Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
Nos. CV-13-819529, CV-17-884945, and CV-18-894019
Zukerman, Daiker & Lear Co., L.P A., Larry W. Zukerman,
and S. Michael Lear, for appellants.
JOURNAL ENTRY AND OPINION
MICHELLE J. SHEEHAN, JUDGE.
1} Plaintiff-appellant Susan Pollock filed a lawsuit
against Trustar Funding, L.L.C. ("Trustar"
hereafter) and several individuals related to the company.
The parties settled the lawsuit after reaching a settlement
agreement, which set forth a five-year payment schedule, and
the terms of the agreement were incorporated into a consent
judgment journalized by the court. The defendants
subsequently failed to make the required payments and
defaulted. The defendants then proffered a new settlement
agreement. The dispute in this case was whether the trial
court should enforce the original settlement agreement as
incorporated in the consent judgment or the new proffered
settlement agreement. After a review of the record and
applicable law, we affirm the trial court's judgments
enforcing the terms of the original settlement agreement.
2} This case has a convoluted and confusing
procedural history due in part to the zealous advocacy by
plaintiffs attorney, Harold Pollock, who is also a party in
the underlying action. In the following, we summarize, to the
best of our ability, the procedural history relevant to this
appeal based upon the record.
3} In 2010, Harold Pollock, Esq., and his wife Susan
Pollock obtained a short-term loan of $170, 000 from
Brookview Financial, Inc. to finance the purchase of a
property. Trustar was the servicer for the loan. Trustar was
a family business: Brian Stark was the president of the
company, and his now ex-wife Sharon Stark and his brother
Paul Stark were employees of the company. In September 2011,
the Pollocks made a $75, 000 payment to Trustar as a partial
payment for the loan. An employee of Trustar, allegedly
Sharon Stark, misappropriated the funds and never forwarded
the payment to Brookview Financial, Inc.
Settlement Agreement and the Subsequent Default
4} To recover the misappropriated funds, the
Pollocks filed a complaint in 2013 (Cuyahoga C.P. No.
CV-13-819529, "Pollock 1" hereafter)
against Trustar, Brian Stark, Sharon Stark, Paul Stark, and
other related entities. As subsequently amended, the
Pollocks' complaint alleged 16 counts, including a
violation of the Ohio Predatory Lending Act, breach of
contract, breach of duty of good faith, request for
declaratory relief, respondeat superior, conversion,
promissory estoppel, fraud and misrepresentation, piercing
the corporate veils, fraudulent conveyances, breach of
fiduciary duty, request for specific performance, request for
preliminary and permanent injunction, and violations of the
Ohio Consumer Sales Practices Act.
5} Contentious litigation ensued soon after the
Pollocks filed the amended complaint. Within weeks, the
docket recorded almost 20 filings from attorney Harold
Pollock, who represented himself and his wife at trial, and
almost ten filings from attorney J. Norman Stark,
Brian and Paul's father, who acted as their counsel in
6} The parties then reached a global settlement
agreement in late April 2014. Under the agreement, the Stark
defendants were to pay Susan Pollock $100, 000, with the
payment amortized over five years (around $1, 854 per month)
beginning with June 2014. A promissory note of $100, 000 was
to be executed in her favor and secured by eight properties
owned by various Stark defendants, and certain late payment
interest and penalties were to be paid in the event of late
payments under the note.
7} A consent judgment entry was journalized in May
2014 by the trial court. The consent judgment stated a judgment
of $100, 000 (amortized over five years) was entered in favor
of Susan Pollock. It also referenced the purported note, but
the note was not attached to the judgment and it is unclear
whether such a note was ever executed by the
8} Following the settlement and the consent
judgment, the Stark defendants began in July 2014 to pay
Susan Pollock a monthly payment of $1, 854.71, under the
amortization rate provided in the settlement agreement. Three
years later, after paying a total of $50, 000, the Stark
defendants defaulted in March 2017.
