[Cite as Parker v. Smith, 2019-Ohio-4346.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

KATHY PARKER, ET AL., : 

 Plaintiffs-Appellees, : 

 No. 107711 

 v. : 

 

ROBERT SMITH, III, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: October 24, 2019 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CV-12-787232 

 

Appearances: 

Alan I. Goodman, for appellees. 

Gilbert W.R. Rucker, III, for appellant. 

EILEEN T. GALLAGHER, P.J.: 

Defendant-appellant, Robert Smith, III, appeals a judgment in favor 

of plaintiffs-appellees, Kathy Parker and Deryl L. Gibson (collectively “appellees”), 

rendered as enforcement of a settlement agreement. Smith claims the following two 

errors: 
1. The trial court erred in granting Plaintiff’s Motion for Judgment, 

filed on May 17, 2018, in the amount of $68,500.00, where the court’s 

entry found that consideration in paragraph 5 of the Supplemental 

Agreed Judgment was “unenforceable, void, and stricken from the 

record.” 

2. The trial court erred in granting Plaintiff’s motion for judgment, filed 

on May 17, 2018, in the amount of $68,500.00 because the 

Supplemental Agreed Judgment was based upon coercion by the 

Plaintiffs and renders the August 23, 2018 judgment void. 

We find no merit to the appeal and affirm the trial court’s judgment. 

I. Facts and Procedural History 

Appellees filed a legal malpractice action against Smith after a 

judgment was rendered against them in federal court. Following a year and a half 

of pretrial litigation, the parties agreed to settle the case and signed an agreed 

judgment entry awarding appellees “$50,000 in compensatory damages and 

$50,000 in punitive damages plus interest” at a rate of six percent. The parties 

agreed that appellees would not enforce the judgment on punitive damages as long 

as Smith paid the judgment on compensatory damages, plus the six percent interest, 

in 50 equal installments within 50 months of February 1, 2014. The parties also 

agreed that “[t]he other terms of the settlement shall remain confidential so long as 

Defendant meets his obligations set out in the Supplemental Consent Judgment 

Entry.” The agreed judgment entry further provided that “[i]f Defendant fails to 

meet those obligations, the parties agree and after Defendant is notified by Plaintiff’s 

counsel of Defendant’s breach, the Court shall enter a supplemental judgment entry 

incorporating all the terms of the settlement agreement.” 
Smith breached the settlement agreement by failing to make some 

monthly payments, and appellees filed a motion to incorporate the confidential 

terms into a supplemental settlement agreement. Following mediation that resulted 

in a second settlement agreement, the court rendered a supplemental agreed 

judgment entry in favor of appellees in the amount $34,000, that represented the 

amount still owed on the compensatory damages, and $50,000 in punitive damages, 

plus six percent interest on both amounts. Punitive damages were no longer 

contingent since Smith defaulted on the original agreement. 

The supplemental agreed judgment further provided that Smith 

would pay appellees $1,000 per month until the total amount of the judgment was 

fully paid. To that end, the supplemental agreed judgment required Smith to pay 

appellees the sum of $7,500 by January 31, 2017, in conjunction with his regular 

monthly payment of $1,000. In addition to providing new terms governing default, 

including penalties for nonpayment, the supplemental agreed judgment stated, in 

relevant part in paragraph five: 

5. In all other respects, the terms of the original judgment, including 

the terms of the original Settlement Agreement, shall remain in effect, 

however the terms of that Agreement shall no longer be confidential 

and are therefore incorporated herein except that the Plaintiffs agree 

not to bring this matter to the attention of the Supreme Court of Ohio 

unless the Defendant is more than Sixty days (60) in arrears on the 

payments set out herein. Those terms are set forth in Exhibit A 

attached hereto and incorporated herein. 

Smith again defaulted, and appellees filed another motion seeking a 

judgment for $18,500, the amount still owed in compensatory damages plus a 
$5,000 penalty, and $50,000 in punitive damages. This time, the court entered 

judgment, dated August 23, 2018, in favor of appellees and against Smith “in the 

amount of $68,500 plus interest at rate of 6 percent.” The court’s judgment entry 

further provided, in relevant part: 

However, paragraph 5 of the supplemental agreed entry and the second 

full paragraph of Exhibit A to supplemental judgment are 

unenforceable, void, and stricken from the agreement and record. 

Smith now appeals the trial court’s August 23, 2018 judgment. 

II. Law and Analysis 

A. Severed Provisions 

In the first assignment of error, Smith argues the parties’ settlement 

agreements, and the court’s supplemental judgment entry that were based on the 

parties’ settlement agreements, are void and unenforceable because the trial court 

“found that the consideration in paragraph 5 of the Supplemental Agreed Judgment 

was ‘unenforceable, void, and stricken from the record.’” (Appellant’s brief p. 5.) 

However, the court never mentioned the word “consideration” in its 

judgment entry. The court’s judgment entry states, in relevant part: 

However, paragraph 5 of the supplemental agreed entry and the second 

full paragraph of Exhibit A to supplemental judgment are 

unenforceable, void, and stricken from the agreement and record. 

Therefore, the court never commented on the consideration given for the 

settlement agreement. 

Paragraph five of the supplemental judgment entry precluded 

appellees from reporting Smith’s conduct as their attorney to the Ohio Supreme 
Court unless Smith was more than 60 days in arrears on his monthly payments. 

