Wilken v. Wachovia Bank of Delaware, N.A.

[Cite as Wilken v. Wachovia Bank of Delaware, N.A., 2014-Ohio-2840.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
HURON COUNTY

John Wilken and Andrea Wilken, Court of Appeals No. H-13-020
as class representatives
Trial Court No. CVE-2002-4321
Appellees

v.

Wachovia Bank of Delaware, N.A. DECISION AND JUDGMENT

Appellant Decided: June 27, 2014

*****

John T. Murray, Leslie O. Murray, Michael J. Stewart, James J.
Martin and Robert W. Gentzel, for appellees.

James S. Wertheim, Kimberly Y. Smith Rivera and Russell J.
Pope, for appellant.

*****

YARBROUGH, P.J.

I. Introduction

{¶ 1} Defendant-appellant, Wachovia Bank of Delaware, N.A. (“Wachovia”),

appeals the judgment of the Huron County Court of Common Pleas, which followed our
affirmance of the trial court’s judgments approving a class action settlement and

awarding attorney fees. We reverse.

A. Facts and Procedural Background

{¶ 2} This is the third appeal in this class action litigation. In the first appeal, we

affirmed the trial court’s certification of the class. Wachovia Natl. Bank of Delaware, NA

v. Ball, 6th Dist. Huron No. H-08-022, 2010-Ohio-1479. In the second appeal, we

affirmed the trial court’s judgments that approved the class action settlement agreement

and awarded attorney fees. Wilken v. Wachovia Bank of Delaware, N.A., 6th Dist. Huron

No. H-12-006, 2013-Ohio-2132. In the present appeal, Wachovia challenges the trial

court’s “Post-Affirmance Opinion and Order,” which ordered Wachovia to pay an

additional approximately $1.2 million, and which determined that postjudgment statutory

interest began to accrue on January 31, 2012, when the trial court entered its judgment

approving the class action settlement.

{¶ 3} The relevant facts predate our decision in the second appeal.1 After

extensive litigation and negotiations, the parties in this class action lawsuit reached a

settlement agreement. As part of the agreement, Wachovia agreed to pay class members

a defined amount if they filed a qualifying claim. The specific terms of the settlement

agreement are not relevant to the present appeal, except as they pertain to the payment of

attorney fees. Under the agreement, class counsel was to request attorney fees totaling

1
A more complete recitation of facts can be found in our decision in Wilken v. Wachovia
Bank of Delaware, N.A., 6th Dist. Huron No. H-12-006, 2013-Ohio-2132.

2.
one-third of the value of the settlement, which the parties estimated to be $5.6 million.

Notice was sent to the class members that they would not be required to pay the attorney

fee directly, but rather the resulting $1.85 million attorney fee would be deducted

proportionately from the net disbursement each class member received.

{¶ 4} As discussions regarding the acceptability of the settlement agreement

continued in the trial court, it became clear that the response rate was not as high as

desired, and that an amount significantly less than $5.6 million would be disbursed to

class members. Nevertheless, on October 6, 2011, the parties jointly moved for approval

of the settlement agreement. In addition, on that date, class counsel and Wachovia jointly

submitted a letter in an effort to resolve a perceived ambiguity in the settlement

agreement as to how the attorney fee would be deducted from the disbursements to class

members. Because the response was lower than expected, class counsel and Wachovia

assured the court that no more than one-third of each disbursement would be deducted to

pay the requested $1.85 million attorney fee. Rather, Wachovia agreed to supplement the

fee award such that it would pay to class counsel directly any difference between the

$1.85 million requested fee and the amount deducted from the class members’

disbursements.

{¶ 5} The settlement hearing continued on January 5, 2012, after another round of

notices to class members directed at increasing the participation rate. Notably, this round

of notices did not contain any clarification regarding attorney fees or Wachovia’s

agreement to supplement the fee award. At the end of the January 5, 2012 hearing, the

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trial court expressed its concerns with the settlement agreement, particularly the attorney

fees. The court was satisfied with class counsel receiving one-third of the disbursed

awards, which at that time were estimated to be only $3 million. Where the court had

trouble, though, was the supplemental payment from Wachovia. The court wondered, if

Wachovia was willing to pay that additional amount, why should it not pay the money to

the class members.

{¶ 6} Following a short recess, the court proposed a compromise:

[The court would be] willing to approve the settlement as described,

with the provision for the supplementation of payment to plaintiff’s counsel

that has been agreed upon in [the October 6, 2011] letter, provided that

claimants’ counsel will issue a supplemental payment to the [sub-]class A

and B claimants of two-thirds of the supplement that they receive. They

could retain one-third of the underlying amounts in that fashion.

