[Cite as Bromley v. Seme, 2013-Ohio-4751.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT 

GEAUGA COUNTY, OHIO 

EDNA BROMLEY, : O P I N I O N 

 Plaintiff-Appellee, :

CASE NO. 2012-G-3115

 - vs - :

BARBARA A. SEME, et al., :

 Defendants, :

BRENT MILLER, 

 Defendant-Appellant. 

Civil Appeal from the Geauga County Court of Common Pleas, Case No. 09M001258. 

Judgment: Affirmed. 

Kristen L. Fitchko, and David E. Butz, Krugliak, Wilkins, Griffiths & Dougherty Co., 

LPA, 4775 Munson Street, N.W., P.O. Box 36963, Canton, OH 44735-6963 (For 

Plaintiff-Appellee). 

Michael J. Feldman, Lallo & Feldman Co., L.P.A., Interstate Square Building I, 4230 

State Route 306, Suite #240, Willoughby, OH 44094. (For Defendant-Appellant). 

THOMAS R. WRIGHT, J. 

{¶1} This accelerated-calendar appeal is from a final judgment of the Geauga 

County Court of Common Pleas. Appellant, Dr. Brent Miller, seeks reversal of the trial 

court’s decision granting appellee, Edna Bromley’s motion to enforce a settlement 

agreement between the two parties. Essentially, appellant contends that the court erred 
 2

in finding that his attorney had express or apparent authority to negotiate an agreement 

on his behalf. 

{¶2} In October 2009, appellee initiated the underlying case against appellant, 

his former wife, Susanne Seme, and his former mother-in-law, Barbara Seme. 

Appellee’s complaint raised three claims sounding in fraud, unjust enrichment, and 

interference with expectancy of inheritance. Each claim was predicated upon the 

general allegation that the defendants engaged in a scheme to wrongfully take certain 

funds from appellee. 

{¶3} After the proceeding was pending for a significant period, Susanne and 

Barbara negotiated a final settlement with appellee. Appellant and his trial counsel, 

Attorney Joel Newman, did not participate in those negotiations. Hence, the trial 

against appellant, the sole remaining defendant, was scheduled to go forward on 

Monday, July 30, 2012. 

{¶4} In the late afternoon of Friday, July 27, 2012, Attorney Newman traveled 

to appellant’s dentistry office for the purpose of determining whether a settlement could 

be reached with appellee. After a preliminary discussion between themselves, Attorney 

Newman called the trial judge and appellee’s counsel from appellant’s private office. A 

telephonic conference then ensued. At the outset of the phone call, appellant was 

present in the office and was aware that a settlement of the pending action was being 

discussed. Despite this, on at least one occasion, appellant exited the room during the 

conference. 

{¶5} During the phone call, the trial judge primarily listened while the attorneys 

discussed the following points: (1) the total sum appellant would pay appellee under the 
 3

settlement; (2) the amount of interest appellant would pay on that sum; (3) the amount 

of monthly payments he would make to liquidate that sum; (4) the amount of a judgment 

the trial court would enter against appellant to secure payment of the debt; (5) whether 

appellant would be required to make financial disclosures to appellee; (6) whether 

appellant would be required to provide additional security on the debt; and (7) whether 

the debt would be dischargeable in bankruptcy. At the end of the conference, the trial 

judge and appellee’s attorney concluded that a final settlement had been reached. As a 

result, the trial judge instructed the parties to appear in court the following Monday, July 

30, 2012, so that the terms of the settlement could be read into the record. 

{¶6} Appellee and her trial counsel were present at the scheduled “settlement” 

hearing. However, only Attorney Newman attended on behalf of appellant. According 

to appellant, he did not attend because Attorney Newman stated that his presence was 

unnecessary. 

{¶7} At the beginning of the oral hearing, appellee’s attorney said on the record 

that the parties had agreed to the following terms: (1) there would be a mutual release 

of all claims between the parties; (2) appellant would be liable to appellee for the sum of 

$35,000, plus 3 percent interest; (3) appellant would make monthly payments of $400 

for 99 months; (4) the trial court would enter judgment against him for $50,000, to be 

enforced if he breached the agreement; (5) appellant would provide a financial 

statement on his personal and business interests; (6) appellee would be entitled to 

additional security on the debt; and (7) the basic debt would not be dischargeable. 

Once the statement of the terms was completed, appellee personally addressed the trial 

court, indicating that she understood the various terms and was willing to be bound. 
 4

{¶8} The trial court then asked Attorney Newman if he had spoken to appellant 

about the settlement agreement. In response, Attorney Newman stated that he and his 

client had discussed the terms “extensively,” and that his client understood the nature of 

the agreement. The trial court further asked whether, as an officer of the court, Attorney 

Newman could indicate whether appellant intended to be bound by the agreement. In 

response, counsel emphasized that, although his client was not pleased with the 

outcome, he was willing to comply with the terms. In light of these assertions, the court 

accepted the settlement agreement and ordered the attorneys to reduce it to writing. 

{¶9} Appellee’s trial attorney drafted the written agreement and sent a copy of it 

to opposing counsel. When Attorney Newman presented the draft to his client, though, 

appellant refused to sign it, stating that he never expressly agreed to many of its terms. 

Appellant also immediately terminated Attorney Newman as his trial counsel, and hired 

a separate attorney to represent him in the case. 

{¶10} Under the terms of the purported settlement, appellant’s first monthly $400 

payment was due within two days of the “settlement” hearing. When that payment was 

not made timely, appellee moved the trial court to enforce the agreement and compel 

appellant to comply with its terms. 

{¶11} The trial court conducted a separate evidentiary hearing on the motion to 

enforce. As part of his testimony, Attorney Newman stated that, as to the majority of the 

proposed terms, he could recall them being discussed during the conference, and that 

his client had agreed to them. The only exception was the term regarding whether the 

debt owed to appellee would be non-dischargeable. Attorney Newman further testified 

that he had assumed that, even after appellee’s counsel read the purported settlement 
 5

into the record during the July 30, 2012 hearing, the various terms could still be subject 

to additional negotiations until both parties signed the written agreement. Furthermore, 

appellee’s counsel testified about the nature of the discussions during the telephonic 

conference and the events that occurred during the “settlement” hearing. Concerning 

the conference, appellee’s counsel emphasized that there would be periodic lulls in the 

negotiations, indicating that Attorney Newman was discussing each proposed term with 

appellant. 

{¶12} In response to the foregoing evidence, appellant testified that he agreed to 

only two terms during the telephonic conference: i.e., the amount of the debt he would 

owe to appellee and the amount of the monthly payment. He also testified that he did 

not hear the entire discussion between the attorneys because he left the room to attend 

to other business. Finally, appellant stated that he was not present at the “settlement” 

hearing because Attorney Newman told him it was not required. 

{¶13} In concluding in its final judgment that appellant and appellee had entered 

into a binding settlement agreement, the trial court specifically found that appellant gave 

Attorney Newman real and apparent authority to act as his agent and settle the case. In 

relation to the telephonic conference, the court noted that, since appellant was aware of 

the purpose of the discussions, he could have informed the court or appellee’s counsel 

if he did not agree to any particular term or if he had not given his attorney the express 

authority to settle. Concerning the “settlement” hearing, the trial court held that the fact 

that appellant chose not to attend the hearing supported the inference that he intended 

for Attorney Newman to speak on his behalf. 

{¶14} Based upon these findings, the court granted appellee’s motion to enforce 
 6

the settlement agreement. As part of its final order, the trial court delineated the terms 

of the agreement, consistent with what appellee’s counsel read into the record during 

the “settlement” hearing. 

{¶15} In challenging the trial court’s decision, appellant raises one assignment of 

error for review: 

{¶16} “The trial court committed prejudicial error in granting [appellee’s] motion 

to enforce the settlement agreement when appellant testified he did not agree to all of 

said terms.” 

{¶17} In maintaining that appellee’s motion to enforce should have been denied, 

appellant contends that the evidence did not support the trial court’s finding that the two 

parties had reached an agreement regarding the terms of a settlement. As the primary 

basis for his argument, he states that there could not have been a meeting of the minds 

because the evidence supported the finding that Attorney Newman exceeded the scope 

of his authority in negotiating with appellee’s trial counsel. In essence, appellant argues 

that, since his own testimony established that he did not expressly consent to many of 

the purported terms, Attorney Newman could not have agreed to the settlement as his 

agent. 

{¶18} As a general proposition, the law favors the use of settlement agreements 

as a means of resolving pending actions. Continental West Condo. Unit Owners Assn. 

v. Howard E. Ferguson, Inc., 74 Ohio St.3d 501, 502 (1996). The law also prefers that 

such agreements be memorialized in writing whenever possible. Kostelnik v. Helper, 96 

Ohio St.3d 1, 2002-Ohio-2985, ¶15. Nevertheless, “an oral settlement agreement may 

be enforceable if there is sufficient particularity to form a binding contract.” Id. 
 7

{¶19} In addressing the question of when an oral settlement agreement can be 

enforceable, this court has stated: 

{¶20} “It is well-established that ‘[w]here the parties in an action (* * *) voluntarily 

enter into an oral settlement agreement in the presence of the court, such agreement 

constitutes a binding contract.’ (Emphasis added.) Spercel v. Sterling Industries, Inc.

(1972), 31 Ohio St.2d 36, * * *, paragraph one of the syllabus; * * *. 

{¶21} “This court has held: ‘Ordinarily, an in-court settlement binds the parties, 

even if they do not reduce it to writing.’ Triozzi-Hartman v. Hartman, 11th Dist. No. 

2006-G-2701, 2007 Ohio 5781, at ¶9, citing Spercel, supra. 

{¶22} “‘Where the settlement agreement is arrived at by the parties in open court

and preserved by being read into the record or being reduced to writing and filed, then 

the trial judge may (* * *) approve a journal entry which accurately reflects the terms of 

the agreement, adopting the agreement as his judgment.’ (Emphasis added.) Bolen v. 

Young (1982), 8 Ohio App.3d 36, 37, * * *.” Kolar v. Shapiro, 11th Dist. Lake No. 2007-

L-148, 2008-Ohio-2504, ¶21-23. 

{¶23} In this case, the terms of the alleged settlement agreement were primarily 

discussed during the telephonic conference of July 27, 2012. Although the trial judge 

participated in this conference to some extent, the negotiations did not occur as part of 

a formal court proceeding. However, three days after the conference, a separate formal 

“settlement” hearing was conducted in the presence of the trial judge. Once appellee’s 

counsel read the purported terms of the agreement into the record, appellee personally 

addressed the trial judge and indicated that she was willing to be bound by the terms in 

question. Furthermore, after stating to the trial judge that his client fully understood the 
 8

nature of the cited terms, Attorney Newman expressly averred that appellant intended to 

be bound by the agreement. 

{¶24} In the days following the “settlement” hearing, appellant never signed the 

written copy of the settlement agreement, as drafted by appellee’s counsel. Yet, in light 

of the case law cited in Kolar, the oral statement of the terms during the hearing could 

still constitute a binding settlement agreement if Attorney Newman had proper authority 

to enter into a contract on behalf of appellant. As noted above, the trial court found that 

Attorney Newman had both express and apparent authority to act as appellant’s agent 

in this matter. 

{¶25} “‘It is well-recognized that a party may be bound by the conduct of his or 

her attorney in reaching a settlement.’ Saylor v. Wilde, 11th Dist. No. 2006-P-0114, 

2007 Ohio 4631, at ¶12. However, ‘[a]n attorney who is without special authorization 

has no implied or apparent authority, solely by virtue of his general retainer, to 

compromise and settle his client’s claim or cause of action.’ Morr v. Crouch (1969), 19 

Ohio St.2d 24, * * *, at paragraph two of the syllabus; Adkins v. Estate of Place, 180 

Ohio App.3d 747, 2009 Ohio 526, at ¶26, * * *. ‘Whether a party authorized the attorney 

to settle the case on certain terms is a question of fact, the resolution of which by the 

trial court shall not be disturbed on appeal if supported by some competent, credible 

evidence.’ Schalmo Builders, Inc. v. Zama, 8th Dist. No. 90782, 2008 Ohio 5879, at 

¶17 * * *.” (Footnote omitted.) Promotional Products Group, Inc. v. Sunset Golf, LLC, 

11th Dist. Portage No. 2009-P-0041, 2010-Ohio-3806, ¶46. 

{¶26} In Promotional Products, the attorney told the trial court magistrate during 

a “settlement” hearing that her absentee client had given her the authority to consent to 
 9

the proposed settlement terms. Approximately one month later, the opposing party filed 

a motion to enforce the settlement agreement, alleging that the attorney’s client had not 

complied with certain terms. In the subsequent evidentiary hearing on the motion, the 

attorney testified that her client told her during a telephone conversation that she could 

go along with whatever the co-defendant thought was appropriate. However, the client 

testified that he never authorized the attorney to renegotiate the terms of the proposed 

settlement. 

