Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kilroy v. William Peters/Jackson Township Board of Trustees

Court of Appeals of Ohio, Second District

August 2, 2013

MICHAEL P. KILROY, et al. Plaintiffs-Appellees
v.
WILLIAM PETERS/JACKSON TOWNSHIP BOARD OF TRUSTEES, et al. Defendants-Appellants

Civil Appeal from (Common Pleas Court Trial Court Case No. 2007-CV-5170

CHRISTOPHER R. CONARD, Atty. Reg. No. 0039751, DAVID P. PIERCE, Atty. Reg. No. 0061972, SASHA ALEXA M. VANDEGRIFT, Atty. Reg. No. 0080800, Attorneys for Plaintiffs-Appellees.

MATHIAS H. HECK, JR. by TODD M. AHEARN, Atty. Reg. No. 0069674, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Attorney for Defendants-Appellants.

OPINION

WELBAUM, J.

{¶ 1} Defendants-Appellants, William Peters, Thomas Sears, and Debra Johnson, appeal individually and in their capacity as Jackson Township Trustees (collectively, "Trustees"), from an order enforcing a settlement agreement with Plaintiffs-Appellees, William and Vickie Kilroy. The order also awarded attorney fees to the Kilroys.

{¶ 2} In support of their appeal, the Trustees contend that the trial court erred in concluding that they agreed to the settlement in their official capacities at a public meeting. The Trustees further contend that the trial court erred in finding that they agreed to the settlement in their individual capacities. Finally, the Trustees contend that the trial court erred in concluding that the Kilroys are entitled to attorney fees.

{¶ 3} We conclude that the trial court did not err in finding that the Trustees agreed to a settlement in their official capacities at a public meeting. We further conclude that the settlement agreement was binding on all parties, including the Trustees in their individual capacities. Attorney fees were also appropriately awarded, pursuant to the settlement agreement. Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 4} The Kilroys are owners of real property located in Jackson Township, Montgomery County, Ohio. The action before us arose from a prior mandamus action in which the Kilroys, their neighbors, the Johnsons, and the Trustees entered into a stipulation and settlement agreement in lieu of a writ of mandamus. The agreement provided, among other things, that the Johnsons would clear the fence line between the Kilroy and Johnson properties of all brush, briars, thistles, vines, and other noxious weeds, by cutting or otherwise physically removing the weeds. If the Johnsons failed to do this, the agreement also provided that the Kilroys would have the right to petition the Trustees for relief pursuant to R.C. 971.34, and that the Trustees would agree to promptly grant the relief authorized by the statute. The parties signed the settlement agreement in November 2005.

{¶ 5} Subsequently, in June 2007, the Kilroys filed the present civil action against the Johnsons and the Trustees, both individually and in their official capacities. The complaint alleged that the Johnsons had failed to clear the partition fence line, and that the Trustees had also refused to cure the Johnsons's default. Therefore, according to the complaint, the Trustees had breached the settlement agreement.

{¶ 6} The complaint also contained claims that the Trustees, as individuals, had acted fraudulently in inducing the Kilroys to enter into the settlement agreement. As a result, the Kilroys requested punitive damages against the Trustees in their individual capacities. Accordingly, the Kilroys asked the trial court to order the Trustees to perform their obligations under the settlement agreement and to award attorney fees and costs. The Kilroys also asked the court to award compensatory and punitive damages, and to include reasonable attorney fees.

{¶ 7} In December 2008, an agreed entry of partial dismissal of claims against the Johnsons was filed. A second amended complaint was then filed in January 2009, eliminating the claims against the Johnsons, and retaining the claims against the Trustees in their individual and official capacities. The Second Amended Complaint contained the following claims: (1) a breach of contract claim against Jackson Township; (2) a declaratory judgment claim against Jackson Township; (3) a failure to perform special duty claim against Jackson Township; (4) an intentional interference with contract claim against the Trustees, individually; and (5) a civil conspiracy claim against the Trustees, individually. As before, the complaint requested compensatory and punitive damages, and reasonable attorney fees.

{¶ 8} At all times relevant, an Assistant Prosecuting Attorney for Montgomery County represented the Trustees in both their individual and official capacities. See, e.g., Answer of Jackson Township Trustees to Plaintiffs' Second Amended Complaint, Doc. #57.

{¶ 9} In January 2010, the parties participated in mediation. Settlement was not immediately successful, but the parties then informed the trial court on January 15, 2010, that the case had been settled. Subsequently, however, the Kilroys filed a motion to enforce the January 2010 settlement agreement, based on the fact that the Trustees had refused to sign an apology letter that had been agreed upon. The motion was supported by the affidavit of Christopher Conard, an attorney representing the Kilroys. Conard and his clients had attended the mediation hearing, along with the Trustees and their attorney, Doug Trout. According to Conard:

One of the material terms of the settlement offer was that the Trustees sign an apology letter to the Kilroys that would be drafted by my office. I presented a copy of the apology letter to the Trustees and Mr. Trout [their attorney] at the mediation. The language of the apology letter was approved at the mediation and counsel for all parties left the mediation with only the settlement amount to be paid to the Kilroys and the payment terms open for continued discussions. Affidavit of Christopher Conard, ¶ 5, attached as Exhibit A to Plaintiffs Motion to Enforce Settlement Agreement, Doc. #69.

{¶ 10} The apology letter contained the names of the Trustees and signature lines for their signature. The letter also stated, in pertinent part, that:

Dear Mike and Vickie:
We sincerely apologize for all of the pain and inconvenience we have caused you over the years by failing to perform our duty to clear the fence line between the property located at 12360 Hemple Road and 12332 Hemple Road.
Again, please accept our apology. Exhibit B attached to Plaintiffs Motion to Enforce Settlement Agreement, Doc. #69.

{¶ 11} Conard's co-counsel, David Pierce, subsequently sent an e-mail to Doug Trout, dated January 14, 2010. The e-mail outlined the following settlement terms, subject to a formal settlement agreement:

1) [Trout's clients] will pay the Kilroys $15, 000 with 5K upon execution of the agreement; 5K by January 15, 2011; and 5K with [sic] January 15, 2012. If [Trout's clients] don't make the future payments on time, they will be responsible for all future attorney fees, expenses, and costs of collection;
2) [Trout's clients] will execute the apology letter we previously sent to you at the time the agreement is signed and deliver it to [the Kilroys];
3) [The Kilroys] will execute a settlement agreement and mutual release for all actions by any party to date. The release will not, however, have any confidentiality provision in it or other restrictions on our respective clients not set forth herein;
4) An exhibit to the release will be a proposed resolution for approval by the township and [Trout's clients] will agree to use their best efforts to have the agreement approved;
5) Upon [Trout's] confirming e-mail, [the Kilroys] will advise the court that [the parties] have an agreement and that the trial date is off If for any reason, this settlement is not fully executed or approved by the Township, [the parties] will be able to pursue their original claims if they elect to do so. Exhibit C attached to Plaintiffs Motion to Enforce Settlement Agreement, Doc. #69.

{¶ 12} After receiving David Pierce's e-mail, Trout responded with the following e-mail, message, dated January 14, 2010: Dear Dave:

I have reviewed the terms of the settlement as outlined by you in the attached message. We have a settlement based on the terms described below [in Pierce's original e-mail, which appears below Trout's e-mail]. Once a formal settlement agreement is drafted and submitted to me for approval and execution, I will have my ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.