COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72787 RONALD E. HENDERSON : : Plaintiff-appellant : : : -vs- : JOURNAL ENTRY : AND RICARDO B. TEAMOR, ET AL. : OPINION : Defendants-appellees : : DATE OF ANNOUNCEMENT : MAY 28, 1998 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas Case No. CV-305056 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: Ronald E. Henderson, Esq. Betty K. Pinkney, Esq. 1015 Euclid Avenue Third Floor Cleveland, Ohio 44115 For defendants-appellees: Gregory M. Lichko, Esq. Roy J. Schechter, Esq. Teamor, Lichko and Brown 1510 Hanna Building Playhouse Square 1422 Euclid Avenue Cleveland, Ohio 44115-2001 MICHAEL J. CORRIGAN, J.: Ronald E. Henderson, plaintiff-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, General Division, Case No. CV-305056, in which the trial court adopted the -2- findings and report of an independent accountant relating to the remaining assets and liabilities of a failed joint venture between plaintiff-appellant and Ricardo B. Teamor, et al., defendants- appellees. Plaintiff-appellant assigns five errors for this court's review. Plaintiff-appellant's appeal is not well taken. On March 18, 1996, Ronald E. Henderson, plaintiff-appellant, filed a complaint in the Cuyahoga County Court of Common Pleas against Ricardo B. Teamor, defendant-appellee, and twelve other corporate entities alleging breach of contract, fraud, misrepresentation, breachof fiduciary duty, unjust enrichment and conversion arising out of a joint venture between plaintiff- appellant and defendants-appellees. Plaintiff-appellant sought injunctive relief, the imposition of a constructive trust for all remaining assets of the joint venture and an equitable accounting of all assets and liabilities pertaining to the joint venture. Plaintiff-appellant maintained that he was entitled to an undetermined percentage of certain funds remaining from the joint venture with defendants-appellees. The purpose of the joint venture was to perform legal services on behalf of the Resolution Trust Corporation. Plaintiff-appellant and Ricardo Teamor, defendant-appellee, are licensed attorneys in the State of Ohio. Plaintiff-appellant also sought the appointment of a receiver to administer the joint venture. On March 27, 1996, the trial court conducted an attorneys' conference in the underlying matter. After extensive negotiation, -3- the parties entered into an agreed order which provided in pertinent part: (1) the trial court would not appoint a receiver at this time; (2) the parties would agree upon a reputable accounting firm to perform a full accounting of the revenues and expenses of the Henderson/Teamor, Thompson & Associates joint venture; (3) if the parties were unable to agree upon an accounting firm, the trial court would make the selection; (4) upon receipt of all relevant financial information, the accounting firm would, with input from both parties, compile a report detailing the revenues and expenses of the joint venture; (5) the accounting firm will apply generally accepted accounting principles (GAAP) and will be the final arbiter of all disputes regarding accounting methodology and principles; (6) the final accounting shall be binding upon the parties; and (7) the parties will share the cost of the accounting fees equally. The agreed order was journalized by the trial court on April 4, 1996. The parties were unable to agree upon an accounting firm to perform the necessary calculation and compile the final report. Accordingly, pursuant to the agreed order, the trial court selected the accounting firm of Edward C. Hawkins and Co., Ltd. to conduct the necessary accounting.1 The trial court described the selection process in an April 23, 1997 hearing as follows: 1Coincidentally, the firm was presented and suggested to the court by plaintiff-appellant. -4- THE COURT: The case is Henderson versus Teamor. Pursuant to an agreed entry entered into by the parties with counsel, a number of things were to occur. The parties were to agree upon an accountant who would perform an accounting to determine the net profit, if any, of the joint venture representation of the resolution RTC during the time period from 1992 through the current date. An accountant was selected. (Direct quote from the trial court). The parties were unable to agree upon an accountant, so each side submitted two names, which were placed in a hat. A name was drawn, which was that of Edward Hawkins, who was one of the two names submitted by the plaintiff, Mr. Henderson. (T. 2). Subsequently,the parties submitted various financial records to the accountant necessary for compilation of the final report regarding the appropriate distribution of the remaining assets from the joint venture. On March 10, 1997, the accountant submitted a preliminary report which was distributed to both parties for additional input and review. Plaintiff-appellant objected to numerous portions of the accountant's report. Specifically, plaintiff-appellant maintained that the accountant failed to follow generally accepted accounting principles in the presentation of the initial report as expressly provided in the agreed