[Cite as Nexgen Coastal Invests., L.L.C. v. Issa Constr. & Dev., L.L.C., 2023-Ohio-4071.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

NEXGEN COASTAL INVESTMENTS, 

LLC, :

Plaintiff-Appellant, :

No. 112335

v. :

ISSA CONSTRUCTION AND 

DEVELOPMENT, LLC, :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: November 9, 2023 

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-18-902940

Appearances:

Keith D. Weiner & Associates Co., LPA and Suzana Pastor,

for appellant. 

John Taylor, for appellee. 

MARY EILEEN KILBANE, P.J.:

Plaintiff-appellant Nexgen Coastal Investments, LLC (“Nexgen”)

appeals from the trial court’s order entering judgment in the amount of $5,000 

against defendant-appellee Issa Construction and Development, LLC (“Issa”) in 
favor of Nexgen and dismissing the case with prejudice. For the reasons that follow, 

we affirm.

Factual and Procedural History

This case arises out of a contract dispute. In September 2016, Nexgen 

hired Issa to remodel a residential property located at 9002 Park Heights Avenue in 

Garfield Heights, Ohio (“the property”). Pursuant to the construction contract, the 

remodel was to be completed for $30,500.

On August 29, 2018, Nexgen filed a complaint for money judgment 

and declaratory judgment against Issa, bringing claims of breach of contract, unjust 

enrichment, negligence, and fraud against Issa and seeking a declaratory judgment 

finding that the mechanic’s lien attached to the property is invalid and should be 

immediately released. In the complaint, Nexgen alleged that the remodel was 

incomplete and that, despite Nexgen making full payment of $30,500, Issa has not 

complied with the terms of the contract and has abandoned the project.

On February 1, 2019, Issa filed its answer. On July 24, 2019, Issa filed 

two counterclaims, alleging that it had completed the initial work on the property in 

December 2017, but because of Nexgen’s requests for additional work, Issa incurred 

additional labor and material costs of $6,705. Issa also alleged that it had performed 

remodeling work for Nexgen at a second property located in Reynoldsburg, Ohio, 

and that Nexgen had made a partial payment for that work but had an outstanding 

balance of $2,700.
On October 9, 2019, the case was referred to mediation, to be 

completed in January 2020. The trial court docket reflects that Issa and its defense 

counsel failed to appear for mediation, and the case was returned to the court’s 

docket for further proceedings.

On May 12, 2020, Nexgen filed a motion with the trial court to post a 

bond in lieu of a previously filed mechanic’s lien. The motion stated that the Garfield 

Heights property was sold on April 29, 2020, and in agreement with Issa, the 

mechanic’s lien was released to facilitate the sale of the property. The amount of the 

mechanic’s lien, $9,405, was being held in escrow for a period of 30 days, set to 

expire on May 29, 2020. Nexgen’s motion sought an order from the court whereby 

Nexgen could obtain the funds from the escrow account, convert the funds to a bond, 

and post the bond with the court. On May 19, 2020, the trial court granted this 

motion.

On January 15, 2021, the case was again referred to mediation, and 

mediation was scheduled to take place on March 15, 2021.

On February 9, 2021, Issa filed a motion for leave to file a motion for 

partial summary judgment. The trial court granted this motion, and Issa filed a 

motion for partial summary judgment on Nexgen’s fraud, negligence, and unjust 

enrichment claims. On April 8, 2021, Issa filed a brief in opposition. On May 11, 

2021, the trial court denied Issa’s motion for partial summary judgment.
After numerous delays, on June 16, 2022, the case was once against 

set for mediation on August 8, 2022. An August 11, 2022 journal entry reflects that 

mediation was successful:

Mediation hearing held. The parties in the captioned case have reached 

a settlement and agree to submit the dismissal entry within 30 days of 

the date of this order. Each party to bear their own costs. Notice issued.

On November 16, 2022, Issa filed a motion to enforce memorandum 

of understanding, moving the court to enter an order memorializing the terms of the 

memorandum of understanding the parties entered during mediation; the 

memorandum of understanding was attached to this motion.

The same day, Nexgen filed a motion to reactivate the case and reset 

a trial date. Nexgen’s motion stated that mediation took place on August 11, 2022, 

and the parties agreed to a settlement that was memorialized via a memorandum of 

understanding. Nexgen goes on to state that the settlement was to be further 

memorialized via a settlement agreement and mutual release of all claims, which 

was drafted and sent to Issa’s counsel for review and execution. Nexgen alleged that 

Issa never signed the settlement agreement and continued to attempt to delay the 

case.