9} After the defendants defaulted in payment, the
litigation in this matter resumed in earnest. Beginning in
August 2017, attorney Pollock filed a flurry of motions in
this case. He also filed two foreclosure actions, Cuyahoga
C.P. Nos. CV117-883959 ("Pollock 2") and
CV-17-883964 ("Pollock 3") (against Sharon
Stark and Paul Stark's personal residences, respectively,
that were granted as security for the $100, 000 judgment as a
part of the parties' settlement agreement). In addition,
he filed a creditor's bill action against Paul Stark,
Cuyahoga C.P. No. CV-17-884762 ("Pollock
4") and two cases claiming fraudulent conveyance
(Cuyahoga C.P. Nos. CV-17-884945/"Pollock
5" and CV-18-894019/"Pollock 6")
in August 2017 and March 2018, respectively, the latter
against attorney Stark and his wife.
10} The court held a hearing in October 2017, one of
the six hearings the court held in this post-judgment matter.
The court and the parties discussed the possibility of
consolidating the August 2017 fraudulent conveyance case with
the instant case. After hearing, the court issued an entry
stating, "[f]or purposes of consolidation, this case is
hereby reinstated." Subsequently, both fraudulent
conveyance cases were transferred to the trial court's
docket for consolidation with the instant case (Pollock
for a New Settlement
11} On April 20, 2018, by way of email
communication, attorney Stark proposed a new payment schedule
to cure the defendants' default. The proffered settlement
called for a payment of $62, 000, to be paid by an initial
lump sum payment of $11, 000, followed by an accelerated
payment schedule consisting of alternating monthly payments
of $5, 000 and $1, 000, which would conclude in August 2019.
As reflected by the response time on attorney Pollock's
email reply to attorney Stark, the proffer was immediately
12} Three days later, on April 23, 2018, attorney
Pollock sent an email to the staff attorney for the trial
court. In the email, he claimed that Stark defendants should
be precluded from seeking to enforce the original settlement
agreement because they were in default. He maintained that in
order to allow the Stark defendants to resume payments under
the 2014 settlement agreement, they would have to pay the
"$27, 000 amount in which they are in arrears."
He also informed the court that attorney Stark had proffered
a new settlement but he and his wife "do not believe the
Stark Defendants would or could make these
Motions to Enforce the Settlement Agreement, the Hearings,
and Subsequent Judgment Entries
13} On April 27, 2018, attorney Pollock filed a
motion to enforce the 2014 settlement agreement. In
conjunction, he filed a motion to show cause, asking the
defendants to be held in contempt for violating the
settlement agreement. Three days later, attorney Norman Stark
filed the defendants' own motion to enforce the 2014
settlement agreement. The defendants acknowledged their
default but asked the court to permit them to resume payments
under the 2014 settlement agreement.
14} On May 21, 2018, the trial court held a hearing
on the dueling motions to enforce the settlement agreement.
Brian Stark testified that his ex-wife Sharon and his brother
Paul had left the company and he alone carried the burden of
paying for the amount owed under the 2014 settlement
agreement. Attorney Pollock asked that the defendants be
required to make up for the missed payments now for the 14
months between the default in March 2017 and the present
time, plus penalties for the late payments.
15} The trial court inquired as to the circumstances
surrounding the 2014 settlement and the new settlement
proffered by attorney Stark in April 2017. At one point, the
court stated "I'm going to enforce the settlement
that they have offered," referring to the proffered
settlement, to which attorney Pollock responded
"okay." It is unclear what "okay" means
in the context of the exchange.
16} While the trial court appeared to show an
intention to enforce the proffered settlement, which attorney
Pollock had previously rejected, the court issued a judgment
entry the next day, enforcing the 2014 settlement agreement
instead. The May 22, 2018 entry stated:
Defendants' motion to enforce settlement agreement is
granted. All remaining claims are hereby dismissed as moot.
Related foreclosure actions shall be held in abeyance until
plaintiff is made whole. Plaintiff shall not engage in any
further unnecessary litigation on this matter.
17} A few weeks later, on June 12, 2018, the trial
court journalized an "Order Enforcing Original Global
Settlement Agreement." It clarified the previous order,
adding that the 2014 settlement agreement was to be resumed
as if the default had not occurred. The order stated:
The Defendant[s] having moved to enforce the Global
Settlement Agreement entered into between Trustar and
Plaintiff on June 13, 2014, and the motion having come to be
heard and granted May 21, 2018;
Now, on considering the Motion to Enforce Settlement, and on
the testimony and evidence introduced at the hearing had on
May 21, 2018, it is hereby Ordered that the Global Settlement
Agreement be resumed ...