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Foor v. Columbus Real Estate Pros. Com

Court of Appeals of Ohio, Fifth District, Delaware

June 25, 2013

CHRISTINE L. FOOR Plaintiff - Appellant/Cross-Appellee
v.
COLUMBUS REAL ESTATE PROS. COM, ET AL. Defendant-Appellees/Cross-Appellants

Appeal from the Delaware County Court of Common Pleas, Case No. 11 CV H 04 0448

For Plaintiff-Appellant/ Cross-Appellee KEVIN O'BRIEN JONATHAN LAYMAN Kevin O'Brien and Associates Co., L.P.A

For Defendants-Appellees/Cross-Appellants CHRISTOPHER L. TROLINGER Farlow and Associates, LLC.

Hon. W. Scott Gwin, P.J. Hon. Sheila G. Farmer, J. Hon. Craig R. Baldwin, J.

OPINION

HON. CRAIG R. BALDWIN

{¶1} Appellant Christine L. Foor appeals a judgment of the Delaware County Common Pleas Court enforcing a settlement agreement and dismissing her complaint against appellees Columbus Real Estate Pros.com, Gregory R. Babbitt and Your Estate Pros LLC. Appellees have filed a cross-appeal assigning error to the judgment of the court granting appellant partial summary judgment on their counterclaims.

STATEMENT OF FACTS AND CASE

{¶2} On April 8, 2011, appellant filed a complaint against appellees for failing to properly manage a parcel of rental property owned by appellant. The complaint contained ten causes of action, including negligent infliction of emotional distress, fraud, breach of contract and multiple violations of consumer statutes. Appellees filed a counterclaim for breach of contract, indemnification and payment of attorney fees.

{¶3} Both sides filed motions for summary judgment on the counterclaims for indemnification and failure to purchase insurance on the property. The trial court denied appellees' motion for summary judgment and partially granted appellant's motion for summary judgment.

{¶4} On October 24, 2011, counsel for appellant sent a letter to counsel for appellees offering to settle the case for $15, 000.00. Counsel for appellees responded by email on November 4, 2011, that appellees would settle the case in exchange for appellant paying all of their attorney fees plus costs.

{¶5} Counsel for appellant emailed appellees' attorney on November 8, 2011, stating that he may have authority to settle the case. During a telephone conversation the next day, counsel agreed that the parties would mutually "walk away." Counsel for appellees was to draft a written settlement agreement.

{¶6} On November 14, 2011, appellant filed a complaint against appellees with the Department of Commerce. At this time, counsel for appellees discovered that he had not sent his draft of the settlement agreement to appellant's attorney. Counsel for appellees sent appellant a draft of the agreement on December 2, 2011.

{¶7} Appellees filed a motion to enforce the settlement agreement on February 23, 2012. The court held an evidentiary hearing on July 13, 2012. At the hearing, counsel for appellees testified that he believed there were no further details to work out in the settlement agreement and the parties would walk away with no further judicial or administrative proceedings being filed. Appellant testified that she understood the settlement to be "possible" and that it would not be final until it was in writing and she had an opportunity to review the language. She also testified that she did not understand the settlement included any possible administrative proceedings, and believed the settlement only covered the case in Delaware County. Counsel for appellant testified that the settlement was for the parties to "walk away, " and there were no discussions about mutual releases or about appellant not proceeding with an administrative complaint.

{ΒΆ8} The trial court found appellant's testimony was not credible and granted the motion to enforce the settlement agreement. The court dismissed both the complaint and the ...


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