Kiser et al v. Olsen

Filing 54

ORDER denying 48 Motion for Order to Reconvene Mediation; granting in part 49 Motion to Enforce Settlement Agreement and Award Costs as Sanctions. Signed by Judge Algenon L. Marbley on 9/14/2017. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
KRISTIN KISER, et al.,
Plaintiffs,
v.
KURT OLSEN,
Defendant.

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Case No. 2:14-cv-2313
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

OPINION & ORDER
Pending before the Court are Plaintiffs’ Motion to Reconvene Mediation (Doc. 48) and
Defendant’s Motion to Enforce Settlement Agreement and Award Costs as Sanctions. (Doc. 49.)
For the reasons set forth below, Plaintiffs’ motion is DENIED, and Defendant’s Motion is
GRANTED in part.
I. BACKGROUND
This is a dispute between siblings over their mother’s estate. The case was originally
filed in the Athens County Probate Court. Plaintiff Kristen Kiser sought a declaratory judgment
ordering that she receive a farm owned by her mother’s trust and that her brother, Defendant
Kurt Olsen, receive other trust assets as compensation. Defendant removed the case to this
Court, which appointed a special trustee (Kenneth Ryan) to oversee the case.
Ultimately, the parties settled their issues related to the sale of the farm in an agreement
finalized in December 2016.

A mediation to address remaining issues was conducted by

Magistrate Judge Mark Abel on July 18, 2016. The case did not settle during the mediation
itself, but the parties continued to negotiate over the next several days via e-mail and telephone.
The parties’ ongoing negotiations are memorialized in the following e-mails:
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

After the case did not settle at the July 18 mediation, Plaintiffs’ counsel circulated via
e-mail on July 20, 2016 a checklist of the issues that the parties needed to resolve and
Plaintiffs’ position on these issues. (Doc. 49, Ex. 1B.) This checklist included the
four claims that Plaintiffs claim are still at issue now: (1) alleged third-party damage
to farm equipment held by the trust (the “Montles” claim); (2) claims related to
certain work performed by third-party contractors (the “Davidson-Bush” claim); (3)
claims related to certain pre-existing roof damage to a barn and a shed on the farm
property distributed to Plaintiff earlier in the case (the “Insurance claims”); and (4)
claims about certain legal expenses Defendant incurred as co-trustee, seeking to
remove Plaintiff as co-trustee before the appointment of the special neutral (the
“Hoge” liens). (Doc. 49 at 3; see also Doc. 48 at 5.)



On July 21, 2016, Plaintiff’s counsel e-mailed Defendant’s counsel after continued
negotiations, conceding each of the four claims listed above. (Doc. 49, Ex. 1C.)
Thus, the parties agreed on these key issues and had only “lesser disputes about art
works, coin collections, and other chattel” to resolve. (Doc. 49 at 7.)



After the parties spoke on the phone shortly in the early morning hours of July 22,
2016, at 7:28 a.m. Plaintiffs’ counsel e-mailed Defendant’s counsel. In that e-mail,
Plaintiffs’ counsel stated: “We have a deal,” and set forth the agreed-on division of
the artwork, coins, etc. (Doc. 49, Ex. 1A.) Plaintiffs’ counsel also suggested having
a joint call with the Court to advise Judge Abel that the parties had settled. (See id.)



On July 22, 2016, at 7:56 a.m., Defendant’s counsel informed Plaintiffs’ counsel that
he would call the Court to advise that the case had settled, and agreed to put together
a written agreement for circulation. (Doc. 49, Ex. 1D.)



Defendant’s counsel circulated a draft written settlement agreement via e-mail on
August 3, 2016, which was signed by the special trustee on August 6, 2016. (See
Doc. 49, Ex. IE; see also Doc. 52-1.)

