[Cite as Rayco Mfg., Inc. v. Murphy, Rogers, Sloss & Gambel , 2018-Ohio-4782.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 106714

RAYCO MANUFACTURING, INC.

PLAINTIFF-APPELLANT/ CROSS-APPELLEE

vs. MURPHY, ROGERS, SLOSS & GAMBEL, A PROFESSIONAL LAW CORPORATION, ET AL.

DEFENDANTS-APPELLEES/ CROSS-APPELLANTS

JUDGMENT: AFFIRMED IN PART; REVERSED IN PART; REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-13-815844

BEFORE: E.A. Gallagher, A.J., Stewart, J., and Boyle, J.

RELEASED AND JOURNALIZED: November 29, 2018ATTORNEYS FOR APPELLANT/CROSS-APPELLEE

Robert D. Kehoe Kevin P. Shannon Kehoe & Associates, L.L.C. 900 Baker Building 1940 East Sixth Street Cleveland, Ohio 44114 J. Douglas Drushal Andrew P. Lycans Critchfield, Cr itchfield & Johnston Ltd. P.O. Box 599 225 N. Market Street Wooster, Ohio 44691

Steven J. Shrock Critchfield, Cr itchfield & Johnston Ltd. 138 E. Jackson Street Millersburg, Ohio 44654

ATTORNEYS FOR APPELLEES MURPHY, ROGERS, SLOSS & GAMBEL, A PROFESSIONAL LAW CORPORATION, ROBERT H. MURPHY, PETER B. SLOSS, GARY J. GAMBEL AND DONALD R. WING Ernest E. Vargo Michael E. Mumford Baker & Hostetler, L.L.P. 127 Public Square, Suite 2000 Cleveland, Ohio 44114 ATTORNEYS FOR APPELLEES/CROSS-APPELLANTS CAVITCH, FAMILIO & DURKIN CO., L.P.A., DOUGLAS A. DIPALMA, MICHAEL C. COHAN AND ERIC J. WEISS Timothy Brick Gallagher Sharp L.L.P. Sixth Floor, Bulkley Building 1501 Euclid Avenue Cleveland, Ohio 44115 Steven D. Strong Gallagher Sharp L.L.P.35 North Fourth Street Suite 200 Columbus, Ohio 43215

EILEEN A. GALLAGHER, A.J.: {¶1} Plaintiff-appellant/cross-appellee Rayco Manufacturing, Inc. (“Rayco”) appeals from the trial court’s decision granting defendants-appellees/cross-appellants’ (collectively, “appellees”) 1 motion to enforce a settlement agreement that resolved legal malpractice claims Rayco had filed against appellees. Rayco contends that the trial c ourt erred in finding that there was an enforceable settlement agreement. In thei r cross-appeal, appellees contend that the trial court erred in denying their request to recover the attorney fees they incurred to enforce the settlement agreement. For the reasons that follow, we affirm the trial court’s decision to the extent that it grants appellees’ motion to enforce the settlement agreement, reverse the trial court’s decision to the extent that it denies appellees’ motion for attorney fees and remand the case for further proceedings. Factual Background and Procedural History {¶2} In October 2013, Rayco filed a complaint ag ainst appellees for legal malpractice arising out of appellees’ handling of a prior laws uit Rayco had filed agains t Deutz Corporation and Deutz AG (collectively, “Deutz”) for breach of wa rranty and other claims arising out of Deutz’s sale of engines to Rayco. In that case, summary judgment was granted in favor of Deutz and affirmed by the United States Court of Appeals for the Sixth Circuit.

1 Defendants-appellees/cross-appellants consist of Murphy, Rogers, Sloss & Gamble, A Professional Law Corporation; Robert H. Murphy, Peter B. Sloss, Gary J. Gambel and Ronald R. Wing (collectively, “Murphy”); Cavitch, Familo & Durkin Co., L.P.A., Douglas DiPalma, Michael C. Coha n and Eric J. Weiss (collectively, “Cavitch”).{¶3} In February 2015 and June 2016, the parties a ttempted to mediate their dispute with the assistance of a retired judge as the mediator. At the second mediation, Rayco authorized the mediator to convey a settlement demand of $3,050,000, in the aggregate, to appellees. At the

conclusion of the second mediati on, no agreement had been reached but efforts to settle the case

continued. {¶4} In July 2016, the mediator issued a written recommendation to the parties, recommending that they settle the case for $2,650,000 in the aggregate. Rayco’s counsel advised the mediator that Rayco did not agree with the recommendation and that a ppellees would have to pay the full $3,050,000 it had demanded to settle the case. In September 2016, with the consent of all parties, the medi ator met with Rayco’s chief executive, John Bowling, to further discuss the possibility of resolving the case. After the meeting, the mediator continued to have settlement discussions with Rayco and its counsel by telephone. {¶5} In the fall of 2016, several pret rial conferences were cancelle d at the parties’ request due to ongoing settlement negotiations. During this time period, one of Rayco’s attorneys, Robert Kehoe, had discussions with appellees’ counsel in which he re iterated that the only way to settle the case would be to pay Rayc o’s full settlement de mand of $3,050,000. Given the amount of the demand, appellees needed to request additional authority from their insurance carriers to settle the case. To that end, in late 2016, Murphy’s couns el and Cavitch’s counsel separately requested written settlement demands from Rayco that they could submit to their insurance carriers. In January 2017, Cavitch’s counsel em ailed Attorney Kehoe inquiring about the status of the “demand letter” from Rayco. A ttorney Kehoe replied that he was “working on it.” {¶6} On January 26, 2017, Attorney Kehoe sent lette rs to Murphy’s counsel and Cavitch’s counsel. He indicated that he was writing “to follow up on the June 23, 2016 mediation andsubsequent settlement disc ussions with [appellees’ counsel] and the mediator.” He stated that Rayco had authorized the medi ator to convey a “firm demand” of $3,050,000 to settle the case and had “made it clear” that “$3,050,000 was an absolute aggregate amount necessary to settle the case.” He further indicated that “[w]e have not explored the possibility of resolving Rayco’s claims against [the Murphy a nd Cavitch appellees] i ndependent[ly]” but that there was “enough insurance coverage” for appellees “[i]n co mbination” to “meet Rayco’s demand.” {¶7} At a pretrial conference on January 30, 2017, th e parties advised th e trial court that settlement negotiations were ongoing. A month later, on February 23, 2017, one of Murphy’s attorneys, Ernie Vargo, with the consent of Cav itch’s counsel, sent an em ail to Rayco’s counsel, stating as follows: This is in response to Rayco’s offer of settlement as set fort h in your letter of January 26, 2017 to me. Counsel for Cav itch indicates that he has received a substantively similar letter on behalf of the Cavitch firm and named attorneys. The Murphy firm, Cavitch firm, and named lawyers from each firm accept the collective settlement dema nd of $3,050,000 in the aggregate. This acceptance is conditioned upon a full release and dismissal and other customary provisions to be negotiated and memorialized in a formal settlement agreement. Defendants agree to provide the initial draft of the written agreement to you for comments. Please expect the draft within 14 days of this email. Thank you for your efforts in negotia ting this resolution with us. {¶8} Later that day, Attorney Kehoe responded to the email. He left a voicemail message for Attorney Vargo, thanking him and requesting that he return his call, indicating, “I’d like to talk to you briefly about the logistics and I note that y ou’ll take the first cut at the settlement documents and have them in about 14 days, wh ich is fine.” The following day, another of Rayco’s attorneys, J. Douglas Drushal, emailed Attorney Vargo. He thanked Attorney Vargo for his February 23,2017 email and stated that “[i]f he has not done so yet, [Attorney Kehoe] will be in touch shortly with how we would like to proceed to finalize things.” {¶9} On March 2, 2017, Attorney Drushal emailed appellees’ counsel, st ating, “I believe we are waiting for the final versions of what your side wants signed in the way of releases, etc. before presenting the package to Rayco. We need to know every detail before we can finalize. Anything you could do to expedite th at would be helpful. Thanks.” {¶10} On March 7, 2017, Murphy’s counsel ema iled “defendants’ draft settlement agreement and release” to Rayco’s counsel. Mur phy’s counsel also inqui red whether the parties should notify the court that they had “an agreemen t in principle” given that a pretrial conference

was scheduled with the trial c ourt for the following day. Attorney Drushal responded: “Agree that we should contact [the] court and say we don’t need the conference. I will defer to the rest of you to coordinate that, assumin g all others concur.” The tr ial court cancelle d the March 8, 2017 pretrial conference at the parties’ request. {¶11} On March 10, 2017, Attorney Kehoe forwarded a red-lined version of the settlement agreement “with suggested changes from Plaintiff’s counsel” along with a proposed dismissal entry. The suggested changes included a mutual release provision, i.e., in addition to Rayco’s release of its claims against Murphy and Cavitch, Murphy and Ca vitch would release any claims they had against Rayco, and a provision that the trial court would retain jurisdiction over any disputes related to the settlement agreement. Attorney Kehoe st ated: “Kindly review a nd let us know if [the suggested changes] are acceptable. If so, we w ill proceed to obtain our client’s signature.”{¶12} Appellees’ counsel made additional change s to the revised settlement agreement circulated by Rayco’s counsel a nd sent a red-lined version of th e document to Rayco’s counsel on March 16, 2017. 2 {¶13} On April 4, 2017, Attorney Kehoe left a voicemail message for Attorney Vargo. He indicated that “[t]he settleme nt document itself is fine” and that “[w]e had John [Bowling’s] commitment to settle with the number that we ag reed upon, but he’s being a little bit difficult in getting the document signed.” {¶14} Rayco never signed the settlement agreement. {¶15} On June 16, 2017, appellees filed a motion to enforce the settlement agreement. Appellees asserted that the parties had agreed to settle the case on February 23, 2017 but that Rayco refused to sign the settlement agreement. Appellees requested that the court enforce the settlement agreement and award them the attorney fees they incurred to enforce the settlement agreement. {¶16} Rayco opposed the motion. It argued th at there was no settlement agreement because, by the time appellees “accepted” the $3,050,000 settlement offer Rayco made at the June 2016 mediation, it had lapsed. Ra yco further argued that its counsel’s January 26, 2017 letters simply summarized the parties’ past settlement positions and indicated Rayco’s “willingness to re-open negotiations” and were not settlement offers.

2 All drafts of the settlement agreement exchanged between the parties, including the “final” version of the settlement agreement, included a “costs” provision that stated, “[t]he Parties shall bear their own costs, expenses, and attorney fees in connection with this agreement,” and a “specific pe rformance” provision that stated, “[t]he Parties agree that, in the event of a breach of the terms of this Agreement, there will be no adequate remedy at law to remedy such breach and, accordingly, the Parties agree that specific pe rformance may be awarded to enforce the terms of this Agreement.”{¶17} The trial court held an evidentiary hearing on the motion to enforce the settlement. The hearing was held before an advisory jury, which the trial court em paneled, sua sponte, to address the issue of “whether the parties entered into a contract to settle the lawsuit.” {¶18} Attorney Vargo (one of Murphy’s attorn eys), Attorney Timothy Brick (one of Cavitch’s attorneys), and two of Rayco’s attorneys, Attorneys Kehoe and Drushal, testified at the hearing. The parties also submitted a joint sti pulation of undisputed facts. The 38 facts to which the parties stipulated detailed the history of the parties’ settlement negotiations and included 15 documents created or exchanged by the parties during the course of their settlement negotiations. 3 {¶19} During their testimony, Attorneys Vargo a nd Brick “walked thr ough” the parties’ stipulations and incorporated exhibits. Appell ees argued there were at least three potential “offers” and three potential “acceptances ” that gave rise to an enfo rceable settlement agreement. Appellees argued that Rayco’s counsel’s January 26, 2017 letters to appell ees’ counsel constituted offers that appellees accepted by means of Atto rney Vargo’s February 23, 2017 email to Rayco’s counsel. They argued that the subsequent conduc t of counsel, i.e., exchanging drafts of the settlement agreement, constituted further evidence of the parties’ agreement to settle the case. Alternatively, appellees argued that (1) Mur phy’s counsel’s February 23, 2017 email constituted a counteroffer to settle the case for $3,050,000 that Rayco accepted (a) by means of Attorney Kehoe’s voicemail message to Attorney Vargo later that day or (b) by means of the email Attorney Drushal sent to Attorney Vargo the following day or (2) Rayco’s counsel s ubmission of the revised

3 Prior to the hearing the parties filed a joint motion for leave to file a stipulation of undisputed facts regarding appellees’ motion to enforce the settlement agreement. In th eir joint motion, the parties asserted that there were no disputed questions of material fact relevant to the motion to enforce the settlement agreement, that an advisory jury was no longer necessary and that “[t]he sole remaining question is whether the undisputed facts give rise to a binding settlement agreement as a matter of law.” The trial court denied the motion.settlement agreement (which include d mutual releases and other ch anges) to appellees’ counsel on March 10, 2017 constituted an o ffer to settle the case for $3,050,000 that appellees accepted on March 16, 2017, when they made additional change s to the revised settle ment agreement and returned the document to Rayco’s counsel. {¶20} Attorney Kehoe testified upon cross-examination. He acknowledged the “tru[th] and accura[cy]” of the facts set forth in the partie s’ joint stipulation and confirmed that he was authorized to enter into the stipulation on behalf of Rayco. He indicated that he sent the January 26, 2017 letters to appellees’ counsel in response to their request for a written settleme nt demand and that Rayco had authorized him to send the letters. He further acknowledged receipt of Attorney Vargo’s February 23, 2017 email, indica ting that appellees agreed to pay the amount Rayco had demanded ($3,050,000 in the aggregate), that he understood the email was sent on behalf of both Murphy and Cavitch and that he and appellees’ counsel thereafter exchanged various emails congratula ting and thanking one another for “wor king so hard to get this done.” Attorney Kehoe testified that after he received Attorney Varg o’s February 23, 2017 email, he reported the settlement to Bowling. He indicated that Bow ling accepted his congratulations on the settlement and did not dispute that the case had been settled or object to the settlement at that time. He further testified, however, that when Bowling was presented with the settlement documents, he was “unwilling to sign” them. According to Attorney Kehoe, Bowling told him that he

believed the settlement of the lawsuit was like a real estate tr ansaction, i.e., that the deal was not finalized and there was no settlement until he signed the written settlement agreement. Attorney Kehoe further testified, however, that he had fully intended to consummate a settlement through his communications with appellees’ counsel.{¶21} Attorney Drushal testified that he interpreted his co-counsel’s January 26, 2017

letters not as a “renewed demand” or “offer that could be accepted” but rather, as a “recitation of the history of what had happened” and “as seeking an offer from the lawyers, law firms, and their insurance company which would be presented to Mr. Bowling to see if he would accept it at that point.” He further testified th at, as he communicated in his March 2, 2017 email, in his view, “everybody needed to sign off on” the final vers ion of the agreement before the parties had a

settlement. {¶22} After the parties conclude d their presentation of evidence and gave closing arguments, the advisory jury deliberated. Six interrogatories were submitted to the advisory jury. The advisory jury answered interrogatories indicating that the parties had entered into a settlement agreement and signed a verdict form in favor of appellees and against Rayco on the motion to enforce the settlement agreement. 4 {¶23} After dismissing the jury, the trial cour t stated that “[b]ased upon the evidence hearing and having taken into cons ideration or under consideration the jury’s verdict in this case, I

find that the motion to enforce the settlement is well taken.” {¶24} On December 14, 2017, the trial court issued a written decision granting appellees’ motion to enforce the settlement agreement. Th e trial court determine d, “[b]ased upon all the evidence,” that the parties had “a c ontract to settle with terms clear and enforceable,” as a result of

