[Cite as Prime Properties Ltd. Partnership v. Badah Ents., 2014-Ohio-206.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 99827

PRIME PROPERTIES LTD. PARTNERSHIP

PLAINTIFF-APPELLANT

vs. 

BADAH ENTERPRISES, ET AL.

DEFENDANTS-APPELLEES 

JUDGMENT: 

REVERSED AND REMANDED

Civil Appeal from the 

Cleveland Municipal Court 

Case No. 2012 CVH 015178 

BEFORE: S. Gallagher, J., Jones, P.J., and Blackmon, J. 

RELEASED AND JOURNALIZED: January 23, 2014 
ATTORNEYS FOR APPELLANT 

Thomas L. Brunn, Jr. 

Alison D. Ramsey 

The Brunn Law Firm Co., L.P.A. 

208 Hoyt Block Building 

700 West St. Clair Avenue 

Cleveland, OH 44113 

ATTORNEYS FOR APPELLEES

Robert T. Glickman 

Charles A. Nemer 

Christina E. Niro 

McCarthy, Lebit, Crystal & Liffman Co., L.P.A. 

101 W. Prospect Avenue 

Suite 1800 

Cleveland, OH 44115 
SEAN C. GALLAGHER, J.: 

{¶1} Plaintiff Prime Properties Limited Partnership (“Prime Properties”) appeals 

the trial court’s decision granting summary judgment in favor of defendants Badah 

Enterprises, Inc., Essam Abdallah, and Ennan Abdallah (collectively “Badah”) upon 

their counterclaim for breach of contract, which was predicated on an alleged settlement 

agreement entered in a previous action. For the following reasons, we reverse the 

decision of the trial court and remand for further proceedings consistent herewith. 

{¶2} In 2007, Prime Properties leased commercial property to Badah for the 

operation of a fuel station. In 2010, a petroleum leak occurred on the property, resulting 

in the shutdown of the fuel station. A dispute arose between Badah and Prime Properties 

regarding the maintenance and repair of the fuel storage tanks, lines, and dispensing 

systems. Prime Properties filed a complaint for forcible entry and detainer in May 2010 

in Cleveland Municipal Court’s Housing Division, later amended to include claims 

relating to the leaked petroleum. Badah filed a counterclaim in that action, seeking lost 

profits based on Prime Properties’ alleged failure to maintain the premises. There was 

another action pending in Rocky River Municipal Court involving claims between the 

parties, although the scope of those claims is not clear from the record in this appeal. 

{¶3} During the course of those 2010 cases, the parties engaged in protracted 

settlement negotiations at the deposition of Prime Properties’ representative in July 2011. 

 Prime Properties’ Civ.R. 30(B)(5) deponent, Elias Kassouf, was allowed to participate in 

the settlement negotiations, but the ultimate settlement authority for Prime Properties 
rested with James Kassouf. The parties’ lawyers tentatively agreed to a global settlement 

in which Badah would pay Prime Properties a total sum of $75,000, with $35,000 to be 

deposited no later than August 5, 2011, and the remainder to be paid monthly thereafter. 

Any breach subjected Badah to a consent judgment of $90,000, less any payments. The 

parties further agreed to mutual dismissals of all claims, and Badah argues the parties 

agreed to general mutual releases of all future claims. 

{¶4} The next day, the parties began memorializing a global settlement agreement 

based on the oral discussions. After a few versions of the settlement agreement were 

exchanged, Prime Properties submitted a version that included a carve-out exception to a 

general release, for environmental issues. Leading to the carve-out exception, Prime 

Properties’ attorney forwarded a copy of the proposed agreement to James Kassouf, who, 

in turn, forwarded the copy to another Prime Properties’ lawyer who was handling the 

environmental impact of the petroleum leak. It was Prime Properties’ specialist who 

recommended the inclusion of the carve-out exception in any settlement. Badah balked 

at the environmental carve-out of the general release, and the settlement agreement was 

never consummated. 

{¶5} During this time, the parties filed an agreed judgment entry with the Rocky 

River Municipal Court seeking a continuance of the then-impending trial in which the 

parties agreed that a “settlement has been reached and that the parties are currently 

negotiating the terms and language of a settlement agreement.” That trial court ordered 

the trial continued in “order to allow the parties to come to an agreement on settlement 
terms, reduce the terms to writing, and execute a settlement agreement.” Both parties 

signed the agreed judgment entry, dated August 12, 2011. 

{¶6} The respective courts apparently dismissed the 2010 cases without prejudice 

when the settlement discussions faltered. According to the record on appeal, Badah did 

not seek to enforce any alleged oral settlement agreement at the time of those dismissals. 

Instead, on September 12, 2012, Prime Properties refiled its claims against Badah in 

Cleveland Municipal Court, Housing Division, case No. 2012 CVH 015178. Badah 

answered the complaint but did not raise any claim regarding the alleged settlement. It 

was not until Badah sought leave to file an amended counterclaim that it advanced a 

breach of contract action against Prime Properties, claiming Prime Properties breached 

the terms of a settlement agreement by filing the 2012 action. Badah sought specific 

performance of the terms of the purported settlement agreement and filed a motion to 

enforce a settlement agreement that the trial court converted to one for summary 

judgment. Prime Properties claimed that no binding settlement agreement was ever 

consummated. The trial court granted summary judgment in favor of Badah upon its 

counterclaim, and entered an order enforcing the oral settlement agreement allegedly 

entered at the July 2010 settlement discussion. 

{¶7} It is from this decision that Prime Properties timely appeals, advancing two 

assignments of error, the second of which is dispositive of this appeal.1

 In its second 

 1

Prime Properties’ first assignment of error provides that “[t]he trial court erred as a matter of 

law by granting summary judgment as to the existence and enforceability of a settlement agreement 

without first holding an evidentiary hearing.” In light of the fact that we find that the trial court 
assignment of error, Prime Properties claims, “The trial court erred as a matter of law in 

determining that the parties entered into an enforceable settlement agreement.” For the 

following reasons, we sustain Prime Properties’ argument. 

{¶8} A settlement agreement, at its lowest level, is an issue of contract law, 

requiring a meeting of the minds as well as an offer and acceptance in order to create a 

binding contract. Natl. Court Reporters, Inc. v. Krohn & Moss, Ltd., 8th Dist. Cuyahoga 

No. 95075, 2011-Ohio-731, ¶ 10. While it “is preferable that a settlement be 

memorialized in writing[,] * * * an oral settlement agreement may be enforceable if there 

is sufficient particularity to form a binding contract. Terms of an oral contract may be 

determined from ‘words, deeds, acts, and silence of the parties.’” (Citations omitted.) 

Kostelnik v. Helper, 96 Ohio St.3d 1, 3, 2002-Ohio-2985, 770 N.E.2d 58, quoting 

Rutledge v. Hoffman, 81 Ohio App. 85, 75 N.E.2d 608 (12th Dist.1947), paragraph one of 

the syllabus. In order for the oral settlement agreement to form a binding contract, there 

must be a meeting of the minds of the parties, and an offer on one side and an acceptance 

on the other. Gutbrod v. Schuler, 8th Dist. Cuyahoga No. 94228, 2010-Ohio-3731, ¶ 17. 

 Generally, whether a meeting of the minds has been obtained is a question of fact to be 

determined by the trier of fact from all the relevant facts and circumstances. Id., citing 

Garrison v. Daytonian Hotel, 105 Ohio App.3d 322, 325, 663 N.E.2d 1316 (2d 

Dist.1995). 

 

erred in granting summary judgment in favor of Badah, the first assignment of error is moot. 
{¶9} There are two avenues to enforce a purportedly binding oral settlement 

agreement. Natl. Court Reporters, Inc. at ¶ 12. “The settlement agreement may be 

enforced either through filing an independent action for breach of contract, or by filing a 

motion to enforce the settlement agreement in the same action pursuant to Civ.R. 15(E).” 

(Emphasis added.) Id. In this case, Badah proceeded with the former enforcement 

mechanism, in light of the fact that the original case had been dismissed without prejudice 

over a year prior to Badah’s counterclaim for breach of contract. Therefore, and as 

recognized by the trial court in this case, Badah’s motion to enforce a settlement 

agreement was really one for summary judgment upon its counterclaim for breach of 

contract or, more specifically, breach of the alleged settlement agreement. 

