COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72259 KINGSMEN ENTERPRISES, INC., : ET AL., : : Plaintiffs-Appellees : JOURNAL ENTRY : and vs. : OPINION : MARK KASUNIC, ET AL., : : Defendants-Appellants : DATE OF ANNOUNCEMENT OF DECISION : JULY 23, 1998 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 165080 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiffs-appellees: Thomas Schmelzer Paula E. Camino SCHMELZER AND ASSOCIATES 2200 Illuminating Building 55 Public Square Cleveland, Ohio 44113 For defendants-appellants: Anton M. Lavrisha 18975 Villaview Road, Suite 8 Cleveland, Ohio 44119-3008 Eunice A. Clavner 33 Public Square, Suite 700 Cleveland, Ohio 44113 -2- NAHRA, P.J.: Appellants, Mark and Anita Kasunic, appeal the grant of summary judgment in favor of appellees, John and Irene LaRussa, which order brought to final judgment this cause originally filed February 17, 1989. In February, 1989, Kingsmen Enterprises, Inc. (hereinafter Kingsmen ) filed a complaint against appellants based on a contract for home improvement work. Appellants counterclaimed against Kingsmen and against Kingsmen's president, vice-president, and shareholders: John and Irene LaRussa (hereinafter LaRussas ) as individuals. In their counterclaim, appellants alleged the same causes of action against the LaRussas as were brought against Kingsmen: 1) a claim under the Ohio Consumer Sales Practices Act and the retail installment act; 2) claim for fraud; 3) claim for breach of contract; and 4) claims under the Federal Truth in Lending Act; as well as claims for negligence and slander of title against the LaRussas. The trial court bifurcated the trial, conducted a trial between Kingsmen and appellants, and precluded evidence of individual liability of the LaRussas. The court directed verdicts in favor of Kingsmen on appellants' claims 1) for violation of the Ohio Consumer Sales Practices Act and the retail installment act; 2) for fraud; 3) for breach of contract; and 4) for violation of the Federal Truth in Lending Act. The jury returned a verdict on the contract claim and counterclaim in favor of Kingsmen for $18,000.00 and in favor of appellants in the amount of $12,000.00. -3- After trial, Kingsmen filed for bankruptcy. Appellants filed three premature appeals: Kingsmen Enterprises, Inc. v. Kasunic (Mar. 26, 1992), Cuyahoga App. No. 60197, unreported (Appeal dismissed for want of final appealable order as claims remain pending.); Kingsmen Enterprises, Inc. v. Kasunic (Feb. 17, 1994), Cuyahoga App. No. 64720, unreported (Appeal dismissed as case under stay for bankruptcy proceedings.); Kingsmen Enterprises, Inc. v. Kasunic (June 7, 1995), Cuyahoga App. No. 68164 (Appeal dismissed on appellees' motion pursuant to R.C. 2505.02.). In Kingsmen's bankruptcy proceedings, a settlement of the verdict and a covenant not to sue was reached between appellants and Kingsmen. In the settlement, appellants reserved their right to proceed against the LaRussas as individuals. In this case, Kingsmen then voluntarily dismissed with prejudice its action for foreclosure against appellants' property and appellants voluntarily dismissed with prejudice their claims for negligence and slander of title against the LaRussas. Appellants' claims against John and Irene LaRussa for fraud and for a violation of the Ohio Consumer Sales Practices Act, the retail installment act, and the Federal Truth in Lending Act remained to be litigated. After an evidentiary hearing and receiving briefs on LaRussas' motion for summary judgment, the trial court granted judgment to the LaRussas on the remaining claims. In its opinion granting summary judgment, the trial court found that 1) the claims were litigated by appellants against -4- Kingsmen and, as no liability was found against Kingsmen, no liability could be found against the LaRussas, and 2) even if the claims could be litigated, the damages suffered by appellants were already ascertained at trial, they received satisfaction of judgment, and appellants presented no evidence of additional damages caused by the LaRussas as individuals. I. Appellants raise sixteen assignments of error. Appellants' assignments of error VI through XIV, listed in the appendix, are claims of error concerning the litigation between appellants and Kingsmen, which has been resolved. Appellants' third and fourth assignments of error read: III. THE COVENANT NOT TO SUE DOES NOT BAR THE KASUNICS' CLAIMS AGAINST THE LaRUSSAS. IV. NEITHER THE DECISION OF THE TRIAL COURT NOR THE RESOLUTION OF THE BANKRUPTCY PROCEEDING ACT AS A BAR TO PROCEEDING AGAINST THE LaRUSSAS. As appellants entered into a covenant not to sue Kingsmen, they cannot now pursue further action against Kingsmen. See, e.g., Continental W. Condominium Unit Owners Ass'n. v. Howard E. Ferguson, Inc.(1996), 74 Ohio St.3d 501, 502, 660 N.E.2d 431, 432. ( It is axiomatic that a settlement agreement is a contract designed to terminate a claim by presenting or ending litigation and that such agreements are valid and enforceable by either party. ) (Citations omitted.) However, as appellants expressly reserved their right to proceed against the LaRussas as individuals, they are not barred from bringing an appeal as to the propriety of the trial court's grant of summary judgment. -5- Accordingly, we overrule assignments of error VI through XIV as they pertain to litigation between Kingsmen and appellants and sustain assignments of error III and IV. II. Appellants' fifth assignment of error reads: V. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR PLAINTIFF-APPELLEES. In order to address appellants' fifth assignment of error, we will separately consider the arguments made specifically as to that assignment of error as well as appellants' first, second, fifteenth and sixteenth assignments of error. A grant of summary judgment is to be reviewed de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153, 1158. A court may grant a motion for summary judgment pursuant to Civ.R. 56 when it determines that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 364 N.E.2d 267, 274. For the following reasons, we overrule appellants' fifth assignment of error. A. Appellants' second assignment of error reads: II. THE JURY VERDICT OF $12,000.00 DID NOT ESTABLISH THE EXTENT OF KASUNICS' DAMAGES FOR BREACH OF CONTRACT. -6- The trial court found that appellants did not present evidence of damages arising from the transaction between appellants, Kingsmen, and the LaRussas which were not determined at trial and reasoned that appellants received a full satisfaction of their claims arising from their dealings with Kingsmen and the LaRussas and thus could not pursue their claims further. In Seifert v. Burroughs, the Supreme Court stated: [1] The law of Ohio is well-settled that an injured party is entitled to only one satisfaction for his injuries, and that receipt of full compensation from one of several persons whose concurrent acts of negligence are the basis of a suit for damages for personal injuries releases all. * * * (Emphasis added.) Royal Indemnity Co. v. Becker (1930) 122 Ohio St. 582, 589, 173 N.E. 194, 196; see, also, id. at paragraph one of the syllabus. More particularly, we have held that in an action to recover damages * * * claimed to have been caused by * * * two defendants [where] the amount of damages sustained is determined by the jury * * *, the payment of such amount and receipt thereof by the plaintiff, releases both defendants. (Emphasis added.) Cleveland Ry. Co. v. Nickel (1929), 120 Ohio St. 133, 165 N.E. 719, at paragraph two of the syllabus. The same rule applies to the tender and acceptance of a compromise amount, which is followed by the trial court's journal entry that the judgment is satisfied. Gholson v. Savin (1941), 137 Ohio St. 551, 19 O.O. 309, 31 N.E.2d 858, 139 A.L.R. 75. Seifert v. Burroghs (1988), 38 Ohio St.3d 108, 110, 526 N.E.2d 813, 814-15. (Emphasis in original.) Once injuries are fully compensated, claims against others for those injuries are moot. Seifert, 38 Ohio St.3d at 111, 526 N.E.2d at 816. Appellants argue that the jury's verdict and settlement did not constitute the extent of their damages as they were precluded from presenting evidence of the LaRussas' individual liability at -7- trial, citing our 1992 journal entry and opinion in support of their argument. Appellants quote that entry, which states: The record demonstrates that the Kasunics' claims against John and Irene LaRussa remain pending. The Kasunics sought to impose individual liability upon the LaRussas separate from the liability imposed upon Kingsmen Enterprises, Inc. The court precluded evidence at trial as to the counterclaims against the LaRussas but did not otherwise dispose of the claims. In light of the jury's verdict against the corporation, these claims must be addressed. Furthermore, the record contains no journal entry disposing of Kasunics allegations of slander of title or negligence. Kingsmen Enterprises, Inc. v. Kasunic (Mar. 26, 1992), Cuyahoga App. No. 60197, unreported. As stated in Part I, supra, any argument as to the propriety of the trial court's bifurcation of the trial has been waived. The issue in deciding summary judgment in favor of the LaRussas is whether evidence of damages in addition to those awarded at trial exists, not whether the claims against the LaRussas remained to be litigated. At trial, the court precluded evidence against the LaRussas as pertaining to liability, not evidence pertaining to damages. Moreover, appellants have not produced evidence of additional damages beyond that submitted to the jury at trial. Accordingly, the trial court properly found that appellants' damages had been fully satisfied, regardless of individual liability on the part of the LaRussas, and summary judgment was appropriate. Appellants' second assignment of error is overruled. B. -8- Appellants argue that summary judgment in favor of the LaRussas was improper because at the time Kingsmen entered into the home improvement contract its corporate charter was canceled for failure to pay taxes and as a result the corporate actions were void and the LaRussas should have been held personally responsible. Appellants rely on this court's decision in Nabakowski v. 5400 Corporation (1986), 29 Ohio App.3d 82, 503 N.E.2d 218, which held that a corporation's officers are individually responsible for acts incurred while a corporate charter is canceled. We do not find Nabakowskirelevant in determining whether or not summary judgment was appropriate. In this case, appellants proceeded to a judgment of damages against the corporation and settled that judgment. The proper time for appellants to proceed against the LaRussas as if the corporation never existed would have been prior to trial. By not challenging Kingsmen's corporate status prior to trial, proceeding to judgment, and entering a settlement agreement, appellants have waived their claim that the corporate entity did not exist. Moreover, appellants have waived their right to assign as error the proceedings against Kingsmen. See, Part I, supra. C. Appellants' first assignment of error reads: I. THE KASUNICS' CONSTITUTIONAL RIGHTS TO DUE PROCESS AND EQUAL PROTECTION WERE VIOLATED IN THAT THEY WERE NOT GIVEN A FAIR HEARING ON THEIR CLAIMS WITHOUT UNDUE DELAY. This case has had a long and varied procedural history. However, appellants have at all times received a fair hearing in -9- court, evidenced most recently by the evidentiary hearing held by the trial court to allow appellants the opportunity to present oral testimony in addition to the other evidentiary tools authorized by Civ.R. 56 to oppose the LaRussas' motion for summary judgment. Appellants complain of the delay in this case proceeding to judgment. However, appellants have been afforded all