order executed by the parties on March 27, 1996 and journalized by the trial court on April 4, 1996. Plaintiff-appellant objected to the calculations concerning overhead, expenditures, depreciation, payroll, operating expenses, employee wages and distributions to the principles. It was plaintiff-appellant's position that, not only did the accountant use flawed methodology in the preparation of the report, but the -5- initial report favored the interests of defendant-appellee Teamor to the clear detriment of plaintiff-appellant. Defendant-appellee Teamor also objected to the accountant's calculation regarding the final distribution as it included a receivable, which was apparently difficult to collect, as an asset of defendant-appellee Teamor. On April 23, 1997, the trial court conducted a hearing during which both parties were permitted to state their objections regarding the accountant's initial report on the record. Plaintiff-appellant reiterated his objection to the alleged failure of the accountant to follow generally accepted accounting principles. (T. 5). Plaintiff-appellant also objected to the accountant's stated fees in light of the fact that there was no detailed breakdown of the accountant's bill. Defendant-appellee Teamorobjected once again to the inclusion of the disputed receivable in his distribution but, otherwise had no objection to the methodology utilized in the report itself. Counsel for defendant-appellee Teamor stated: With respect to the actual accounting, we do not agree with certain things that the accountant did, but, on the other hand, I would say that he did the best I think he could do under the circumstances and that we can argue here until the cows are here whether GAP (sic) was followed here, whether there's accounting decisions he made other people might disagree with. I think the man did his job and we don't really have any objections, considering that we agreed to the procedure. (Emphasis added.) (T. 6). On April 25, 1997, the accountant submitted a revision to the trial court based upon information that was not available at the -6- time of the original accounting. Due to this supplemental information, the trial court conducted a second hearing on May 23, 1997 for the purpose of allowing the parties to state any objections on the record to the amended figures. Plaintiff-appellant objected to the amended report on the following grounds: (1) the accountant failed to conform to generally accepted accounting principles; (2) plaintiff-appellant was denied the opportunity to cross-examine the accountant with respect to his underlying analysis; (3) the amended figures did not represent a 50% distribution of net profit to each party; and (4) plaintiff-appellant was not permitted to cross- examine the accountant regarding the amended figures submitted to the trial court on April 25, 1997. (T. 7- 12). Defendant-appellee Teamor withdrew all formal objections to the accountant's report in light of the amended figures. (T. 1-2). During the May 23, 1997 hearing, the trial court made the following findings on the record: Having reviewed the accounting report and having heard the comments of the parties, the Court finds as follows: The Court, number one, has received the accounting report, as well as the amended accounting report provided by Edward C. Hawkins & Company, Ltd. And the same is in compliance with the agreed order. Number two, there exists a joint venture account at National City Bank, which is account number 371-2900 with balance of $24,535.76. Number three, that there are accounts receivable owed to the joint venture in the amount of $1,434.66. Number four, that there is due to Mr. Hawkins a sum of $11,600 for services rendered pursuant to the agreed order. -7- Number five, that Edward C. Hawkins & Company, Ltd., although not required to do so by the agreed order, has made a determination of the amounts due to each of the parties based upon reimbursements for expenses advanced and each parties' 50 percent share of the distributed share of the net profits of the joint venture. Therefore, it is hereby ordered and adjudged and decreed that the accounting report provided by Mr. Hawkins, as well as the amendment thereto is accepted and adopted by this Court in its entirety. It is further ordered that Mr. Hawkins will be paid out of the National City account the sum of $11,600 for accounting fees pursuant to the agreed order and that the plaintiff and defendant each be charged with one-half of those accounting fees in the amount of $5,800 each. It is further ordered the remaining assets of the joint venture, which totals $20,504.04 -- * * * THE COURT: The remaining assets in the joint venture, which after the payments to Mr. Hawkins would be $14,370.42, which will be distributed to the respective parties in accordance with the determinations made by Mr. Hawkins as follows: Cash due to Mr. Henderson, $4,378.78. Accounts receivable to be collected by Mr. Teamor, $1,434.66. Cash due to Mr. Teamor, $8,556.98. It is further ordered pursuant to the agreed order that this order, as well as the attached accounting report shall be binding upon all parties, that all claims brought in this action are hereby dismissed with prejudice and that the prior dismissal without prejudice is hereby converted into a dismissal with prejudice and that any and all claims which were or could have been brought in this action are hereby deemed final and fully released. (T. 4-6). On June 2, 1997, the trial court journalized its findings set forth during the May 23, 1997 hearing in a final order. On July 2, 1997, plaintiff-appellant filed a timely notice of appeal from the judgment of the trial court. Plaintiff-appellant's first assignment of error states: -8- I. THE TRIAL COURT ERRED IN MAKING ITS FINAL ORDER (1) BY ACCEPTING AND ADOPTING IN ITS ENTIRETY THE ACCOUNTING REPORT AND AMENDMENTS WITHOUT FIRST OBTAINING EVIDENCE TO DETERMINE IF THE ORDER WAS IN COMPLIANCE WITH THE PRIOR AGREED ORDER; AND (2) THE RECORD TRANSMITTED ON APPEAL DID NOT CONTAIN SUFFICIENT INFORMATION TO SUPPORT THE COURT'S ORDER. Plaintiff-appellant argues, through his first assignment of error, that the trial court abused its discretion in accepting and adopting the final report of the accountant without first determining on the record whether the report was completed in accordance with the terms of the prior agreed entry between the parties. Specifically, plaintiff-appellant maintains that, had the trial court properly reviewed the report, it would have discovered that the accountant failed to follow generally accepted accounting principles as required by the prior agreed entry. Plaintiff- appellant argues further that the trial court record does not contain sufficient evidence to support the final order of the trial court. It is well established that where an appellant challenges a trial court's judgment in a civil action as being against the weight of the evidence, the function of the appellate court is limited to an examination of the record to determine if there is any competent, credible evidence to support the underlying judgment. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 280, 376 N.E.2d 578; Seasons Coal Co. v. Cleveland (1984), 1 Ohio St.3d 77, 461 N.E. 2d 1273; Chandler and Assoc., Inc. v. America's Healthcare Alliance, Inc. (Oct. 30, 1997), Cuyahoga App. Nos. 71325, 71832, unreported. If competent, credible -9- evidence is present, a reviewing court will not reverse the trial court's judgment. Fijalkovich v. W. Bishop Co., Inc. (Sept. 18, 1997), Cuyahoga App. No. 71725, unreported. In the case sub judice, a review of the record demonstrates that the trial court did, in fact, review the accountant's report and make the determination that the report was in compliance with the dictates of the prior agreed order. The record demonstrates further that the accountant, who was randomly chosen by the trial court after his name was submitted by plaintiff-appellant, prepared an initial report which was submitted to both parties for comments and suggested changes. After receiving and reviewing input from both parties, the accountant prepared and submitted to the trial court a final report incorporating the additional information presented. Clearly, the record contains sufficient, competent, credible evidence upon which the trial court based the ultimate decision in this case. Not only did the trial court review both the initial and final reports of the accountant prior to announcing its decision but the trial court conducted two hearings at which each party was permitted to voice their specific objection to the accountant's work. In addition, the entire process by which this case was managed was the result of an agreed entry between the parties which outlined the specific procedures to be utilized by the accountant. Both parties agreed that in the event of a dispute regarding accounting methodology, the accountant himself would be the final -10- arbiter of all matters in dispute. Each party also agreed that the final accounting would be binding upon the parties. An agreed order is regarded as an act of the court. Rosebrough v. Ansley (1878), 35 Ohio St. 10, 111. In the absence of fraud, duress or undue influence, an order rendered by consent of the parties is binding and conclusive upon those parties. See C.B.H., Inc. v. Joseph Skilken & Co. (Dec. 17, 1993), Lake App. No. 93-L-038, unreported; Wells v. Spirit Fabricating Ltd. (Sept. 7, 1995), Cuyahoga App. No. 67940, unreported. In this case, there is no indication of fraud, duress or undue influence whatsoever. Accordingly, plaintiff-appellant cannot now say that the procedures to which he agreed were flawed. Terry v. Terry (1994), 99 Ohio App.3d 228, 232, 650 N.E.2d 184; Wells, supra. Plaintiff-appellant's first assignment of error is not well taken. Plaintiff-appellant's second assignment of error states: II. THE TRIAL COURT ABUSED ITS DISCRETION BY ADOPTING THE ACCOUNTING REPORTS ALLOCATION OF NET PROFITS TO THE PARTIES, WHICH WAS NOT PURSUANT TO THE TERMS OF THE AGREED ORDER, AND WHICH RESULTED IN APPELLANT RECEIVING LESS THAN 50% OF THE NET PROFITS WHICH IT HAD BEEN AGREED THE PARTIES WOULD SHARE EQUALLY. Plaintiff-appellant argues, through his second assignment of error, that the trial court improperly adopted the accounting reports final allocation of net profits. It is plaintiff- appellant's position that the adoption of the improper report resulted in a skewed allocation of net profits whereby plaintiff- appellant apparently received less than 50% of the net profits contrary to the prior agreement between the parties. Plaintiff- -11- appellant maintains that somehow, the trial court accepted the accountant's recommendation regarding the allocation of net profits by classifying the accountant as an expert. Plaintiff-appellant refers to the April 23, 1997 hearing wherein the trial court stated: Mr. Hawkins has submitted an order for reimbursement in the amount of $11,600 for his fees and Mr. Hawkins also addressed the Court by way of a letter indicating how he believed the excess amount should be appropriated, though this was not within the parameters of his instructions by way of the agreed order. However, in light of the fact that Mr. Hawkins is in a much better position to assess on the basis of the voluminous information that he reviewed with regard to this joint venture, it is the court's position that I intend to adopt the recommendation of Mr. Hawkins with regard to the ultimate disposition of the remaining cash on hand, which as of March 27th should have been $24,535.76. In this instance, a review of the record from the trial court demonstrates that the accountant in question was not identified by the trial court as an expert witness pursuant to Evid.R. 702. Through its statement, the trial court was merely explaining to the parties the reasons for relying upon the accountant's figures regarding the distribution of the joint venture's assets. The accountant was the only individual involved in this case to review all relevant information submitted by both parties. In this way, the accountant's role in this litigation was analagous to that of a special master as contemplated by Civ.R. 53 rather than that of an expert witness. This fact is further illustrated by a review of the agreed order between the parties which clearly establishes the parameters under which the accountant in this case was to proceed. In no way was the accountant's role ever contemplated to be that of -12- an expert witness nor was there any provision whereby the accountant could, at a later date, be examined as an expert witness. In actuality, plaintiff-appellant once again attempts to challenge the weight of the evidence upon which the trial court based its final decision. As this court stated in its disposition of plaintiff-appellant's first assignment of error, the record contains competent, credible evidence upon which the trial court based its ultimate decision. Seasons Coal Co., supra. Plaintiff-appellant's second assignment of error is not well taken. Plaintiff-appellant's third assignment of error states: III. THE TRIAL COURT ERRED BY FAILING TO ACT PURSUANT TO OHIO REVISED CODE SECTION 2317.36 WHICH STATES THAT AN EXPERT WITNESS SHALL OFFER TESTIMONY RELATED TO THE EXPERT REPORTS SUBMITTED AS EVIDENCE. Plaintiff-appellant's fourth assignment of error states: IV. THE TRIAL COURT ERRED BY NOT REQUIRING THE EXPERT ACCOUNTANT TO TESTIFY AND BE SUBJECT TO CROSS-EXAMINATION REGARDING HIS ACCOUNTING REPORT, THUS APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF DUE PROCESS, GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS OF THE CONSTITUTION OF THE UNITED STATES AND HIS RIGHTS GUARANTEED BY THE OHIO CONSTITUTION. Having a common basis in both law and fact, this court shall consider plaintiff-appellant's third and fourth assignments of error simultaneously. Plaintiff-appellant maintains, through his third and fourth assignments of error, that the trial court erred by not allowing direct and cross-examination of the accountant regarding the final accounting prepared in accordance with the agreed order. It is plaintiff-appellant's position that the accountant was acting as an -13- expert witness in this case and should therefore have been subject to direct and cross-examination as to the methodology used in the preparation of the report and the basis upon which the accountant reached his overall financial conclusion regarding the ultimate disbursement of the remaining assets of the joint venture. Plaintiff-appellant argues that, since he was not afforded the opportunity to examine the account, he was denied his constitutional right to due process as guaranteed by the United States and Ohio Constitutions. R.C. 2317.36, upon which plaintiff-appellant relies, states: A written report or finding of facts prepared by an expert who is not a party to the cause, nor an employee of a party, except for the purpose of making such report or finding, nor financially interested in the result of the controversy, and containing the conclusions resulting wholly or partly from written information furnished by he co-operation of several persons acting for a common purpose, shall, in so far as the same is relevant, be admissible when testified to by the person, or one of the persons making such report or finding without calling as witnesses the persons furnishing the information, and without producing the books or