio St.2d 36, paragraph one of the syllabus. An oral settlement agreement requires no more formality and no greater particularity than appears in the law for the formation of a binding contract. Sperling, supra; Rodgers v. Rodgers (May 7, 1987), Cuyahoga App. No. 52015, unreported. In the event that a party fails to make a good faith attempt to agree on the language, the trial judge may hold a hearing to determine the terms and construct a reasonable journal entry outlining the agreement. Tepper v. Heck (Dec. 10, 1992), Cuyahoga App. No. 61061, unreported. Therefore, when litigants voluntarily enter into a settlement agreement in the presence of the trial court, the contract is binding and, once journalized, it need not be reduced to writing for the parties' signatures in order to be enforceable. Walland v. Rinehart (March 26, 1987), Cuyahoga App. No. 51935, unreported; Cellura v. Great Lakes Exploration, Ltd. (March 5, 1986), Cuyahoga App. No. 50230, unreported; Rice v. Hope (1991), Montgomery App. No. 12048, unreported at 10. This was earlier stated by this Court in Zigmont v. Toto (1988), 47 Ohio App.3d 181 at 185: Ordinarily, an in-court settlement binds the parties, even if they did not reduce it to writing. Spercel v. Sterling Industries, Inc. - 11 - (1972), 31 Ohio St.2d 36, 60 O.O.2d 20, 285 N.E.2d 324, paragraph one of the syllabus; Rodgers v. Rodgers (May 7, 1987), Cuyahoga App. No. 52105, unreported. The trial court can properly enter a judgment which accurately reflects an agreement they made in open court and read into the record. Bolen v. Young (1982), 8 Ohio App.3d 36, 37, 8 OBR 39, 40, 455 N.E.2d 1316, 1318. However, the 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. Morform Tool Corp. v. Keco Industries, Inc. (1971), 30 Ohio App.2d 207, 210, 59 O.O.2d 320, 321, 284 N.E.2d 191, 193; Arendt v. McDonald (Mar. 28, 1985), Cuyahoga App. No. 48956, unreported. In this case, plaintiff Carmen Mandato simply refused to consummate a settlement agreement which defendant Michael Mandato was ready, willing and able to perform. Plaintiff's March 28, 1996 letter does not state that he was unaware of the terms of the settlement, nor does he even state that he disagreed with the terms of the settlement agreement. Further, he made no request for an evidentiary hearing to dispute the terms of the agreement. He simply regretted on reflection agreeing to the settlement. Further, plaintiff's counsel and plaintiff executed the "Stipulation for Dismissal and Judgment Entry." It was only after plaintiff Carmen Mandato refused to perform that his counsel raised the issue of the trial court's inability to order Patricia Mandato as a non-party, to quitclaim her interest in the properties owned by plaintiff Carmen Mandato. By assigning her interests in the real estate to defendant Michael Mandato, he - 12 - stepped into her shoes and became empowered to quitclaim those interests to Carmen. There is no reason not to enforce the settlement agreement. The trial court did not err in entering a judgment entry ordering plaintiff Carmen Mandato to tender $10,500 to Michael Mandato in exchange for his quitclaim of interests in the specified property as a result of the settlement agreement reached on March 11, 1996. Plaintiff's sole assignment of error is overruled. Judgment affirmed. - 13 - It is ordered that appellee recover of appellant his 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. JAMES M. PORTER, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE LEO M. SPELLACY, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .