[Cite as Feight v. Brooks,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

FRANK FEIGHT, et al. : : Plaintiffs-Appellants : Appellate Case No. 28684 : v. : Trial Court Case No. 2018-CV-1708 : DENNIS BROOKS, et al. : (Civil Appeal from : Common Pleas Court) Defendants-Appellees : :

...........

OPINION

Rendered on the 6th day of November, 2020.

...........

JOHN K. FITCH, Atty. Reg. No. 0008119, 900 Michigan Avenue, Columbus, Ohio 43215 Attorney for Plaintiffs-Appellants

THOMAS E. SWITZER, Atty. Reg. No. 0067851, 41 South High Street, Suite 2300, Columbus, Ohio 43215 Attorney for Defendant-Appellee, Donegal Mutual Insurance Company

PHILLIP T. GLYPTIS, Atty. Reg. No. 0078450, 32 20th Street, Wheeling, West Virginia 26003 and ROBERT DAPPER, JR., Atty. Reg. No. 0091827, 48 26th Street, Pittsburgh, Pennsylvania, 15222 Attorneys for Defendants-Appellees FedEx Ground Package System, Inc. and Dennis Brooks

.............

TUCKER, P.J. -2-

{¶ 1} Plaintiffs-appellants, Frank and Virgie Feight, appeal from the trial court’s

judgment of December 23, 2019, in which the court effectively resolved their action

against Defendants-appellees, Dennis Brooks, Donegal Mutual Insurance Company

(“Donegal Mutual”) and FedEx Ground Package System, Inc. (“FedEx”), by holding that

a settlement agreement executed by the Feights on or about March 16, 2018, is

enforceable. Raising two assignments of error, the Feights argue that the trial court’s

judgment should be reversed because the agreement is void, as the result of either

fraudulent inducement or a mutual mistake of fact, and that the trial court erred by

excluding certain evidence offered by the Feights in support of their opposition to the

enforcement of the agreement.

{¶ 2} We hold that the trial court erred by determining that the agreement is

enforceable because certain material provisions of the agreement are ambiguous. With

respect to the trial court’s ruling on the evidence identified by the Feights in their brief, we

hold that the trial court did not abuse its discretion inasmuch as it found the evidence to

be irrelevant. Strictly for the following reasons, then, the trial court’s judgment is

reversed in part and affirmed in part, and the case is remanded for further proceedings

consistent with this opinion.

I. Facts and Procedural History

{¶ 3} On August 16, 2016, a semi-trailer truck travelling eastbound on Interstate

70 struck the Feights’ vehicle. See Complaint ¶ 6-8; Answer of FedEx and

.

Brooks was driving the truck at the time, either as an employee of FedEx or as an

employee of a FedEx contractor. See Complaint ¶ 5; Answer of FedEx and Brooks ¶ 5

and 7. The Feights were insured by Donegal Mutual. See Complaint ¶ 17; Answer of -3-

Donegal Mutual ¶ 9.

{¶ 4} Edward Macy, a branch manager employed by Custard Insurance Adjusters,

contacted the Feights on behalf of FedEx after the accident. Magistrate’s Decision 2,

May 3, 2019. In November 2016, the Feights engaged an attorney, Frank Patrizio, to

represent them in settlement negotiations, but they terminated Patrizio before terms were

agreed and thereafter negotiated directly with Macy.

{¶ 5} The negotiations yielded an offer from FedEx in February 2018, in which

FedEx offered to pay the Feights $50,000, as well as the following: (1) “Medicare liens

* * * estimated [by Patrizio] to be ‘a little over $10,000’ ”; (2) a subrogation lien held by

Donegal Mutual in an amount “up to but no more than $20,000”; and (3) a lien held by

Patrizio in an amount “up to but no more than $19,227.78.” Id.; Defendants’

Supplemental Memorandum in Opposition to Plaintiffs’ Motion for Leave to File a

Supplemental Memorandum in Opposition to Defendants’ Motion to Enforce Settlement

Agreement, Ex. B, Oct. 29, 2018. After further negotiation, FedEx increased the amount

of the proposed direct payment to the Feights from $50,000 to $52,277.46; the offer was

unchanged with respect to the Medicare liens, the lien held by Donegal Mutual and the

lien held by Patrizio, though it also indicated that FedEx would pay $581.21 to satisfy a

lien or other claim asserted by “Aetna.” Final Entry Granting Summary Judgment to

Defendants 2, Dec. 23, 2019 [hereinafter Final Entry]; Plaintiffs’ Memorandum in

Opposition to Defendants’ Motion to Enforce Settlement Agreement, Ex. 3, July 2, 2018.

