[Cite as In re Estate of Shoemaker, 2017-Ohio-8699.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
IN THE MATTER OF: : Case No. 17CA1039
:
THE ESTATE OF : DECISION AND JUDGMENT
JOYCE SHOEMAKER, DECEASED : ENTRY
:
: Released: 11/16/17
APPEARANCES:
John H. Lawler, West Union, Ohio, for Appellant.
David E. Grimes, West Union, Ohio, for Appellee.
McFarland, J.
{¶1} Jean Ann Guthrie appeals the January 5, 2017 judgment entry of the
Adams County Common Pleas Court, Probate Division, which denied settlement
of the Last Will and Testament of Joyce Shoemaker as being contrary to the
testator’s intent. Appellant asserts the trial court erred in failing to approve the
settlement agreement and in compelling the parties to proceed to litigation. Here,
the record does not contain evidence that other beneficiaries were given the
opportunity to be heard and, in fact, were also in agreement with the proposed
settlement. However, based upon our de novo review of the record, we must
overrule the assignment of error and affirm the trial court’s judgment.
Adams App. No. 17CA1039 2
FACTS
{¶2} On July 25, 2015, Ms. Joyce Shoemaker, a widow with no children,
passed away. On September 10, 2015, Ms. Shoemaker’s Last Will and Testament
was filed with the Adams County Probate Court. On September 14, 2015,
Appellant, the designated personal representative under Shoemaker’s will, filed an
Application to Probate the Will.
{¶3} Subsequent to Ms. Shoemaker’s will having been admitted to probate,
her nephew-in-law and Appellee herein, Anthony Duane Drummond1, filed a
Complaint to contest the validity of the will. Under the terms of the will, Appellee
is a beneficiary of one-half of the residue of Ms. Shoemaker’s estate. In his
complaint, Appellee alleged: (1) lack of testamentary capacity of testator; (2)
improper execution of the will; (3) fraud and/or undue influence by the executrix
(Appellant); and (4) breach of fiduciary duty. Appellee named Appellant, Donald
Burchett2, the West Union Church of Christ and the Peebles United Methodist
Church, all beneficiaries under the will, as defendants in the will contest.
{¶4} On November 18, 2015, the trial court held a review hearing pursuant
to a request from Appellant’s counsel. Appellant and Appellee, through their
respective counsel, advised the trial court they had reached a settlement agreement
1
Appellee’s full name is “Anthony Duane Drummond” although he was identified only as “Anthony Drummond” in
the will.
2
Donald Burchett is the decedent’s brother.
Adams App. No. 17CA1039 3
which would resolve all matters within the will contest.3 The trial court’s approval
of the settlement was jointly requested. The trial court then ordered counsel for the
parties to brief the relevant legal authority regarding the settlement of will contests
by agreement. The Court also appointed a receiver to manage Shoemaker’s estate
during the pendency of the proceedings.
{¶5} Subsequently, counsel for Appellant and Appellee submitted briefs to
the trial court urging approval of the settlement. On January 3, 2017, a review of
the accounting by the receiver took place. At this hearing, the trial court engaged
in dialogue with the parties and their counsel regarding the settlement agreement.
On January 5, 2017, the trial court filed its written opinion denying approval of the
parties’ settlement agreement.
{¶6} This timely appeal followed. Additional facts are set forth below
where relevant. Appellant requests this court to reverse the trial court’s journal
entry and remand the case with instructions to immediately approve the settlement
presented to the trial court. Appellee, however, requests this court to affirm the
trial court’s decision and instruct the trial court to proceed with the will contest.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED IN DENYING LITIGANTS’
COMPLETE SETTLEMENT OF ALL ISSUES BETWEEN THEM.”
3
A summary of the settlement agreement described on the record is set forth, infra.
Adams App. No. 17CA1039 4
STANDARD OF REVIEW
{¶7} The subject of the appealed-from judgment entry is the oral settlement
agreement between Appellant and Appellee. The trial court denied enforcement of
the parties’ agreement to settle at the hearing on review of accounting although
neither party had filed a formal written motion requesting enforcement. We
therefore consider the matter before us as on denial of a joint oral motion to
enforce settlement.
