Loch v. Myers , 2021 Ohio 2623 ( 2021 )

[Cite as Loch v. Myers, 2021-Ohio-2623.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Leonard M. Loch Court of Appeals No. L-20-1159
L-20-1175
Appellant
Trial Court No. CI0201802761
v.
John S. Myers, et al. DECISION AND JUDGMENT
Appellees Decided: July 30, 2021
*****
Marvin A. Robon and Zachary J. Murry, for appellant.
Richard R. Malone, for appellee.
*****
MAYLE, J.
{¶ 1} In this consolidated appeal, plaintiff-appellant, Leonard M. Loch, appeals
the August 21, 2020, and September 24, 2020 judgments of the Lucas County Court of
Common Pleas, in favor of defendants-appellees, John S. Myers, Valerie T. Myers, and
Myers Property Holdings, LLC. For the following reasons, we reverse the trial court
judgments.
I. Background
{¶ 2} For many decades, the Loch family owned approximately 39.8 acres of land
on Frankfort Road in Swanton, Ohio. At some point, Leonard Loch’s sister, Sharon
Stoll, became the titled owner of the property. Loch and his mother, Bertha, live in the
home located on that property.
A. The Loch family sells its property, but maintains an option.
{¶ 3} Financial difficulties led Stoll to sell the property to John and Valerie Myers,
the owners of the neighboring property.1 The parties executed a residential real estate
purchase agreement and option on December 12, 2011. Under that agreement, Stoll—or
her assignee—was granted the exclusive option to purchase the property back for
$200,000, or alternatively, to purchase “any portion of the Property at Seller’s discretion”
for $5,140.00 per acre. The option was required to be exercised within one year of
closing on the purchase agreement, with closing to occur 45 days from the date of
exercising the option.
1
The Myers transferred title to the property to Myers Properties Holding, LLC, on July
21, 2107. John and Valerie Myers are the sole members of the LLC.
2.
{¶ 4} The deadline for exercising the option passed without it being exercised. On
February 1, 2013, the Myers entered into a lease agreement with Stoll and Loch whereby
Stoll, Loch, and Bertha leased the home located on the property “yearly” for a monthly
payment of $10 per month. The lease agreement contained a new option, allowing Stoll
or Loch the option to purchase the home and up to ten contiguous acres for $5,140.00 per
acre. The option was required to be exercised by February 1, 2014, with closing to occur
within 45 days of exercising the option.
{¶ 5} Stoll and Loch purported to exercise the option via a letter dated January 31,
2014, but no closing ever occurred, allegedly because Farmers & Merchants State Bank,
the mortgagor of the property, refused to release a ten-acre parcel from its mortgage.
B. The Myers seek to evict Loch, and Loch files suit.
{¶ 6} On June 9, 2018, John Myers posted a notice to leave premises, demanding
that Stoll, Loch, and Bertha leave the premises by June 13, 2018, for non-payment of
rent. Stoll assigned her real estate option to her brother on June 14, 2018, and Loch filed
a complaint in Lucas County Common Pleas Court that same day alleging three causes of
action: (1) breach of the option agreement and specific performance; (2) wrongful
eviction and injunction; and (3) enforcement of the option and damages. Loch
maintained that the option to purchase ten acres had been properly exercised, a survey
had been completed to split the ten acres from the property, and Loch stood ready and
able to pay for the ten acres. He sought to enjoin the Myers from pursuing eviction while
the case was pending. The Myers filed a counterclaim for eviction.
3.
C. The parties reach a settlement.
{¶ 7} On April 8, 2019, just before trial, the parties reached a settlement and
placed the substance of their agreement on the record. It was agreed that Loch would
purchase up to five acres of land from Myers for $40,000, the precise boundaries of
which would be established following a survey. Loch agreed to deposit the purchase
price into his attorney’s escrow account within 30 days. The parties explained:
[Loch’s Counsel]: There will be up to 5 acres surveyed off by
Garcia Survey, exclusive of the roadway—right of way. There will be
deposited into an escrow account—into [counsel’s] account?
[Myers’s Counsel]: I’m satisfied with that. I need written
confirmation that it’s been received.
[Loch’s Counsel]: Within 30 days. There will be a mortgage release
from Farmers and Merchant Bank on the applicable legal description that
Garcia Survey comes up with.
There will be an easement for a drainage tile out to the Frankfort
Road where the farm field that is beyond the property. This legal
description will include the encroachment that is on Leonard Loch’s sister’s
property, Miss Stahl [sic].
And the new property line will be behind – start behind their home
and run eastward, past the barn to the current line that the surveyor drew on
the Courtroom Exhibit that we’re submitting as part of the settlement.
4.
{¶ 8} The Courtroom Exhibit (“Courtroom Exhibit 1”) referred to by the parties
was a drawing by surveyor, Anthony Garcia, from 2014. The trial judge examined
Courtroom Exhibit 1 and acknowledged that the new survey would connect two parcels
of property depicted on the exhibit. This looked to the judge to be “about 4 point
something acres total.” He explained to the Myers that “whatever that survey line shows
connecting the two properties will be the acreage, whether it is 4.2 or 4.5 or 4.8, whatever
that is,” but he did not contemplate that it would be more than five acres.
{¶ 9} Important to the issues now before this court, the Myers’s counsel set forth
the consequences should Loch fail to fulfill his obligations under the agreement:
The settlement contemplates depositing $40,000 in escrow within 30
days. In the event that money is not deposited, the settlement that I
proposed, contemplates that there will be a Judgment Entry entered in this
action granting a Judgment in favor of the Defendants on the issues relating
to the option to purchase, eliminating the option to purchase and any
obligation the Myers have to convey any part of this parcel to Mr. Loch,
number one.
And number two, also granting judgment on the–or the counter
claim for eviction. So that the property will be vacated if the sale is not
concluded as proposed.
The court confirmed that these additional terms were agreeable to Loch:
5.
[Loch’s Counsel]: With the understanding that the survey is
probably going to take six, eight weeks to get it done.
[Myers’s Counsel]: But the money will be deposited 30 days from
today’s date.
[Loch’s Counsel]: Yes.
[Myers’s Counsel]: I understand the survey may take time, but–
thank you.
{¶ 10} On April 10, 2019, the trial court entered an order indicating that a
settlement had been reached and placed on the record, and it ordered counsel to submit a
judgment entry of dismissal within 30 days. No judgment entry was filed. On May 24,
2019, the trial court entered a judgment entry of dismissal for want of prosecution. It
granted the parties leave to file an amended judgment entry of dismissal and retained
jurisdiction to enforce the parties’ settlement agreement.
D. Loch deposits the money, but the parties cannot agree on boundary lines.
The parties file competing motions to enforce the settlement agreement.
{¶ 11} Loch deposited the money in his attorney’s escrow account as required, but
a disagreement ensued concerning the boundary lines drawn by the surveyor in a June
2019 survey. On September 19, 2019, the Myers filed a motion to enforce the settlement
agreement. They contended that the survey provided to them by Loch proposed a split of
the parcel that exceeded the size they agreed to and the expansion was inconsistent with
the drawing that had been submitted as Court Exhibit 1. The Myers asked the trial court
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to enter an order extinguishing Loch’s claimed right to purchase the property, dismiss
Loch’s complaint, grant an order of eviction, and award their legal costs and expenses.
They insisted that this was the relief to which they were entitled under the terms of the
settlement reached on April 8, 2019.
{¶ 12} On October 17, 2019, Loch filed his own motion to enforce the settlement
agreement. He insisted that he had deposited the $40,000 in his lawyer’s escrow account
within 30 days of the April 8, 2019 hearing, and the surveyor prepared a split of the
property that identified 5.031 gross acres and 4.610 net acres—less than the five acres
agreed to by the parties. Loch explained that the Myers were merely “disputing the
easterly boundary property line of about 10 feet and the northerly property line location.”
He characterized the Myers’s objection as post-settlement remorse.
{¶ 13} The Myers filed a supplemental memorandum in support of their motion to
enforce the settlement agreement. They again argued that the survey partitioned the
property in a manner that was inconsistent with Court Exhibit 1 and insisted that despite
advising Loch of the discrepancy and providing him the opportunity to obtain a revised
survey, Loch failed to do so. They maintained that the terms of the settlement agreement
provided that if Loch failed to conclude the purchase under the agreed-upon terms, a
judgment would be entered terminating any right of purchase and ordering eviction.
{¶ 14} In a judgment entered November 15, 2019, the trial court acknowledged
what Loch claimed—that the dispute was over the easterly boundary property line of
about 10 feet and the northerly property line location. But, according to the court, the
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issue “was not whether it is five (5) acres or less but rather does the survey and legal
description correspond to the lines drawn by the parties and counsel at the settlement
hearing.” It scheduled a hearing for November 21, 2019, so that it could pose questions
to the surveyor. It warned that at that time, it would grant one of the parties’ motions.
And “[d]epending upon this ruling, the Court may then have to proceed with the
eviction.”
{¶ 15} The November 21, 2019 hearing had to be vacated due to the illness of one
of the attorneys. The court scheduled a new hearing for February 28, 2020.
{¶ 16} The parties’ attorneys continued discussions in the period between the two
hearing dates, but negotiations apparently broke down around December 24, 2019. The
Myers’s counsel had told Loch’s attorney that because of the costs they had incurred,
they required an additional $10,000 from Loch, increasing the purchase price to $50,000.
They also insisted that the east property line needed to be redrawn to create an access
point from Frankfort Road to the farm field over an existing culvert. Loch maintained
that an access road already existed so no access over the culvert was required, and he
asked for an itemization of the Myers’s expenses. He offered to increase the purchase
price by $4,800. The Myers responded that they no longer wanted to sell and intended to
implement the “second option under the terms of the settlement,” which they claimed
entitled them to a judgment on their counterclaim for eviction.
8.
E. In lieu of a hearing, the parties submitted memoranda
and affidavits for the court to consider.
{¶ 17} Instead of going forward with the hearing scheduled for February 28, 2020,
the parties agreed to file briefs and affidavits in support of their respective positions.
{¶ 18} Loch maintained that Court Exhibit 1 was the beginning of a survey, drawn
in 2014, for a 2.4-acre parcel that included the house and barn but no additional storage.
Loch said that he contacted Garcia Surveyors to carry out the intent of the settlement
agreement, which was “to purchase not only the farm buildings and residence but also all
the land west of the residence owned by the Defendants up to the residence of Plaintiff
Leonard Loch’s sister westerly of the property up to a total of 5 acres.” (Emphasis in
original.) He contended that that survey had been preliminarily completed and stakes
were put in the ground in June of 2019.
{¶ 19} Loch further explained that he and the Myers had finally agreed upon a
drawing, but the Myers demanded an additional $10,000, then told Loch they were no
longer willing to go forward with the sale and intended to evict him. Loch indicated his
willingness to pay an additional $4,800, and he insisted that the terms of the settlement
called for eviction only if Loch failed to timely deposit the $40,000.
{¶ 20} In support of his position, Loch filed his own affidavit and an affidavit
from Anthony Garcia. Garcia in his affidavit explained his involvement with the
property. He said that he worked on a survey for Myers in 2014, but no stakes were put
in the ground at that time, no survey print was made—only a sketch was made—and it
was for only 2.4 acres. In June of 2019, at Loch’s request, he was asked to complete a
9.
survey in accordance with the settlement agreement. It was Garcia’s opinion that the
June 2019 survey complied with what was described in the transcript of the April 2019
settlement, however, the Myers’s attorney contacted him to tell him that the north line
was 32 feet longer and the east line was wider than it should be. Garcia revised the June
2019 survey to make the north line 32 feet shorter and he drew the eastern boundary line
where it made sense. The new smaller survey has a net acreage of 3.983 acres on one
parcel and .395 on the parcel next to Loch’s sister’s home for a total net acreage of 4.378
acres exclusive of roadway. Garcia described the differences between the 2014 drawing
and the 2019 surveys:
 The 2014 drawing was for 2.4 acres and did not establish an east or
north boundary line or dimensions for these property lines;
 The original 2019 survey was for 4.999 acres exclusive of roadway; and
 The revised 2019 survey is for 4.378 acres exclusive of roadway.
{¶ 21} The Myers responded that Loch unilaterally ignored and attempted to
change the terms of the settlement agreement, and when challenged on the issue, refused
for five months to “acknowledge his actions” or “to undertake the steps necessary to
correct the survey.” They maintained that even after purportedly agreeing to proceed in
accordance with the terms of the settlement, Loch continued to insist on an east property
line that was inconsistent with the agreement and refused to compensate the Myers for
the additional expenses he forced them to incur. The Myers insisted that their decision to
10.
withdraw from the settlement agreement was justified and reasonable given Loch’s
breach of that agreement, and it was within their right to seek enforcement of the eviction
remedy.
{¶ 22} The Myers, too, filed an affidavit from Garcia in support of their position.
According to that affidavit, the Myers hired Garcia in 2014 to survey and prepare a legal
description for the parcels in preparation for a proposed split, but terminated the project
before completion. The sketch from 2014 depicted two portions of a larger parcel of the
property. Garcia explained that Loch hired him in April or May of 2019, and he prepared
a survey dated June 17, 2019. Loch did not provide him a copy of the 2014 drawing; did
not advise him to survey the property as it was depicted in the 2014 drawing; did not
advise him to include the extension of the north property line as depicted in the 2014
drawing; and did not advise him to establish the east property line on the west side of the
existing culvert in the ditch (which could be used to provide access from Frankfort Road
to the farm field located east of the survey parcel, which was to be retained by the
Myers).
{¶ 23} Garcia further stated that Loch emailed him November 25, 2019, and asked
him to prepare a revised survey using the dimensions depicted on the 2014 survey
worksheet, and emailed him again on December 2, 2019, asking that he prepare a new
survey in conformity with the 2014 survey worksheet dimensions with land between the
houses added.
11.
F. The court enforces the settlement agreement in favor of Loch.
{¶ 24} The trial court ruled on the parties’ motions and issued a judgment entered
March 5, 2020. In its judgment, the court expressed its frustration over the delay in what
it characterized as a “fairly simple contractual dispute.” It attributed the delay to Loch’s
failure to provide the surveyor with the settlement information and noted that it was to
Loch’s benefit to delay the agreement because he pays no rent or taxes on the property.
Ultimately, however, the court observed that the new parcel drawing appeared to be
satisfactory except for the east property line and the culvert that allowed the Myers access
to their remaining property, and it acknowledged that Loch (via a December 23, 2019
email from counsel) offered to pay an additional $4,800 to complete the transaction.
{¶ 25} The court concluded that the settlement should be enforced in favor of
Loch “upon the survey being modified to keep the culvert on the Myers’s property or the
Plaintiff granting to the Defendant a permanent easement for the required access.” It
required that Loch pay the additional $4,800 to the Myers “pursuant to counsels [sic]
agreement of December 3, 2019” and that settlement be completed within 60 days of its
order. It warned that if its entry was not enforced in a timely manner, it would revisit the
issues.
{¶ 26} The next day, the Myers moved for reconsideration, questioning whether
the court had reviewed and taken into account the facts set forth in Garcia’s second
affidavit—the one they had submitted. They questioned, also, whether the court had
overlooked information indicating that the Myers were willing to proceed with the sale
12.
only if Loch paid an additional $10,000 to compensate them for extra expenses incurred
due to Loch’s delay. They explained that the $4,800 referred to in counsels’ email
correspondence was meant to be payment for the additional .61 acres that was not
included in Court Exhibit 1—it was not intended to be accepted as reimbursement for
their additional expenses. Finally, the Myers emphasized that the location of the east
property line remained undetermined.
{¶ 27} Loch sought clarification of the court’s March 5, 2020 judgment. He
questioned whether he must pay $4,800 to the Myers even if no additional acreage was
conveyed to him. He stated that he presumed that if no additional acreage was provided,
he would not be required to pay the additional $4,800.
G. Delays ensue and more motions are filed.
{¶ 28} The COVID-19 pandemic caused unforeseen delays in the parties’ ability
to complete the settlement. Counsel engaged in some back-and-forth email discussions
in May and June of 2020, concerning adjustments to the property lines, including a 15-
foot move of the east line for the access drive. On June 16, 2020, the Myers sent a
specific proposal marking up the most recent survey with their suggested revisions and
agreeing to accept $44,400. Eleven days later, having received no response from Loch,
the Myers filed a motion to enforce the terms of the court’s March 5, 2020 judgment.
They requested that the court enter an order requiring Loch to place the full purchase
price in escrow before July 2, 2020; secure a revised survey consistent with the March 5,
2020 order as it relates to the location of the east property line by July 15, 2020; secure
13.
approval of a parcel split from the appropriate government bodies by July 31, 2020; and
close on the purchase of the parcel by August 15, 2020. They asked that Loch be evicted
and ordered to vacate the property if he failed to complete these actions within the
allotted time.
{¶ 29} On July 2, 2020, Loch filed a motion to require the Myers to convey the
deed and an opposition to their motion “requiring change of court order.” Loch asserted
that he had escrowed $40,000, is willing to pay the additional $4,400, and obtained
necessary permits and approvals from the Lucas County Health Department, the Lucas
County Engineer, and the Lucas County Plan Commission. Loch insisted that the Myers
already have an approved access to the property “just east of where they covered the
ditch with a pipe,” thus there was no longer a need for an additional 15-foot access point.
He emphasized that the delays that occurred in obtaining government approvals resulted
from the COVID-19 pandemic. Loch requested that the court order the Myers to transfer
the property to him or his designee within 30 days and obtain a release of the mortgage
on the property upon the escrowing of $44,400 with the title company.
{¶ 30} The Myers opposed Loch’s motion to require them to convey the deed.
They maintained that when Loch filed the lot-split application to the county plan
commission, he misrepresented himself as their agent, and he submitted the application
on February 18, 2020, two weeks before the court’s March 5, 2020 judgment defining the
parcel to be sold. They argued that the parcel identified in the lot-split application was,
therefore, not the same as the parcel the court ordered to be conveyed, and Loch never
14.
sought to amend the application. The Myers insisted that Loch’s motion sought to
require them to convey a parcel different from the parcel the court identified in its March
5, 2020 judgment.
H. The court changes its mind.
{¶ 31} On August 21, 2020, the trial court entered a judgment vacating its March
5, 2020 judgment, voiding the option to purchase from the April 2, 2011 agreement,
denying Loch’s motion to enforce settlement, granting the Myers’s motion to enforce
settlement, granting the Myers’s request to evict Loch from the property, and denying as
moot the Myers’s motion to enforce the terms of the court’s March 5, 2020 judgment and
Loch’s motion to require the Myers to convey the deed.
{¶ 32} On September 18, 2020, the court conducted a hearing “to execute the
eviction and to determine how much time the Plaintiff might have before they be
removed from the property.” The court made clear its position that Loch failed to ever
present a survey consistent with the parties’ agreement:
The Court: * * * First of all, I would indicate that I did not come
here to reconsider the Court’s order of August 21st of this year, but just in
response to the arguments that were made, it is not my position to tell the
surveyor what you agreed to.
The surveyor on the first survey, was not even provided with Court’s
Exhibit number 1 because a survey could not have come out that way had
15.
he had that Exhibit at his disposal. I assume he had it in the second one,
and even the second one did not come out. But it is not my responsibility.
If the survey had been equivalent with Court’s Exhibit Number 1, I
would have been ruling in [Loch’s] favor and making [the Myers], without
any additional $10,000 or any additional money, transfer the property to
[Loch] in conformity with the agreement of last year.
As far as your proposed exhibits, I saw those in the jury room. The
photos of the barn, I’m not sure how that collapsed or what happened, but
that was still the Defendant’s property at the time. I mean, so that may be a
separate lawsuit. It has nothing to do with this settlement. It has nothing to
do with this particular case.
I saw both the surveys, which I think you said are Exhibits 1 and 2
from June of ’19 and February of ’20. Neither of those surveys comply
with * * * Exhibit number 1.
{¶ 33} The court also made clear that it interpreted the settlement agreement
consistent with the interpretation advanced by the Myers; that is, it interpreted the
agreement to provide for judgment against Loch on his declaratory judgment action and
in favor of the Myers on their counterclaim for eviction:
The court: Part of the agreement, as [the Myers’s attorney]
indicated, was if the $40,000 wasn’t deposited within a certain amount of
time. But then it went on to say if the agreement was not proceeded with,
16.
the Defendant’s counterclaim could be ruled on which is what the Court has
done.
We did have a discussion about 5 acres of property but because we
didn’t know what those dimensions were, we said it would not be in excess
of 5 acres. So you just can’t pick the 5 acres, we want to go over here 20
feet or we want to go over here 10 feet, we’re still within the 5 acres.
The agreement was the Court’s Exhibit number 1. From the day of
the settlement until today’s date there has been no survey, there has been
nothing that has been consistent with Court’s Exhibit Number 1.
The Court is going to grant the Plaintiffs 30 days to vacate the
premises. If there is an appeal, I’ll set a bond of a thousand dollars a month
while the appeal is pending as it relates to a fair market rental for the
property during that time period.
And as I said before, I’m shocked. I’ve never been so upset on a
case in 30 years as a Judge that we couldn’t work this out as attorneys, as
human beings. I’m shocked that I have to rule on this. I don’t want to evict
these people but that’s what the agreement is and because the agreement
was not complied with, I am forced to do that. Not that I want to do that,
but that is what I’m forced to do.
{¶ 34} The trial court’s decision was memorialized in a judgment entered on
September 24, 2020. It provided that Loch be evicted from the property within 30 days,
17.
but granted a stay pending appeal provided that Loch deposit $1,000 per month with the
Lucas County Clerk of Courts, representing rent for the property during the appeal.
Because Loch had not been allowed to present exhibits or testimony at the September 18,
2020 hearing, he submitted a written proffer of evidence.
I. Loch appeals.
{¶ 35} In separate notices, Loch appealed the August 21, and September 24, 2020
judgments. Those appeals have now been consolidated, and Loch assigns the following
errors for our review:
1. The trial court committed reversible error by voiding the Parties’
Settlement Agreement and entering Judgment in favor of the Defendants
when the trial court took such action without first conducting evidentiary
hearings.
2. The trial court committed reversible error in denying Plaintiff-
Appellant’s motion to enforce the Settlement Agreement when the evidence
presented shows that Plaintiff-Appellant fully complied with his obligations
under the terms of the Agreement.
II. Law and Analysis
{¶ 36} Loch challenges the trial court’s August 21, and September 24, 2020
judgments. He argues, first, that the trial court erred in voiding the parties’ settlement
agreement and entering judgment in favor of the Myers without first conducting an
evidentiary hearing. He then argues that the trial court erred in denying his motion to
18.
enforce the settlement agreement because he fully complied with the terms of the
agreement. We address Loch’s assignments of error in turn.
A. The Failure to Conduct an Evidentiary Hearing
{¶ 37} In his first assignment of error, Loch argues that the trial court was required
to conduct an evidentiary hearing before issuing its August 21, and September 24, 2020
judgments because there were numerous factual and legal disputes. He also claims that
an evidentiary hearing is statutorily mandated under R.C. 1923.07 before entering
judgment in favor of a landlord in a forcible entry and detainer action. Loch insists that
his “counsel was rebuffed in any and all attempts to present evidence or elicit testimony
on either the Settlement Agreement or upon issues relating directly to the eviction.”
{¶ 38} The Myers respond that the undisputed terms of the settlement agreement
required four things: (1) the deposit, within 30 days, of the purchase price; (2) a survey;
(3) the required approvals from local government authorities; and (4) the transfer of
ownership at closing. They maintain that the first three requirements were solely Loch’s
responsibility, and while he performed the first requirement, he failed to perform the
second, which precluded performance of the third and fourth requirements. They contend
that the terms of the settlement specifically provided for eviction and dismissal of the
option claim in the event of non-performance. The Myers acknowledge that in a
contested eviction proceeding, an evidentiary hearing is customary and required, but they
insist that no hearing was required here because Loch specifically consented to the
eviction as a consequence of his failure to perform the terms of the agreement. They
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emphasize that the trial court had first-hand knowledge of the terms of the settlement
agreement and those terms were placed on the record.
