[Cite as Morgan v. Price, 2013-Ohio-3667.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
PATRICIA MORGAN, : OPINION
Plaintiff-Appellant, :
CASE NO. 2013-G-3127
- vs - :
WILLIAM J. PRICE, et al., :
Defendants-Appellees. :
Civil Appeal from the Geauga County Court of Common Pleas, Case No. 06P000921.
Judgment: Affirmed.
James M. Johnson, 110 Hoyt Block Building, 700 W. St. Clair Avenue, Cleveland, OH
44113-1287 (For Plaintiff-Appellant).
Gregory E. O’Brien, Cavitch, Familo & Durkin Co., L.P.A., 1300 East Ninth Street, 20th
Floor, Cleveland, OH 44114 (For Defendant-Appellee, William J. Price).
David W. Jevnikar, Newman, Leary and Brice, 214 East Park Street, Chardon, OH
44024 (For Defendant-Appellee, The Estate of Raymond E. Long).
THOMAS R. WRIGHT, J.
{¶1} This accelerated-calendar appeal is from a final judgment of the Geauga
County Court of Common Pleas. Appellant, Patricia Morgan, seeks reversal of the trial
court’s determination overruling her motion to enforce a settlement agreement that she
allegedly reached with the insurer of appellee, William J. Price. Essentially, she asserts
that the trial court erred in holding that it did not have the authority to address the merits
of the motion to enforce.
{¶2} On August 13, 2006, appellant was a passenger on a motorcycle driven
by Raymond Long. As the motorcycle was proceeding north on Ravenna Road in
Chardon, Ohio, a motor vehicle operated by appellee crossed the road’s centerline and
hit the motorcycle head-on. Although appellant sustained a number of serious injuries,
including two broken legs and two crushed vertebrae, Long died as a result of his
injuries.
{¶3} The cause of the accident was attributable solely to appellee’s negligence.
At the time of the accident, appellee was covered under a motor vehicle insurance
policy which he had personally purchased from Nationwide Mutual Insurance Company.
He was also covered under an insurance policy issued by his employer, AIG Insurance
Company.
{¶4} Within 40 days of the accident, appellant instituted a negligence action
against appellee and Long’s estate in the Geauga County trial court. Before appellee
could answer the complaint, appellant entered into settlement negotiations with AIG and
Nationwide. The separate negotiations with AIG resulted in a written settlement, under
which appellant agreed to accept a sum of $900,000 in return for executing a release of
all claims against appellee. In regard to the release, the “AIG” settlement had a specific
provision defining the nature of all “claims” appellant was waiving as a consequence of
accepting the payment. This type of provision was also set forth in the separate written
settlement agreement that Long’s estate executed with AIG.
{¶5} According to appellant, her trial attorneys were also able to reach an oral
settlement with appellee’s personal carrier, Nationwide. Supposedly, an agent agreed
on behalf of Nationwide to pay the sum of $300,000, the policy’s limit for multiple claims.
Of that amount, appellant allegedly would receive $150,000, and the remainder would
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be awarded to Long’s estate.
{¶6} On November 20, 2006, appellant filed a notice of voluntary dismissal of
the entire case, pursuant to Civ.R. 41(A). The notice did not indicate the reason for the
dismissal, nor was any reference made to the alleged oral settlement with Nationwide.
Ten days later, the trial court executed an order which basically approved the voluntary
dismissal. The order consisted of a one-line statement stamped on the first page of the
41(A) notice, and also did not have any reference to the “Nationwide” settlement or the
“AIG” settlement.
{¶7} No new proceedings were held in the Geauga County action over the next
five years. In August 2008, appellant and Long’s estate initiated a separate case solely
against Nationwide in the Lorain County Court of Common Pleas. Under the first claim
of their amended complaint, they asserted that Nationwide had failed to comply with the
terms of the purported oral settlement by refusing to pay the $300,000. After the Lorain
County action remained pending for over three years, Nationwide moved for summary
judgment on the entire amended complaint, primarily arguing that any claim of appellant
and the estate arising from the 2006 accident was barred under the release provisions
in the “AIG” settlement agreements. In its final judgment of April 27, 2012, the Lorain
County trial court found the release provisions binding and, therefore, ruled against the
estate and appellant on all of their pending claims against Nationwide.
{¶8} Five months after the conclusion of the Lorain County case, appellant filed
her motion before the Geauga County trial court to enforce the alleged oral settlement
with Nationwide. She maintained that, since Nationwide refused to admit the existence
of the oral settlement, an evidentiary hearing was needed to decide the factual dispute.
{¶9} After Nationwide submitted a written response to the motion, the trial court
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conducted an abbreviated evidentiary hearing. In trying to demonstrate that a separate
oral settlement was reached with Nationwide’s agent, appellant presented the testimony
of the two attorneys who had represented her when the Geauga County was originally
brought in September 2006. In response, Nationwide introduced into evidence certified
copies of documents from the Lorain County action, including the amended complaint,
the motion for summary judgment, and the final judgment.