{¶8} “The standard of review applicable to a ruling on a motion to enforce a
settlement agreement depends upon the issues disputed, and may present a mixed
question of law and fact.” Mathews v. Eastern Pike Local School Dist. Bd. of Edn.,
4th Dist. Pike No. 12CA831, 2013-Ohio-4437, ¶ 14, quoting Barstow v. O.U. Real
Estate, III, Inc., 4th Dist. Athens No. 01CA49, 2002-Ohio-4989, ¶ 36. “If the
dispute is an evidentiary one, we will not reverse the trial court's determination that
a settlement exists as long as the trial court had sufficient evidence before it as to
the terms of the settlement.” Id., citing Chirchiglia v. Ohio Bur. of Workers'
Comp., 138 Ohio App.3d 676, 679, 742 N.E.2d 180 (7th Dist.2000). If the dispute
is a question of law, we must employ a de novo review to determine whether the
trial court's decision to enforce the settlement agreement is based upon an
erroneous standard or a misconstruction of the law. Barstow, supra, at ¶ 36, citing
Continental W. Condominium Unit Owners Assn. v. Howard E. Ferguson, Inc., 74
Adams App. No. 17CA1039 5
Ohio St.3d 501, 502, 660 N.E.2d 431 (1996). This case presents a legal issue of
whether the trial court erred by refusing to enforce the settlement agreement based
on the trial court’s philosophy that the testator’s intent should prevail over the
parties’ presumably valid agreement.
LEGAL ANALYSIS
{¶9} Appellant directs our attention to this court’s decision in Taylor v.
Connell, 26 Ohio App.2d 253, 271 N.E.2d 305 (4th Dist.1971), for the proposition
that parties may, by agreement, settle or compromise their differences and agree to
voluntarily dismiss a will contest as long as there is no fraud or collusion, and as
long as all interested parties are included in the agreement. Appellant also cites the
well-known principle that the law favors prevention of litigation by compromise
and settlement. State ex rel. Wright v. Weyandt, 50 Ohio St.2d 194, 197, 363
N.E.2d 1387 (1977). Appellant points out the agreement the parties have reached
is only slightly different than the decedent’s expressed desires in her will; the
remaining beneficiaries are to receive exactly what the will provides for them.
Appellant also notes the outcome of further litigation is much more uncertain and
costly. Finally, Appellant emphasizes that both parties to this appeal desire the
court’s approval.
{¶10} In response, Appellee acknowledges that on November 18, 2015, the
parties attempted to enter into a settlement agreement which would have resolved
Adams App. No. 17CA1039 6
all matters including the will contest. However, Appellee now expresses regret in
attempting to enter into the settlement agreement and requests this court to affirm
the trial court’s decision and remand the matter with instructions to proceed with
the will contest. Appellee further notes that since the appointment of a receiver in
this matter, as of January 3, 2017, $24,677.50 had been expended on behalf of the
estate. Appellee concludes that settlement of the matter on the original terms as set
forth in Appellant’s brief is impossible.
{¶11} At the January 3, 2017 review hearing, the trial court addressed the
issue of the parties’ jointly proposed settlement. The trial court recognized the
public policy in favor of settlements. However, the trial court’s opinion concluded
as follows:
“It is the humble opinion of the undersigned that the importance of
strictly adhering to the “Will” of a Decedent has been casually and
surprisingly cast aside by the undersigned’s more learned brethren in
the Superior Courts.* * * It has long been established in the State of
Ohio that when construing a Last Will and Testament, the court’s goal
is to implement the intent of the testator as set forth in the documents.
(Internal citations omitted.) The sole purpose of the court should be
to ascertain and carry out the intention of the testator, and such
intention is to clearly be ascertained from the words actually
contained in the will. See also Stevens v. Natl. City Bank (1989), 45
Ohio St.3d 276, 278, citing Ohio Citizens Bank v. Mills (1989), 45
Ohio St.3d 153, 155.