{¶ 39} The Myers further maintain that Loch was afforded an extended period of
time to comply with the terms of the agreement and was permitted the opportunity to
obtain a revised survey that would conform to the parties’ agreement, but he failed to do
so. They contend that the trial court correctly determined that Loch failed to fulfill his
obligations under the terms of the settlement agreement and his failure to do so resulted
in enforcement of the contract terms—“i.e., the dismissal of the claim that there was an
existing purchase option relating to the Property, and the entry of an order evicting Mr.
Loch from the Property.”
{¶ 40} Generally speaking, it is true that where the existence of a settlement
agreement or the meaning of its terms are disputed, “a trial court must conduct an
evidentiary hearing prior to entering judgment.” Rulli v. Fan Co., 79 Ohio St.3d 374,
377, 683 N.E.2d 337 (1997). Here, however, the parties agreed to submit briefs and
affidavits in lieu of a hearing. We must conclude, therefore, that Loch waived a right to a
hearing on the parties’ respective motions to enforce the settlement agreement. We see
no reason why this waiver would not extend to the Myers’s motion for reconsideration,
which the court effectively granted in its August 21, 2020 judgment.
{¶ 41} With respect to Loch’s claim that he was entitled to a hearing before being
evicted, the Myers acknowledge that in a contested eviction proceeding, an evidentiary
hearing is customary and required. See, e.g., Hampshire Hts., Inc. v. Van Wormer, 6th
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Dist. Lucas No. L-80-091, 1980 WL 351398, *1 (July 3, 1980) (requiring that evidence
must be adduced in an eviction matter even though tenant failed to appear). They insist,
however, that no hearing was required here because Loch specifically consented to the
eviction as a consequence of his failure to perform the terms of the agreement.
{¶ 42} If, indeed, the terms of the settlement agreement provided for eviction in
the event of Loch’s non-performance, and if Loch, in fact, failed to perform, we would be
forced to conclude that when Loch waived an evidentiary hearing on the motion to
enforce the settlement agreement, he also waived a hearing on the eviction. But rather
than specifically address this contention in this assignment of error, we address it in our
discussion of Loch’s second assignment of error.
B. Denial of Loch’s Motion to Enforce Settlement
{¶ 43} In his second assignment of error, Loch contends that the trial court
judgment should be reversed—and the settlement agreement enforced in his favor—
because he fully complied with his obligations under the settlement agreement. He
argues that under the agreement, he was required to (1) deposit $40,000 into his counsel’s
escrow account within 30 days of the settlement, and (2) have a survey completed,
creating a parcel conforming to Court Exhibit 1, consisting of five acres or less exclusive
of road right-of-way. He insists that he did both these things and fulfilled the spirit of the
agreement by securing required permissions and approvals from government agencies
necessary for the transfer of the property. Accordingly, he argues, he fully performed
under the plain language of the settlement agreement. He insists that the trial court
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abused its discretion and acted unreasonably, arbitrarily, and unconscionably in simply
“throwing its hands up” and refusing to conduct the required evidentiary hearings and
enforce the valid settlement agreement.
{¶ 44} The Myers dispute Loch’s contention that the agreement required merely
that the parcel be five acres or less. They insist that the parcel to be conveyed was the
specific parcel described in Court Exhibit 1—with the north boundary line established by
connecting the two parcels as depicted in that exhibit—but Loch tried to move the
boundary lines. The Myers contend that Loch eventually modified his directions to the
surveyor with respect to the north property line, but then failed to properly direct the
position of the east property line. They insist that Loch was given 17 months to correct
the survey, yet failed to do so. The Myers contend that the terms of the settlement
specifically provided for eviction and dismissal of the option claim in the event of non-
performance. They again emphasize that the trial court had first-hand knowledge of the
terms of the agreement.
{¶ 45} A settlement agreement is “a contract designed to terminate a claim by
preventing or ending litigation” and is governed by the law of contracts. Savoy Hosp.,
L.L.C. v. 5839 Monroe St. Assocs., L.L.C., 6th Dist. Lucas No. L-14-1144, 2015-Ohio-
4879, ¶ 23. Like any contract, a settlement agreement requires “a meeting of the minds
as well as an offer and an acceptance thereof.” Rulli v. Fan Co., 79 Ohio St.3d 374, 376,
683 N.E.2d 337 (1997), citing Noroski v. Fallet, 2 Ohio St.3d 77, 79, 442 N.E.2d 1302(1982). “To constitute a valid settlement agreement, the terms of the agreement must be
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reasonably certain and clear.” Id. To enable a court to enforce a settlement agreement,
the parties must have “expressed their intentions in a manner that is capable of being
understood.” Id., citing 1 Corbin on Contracts (Rev. Ed.1993) 525, Section 4.1. “It is not
even enough that they had actually agreed, if their expressions, when interpreted in the
light of accompanying factors and circumstances, are not such that the court can
determine what the terms of that agreement are.” Id. If the essential terms of the
agreement are vague, indefinite, or uncertain, it will be determined that no contract was
created. Id.{¶ 46} The Ohio Supreme Court cautioned in Rulli that “courts should be
particularly reluctant to enforce ambiguous or incomplete contracts that aim to
memorialize a settlement agreement between adversarial litigants.” Id. “Since a
settlement upon which final judgment has been entered eliminates the right to
adjudication by trial, judges should make certain the terms of the agreement are clear, and
that the parties agree on the meaning of those terms.” Id.{¶ 47} Here, the parties never reduced the terms of their settlement agreement to
writing; rather, they orally recited the terms of their agreement and placed them on the
court record. Nevertheless, an oral settlement agreement may be enforced “with the same
degree of formality and particularity that applies to the enforcement of a binding
contract.” Barstow v. O.U. Real Estate, III, Inc., 4th Dist. Athens No. 01CA49, 2002-
Ohio-4989, ¶ 38, citing Spercel v. Sterling Industries, Inc., 31 Ohio St.2d 36, 39, 285
N.E.2d 324 (1972).