On November 29, 2022, Issa filed a brief in opposition to Nexgen’s 

motion to reactivate the case. Issa claimed that both parties proposed changes to 

the memorandum of understanding, but neither party had agreed to sign a

settlement agreement containing the updated terms.
On November 30, 2022, Nexgen filed a brief in opposition to Issa’s 

motion to enforce the memorandum of understanding.

On December 20, 2022, the court granted Issa’s motion to enforce the 

memorandum of understanding and denied Nexgen’s motion to reactive the case. 

In a corresponding journal entry, the court reduced the parties’ memorandum of 

understanding to a judgment as follows:

A) Any and all monies deposited with the court via interpleader are 

hereby released to plaintiff; B) Judgment in the amount of $5,000.00 

is hereby entered against defendant and in favor of plaintiff; C) The 

court holds that defendant admits that it did not complete the work to 

be performed at the property located at 9002 Park Heights, Garfield 

Heights, Ohio under contract with Nexgen Coastal Investments, LLC; 

and D) Plaintiff is granted permission to share this order with any of 

the investors of this specific project and with any party that makes an 

inquiry to plaintiff seeking a reference. The court hereby orders 

plaintiff not to otherwise publish this order.

The court dismissed the case with prejudice and assessed each party its own court 

costs.

Nexgen filed a timely notice of appeal and raises three assignments of 

error for our review:

I. The lower court erred as a matter of law as it both entered judgment 

in favor of Plaintiff-Appellant and dismissed the case with prejudice.

II. The lower court erred as a matter of law when it granted DefendantAppellee’s motion to enforce the memorandum of understanding.

III. The lower court abused its discretion by failing to conduct an 

evidentiary hearing where the meaning of the terms of the settlement 

agreement [were] disputed and further, where there was a clear dispute 

as to the existence of a settlement agreement.
Legal Analysis

As an initial matter, we note that the parties do not dispute that they 

reached a settlement during mediation and memorialized the terms of this 

settlement in a memorandum of understanding. Further, both parties have 

incorporated the terms of this memorandum of understanding into the record in 

this case, including in their appellate briefs. The memorandum of understanding 

sets forth the following terms:

1. Payment and Costs

The parties agree to settle the above-captioned matter on the following 

terms:

A. The money placed with the court through Interpleader is to be 

released to the Plaintiff.

B. Defendant will make a payment of $5,000.00 to Plaintiff within 30 

days.

C. Defendant will sign an Admission of Incomplete Construction to be 

provided to Plaintiff, however, Plaintiff will agree that it will not publish 

the document and will only share the admission to any of the investors 

on this specific project and with any party that makes an inquiry to 

Plaintiff seeking a reference.

D. The parties may prepare a more formal admission document but it 

is intended to be similar as what follows:

Issa Construction and Development, LLC, admits that it did not 

complete the work to be performed at the property located at 9002 

Park Heights, Garfield Heights, Ohio under contract with Nexgen 

Coastal Investments, LLC.

E. A more formal settlement agreement will be prepared with complete 

mutual releases.
2. Dismissal & Settlement Documents

A Dismissal Entry, dismissing the case with prejudice will be prepared 

and signed by the parties and will be submitted to the Court.

3. Other Terms

The Court to retain jurisdiction to enforce settlement.

Each party to bear their own costs.

These terms are what Issa attached to its motion to enforce the 

settlement agreement, and Nexgen does not dispute that these are the terms of the 

memorandum of understanding.

It is within the sound discretion of the trial court to enforce a 

settlement agreement, and its judgment will not be reversed where the record 

contains some competent, credible evidence to support its findings regarding the 

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

No. 95075, 2011-Ohio-731, ¶ 8, citing Mentor v. Lagoons Point Land Co., 11th Dist. 

Lake County No. 98-L-190, 1999 Ohio App. LEXIS 6127 (Dec. 17, 1999). Therefore, 

we review the trial court’s decision on the motion to enforce the settlement 

agreement for abuse of discretion. The term abuse of discretion “implies that the 

court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. 

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). An abuse of discretion 

occurs when a court exercises its judgment in an unwarranted way regarding a 

matter over which it has discretionary authority. Johnson v. Abdullah, 166 Ohio 

St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35.
Nexgen’s first assignment of error argues that the lower court erred 

as a matter of law when it both entered judgment in favor of Nexgen and dismissed 

the case with prejudice. Specifically, Nexgen argues that a case can only be 

dismissed if it is still pending, and therefore the trial court’s entry of a $5,000 

judgment in Nexgen’s favor precluded it from subsequently dismissing the case. In 

support of this argument, Nexgen cites to Geauga Savs. Bank v. Berg, 2017-Ohio1368, 89 N.E.3d 69 (8th Dist.). 

