[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as 

Marchbanks v. Ice House Ventures, L.L.C., Slip Opinion No. 2023-Ohio-1866.]

NOTICE

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published.

SLIP OPINION NO. 2023-OHIO-1866

MARCHBANKS, DIR. OF THE OHIO DEPARTMENT OF TRANSPORTATION,

APPELLEE, v. ICE HOUSE VENTURES, L.L.C., ET AL., APPELLANTS.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as Marchbanks v. Ice House Ventures, L.L.C., Slip Opinion No. 

2023-Ohio-1866.]

Contracts—Damages—Eminent domain—Parties did not make a material mistake 

about a basic assumption on which their contract was made—Settlement 

agreement was enforceable—Court of appeals’ judgment reversed and 

cause remanded to the court of appeals.

(No. 2022-0047—Submitted February 7, 2023—Decided June 8, 2023.)

APPEAL from the Court of Appeals for Franklin County, No. 21AP-24,

2021-Ohio-4195.

__________________

STEWART, J.

{¶ 1} In this discretionary appeal, we are asked to determine whether there 

was an enforceable settlement agreement between appellee, Jack Marchbanks, 
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director of the Ohio Department of Transportation (“ODOT”),1 and appellants, Ice 

House Ventures, L.L.C., Lion Management Services, L.L.C., and Smokestack 

Ventures, L.L.C. (collectively, “IHV”), related to an appropriation proceeding 

resulting from ODOT’s exercise of eminent domain over property owned by IHV. 

Because we conclude that there was an enforceable settlement agreement, we 

reverse the judgment of the Tenth District Court of Appeals and remand the case to 

that court for further proceedings.

I. Facts and Procedural History

{¶ 2} As part of a project to repair and improve Interstate 70 running 

through downtown Columbus, the state, through ODOT,sought to exercise eminent 

domain over property owned by IHV in the city’s Brewery District. In 2016, 

ODOT filed a petition in the Franklin County Court of Common Pleas to 

appropriate the property in accordance with statutorily prescribed eminent-domain 

procedures. IHV exercised its right to demand a jury trial to determine the value of 

the appropriated property. In 2018, a few days before trial was scheduled to begin, 

ODOT and IHV informed the trial court that they had reached an agreement on a 

compensation package, under which ODOT would compensate IHV in exchange 

for a release of all claims for further compensation, including interest, arising from 

the appropriation. The trial court memorialized the parties’ settlement agreement 

in a judgment entry.

{¶ 3} The compensation portion of the settlement agreement consisted of 

two parts: (1) a payment of $900,000 from ODOT to IHV and (2) the transfer of a 

small parcel of land, which is referred to in the agreement as the “Parking 

Mitigation Property,” to IHV. The second part of the compensation portion of the 

agreement, regarding the transfer of the small parcel of land, is the basis of this 

1. The current director of ODOT, Marchbanks, is substituted as a party for the former director of 

ODOT, Jerry Wray, who was the director when this action commenced. See S.Ct.Prac.R. 4.06(B); 

Civ.R. 25(D)(1).
January Term, 2023

3

dispute. Although the city of Columbus owned the small parcel of land at the time 

of the agreement, ODOT believed that the city would be willing to transfer the 

parcel to ODOT, which could then transfer the parcel to IHV. The agreement stated 

that “ODOT shall provide IHV with marketable fee simple title” to the Parking 

Mitigation Property and that the property “shall be conveyed to [IHV] free and clear 

of all limitations of access or other liens and encumbrances, excepting only such 

restrictions and easements of record which shall not unreasonably interfere with 

use of the Parking Mitigation Property as a parking lot sufficient to hold twelve 

(12) parking spaces as generally depicted in [a parking plan attached to the 

agreement as an exhibit].”

{¶ 4} There is no dispute that ODOT was unable to transfer the Parking 

Mitigation Property to IHV. Because that portion of the agreement was not 

performed, the following language in the agreement is relevant to this appeal:

It is further ORDERED that, within one year after the date 

hereof: (1) if ODOT fails to convey marketable fee simple title to 

the Parking Mitigation Property as provided herein; or (2) if ODOT 

fails to modify its plans for [the improvements to Interstate 70] to 

allow for the construction of a parking lot on the Parking Mitigation 

Property in accordance with the Parking Plan; or (3) if all permits 

and/or approvals required for IHV to construct a parking lot on the 

Parking Mitigation Property in accordance with the Parking Plan 

have not been obtained; then the Court shall retain jurisdiction to 

determine the damages due to IHV for the failure of ODOT to 

deliver this portion of the consideration for ODOT’s appropriation 

of IHV’s property.