4 One of the trial court’s November 9, 2017 journal entries states: “The jury answered interrogatories to the effect that the parties did enter into an enforceable settlement agreement and signed a verdict form in favor of the defendants.” The interrogatories submitted to the advi sory jury, the advisory jury’s answers to those interrogatories and the jury’s signed verdict form were not included in the record this court received on appeal. And the jury’s answers to the interrogatories were not read into the record. Accordingly, we do not know what specific findings were made by the advisory jury.Rayco’s “acceptance” of appellees’ February 23, 2017 “offer” to settle the case for $3,050,000. As the trial court explained: In this case, on February 23 the defenda nts unambiguously offered the plaintiff a settlement of $3,050,000 in exchange for a di smissal of all claims against all defendants. The plaintiff — through couns el but with the authority of Rayco’s chief executive — accepted that offer as shown by trial counsel’s February 23 voicemail and as further evidenced by: 1) plaintiff’s co-counsel’s email that same day, 2) the plaintiff’s March 10 proposed rel ease of all claims leaving the figure of $3,050,000 undisturbed and 3) the plaintiff’s confirmation on April 4 that “the settlement document (release dated March 16 and drafted by the defendants) is fine” and that Bowling had previously accepted the proffered settlement. The trial court ordered the par ties to “conclude the settlement under the terms outlined in the March 16, 2017, written settle ment agreement.” {¶25} The trial court, however, denied appellees’ request to recover the attorney fees they had incurred to enforce the settlement agreement ba sed on the “American rule,” i.e., that each party to a lawsuit is responsible for its own attorney f ees unless they agreed ot herwise, had a statutory entitlement to attorney fees or th e other party acted in bad faith. Because the parties did not agree to shift fees, because there was no applicable statut e providing for the recovery of attorney fees and

because there was “insufficient evidence of the reas ons for, and nature of, Bowling’s resistance to finalizing the settlement” to support a finding that Ra yco acted in bad faith by refusing to finalize the settlement, the trial court held that appellees were not entitled to recover the attorney fees they incurred in enforcing the settlement agreement. {¶26} Rayco appealed, raising the following three assignments of error for review:I. The trial court erred in finding th at there was an enforceable settlement agreement entered into by the parties. II. The trial court erred by permitting appellees’ counsel to testify in violation of the witness advocate rule. III. The trial court erred in applying a pre ponderance of the evidence standard to

determine whether there was an enfor ceable settlement agreement. {¶27} Murphy and Cavitch cross-app ealed, raising the following single assignment of error

for review: Whether the trial court erred as a matter of law when it failed to award appellees reasonable attorney fees incurred to enforce the settlement agreement. {¶28} For ease of discussion, we a ddress Rayco’s assign ments of error out of order. Law and Analysis Motion to Enforce Settlement Agreement

Standard of Review {¶29} The standard of review applied when reviewing a ruling on a motion to enforce a settlement agreement depends on the question presented. If the question is a factual or evidentiary one, the reviewing court will not overturn the trial court’s finding if there was sufficient evidence to support the finding. Turoczy Bonding Co. v. Mitchell , 8th Dist. Cuyahoga No. 106494, 2018-Ohio-3173, ¶ 15, citing Chirchiglia v. Ohio Bur. of Workers’ Comp. , 138 Ohio App.3d 676, 679, 742 N.E.2d 180 (7th Dist.2000). If the i ssue is a question of contract law, the reviewing court must determine whether the trial c ourt’s order is based on an erroneous standard or

a misconstruction of the law. Turoczy at ¶ 15. Rayco raises both factua l and legal issues in its appeal. Requirements for an Enforceable Settlement Agreement{¶30} A settlement agreement

 is a contract designed to terminate a claim by preventing or ending litigation. Continental W. Condominium Unit Owners Assn. v. Howard E. Ferguson, Inc. , 74 Ohio St.3d 501, 502, 660 N.E.2d 431 (1996). Like an y other contract, it requires an offer, acceptance, consideration and mutual assent between two or more parties with the legal capacity to

act. See, e.g., Kostelnik v. Helper , 96 Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, ¶ 16; Rulli

v. Fan Co. , 79 Ohio St.3d 374, 376, 683 N.E.2d 337 (1997). For a contract to be enforceable, there must be a “meeting of the minds” as to the essential terms of the agreement. Kostelnik at ¶ 16-17. The essential terms of the agreement mu st be “‘reasonably cer tain and clear’” and mutually understood by the parties. Id., quoting Rulli at 376. As the Ohio Supreme Court explained in Rulli : “A court cannot enforce a contract unless it can determine what it is. * * * [The parties] must have expressed their intentions in a manner that is capable of being understood. It is not even enough that they had actually agreed, if their expressions, when interpreted in the light of accompanying factors and circumstances, are not such that the court can determine what the terms of that agreement are.”

Rulli , at 376, quoting 1 Corbin on Contracts, Section 4.1, at 525 (Rev.Ed.1993). The burden of establishing the existence and terms of a settlement agreement lies with the party who claims its

exists. Turoczy at ¶ 19, citing Nilavar v. Osborn , 127 Ohio App.3d 1, 11, 711 N.E.2d 726 (2d Dist.1998). {¶31} Once a settlement offer has been accepted, the settlement agreement is mutually binding; the settlement agreement cannot be set aside simply becau se one of the parties later changes its mind. See, e.g., Turoczy at ¶ 18 (“Once there is * * * a meeting of the minds, one cannot refuse to proceed w ith settlement due to a mere change of mind.”), citing Mack v. Polson

Rubber Co. , 14 Ohio St.3d 34, 36-37, 470 N.E.2d 902 (1984); Clark v. Corwin , 9th Dist. SummitNo. 28455, 2018-Ohio-1169, ¶ 13 (“‘[W]hen the partie s agree to a settlement offer, [the] agreement cannot be repudiated by either party, and the court has the authority to sign a journal entry reflecting the agreement

 and to enforce the settlement.”); Kostelnik , 96 Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, at ¶ 17 (“‘[A]ll agreem ents have some degr ee of indefiniteness and some degree of uncertainty’”; however, “‘people must be held to the promises they make.’”), quoting 1 Corbin on Contracts , Section 4.1 at 530 (Perillo Rev.Ed.1993). It is only where the parties intend that there will be no contract until the agreement is fully reduced to writing and executed that no settlement exists unless the final, written settlement agreement is signed by all of the parties. PNC Mtge. v. Guenther , 2d Dist. Montgomery No. 25385, 2013-Ohio-3044, ¶ 15. If a client authorizes its attorney to negotiate a settlement and the attorney negotiates a settlement within the scope of that author ity, the client is bound by it. See, e.g., Bromley v. Seme , 2013-Ohio-4751, 3 N.E.3d 1254, ¶ 25 (11th Dist.) (“ ‘I t is well-recognized that a party may be bound by the conduct of his or her attorn ey in reaching a settlement.”), quoting Saylor v. Wilde , 11th Dist. Portage No. 2006-P-0114, 2007-Ohio-4631, ¶12. A party cannot avoid a settlement that was negotiated through counsel by claiming that his attorney lacked actual authority to enter

