Ginley v. Hamilton ( 2014 )

[Cite as Ginley v. Hamilton, 2014-Ohio-2642.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100361
BRYAN GINLEY
PLAINTIFF-APPELLANT
vs.
TAMMY HAMILTON
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-12-778492
BEFORE: Celebrezze, P.J., Keough, J., and Stewart, J.
RELEASED AND JOURNALIZED: June 19, 2014
FOR APPELLANT
Bryan P. Ginley, pro se
1445 Cordova Avenue
Lakewood, Ohio 44107
ATTORNEYS FOR APPELLEE
Stephen M. Beaudry
James T. Tyminski, Jr.
Gallagher Sharp
6th Floor, Bulkley Building
1501 Euclid Avenue
Cleveland, Ohio 44115
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Appellant, Bryan Ginley, appeals from the enforcement of a settlement
agreement to which he purports he did not consent. In this pro se appeal, he claims that
his attorney agreed to settle his personal injury action for $3,500 without his knowledge
or consent. After a thorough review of the record and law, we affirm the decision of the
trial court.
I. Factual and Procedural History
{¶2} According to Ginley’s complaint filed on March 20, 2012, Ginley was riding
his bicycle near West Avalon Drive in Westlake, Ohio, on June 11, 2008, at
approximately 3:00 p.m. He was struck by a vehicle driven by Tammy Hamilton near the
intersection of Hilliard Boulevard and West Avalon Drive as he walked his bike through
the crosswalk. Ginley claimed to have severe injuries from the collision including partial
paralysis. Hamilton answered and asserted several defenses. Her pretrial statement
asserted that Ginley actually struck her vehicle as she was stopped at the intersection.
She claimed, as the police report documented, that damage occurred to the front driver’s
side quarter panel of her vehicle including marks on the driver’s side tire. She further
claimed that Ginley was cited by Westlake police and found to be at fault for the accident.
{¶3} As part of the pretrial process, Ginley’s treating chiropractor, Carl J. Valenti,
II, D.C., was deposed as if testifying at trial on March 5, 2013, by both sides. Dr. Valenti
first examined Ginley on July 1, 2008, and developed a history, listened to symptoms as
reported by Ginley, and conducted an examination. This examination resulted in a
finding that Ginley had minor injuries including “segmental dysfunction in the cervical
and thoracic spine, lumbosacral sprain/strain injury, which is the lower back, and a
segmental dysfunction of the left hip and knee joints.” Valenti opined that these
conditions could be consistent with injuries sustained by being struck by an automobile if
several presumptions set forth by appellant’s attorney were true. Valenti continued to treat
Ginley several times a month for 11 to 12 months.
{¶4} Valenti testified that, on further treatment, Ginley reported his symptoms
would sometimes alternate between left and right hamstring. Valenti’s observations of
Ginley’s injuries also did not align with Ginley’s subjective complaints. Valenti could
find no evidence of paralysis or that his intestines fell out, both of which Ginley had
stated resulted from the accident. MRI results also demonstrated that Ginley’s
complaints of herniated disks in his spine were not true. Dr. Valenti testified that Ginley
clearly exaggerated his injuries. Because of Ginley’s varying accounts of what occurred,
their conflict with the police report, and his exaggerations of his injuries, Dr. Valenti
stated, “it becomes impossible for me to determine based on everything that I know
exactly what that mechanism of injury is.”
{¶5} Ginley’s attorney, Daniel Ryan, testified at a hearing that, after Valenti’s
deposition, Ryan explained to Ginley how damaging Valenti’s testimony was to the case.
Ryan also explained that Ginley’s other doctors had refused to testify on his behalf.
Ryan asked Ginley about settlement and, according to Ryan, he was given authority to
settle for an amount greater than $2,500.