{¶27} In upholding the trial court’s decision to enforce the settlement agreement 

in Promotional Products, this court first held that a client’s express authorization to settle 

a pending case can be made orally outside the presence of the judge or magistrate. Id. 

at ¶52. Second, we concluded that a transcript of the “settlement” hearing, at which the 

attorney had stated that she had been given the requisite authorization, was sufficient to 

be a prima facie showing of express authorization to settle, thereby shifting the burden 

of proof on the authorization issue to the client. Id. at ¶49. Third, given the presumption 

that the factual findings of the magistrate or trial court on the authorization question are 

correct, an appellate court must defer to their determination of the credibility of the client 

and the attorney during the “motion” hearing. Id. at ¶58. Accordingly, the Promotional 

Products court affirmed the finding of express authorization to settle, and did not review 

the issue of whether the attorney had apparent authority. 

{¶28} In our case, the transcript of the July 30, 2012 “settlement” hearing shows 

that Attorney Newman unequivocally averred to the trial court that: (1) he and appellant 

had discussed the terms of the proposed settlement extensively; and (2) appellant was 

willing to be bound by the settlement. Given the specific nature of Attorney Newman’s 
 10

statements, they were sufficient to constitute a prima facie showing that appellant had 

expressly authorized him to agree to the six terms that were negotiated during the prior 

telephonic conference. As a result, even though appellee was the party who submitted 

the motion to enforce, the burden of proof on the authorization issue shifted to appellant 

for purposes of the “motion” hearing. 

{¶29} During that hearing, appellant testified that he could not have consented to 

each of the terms discussed in the conference because he was not present in the office 

during the entire conversation. However, in light of Attorney Newman’s statement at the 

“settlement” hearing that he and his client talked about the proposed terms extensively, 

the trial court could have justifiably concluded that appellant’s testimony simply was not 

credible. That is, even if appellant did leave the office for a period while the telephonic 

conference was ongoing, there still was sufficient time for Attorney Newman to explain 

each term to appellant and obtain his consent prior to the “settlement” hearing. 

{¶30} As a general proposition, Attorney Newman’s testimony at the “motion to 

enforce” hearing did not support appellant’s contention that he was not even aware of 

some of the proposed terms prior to the settlement hearing. As previously mentioned, 

the purported settlement consisted of six basic terms: (1) appellant would owe appellee 

the sum of $35,000, plus 3 percent interest; (2) he would make 99 monthly payments of 

$400; (3) to secure payment of the debt, a judgment of $50,000 would be rendered 

against him; (4) he would produce a financial statement covering all of his assets; (5) he 

would provide appellee additional security to ensure payment; and (6) the debt would 

not be dischargeable in bankruptcy. As to the first five of the terms, Attorney Newman 

specifically testified that appellant agreed to each during the conference. As to the last 
 11

term, he testified that he could not recall whether appellant’s concurrence extended to 

the “non-dischargeable” issue. 

{¶31} In regard to whether appellant agreed to the “non-dischargeable” term, 

Attorney Newman’s initial testimony was that he could not recall appellant’s reaction to 

their discussion of the issue. At that point, the trial court intervened in the questioning: 

{¶32} “THE COURT: So summarize for me. What do you feel had been agreed 

to and ratified by [appellant]? 

{¶33} “THE WITNESS: $50,000 judgment; $35,000 settlement; $400 monthly 

payment specified. We would give adequate security and generally financial 

disclosures and that the debt itself would be non-dischargeable.” 

{¶34} Immediately after the foregoing statement was made, neither the trial court 

nor appellee’s counsel asked Attorney Newman to clarify his testimony. However, after 

Attorney Newman was subject to cross-examination and re-direct examination, the trial 

court again asked him whether it had been his “understanding that the debt was to be 

non-dischargeable.” In response, Attorney Newman stated: “I frankly don’t recall.” To 

the extent that the latter response is consistent with Attorney Newman’s initial testimony 

on this specific term, it conflicts with the foregoing statement that appellant had agreed 

to make the debt non-dischargeable. 