other writings on which the report for finding is based, if, in the opinion of the court, no substantial injustice will be done the opposite party. However, a review of the record demonstrates that R.C. 2317.36 has no application to the underlying case. As this court previously stated in its disposition of plaintiff-appellant's second assigned error, the agreed order does not, in any way, designate the accountant to be chosen to perform the work as an expert witness nor does the order provide for direct or cross-examination of the accountant. In fact, the order provides in pertinent part: 4. Each party may, directly or indirectly through their respective accountant, communicate to the accounting firm -14- their views and opinions regarding the methodology and principles to be utilized in performing the accounting. In the event of a conflict between the parties on such methodology and principles, which it is anticipated will occur, the accounting firm shall be the final arbiter of the matters in dispute. In performing the accounting and in particular in resolving disputed matters, it shall apply generally accepted accounting principles. 5. The accounting shall be prepared as expeditiously as possible, and a copy of the report provided to both Henderson and Teamor. Further, either Henderson or Teamor may request of the accounting firm copies of any documents or records provided by the other, and the accounting firm shall promptly provide same. The accounting shall be binding on the parties. Clearly, the intention of the parties as expressed in the agreed order was that the accountant would be the final word regarding all disputes arising out of the accounting report and that the final report shall be binding on the parties. The fact that plaintiff-appellant was in disagreement with the ultimate disbursement of assets by the accountant does not invalidate the report or allow plaintiff-appellant to randomly demand an additional condition not included in the agreed order such as an examination of the accountant. Had this case proceeded to trial on the merits, plaintiff- appellant would theoretically have been permitted to elicit testimony regarding the accountant's compilation of the final accounting since at that point, such information would have been arguably necessary to assist the trier of fact in reaching a final determination. See generally, State v. Jones (1984), 9 Ohio St.3d 129, 459 N.E.2d 525. However, since plaintiff-appellant waived his right to trial by entering into the agreed order as the means of disposing of the case, plaintiff-appellant cannot now claim that he -15- was denied his right to due process by not being permitted to cross- examine the account. Doan v. Doan (Oct. 2, 1997), Hamilton App. No. C-960932, unreported, citing Popovic v. Popovic (1975), 45 Ohio App.2d 57, 347 N.E.2d 341. Accordingly, plaintiff-appellant's third and fourth assignments of error are not well taken. Plaintiff-appellant's fifth and final assignment of error states: THE TRIAL COURT ERRED BY ORDERING THE PARTIES TO PAY THE EXPERT AN ACCOUNTING FEE WITHOUT REQUIRING THE ACCOUNTANT TO APPEAR TO TESTIFY TO DESCRIBE THE SERVICES PROVIDED AND ANSWER QUESTIONS OF APPELLANT RELATED TO SERVICES PROVIDED AND METHODS USED TO ARRIVE AT CONCLUSIONS REACHED IN THE REPORT, AND TO JUSTIFY THE TIME CHARGES. Plaintiff-appellant argues that the trial court erred in failing to require the accountant to appear in court to justify the bill for services rendered.2 Specifically, plaintiff-appellant maintains that the trial court should have conducted a hearing to determine if the accountant's fees were necessary and reasonable, In the case sub judice, a review of the agreed order clearly demonstrates thatplaintiff-appellant and defendant-appellee Teamor agreed that fees of the accounting firm shall be borne equally by Ronald E. Henderson and Ricardo B. Teamor. In ordering said fees paid, the trial court was merely acting in compliance with the prior agreed order between the parties. More importantly, the record 2Plaintiff-appellant's final assignment of error raises issues previously determined by this court in its disposition of plaintiff-appellant's third and fourth assignments of error. Therefore, this court will only address the remaining issue relating to the accountant's fees. -16- contains ample evidence demonstrating that the trial court's award of fees for the accounting report was proper. Accordingly, this court finds that the trial court's award of accounting fees did not constitute an abuse of discretion under the difficult and unusual circumstances of this action. See generally, Tracy v. Merrill-Dow Pharmaceuticals, Inc. (1991), 58 Ohio St.3d 147, 569 N.E.2d 875. Plaintiff-appellant's fifth and final assignment of error is not well taken. Judgment of the trial court is affirmed. -17- It is ordered that appellees recover of appellant 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 Cuyahoga County 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. TERRENCE O'DONNELL, P.J., AND KENNETH A. ROCCO, J., CONCUR JUDGE MICHAEL J. CORRIGAN 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 .