The parties were granted time to examine the proposal, and the settlement hearing was

continued until January 31, 2012. On January 23, 2012, class counsel and Wachovia

jointly submitted a letter that rejected the trial court’s suggested compromise. In the

letter, class counsel and Wachovia reasoned that the compromise deviated from the terms

in the notice sent to class members, and would raise due process concerns with regard to

the sufficiency of the notice. In addition, class counsel and Wachovia argued that setting

the amount of attorney fees based on the actual disbursement to the class members failed

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to account for the total benefit conferred on the class. Further, they stated that it is more

common for attorney fees to be determined based on the total amount of the fund.

{¶ 7} On January 31, 2012, the settlement hearing continued. At that time, the

response period for class members had officially concluded, and the amount due to be

disbursed totaled only $1.8 million. Following the hearing, the trial court entered its final

judgment on January 31, 2012, approving the settlement agreement. Contemporaneously,

the trial court entered a second judgment, which incorporated and amended the first, and

which determined attorney fees and expenses. In that second judgment, the court rejected

the special arrangement between class counsel and Wachovia because

(a) the Settlement Agreement did not report or approve it; (b) the court

approved Notice of Pending Class Action Settlement did not report it;

(c) the court has no reason to believe that the Class Members have been

made aware of it; (d) that relatively large payment by the adverse party may

affect or have the appearance of affecting Class Counsel’s independent

judgment on behalf of the Class Members; (e) the Class Members have not

approved that payment; and (f) the total fees would then exceed 60% of the

total funds paid for this settlement.

The trial court then awarded fees of one-third of each payment for any class member’s

claim as fair and reasonable compensation. The court reasoned that the resulting

payment exceeds the time charges that class counsel reasonably expended on behalf of

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the class members, and is consistent with the written contingent fee arrangement to

accept one-third of all funds received as full payment for their services.

{¶ 8} The class members, on behalf of class counsel, appealed the trial court’s

judgments, arguing that the court erred when it awarded only one-third of the actual

disbursements as attorney fees. At the outset, Wachovia moved to dismiss the appeal as

it pertained to the trial court’s first judgment—which approved the terms of the

settlement agreement—so that it could distribute the funds to the class members.

However, we denied Wachovia’s motion, because the trial court’s second judgment

amended and incorporated the first judgment, and thus the two were inseparable.

Thereafter, we affirmed the trial court’s judgments in Wilken v. Wachovia Bank of

Delaware, N.A., 6th Dist. Huron No. H-12-006, 2013-Ohio-2132.

{¶ 9} After our decision was entered, the trial court ordered a hearing on four

issues, two of which are relevant to the present appeal: “(a) whether the supplemental

payment [of class counsel’s attorney fees] remains available on suitable terms, [and] (b)

whether statutory interest ran on the judgment order.” The parties filed briefs prior to this

“post-affirmance hearing.”

{¶ 10} In their brief in response to the first issue, the class members took the

position that the settlement agreement provided for a sum-certain to be distributed to

them, and that any additional payment would require modification of the settlement

agreement. They concluded that it would be in the best interests of the class to “move to

disbursement as quickly as possible in accordance with the Court-approved Settlement

6.
Agreement.” Similarly, Wachovia argued that any additional payment would change the

settlement agreement, and would require the parties to begin anew with notices to all

prospective class members. Moreover, Wachovia contended that the affirmance on

appeal of the trial court’s judgments approving the settlement agreement and establishing

attorney fees had concluded the matter. Thus, Wachovia believed that all that remained

was to distribute the payments in accordance with the approved settlement agreement.

{¶ 11} At the “post-affirmance” hearing, however, the trial court resurrected its

earlier proposal of allowing the supplemental payment of attorney fees from Wachovia,

on the condition that class counsel share two-thirds of that payment with the claiming

class members. The court asked class counsel if, under these circumstances, counsel

would like to reconsider whether it would like to seek approval of the supplemental fee

agreement. Without hesitation, class counsel expressed its desire to “do anything to

deliver more money to the class.” Nevertheless, class counsel did raise the issue of due

process with regard to those class members who did not opt out, but who also did not

submit a claim form. Wachovia, for its part, agreed with the due process concerns, and

objected to any implementation of the supplemental payment. The trial court took the

matter under advisement, and the conversation then turned to the issue of statutory

interest on the judgment.