{¶10} We must clarify one over-arching issue. Essentially, the parties treated 

Badah’s breach of contract claim as if it were a motion to enforce a settlement agreement 

filed in the case terminated by the agreement, rather than addressing the merits of Badah’s 

new, independent breach of contract claim. These are two different mechanisms not to 

be conflated. See Rulli v. Fan Co., 79 Ohio St.3d 374, 683 N.E.2d 337 (1997) (where the 

existence or meaning of a settlement agreement is an issue for resolution of a motion to 

enforce a settlement agreement filed in the case for which the settlement agreement 

applies, a hearing is required); Consolo v. Menter, 9th Dist. Summit No. 25394, 

2011-Ohio-6241, ¶ 11 (a stand-alone claim for breach of a settlement agreement is 

enforced under the same standard as a breach of contract claim). The resulting confusion 
of whether to address this as a motion to enforce a settlement or as a breach of contract 

action muddied the process for all parties in the trial court. 

{¶11} Prime Properties argues that a hearing was necessary to resolve the 

“formation of the agreement” issue, while Badah argues that it established the existence 

of a valid oral contract by demonstrating no genuine issues of material fact existed 

regarding the enforceability of that settlement agreement. Unfortunately, these arguments 

both miss the point. The confusing and complicated nature of these settlement 

negotiations contributed to this apparent blurred distinction between the enforcement of 

an oral settlement agreement and a breach of contract action. 

{¶12} Thus, the issues presented to the trial court were miscast. This is not a case 

where the parties may conduct a hearing to resolve this formation dispute for two 

important reasons. First, both parties requested a jury in their respective pleadings to 

resolve all claims. In light of that, the parties’ reliance on Rulli or any expedited hearing 

procedure to resolve the breach of contract counterclaim is simply misplaced.2

 

 2

In Rulli, the plaintiff and defendant reached an agreement to settle the case 

and proceeded to place that agreement on the record pending a final agreed 

judgment entry. Rulli v. Fan Co., 7th Dist. Mahoning No. 94 C.A. 14, 1995 Ohio 

App. LEXIS 5622 (Dec. 20, 1995) *3. The Rulli parties then disagreed about the 

terms of the settlement, and one side filed a motion to enforce. Id. In that 

context, the Ohio Supreme Court determined that a hearing was necessary when 

there was an issue regarding the formation of the settlement agreement, which 

resolved the claims in the same action as the motion to enforce the settlement 

agreement was filed. Rulli, 79 Ohio St.3d 374, 377, 683 N.E.2d 337. On the 

contrary, the Consolo case is illustrative of the procedure courts employ when the 

party seeking to enforce a settlement agreement files a separate action, including, 

as here, a counterclaim, claiming another party breached an oral, but binding, 

settlement agreement. Consolo, 9th Dist. Summit No. 25394, 2011-Ohio-6241. 
{¶13} Second, and more importantly, in situations where the party seeking 

enforcement of a settlement agreement files a separate breach of contract action, the 

inquiry goes beyond determining the formation of a binding agreement. In order to 

substantiate a breach of contract claim, a party must establish four elements: (1) a 

binding contract or agreement was formed; “[(2)] the nonbreaching party performed its 

contractual obligations; [(3)] the other party failed to fulfill its contractual obligations 

without legal excuse; and [(4)] the nonbreaching party suffered damages as a result of the 

breach.” Textron Fin. Corp. v. Nationwide Mut. Ins. Co., 115 Ohio App.3d 137, 144, 684 

N.E.2d 1261 (9th Dist.1996), citing Garofalo v. Chicago Title Ins. Co., 104 Ohio App.3d 

95, 108, 661 N.E.2d 218 (8th Dist.1995). The mere fact that a binding settlement 

agreement exists is insufficient to warrant a breach of contract award, even when the 

damages sought is specific performance. In other words, there must be a breaching act 

that triggered the filing of a separate breach of contract action even where the contract is 

a settlement agreement. See Consolo, 9th Dist. Summit No. 25394, 2011-Ohio-6241. 

