Court of Appeals of Ohio, Seventh District, Mahoning
EUNICEE R. HENRICKSEN, PLAINTIFF-APPELLANT,
ROBERT J. HENRICKSEN et al., DEFENDANTS-APPELLEES.
Appeal from the Court of Common Pleas of Mahoning County,
Ohio Case No. 15 CV 3038
Plaintiff-Appellant: Atty. David L. Engler
Defendants-Appellees: Atty. Lynn Sfara Bruno, Company, LPA,
Inc. Atty. Lynn Sfara Bruno Atty. Charles A.J. Strader Atty
Ronald D. Yarwood
Carol Ann Robb Hon. Gene Donofrio Hon. Cheryl L. Waite
Plaintiff-Appellant Eunicee R. Henricksen appeals the
decision of Mahoning County Common Pleas Court granting
Defendants-Appellees Robert Henricksen, Tim Henricksen, and
Geri Henricksen's motions for summary judgment. Three
assignments of error are raised in this appeal. The first
issue is whether the defense of settlement should have been
struck because it was not plead in the answer. The second
issue is whether the settlement agreement applies to the
claims raised in this case. The third issue is whether the
settlement agreement was proper summary judgment evidence.
For the reasons expressed below, the trial court's grant
of summary judgment for Appellees Tim and Geri is affirmed;
pertaining to Appellees Tim and Geri, all three assignments
of error lack merit. As to Appellee Robert, the first and
third assignments of error lack merit; however, the second
assignment is meritorious. The settlement agreement only
resolved the known and unknown claims asserted by and against
Appellees Tim and Geri; it did not settle the known and
unknown claims against Appellee Robert. Thus, the trial
court's grant of summary judgment for Appellee Robert is
reversed and the matter is remanded for further proceedings.
of the Facts and Case
On November 20, 2015 Appellant Eunicee filed a complaint
against Appellees Robert, Tim, and Geri. At the time of the
complaint Appellee Robert and Appellant Eunicee were married;
Appellant Eunicee filed for divorce five months prior to the
filing of the complaint, but the divorce was not finalized
until 2016. Appellees Tim and Geri are Robert's parents
and were named as third-party defendants in the divorce
action filed by Appellant.
The first count of the complaint alleged the intentional tort
of assault against Appellee Robert. The basis for the count
is a domestic violence incident that occurred on November 20,
2014 between Appellant Eunicee and Appellee Robert; Appellant
suffered a broken nose, and several facial bruises and
contusions. In October 2015, Appellee Robert was convicted of
attempted aggravated assault.
The second count of the complaint was labeled
"Retaliatory Eviction and Interference with a
Witness." This claim was against Appellees Tim and Geri.
Appellant Eunicee and Appellee Robert resided at 2724 Bears
Den Road, Youngstown, Ohio; the house was owned by Appellees
Tim and Geri. Allegedly a few days after the assault,
Appellees Tim and Geri told Appellant to pack her belongings
and leave the residence. When Appellant did not comply,
Appellees filed an eviction action in Youngstown Municipal
Court and formally evicted Appellant in October 2015. This
occurred during the pendency of the criminal case against
Appellee Robert. Appellant alleges Appellees Tim and Geri
evicted her during the criminal case to "knowingly
influence or attempt to influence her cooperation or lack of
cooperation during the prosecution of son's felony."
The third count of the complaint alleged intentional
infliction of emotional distress against all Appellees. The
alleged emotional distress was caused by the assault and
Appellant sought compensatory damages in excess of $25, 000
and punitive damages in the amount of $100, 000.
In response to the complaint, Appellees Tim and Geri filed an
answer and counterclaim. In their answer they pled
affirmative defenses and reserved the right to rely on other
defenses as they became available at law or through the
discovery process. In their counterclaim, they asserted
Appellant Eunicee and Appellee Robert rented the property
from them and had not paid rent in two years. Thus, they
asked Eunicee and Robert to leave so they could sell the
house. Robert complied with the request; Eunicee did not.
Thus, Tim and Geri filed an action in Youngstown Municipal
Court to formally evict her. In the counterclaim, they sought
back rent and restitution for damages Appellant Eunicee
caused to the property. They sought damages in the amount of
$25, 000. 2/18/16 Answer and Counterclaim.
Appellee Robert filed an answer and also reserved the right
to raise additional affirmative defenses as they became
available. 2/29/16 Robert Answer.
In November 2016, both Appellee Robert and Appellees Tim and
Geri filed motions for summary judgment. 11/10/16 Tim and
Geri Motion for Summary Judgment; 11/22/16 Robert Motion for
Summary Judgment. In the motions, all Appellees asserted the
affirmative defense of accord and satisfaction/settlement.
They alleged the parties entered into a settlement agreement
in the divorce action on March 9, 2016 and that settlement
released all of Appellant's known and unknown claims
Attached to each summary judgment motion was the March 9,
2016 settlement agreement. Neither motion incorporated the
settlement through an affidavit. However, Appellee Robert
requested leave to supplement the summary judgment motion to
include his affidavit incorporating the settlement agreement.
12/6/16 Motion to Supplement Summary Judgment Motion. The
trial court granted the motion. 12/12/16 J.E.
With the trial court's permission, Appellees Tim and Geri
also filed a Motion for Default Judgment Instanter against
Appellant Eunicee. 11/30/16 Motion for Default Judgment
Instanter; 11/23/16 J.E. The motion alleged Appellant Eunicee
failed to file an answer to the counterclaim.
Appellant responded to the summary judgment motions, but did
not respond to the motion for default judgment. Appellant
argued the affirmative defense of accord and satisfaction
should be struck because it was not pled in the answers.
Alternatively, she argued the plain language of the release
was limited to the divorce action. She contended, at the
minimum, the language should be determined to be ambiguous,
and thus, the intent of the parties was a jury question.
Accordingly, she asserted summary judgment was not warranted.
1/3/7 Motion in Opposition.
In Appellee Robert's reply to Appellant's motion in
opposition to summary judgment, he moved to amend his answer
to include the affirmative defense of accord and
The trial court granted Appellees motions for summary
judgment based on the settlement in the divorce action.
2/9/17 J.E. In that ruling it did not expressly grant
Appellee Robert's motion to amend the answer and it did
not make a ruling on Appellees Tim and Geri's motion for
Appellant timely appealed the trial court's decision and
raises three assignments of error.
Assignment of Error
Court abused its discretion in failing to grant
Appellant's motion to strike the affirmative defense of
accord and satisfaction or release."
Appellant argues the trial court erred in failing to strike
the affirmative defense of accord and
satisfaction/settlement. She contends the defense was not
raised in the answer, but instead was raised for the first
time in the summary judgment motions. Pursuant to Civ.R.
8(C), 12(H) and the Ohio Supreme Court's decision in
Jim's Steak House, Inc., she argues ...