{¶ 12} Regarding the statutory interest issue, the class members had argued in

their brief that since Wachovia had control of all of the funds during the appeal,

postjudgment interest is due beginning from January 31, 2012, when the trial court

7.
entered its judgment approving the settlement agreement. Wachovia, on the other hand,

argued that the disbursements did not become due and payable pursuant to the settlement

agreement until the appellate process had been exhausted. Thus, because R.C. 1343.03

does not provide for interest until the money becomes due and payable, Wachovia

concluded that it only owes interest beginning from when the time for appeal from our

second decision had expired.

{¶ 13} Following the hearing on these issues, the trial court entered its “post-

affirmance” judgment. Pertaining to the supplemental fee payment, the trial court found

that Wachovia was seeking to avoid its contractual obligation to make the supplemental

payment by arguing that our decision in the second appeal “somehow settled this issue.”

The court disagreed, and stated, “[T]he appeal merely confirmed this Court’s authority to

decline approval for that supplemental payment when Class Counsel were unwilling to

share it with their clients. Nothing in the appellate opinion denies this Court’s authority

to approve that payment on more appropriate terms.” The court continued by noting that

Wachovia originally approved an estimated payment of $5.6 million, which greatly

exceeds the $3.1 million total it would have to pay if the supplemental fee payment is

approved. If the supplemental payment is not approved, Wachovia would enjoy a $1.2

million windfall. Therefore, the trial court ordered Wachovia to pay the $1.2 million

8.
supplemental fee payment to class counsel, who would then be responsible for disbursing

the money to the claiming class members.2

{¶ 14} Concerning the issue of statutory interest on the judgment, the trial court

recognized paragraph 22 of the settlement agreement, which states that once the

agreement becomes final, monetary awards will then be issued, and paragraph 45, which

provides:

This Agreement shall become final when (i) the Court has entered a

final order approving this Agreement under Civil Rule 23 and dismissing

the action against Wachovia on the merits with prejudice as to all Class

Members, and (ii) the time for appeal or to seek permission to appeal from

the Court’s approval of this Agreement and entry of an Order of Final

Judgment has expired without appeal. In the event of an appeal, this

Agreement shall become final when the approval of this Agreement and the

Order of Final Judgment have been affirmed in their entirety by the Court

of last resort to which such appeal has been taken and such affirmance is no

longer subject to further appeal or review.

However, the court found that neither party challenged the settlement agreement on

appeal, only the attorney fee judgment, and that nothing in those paragraphs permitted

Wachovia to withhold payments when the settlement agreement was not challenged.

2
The trial court also found that no due process concerns would exist regarding the
sufficiency of the notice to the non-claiming class members.

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Furthermore, the court found that “This Court’s Orders expressly amended the Settlement

Agreement and unequivocally superseded any contrary language in that Agreement when

it ruled that the settlement was ‘Final’ on January 31, 2012. Without any appeal from

those orders, they are the law of this case.” Therefore, the trial court ordered Wachovia

to pay the settlement amounts to the claiming class members with statutory interest from

January 31, 2012.

B. Assignments of Error

{¶ 15} Wachovia has timely appealed the trial court’s “post-affirmance” judgment,

raising two assignments of error for our review:3

1. The trial court erred in reopening and modifying its prior final

ruling on attorneys’ fees after that ruling had been affirmed by this Court

on appeal.

2. The trial court erred in ruling that post-judgment interest runs

from January 31, 2012.

II. Analysis

A. Supplemental Fee Payment

{¶ 16} In its first assignment of error, Wachovia presents three arguments why the

trial court’s decision to require Wachovia to pay an additional $1.2 million must be

reversed. First, it contends that the trial court did not have jurisdiction to reconsider and

3
As has been common practice by the parties throughout this lengthy litigation,
Wachovia has also filed an action for a writ of prohibition against the trial court judge in
case No. H-13-023.

10.
reverse its prior ruling on the supplemental fee issue. Second, Wachovia argues that the

trial court’s actions are barred by the law of the case doctrine. Finally, Wachovia asserts

that the trial court has effectively and impermissibly rewritten the parties’ settlement

agreement. Because we find Wachovia’s second argument sufficient to dispose of this

matter, we need not address the other two.

{¶ 17} The law of the case doctrine “provides that the decision of a reviewing

court in a case remains the law of that case on the legal questions involved for all

subsequent proceedings in the case at both the trial and reviewing levels.” Nolan v.

Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984). “The doctrine is considered to be a

rule of practice rather than a binding rule of substantive law and will not be applied so as

to achieve unjust results.” Id. “However, the rule is necessary to ensure consistency of

results in a case, to avoid endless litigation by settling the issues, and to preserve the

structure of superior and inferior courts as designed by the Ohio Constitution.” Id.

“Absent extraordinary circumstances, such as an intervening decision by the Supreme

Court, an inferior court has no discretion to disregard the mandate of a superior court in a

prior appeal in the same case.” Id. at syllabus.

{¶ 18} In Hawley v. Ritley, 35 Ohio St.3d 157, 519 N.E.2d 390 (1988), the Ohio

Supreme Court relied on the law of the case doctrine to prevent the trial court from

considering claims whose denial had been affirmed on appeal. In that case, Hawley

brought an action to rescind the sale of property based on mutual mistake. Id. at 157.

Ritley responded with several counterclaims and cross-claims, including a counterclaim

11.
for breach of contract. After a trial, the trial court ordered a rescission of the purchase

agreement, and then “merged” all of Ritley’s counterclaims and cross-claims into its final

order in favor of Hawley. Ritley appealed, and in his sixth assignment of error, he

alleged that the trial court committed reversible error when it merged his counterclaims

and cross-claims into the order. The court of appeals reversed the trial court’s rescission

of the purchase agreement, and ordered judgment to be entered in Ritley’s favor. Id. at

157-158. However, the court of appeals, relying on App.R. 12(A),4 found Ritley’s sixth

assignment of error not well-taken because Ritley failed to brief that assignment. Id. at

158. Ritley then moved the court of appeals to reconsider its determination of his sixth

assignment of error, which the court denied. No further appeal from the court of appeals’

decision was taken. Thereafter, the matter was remanded to the trial court. Id.

{¶ 19} On remand and entry of judgment in his favor, Ritley moved for leave to

file supplemental counterclaims, including a counterclaim for breach of contract. Over

Hawley’s objection, the trial court permitted the supplemental counterclaims, and Ritley

eventually received a jury award on his breach of contract counterclaim. Hawley

subsequently appealed, and the court of appeals reversed the judgment on the jury

verdict. The court of appeals reasoned that the trial court exceeded the scope of its

remand by entertaining the supplemental counterclaims. The court stated that it had

4
“The court may disregard an assignment of error presented for review if the party
raising it fails to identify in the record the error on which the assignment of error is based
or fails to argue the assignment separately in the brief, as required under App.R. 16(A).”
App.R. 12(A)(2).

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considered all of the issues raised by the parties in the first appeal, and found that its

disposition of those issues constituted the “law of the case.” Therefore, the court

concluded that it was error for the trial court to consider the counterclaims that had been,

in its opinion, disposed of in the first trial and upon appellate review. Id.

{¶ 20} On appeal, the Ohio Supreme Court affirmed. The court reasoned, in part,

that even assuming the court of appeals abused its discretion when it disposed of Ritley’s

sixth assignment of error, because Ritley did not appeal from that decision, it became the

law of the case, and he must endure the consequences of that decision. Id. at 159-160.

Therefore, the Ohio Supreme Court held that the trial court exceeded the scope of its

remand from the court of appeals when it allowed Ritley to pursue his breach of contract

claim, which was clearly the subject of his sixth assignment of error. Id. at 161.

{¶ 21} Likewise, in Shaver v. Std. Oil Co., 135 Ohio App.3d 242, 733 N.E.2d 645

(6th Dist.1999), we held that the law of the case doctrine prevented the trial court from

approving class certification on Shaver’s claim for breach of fiduciary duty. In that case,

the trial court initially denied class certification, finding that the question of whether a

fiduciary relationship existed will vary with respect to each proposed member of the

class. Id. at 245. On appeal, we affirmed the trial court’s judgment on this issue pursuant

to Civ.R. 23(B)(3) since individual questions were more predominant than common

questions. However, we held that the trial court abused its discretion in failing to certify

a class as to two other claims. Thus, we remanded the matter for further proceedings on

those two other claims. Id. at 246.

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 {¶ 22} While the case was pending before the trial court on remand, Shaver moved

the trial court to reconsider its denial of class certification on the fiduciary duty claim in

light of a recently decided Ohio Supreme Court decision, which he argued was in direct

conflict with our decision on appeal. The trial court agreed, and granted class

certification. Id. at 247. We reversed. We reasoned that the law of the case doctrine was

applicable because the intervening Ohio Supreme Court decision was not in conflict with

our earlier decision. Therefore, we held that the trial court was bound to follow our

earlier mandate, and “could not consider, much less grant, class certification of Shaver’s

breach-of-fiduciary-duty claim.” Id. at 249.