{¶14} In short, the crux of this appeal lies in the trial court’s granting summary 

judgment upon Badah’s breach of contract claim. Appellate review of summary 

judgment is de novo, governed by the standard set forth in Civ.R. 56. Comer v. Risko, 

106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. “Summary judgment may 

be granted only when (1) there is no genuine issue of material fact, (2) the moving party is 

 

When the party seeking to enforce a settlement agreement files a separate breach of 

contract claim, that party must establish all the elements of a breach of contract 

action, otherwise no action lies. Id. 
entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in 

favor of the nonmoving party, reasonable minds can come to but one conclusion and that 

conclusion is adverse to the nonmoving party.” Marusa v. Erie Ins. Co., 136 Ohio St.3d 

118, 2013-Ohio-1957, 991 N.E.2d 232, ¶ 7. A party requesting summary judgment bears 

the initial burden to show the basis of the motion. Dresher v. Burt, 75 Ohio St.3d 280, 

293-294, 662 N.E.2d 264 (1996). Only when the moving party satisfies this burden of 

production is the opposing party’s reciprocal burden triggered, requiring introduction of 

evidence allowed under Civ.R. 56(C) to demonstrate genuine issues of material fact. Id. 

{¶15} In this case, Badah advanced a breach of contract action premised on Prime 

Properties refiling its claims despite an alleged settlement contract. Badah, however, 

focused on the formation element of an independent breach of contract claim, to the 

exclusion of establishing a breach and the non-breaching party’s performance under the 

purported contract. Badah bore the burden of establishing that there were no genuine 

issues of material fact regarding its breach of contract claim, elements of which are 

formation and Badah’s performance pursuant to the contractual terms. Textron Fin. 

Corp., 115 Ohio App.3d 137, 144. If Badah performed, or attempted to perform, under 

the terms of the purported oral agreement, we have no evidence of this in the record 

before us to support the conclusion that a breach of contract existed. 

{¶16} Nevertheless, even if we considered the issues as framed by the parties, after 

reviewing the entire record, there are genuine issues of material fact regarding Badah’s 
belief that a binding contract was consummated in July 2010, and summary judgment 

upon all claims was therefore improper for three important reasons. 

{¶17} First, the only evidence in support of summary judgment, regarding the 

formation element of Badah’s breach of contract claim, offered for the trial court’s review 

was an affidavit from Badah’s lawyer, who attempted to negotiate a settlement in the 

2010 cases. As explained in his affidavit, Badah’s lawyer attempted to reach a global 

settlement of all the 2010 claims, and at a deposition agreed to all the material terms of 

the settlement with Prime Properties’ attorney and the Civ.R. 30(B)(5) deponent. 

{¶18} Generally, however, courts cannot presume an agent’s or a lawyer’s 

authority to bind a principal to an oral contract unless there is evidence that the principal 

extended or cloaked the lawyer with authority to settle.3

 Schalmo Builders, Inc. v. Zama, 

8th Dist. Cuyahoga No. 90782, 2008-Ohio-5879, ¶ 17-18. “Absent specific 

authorization, an attorney has no implied or apparent authority to compromise and settle 

his client’s claims.” Id., quoting Garrison, 105 Ohio App.3d 322, 326, 663 N.E.2d 1316. 

 A party’s retention of an attorney, in and of itself, is not authorization for the attorney 

to settle the matter. Id. Whether a party authorized the attorney to settle a case is a 

question of fact, which shall not be disturbed on appeal if supported by some competent, 

credible evidence. Id. More important, 

under an apparent-authority analysis, it is the client’s acts that must create 

the apparent authority, not the acts of the attorney. The Ohio Supreme 

Court has stated the following: “Under an apparent-authority analysis, an 

agent’s authority is determined by the acts of the principal rather than by the 

acts of the agent. The principal is responsible for the agent’s acts only 

when the principal has clothed the agent with apparent authority and not 

when the agent’s own conduct has created the apparent authority.” 

