Dissenting:
I RESPECTFULLY DISSENT.
This action began as one for temporary and permanent injunctive relief, coupled with claims for monetary obligations. The Stark County Common Pleas Court granted an ex parte restraining order.
Thereafter a hearing was held following which the restraining order was dissolved and the case set for trial on the merits.
In the interim, before trial, the parties apparently settled their difficulties.
Thereafter the court dismissed the case:
It appearing to the Court, that on the 13th day of December, 1988, the within case has been settled, the same is hereby dismissed with prejudice.
All parties hereto agree that any and all releases, agreements or journal entries necessary to comply with this settlement shall be executed by the interested parties.
Judgment Entry, December 14, 1988.
The settlement agreement was never reduced to writing nor its terms ever entered upon the record.
On March 27, 1989, with a new judge on the bench, Quadracast moved the court for an order to enforce the settlement agreement. The motion was couched in language not compliant with Civ. R. 60(B), but was styled "Motion For Order Enforcing Settlement."
On May 5, 1989, the trial court held a hearing on the motion to enforce the settlement agreement. Only the president of plaintiff-corporation, Mr. William Tschantz, testified as to the terms of the verbal settlement agreement. Further, the court had the affidavit of plaintiffs counsel defining her recollection of the settlementterms. Defendant did not appear, but offered argument through their counsel that defendant's recollection of the settlement agreement deferred from plaintiffs. The court adopted the settlement terms as postulated by plaintiff and rendered judgment against defendants for $42,393.15, plus interestfrom the date of judgment and costs of the action.
The trial court never heard evidence to support the claim of the original complaint.
Defendants appeal:
I
The trial court lacks jurisdiction to interpret or otherwise modify a consent judgment.
II
The trial court committed reversible error where its judgment finding appellant individually liable was against the manifest weight of the evidence.
The issue: Procedurally, how does a party enforce a verbal extra-judicial settlement agreement, post dismissal, where neither the settlement agreement nor its terms are a matter of record?
Pre-Dismissal. In Bolen v. Young (1982), 8 Ohio App.3d 36, 45 N.E.2d 1316, plaintiff sought damages from defendant for faulty roof repair work. The trial court entered the following docket entry "3/25/82-Case settledby agreement of all parties-Judgment Entry to follow by 4/16/82." On April 23, 1982, plaintiff sought an order from the trial court to compel defendants to comply with the verbal settlement agreement. Defendant submitted a memorandum in opposition to the motion to compel, but no hearing was ever held. On May 27, the court *252filed an "AGREED ENTRY" signed by the trial judge and plaintiffs counsel. The entry stated that the case had been settled and by terms of the agreement, defendants were ordered to do certain work on plaintiffs residence.
The court held:
"If the settlement agreement is extrajudicial in the sense that the trial judge is advised that the parties have agreed to a settlement, but he is not advised of the terms of the agreement, then the settlement agreement can be enforced only if the parties are found to have entered into a binding contract. Relief may be sought through the filing of an independent action sounding in breach of contract, or it may be sought in the same action through a supplemental pleading filed pursuant to Civ. R. 15(E), setting out the alleged agreement and breach." Bolen, supra, at 1218.
The trial court's decision in Bolen was reversed because the trial court was without authority to enforce the settlement agreement without an evidentiary proceeding to determine if the parties in fact entered into a binding contract for settlement. Bolen, supra. See also Mack v. Polson Rubber Co. (1984), 14 Ohio St.3d 34, 470 N.E.2d 902; Ohio State Tie and Timber, Inc. v. Paris Lumber Co. (1982), 8 Ohio App.3d 236, 309 N.E.2d 1309; Caserta v. McSwain (Dec. 29, 1987), Franklin App. No. 87AP-611, unreported; J. Walland, Executor of the Estate of LeLand Rinehart v. Mary Rinehart (Mar. 26, 1987), Cuyahoga App. Nos. 51935 and 52672, unreported.
Two months after deciding Bolen, the Tenth District Court of Appeals held in Paris Lumber:
"Reduced to its simplest terms, a settlement agreement is a contract. The party asserting the contract (settlement agreement) must prove by a preponderance of the evidence the existence of the elements of the contract, including offer, acceptance and consideration both as to the existence of the contract and as to its terms." Paris Lumber, supra, at 13, 14.
In Mack, another pre-dismissal case, the Supreme Court of Ohio circumscribed Bolen by holding that an evidentiary hearing prior to signing a journal entry reflecting a settlement agreement was not required where the parties agreed that a settlement agreement was extant and had agreed upon terms. Disenchantment with the settlement agreement cannot serve as grounds to require an evidentiary hearing. Only when a party makes a claim of fraud, duress, or undue influence, or any factual dispute concerning the existence or the terms of a settlement agreement is the court bound to conduct an evidentiary hearing prior to signing a journal entry reflecting the settlement agreement. Mack, supra.
Post-Dismissal. The critical distinction between the above cited cases and the case sub judice is that the judgment enforcing the settlement agreement (and the motion to enforce the settlement agreement) were made while the case was pending. Here, the case was dismissed.
I would conclude that after the case was dismissed, the party aggrieved by the breach of a contract of settlement (not part of the record in the case) may: (1) institute an independent action for breach of contract, (Bolen)', or (2) seek relief from judgment pursuant to Civ. R. 60(B), satisfying one of the grounds, (Paris Lumber). If the court grants such relief, the party claiming favor of the settlement should request Civ. R. 15(E) amendment of the complaint or try the merits of the original action.
I would reverse and dismiss.