into the settlement. See, e.g., Fugo v. White Oak Condominium Assn. , 8th Dist. Cuyahoga No. 69469, 1996 Ohio App. LEXIS 2725, 8-12 (June 27, 1996); Klever v. Stow , 13 Ohio App.3d 1, 4-5, 468 N.E.2d 58 (9th Dist.1983); see also Argo Plastic Prods. Co. v. Cleveland , 15 Ohio St.3d 389, 392-393, 474 N.E.2d 328 (1984). The Existence of an Enforceable Settlement Agreement {¶32} In its first assignment of error, Rayco cont ends that the trial court erred in finding that the parties entered into an enforceab le settlement agreement because (1) the $3,050,000 settlement offer Rayco made at the June 2016 mediation had la psed by the time appelleespurported to accept it and (2) its counsel’s Janua ry 26, 2017 letters simply indicated Rayco’s “willingness to re-open ne gotiations” and were not sufficiently “certain and clear regarding the settlement terms” to constitute a valid settlement offer. Rayco asserts that these letters simply summarized the parties’ past settlement positions and made it clear that Rayco was still willing to

consider settlement rather than specifying the terms upon which Rayco would settle the case. Rayco further contends that the le tters could not be deemed settleme nt offers because they did not specifically allocate settlement amounts between Murphy and Cav itch and because they lacked “other essential settlement terms required to execute a proper settlement agreement.” {¶33} The trial court, however, did not find an enforceable settlement agreement based on the settlement demand Rayc o made at the mediation or its counsel’s January 26, 2017 letters to appellees’ counsel. Rather, the trial court found that Murphy’s counsel’s February 23, 2017 email constituted an “unambiguous o ffer” to Rayco to settle the case for $3,050,000, which Rayco accepted when its counsel, Attorney Kehoe, left a voicemail message for Murphy’s counsel later that day. The trial court found th at the parties’ agreement was “further evidenced” by (1) Attorney Drushal’s February 24, 2017 email, (2) Rayco’s counsel’s circulati on of its proposed revisions to the settlement agreement on March 10, 2017 leav ing the figure of $3,050,000 undisturbed and (3) Attorney Kehoe’s statement on April 4, 2017 that “the settlement documen t is fine” and that Bowling had previously agreed to the settlement. {¶34} Accordingly, Rayco’s first assignment of error is meritless.

Standard of Proof {¶35} In its third assignment of error, Rayco contends that the trial court instructed the jury regarding, and itself applied, the wr ong standard of proof. Rayco argu es that if the trial court had properly instructed the jury that appellees needed to prove the existence of a settlement agreementby clear and convincing evidence rather than a pr eponderance of the evidence, “the jury may well have ruled in Rayco’s fa vor.” Rayco further argues that “[t]o the extent the trial court acted independently of the advisory ju ry,” the trial court erred in applying a preponderance of the

evidence standard rather than a clear and convincing evidence sta ndard in determining whether a settlement agreement existed. {¶36} This was a bench trial with an advisory jury pursuant to Civ.R. 39(C)(1). The advisory jury in this case was not the factfinder. After receiving answers to interrogatories and the verdict from the advisory jury, the trial court made its own findings of fact and conclusions of law.

As the trial court stated in its journal entry: “Based upon all the evidence, I find that there is a

contract to settle with terms that are clear and enforceable.” As su ch, any error in the trial court’s instructions to the advisory jury was harmless. {¶37} There is no indication in either the trial transcript or the trial court’s decision what standard of proof the trial court applied in determining that a settlement agreement existed. As a general matter, “[a] presumption of regularity attaches to all judicial proceedings.” State v.

Raber , 134 Ohio St.3d 350, 2012-Ohio-5636, 982 N.E.2d 684, ¶ 19. This presumption of regularity extends to the trial court’s applica tion of the correct burden of proof. Thus, we presume that the trial court applied the correct legal standard absent an affirmative demonstration

otherwise. See, e.g., In re Adoption of K.N.W. , 4th Dist. Athens Nos. 15CA36 and 15CA37, 2016-Ohio-5863, ¶ 44; Wilson v. Jones , 3d Dist. Seneca No. 13-13-06, 2013-Ohio-4638, ¶ 28. {¶38} Citing Brilla v. Mulhearn , 168 Ohio App.3d 223, 2006-Ohio-3816, 859 N.E.2d 578, ¶ 21 (9th Dist.), Foor v. Columbus Real Estate Pros.com , 5th Dist. Delaware No. 12 CAE 08 0063, 2013-Ohio-2848, ¶ 26, and Ivanicky v. Pickus, 8th Dist. Cuyahoga No. 91690, 2009-Ohio-37, ¶ 8, 13, Rayco contends that “[w]hen asked to enfo rce a settlement agreement,” the “correct legalstandard” is whether the record contains clear and convincing ev idence of both the terms of the settlement agreement and the parties’ assent to those terms. Rayco further contends that since the trial court instructed the advisory jury that appellees needed to prove the existence of a settlement agreement by a preponderance of the evidence, we must assume that th e trial court applied a preponderance of the evidence standa rd in determining that the par ties had agreed to settle the case for $3,050,000. {¶39} Following a thorough review of the reco rd and the relevant case law, we cannot say that the trial court applied the wrong standard of proof in determining that a settlement agreement existed in this case. In the cases cited by Rayco, the ev idence the court relied upon when referencing the clear and convincing eviden ce standard was evidence of an oral settlement agreement. See Brilla at ¶ 20-21 (observing that “a settlement agreement may be enforced regardless of whether it has been reduced to writing, as long as the terms of the agreement can be established by clear and convincing evidence” a nd concluding that an enforceable settlement agreement existed where, “even disregarding the magistrate’s documentation of [the parties’ settlement] agreement,” it was clear to the court that the terms of the agreement and appellant’s assent to those terms “may be establishe d by clear and convincing evidence”), citing Shetler v.

Shetler , 9th Dist. Wayne No. 00CA0070, 2001 Ohio App. LEXIS 2289, 3 (May 23, 2001) (“An oral settlement agreement ‘can be enforced by the court in those circumstances where the terms of the agreement can be established by cl ear and convincing evidence.’”), quoting Pawlowski v.

Pawlowski , 83 Ohio App.3d 794, 799, 615 N.E.2d 1071 (10th Dist.1992); Foor at ¶ 5, 26 (where during a telephone conversa tion, counsel agreed that the par ties would each “walk away” but the parties did not mutually understa nd what that meant, court erre d in finding that a “completed settlement agreement” was proven by clear a nd convincing evidence); see also Cugini & CapocciaBuilders, Inc. v. Tolani , 5th Dist. Delaware No. 15 CAE 10 0086, 2016-Ohio-418, ¶ 18 (“when the alleged settlement agreement is verbal and not written, the existence and the terms of such agreement must be established by clear and convincing evidence”); Stanton v. Holler , 7th Dist. Belmont No. 07 BE 29, 2008-Ohio-6208, ¶ 14 (“A settleme nt agreement that has not been reduced to writing may be enforced if its terms can be established by clear and convincing evidence.”). {¶40} In this case, by contrast, the purported settlement agreement is evidenced by writings on all sides, including the mutual exchange of drafts of the written settlement agreement that set