{¶ 6} In response, the Feights demanded that the amount of their direct payment

be increased from $52,277.46 to $175,000. See Plaintiffs’ Memorandum in Opposition

to Defendants’ Motion to Enforce Settlement Agreement, Ex. 4. FedEx countered with -4-

an offer to pay the Feights $80,000, and Macy sent a draft of the proposed agreement

(the “Settlement Agreement”) to the Feights by email. Apparently satisfied, Frank Feight

sent a reply in which he told Macy that he and Virgie Feight would “go to the bank to get

[the agreement] signed [and notarized].”

{¶ 7} On March 16, 2018, the Feights executed the Settlement Agreement and had

it notarized. Defendants’ Supplemental Memorandum in Opposition to Plaintiffs’ Motion

for Leave to File a Supplemental Memorandum in Opposition to Defendants’ Motion to

Enforce Settlement Agreement, Ex. A. The Feights, however, refused to deliver the

executed copy of the agreement to Macy until they received the payment of $80,000 from

FedEx. Plaintiffs’ Memorandum in Opposition to Defendants’ Motion to Enforce

Settlement Agreement, Ex. 5. In an email message sent to Macy on April 2, 2018, Frank

Feight said that he had “another [a]ttorney [to whom he would] give [the] case * * * if [he

did not receive] a check [on or before] April 9, 2018.”

at Ex. 6.

{¶ 8} FedEx did not meet the deadline set by Frank Feight, and on April 10, 2018,

the Feights attempted to rescind the Settlement Agreement by writing the word “void”

over every section and their signatures. Defendants’ Supplemental Memorandum in

Opposition to Plaintiffs’ Motion for Leave to File a Supplemental Memorandum in

Opposition to Defendants’ Motion to Enforce Settlement Agreement, Ex. A. After

engaging their present counsel, the Feights filed a complaint on April 18, 2018, against

Brooks; FedEx; the United States Department of Health and Human Services; Donegal

Mutual; Aetna, Inc.; and Aetna Life Insurance Company.

{¶ 9} FedEx and Brooks moved to enforce the Settlement Agreement on June 28,

2018. The trial court’s magistrate held a hearing on the motion on January 10, 2019, -5-

and on May 3, 2019, the magistrate entered a decision in which she recommended,

among other things, that the motion be sustained. Magistrate’s Decision 12. Although

the magistrate recommended that the motion be sustained, the decision did not include

a discussion of the specific relief to which FedEx and Brooks would therefore be entitled.

See Magistrate’s Decision 11-12.

{¶ 10} On May 17, 2019, the Feights submitted objections to the magistrate’s

decision, and with certain modifications, the trial court adopted the decision in its Final

Entry, which it filed on December 23, 2019. The trial court noted that in their motion to

enforce the Settlement Agreement, FedEx and Brooks requested a finding “that all claims

have been dismissed with prejudice,” given that the Settlement Agreement “ha[d] been

reached and lawfully” executed. Final Entry 20; Motion of FedEx and Brooks to Enforce

Settlement Agreement 4, June 28, 2018. Referring to case law indicating that a case

may be dismissed on the basis of a valid settlement agreement, the trial court determined

that FedEx and Brooks’s “request for dismissal should be treated as a motion for summary

judgment under Civ.R. 56,” and accordingly entered judgment in their favor. Final Entry

20-21. The Feights timely filed a notice of appeal on January 17, 2020.

II. Analysis

{¶ 11} For their first assignment of error, the Feights contend that:

THE TRIAL COURT ERRED IN SUSTAINING DEFENDANT[S]-

APPELLEES’ MOTION TO ENFORCE SETTLEMENT AGREEMENT AND

[IN] GRANTING DEFENDANTS-APPELLEES’ [SIC] SUMMARY

JUDGMENT AS TO ALL CLAIMS[.]

{¶ 12} The Feights argue that the Settlement Agreement is void because it was -6-

the product of either fraudulent inducement or a mutual mistake of fact, and that as a

result, the trial court erred by sustaining the motion to enforce it. See Appellants’ Brief

7-8, 15-16 and 18. Concomitantly, the Feights argue that the trial court erred by entering

summary judgment in favor of FedEx and Brooks, because FedEx and Brooks were not

entitled to judgment as a matter of law. See id. at 7.