***
It is this Court’s fervent opinion that the intent of Testator’s Last Will
and Testament should be upheld in strict compliance with the clearly
ascertained terms of Declarant’s desires of disposition of her hard
Adams App. No. 17CA1039 7
earned worldly effects. Ms. Joyce Shoemaker said what she meant
and she meant what she said when framing the terms of her Last Will
and Testament. Settlement contrary to the Last Will and testament of
Joyce Shoemaker is hereby denied.”
{¶12} We begin with a review of the relevant guiding principles. A
settlement agreement is a contract designed to prevent or end litigation. Mathews,
supra, at ¶ 21; Continental W. at 502, 660 N.E.2d 431. See also Ingle-Barr, Inc. v.
Scioto Valley Local School District Bd., 4th Dist. Pike No. 07CA676, 2009-Ohio-
5345, at ¶17. “The law favors prevention of litigation by compromise and
settlement. * * *” Kirschbaum v. Dillon, 58 Ohio St.3d 58, 567 N.E.2d 1291
(1991), quoting State ex rel. Wright v. Weyandt, 50 Ohio St.2d 194, 363 N.E.2d
1387 (1977), syllabus; Shallenberger v. Motorists Mut. Ins. Co., 167 Ohio St. 494,
505, 150 N.E.2d 295, 302 (1958). So long as there is no evidence of collusion, in
bad faith, to the detriment of other, non-settling parties, the settlement of litigation
will be encouraged and upheld. Kirschbaum, supra. A trial court possesses full
authority to enforce a settlement agreement voluntarily entered into by the parties.
Matthews, supra; Mack v. Polson Rubber Co., 14 Ohio St.3d 34, 36, 470 N.E.2d
902 (1984).
{¶13} As a preliminary matter, we find the appeal has not become moot by
virtue of Appellee’s apparent change of heart and request that the trial court’s
judgment be affirmed and the matter remanded for the purpose of proceeding with
the will contest. In Walland v. Rinehart, 8th Dist. Cuyahoga No. 51935, 52672,
Adams App. No. 17CA1039 8
1987 WL 8579, an appeal of a trial court’s enforcement of an oral settlement
agreement, the appellate court observed the true basis of the appeal was whether
the appellant might unilaterally rescind a settlement agreement after thinking it
over and deciding it to be unfair. The court wrote at *2: “This issue is not new and
has been decided in the negative: mere dissatisfaction with a settlement will not
permit repudiation of the agreement. Mack v. Polson Rubber Co., 14 Ohio St.3d
34, 37, 470 N.E.2d 902 (1984); Spercel v. Sterling Industries, Inc., 31 Ohio St.2d
36, 39, 285 N.E.2d 324 (1972). Noting the strong public policy favoring the
settlement of disputes without litigation, the Rinehart court opined the trial court
did not err in ordering enforcement of the settlement since there was no issue as to
the agreement's existence or terms and since appellant's reason to set it aside was
insufficient. Once there is a meeting of the minds as to the essential terms of the
contract, one cannot refuse to proceed with settlement due to a mere change of
mind. Chase Home Finance v. Keys, 8th Dist. Cuyahoga No. 99920, 2014-Ohio-
2639, ¶ 13, quoting Mack, supra.
{¶14} In further support of Appellee’s position that the settlement
agreement should not now be enforced, Appellee relies upon the well-established
maxim that “A court speaks through its journal.” Appellee points out the
agreement in this matter has never been journalized and argues that, as such, it is
not enforceable. Indeed, it is preferable that a settlement be memorialized in
Adams App. No. 17CA1039 9
writing. Mathews, supra, at ¶ 22; Pawlowski v. Pawlowski, 83 Ohio App.3d 794,
798–799, 615 N.E.2d 1071 (10th Dist.1992). However, an oral settlement
agreement may be enforceable if there is sufficient particularity to form a binding
contract. Spercel v. Sterling Industries, Inc., supra, at 39; see also Brown v.