forth the essential terms of the settlement. {¶41} Further, in Ivanicky , although the appellant argued on appeal that the trial court had erred in enforcing appellee’s motion to enforce se ttlement agreement because appellee did not offer clear and convincing evidence that an oral settleme nt agreement had been reached, this court held only that the trial court had erred in failing to hold an evidentiary hearing prior to confirming the settlement; it did not indicate what standard s hould be applied in de termining whether an enforceable settlement agreement existed. Ivanicky at ¶ 8, 13. {¶42} Particularly where, as here, there is written evidence of a settlement agreement, other courts — including this court — have indicated that a preponderance of the evidence standard applies in determining whether a settlement agreement exists. See, e.g., Hillbrook Bldg. Co. v. Corporate Wings , 8th Dist. Cuyahoga No. 68619, 1996 Ohio App. LEXIS 3854, 9-13 (Sept. 5, 1996) (“‘Reduced to its simplest terms, a settlement agreement is a contract. The party asserting the contract (settlement agreemen t) must prove by a preponderance of the evidence the existence of the elements of the contract, including an offer, acceptance and consideration as to the existence of the contract and as to its terms.’”), quoting Ohio State Tie & Timber, Inc. v. Paris Lumber Co. , 8 Ohio App.3d 236, 456 N.E.2d 1309 (10th Dist.1982); see also Sutter v. Henkle , 3d Dist. MercerNo. 10-15-14, 2016-Ohio-1143, ¶ 9; Savoy Hospitality, LLC v. 5839 Monroe St. Assocs. LLC , 6th Dist. Lucas No. L-14-1144, 2015-Ohio-4879, ¶ 26; Burrell Indus. v. Cent. Allied Ents. , 7th Dist. Belmont Nos. 96 BA 18 and 96 BA 25, 1998 Ohio App. LEXIS 6176, *12-13 (Dec. 15, 1998); Rondy, Inc. v. Goodyear Tire Rubber Co. , 9th Dist. Summit No. 21608, 2004-Ohio-835, ¶ 7; State v. Lomaz, 11th Dist. Portage Nos. 2002-P-0118, and 2003-P-0062, 2006-Ohio-3886, ¶ 48; DSW, Inc. v. Zina Eva, Inc. , S.D.Ohio No. 2:11-cv-0036, 2011 U.S. Dist. LEXIS 143377, *5 (Dec. 13, 2011), quoting Ohio State Tie & Timber (“Although there is some suggestion that if the agreement is oral only, the burden of proof is by clear and convincing evidence, * * * where there is a written agreement, the burden (under Ohio law) appears to be the same as in any other case based on breach of contract, and th at is to ‘prove by a prepondera nce of the evidence the existence of the elements of the contract, including offer, acceptance and consideration both as to the existence of the contract and as to its terms.’”). {¶43} In this case, however, regardless of whet her a preponderance of the evidence or a clear and convincing evidence standard applies, a re view of the record shows that the trial court’s finding that the parties entered into an enforceab le settlement agreement is supported by sufficient competent, credible evidence. Here, the material facts relating to the parties’ settlement negotiations were undisputed. Base d on the facts set forth in the parties’ joint stipulation of undisputed facts, not only was th ere a clear offer and acceptance showing a mutual understanding of the essential terms, the parties thereafter confirmed their settlement agreement in various follow-up communications. The only evidence Rayc o offered to refute the existence of a settlement agreement was Attorney Drushal’s testimony that he believed “everybody needed to sign off” on the final version of the agreement before the parties had a settlement. However, that testimony was contradicted by (1) his co-couns el’s April 4, 2017 voicemail message to AttorneyVargo (in which Attorney Kehoe stated indicated that “[t]he settlement document itself is fine” and that “[w]e had John [Bowling’s] commitment to se ttle with the number that we agreed upon, but he’s being a little bit difficult in getting the document signed”) and (2) Attorney Kehoe’s testimony at the hearing that he had intended, by his words and actions, to consummate a settlement with appellees’ counsel. Thus, the unc ontroverted evidence in this case was not only sufficient to prove the existence of a settlement agreement by the greater weight of the evidence under a preponderance of the evidence standard but was also sufficient to pr oduce a firm belief or

conviction in the mind of the trier of fact as to the existence of a settlement agreement, so as to establish the existence of a settlement agreemen t under a clear and convincing evidence standard. See In re Phillips , 3d Dist. Marion Nos. 9-96-44, 9-96- 45, and 9-96-46, 1997 Ohio App. LEXIS 1152, 4-8 (Mar. 13, 1997) (trial court’s improper use of a lower standard of proof was harmless error where the evidence plainly demonstrated that the movant had proven its case by the requisite clear and convincing evidence). {¶44} Accordingly, we overrule Rayco’s third assignment of error.

The Witness-Advocate Rule {¶45} In its second assignment of error, Rayc o argues that the trial court erred by permitting appellees’ counsel to tes tify at the hearing in violation of the “witness-advocate rule.”

The “witness-advocate rule” is based on Ohio R.Prof.Cond. 3.7(a). That rule provides: A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness unle ss one or more of the following applies: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; (3) the disqualification of the lawyer woul d work substantial hardship on the client.{¶46} Prof.Cond.R. 3.7(a), however “doe s not render a lawyer incompetent to testify as a

witness on behalf of his c lient. Rather, * * * the [r]ule functions to allow the court to exercise its inherent power of disqua lification to prevent a potential viol ation of [the ethics rules].” Damron v. CSX Transp., Inc. , 184 Ohio App.3d 183, 2009-Ohio-3638, 920 N.E.2d 169, ¶ 39 (2d Dist.); see also Mentor Lagoons, Inc. v. Rubin , 31 Ohio St.3d 256, 258-259, 510 N.E.2d 379 (1987) (noting

that the “Code of Professional Responsibility ‘does not delineate ru les of evidence but only sets forth strictures on attorney conduct’ ” and that “[w]hen an attorney s eeks to testify, his employment as counsel goes to the weight, not th e competency, of his testimony”), quoting Universal Athletic Sales Co. v. Am. Gym, Recrea tional & Athletic Equip. Corp. , 546 F.2d 530, 539 (3d Cir. 1976). In Mentor Lagoons , the Ohio Supreme Court, applying the disciplinary rules then in place, set forth a procedure for courts to follow in determining whether a lawyer can serve as both an advocate and a

witness. Mentor Lagoons at paragraph two of the syllabus; see also 155 N. High, Ltd. v.

Cincinnati Ins. Co. , 72 Ohio St.3d 423, 427-428, 650 N.E.2d 869 (1995). As the Second District explained in Damron , when applying that procedure in th e context of the subsequently adopted

Ohio Rules of Pr ofessional Conduct: In determining whether a lawyer can serve as both an advocate and a witness, a court must first determine the admissibility of his testimony without reference to the Disciplinary Rules. If the court finds the testimony admissible, and a party or the court moves for the attorney to withdraw or be disqualified, the court must then consider whether any exceptions to Prof.C ond.R. 3.7(a) apply to permit the attorney to both testify and c ontinue representation.

Id. at ¶ 39. Where a party moves for disqualifi cation, the moving party bears the burden of proving that disqualification is necessary. McCormick v. Maiden , 6th Dist. Erie No. E-12-072, 2014-Ohio-1896, ¶ 11, citing Baldonado v. Tackett , 6th Dist. Wood No. WD-08-079,2009-Ohio-4411, ¶ 20. The burden of proving th at one of the exceptions in Prof.Cond.R. 3.7(a)(1)-(3) applies falls upon the attorn ey seeking to claim the exception. McCormick at ¶ 11. {¶47} In this case, the trial court was not as ked to exercise its “inherent power of disqualification” to prevent a pot ential violation of the Rules of Professional C onduct. Instead, after appellees’ counsel conducted voir dire, gave their opening st atements and called their first witness — Attorney Vargo — Rayco’s counsel objected to his testimony based on the

witness-advocate rule. {¶48} It should have come as no surprise that counsel for appellees would testify at the evidentiary hearing. This is not a case in which the testimony presented could have been elicited by other means. Aside from the mediator and the clients themselves, who were not directly involved in the settlement negotia tions after the parties stopped wo rking with the mediator, the only persons with personal knowle dge regarding the parties’ se ttlement negotiations were the parties’ attorneys. Although the parties had attemp ted to avoid having thei r attorneys testify by submitting a joint motion for leave to file stipul ation of undisputed fact s regarding defendants’ motion to enforce settlement agreement, the trial court denied their request to have appellees’ motion decided based on the stipulation. {¶49} As explained in the comments to Prof.Cond.R. 3.7, the rationale for the