{¶6} On March 8, 2013, an offer and counteroffer were made between the
attorneys, and Ryan accepted an offer to settle for $3,500. A confirmation email was
sent on March 11, 2013, from Ryan to Hamilton’s attorney, which stated, “[t]hanks for
doing a great job on this in getting it settled. I think it is fair in spite of all the claims by
Mr. Ginley. I have the authority to accept $3,500 from Mr. Ginley so you have it in
writing. I have attached the W9 to use and would you please issue the check as Bryan
Ginley and his attorney RYAN LLP.” The parties then informed the court that a
settlement had been reached.
{¶7} On March 12, 2013, the trial court issued an order dismissing the case as
settled and directing the parties to file a more formal entry and settlement. The next day,
Ginley called the court and learned that his case had been dismissed. He became irate
and called Hamilton’s attorney and left a voicemail asserting that the case was not settled.
{¶8} On March 13, 2013, Ginley filed a motion for time to seek new counsel or
proceed pro se, where he asked the court to reinstate the case. He argued he never gave
Mr. Ryan authority to settle. In response, Hamilton opposed the motion and filed a
motion to enforce the settlement agreement. The trial court set a hearing date on
Hamilton’s motion to enforce and what the court styled as Ginley’s motion to set aside
the settlement.
{¶9} At the August 14, 2013 hearing, Ginley, Ryan, and Hamilton’s attorney
testified about the settlement negotiations. The parties were not sworn prior to making
statements, but no objection was raised. The trial court found that the case settled and
granted Hamilton’s motion to enforce the settlement agreement. Ginley now appeals
from that decision assigning three unclear errors, taken verbatim from appellant’s pro se
brief:
I. There wasn’t any agreement at all[.] * * * The presentation of
anything to the contrary is intentional fraud & a violation of professional
conduct (1.4) & (4.1). Breach of fiduciary duty & fraudulent
misrepresentation. This lack of credibility & competence of the only
(weight) evidence (witnesses) to the (secret) completely fabricated,
unilateral & unauthorized settlement agreement was uncorroborated and
contrary to all of the evidence & truthful accurate testimony. Which
adversely influenced the outcome of the settlement hearing resulting in an
erroneous (reversible) verdict.
II. The trial court committed procedural (reversible) error and abused its
discretion by NOT allowing ANY of my persuasive evidence including all
of my witnesses (page 8, line 20-23) to testify on my behalf.
III. The court committed procedural (reversible) error and abused its
discretion by NOT ruling on or advising me regarding my attorney of record
after he refused to represent me. Because my representation became
ambiguous without ANY ruling Dan Ryan continued as my attorney of
record or his representation of me. As a result my representation was
unknown to me at the settlement hearing.
II. Law and Analysis
A. Enforcement of Settlement
{¶10} Settlements are a favored method of resolving disputes. In re NLO, Inc., 5
F.3d 154 (6th Cir.1993). However, parties may not be forced into a settlement to which
they did not agree.
{¶11} Where a dispute arises about the existence of a settlement agreement, a court
may not force a party into a settlement. “To do so would be to deny the parties’ rights to
control the litigation and to implicitly adopt (or explicitly, as the trial court did here) the
interpretation of one party, rather than enter judgment based on a mutual agreement.”
Rulli v. Fan Co., 79 Ohio St.3d 374, 377, 683 N.E.2d 337 (1997), citing Mack v. Polson
Rubber Co., 14 Ohio St.3d 34, 470 N.E.2d 902 (1984), syllabus.
{¶12} Here, Ginley claims he did not authorize his attorney to settle the case and
had no knowledge of the discussions between counsel. “Whether a party authorized the
attorney to settle the case on certain terms is a question of fact, the resolution of which by
the trial court shall not be disturbed on appeal if supported by some competent, credible
1
evidence.” Schalmo Builders, Inc. v. Zama, 8th Dist. Cuyahoga No. 90782,
2008-Ohio-5879, ¶17, citing Garrison v. Daytonian Hotel, 105 Ohio App.3d 322, 327,
663 N.E.2d 1316 (2d Dist.1995). Therefore, a reviewing court should not reverse a trial
court’s decision if it merely has a difference of opinion on questions of credibility or the
weight of the evidence. A trial court’s decision should be overturned only when there is
no competent and credible supporting evidence. Northpoint Props. v. Charter One Bank,
8th Dist. Cuyahoga No. 100210, 2014-Ohio-1430, ¶ 50, citing Seasons Coal Co. v.
Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).
{¶13} The present case is similar to one recently decided by the Eleventh District
Court of Appeals: Bromley v. Seme, 2013-Ohio-4751, 3 N.E.3d 1254 (11th Dist.).
There, the record disclosed:
There is a distinction between actual and apparent authority in the case law that is not
1
implicated here. Attorney Ryan claimed, and the trial court found, that he had actual authority to
settle the case and had obtained Ginley’s consent to the settlement.
The transcript of the July 30, 2012 “settlement” hearing shows that Attorney
Newman unequivocally averred to the trial court that: (1) he and appellant
had discussed the terms of the proposed settlement extensively; and (2)
appellant was willing to be bound by the settlement. Given the specific
nature of Attorney Newman’s statements, they were sufficient to constitute
a prima facie showing that appellant had expressly authorized him to agree
to the six terms that were negotiated during the prior telephonic conference.
Id. at ¶ 28. The court found that these statements were not rebutted by claims of a lack
of consent.
{¶14} Here, after Ginley waived attorney-client confidentiality, Ryan
unequivocally stated that he informed Ginley of the ongoing negotiations and that Ginley
had given him permission to settle the case for any amount greater than $2,500. Ginley
claimed to have suffered significant injury, amassed medical bills far in excess of the
settlement amount, and would never have authorized settlement for such a low amount.
Attorney Ryan explained that the deposition of the only treating physician who would
testify on Ginley’s behalf was extremely damaging to the case because Dr. Valenti stated
that appellant was exaggerating his injuries. Ginley’s credibility was negatively
impacted by his own deposition and the deposition of his treating chiropractor, and
Ryan’s was bolstered by corroborating emails and statements made by Hamilton’s
attorney. Given this and Ginley’s other credibility issues,2 the trial court’s decision to
believe attorney Ryan over Ginley is not surprising. The trial court heard the statements,
Ginley testified during his deposition that his intestines had fallen out as a result of the
2
accident. Dr. Valenti testified he could find no evidence of this.
weighed the credibility of the parties, and ruled that the settlement was valid and
enforceable. The trial court’s decision is supported by competent, credible evidence.
{¶15} Even if Ginley had not consented to the settlement, “when an attorney
exceeds his settlement authority, that misconduct must be imputed to the client and the
client’s remedy lies elsewhere.” Lepole v. Long John Silver’s, 11th Dist. Portage No.
2003-P-0020, 2003-Ohio-7198, ¶ 16, citing Mollis v. Rox Constr. Co., 11th Dist.
Trumbull No. 92-T-4688, 1992 Ohio App. LEXIS 6083, *12 (Dec. 4, 1992).
B. Scope of the Hearing
{¶16} Ginley next complains that the trial court prevented him from presenting
evidence during the hearing and that no sworn testimony was admitted.
{¶17} The trial court has discretion to control the mode and admission of evidence.
Evid.R. 611. Such decisions will not be reversed absent an abuse of discretion. An
abuse of discretion connotes an unreasonable, arbitrary, or unconscionable decision.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶18} After the hearing commenced, the trial court asked for a statement from
Hamilton’s attorney because the court was addressing Hamilton’s motion to enforce the
settlement agreement. Hamilton’s attorney set forth the negotiations that took place and
the arrival at a settlement of $3,500. The court then asked Ginley to respond. Ginley
stated that he was aware of no negotiations and never agreed to settle the case. Ginley
began to wander off the topic of settlement, and the trial court advised him to limit his
statements to the settlement. Ginley also never attempted to call any witnesses who
possessed relevant knowledge of the settlement issue. He did inquire whether he could
have members of the court staff testify about his anger upon being told that the case was
settled, but this was not altogether relevant to the question of whether Ginley gave his
attorney authority to settle the case. Therefore, it was not an abuse of discretion for the
trial court to limit testimony and witnesses to those who possessed relevant information
about the questions properly before the court.