process due them and we cannot find any constitutional violation. Moreover, as in Part II.B., supra, this argument does not address the propriety of the grant of summary judgment to the LaRussas. Appellants' first assignment of error is overruled. D. Appellants' fifteenth assignment of error reads: XV. THE TRIAL COURT ERRED IN DENYING KASUNICS' MOTION TO COMPEL DISCOVERY. Appellants argue that their 1996 motion to compel discovery in order to depose the LaRussas precluded their opportunity to discover evidence in this cause. In order to find error on the part of the trial court as to issues of discovery, we must find that the trial court abused its discretion in denying appellants' motion. Manzy v. Kelly Services, Inc. (1996), 75 Ohio St.3d 578, 591-92, 664 N.E.2d 1272, 1283. In this case, we cannot say that after numerous days of deposition and trial testimony that the court abused its discretion by denying appellants' motion. Appellants' fifteenth assignment or error is overruled. E. Appellants' sixteenth assignment of error reads: -10- XVI. WHETHER THE TRIAL COURT ERRED IN DISMISSING THE CONFLICT OF INTEREST CLAIM. Appellants argue that they suffered prejudice by the fact that the LaRussas' attorneys, Schmelzer & Associates, also represented the bankruptcy trustee in Kingsmen's bankruptcy proceedings. In Morgan v. North Coast Cable Co. (1992), 63 Ohio St.3d 156, 586 N.E.2d 88, the syllabus states: As a general rule, a stranger to an attorney-client relationship lacks standing to complain of a conflict of interest in that relationship. Although not detailing exceptions to this general rule, the court in Morgananalyzed the facts of the case to determine whether the stranger to the attorney-client relationship was prejudiced by the conflict of interest. In this case appellants do not demonstrate how they were prejudiced by the representation of the LaRussas and the bankruptcy trustee by the same law firm. Appellants' sixteenth assignment of error is overruled. Judgment affirmed. -11- 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 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. JOSEPH J. NAHRA PRESIDING JUDGE O'DONNELL, J., and KARPINSKI, J., CONCUR. 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 of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). APPENDIX Appellants assignments of error VI through XIV state: VI. THE TRIAL COURT ERRED TO DEFENDANTS-APPELLANTS' PREJUDICE IN RULING THAT THE CONSUMER SALES PRACTICES ACT WAS INAPPLICABLE TO THE CASE AND GRANTING PLAINTIFFS- APPELLEES' MOTION FOR A DIRECTED VERDICT. VII. THE TRIAL COURT'S DISMISSAL OF THE CONSUMER SALES PRACTICES ACT CLAIM WAS AGAINST THE WEIGHT OF THE EVIDENCE AND PREJUDICED THE DEFENDANTS-APPELLANTS. VIII. THE TRIAL COURT ERRED TO THE DEFENDANTS-APPELLANTS' PREJUDICE IN DISMISSING THE CLAIM FOR VIOLATIONS OF THE HOME SOLICITATION SALES ACT. IX. THE TRIAL COURT ERRED TO DEFENDANTS-APPELLANTS PREJUDICE IN DISMISSING THE CLAIM FOR FRAUD. X. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANTS-APPELLANTS IN DIRECTING A VERDICT FOR THE PLAINTIFFS-APPELLEES ON THE BREACH OF CONTRACT CLAIM. XI. THE COURT ERRED TO DEFENDANTS-APPELLANTS' PREJUDICE IN GRANTING PLAINTIFFS' MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND GRANTING PREJUDGMENT INTEREST. XII. THE TRIAL COURT PREJUDICED DEFENDANTS-APPELLANTS IN EXCLUDING TESTIMONY OF PRIOR AND SUBSEQUENT CUSTOMERS AND EMPLOYEES OF PLAINTIFFS-APPELLEES. XIII. THE TRIAL COURT ERRED IN BIFURCATING THE TRIAL AND EXCLUDING EVIDENCE OF DEFENDANTS-APPELLEES THAT WOULD HAVE PIERCED THE CORPORATE VEIL BEHIND WHICH PLAINTIFFS- APPELLEES, JOHN LaRUSSA AND IRENE LaRUSSA, WERE HIDING. XIV. THE TRIAL COURT ERRED IN NOT FINDING THE MECHANIC'S LIEN IMPOSED ON THE REAL ESTATE OF DEFENDANTS-APPELLANTS TO BE DEFECTIVE AS A RESULT OF NON-COMPLIANCE WITH THE NOTARY LAWS OF THE STATE OF OHIO AND ERRED IN NOT DISMISSING THE ACTION OF PLAINTIFFS-APPELLEES FOR NON- .