 3

 The final judgment entry reflects that the trial court determined that James Kassouf had the 

final settlement authority for Prime Properties, and Badah did not contest the trial court’s 

determination on that point. 
Id., quoting Ohio State Bar Assn. v. Martin, 118 Ohio St.3d 119, 2008-Ohio-1809, 886 

N.E.2d 827. Badah’s evidentiary submission is silent as to whether James Kassouf 

cloaked his agents, Prime Properties’ attorney and deponent Elias Kassouf, with apparent 

settlement authority. 

{¶19} For the purposes of this case, it is irrelevant that Badah’s affidavit claimed 

the lawyer for Prime Properties indicated Elias Kassouf had authority to bind Prime 

Properties. The only party with that ability, according to the uncontested evidence, was 

James Kassouf on behalf of Prime Properties. The trial court acknowledged that James 

Kassouf had sole authority to settle on behalf of Prime Properties, but dismissed that 

authority with the statement that Prime Properties’ “counsel and representative did not 

contact James Kassouf frequently enough.” Despite this finding by the trial court, 

Badah’s evidentiary submissions were silent on the issue, only indicating that it was the 

statements of Prime Properties’s lawyer that established the apparent authority to settle. 

This disregards the premise of apparent-authority law in Ohio. It is the acts of the 

principal and not the agent that create apparent authority to act. 

{¶20} Second, there are genuine issues of material fact regarding the contract 

formation when all the evidentiary submissions are considered. The parties signed and 

filed an agreed judgment entry in the Rocky River Municipal Court on August 12, 2011, 

after the settlement discussions faltered. In that entry, the parties agreed that although a 

settlement had been reached, the parties were currently negotiating the terms and 

language in order to execute that settlement agreement. The trial in that particular 2010 
case was expressly continued in order for the parties to agree to settlement terms, reduce 

those terms to writing, and execute an agreement. While we question settlement 

agreements that seem to “kick the can down the road,” leaving intricate details 

unresolved, we understand that the complicated nature of this transaction placed the 

parties, and the trial court, in the unenviable position of trying to foster and memorialize a 

settlement agreement when at least some of the conditions were still fluid. This is 

supported by the fact that the agreed journal entry itself, signed and dated after the July 

2011 settlement discussions, raises genuine issues of material fact that a settlement had 

been reached by continuing the case “for the parties to agree to settlement terms, reduce 

those terms to writing, and execute an agreement.” This suggests, on its face, that there 

was more to memorialize in their agreement than simply writing down the terms of the 

July discussions. 

{¶21} Finally, the terms of the settlement Badah seeks to enforce required a 

lump-sum payment in August 2011, and monthly payments thereafter. In reviewing the 

record, it is apparent that Badah did not seek to enforce an agreement until after Prime 

Properties exercised its right to refile the claims in the underlying action, and even then, 

Badah had to amend its answer to include the counterclaim for breach of the contract. 

Badah’s claim that Prime Properties is barred from raising this argument because it lacked 

evidentiary support is misplaced. 

{¶22} We have no evidence on this point to establish whether Badah specifically 

performed under the purported contract to establish its breach of contract claim. This 
omission creates a genuine issue of material fact regarding whether all parties believed an 

oral settlement agreement had in fact been consummated. As Badah made clear, the 

terms of an oral contract may be determined from “words, deeds, acts, and silence of the 

parties.” Kostelnik, 96 Ohio St.3d 1, 3, 2002-Ohio-2985, 770 N.E.2d 58. 

{¶23} Reluctantly, for the foregoing reasons, we must find that the trial court erred 

in determining that Badah presented sufficient evidence to sustain its burden to 

demonstrate that no genuine issues of material fact existed upon its counterclaim for 

breach of contract. Most important to this analysis, Badah failed to demonstrate that all 

elements of the breach of contract claim were satisfied for the purposes of summary 

judgment. Further, a review of the evidence produced by Badah established genuine 

issues of material fact, necessitating resolution by the trier of fact, upon the formation 

element of their breach of contract counterclaim. 

{¶24} The decision of the trial court is reversed, and this cause is remanded for 

further proceedings consistent herein. 

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

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the municipal 

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. 
SEAN C. GALLAGHER, JUDGE 

LARRY A. JONES, SR., P.J., and 

PATRICIA ANN BLACKMON, J., CONCUR