(Boldface and capitalization sic.)
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{¶ 5} In April 2019, IHV moved to enforce the agreed judgment entry on 

the settlement. In June 2019, the trial court held an evidentiary hearing on the 

motion and thereafter issued an order granting IHV’s motion and awarding 

damages to IHV. The following portion of the order summarizes the trial court’s 

reasoning for the damages award and states the amount of the award:

Once the Parties settled the case in October 2018, ODOT’s 

Eminent Domain action terminated. After ODOT informed IHV 

and the Court that it could not deliver the Parking Mitigation 

Property, this case became about ODOT’s potential breach of 

settlement, nothing more. The Court appreciates the evidence from 

the numerous expert witnesses who testified about the various 

eminent domain appraisals, but once ODOT conceded it could not 

deliver the Parking Mitigation Property, this case ceased to be about 

the value of IHV’s property before and after the taking. It was never 

about the damage to the residue, or what the Parking Mitigation 

parcel is worth. The issues are 1) did ODOT breach the settlement, 

and if so, 2) what is the value of twelve (12) parking spaces in the 

Brewery District, because that is what ODOT promised to IHV. 

Those spaces are what IHV expected, and the monetary damages for 

the value of those twelve (12) spaces is what IHV is entitled to under 

Ohio law.

V. HOLDINGS AND ORDERS

Based on the foregoing, the Court hereby issues the following 

orders:

1. The Court awards Ice House Ventures judgment in the amount of 

nine hundred thousand dollars ($900,000.00).

* * *
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(Boldface and capitalization sic.)

{¶ 6} ODOT appealed the trial court’s judgment to the Tenth District Court 

of Appeals, raising four assignments of error: (1) “The trial court erred in enforcing 

settlement because there was no meeting of the minds on a material term of 

settlement,” (2) “The trial court lacked subject-matter jurisdiction to award contract 

damages against ODOT,” (3) “The trial court erred in finding that ODOT breached

the settlement,” and (4) “The trial court erred in finding ODOT liable for IHV’s 

attorney fees.”

{¶ 7} The Tenth District reversed the trial court’s judgment based on

ODOT’s first assignment of error. 2021-Ohio-4195, ¶ 7, 17-18. The court of 

appeals noted that the term “damages” was not defined in the agreement. Id. at 

¶ 11. It also noted that ODOT had argued that the term “damages” in the agreement 

meant eminent-domain damages, i.e., “damages to the residue,” whereas IHV had 

contended that “damages” meant contract damages, i.e., “expectation damages 

premised on the benefit of the bargain.” Id. The court determined that “the record 

does not contain any evidence to support the conclusion that the parties mutually 

agreed that ‘damages’ meant expectation damages versus damages to the residue 

and indeed, shows that the parties disagreed on what ‘damages’ meant.” Id. at ¶ 17. 

And it held that “[b]ecause there is no evidence of a meeting of the minds on what 

the parties meant by ‘damages,’ the trial court erred by finding there was an 

enforceable settlement agreement in the first place.” Id. The court of appeals

vacated the agreed judgment entry on the settlement and remanded the matter for 

trial “as any appropriation proceeding would be tried—on the issues of 

compensation for the property taken and damages to the residue.” Id.
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{¶ 8} This court accepted IHV’s discretionary appeal on the following 

propositions of law2:

[1.] When parties enter into a written settlement agreement, 

a meeting of minds is presumed. That presumption may only be 

rebutted by competent evidence, not after-the-fact argument by 

counsel.

[2.] After a written agreement is memorialized in a court 

order, a party may not collaterally attack the order by claiming that 

no meeting of the minds exists. A trial court has the inherent 

authority to interpret and enforce its own order.

[3.] A party alleging a breach of a settlement agreement in 

an eminent domain matter is entitled to its expectation damages.