Dillinger, 9th Dist. Medina No. 05CA0040-M, 2009-Ohio-1307, ¶ 11. Terms of
an oral contract may be determined from “words, deeds, acts, and silence of the
parties.” Mathews, supra, at ¶ 22, quoting Rutledge v. Hoffman, 81 Ohio App. 85,
75 N.E.2d 608 (1947), paragraph one of the syllabus; see also Ford v. Tandy
Transp., Inc., 86 Ohio App.3d 364, 380, 620 N.E.2d 996 (1993). Therefore, we do
not summarily find the agreement to be unenforceable because its terms were
discussed only orally at the hearings of record.
{¶15} “A contract is generally defined as a promise, or a set of promises,
actionable upon breach. Essential elements of a contract include an offer,
acceptance, contractual capacity, consideration (the bargained for legal benefit
and/or detriment), a manifestation of mutual assent and legality of object and of
consideration.” Mathews, supra, at ¶ 23, quoting Perlmuter Printing Co. v. Strome,
Inc., 436 F.Supp. 409, 414 (N.D.Ohio 1976). A meeting of the minds as to the
essential terms of the contract is a requirement to enforcing the contract. Episcopal
Retirement Homes, Inc. v. Ohio Dept. of Indus. Relations, 61 Ohio St.3d 366, 369,
575 N.E.2d 134 (1991).
Adams App. No. 17CA1039 10
{¶16} “To constitute a valid settlement agreement, the terms of the
agreement must be reasonably certain and clear,” and if there is uncertainty as to
the terms then the court should hold a hearing to determine if an enforceable
settlement exists. Mathews, supra, at ¶ 24, quoting Rulli v. Fan Co., 79 Ohio St.3d
374, 376, 377, 683 N.E.2d 337 (1997). A court cannot make a contract for the
parties or force them to settle. Listinger Sign Co. v. American Sign Co., 11 Ohio
St.2d 1, 14, 227 N.E.2d 609 (1967). If the court cannot determine from the parties'
manifestations as reasonably interpreted in the light of all the circumstances, what
the agreement is or how to enforce it, no enforceable obligation exists. Id., citing 1
Corbin on Contracts, 394 and 398, Section 95.
{¶17} Appellant submitted a chart in her brief which compared the bequests
under Shoemaker’s will with the terms of the settlement between the parties. We
have reviewed Shoemaker’s will and the hearing transcripts of November 18, 2015
and January 3, 2017 and are satisfied that the submitted chart correctly reflects the
terms of the settlement agreement. The chart set forth is as follows:
Bequest Under Will Under Settlement Difference
West Union
Church of Christ $10,000.00 $10,000.00 0.00
Peebles Methodist $2,000.00 $2,000.00 0.00
Church
Appellant Home & 21.613 acres $100,000.00 Unknown
Adams App. No. 17CA1039 11
Appellant Pets & $30,000.00 Pets $30,000.00
Don A. Burchett ½ Estate. Residue ½ Estate. Residue 0.00
Appellee ½ Estate. Residue ½ Estate. Residue 0.00
{¶18} Along with consideration of the principles of contract, we recognize a
court may refuse to enforce a contract when it violates public policy. DeVito v.
Autosdirect Online, Inc., 8th Dist. Cuyahoga No. 100831, 2015-Ohio-3336, at
¶ 37; Marsh v. Lampert, 129 Ohio App.3d 685, 687, 718 N.E.2d 997 (12th
Dist.1998), citing Garretson v. S.D. Myers, Inc., 72 Ohio App.3d 785, 788, 596
N.E.2d 512 (9th Dist.1991). R.C. 1302.15, unconscionable contract or clause,
provides:
(A) If the court as a matter of law finds the contract or any clause of
the contract to have been unconscionable at the time it was made the
court may refuse to enforce the contract or it may enforce the
remainder of the contract without the unconscionable clause, or it may
so limit the application of any unconscionable clause as to avoid any
unconscionable result.