{¶10} In its December 7, 2012 judgment denying the motion to enforce, the trial
court cited three reasons. First, the court held that it lacked the authority to enforce any
purported settlement because there had been no reservation of jurisdiction at the time
of the voluntary dismissal. Second, the court concluded that any claim appellant may
have had against Nationwide based upon a settlement was already fully litigated in the
Lorain County action. Third, the court found that the release provision in the “AIG”
settlement precluded appellant from seeking additional recovery from appellee Price or
Nationwide.
{¶11} In appealing the foregoing decision, appellant asserts one assignment of
error for review:
{¶12} “The trial court erred in denying plaintiff/appellant’s motion to enforce
settlement.”
{¶13} Under her sole assignment, appellant has challenged the merits of each of
the three reasons cited by the trial court in support of its decision. First, she argues that
the trial court erred in concluding that it lacked the necessary jurisdiction to enforce the
purported oral settlement with Nationwide. Citing general case law, appellant contends
that a trial court always retains continuing jurisdiction to determine the basic terms of an
agreement which had the effect of settling the pending case.
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{¶14} The Supreme Court of Ohio has expressly recognized that a trial court has
the inherent authority to enforce a settlement agreement reached by the parties during
the pendency of a civil case. See Mack v. Polson Rubber Co., 14 Ohio St.3d 34 (1984).
To this extent, Ohio case law supports appellant’s general assertion. However, in this
instance, the motion to enforce the alleged settlement was not filed while the underlying
case was pending before the trial court; rather, the case was voluntarily dismissed more
than five years before the motion was submitted. In considering similar scenarios, this
court has stated that a trial court does not automatically retain jurisdiction to entertain a
motion to enforce following the dismissal of the entire underlying action:
{¶15} “[A] trial court is divested of jurisdiction to proceed when it unconditionally
dismisses the action upon which the motion to enforce is premised. Tabbaa v.
Koglman, 149 Ohio App.3d 373, 377, 2002 Ohio 5328, * * *, citing State ex rel. Rice v.
McGrath (1991), 62 Ohio St.3d 70, * * *. In other words, if a case is ‘unconditionally
dismissed,’ the court is without jurisdiction to take further action on the case, including
efforts to enforce a settlement agreement arising out of the dismissed action. See, e.g.,
Bugeja v. Luzik, 7th Dist. No. 06 MA 50, 2007 Ohio 733, at ¶7. ‘The determination of
whether a dismissal is unconditional, thus depriving a court of jurisdiction to entertain a
motion to enforce a settlement agreement, is dependent upon the terms of the
dismissal.’ Le-Air Molded Plastics, Inc. v. Goforth, (Feb, 24, 2000), 8th Dist. No. 74543,
2000 Ohio App. LEXIS 653, *9, citing Showcase Homes, Inc. v. The Ravenna Savings
Bank (1998), 126 Ohio App.3d 328, * * *.” Nova Information Systems, Inc. v. Current
Directions, Inc., 11th Dist. Lake No. 2006-L-214, 2007-Ohio-4373, ¶14.
{¶16} The Nova Information case involved a “mutual” dismissal by both parties
with prejudice. Id. at ¶2. Nevertheless, prior to Nova Information, this court followed the
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same basic analysis in regard to a Civ.R. 41(A)(1) voluntary dismissal without prejudice.
See Grange Mutual Casualty Co. v. Paterson, 11th Dist. Ashtabula No. 98-A-0086,
1999 Ohio App. LEXIS 5512. Under such a scenario, a trial court loses all jurisdiction
over a case unless the dismissal notice expressly states or implies that the dismissal is
conditioned upon the occurrence of a specific event: i.e., performance of the settlement
agreement. Id. at *8.
{¶17} In this case, appellant’s November 2006 notice of voluntary dismissal did
not have any language indicating that the dismissal was conditioned upon any future
event. Moreover, the notice did not even contain any reference to an alleged settlement
agreement between appellant and appellee’s two insurers. Hence, the wording of the
notice can only be construed to support the conclusion that appellant’s dismissal of the
underlying action was unconditional.
{¶18} In addition, even though a separate dismissal order by the trial court was
unnecessary in relation to a Civ.R. 41(A)(1) voluntary dismissal, id. at *8, that order did
not have any language from which it could be inferred that the court intended to retain
jurisdiction over the action for any purpose.
{¶19} Given the complete absence of any “conditional” language in the voluntary
dismissal notice, the Geauga County trial court did not retain any continuing jurisdiction
over appellant’s case. As a result, the trial court did not have any authority to consider
the merits of appellant’s motion to enforce. On this basis alone, the trial court’s decision
denying the motion to enforce was justified.