advocate-witness rule is as follows: The tribunal has proper objection when the tr ier of fact may be confused or misled by a lawyer serving as both advocate a nd witness. The opposing party has proper objection where the combination of roles may prejudice that party's rights in the litigation. A witness is require d to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-w itness should be taken as proof or as an analysis of the proof. Comment 2, Prof.Cond.R. 3.7.{¶50} Rayco argues that it was prejudiced by a ppellees’ counsel serving as both witnesses and advocates at the hearing because it enabled a ppellees’ counsel to refer to their own testimony during closing arguments and urge the jury to accept their recitation of the facts — in essence vouching for “the truthfulness of their own testimony.” {¶51} However, in this case, the jury had only an advisory role. The advisory jury gave its “advice,” based on its view of the evidence, to th e trial court, but its decision was not binding on the trial court. The trial court was required to make its own independent findings of fact and conclusions of law as if there had been no verdict from the advisory jury. The trial court was well

aware of the different roles assu med by appellees’ counsel at the hearing and was not likely to be confused or misled by the lawyers’ dual capacities. See Michael P. Harvey Co., L.P.A. v. Ravida , 2012-Ohio-2776, 972 N.E.2d 1087, ¶ 5 (8th Dist.) (notin g that “[t]he concerns expressed in the comments to Prof.Cond.R. 3.7(a)(2)” had “no applicability” where the case was tried to the court, the court “fully understood” that lawyer was acting pro se a nd “should have been able to distinguish between his role as advocate and his role as a witness without the same risk of confusion that might have been present had the case been tried to a jury”). {¶52} Further, the matters as to which appellees’ counsel testified were not in dispute. See Prof.Cond.R. 3.7(a)(1). Appellees’ counsel’s testimony tracked the stipulation of undisputed facts the parties had jointly submitted and admitted into evidence at the hearing. When testifying on cross-examination, Attorney Ke hoe acknowledged that 95 per cent of appellees’ counsel’s testimony was “substantively accurat e” and that the “few details around the edges that [he] might * * * state differently” were not material.{¶53} Accordingly, Rayco was not prejudiced by appellees’ attorneys’ testimony and the trial court did not abuse its discretion or otherwise err in permitting appellees’ attorneys to testify at the hearing. See Erie Air Conditioning & Heating, Inc. v. S.C. Co. , 8th Dist. Cuyahoga No. 63216, 1993 Ohio App. LEXIS 3652, 19-22 (July 22, 1993) (t rial court did not abuse its discretion in failing disqualify plaintiff’s counsel or in allowi ng plaintiff’s counsel to testify in defense of

counterclaim and in rebu ttal of defendants’ case- in-chief where motion to disqualify counsel was

filed on the eve of trial and to have prevented counsel from te stifying would have worked a substantial hardship on the client given counsel’s unique role in the contested dealings). Rayco’s second assignment of e rror is overruled. Request for Attorneys’ Fees Incurred to Enforce the Settlement Agreement {¶54} In their cross-assignment of error, appellees contend that the trial court erred in denying their request for an award of the reasona ble attorney fees they incurred to enforce the parties’ settlement agreement. We agree. {¶55} Ordinarily, the decision whether to award a ttorney fees is within the sound discretion

of the trial court. See, e.g., Thomas v. Cleveland , 176 Ohio App.3d 401, 2008-Ohio-1720, 892 N.E.2d 454, ¶ 15, citing Bittner v. Tri-County Toyota, Inc. , 58 Ohio St.3d 143, 146, 569 N.E.2d 464 (1991); Buck v. Pine Crest Condominium Assn. Group D-E-F , 8th Dist. Cuyahoga No. 97861, 2012-Ohio-5722, ¶ 27. Absent a clear abuse of that discretion, the trial court’s decision should

not be reversed. An abuse of discretion implies that a decision is unreasonable, arbitrary, or unconscionable. It may be found where the tr ial court applies the wrong legal standard, misapplies the correct legal standard or re lies on clearly erroneous findings of fact. Resco Holdings, L.L.C. v. AIU Ins. Co. , 8th Dist. Cuyahoga No. 106234, 2018-Ohio-2844, ¶ 13; Thomas at ¶ 15.{¶56} Public policy strongly favors the enforcement of settlement agreements. See, e.g., Spercel v. Sterling Industries, Inc. , 31 Ohio St.2d 36, 38, 285 N.E.2d 324 (1972) (“‘The law favors the resolution of controversies and uncertainties through compromise and settlement rather than through litigation. * * * The resolution of c ontroversies * * * by means of compromise and settlement * * * results in a saving of time for the parties, the lawyers, and the courts, and it is thus advantageous to judicial adminis tration, and, in turn, to govern ment as a whole.’”), quoting 15 American Jurisprudence 2d, Compromis e and Settlement, Section 4 at 938; Turoczy , 8th Dist. Cuyahoga No. 106494, 2018-Ohio-3173, at ¶ 16 (“Settlement agreements are generally favored in the law.”); see also Fugo , 8th Dist. Cuyahoga No. 106469, 1996 Ohio App. LEXIS 2725, at 10 (“public policy strongly favors the enforcement of settlements freely arrived at”). {¶57} Ohio follows the “American rule,” which provides that a prevailing party in a civil action may not generally recover their attorney fees as part of the costs of litigation unless attorney fees are provided for by statute, the non-prevailing pa rty acts in bad faith or there is an enforceable contract that specifically provides for the losing party to pay the pr evailing party’s attorney fees. Wilborn v. Bank One Corp. , 121 Ohio St.3d 546, 2009-Ohio-306, 906 N.E.2d 396, ¶ 7. Appellees do not contend that any of th ese exceptions apply here. {¶58} Rather, appellees argue that, notwithstanding the American rule, they are entitled to recover the reasonable attorney fees they incurred in enforcing the parties’ settlement agreement as compensatory damages for Rayco’s breach of the settlement agreement. {¶59} This court previously addresse d the issue of whether a party can recover attorney fees as compensatory damages for breach of a settlement agreement in Berry v. Lupica , 196 Ohio App.3d 687, 2011-Ohio-5381, 965 N.E.2d 318 (8th Dist.).{¶60} In Berry , an employee, Berry, filed suit agai nst his supervisor and employer, Wachovia Securities (“Wachovia”), a lleging that Wachovia breached an agreement to pay the full amount of Berry’s share of an arbitration awar d that had been entered against Berry in an arbitration between Berry and his former employer, Merrill Lynch. Id. at ¶ 1. The arbitration panel awarded Merrill Lynch $250,000 on its claims against Berry and awarded Berry $125,000 on his claim against Merrill Lynch. Id. at ¶ 2. Wachovia paid the $250,000 judgment against Berry.