(B) When it is claimed or appears to the court that the contract or any
clause thereof may be unconscionable the parties shall be afforded a
reasonable opportunity to present evidence as to its commercial
setting, purpose, and effect to aid the court in making the
determination.
{¶19} Appellant argues that the trial court erred by denying enforcement of
the jointly proposed settlement agreement in light of the public policy favoring
settlement of litigation. In this case, while recognizing the long-standing public
policy in favor of settlements, the trial court here engaged in an in-depth discussion
Adams App. No. 17CA1039 12
of the competing interests: (1) the public policy which encourages settlement of
litigation, and (2) the superiority of the testator’s intent with regard to disposition
of property. Thereafter, the trial court denied enforcement of the settlement
agreement giving preference to the testator’s intent in a will admitted to probate
and assumed to be valid on its face. The trial court’s decision made no finding that
the oral settlement agreement of Appellant and Appellee failed as to the basic
principles of contract law, violated public policy or that it was otherwise
unconscionable in some regard.
{¶20} In 2-J Supply, Inc. v. Garrett & Parker, LLC, 4th Dist. Highland No.
13CA29, 2015-Ohio-2757, this court reviewed a trial court’s decision denying
enforcement of a valid attorney fee provision. The trial court made a finding that
attorney fees would be denied because Plaintiff-Appellant cited “no statutory
authority that allows the Court to make an award of attorney fees.” Id. at ¶ 7. In
Garrett, we looked to the Supreme Court of Ohio’s decision in Wilborn v. Bank
One Corp., 121 Ohio St.3d 546, 2009–Ohio–306, 906 N.E.2d 396, at ¶ 8, wherein
the Court explicitly acknowledged the rule that agreements to pay another's
attorney fees are normally enforceable and not void as against public policy
because it recognizes the fundamental right to contract. Garrett, at ¶ 6. In Garrett
at ¶ 15 we found: “By ignoring the well-recognized contract exception to the
Adams App. No. 17CA1039 13
general rule prohibiting a prevailing party in a civil action from recovering for its
attorney fees, the trial court abused its discretion.”
{¶21} While our decision in Garrett was within the context of an attorney
fee dispute, its reasoning is equally applicable. In Garrett, we observed:
“Persons have a fundamental right to contract freely with the
expectation that the terms of the contract will be enforced. * * *
Government interference with this right must therefore be restricted to
those exceptional cases where intrusion is absolutely necessary, such
as contracts promoting illegal acts.” Id. at ¶ 19, quoting Nottingdale
Homeowner’s Assoc., Inc. v. Darby, 33 Ohio St.3d at 36, 514 N.E.2d
702 (1987).
In Garrett, we found the record contained evidence of an enforceable contract
between the parties for the payment of reasonable attorney's fees, and thus, no
evidence warranting the trial court's interference with the lawful agreement of the
parties.
{¶22} Pertinent to this appeal, we observe the Supreme Court of Ohio’s
decision in Andes v. Shipp, 165 Ohio St. 275, 135 N.E.2d 396 (1956). Annotation,
42 A.L.R.2d 1319, which held: “By the weight of authority, agreements made by
competent adults settling or compromising will contests are valid and enforceable
and do not contravene public policy. In Skelly v. Graybill, 109 Ohio App 277, 165
N.E.2d 218 (5th Dist.1959), the appellate court quoted 57 American Jurisprudence
653, Section 1005, where it is stated:
“According to most authorities, an agreement between the
beneficiaries under a will, for the purpose of avoiding litigation
Adams App. No. 17CA1039 14
regarding their rights, to adopt a plan for the destruction of the estate
different from that provided by the will is valid and enforceable,
provided the rights of creditors are not infringed, and trust provisions
are not modified or destroyed.”
{¶23} In our decision in Connell, 26 Ohio App.2d 253, at 256, this court
reluctantly recognized the validity of such agreements:
“The law in this respect seems to be well settled.