{¶ 13} Under Civ.R. 56, summary judgment is proper only where: (1) a case

presents no genuine dispute as to any material fact; (2) the moving party is entitled to

judgment as a matter of law; and (3) construing the evidence most strongly in favor of the

non-moving party, reasonable minds can reach only one conclusion, which is adverse to

the non-moving party. Harless v. Willis Day Warehousing Co.,

,

(1978); Dalzell v. Rudy Mosketti, L.L.C., 2d Dist. Clark No. 2015-CA-93, 2016-

Ohio-3197, ¶ 5, citing Zivich v. Mentor Soccer Club, Inc.,

,

(1998). The moving party initially bears the burden of establishing the

absence of any genuine dispute of material fact, and to meet its burden, it may rely only

on evidence of the kinds listed in Civ.R. 56(C). Mitseff v. Wheeler,

,

(1988); Dalzell at ¶ 5, citing Dresher v. Burt,

, 292-

293,

(1996). If the moving party meets its burden, then the non-moving

party must meet a reciprocal burden to demonstrate that the case presents one or more

genuine issues of material fact to be tried; like the moving party, it may rely only on

evidence of the kinds listed in Civ.R. 56(C) for this purpose.

, quoting

Civ.R. 56(E); Dalzell at ¶ 6.

{¶ 14} The substantive law of the claim or claims being litigated determines

whether a fact is “material.” Herres v. Millwood Homeowners Assn., Inc., 2d Dist. -7-

Montgomery No. 23552,

, ¶ 21, citing Hoyt, Inc. v. Gordon & Assocs.,

Inc.,

,

(8th Dist. 1995). On appeal, a trial

court’s ruling on a motion for summary judgment is reviewed de novo. Dalzell at ¶ 6,

citing Schroeder v. Henness, 2d Dist. Miami No. 2012-CA-18,

.

{¶ 15} In the instant case, the trial court granted summary judgment sua sponte in

favor of FedEx and Brooks, given that none of the parties had filed a motion requesting

such relief. We have held previously that a trial court errs by entering judgment under

Civ.R. 56 where “no party has moved for summary judgment, [because] the party against

whom judgment is * * * entered [would presumably not have been provided with] notice

that the court might [thus] dispose of the case,” and in the absence of notice, the party

would have had “no opportunity to marshal evidence on its behalf.” (Citations omitted.)

Ohio Bell Tel. Co. v. C-5 Constr., Inc., 2d Dist. Montgomery No. 23792,

,

¶ 30-31; see also Civ.R. 56(C).

{¶ 16} Although the trial court did not notify the parties before it entered judgment,

the Feights, and FedEx and Brooks, had already submitted evidence regarding the

negotiation and execution of the Settlement Agreement. Yet, assuming for sake of

analysis that our holding in Ohio Bell is therefore inapposite here, the trial court erred

nonetheless by entering summary judgment. Civ.R. 56(C) permits consideration only of

“the pleadings, depositions, answers to interrogatories, written admissions, affidavits,

transcripts of evidence, and written stipulations of fact, if any,” that have been “timely filed

in [the] action,” but despite the rule’s limitations, the trial court considered the testimony

of the three witnesses who appeared at the hearing on Appellees’ motion to enforce the

Settlement Agreement. Moreover, the trial court improperly weighed evidence and ruled -8-

on a genuinely disputed issue of material fact—specifically, whether FedEx obligated

itself to pay the full amount of the Feights’ Medicare liens, or to pay a maximum of

$10,000. See Final Entry 13.

{¶ 17} The trial court found that the Settlement Agreement is “ambiguous as to the

amount of the Medicare liens that FedEx agreed to pay,” because Section III

simultaneously provides that FedEx will pay the Feights’ Medicare liens in an amount “up

to $10,000,” and contradictorily, that FedEx will pay “all liens and current related medical

bills in full.” Final Entry 13. In light of the latter provision, the trial court held that Macy

did not misrepresent “the amount of the Medicare liens that FedEx agreed to pay” in his

correspondence with the Feights, but the court did not expressly rule on the question of

whether the text of the Settlement Agreement obligated FedEx to pay the full amount of

the Medicare liens, or to pay only an amount less than or equal to $10,000. See

at

13 and 19-20.

