[Cite as Brewer v. Brewer,
2019-Ohio-4674.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
WILLIAM A. BREWER, :
Plaintiff-Appellee, :
No. 108011
v. :
NICOLE M. BREWER, ET AL., :
Defendants-Appellants. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 14, 2019
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-13-818843
Appearances:
Cleveland-Marshall College of Law, Appellate Practice
Clinic, and Doron M. Kalir, for appellee.
Bonezzi Switzer Polito & Hupp Co., L.P.A., and Edward J.
Stoll, for appellants.
MARY EILEEN KILBANE, A.J.:
Defendants-appellants, Nicole M. Brewer (“Nicole”) and Michelle
Innocenzi (“Michelle”), appeal the trial court’s judgment denying their motion to
show cause and for attorney fees or alternatively to enforce agreed judgment and
attorney fees. For the reasons set forth below, we affirm.
In December 2013, William A. Brewer (“William”) filed a complaint
for money judgment, specific performance, and equitable relief against his mother,
Marie Brewer (“Mrs. Brewer”), who is now deceased, his sister Michelle, and
Michelle’s daughter Nicole. The complaint asserted claims regarding the transfer of
a property located at 6349 Sylvia Drive, Brook Park, Ohio.
In the complaint, William alleged that in December 2003, he loaned
his parents $60,000 to pay off the mortgage on their home located at the above-
referenced address. William alleged that in consideration of him providing the
funds, his parents agreed to provide in their will that he would receive the sum of
$60,000, plus reasonable interest, from the sale of the home. In July 2005,
William’s father died and Mrs. Brewer became the sole owner of the home.
William alleged that in September 2006, Mrs. Brewer entered into an
agreement to make a will that would assure that he would receive the sum of
$80,000 from the sale of the home. Mrs. Brewer determined she would bequeath
her son $80,000, based on additional sums William had expended since providing
the loan, plus estimated interest to be earned up to the date of her death.
Subsequently, Mrs. Brewer made a will bequeathing William the sum of $80,000.
William alleged that in December 2011, Mrs. Brewer executed a
general warranty deed with a reservation of life estate in grantor for home to her
granddaughter Nicole. In September 2013, the general warranty deed with the
aforementioned reservation of life estate was duly recorded. William alleged the
property transfer was a fraudulent action designed to hide the asset and avoid
paying him the $80,000 in funds he had loaned his parents.
In November 2014, after extensive litigation, the parties filed an
agreed judgment entry. The trial court found that the transfer of the property by
Mrs. Brewer to her granddaughter Nicole was a fraudulent transfer as to creditors,
and as a result, breached the agreement to repay William the $80,000 he furnished
to pay off the mortgage. The trial court also found that Mrs. Brewer had been
unjustly enriched in the amount of $12,000 by improvements William had done to
the property.
The trial court awarded judgment in favor of William and against
Mrs. Brewer in the amount of $92,000. The trial court ordered that Nicole transfer
the property back to Mrs. Brewer, but allowed her and Michelle to continue living in
the property for a period of 30 days following Mrs. Brewer’s admission into a skilled
or assisted living facility or 90 days following her death.
In keeping with the agreed judgment entry, the trial court ordered
that William list the property for sale, with a licensed realtor, at the price
recommended by the realtor, within 90 days of Mrs. Brewer’s death or 30 days of
her being admitted into a skilled or assisted living facility. Under the agreed
judgment entry, William would not purchase the property for himself once listed for
sale.
Pursuant to the agreed judgment entry, the trial court ordered that
William would receive 70% of the net proceeds of the sale and Nicole would receive
30%. The parties agreed that regardless of the sale price, Nicole would receive a
minimum of $27,000. The trial court retained jurisdiction to enforce the agreed
judgment entry.
In February 2015, Mrs. Brewer died. A year later, Nicole filed a
motion to show cause and for attorney fees or alternatively to enforce agreed
judgment and attorney fees. Nicole asserted that William failed to sell the property
through a licensed realtor, that he offered the property for sale “By Owner,” and that
he transferred the property by quitclaim deed in November 2015, to WAB Rental
Properties, L.L.C. without receiving any consideration. Nicole claimed that by
transferring the property to the aforementioned L.L.C., William was attempting to
evade the trial court’s order, which required him to pay her a minimum of $27,000
from the net proceeds of the sale.
In response, William denied the allegations and argued that Nicole
did not comply with the agreed judgment entry by failing to pay costs associated
with the property, failing to adequately maintain the property, and failing to make
necessary repairs. William alleged that as a result of these failures, he was forced to
expend significant funds to bring the bills current, and to avoid any judgment liens
or foreclosure. William also alleged that he was required to make numerous repairs
and renovations because of either negligence or willful conduct on the part of Nicole
and Michelle.