Though in some jurisdictions an agreement to dispense with the
probate of a will has been declared to be against public policy and
void, in a majority of the decisions on the point, it has been held that
all the persons interested in a decedent's estate may by agreement
divide the estate among themselves, without probating such decedent's
will or administering the estate, and the validity of a contract having
for its sole purpose the disposition of property in a manner different
from that proposed by a testator, even where the contract
contemplates the rejection of the will when offered for probate or its
setting aside when admitted to probate, when it is entirely free from
fraud, and is made by all the parties in interest, would seem to be
freely conceded.”
As did the trial court herein, we opined at the time of the Connell decision that
“[t]he propriety of the rule that contracts to suppress valid wills are themselves
valid is, at best, very doubtful.” Id.
{¶24} In light of the applicable Ohio case law, therefore, it would appear
that by refusing to enforce the presumably valid oral settlement agreement
proposed by Appellant and Appellee, the trial court erred as a matter of law.
However, our de novo review has yielded no evidence as to whether the other
parties to the will contest were given the opportunity to be heard as to the proposed
Adams App. No. 17CA1039 15
settlement. In Bland v. Graves, 99 Ohio App.3d 123, 650 N.E.2d 117, (9th
Dist.1994), a will contest action, one of the arguments on appeal challenged that
certain settlement agreements were void as against public policy, collusive, and the
result of improper ex parte hearings conducted in violation of Canon 3(A)(4) of the
Code of Judicial Conduct. However, the appellate court found the contentions to
be without merit. In particular, the appellate court cited Krischbaum v. Dillon, 58
Ohio St.3d 58, 69–70, 567 N.E.2d 1291, 1302, (1991), noting that “[s]o long as
there is no evidence of collusion, in bad faith, to the detriment of other, non-
settling parties, the settlement of litigation will be encouraged and upheld.”
{¶25} The Graves court found the Krischbaum decision to be particularly
illuminating in respect to the appellants' attack on the validity of the settlement
agreements. In Krischbaum, the plaintiffs, heirs at law, brought a will contest
action alleging lack of testamentary capacity and undue influence. The defendants
in Krischbaum were the two named beneficiaries in the decedent's will. Prior to
trial, one of the defendants, Riker, settled with the will contestants. On appeal, the
other defendant, Dillon, contended that it was contrary to public policy to permit
the will contestants to settle the action with one beneficiary to the detriment of the
remaining beneficiary. The Supreme Court rejected Dillon's argument, finding that
“[a]lthough, as a result of settling with the contestants, Riker abandoned his
position in the litigation, he had no obligation to maintain his position
Adams App. No. 17CA1039 16
notwithstanding that he had reached a satisfactory settlement with the contestants.”
Id. at 69, 567 N.E.2d at 1302. Thus, the court concluded that in the absence of
evidence that the settlement agreement was the product of collusion, made in bad
faith, or otherwise detrimental to a non-settling party, the settlement was valid and
enforceable.
{¶26} In Graves, although the appellants were challenging the validity of
the settlement agreements as will contestants, not beneficiaries, the court found
that the same result as in Krischbaum followed. The appellate court noted the
Graves appellants had offered only broad, general, and conclusory allegations of
collusion and bad faith while absolutely failing to point to any specific evidence in
the record that would substantiate their allegations or support invalidating the
settlement agreements. The Graves appellants had directed the appellate court’s
attention to Canon 3(A)(4), regarding ex parte communication, which the court
found to be wholly misplaced.4
{¶27} The Graves court found the appellants’ argument that the probate
court's ex parte and in camera review of the settlement agreements denied them a
full right to be heard to be meritless. Importantly, the appellate court wrote:
4
Canon 3(A)(4) of the Ohio Code of Judicial Conduct provides:
“A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard
according to law, and, except as authorized by law, neither initiate not consider ex parte or other communications
concerning a pending or impending proceeding. * * * Nothing contained herein, however, shall preclude a judge
from non-substantive ex parte communications on procedural matters and matters affecting prompt disposal of the
business of the court.”