{¶35} In challenging the credibility of Attorney Newman’s testimony concerning 

the extent of appellant’s prior agreement to the terms, appellant maintains that Newman 

made a second inconsistent statement. After questioning Attorney Newman about the 

telephonic conference, appellee’s counsel then asked a series of queries regarding the 

“settlement” hearing. When Attorney Newman admitted that he never objected to any of 
 12

the terms that were read into the record at the “settlement” hearing, appellee’s counsel 

asked the following: 

{¶36} “Q. Mr. Newman, the reason why you didn’t object to any of the terms that 

I read into the record of July 30, was because you had received authorization from your 

client to enter into each and every of those terms, isn’t that correct? 

{¶37} “A. No.” 

{¶38} When considered in the context of Attorney Newman’s entire testimony, 

his response to the foregoing question cannot be interpreted to indicate that his client 

had not agreed to any of the basic terms. Instead, Attorney Newman was only stating 

that he could not say that appellant gave him authorization to agree to “each and every” 

of the six terms; i.e., he could not say that appellant had agreed to the term concerning 

whether the debt would be dischargeable. 

{¶39} Accordingly, in relation to the specific question of what were the terms to 

which appellant had agreed, Attorney Newman’s testimony at the evidentiary hearing 

was fairly consistent. The crux of that testimony was that, at some point prior to the 

“settlement” hearing of July 30, 2012, appellant had agreed to all of the terms which 

were negotiated during the telephonic conference, with the exception that he could not 

recall appellant’s decision on the “non-dischargeable” term. Moreover, this testimony 

was fairly consistent with the express averments Attorney Newman made to the trial 

court as part of the “settlement” hearing, with the exception of the lack of recall on the 

discharge point. In light of this, the trial court could justifiably conclude that Attorney 

Newman’s testimony was more credible than appellant’s statement that he had agreed 

to only two of the six proposed terms. 
 13

{¶40} Furthermore, it must be emphasized that Attorney Newman did not testify 

that appellant never consented to the “non-dischargeable” term. Rather, he only said 

that he could not recall if appellant agreed to that term. Given that Attorney Newman 

did not raise any objection to the “non-dischargeable” term during the prior “settlement” 

hearing, the trial court could find that Attorney Newman’s memory had been fresher at 

the “settlement” hearing, which was held only three days after the telephonic 

conference. Thus, the trial record contains some competent, credible evidence 

supporting the finding that appellant agreed to all six basic terms prior to the day of the 

“settlement” hearing, and then changed his mind at some point before the written draft 

of the settlement agreement could be composed. 

{¶41} As a separate argument, appellant notes that, at various points throughout 

his testimony, Attorney Newman stated that the terms cited by appellee’s counsel at the 

“settlement” hearing were not necessarily “final” because he and appellant would still 

have an opportunity to engage in additional negotiations. Based upon this, appellant 

contends that the settlement agreement was not enforceable because there was never 

a true meeting of the minds. 

{¶42} When acting as the trier of fact in a given situation, the trial court has the 

discretion to believe all or part of a witness’s testimony. State v. Howard, 11th Dist. 

Lake No. 2009-L-158, 2010-Ohio-2817, ¶33. In light of the fact that Attorney Newman 

made no reference to the possibility of further negotiations during the “settlement” 

hearing, the trial court could have rejected that aspect of his testimony as lacking in 

credibility under the circumstances. Moreover, as a matter of law, the mere fact that 

some of the terms had some degree of indefiniteness, such as what additional security 
 14

appellant would need to give, would not adversely affect the enforceability of the 

settlement, even if further negotiations were ultimately needed. Kostelnik, 2002-Ohio2985, at ¶17. 

{¶43} Taken as a whole, the record does not indicate that the trial court abused 

its discretion in judging the credibility of Attorney Newman and appellant, especially in 

light of the prior proceedings in the case. Furthermore, Attorney Newman’s testimony 

constituted some competent, credible evidence establishing that, by agreeing to all six 

purported terms of the settlement agreement prior to the “settlement” hearing of July 30, 

2012, appellant gave Attorney Newman the express authority to enter into the 

settlement in his absence. Since the trial court’s judgment can be upheld on this basis 

alone, it is not necessary to address the separate issue of whether Attorney Newman 

possessed apparent authority to act as appellant’s agent in consummating the 

settlement. 

{¶44} As the trial court did not err in granting appellee’s motion to enforce the 

parties’ settlement agreement, appellant’s sole assignment of error lacks merit. It is the 

judgment and order of this court that the judgment of the Geauga County Court of 

Common Pleas is affirmed. 

CYNTHIA WESTCOTT RICE, J., concurs, 

COLLEEN MARY O’TOOLE, J., concurs in judgment only.