In July 2017, the trial court denied the motion to show cause. Nicole
timely appealed and challenged the trial court’s failure to hold an evidentiary
hearing. In her appellate brief, Nicole stated that before the trial court ruled on the
motion, William sold the property to an unrelated party for $118,000, and that she
never received her share of the proceeds.
In Brewer v. Brewer, 8th Dist. Cuyahoga No. 106092, 2018-Ohio-
1402, we reversed the trial court’s decision because we found that the trial court
abused its discretion by failing to hold an evidentiary hearing. And, because no
evidentiary hearing was conducted, we did not have an adequate record to conduct
a meaningful review. Id. Consequently, we remanded the matter for an immediate
evidentiary hearing.
Following our remand, Nicole and Michelle filed a motion to recuse,
which the presiding judge granted. The case was reassigned to another judge and
in August 2018, the evidentiary hearing was conducted.
At the hearing, the trial court heard testimony from William,
Michelle, Nicole, and Michelle’s other daughter Morgan Innocenzi. William
testified that he did not list the property for sale within 90 days of Mrs. Brewer’s
death because the house was left in utter disrepair and a sale would net only
$30,000 without repairs. William provided 33 photographs depicting damage to
the property including, but not limited to, leaky valves in basement, animal urine
and feces, overgrown landscape, pool and deck in disrepair, buckling kitchen floor
tiles, and spray paint on the wall.
William testified that before he was able to sell the property, he had
to hire two tradesmen to perform repairs and renovations, as well as do landscaping
work and dispose of trash. William also had to pay back taxes on the property. In
June 2017, William sold the property for $118,000 and cleared $114,000 after sale-
related expenses.
Michelle disputed the damages and testified that William never
mentioned any damages prior to her filing the motion to show cause. Michelle
presented a note Nicole left in May 2015, with pictures noting the cleanliness and
the improvements to the house.
The trial court denied the motion to show cause. The trial court found
that William was entitled to the entirety of the proceeds from the sale of the
property.
Nicole and Michelle now appeal, assigning two errors for review:
Assignment of Error One
The trial court committed prejudicial error in enforcing the Agreed
Judgment Entry by miscalculating net proceeds on sale of the subject
property by including amounts over and above those specifically
defined by the parties as permitted reductions from the gross sale
amount as set forth in the Agreed Order of November 17, 2014.
Assignment of Error Two
The trial court committed prejudicial error in enforcing the Agreed
Judgment Entry by failing to grant [Nicole and Michelle] a judgment
in the stipulated minimal amount of $27,000 as required in the Agreed
Order of November 17, 2014.
For ease of review, we will address both assignments of error
together.
Nicole and Michelle centrally argue that the trial court erred by not
awarding them the stipulated 30 percent or a minimum of $27,000 of the net
proceeds of the sale. As a result, Nicole and Michelle claim William should have
been held in contempt.
“Decisions in contempt proceedings rest within the discretion of the
trial court and will not be reversed on appeal absent an abuse of discretion.”
Anderson v. Cuyahoga Metro. Hous. Auth. (In re Anderson), 2017-Ohio-86,
80
N.E.3d 1208 (8th Dist.), citing N. Royalton v. Awadallah (In re Leary), 8th Dist.
Cuyahoga No. 96424,
2011-Ohio-6626, ¶ 18; see also State ex rel. Celebrezze v.
Gibbs,
60 Ohio St.3d 69, 75,
573 N.E.2d 62 (1991). An abuse of discretion occurs
when the trial court’s judgment is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore,
5 Ohio St.3d 217, 219,
450 N.E.2d 1140 (1983).
“Contempt has been defined as the disobedience of a court order.”
Dureiko v. Dureiko, 8th Dist. Cuyahoga No. 94393, 2010-Ohio-5599, ¶ 9, citing
Denovchek v. Bd. of Trumbull Cty. Commrs.,
36 Ohio St.3d 14, 15,
520 N.E.2d 1362
(1988). ‘“It is conduct which brings the administration of justice into disrespect, or
which tends to embarrass, impede or obstruct a court in the performance of its
functions.”’
Id., quoting Windham Bank v. Tomaszczyk,
27 Ohio St.2d 55,
271
N.E.2d 815 (1971), paragraph one of the syllabus.
A settlement agreement is a contract designed to terminate a claim by
preventing or ending litigation. Infinite Sec. Solutions, L.L.C. v. Karam Properties
II, Ltd., 143 Ohio St.3d 346,
2015-Ohio-1101,
37 N.E.3d 1211, ¶ 16. The law highly
favors settlement agreements, and a trial judge generally has discretion to promote
and encourage settlements to prevent litigation.
Id. Thus, a settlement agreement
is an issue of contract law.
A settlement agreement, like any other contract, 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). The parties do not dispute there is valid settlement agreement.