{¶ 18} In an email to the Feights dated February 22, 2018, Macy summarized the

status of the parties’ settlement negotiations at that point. Plaintiffs’ Memorandum in

Opposition to Defendants’ Motion to Enforce Settlement Agreement, Ex. 3. Macy

indicated that FedEx would pay the Feights $52,277.46; Medicare “up in full regardless

but [in an amount] estimated to be $10,000”; Donegal Mutual “up to $20,000”; the Feights’

former attorney, Frank Patrizio, an amount “up to $19,227.78”; and “Aetna” in the amount

of $581.21, for a “total amount [of] $92,086.45 paying all the [foregoing] liens.”

The

sum of the individually specified amounts, however, was a maximum of $102,086.45,

which is as much as $10,000 more than the “total amount” of the offer.

{¶ 19} Unsatisfied, the Feights responded with a demand that FedEx pay them -9-

$175,000, in addition to the other payments specified in Macy’s email message of

February 22, 2018. See

at Ex. 4. Macy then presented a revised proposal in which

FedEx offered to pay the Feights $80,000, and to “pay the liens,” making a “total offer of

$120,000.”

The sum of the previously specified payments to Medicare, Donegal

Mutual, Patrizio and Aetna, plus the direct payment of $80,000 to the Feights, was a

maximum of $129,808.99, which is as much as $9,808.99 more than the stated total.

On March 7, 2018, Frank Feight sent a reply in which he expressed his approval of the

offer as revised.

{¶ 20} These terms were reflected in the Settlement Agreement. See

Defendants’ Motion to Enforce Settlement Agreement, Ex. A, June 28, 2018.1 In Section

III of the agreement, FedEx committed to pay the Feights $80,000; to pay “Donegal

[Mutual] [I]nsurance up to $20,000.00”; to pay Patrizio “up to $19,227.78”; to pay

“Medicare the lien amount of the related treatment [sic] up to $10,000 lien [sic]”; and to

pay “Aetna Insurance $581.21,” for a “total settlement payment up to $119,808.99 to pay

Mr. & Mrs. Feight and payoff [sic] all liens and current related medical bills in full.”

The sum of the itemized amounts was a maximum of $129,808.99, which is as much as

$10,000 more than the stated “total settlement payment.”

{¶ 21} We concur with the trial court’s determination that the Settlement

Agreement is ambiguous regarding the extent of FedEx’s obligation to pay the Feights’

Medicare liens. Final Entry 13. Despite the provision stating that the “total settlement

payment [of] $119,808.99” is intended to compensate the Feights themselves, and

1The Settlement Agreement is the first of the exhibits attached to the motion, though it is not labelled. -10-

generally to pay “all liens and current related medical bills in full,” Section III of the

agreement also seems to set specific limits on the amounts FedEx must pay in

satisfaction of the liens, regardless of the amounts ultimately determined to be due.

Furthermore, the “total settlement payment” required of FedEx is expressly limited to

$119,808.99, but that would be insufficient by nearly $10,000 to pay $80,000 to the

Feights and to pay the liens in the amounts specified, which likewise suggests that

FedEx’s obligation to pay the Feights’ Medicare liens is limited to $10,000 or less. See,

e.g., Hedrick v. Spitzer Motor City, Inc., 8th Dist. Cuyahoga No. 89306,

(observing that where “a general provision in a contract conflicts with a specific

provision,” the principle is “well established that * * * the specific provision controls”).

{¶ 22} The trial court considered the validity of the Settlement Agreement in only

three respects: first, whether the Feights bound themselves to the agreement by

executing it and having it notarized, despite their refusal to deliver the executed and

notarized copy; second, whether the agreement was void as the result of allegedly

fraudulent misrepresentations made by Macy in his negotiations with the Feights; and

third, whether Virgie Feight had contractual capacity at the time she executed the

agreement. Final Entry 7-17. Yet, because the “party asserting the existence of a

contract has the burden of proof,” we hold that the trial court erred by omitting the

threshold determination of whether the Settlement Agreement was a valid contract on its

face. (Citations omitted.) Wilhelm v. Coverstone,

,

(2d Dist.).

{¶ 23} The “[e]ssential elements of a contract include an offer, [an] acceptance,

contractual capacity, consideration,” and “a meeting of the parties’ minds.” Noroski v. -11-

Fallet,

,

(1982); Wilhelm at ¶ 36. Where “the

language of a contract is unclear or ambiguous,” a court may consider parol evidence to

discern and “give effect to the parties’ intentions.” (Citation omitted.) See Shifrin v.