Id. at ¶ 3. Berry endorsed the $125,000 check he r eceived from Merrill Lynch and gave it to his Wachovia branch manager with a note requesting th at the check be placed on deposit “to offset the

interest due on our contract” a nd indicating that “[t]he $125,000 is to be returned on demand.” Id. at ¶ 3-4. The check was deposited into a Wachovi a account dedicated to legal settlements. Berry

later asked to have the check returned to him but Wachovia refused to return it. Id. at ¶ 5. Wachovia filed a counterclaim, a lleging that Berry had breached an agreement that he would

reimburse Wachovia for certain of the amounts it ha d paid to Merrill Lynch in satisfaction of the

arbitration award. Id. at ¶ 1, 6. It sought to recover as damages the attorney fees it would be required to expend to enforce the agreement. Id. at ¶ 6. {¶61} At trial, the issue was whether the parties had agreed that the sum Berry received from Merrill Lynch would be set off against the $250,000 Wachovia paid to Merrill Lynch to satisfy the judgment against Berry. Id. at ¶ 7. In its closing argument, Wachovia asked the jury to “return an award * * * for $133,691 which is the amount of the fees and expenses we’ve incurred in defending the case.” Id. at ¶ 34. The jury found against Berry on all of his claims and in favor of Wachovia on its counterclaim; it awarded Wachovia $432,000 in damages for the attorney fees Wachovia incurred in en forcing the settlement agreement. Id. at ¶ 8.{¶62} Berry appealed to this court, asserting, among other arguments, that the award of attorney fees to Wachovia viol ated the “American Rule.” Id. at ¶ 18-19. This court disagreed. It held that Berry had breached the settlement agreement when he filed suit against Wachovia, seeking the return of the $125,000. Id. at ¶ 15. It further held th at the attorney fees Wachovia incurred to enforce the settlement agreement were recoverable as compensatory damages resulting from Berry’s breach of their agreement. Id. at ¶ 19-20. As the court explained: Ohio adheres to the rule that “a prevailing party in a civil action may not recover attorney fees as a part of the costs of litigation.” Wilborn v. Bank One Corp. , 121 Ohio St.3d 546, 2009 Ohio 306, 906 N.E.2d 396, at ¶ 7. However, attorney fees are allowed as compensatory damages when the fees are incurred as a direct result of the breach of a settlement agreement. See Raymond J. Schaefer, Inc. v. Pytlik , 6th Dist. No. OT-09-026, 2010-Ohio-4714, ¶ 34; Tejada-Hercules v. State Auto. Ins. Co. , 10th Dist. No. 08AP-150, 2008-Ohio- 5066, ¶ 10. The rationale behind the exception for allowing attorney fees expended as a result of enforcing a settlement agreement is that “any fees in curred after the breach of the settlement agreement were relevant to the determination of compensatory damages, including those fees [a party was] ‘forced ’ to incur by filing the action.” Tejada-Hercules at ¶ 10.

 The legal fees awarded in this case were the measure of compensatory damages directly related to Wachovia’s need to en force the settlement agreement. The court did not err by awarding Wachovia its atto rney fees as compensatory damages.

Id. at ¶ 19-20. Because it found the jury’s damages award to be “plainly excessive,” the court gave Wachovia the option of accepting a re mittitur of the damages award to $133,691 – the amount that Wachovia requested and pr oved at trial — or a new trial. Id. at ¶ 44, 46. {¶63} Thus, under Berry , where a party breaches a settleme nt agreement to end litigation and the breach causes a party to incur attorney fees through continued litigation to enforce the settlement agreement, those fees are recoverabl e as “compensatory damages” for breach of the settlement agreement. Because the attorney f ees sought in that context are regarded as compensatory damages — rather than as costs of litigation to remedy a breach of contract — theAmerican rule does not preclude their recovery even where none of the other exceptions to the American rule applies. See also Shelly Co. v. Karas Properties , 8th Dist. Cuyahoga No. 98039, 2012-Ohio-5416, ¶ 41 (observing that “[c]ourts often award attorney fees incurred after the breach of a settlement agreement because ‘when a party breaches a settlement agreement to end litigation and the breach causes a party to incur attorney fees in continuing litigation, those fees are recoverable as compensatory damages in a breach of settlement claim,’” but concluding that Berry did not apply because cross-appe llant’s breach of contract cla im did not involve a settlement agreement), quoting Shanker v. Columbus Warehouse Ltd. Partnership , 10th Dist. Franklin No. 99AP-772, 2000 Ohio App. LEXIS 2391 (June 6, 2000). Berry is consistent with the strong public policy that exists in encouraging settlements and enforcing settlement agreements. {¶64} A number of cases from other jurisdictions are in accord. See, e.g., Brown v. Spitzer Chevrolet Co., 5th Dist. Stark No. 2012 Ca 00105, 2012-Ohio-5623, ¶ 19-21; Raymond J. Schaefer, Inc. v. Pytlik , 6th Dist. Ottawa No. OT -09-026, 2010-Ohio-4714, ¶ 33-34; State ex rel. Ohio AG v. Tabacalera Nacional, S.A.A. , 10th Dist. Franklin No. 12AP-606, 2013-Ohio-2070, ¶ 34-35; Tejada-Hercules v. State Auto. Ins. Co. , 10th Dist. Franklin No. 08AP-150, 2008-Ohio-5066, ¶ 9-11; Shanker v. Columbus Warehouse Ltd. Partnership , 10th Dist. Franklin No. 99AP-772, 2000 Ohio App. LEXIS 2391, 11-15 (June 6, 2000); Myron C. Wehr Props., L.L.C. v. Petraglia , 2016-Ohio-3126, 65 N.E.3d 242, ¶ 36, 38 (7th Dist.) ; see also Rohrer Corp. v. Dane Elec Corp. USA , 482 Fed.Appx. 113, 115-117 (6th Cir.2012) (“Oh io law allows a court to award attorney’s fees as compensatory damages when a party’s breach of a se ttlement agreement makes litigation necessary, even where none of the exceptions to the American Rule have been shown.”); Wilson v. Prime Source Healthcare of Ohio , N.D.Ohio No. 1:16-cv-1298, 2018 U.S. Dist. LEXIS 34445, 8-9 (Mar. 2, 2018) (Where a settling party fo rces the other party to litigate a motion toenforce the settlement, the party forced to enforce the settlement agreement is entitled to attorney fees stemming from the additional litigation as compensatory damages). But see Mayfran Internatl. v. May Conveyor, Inc. , 8th Dist. Cuyahoga No. 62913, 1993 Ohio App. LEXIS 3511, 15 (July 15, 1993) (reversing tria l court’s award of attorney fees as compensatory damages for breach of settlement agreement, reasoning that “absent a statutory provision, a prevailing party is not entitled to an award of attorney fees unless the pa rty against whom the fees are taxed was found to have acted in bad faith”). {¶65} The trial court did not address Berry in its decision below 5 and Rayco does not address this aspect of Berry in its brief. 6 Instead, Rayco cites Kornick v. Zomparelli , 8th Dist. Cuyahoga Nos. 53599, 53875, 1988 Ohio App. LEXIS 896, 9 (Mar. 17, 1988), for the proposition that “[t]he Eighth District has specifically recognized that the American Rule applies to actions seeking to enforce a settlement agreement,” and Mayfran at 15 , Doss v. Cleveland , 8th Dist. Cuyahoga No. 1995 Ohio App. LEXIS 659 (Feb. 23, 1995), and Ludwinski v. Seven Hills , 8th Dist. Cuyahoga No. 52416, 1987 Ohio App. LEXIS 8659, 10-11 (Sept. 10, 1987), for the proposition that “in the absence of a finding of bad faith, a trial court commits reversible error in awarding attorney fees on a motion to enforce a settlement agreement.”

5 The trial court did, however, address Shanker v. Columbus Warehouse Ltd. Partnership , 10th Dist. Franklin No. 99AP-772, 2000 Ohio App. LEXIS 2391 (June 6, 2000). The trial court refused to apply Shanker , concluding that to “adopt[] the Shanker rationale,” would “nullify the American rule.”