{¶ 23} Here, we are presented with an analogous situation. In its January 31, 2012

judgments, the trial court approved the settlement agreement that established a definite

amount to be paid to each claiming class member, and awarded one-third of the payments

as attorney fees. We affirmed the trial court’s judgments on appeal. No applications for

reconsideration were made, and no appeal was taken to the Ohio Supreme Court. Thus,

our mandate affirming the amount of attorney fees became the law of the case. As such,

in the absence of any extraordinary circumstances, the trial court could not consider,

much less grant, the class members’ request for an additional payment from Wachovia.

{¶ 24} Although they do not attempt to argue any extraordinary circumstances that

would allow the trial court to disregard our mandate, the class members do argue that the

trial court’s actions are entirely consistent with our decision affirming the January 31,

2012 judgments. Like the trial court, they contend that the October 6, 2011 letter is an

14.
enforceable contract. They note that we affirmed the trial court’s initial rejection of this

contract because it did not benefit the class. However, since the trial court has ordered

the supplemental payment to be shared with class members, they state that the agreement

now does benefit the class, which is consistent with our decision. We find two flaws in

the class members’ reasoning.

{¶ 25} First, in reaching the conclusion that the October 6, 2011 letter is an

enforceable contract, they rely on a purported acknowledgment of such by Wachovia’s

counsel and on a line from our decision in the second appeal. However, neither of those

supports their conclusion. As to the former, Wachovia’s counsel stated at the post-

affirmance hearing with regard to the obligation to pay the supplemental fee, “We believe

there is a contractual agreement to do so if this Court had approved it.” (Emphasis

added.) As to the latter, our decision stated that the October 6, 2011 letter was not an

agreement between the parties because the class members were never notified of it, but

“[a]t best, it was an agreement between class counsel and Wachovia.” Wilken, 6th Dist.

No. H-12-006, 2013-Ohio-2132 at ¶ 22. This statement cannot reasonably be relied upon

as definitive proof that a contract existed. Thus, the class members’ conclusion that the

October 6, 2011 letter is an enforceable contract is unfounded.5

{¶ 26} The second flaw in the class members’ reasoning is their characterization

of our mandate as directing the trial court to benefit the class. We agree that the class

5
Furthermore, we mention only in passing the potential ethical issues that would arise
where counsel, without informing his or her client, enters into an agreement whereby the
opposing party would pay the counsel directly in exchange for settling the litigation.

15.
members should be benefitted by the settlement. However, the initial matter before the

trial court was to approve the settlement agreement as fair, just, and reasonable, and to

determine a fair and reasonable amount of attorney fees. The trial court accomplished

this in its January 31, 2012 judgments. Our mandate in affirming the trial court was to

maintain those judgments in effect. By ordering Wachovia to make an additional

payment, the trial court acted contrary to our mandate, and essentially reconsidered its

own earlier decision that the settlement and attorney fee amounts were fair and

reasonable. In so doing, the court violated both the law of the case doctrine and the well-

settled rule that “[O]nce a final judgment is entered, it cannot be reconsidered by the trial

court.” Phillips v. Mufleh, 95 Ohio App.3d 289, 293, 642 N.E.2d 411 (6th Dist.1994).

{¶ 27} Accordingly, we hold that the trial court erred when it ordered Wachovia to

make the supplemental payment in its post-affirmance judgment. Wachovia’s first

assignment of error is well-taken.

B. Postjudgment Interest

{¶ 28} In its second assignment of error, Wachovia challenges the trial court’s

determination that statutory interest began to run on January 31, 2012, when the

judgment approving the settlement agreement was entered. Statutory interest on a

settlement is provided for in R.C. 1343.03(A), which states:

[W]hen money becomes due and payable upon any bond, bill, note,

or other instrument of writing, upon any book account, upon any settlement

between parties, upon all verbal contracts entered into, and upon all

16.
 judgments, decrees, and orders of any judicial tribunal for the payment of

money arising out of tortious conduct or a contract or other transaction, the

creditor is entitled to interest at the rate per annum determined pursuant to

section 5703.47 of the Revised Code, unless a written contract provides a

different rate of interest in relation to the money that becomes due and

payable, in which case the creditor is entitled to interest at that rate

provided in the contract.