Forest City Ents., Inc.,

,

(1992). Having found

that the Settlement Agreement is ambiguous, the trial court should have reviewed the

extrinsic evidence offered by the parties for the purpose of determining whether the

Feights and FedEx achieved a meeting of the minds. Although in some of his

correspondence with the Feights, along with his testimony at the hearing on the motion

to enforce, Macy appeared to indicate that FedEx was offering to pay the Feights’

Medicare liens in full, even if that would require paying more than $10,000, the email with

which he sent the final draft of the Settlement Agreement stated simply that “FedEx would

[pay] [$]80,000” directly to the Feights, and “pay the liens [sic] for a total offer of

$120,000.” Plaintiffs’ Memorandum in Opposition to Defendants’ Motion to Enforce

Settlement Agreement, Exs. 3-4. The latter email message did not refer to a

commitment on the part of FedEx to pay the Medicare liens—or any other liens—in full,

and even in the context of previous correspondence, the absence of such a reference

arguably could suggest that FedEx intended to limit its obligation to satisfy the liens in

exchange for its offer to increase the direct payment to the Feights from $52,277.46 to

$80,000.

{¶ 24} We hold that the trial court erred by entering judgment under Civ.R. 56 and

by determining that the Settlement Agreement is an enforceable contract notwithstanding

the ambiguity of some of its material terms. Strictly for these reasons, the Feights’ first

assignment of error is sustained. -12-

{¶ 25} For their second assignment of error, the Feights contend that:

THE TRIAL COURT ERRED IN GRANTING DEFENDANTS’

MOTION IN LIMINE TO PRECLUDE EVIDENCE OF PLAINTIFF’S [sic]

CONDITIONAL MEDICARE LETTER AND LIEN[.]

{¶ 26} FedEx and Brooks filed a motion in limine on January 10, 2019, requesting

that the trial court enter an order precluding the Feights from introducing into evidence

two letters, dated July 17, 2018, and December 14, 2018, that they received regarding

conditional payments made by Medicare on their behalf, as well as the amounts of the

resulting liens. See Magistrate’s Decision 2-4. The magistrate recommended that the

motion be sustained, and the trial court adopted the magistrate’s recommendation. Final

Entry 20-21. Here, the Feights argue that the trial court erred by sustaining the motion.

{¶ 27} A “motion in limine is a request ‘that [a] court limit or exclude [the] use of

evidence which the movant believes to be improper, and is made in advance of the actual

presentation of the evidence to the trier of fact.” Gordon v. Ohio State Univ., 10th Dist.

Franklin No. 10AP-1058,

, ¶ 82. Given that “a trial court’s decision on a

motion in limine is a ruling to admit or exclude evidence, [the] standard of review on

appeal is whether the trial court committed an abuse of discretion that amounted to

prejudicial error.” (Citation omitted.)

An “ ‘abuse of discretion’ has been defined as

an attitude that is unreasonable, arbitrary or unconscionable.” AAAA Ents., Inc. v. River

Place Community Urban Redevelopment Corp.,

,

(1990).

{¶ 28} The negotiations between the Feights and FedEx were completed on or

before March 16, 2018, when the Feights executed the Settlement Agreement and had it -13-

notarized. Because the letters in question did not yet exist at that time, they cannot

provide any insight into the parties’ intentions with respect to the extent of FedEx’s

obligation to pay the Feights’ Medicare liens. Strictly for this reason, we hold that the

trial court did not commit an abuse of discretion by sustaining the motion in limine filed by

FedEx and Brooks. The Feights’ second assignment of error is overruled.

III. Conclusion

{¶ 29} We hold that the trial court erred by determining that the Settlement

Agreement is enforceable, because certain material provisions of the agreement are

ambiguous. Regarding the trial court’s ruling on FedEx and Brooks’s motion in limine of

January 10, 2019, however, we hold that the trial court did not abuse its discretion by

sustaining the motion, although our reasoning differs from that of the trial court.

Accordingly, the trial court’s judgment of December 23, 2019, is reversed in part and

affirmed in part, and the case is remanded to the trial court for further proceedings

consistent with this opinion.

.............

FROELICH, J. and HALL, J., concur.

Copies sent to:

John K. Fitch Thomas E. Switzer Phillip T. Glyptis Robert Dapper, Jr. Aetna Life Insurance Co. / Aetna Inc. Unites States Dept. of Health & Human Services Benjamin Glassman Hon. Mary E. Montgomery