{¶20} As the second basis for its decision, the trial court held that appellant was
barred from going forward on the motion to enforce because the basic substance of her
motion had already been fully addressed in the separate Lorain County proceeding. In
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challenging this aspect of the appealed decision, appellant submits that the doctrine of
res judicata does not apply because the final ruling of the Lorain County trial court is not
a valid, enforceable judgment. Specifically, she argues that the Lorain County judgment
is a nullity because she and Long’s estate did not follow the required procedure for
bringing an action against an insurance company. Citing R.C. 3929.06, she claims that
she and the estate were not entitled to “sue” Nationwide until they had obtained a
judgment against the tortfeasor, appellee.
{¶21} R.C. 3929.06 governs the rights of a judgment creditor to obtain relief from
the tortfeasor’s insurance company. Division (A)(1) of the statute states that if a plaintiff
is awarded damages in a final civil judgment for injury, death, or loss to her property or
person, and if the defendant had insurance covering such injury, death, or loss, then the
plaintiff “is entitled as judgment creditor to have an amount up to the remaining limit of
liability coverage provided in the [defendant’s] policy of liability insurance applied to the
satisfaction of the final judgment.” Division (A)(2) further states that if the plaintiff, i.e.,
judgment creditor, has not received payment of the foregoing sum from the defendant’s
insurer within thirty days of the issuance of the final judgment, “the judgment creditor
may file in the court that entered the final judgment a supplemental complaint against
the insurer seeking the entry of a judgment ordering the insurer to pay the judgment
creditor the requisite amount.” In relation to the filing of a separate civil action against
the defendant’s insurer, R.C. 3929.06(B) provides:
{¶22} “(B) Division (A)(2) of this section does not authorize the commencement
of a civil action against an insurer until a court enters the final judgment described in
division (A)(1) of this section in the distinct civil action for damages between the plaintiff
and an insured tortfeasor and until the expiration of the thirty-day period referred to in
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division (A)(2) of this section.”
{¶23} Essentially, appellant contends that R.C. 3929.06(B) should be construed
broadly to apply to any action brought by the plaintiff against the tortfeasor’s insurance
company. However, the quoted language from divisions (A)(1) and (A)(2) of the statute
does not support her interpretation. Instead, the statute is clearly intended to only apply
to actions in which a plaintiff seeks direct recovery from the insurance company for any
injuries caused by the insured defendant. R.C. 3929.06(B) stops the injured party from
seeking direct recovery until after the defendant’s liability has been established in a final
judgment.
{¶24} In appellant’s Lorain County proceeding, the first claim of her original and
amended complaint did not directly seek recovery from Nationwide for the injuries she
suffered in the 2006 motor vehicle accident. Rather, her first claim sought recovery on
the purported settlement agreement her trial attorneys negotiated with Nationwide. To
this extent, appellant’s first claim was contractual in nature, and therefore would not be
barred under R.C. 3929.06(B). This means that the Lorain County judgment was valid
despite the fact that appellant never obtained a final judgment against appellee for the
injuries she sustained in the underlying accident.
{¶25} “‘The doctrine of res judicata applies when (1) the judgment of a prior case
is valid, final and was decided on the merits; (2) the judgment in the prior case was
issued by a court of competent jurisdiction; (3) both the prior and present suit involve
the same parties or those whose interest are adequately close to demonstrate a
relationship of privity; and (4) both the prior and present case arose from the same
transaction or occurrence.’ Montecalvo v. Am. Family Ins. Co., 11th Dist. No. 2006-T-
0074, 2006 Ohio 6881, at ¶7 * * *.” Harris v. Pristera, 194 Ohio App.3d 120, 2011-Ohio-
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2089, ¶18 (11th Dist.). In this case, the various exhibits Nationwide presented during
the evidentiary hearing were sufficient to establish each of the four requirements for the
application of res judicata. As to the third requirement, even though appellee Price was
not a party to the Lorain County action, his contractual relationship with Nationwide was
sufficient to demonstrate privity. Accordingly, the trial court correctly concluded that the
motion to enforce was barred from further consideration under res judicata.
{¶26} Under the third argument in her sole assignment, appellant addresses the
actual merits of her motion to enforce and whether she was entitled to recover under the
alleged settlement with Nationwide notwithstanding the “release” provision in the “AIG”
settlement. However, given that the trial court did not have the requisite jurisdiction to
proceed on the motion to enforce, the substance of appellant’s third argument is moot,
and need not be reviewed for purposes of this opinion. See App.R. 12(A)(1)(c).
{¶27} As appellant has failed to establish that the trial court erred in denying her
motion to enforce the purported settlement with Nationwide, her sole assignment is not
well-taken. It is the judgment and order of this court that the judgment of the Geauga
County Court of Common Pleas is affirmed.
TIMOTHY P. CANNON, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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