Under the terms of the settlement agreement at hand, the opposing
parties were tasked with shouldering specific responsibilities. Pertinent to Nicole
and Michelle, the agreement specified as follows:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that while
they reside in the property, the Defendants shall continue to be
responsible for the payment of all expenses associated with the
property, including, but not limited to the electric, gas, water, sewer
and garbage, real estate taxes, insurance, maintaining the property in
its current condition and performing any maintenance and repairs
needed during their occupancy. Defendants shall also continue in the
same manner as currently caring for the property, and not commit
waste or damage to the property.
With regard to William, it specified as follows:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that
[William] shall have the property listed for sale with a licensed realtor
at the price recommended by the realtor within 90 days of [Ms.
Brewer’s] death or within thirty (30) days of [Ms. Brewer] being
admitted into a skilled or assisted living facility. [William] agrees that
he shall not purchase the property for himself when it is listed for sale.
In denying the motion to show cause, the trial court stated in
pertinent part:
The record is clear that [William] did not follow the terms of the parties’
consent judgment entry because he did not timely list the property for
sale or pay [Nicole and Michelle] under the agreement. The Court
finds, however, that [Nicole and Michelle’s] damaging conduct
frustrated the purpose of the consent judgment entry so as to require
[William] to deviate from the terms of the agreement. [Nicole and
Michelle’s] actions prevented [William] from listing the property in
order to net the profits contemplated by the consent judgment entry.
The Court finds that [William’s] renovations were necessary and
proper in order to prepare the property for sale and that [William]
received a fair market price for the property. As such, the Court hereby
orders the following remedy in equity in order to resolve the present
dispute.
[T]he house sold for $118,000. From that amount, [William] is entitled
to the $92,000 judgment as set forth in the consent judgment entry as
this amount was to be awarded to [William] upon the sale of the
property. [William] is also entitled to costs associated with repairs and
materials, but nothing for plumbing, the driveway, and landscaping.
This amount is equal to $2,540.95 for materials and $20,204.30 for
labor expended. [William] is also entitled to unpaid-taxes in the
amount of $1,900 and closing costs in the amount $1,354.75. The
remaining net proceeds after this calculation is $0.00. As there are no
net proceeds, the Court finds that [Nicole and Michelle] are not entitled
to compensation from the sale of the property.
We find support for the trial court’s decision to fashion an equitable
remedy in the instant matter. As previously mentioned, at the evidentiary hearing,
William testified that Nicole and Michelle left the property in disrepair and William
provided 33 photographs depicting the damage. A review of the photographs
depicts the damage to the house, which undoubtedly factored heavily in the trial
court’s conclusion that Nicole and Michelle’s conduct frustrated the purpose of the
consent judgment.
In addition, William testified that he was unable to list the property
within the 90-day period prescribed by the settlement agreement because it would
have only netted $30,000, which is a vast difference in the sale price contemplated
by the agreement. The record before us indicates that it took two tradesmen five
months, working an average of forty-two hours per week, to rehabilitate the subject
property. Thus, William had to undertake the necessary repairs to be able to list the
property for sale at a price comparable to other properties in that area.
Further, the $92,000 judgment in favor of William and against Mrs.
Brewer was to be satisfied from the sale of the property. The consent judgment entry
specifically stated that William could file the $92,000 judgment as a lien once the
property was transferred back into Mrs. Brewer’s name. The entry further stated
that execution on the judgment would be stayed, provided the parties complied with
the remaining orders.
As previously noted, the house sold for $118,000, and the trial court
found that William was entitled to $92,000, as set forth in the consent judgment
entry. The trial court also deducted the cost for repairs, unpaid back taxes, and
closing costs from the sale price, and determined that the net proceeds were $0.00.
Nicole and Michelle contend this calculation of the net proceeds of
the sale deviated from the terms of the settlement agreement and constituted
prejudicial error. However, as the trial court’s opinion aptly noted, in Steinberg v.
Steinberg, 8th Dist. Cuyahoga No. 44125, 1982 Ohio App. LEXIS 12314 (June 24,
1982), this court held that a trial court may act within its sound discretion in
fashioning an equitable remedy designed to facilitate compliance with its prior
orders.
Here, Nicole and Michelle’s damaging conduct frustrated the purpose
of the consent judgment. Their conduct caused William to undertake costly
rehabilitative efforts to bring the property to the condition that would secure a sale
at a price necessarily contemplated by the settlement agreement. Based on the
actions of the parties that were not contemplated by the agreement, the trial court
had to fashion an equitable remedy. As a result, we find no abuse of discretion in
the trial court’s decision not to find William in contempt.
Accordingly, both assignments of error are overruled.
It is ordered that appellee recover from appellants 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, ADMINISTRATIVE JUDGE
FRANK D. CELEBREZZE, JR., J., and
KATHLEEN ANN KEOUGH, J., CONCUR