Adams App. No. 17CA1039 17
“The main impetus for the October 14 evidentiary hearing was to
evaluate the possibility of settlement, and the appellants were present,
had an opportunity to be heard and, in fact, indicated that they might
consider a settlement offer. Clearly, the October 14 hearing was not
ex parte, and the probate court did nothing after the hearing to restrict
the appellants from fully and equally participating in any settlement
negotiations with the defendants-appellees.”
{¶28} The Graves court found the record did not contain any evidence that
the settlement agreements were the product of collusion, made in bad faith, or
otherwise detrimental to the appellants, the non-settling parties in the litigation.
The Graves court concluded absent such evidence, the settlement agreements must
have been upheld.
{¶29} Here, there was no evidentiary hearing. Evidentiary hearings, as
previously explained, are normally requested when terms of a settlement
agreement or existence of a settlement agreement are in question. The hearings
herein, where settlement was discussed, were not the legal equivalents of
evidentiary hearings. See Aristech Chem. Corp. v. Carboline Co., 85 Ohio App.3d
251, 257, 620 N.E.2d 258 (4th Dist.1993).
{¶30} Ostensibly, due to the fact that the other interested parties in this case,
Donald Burchett and representatives of the two churches, were “included” in the
settlement agreement, and due to the fact the agreement provided the same
provisions for them as did the will, it may have appeared that an evidentiary
hearing was not required. However, unlike the defendants in Graves, the other
Adams App. No. 17CA1039 18
beneficiaries here did not have an opportunity to be heard, consider the settlement
offer, and otherwise participate in the negotiations. While Appellant and Appellee
agreed to various terms to settle the will contest, as set forth in the submitted chart,
the record is void of any representations of counsel or sworn testimony that the
other defendants to this will contest were in agreement with the disposition.
{¶31} In Aristech, supra, 620 N.E.2d 258, 262, we quoted the United States
Court of Appeals for the District of Columbia Circuit which observed:
“A motion to enforce a settlement contract is neither ordinary nor
routine. * * * Its relative simplicity is a concession to the policy
favoring settlements, but only to the extent that full and fair
opportunities to prove one's point are substantially preserved. The
parties on both sides of appellants' lawsuit had valuable interests at
stake in the motion proceeding * * *. To the extent that their several
representations to the court left issues of fact for determination, they
are entitled to an evidentiary hearing.” Autera v. Robinson (C.A.D.C.,
1969), 419 F.2d 1197, 1203.”5
{¶32} In this matter, we find an evidentiary hearing should have been
conducted to determine whether the decedent’s brother and any representatives of
the two churches named in decedent’s will had objections to the settlement. Just
because the submitted agreement included them does not mean they were
consulted in any way when the negotiations occurred, given the absence of
evidence on this point. Just because the submitted agreement provided the same
5
Ohio courts have reached similar holdings. Aristech, supra, at 620 N.E.2d 258, 262. See Chiampo v. Williams
(Sept. 8, 1991), 9th Dist. Summit No. 14903, 1991 WL 184826; Ohio State Tie & Timber, Inc. v. Paris Lumber Co.,
8 Ohio App.3d 236, 239, 456 N.E.2d 1309, 1313 ( 1982).
Adams App. No. 17CA1039 19
disposition for the other beneficiaries as in the will does not mean those
beneficiaries should not have had an opportunity to be heard on the matter
involving them, prior to dismissal of the will contest action.
{¶33} As such, the sole assignment of error is hereby overruled.
Accordingly, we affirm the judgment of the trial court, albeit on an alternative
basis.
JUDGMENT AFFIRMED.
Adams App. No. 17CA1039 20
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Adams County Common Pleas Court, Probate Division, to carry this judgment into
execution.
Any stay previously granted by this Court is hereby terminated as of the date
of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Abele, J. & Hoover, J.: Concur in Judgment Only.
For the Court,
BY: ______________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
In re Estate of Shoemaker
Combined Opinion