{¶ 29} Wachovia argues that disbursements under the settlement agreement did

not become due and payable until the agreement became final, which the agreement

defined as “when the approval of this Agreement and the Order of Final Judgment have

been affirmed in their entirety by the Court of last resort to which such appeal has been

taken and such affirmance is no longer subject to further appeal or review.” Furthermore,

Wachovia argues that the trial court had no authority to amend the settlement agreement

in its second January 31, 2012 judgment to make the agreement final on that date. See

Evans v. Jeff D., 475 U.S. 717, 726, 106 S.Ct. 1531, 89 L.Ed.2d 747 (1986) (“Rule 23(e)

wisely requires court approval of the terms of any settlement of a class action, but the

power to approve or reject a settlement negotiated by the parties before trial does not

authorize the court to require the parties to accept a settlement to which they have not

agreed.”). Thus, Wachovia concludes that it only owes statutory interest from July 7,

2013, at which time no further appeal of our decision affirming the trial court’s

January 31, 2012 entries could have been taken.

17.
 {¶ 30} The class members, on the other hand, argue that postjudgment interest is

automatic and accumulates during the pendency of an appeal. They also argue that

nothing in the settlement agreement relieves Wachovia from its statutory responsibility to

pay postjudgment interest. Finally, the class members argue that R.C. 1343.03(A)

applies to parties to a settlement agreement that has not been reduced to judgment. In

contrast, postjudgment interest on a judgment runs from the date the judgment was

entered. Allen v. McElrath, 11th Dist. Trumbull No. 2009-T-0001, 2009-Ohio-5422,

¶ 21.

{¶ 31} We agree with Wachovia that the trial court erred in awarding statutory

interest beginning January 31, 2012. Pertinent to this issue, the Ohio Supreme Court has

held that under R.C. 1343.03(A), “The date of a written settlement agreement becomes

the date from which postsettlement interest accrues, unless the parties to such a

settlement agreement negotiate a different due and payable date and incorporate that

into the written settlement agreement.” (Emphasis added.) Bellman v. Am. Intl. Group,

113 Ohio St.3d 323, 2007-Ohio-2071, 865 N.E.2d 853, ¶ 14. Here, although the parties

did not specifically mention postjudgment interest in their settlement agreement as noted

by the class members, the parties did negotiate that the disbursements would not be made

until the appellate process had been exhausted. Thus, the disbursements were not due

and payable until July 7, 2013, which is 45 days after we entered our decision in Wilken

v. Wachovia, 6th Dist. No. H-12-006, 2013-Ohio-2132. See S.Ct.Prac.R.

7.01(A)(1)(a)(i). Further, because statutory interest did not begin to accrue until after the

18.
appellate process had been exhausted, the class members’ citation to the rule that

postjudgment interest continues to accumulate during the pendency of an appeal is

inapplicable. In addition, the class members’ reliance on Allen v. McElrath for the

proposition that postjudgment interest runs from the date of the judgment is misplaced.

In Allen v. McElrath, statutory interest was awarded on a judgment following a bench

trial. Allen v. McElrath, 11th Dist. Trumbull No. 2009-T-0001, 2009-Ohio-5422, ¶ 3-12.

In contrast, the rule in Bellman v. Am. Intl. Group, supra, was announced in the context

of a lawsuit that was dismissed pursuant to a settlement agreement, as was done in this

case. Therefore, we adhere to the rule in Bellman v. Am. Intl. Group, and hold that

statutory interest begins to accrue on the date that the disbursements become due and

payable, which the parties have negotiated to be upon the exhaustion of the appellate

process regarding the judgment affirming the settlement agreement.

{¶ 32} Accordingly, Wachovia’s second assignment of error is well-taken.

III. Conclusion

{¶ 33} For the foregoing reasons, the judgment of the Huron County Court of

Common Pleas is reversed. The portion of the judgment ordering Wachovia to make the

supplemental payment in accordance with the October 6, 2011 letter is reversed and

vacated. The portion of the judgment ordering Wachovia to pay statutory interest is

modified to reflect that the interest began to accrue as of July 7, 2013. The cause is

19.
remanded for further proceedings consistent with this decision, in particular for the long

anticipated disbursement of the settlement amount to the class members if it has not

already been made. The class members are ordered to pay the costs of this appeal

pursuant to App.R. 24.

Judgment reversed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Stephen A. Yarbrough, P.J. JUDGE
CONCUR.
_______________________________
JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.

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