Nexgen’s reliance on Berg is misplaced. In Berg, this court held that 

the granting of a decree of foreclosure results in a final order and ends that 

proceeding and that this is followed by a separate and distinct enforcement action 

of the earlier grant of foreclosure. Berg at ¶ 8. Nexgen makes no attempt to clarify 

why the unique contours of a foreclosure case apply in the instant case.

Further, in the context of a motion to enforce a settlement agreement, 

the trial court clearly had the authority to enter a judgment for Nexgen and to 

dismiss the case. A trial court possesses the authority to enforce a settlement 

agreement voluntarily entered by the parties to a lawsuit. Tabbaa v. Koglman, 149 

Ohio App.3d 373, 2002-Ohio-5328, 777 N.E.2d 338, ¶ 30 (8th Dist.), citing Mack v. 

Polson, 14 Ohio St.3d 34, 470 N.E.2d 902 (1984). It is true that a trial court will lose 

jurisdiction to proceed in a matter when the court has unconditionally dismissed an 

action. Id., citing State ex rel. Rice v. McGrath, 62 Ohio St.3d 70, 577 N.E.2d 1100

(1991). This does not, however, somehow preclude a trial court from entering 

judgment for one party before dismissing the action.
Therefore, Nexgen’s first assignment of error is without merit and 

overruled.

In Nexgen’s second assignment of error, it argues that the trial court 

erred when it granted Issa’s motion to enforce the memorandum of understanding. 

Nexgen argues that because both parties attempted to add additional terms to their 

formal settlement agreement, there is no question that they were unable to agree to 

a settlement and the court effectively ordered the parties into a settlement that it 

drafted on its own. This argument is not supported by our review of the record. We 

reiterate that both parties have presented identical terms from the memorandum of 

understanding. Further, these terms are what the court used when it reduced the 

memorandum of understanding to a judgment on December 20, 2022.

“‘A valid settlement agreement is a binding contract between the 

parties which requires a meeting of the minds as well as an offer and acceptance.’” 

Krohn & Moss, Ltd., 8th Dist. Cuyahoga No. 95075, 2011-Ohio-731, at ¶ 10, quoting 

Rulli v. Fan Co., 79 Ohio St.3d 374, 376, 683 N.E.2d 337 (1997). Once the court 

determines that there is a binding agreement, a party may not unilaterally repudiate 

it. Id. at ¶ 11, citing Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, 770 

N.E.2d 58. The settlement agreement may be enforced through filing a separate 

breach of contract action, or, as in the instant case, by filing a motion to enforce the 

settlement. Id.

The record reflects that the parties had a valid settlement agreement; 

Nexgen has consistently referred to the memorandum of understanding as a valid 
agreement, including in its own motion to reactivate the case because Issa had 

allegedly breached the terms of the agreement. Therefore, the trial court had the 

authority to enforce the memorandum of understanding. Nexgen’s second 

assignment of error is without merit and overruled.

In its third assignment of error, Nexgen argues that the trial court 

abused its discretion by failing to hold an evidentiary hearing where the terms of the 

settlement agreement were disputed and where there was a clear dispute as to the 

existence of the settlement agreement. With respect to Nexgen’s claim that there 

was a clear dispute as to the existence of the settlement agreement, we reiterate our 

analysis from the second assignment of error. The record, including Nexgen’s own 

pleadings, makes clear that a settlement agreement existed between the parties.

Ohio courts have held that if a factual dispute arises concerning the 

existence or the terms of a settlement agreement, an evidentiary hearing is required 

to determine the nature of the purported settlement. Royal Property Invest. Group, 

L.L.C. v. Bangs Hair Salon, 8th Dist. Cuyahoga No. 101436, 2014-Ohio-5155, ¶ 17. 

“‘To constitute a valid settlement agreement, the terms of the agreement must be 

reasonably certain and clear, and if there is uncertainty as to the terms then the court 

should hold a hearing to determine if an enforceable settlement exists.’” Id., quoting

Chase Home Fin., L.L.C. v. Keys, 8th Dist. Cuyahoga No. 99920, 2014-Ohio-2639, 

¶ 12, citing Mack v. Polson Rubber Co., 14 Ohio St.3d 34, 37, 470 N.E.2d 902 (1984).

Here, both parties have presented identical terms of the 

memorandum of understanding that Issa’s motion sought to enforce. As such, 
despite Nexgen’s claims now to the contrary, there was no uncertainty as to the 

terms of the settlement to require an evidentiary hearing. Therefore, the trial court 

did not abuse its discretion by granting the motion to enforce without holding an 

evidentiary hearing. Nexgen’s third assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant the 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 

common pleas court to carry this judgment into execution. 

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

of the Rules of Appellate Procedure.

MARY EILEEN KILBANE, PRESIDING JUDGE

MARY J. BOYLE, J., and

MICHAEL JOHN RYAN, J., CONCUR