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{¶ 48} The standard of review to be applied to a ruling on a motion to enforce a
settlement agreement depends on the question presented. If the question is an evidentiary
one, an appellate court will not reverse the trial court’s finding if there was sufficient
evidence to support such finding. M3 Producing, Inc. v. Tuggle, 2017-Ohio-9123, 91
N.E.3d 805, ¶ 11 (5th Dist.). If the dispute is a question of law, an appellate court must
review the decision de novo. Id. The determination of whether a contract exists is
a question of law. Zimmerman v. Bowe, 6th Dist. Lucas No. L-18-1200, 2019-Ohio-
2656, ¶ 11.
{¶ 49} Neither Loch nor the Myers dispute that a settlement agreement exists here.
They dispute the meaning of the terms of the agreement and whether or not Loch
performed as required. The trial court, too, believed a settlement agreement existed; it
interpreted the terms in favor of the Myers and found that Loch failed to perform.2
Despite the parties’—and the court’s—consensus on the fundamental issue of the
existence of the agreement, we conclude otherwise. We find that essential terms of the
agreement were vague, indefinite, or uncertain, thus no contract was created.
{¶ 50} To begin with, the settlement agreement provided for the transfer of real
property. Although the sale price had been agreed upon, the property was as-of-then
unidentified. In fact, the parcel had not been portioned off and did not yet exist.
2
In his brief, Loch maintains that “[t]here was no basis for the trial court to vacate and/or
void the valid Settlement Agreement between the Parties.” In fact, the court did not void
or vacate the agreement; rather, it enforced the agreement against Loch, finding that the
failure of the parties to consummate the sale of the property entitled the Myers to
judgment on Loch’s claim and on their own counterclaim.
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Portioning off the property into an identifiable parcel required the parties to obtain a
survey, legal descriptions, and various governmental approvals.
{¶ 51} “A contract for the sale of land must definitely point out the particular land
to be conveyed or must furnish the means of identifying it with certainty.” Schmidt v.
Weston, 150 Ohio St. 293, 82 N.E.2d 284 (1948), paragraph three of the syllabus. “[A]n
agreement for the sale of land is invalid and unenforceable [if] it fails to contain certain
essential terms, as where a contract for the sale of property contains an inadequate
description and a sale therefore cannot occur.” 77 American Jurisprudence, 2d Vendor
and Purchaser, section 524 (2021).
{¶ 52} Here, the agreement at issue is a settlement agreement and not a real estate
purchase agreement. But because the subject of the settlement agreement is an agreement
to enter into a real estate purchase agreement, an adequate description of the land was an
essential term here, and this term was missing.
{¶ 53} Certainly, the parties had a rough idea of what the parcel would look like—
the drawing marked as Court Exhibit 1. But the acreage and boundary lines remained
undetermined, and Loch never produced a mutually-agreeable survey. Although the
Myers may maintain that the failure to produce a mutually agreeable survey is actually
evidence of Loch’s failure to perform under the agreement—as opposed to evidence that
no settlement agreement was created—we believe this fact bolsters our conclusion that no
meeting of the minds existed in the first place. This is because even after being given the
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settlement transcript and Court Exhibit 1, the surveyor was unable to produce a survey
that conformed to the purported agreement.
{¶ 54} In his affidavits (one submitted for Loch, one for the Myers), the surveyor,
Garcia, indicated that before creating the June 2019 drawing, Loch provided him the
settlement transcript, and before revising the survey, he was provided Court Exhibit 1.
Despite the surveyor having this information at his disposal, he was not able to produce a
survey that the parties agreed upon. The court commented:
[The court:] The surveyor on the first survey, was not even provided
with Court’s Exhibit number 1 because a survey could not have come out
that way had he had that Exhibit at his disposal. I assume he had it in the
second one, and even the second one did not come out.
The surveyor’s inability to produce a conforming survey—even after being provided with
all pertinent information—demonstrates the vagueness, indefiniteness, and uncertainty of
the parties’ purported settlement agreement. Compare McLaughlin v. Sandlin, 2d Dist.