Smith contends this provision was stricken because it violated public policy. When 

a contract contains a provision offensive to Ohio law or policy, “that provision is void 

while the remainder of the contract remains enforceable.” Ford Motor Credit Co. v. 

Jones, 8th Dist. Cuyahoga No. 92428, 2009-Ohio-3298, ¶ 13; see also DeVito v. 

Autos Direct Online, Inc., 8th Dist. Cuyahoga No. 100831, 2015-Ohio-3336, ¶ 2, 4 

(Unconscionable provision in arbitration agreement was excised from contract as 

against public policy while the “non-offending terms of the arbitration agreement 

remain enforceable.”). Therefore, the remaining terms of the parties’ settlement 

agreement, as incorporated into the court’s supplemental judgment entry, were 

enforceable even though paragraph five was stricken from it. 

Moreover, the remaining terms of the parties’ settlement agreement 

constituted an enforceable contract. “A contract is generally defined as a promise, 

or a set of promises, actionable upon breach.” Kostelnik v. Helper, 96 Ohio St.3d 1, 

2002-Ohio-2985, 770 N.E.2d 58, ¶ 16, quoting Perlmuter Printing Co. v. Strome, 

Inc., 436 F.Supp. 409, 414 (N.D.Ohio 1976). To be enforceable, a contract must have 

an offer, acceptance, consideration, and a manifestation of mutual assent. Id. Smith 

argues the consideration necessary for an enforceable contract was “eviscerated” 

when the court struck paragraph five of the supplemental judgment entry. 

“Consideration” is a promisor’s promise to give something of value to 

the promisee in exchange for the promisee’s promise to give something of value to 
the promisor. Minster Farmers Coop. Exchange Co., Inc. v. Meyer, 117 Ohio St.3d 

459, 2008-Ohio-1259, 884 N.E.2d 1056, ¶ 28. 

Valuable consideration consists of the acquisition of some legal right by 

the promisor, in return for which he or she makes the promise, or in 

the giving up of some legal right by the promisee, in return for which 

the promise is made to him or her. 

17 Ohio Jurisprudence 3d, Contracts, Section 46, at 509 (2010). In other words, 

“[c]onsideration may consist of either a detriment to the promisee or a benefit to 

the promisor.” Lake Land Emp. Group of Akron, L.L.C. v. Columber, 101 Ohio 

St.3d 242, 2004-Ohio-786, 804 N.E.2d 27, ¶ 16, citing Irwin v. Lombard Univ., 56 

Ohio St. 9, 19, 46 N.E. 63 (1897). 

Smith contends appellees’ promise not to report him to the Ohio 

Supreme Court set forth in paragraph five of the parties’ settlement agreement 

constituted the sole consideration for the contract and that without it, the contract 

was void. However, the Ohio Supreme Court has held that giving up a right to trial, 

in addition to the corresponding rights of that judicial process, is adequate 

consideration to enforce a contract. Hayes v. Oakridge Home, 122 Ohio St.3d 63, 

2009-Ohio-2054, 908 N.E.2d 408, ¶ 42-43. Thus, although the trial court struck 

appellees’ promise not to report Smith to the Ohio Supreme Court, appellees’ 

forbearance of their right to trial, which they gave in exchange for Smith’s promise 

to pay them damages, remained to enforce the contract. 

Therefore, the first assignment of error is overruled. 
B. Coercion 

In the second assignment of error, Smith argues the parties’ 

settlement agreement is void because it was “based upon coercion.” 

The Ohio Supreme Court considered the issue of coercion in 

avoidance of contract in Blodgett v. Blodgett, 49 Ohio St.3d 243, 551 N.E.2d 1249 

(1990): 

To avoid a contract on the basis of duress, a party must prove coercion 

by the other party to the contract. It is not enough to show that one 

assented merely because of difficult circumstances that are not the fault 

of the other party. 

Id. at syllabus. The Blodgett court further held that to prove duress, the party 

seeking to avoid the contract must establish 

(1) that one side involuntarily accepted the terms of another; (2) that 

circumstances permitted no other alternative; and (3) that said 

circumstances were the result of coercive acts of the opposite party. 

* * * The assertion of duress must be proven to have been the result of 

the defendant’s conduct and not by the plaintiff’s necessities. * * * ” 

(Emphasis added.) (Citations omitted.) 

Id. at 246. 

Smith does not make any argument or provide any evidence in the 

record to support his coercion claim. As far as we can tell, Smith could have gone to 

trial to prove he did not commit malpractice or if he thought the terms of the 

settlement agreement were unfair. The initial settlement agreement also allowed 

him to avoid punitive damages if he paid the full amount of the compensatory 

damages in monthly installments within a 50-month period. There is no evidence 

in the record that appellees made any threats or that Smith involuntarily accepted 
the terms of the settlement agreement. Indeed, there were two settlement 

agreements, and Smith appears to have entered into both agreements willingly and 

voluntarily. 

Therefore, the second assignment of error is overruled. 

Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to the common pleas court to carry 

this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

 

EILEEN T. GALLAGHER, PRESIDING JUDGE 

ANITA LASTER MAYS, J., and 

KATHLEEN ANN KEOUGH, J., CONCUR