See 166 Ohio St.3d 1448, 2022-Ohio-994, 184 N.E.3d 159.

II. Law and Analysis

{¶ 9} Under its first proposition of law, IHV asks this court to hold that 

Ohio law presumes that a meeting of the minds exists when parties enter into a 

written agreement and that the presumption may be overcome only by “clear and 

satisfactory” evidence. At the outset, we note that the posture of this case is 

different from that in a contract dispute in which one side files a complaint seeking 

2. We note that in its memorandum in opposition to jurisdiction, ODOT, the appellee here,

presented three “Plaintiff-Appellee’s Proposition[s] of Law,” even though ODOT did not file a 

cross-appeal in this court. In its merit brief, ODOT has presented three “Proposition[s] of Law” that 

do not correspond directly to IHV’s propositions of law that we accepted for review. Although 

parties in this court are free to strategically craft their arguments as they see fit, we caution appellees 

to be mindful of two relevant rules of practice in this court. S.Ct.Prac.R. 7.03(B)(1)(b) requires a 

memorandum in response to a memorandum in support of jurisdiction to contain “[a] brief and 

concise argument in support of the appellee’s position regarding each proposition of law raised in 

the memorandum in support of jurisdiction.” (Emphasis added.) And S.Ct.Prac.R. 16.03(B)(1) 

states, “The appellee’s brief shall * * * answer the appellant’s contentions * * * and make any other

appropriate contentions as reasons for affirmance of the order or judgment from which the appeal is 

taken.” (Emphasis added.)
January Term, 2023

7

to enforce contractual terms and the other side asserts defenses. Here, the 

proceeding in the trial court that led to this appeal was a damages hearing conducted 

pursuant to the parties’ settlement agreement, which stated that the trial court “shall 

retain jurisdiction” to determine damages. The arguments at that hearing centered 

on the proper nature and amount of damages and not on whether the agreement was 

valid or any alleged lack of clarity about the parties’ performances or obligations 

under the agreement.3 Although ODOT argued in the trial court that it should 

interpret the meaning of the term “damages” in the agreement as meaning “damages 

to the residue,” ODOT also presented evidence of what it asserted to be the proper 

calculation of expectation damages, if the court were to determine that expectation 

damages were what IHV should be awarded.

{¶ 10} ODOT attempts to analogize this case to Rulli v. Fan Co., 79 Ohio 

St.3d 374, 683 N.E.2d 337 (1997). In Rulli, this court recognized that “[t]o 

constitute a valid settlement agreement, the terms of the agreement must be 

reasonably certain and clear.” Id. at 376. We held that “[w]here the meaning of 

terms of a settlement agreement is disputed, or where there is a dispute that contests 

the existence of a settlement agreement, a trial court must conduct an evidentiary 

hearing prior to entering judgment.” Id. at 377.

{¶ 11} We find Rulli wholly distinguishable from this case. This court 

described the facts in Rulli as follows:

3. We recognize that ODOT argued in its response to IHV’s motion to enforce the agreed entry on 

settlement that “[i]n the alternative, if as stated by IHV, ‘the property conveyance was the linchpin 

to the settlement[,]’ then this court can set aside the entire settlement and set this for a trial on the 

merits to determine the issues of compensation for the property taken and damages to the residue, 

if any, pursuant to standard practice in eminent domain actions.” We understand that argument to 

go to IHV’s request for specific performance—i.e., that the court require ODOT to convey the 

Parking Mitigation Property to IHV—and not to any argument that the contract was not valid or 

enforceable.
SUPREME COURT OF OHIO

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Though upon first examination, the settlement terms as read 

into the record on June 23, 1993, appear reasonably clear, the parties 

were subsequently unable to agree upon the meaning and effect of 

those terms. They were unable to execute a formal purchase 

agreement and they did not provide the court with an entry as 

ordered by the court. The parties instead offered varying 

interpretations of the terms read into the record, and disputed nearly 

every major element of the purported agreement. Therefore, the 

language read into the record at the initial hearing reflects, at best, 

merely an agreement to make a contract.

Id. at 376-377.