Montgomery No. 7257, 1981 WL 2567, *6 (Oct. 14, 1981) (“The important point is the
parties at the time of the contract to purchase knew what the exact configuration of the 34
acres would be as the result of the survey. The survey completed before the closing
caused neither seller [n]or buyer any problem.”). Because the description of the land was
inadequate, we conclude that the settlement agreement lacked essential terms.
{¶ 55} We are aware of at least one case where the court found that a land contract
did not fail due to the absence of a detailed property description, despite the fact that the
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land at issue still needed to be parceled off. In Phillips v. May, 11th Dist. Geauga No.
2003-G-2520, 2004-Ohio-5942, the defendant owned 15.589 acres of land. One half was
unimproved and the other contained “a ‘brick cottage’ with a driveway leading out to
Taylor May Road, a lake, a lawn area, and several sheds or out buildings.” Id. at ¶ 3.
The parties’ written agreement provided that defendant would sell plaintiff “Brick
Cottage[,] 11327 Taylor May Road[,] ‘approx 7 ½ acres x 300′ Approx frontage.’” Id. at
¶ 4. Defendant eventually claimed that she never agreed to sell the property at all. One
of the arguments she asserted to try to avoid the agreement was that the terms were
uncertain as to the description of the property being sold.
{¶ 56} The trial court concluded that it was clear from the evidence that the parties
agreed as to the acreage, the location of the easterly boundary, the back property line, and
the westerly line. It found that “the westerly boundary line would parallel the easterly
line, * * * the back or northerly line would connect the two side yard lines,” and “[t]he
depth or length of the side yard lines would be determined by dividing the square feet in
7 ½ acres (43,560 x 7.5 = 326,700) by 300, resulting in side property lines of
approximately 1,089 feet.” Id. at ¶ 34. The appellate court agreed with the trial court
that the manner of dividing the property was not uncertain because it was clear that
plaintiff was purchasing the parcel that contained the brick cottage, “[t]he disputed
parcel’s total frontage on Taylor May Road is 604 feet,” therefore, “any division of the
parcel providing for 300 feet of frontage on Taylor May Road will bisect the parcel into
two, almost equal, sections” as provided for in the agreement. Id. at ¶ 35. Accordingly,
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there was no question as to which portion of the parcel was intended in the agreement,
and the court found the agreement enforceable.
{¶ 57} The present case is not so simple. The agreement was for up to five acres
of an almost 40-acre piece of property, the precise acreage was unknown—the trial court
acknowledged that it could be “4.2, 4.5, 4.8, whatever” acres—a right-of-way needed to
be established, an easement for a drainage tile had to be provided for, and the property
line had to connect to Loch’s sister’s property. All these details needed to be worked out
in the context of an already-contentious relationship between the parties. We find,
therefore, that the absence of a detailed description of the property to be transferred
rendered the settlement agreement invalid. See, e.g., Ward v. Ward, 4th Dist. Vinton No.
93CA491, 1995 WL 75391, *2–3 (Feb. 22, 1995) (finding divorce decree which
attempted to incorporate parties’ in-court settlement was vague and unenforceable where
it provided that two acres of 11-acre parcel would be transferred to wife but did not
identify the precise land and boundaries).
{¶ 58} Because we conclude that no settlement agreement existed, we reverse and
vacate the trial court’s August 21, 2020 judgment, which enforced that agreement in
favor of the Myers and voided the April 2, 2011 option to purchase, in effect entering
judgment in favor of the Myers on their counterclaim for eviction and Loch’s complaint
for declaratory judgment (even though those claims had been dismissed without
prejudice). This means that the trial court’s September 24, 2020 judgment evicting Loch
must also be reversed and vacated.
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III. Conclusion
{¶ 59} We find Loch’s first assignment of error well-taken, in part, and not well-
taken in part. We find that the trial court did not err in failing to conduct an evidentiary
hearing on the motions to enforce settlement agreement because the parties waived their
right to a hearing. But given that the purported settlement agreement—which the Myers
allege provided for eviction in the event of Loch’s non-performance—is unenforceable,
we find that Loch did not waive his right to a hearing on the eviction through the alleged
settlement agreement. Accordingly, the trial court erred in evicting Loch without a
hearing.
{¶ 60} We find Loch’s second assignment of error not well-taken because the trial
court did not err by denying his motion to enforce settlement agreement. But we must
nonetheless reverse the August 21, and September 24, 2020 judgments of the Lucas
County Court of Common Pleas because, upon our de novo review, we find that no valid
settlement agreement existed. Accordingly, both parties’ motions to enforce the
settlement agreement should have been denied. We remand this matter to the trial court
where it shall be reinstated to the court’s litigation docket.
{¶ 61} The parties are ordered to share in the costs of this appeal under App.R. 24.
Judgment affirmed, in part,
and reversed, in part.
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L-20-1159
Loch v. Myers, et al.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Myron C. Duhart, 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.supremecourt.ohio.gov/ROD/docs/.
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