{¶19} Ginley’s second argument about unsworn testimony does not amount to
prejudicial error. Ginley failed to object to the trial court’s entertainment of statements
from the parties without first having placed them under oath. This could have been
raised at the time of the hearing and corrected. By raising this claim of error for the first
time on appeal, Ginley has waived all but plain error. Ardire v. W. Lake Planning Comm.,
8th Dist. Cuyahoga No. 61636, 1993 Ohio App. LEXIS 620, *9 (Feb. 4, 1993). To
constitute plain error, the error must be obvious on the record, palpable, and fundamental,
so that it should have been apparent to the trial court without objection. State v. Tichon,
102 Ohio App.3d 758, 767, 658 N.E.2d 16 (9th Dist.1995). Moreover, plain error does
not exist unless the appellant establishes that the outcome of the trial clearly would have
been different but for the trial court’s allegedly improper actions. State v. Waddell, 75
Ohio St.3d 163, 166, 661 N.E.2d 1043 (1996). Notice of plain error is to be taken with
utmost caution, under exceptional circumstances, and only to prevent a manifest
miscarriage of justice. State v. Phillips, 74 Ohio St.3d 72, 83, 656 N.E.2d 643 (1995).
{¶20} Ginley is unable to meet this burden. It is highly unlikely that the results of
the hearing would have been different had the parties been administered an oath. The
attorneys who testified are under ethical obligations to speak truthfully to the court under
these circumstances. Prof.Cond.R. 3.3(a). An additional oath subjecting them to perjury
prosecution likely made no difference below. Therefore, this assigned error is overruled.
C. Right to Counsel
{¶21} Ginley finally claims that the trial court erred when it failed to rule on his
motion for time to find counsel or proceed pro se. There, Ginley made arguments akin to
a motion for relief from judgment. He also asked for 180 to 365 days to investigate his
options and find new counsel or proceed pro se. The trial court denied Ginley’s motion
for 180 days to one year to obtain new counsel and allowed him to proceed pro se on July
19, 2013.3
{¶22} Ginley does have a right to be represented by counsel, but that right is not
absolute.
There is an inherent right to counsel as to all matters, be it civil or criminal.
In criminal matters, however, both the Ohio and the United States
Constitutions expressly provide that a person shall not be denied this right
to counsel. * * * In civil matters, however, there is no error with respect
to a denial of counsel, unless it appears that the party expressly requested
the right to confer with counsel and was unjustifiably denied the exercise of
that right. The right is not absolute, but may be controlled as to time and
circumstances.
The trial court also denied Ginley’s motion to appoint a special prosecutor, which was
3
another part of the combined motion, but granted his request for change of address.
Siegwald v. Curry, 40 Ohio App.2d 313, 315-316, 319 N.E.2d 381 (10th Dist.1974).
Here, the denial of Ginley’s request to continue the case for 180 to 365 days, which had
been pending since 2008 and which was settled and dismissed, was appropriate. Such a
long continuance was not reasonable where the only action potentially left was to hold an
evidentiary hearing to determine whether Ginley had given his attorney authority to settle
this case. Ginley’s requested continuance was substantial and was made in the
alternative with a request to proceed pro se, which the court essentially granted.
Therefore, Ginley’s final assignment of error is overruled.
III. Conclusion
{¶23} The trial court conducted a hearing to determine if attorney Ryan was given
settlement authority by Ginley. The court heard testimony from all the parties and found
attorney Ryan’s testimony more credible than Ginley’s. That decision is supported by
competent, credible evidence.
{¶24} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
MELODY J. STEWART, J., CONCUR