{¶ 12} Unlike in Rulli, the record in this case demonstrates that ODOT and 

IHV clearly intended to enter into, and in fact entered into, a binding settlement

agreement. During ODOT’s closing argument at the June 2019 evidentiary hearing, 

ODOT’s counsel stated about the agreement: “It’s black and white. It’s written. 

Your Honor signed it. You know, so we are not disputing that at all. What we—

what we are disputing is that valuation attached to [the Parking Mitigation 

Property].” The circumstances in this case are not analogous to those in Rulli, in 

which the parties had failed to even reduce their purported oral agreement to a 

judgment entry as was requested by the court, id. at 374-375.

{¶ 13} Moreover, “ ‘[e]ssential elements of a contract include an offer, 

acceptance, contractual capacity, consideration (the bargained for legal benefit 

and/or detriment), a manifestation of mutual assent and legality of object and of 

consideration.’ ” Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, 770 

N.E.2d 58, ¶ 16, quoting Perlmuter Printing Co. v. Strome, Inc., 436 F.Supp. 409, 

414 (N.D.Ohio 1976). Because a breach of a contract is not an inevitability, it 

cannot follow that a definition of “damages” is an essential element of a contract. 
January Term, 2023

9

If a contract’s terms are properly performed, the question of damages never arises. 

Indeed, a valid contract may exist and bind the parties without its mentioning

damages at all. Thus, we reject ODOT’s argument that Rulli instructs that the 

settlement agreement here was not a valid contract simply because the term 

“damages” was not defined therein.

{¶ 14} After the trial court awarded expectation damages to IHV, ODOT 

argued on appeal that the trial court had erred by enforcing the parties’ settlement

agreement because, in its view, there had been no meeting of the minds as to what 

the parties meant by the term “damages.” Indeed, ODOT’s arguments in the court 

of appeals and here seem to conflate the concepts of lack of a meeting of the minds 

and mutual mistake. Its arguments are best understood as claims that it should be 

relieved of its obligations under the settlement agreement, not that it did not agree 

to those obligations under the settlement in the first place.

{¶ 15} This court has recognized the doctrine of mutual mistake as a ground 

for rescission of an existing agreement. See Reilley v. Richards, 69 Ohio St.3d 352, 

632 N.E.2d 507 (1994), citing Irwin v. Wilson, 45 Ohio St. 426, 15 N.E. 209 (1887). 

The mistake must be one that is material to the contract, i.e., a mistake regarding a 

basic assumption on which the contract was made that frustrates the intent of the 

parties. Id. at 353; 1 Restatement of the Law 2d, Contracts, Section 152(1), at 385 

(1981). “The party alleging mutual mistake bears the burden of proving its 

existence by clear and convincing evidence.” Coldwell v. Moore, 2014-Ohio-5323, 

22 N.E.3d 1097, ¶ 18 (7th Dist.), citing Frate v. Rimenik, 115 Ohio St. 11, 152 N.E. 

14 (1926), paragraph one of the syllabus.

{¶ 16} ODOT asserts that the “textbook” example of mutual mistake found 

in Raffles v. Wichelhaus, 159 Eng.Rep. 375 (1864), is instructive here. In Raffles, 

the parties agreed to the sale of cotton arriving at Liverpool, England, from 

Bombay, India, aboard a ship named “Peerless.” Id. But two ships named 

“Peerless” sailed from Bombay to Liverpool several months apart carrying cotton, 
SUPREME COURT OF OHIO

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with the seller having meant one of those ships and the buyer having meant the 

other. Id. ODOT argues that the parties’ disagreement over the meaning of the 

term “damages” here is like the confusion over the ships in Raffles.

{¶ 17} But unlike in Raffles, the purported “mistake” here does not concern 

the basis of the parties’ agreement. Specifically, the parties’ performances under 

the agreement—ODOT’s compensation to IHV for the appropriation of IHV’s land 

and IHV’s release of claims for further compensation relating to the 

appropriation—did not depend on a particular calculation or amount of damages. 

And the parties did not contract for a particular type or amount of damages, despite 

being sophisticated parties negotiating in good faith with the advice of legal 

counsel. For example, the parties could have included a liquidated-damages clause 

or some specific description of the type of damages to be awarded if that were 

appropriate under and material to the agreement. However, the agreement is clear 

that the parties left the question of damages to the trial court, if the question arose. 

