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Henricksen v. Henricksen

Court of Appeals of Ohio, Seventh District, Mahoning

December 12, 2017

EUNICEE R. HENRICKSEN, PLAINTIFF-APPELLANT,
v.
ROBERT J. HENRICKSEN et al., DEFENDANTS-APPELLEES.

         Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 15 CV 3038

          For Plaintiff-Appellant: Atty. David L. Engler

          For Defendants-Appellees: Atty. Lynn Sfara Bruno, Company, LPA, Inc. Atty. Lynn Sfara Bruno Atty. Charles A.J. Strader Atty Ronald D. Yarwood

          Hon. Carol Ann Robb Hon. Gene Donofrio Hon. Cheryl L. Waite Judges.

          OPINION

          ROBB, P.J.

         {¶1} 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.

         {¶2} 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.

         Statement of the Facts and Case

         {¶3} 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.

         {¶4} 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.

         {¶5} 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." 11/20/15 Complaint.

         {¶6} 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 eviction.

         {¶7} Appellant sought compensatory damages in excess of $25, 000 and punitive damages in the amount of $100, 000.

         {¶8} 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.

         {¶9} Appellee Robert filed an answer and also reserved the right to raise additional affirmative defenses as they became available. 2/29/16 Robert Answer.

         {¶10} 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 against them.

         {¶11} 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.

         {¶12} 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.

         {¶13} 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.

         {¶14} 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 satisfaction.

         {¶15} 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 default judgment.

         {¶16} Appellant timely appealed the trial court's decision and raises three assignments of error.

         First Assignment of Error

         "The Court abused its discretion in failing to grant Appellant's motion to strike the affirmative defense of accord and satisfaction or release."

         {¶17} 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 ...


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