6 Although Rayco cites Berry in its brief, it does so only for the proposition that a party seeking to recover legal fees must offer evidence showing the fees charged, the reasonableness of the fees charged and the number of hours worked. At oral argument, for the first time, Rayco attempted to distinguish Berry on the ground that, in Berry, Wachovia was forced to litigate the existence of the settleme nt agreement in a separate action rather than by filing a motion to enforce settlement in a pending action. It also argued that the award of attorney fees in Berry could be interpreted as an award based on Berry’s bad faith in breaching the settlement agreement. Finally, it argued that to the extent Berry conflicts with Mayfran. Mayfran is controlling over Berry because Mayfran was decided first. Rayco’s arguments are not persuasive. Likewise, other than a brief discussion of Kornick, appellees failed to distinguish or otherwise address any of the authorities cited by Rayco on this issue in their brief.{¶66} In Kornick , although the court acknowledged th e “general rule” that “attorney

fees are not recoverable in contract actions unl ess there has been a showing of bad faith or wrongful motives,” it affirmed the trial court’s award of $225 in a ttorney fees to appellees for appellant’s breach of a se ttlement agreement, reasoning that the award was “justified” “[g]iven appellees’ attempts to personally enforce the agreem ent as well as the necessity to seek the court’s assistance in that same regard.” Id. at 9. It is unclear from the court’s decision whether it found that the evidence of failed “attempts to personally enforce the agreement” and “necessity to seek the court’s assistance” was sufficient to support an award of attorney fees based on “bad faith or wrongful motives” or whether it recognized another exception to the general rule where a party incurs attorney fees to enforce a settlement agreement. {¶67} In Doss , appellants argued that they were entitled to recover their attorney fees because appellee’s failure to timely credit their bene fits constituted bad faith — of which the court found no evidence — not as compensatory damage s incurred to enforce the parties settlement agreement. Id. at 2, 4-6. Similarly, in Ludwinski , this court found that the trial court did not abuse its discretion in denying appellant’s request for attorney fees after certain appellees “reneged” on a settlement agreement. This court noted that although the trial court enforced the settlement, it found the a ppellees’ conduct to be “just” in light of the fact that the trial court had dismissed the case based on appellant’s failure to file preliminary judicial title reports. Id. at 10-11. No argument appears to ha ve been made, and the court did not otherwise address, whether attorney fees incurred in enforcing a settlement agreement could be recovered as compensatory damages. {¶68} Stringer v. Dept. of Health-Ohio , 8th Dist. Cuyahoga No. 102166, 2015-Ohio-2277, ¶ 5-6. Simmons v. Lee , 8th Dist. Cuyahoga No. 103108, 2016-Ohio-25, ¶ 16, and State ex rel.Delmonte v. Woodmere , 2005-Ohio-6489, ¶ 53 — the additi onal authorities upon which Rayco relies for its argument that the trial court did not abuse its discretion in denying appellees’ request for attorney fees — are likewise distinguishable. {¶69} In Stringer , the attorney fee issue was not raised on appeal. In Simmons , this court held that the trial court acted within its discretion in denying appellant’s motion for attorney fees based on his alleged untimely recei pt of settlement proceeds from th e estate, because (1) there was no evidence in the record that the administrator “acted in bad faith, vexatiously, wantonly, or for oppressive reasons”; (2) the alle ged delay in appellant’s receipt of the settlement proceeds was “nonexistent”; (3) appellant was the last party to sign the se ttlement agreement and (4) in signing the agreement, he agreed that all pendi ng motions were withdrawn as moot. Simmons at ¶ 5, 15-16. Once again, no argument appears to have been made, and the court did not otherwise address, whether attorney fees incurred in enforcing a settlement agreement could be recovered as compensatory damages. {¶70} In Delmonte , the village of Woodmere sought to recover its attorney fees under R.C. 2323.51, the frivolous conduct statute, after appe llee breached a settlement agreement. Delmonte at ¶ 52-56. There is no claim or argument in this case that appellees are entitled to attorney fees

under the frivolous conduct statute. {¶71} We acknowledge that a panel of this court reached a different result in Mayfran, 8th Dist. Cuyahoga No. 62913, 1993 Ohio App. LEXIS 3511. However, that decision, unlike Berry , is not controlling authority. 7 Although in Berry , the nonbreaching party sought enforcement of its

7 In the past, “reported” decisions were controlling authority in the district, and “unreported” decisions were merely “persuasive.” As of May 1, 2002, the Supreme Court abolished the distinction between “controlling” and “persuasive” opinions, based merely upon whether a case is “reported.” See Rep.Op.R. 3.4 (“All opinions of the courts of appeals issued after May 1, 2002 may be cited as legal authority and weighted as deemed appropriate by the courts without regard to whether the opinion was published or in what form it was published.”). As ancounterclaim in a separate action rather than by filing a mo tion to enforce settlement, we see no

reason that a different rule s hould apply depending on how a part y seeks to enforce a settlement agreement. See, e.g., Wilson, N.D., Ohio No.1:16-CV-1298, 2018 U.S. Dist. LEXIS 34445, at *8-9 (“Attorney’s fees as compensatory damages are available whether a party files a separate

breach of contract suit or a motion to enforce settlement before the or iginal trial court.”). In both instances, a party seeking to enforce a settlement agreement is subjected to additional or continued litigation as a result of the ot her party’s attempte d repudiation of a settlement agreement. {¶72} Rayco also argues that we should affirm the trial court’s deci sion because appellees presented no evidence at the hearing regarding th e amount of attorney fees they incurred in enforcing the settlement agreement or the reasonableness of those fees. However, as stated in the trial court’s journal entry, the issue to be decided at the hearing was “whether the parties entered

into a contract to settle the lawsuit.” 8 After that issue was deci ded, the trial court inquired whether it had “enough law [and] evidence” to decide “whether to award fees or not.” The trial court granted the parties leave to submit “legal briefs” on the issue of whether “a motion to enforce in and of itself gives rise to a potential entitle ment for fees.” There was no opportunity for appellees to present evidence as to the amount of attorney fees they cont ended should be awarded. {¶73} Accordingly, the trial court abused its discretion in denying appellees’ request for attorney fees. Appellees’ cross-assi gnment of error is sustained. {¶74} The trial court’s judgment is affirmed to the extent that it grants appellees’ motion to enforce the settlement agreement and reversed to the extent that it denies appellees’ motion for

unreported decision decided before May 1, 2002, Mayfran is not controlling authority . See, e.g., In re B.L. , 3d Dist. Allen Nos. 1-15-65, 1-15-66, 1-15-67, and 1-15-68, 2016-Ohio-2982, ¶ 11.

8 Appellees also filed a motion in limine to limit testimony and evidence at the hearing to the issue of the “settlement between the parties,” which the trial court granted.attorney fees. Case remanded for a determination of the amount of reasonable attorney fees appellees incurred to enforce the settlement agreement. {¶75} Judgment affirmed in part; re versed in part; case remanded. It is ordered that appellees recover from appellant the costs herein taxed.

The court finds there were reas onable grounds for this appeal. It is ordered that a special mandate be sent to Cuyahoga C ounty Court of Common Pleas 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 A. GALLAGHER, ADMINISTRATIVE JUDGE MARY J. BOYLE, J., CONCURS; MELODY J. STEWART, J., CONCURS IN PART AND DISSENTS IN PART

MELODY J. STEWART, J., CONCURRING IN PART, DISSENTING IN PART: {¶76} I would affirm the trial court’s decision in its entirety. The American Rule — that each party be responsible for its attorney fees — does not necessarily apply in actions to enforce a settlement agreement. Berry v. Lupica , 196 Ohio App.3d 687, 2011-Ohio-5381, 965 N.E.2d 318, ¶ 19 (8th Dist.) (“attorney fees are allowed as co mpensatory damages when the fees are incurred as a direct result of the breach of a settlement agreem ent.”). The key point, however, is that attorney fees must be “compensatory damages” for enforcing a settlement, not merely attorney fees costs. Thus, in Berry , the party seeking to enforce a settlement ha d to file a separate action for breach of a settlement agreement.{¶77} The law firms did not file a separate action to enforce the settlement agreement in this case. At all events, this was a legal malpractice case and the efforts to enforce the settlement were made by motion, not by a formal complaint in a separate action. It follows that the attorney fees were not sought as compensatory damages, but only as a cost of litigating the motion. The court did not err by denying the motion for attorney fees.