The agreed judgment entry on the settlement plainly states: “[T]he Court shall 

retain jurisdiction to determine the damages due to IHV for the failure of ODOT to 

deliver this portion of the consideration[, i.e., the Parking Mitigation Property,] for 

ODOT’s appropriation of IHV’s property.”

{¶ 18} Moreover, had the terms of the contract been fully performed, the 

question of damages never would have arisen. In other words, even assuming that 

each party understood the term “damages” to mean something different, that 

mistake would not frustrate the obligations of the parties or the intent of the 

agreement, because the parties’ performances of the terms existed independently of 

the type or amount of damages that might become due if a breach occurred. Any 

uncertainty regarding the meaning that each party assigned to the term “damages” 

in the agreement is irrelevant, because the essential elements of the parties’ 

agreement were clear. See, e.g., Coldwell, 2014-Ohio-5323, 22 N.E.3d 1097, at

¶ 22 (“Regardless of the meaning the [buyers] attached to the term ‘minerals’ or 
January Term, 2023

11

what they believed they already owned, the record is clear that they intended to buy 

all of the mineral rights to those parcels from the [sellers]” [emphasis sic]). Thus, 

even if we were to determine that the parties understood the meaning of the term 

“damages” in the agreement differently, that is not a mistake that is material to the 

agreement.

{¶ 19} Further, recall that a material mutual mistake is “ ‘a mistake * * * as 

to a basic assumption on which the contract was made [that] has a material effect 

on the agreed exchange of performances.’ ” (Ellipsis and brackets added in Reilley

and emphasis added.) Reilley, 69 Ohio St.3d at 353, 632 N.E.2d 507, quoting 1 

Restatement, Section 152(1), at 385. ODOT points to no evidence showing that it

had a different understanding of the term “damages” at the time the agreement was 

made in a way that has a material effect on the parties’ agreed-upon settlement 

obligations. The point in time at which a different understanding of a term occurs

is important. The court of appeals determined that the parties’ “fundamentally 

divergent understandings” of the term “damages” was apparent based on the 

arguments presented at the hearing on the motion to enforce the settlement 

agreement, during which ODOT attempted to minimize its damages exposure while 

IHV attempted to maximize its potential recovery. 2019-Ohio-4195 at ¶ 16. This 

after-the-fact disagreement about how to construe the term “damages” does not 

support a finding that the parties made a material mistake about a basic assumption 

on which the contract was made.

{¶ 20} Accordingly, ODOT has not shown by clear and convincing 

evidence that it is entitled to rescission of the settlement agreement or that any lack 

of understanding about the term “damages” in the agreement renders it 

unenforceable.

III. Conclusion

{¶ 21} Because we conclude that the settlement agreement is enforceable, 

we reverse the judgment of the Tenth District holding otherwise. The Tenth 
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District’s decision resolved ODOT’s appeal only on its first assignment of error, in 

which ODOT argued that there had been no meeting of the minds on a material 

term of the settlement agreement. 2021-Ohio-4195 at ¶ 19. Based on that 

resolution, the court of appeals declined to address ODOT’s three remaining 

assignments of error, some of which raise issues that may be determinative of the 

parties’ liabilities and obligations under the agreement. Given that those issues 

remain unresolved in the court of appeals, and given our resolution of IHV’s first 

proposition of law, we need not address IHV’s remaining propositions of law to 

this court and, instead, we remand the cause to the Tenth District Court of Appeals 

for it to address ODOT’s remaining assignments of error.

Judgment reversed

and cause remanded.

KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY,BRUNNER, and DETERS, 

JJ., concur.

_________________

Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, 

Samuel C. Peterson, Deputy Solicitor General, and William J. Cole and L. Martin 

Cordero, Assistant Attorneys General, for appellee.

Vorys, Sater, Seymour & Pease, L.L.P., Joseph R. Miller, John M. Kuhl, 

Daniel E. Shuey, and Danielle S. Rice, for appellants.

Dinsmore & Shohl, L.L.P., and Richik Sarkar; and Kevin D. Shimp, Ohio 

Chamber of Commerce, urging reversal for amicus curiae, Ohio Chamber of 

Commerce.

_________________