DeCuzzi v. Mak ( 2024 )

[Cite as DeCuzzi v. Mak, 2024-Ohio-619.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
LOUIS DECUZZI C.A. No. 23CA0011-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
TIN Z. MAK COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 21-CIV-0859
DECISION AND JOURNAL ENTRY
Dated: February 20, 2024
SUTTON, Presiding Judge.
{¶1} Defendant-Appellant Tin Z. Mak appeals from the judgment of the Medina County
Court of Common Pleas. This Court affirms.
I.
{¶1} On October 29, 2021, Louis DeCuzzi filed a complaint for defamation against Tin
Mak in the Medina County Court of Common Pleas. At the time of the filing of the complaint,
both Mr. DeCuzzi and Mr. Mak were members of the Homeowners Association Board (“HOA
board”) for the Benjamin Farm Homeowners Association, with Mr. DeCuzzi serving as the
president of the board.
{¶2} The complaint alleged Mr. Mak failed to take adequate care of his residential
property, which caused Mr. DeCuzzi and other members of the HOA board to communicate with
Mr. Mak “to cut his lawn and maintain his residence up to the Brunswick community standards to
protect market value of all properties in the neighborhood.” The complaint alleged that because
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of these communications, Mr. Mak retaliated against Mr. DeCuzzi “by sending defamatory emails
and placing defamatory statements in [mailboxes] of at least 286 residents in the HOA []
concerning [Mr. DeCuzzi]’s ability to honestly handle HOA finances and conduct his business and
profession honestly.” The complaint further alleged the defamatory statements “include[d] but are
not limited to accusing [Mr. DeCuzzi] of being part of an illegal financial kickback scheme
involving the handling of HOA dues, doctoring HOA meeting records to cover up various forms
of illegal conduct, holding secret meetings, improper vendor contract bidding, employing ‘friends’
to be HOA accountants and destroying financial records.” The complaint sought compensatory
and punitive damages, attorney fees, and an order restraining Mr. Mak from making further
defamatory statements against Mr. DeCuzzi.
{¶3} The trial court scheduled a pre-trial hearing. After that hearing, Mr. DeCuzzi filed
a motion to enforce a settlement agreement, asserting the parties had reached a settlement
agreement before the pre-trial hearing, and Mr. Mak failed to execute his part of the agreement.
Mr. Mak did not file a written response to the motion. The trial court scheduled a hearing on the
motion, and after the hearing the trial court issued an order granting the motion to enforce. The
trial court ordered Mr. Mak to pay Mr. DeCuzzi the sum of $5,250.00 and to sign a written
retraction of Mr. Mak’s defamatory statements.
{¶4} Mr. Mak filed a timely appeal, assigning one error for this Court’s review.
I.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY RULING TO ENFORCE A NON-
EXISTENT AGREEMENT, A WORK-IN PROGRESS AGREEMENT
NEGOTIATION THAT HAD FAILED TO PRODUCE THE MEETING OF
THE MINDS WHERE SUBSTANTIAL DISAGREEMENTS STILL
EXISTED[.]
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{¶5} In his sole assignment of error, Mr. Mak argues the trial court erred in enforcing
the settlement agreement because an agreement between the parties did not exist. For the following
reasons, we disagree.
{¶6} The standard of review of a trial court’s ruling on a motion to enforce a settlement
agreement is whether the trial court’s order is based on an erroneous standard or misconstruction
of law, i.e., whether the trial court erred. Continental W. Condominium Unit Owners Assn. v.
Howard E. Ferguson, Inc., 74 Ohio St.3d 501, 502 (1996). “When moving for enforcement of a
settlement agreement and there are asserted factual disputes concerning the existence or the terms
of a settlement agreement, a hearing is required to determine whether the agreement constituted a
valid contract.” Connolly v. Studer, 7th Dist. Carroll No. 07 CA 846, 2008-Ohio-1526, ¶ 18, citing
Palmer v. Kaiser Foundation Health, 64 Ohio App.3d 140 (8th Dist.1991).
{¶7} Here, Mr. DeCuzzi filed a motion to enforce the settlement agreement. In his
motion, Mr. DeCuzzi explained the parties, with counsel, negotiated a settlement agreement before
the pre-trial hearing. The motion indicated a magistrate was present and the magistrate “advised
[that the trial court] would keep a record of the negotiated essential terms in its file notes.” The
motion asserted “[t]he parties agreed in exchange for dismissal of [Mr. DeCuzzi]’s case that [Mr.