To date, Plaintiffs refuse to sign the settlement agreement. Ms. Kiser claims that the
written settlement agreement circulated on August 3, 2016 does not reflect her understanding of
the settlement proposal and thus there was no meeting of the minds and no settlement to enforce.
(See Doc. 51 at 9–10.) Defendant, by contrast, argues that the parties entered into a clear and
unambiguous settlement on July 22, 2016, as evidenced by Plaintiffs’ counsel’s e-mail stating
that the parties “ha[d] a deal.” Notably: (1) the parties agreed, as evidenced by their e-mail
exchange, to notify the Court of their settlement on July 22, 2016 and therefore did not attend the
final pretrial conference scheduled for that afternoon; (2) Plaintiffs did not show up to Court on
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the scheduled trial date of August 16, 2016; and (3) Plaintiffs did not object or attempt to correct
the special trustee when he signed the settlement agreement on August 6, 2016.
II. ANALYSIS
“Public policy favors settling cases without litigation, and settlement agreements should
be upheld whenever it is equitable to do so.” Graley v. Yellow Freight Sys., Inc., 221 F.3d 1334
(6th Cir. 2000) (unpublished table decision) (citing Aro Corp. v. Allied Witan Co., 531 F.2d
1368, 1372 (6th Cir. 1976)). District courts have the “inherent power to enforce settlement
agreements entered into by parties litigating in a pending case,” and this power extends to the
enforcement of oral settlement agreements made off the record and not in the presence of the
Court. See id. (internal citations omitted).
“Summary enforcement of a settlement agreement, without holding an evidentiary
hearing, is proper when the parties do not dispute material facts pertaining to the existence or
terms of a settlement agreement.”1 Id. To enforce the agreement, a district court “must find that
the parties have agreed on all material terms of the settlement.” Id. “In enforcing the agreement,
the court is not permitted to alter the terms of the agreement, but rather it must enforce the
settlement as agreed to by the parties.” Id.
In support of his argument that the Court should enforce the settlement, Defendant relies
on Lucas Contracting, Inc. v. Altisource Portfolio Solutions, Inc., No. 2015CA00102, 2016 WL
529408 (Ohio Ct. App. Feb. 9, 2016). In Lucas, an Ohio appellate court upheld the trial court’s
enforcement of settlement agreement where parties exchanged e-mails agreeing to basic terms.
Id. at *3–*4. (“We find that the trial court did not err by granting the Motion to Enforce

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Because Plaintiffs did not expressly request an evidentiary hearing, they have waived their right to one.
See Lucas Contracting, Inc. v. Altisource Portfolio Sols., Inc., No. 2015CA00102, 2016 WL 529408, at
*2 (Ohio Ct. App. Feb. 9, 2016) (party waived right to evidentiary hearing by failing to request such a
hearing or objecting to lack of an evidentiary hearing).
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Settlement. Appellee clearly set out the terms of settlement in its November 10, 2014 e-mail and
in its response the same day, appellant never contradicted or challenged the same.”). The court
enforced the settlement even where the settlement agreement required the personal signature of a
nonparty, and this term was not addressed in the parties’ e-mails. Id. at *4. Similarly, in Sematic
USA, Inc. v. Otis Elevator Co., No., 2006 WL 1624398, at (N.D. Ohio June 6, 2006), the
Northern District of Ohio granted summary judgment to a plaintiff seeking to enforce a
settlement agreement where the terms of the settlement were set forth in an 11-point chart
attached to an e-mail. Id. at *4.
Plaintiffs correctly note that Sematic is distinguishable because all of the settlement terms
were contained in one comprehensive e-mail/chart.

However, Plaintiffs elevate form over

substance by focusing on the fact that the parties never exchanged a single e-mail containing all
of the settlement terms. Between (1) the July 20 mediation memorandum sent to Defendant by
Plaintiffs; (2) Plaintiffs’ July 21 e-mail conceding four of the points in that memorandum; and
(3) the July 22 e-mail in which Plaintiffs’ counsel clearly states that the parties have a deal and
sets forth the remaining terms of the settlement (dealing with artwork, coins, etc.); the
unambiguous correspondence exchanged by the parties indicates that there was a meeting of the
minds and an enforceable settlement. Although these unambiguous communications are all the
Court needs to consider, in addition, Plaintiffs’ indication in the July 22 e-mail that defense
counsel could notify the Court of the parties’ settlement and failure to alert the special trustee or
the Court that the parties had not settled after seeing the August 3 draft settlement agreement
suggest that Plaintiffs are simply now having buyer’s remorse.
For these reasons, the Court finds that the parties entered into an enforceable settlement.
Defendant’s motion is therefore GRANTED, and Plaintiffs’ motion is DENIED.

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As for

Defendant’s request for costs, the Court has “the inherent power to sanction a party when that
party exhibits bad faith.” Ferron v. Echostar Satellite, L.L.C., 658 F. Supp. 2d 859, 862–63
(S.D. Ohio 2009). The Court finds that Plaintiffs’ conduct did not rise to the level of bad faith,
and Defendant’s request for sanctions is DENIED.
IT IS SO ORDERED.

s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE

Dated: September 14, 2017

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