Mak] would execute a retraction attached as an Exhibit A and pay [Mr. DeCuzzi] through counsel
in trust the sum of $5250.00, each party bear own costs.” After the meeting, counsel for Mr.
DeCuzzi sent counsel for Mr. Mak a written settlement agreement. Mr. Mak’s counsel then offered
an alternative written settlement agreement that contained certain releases and confidentiality
provisions, which Mr. DeCuzzi signed after adding two clarifications to the document regarding
the scope of the agreement. The settlement agreement contained an attachment titled “Exhibit A.”
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“Exhibit A” was a written retraction of the defamatory statements, to be signed by Mr. Mak, and
it read:
Statement of John (Tin Z.) Mak
In my letters concerning Benjamin Farms Homeowner’s Association, if my words
have given anyone the erroneous impression that there was wrongdoing by Louis
Decuzzi, I regret writing those words and apologize to Mr. Decuzzi.
Both the written settlement agreement, titled “Confidential Settlement Agreement and Release,”
and Exhibit A were attached to Mr. DeCuzzi’s motion. Mr. Mak did not file a written response to
the motion.
{¶8} The record shows the trial court held a hearing on the motion. At the hearing, Mr.
Mak’s counsel agreed that an agreement existed between the parties “in principle,” but argued the
parties were not in agreement over what language should appear in a proposed written settlement
agreement. Mr. Mak did not dispute that he agreed to pay Mr. DeCuzzi the sum of $5,250.00.
Initially, counsel for Mr. Mak asserted Mr. Mak agreed to sign Exhibit A before the pre-trial
hearing, but then later in the hearing disputed that Mr. Mak agreed to have the word “erroneous”
included in the text of Exhibit A. Counsel for Mr. DeCuzzi then provided the trial court with a
draft of Exhibit A that Mr. Mak himself had given the magistrate who conducted the settlement
conference, and that draft included the word “erroneous.”
{¶9} After the hearing, the trial court issued the following order:
Upon all due consideration this [c]ourt finds that the Plaintiff Louis DeCuzzi[’s]
motion to enforce the settlement made by the parties in this case is well taken and
will be enforced without delay. IT IS THE ORDER OF THIS COURT that
Defendant Tim Z. MAK forward to the Counsel for the [Mr. DeCuzzi] a certified
check or money order in the amount of $5250.00 made out to “Michael T. Conway
in trust for Louis DeCuzzi” and [Mr. Mak] will sign his name and date onto the
retraction for defamation that is attached as an exhibit to [] [Mr. DeCuzzi]’s motion
to enforce settlement and forward that document to [counsel for Mr. DeCuzzi]
along with the said check or money order and retraction as instructed no later than
7 days from receipt of this order. Upon receipt of the said settlement agreement
consideration, [Mr. DeCuzzi] will dismiss this case without prejudice, each party
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to bear own costs. [Mr. Mak]’s refusal to comply with this ORDER may be
punishable as a contempt of this [c]ourt.
{¶10} Although the trial court did not order Mr. Mak to sign the written settlement
agreement containing the confidentiality provisions and releases that he objected to signing, the
trial court found the terms of the settlement agreement were that Mr. Mak would pay Mr. DeCuzzi
the sum of $5,250.00 and sign Exhibit A, and in return Mr. DeCuzzi would dismiss the case
without prejudice.
{¶11} The record shows the trial court conducted a hearing to determine whether a
settlement agreement existed and the terms of the settlement agreement. The record supports the
trial court’s conclusions that a settlement agreement existed and what the terms of that settlement
agreement were. After reviewing the record in this case, we cannot determine the trial court erred
as a matter of law.
{¶12} Mr. Mak’s assignment of error is overruled.
III.
{¶13} Mr. Mak’s assignment of error is overruled. The judgment of the Medina County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
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Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETTY SUTTON
FOR THE COURT
STEVENSON, J.
CONCURS.
CARR, J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
TIN Z. MAK, pro se, Appellant.
MICHAEL T. CONWAY, Attorney at Law, for Appellee.