Romanowich v. Solich Music & Piano Co.

[Cite as Romanowich v. Solich Music & Piano Co., 2021-Ohio-1502.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Justin Romanowich, :
Plaintiff-Appellant, :
No. 20AP-33
v. : (C.P.C. No. 19CVH02-1535)
Solich Music and Piano Co. et al., : (REGULAR CALENDAR)
Defendants-Appellees. :
D E C I S I O N
Rendered on April 29, 2021
On brief: Bruce M. Broyles, for appellant.
On brief: Cloppert, Latanick, Sauter and Washburn, and
Ronald Snyder, for appellees. Argued: Ronald Snyder.
APPEAL from the Franklin County Court of Common Pleas
BROGAN, J.
{¶ 1} This appeal involves the enforcement by the trial court of a settlement
agreement. This litigation began on February 20, 2019, when plaintiff-appellant, Justin
Romanowich, filed his complaint against defendant-appellee, Solich Piano and Music Co.
(hereinafter "Solich") and defendant, Yamaha Corporation of America (hereinafter
"Yamaha") alleging claims for breach of contract, unjust enrichment, defamation, invasion
of privacy, and intentional infliction of emotional distress.
{¶ 2} Romanowich's complaint alleged that Solich failed to pay him at least one
commission in the amount of $3,375 earned from the sale of a Yamaha piano during a sales
event in September 2018. The complaint also alleged that Yamaha and Solich had circulated
defamatory statements about him damaging his reputation.
{¶ 3} After the defendants filed their respective answers denying the allegations of
Romanowich's complaint, Romanowich was scheduled to be deposed on July 18, 2019. At
No. 20AP-33 2
the beginning of that deposition, counsel for the parties engaged in settlement discussions
which continued for approximately two and one-half hours. (Tr. at 69.) During that time
period, Romanowich reached a settlement with Yamaha. In that settlement agreement, the
parties agreed that Yamaha would pay no damages to Romanowich, that Romanowich
would dismiss his complaint against Yamaha, and Yamaha would agree not to seek
sanctions against him. (Tr. at 16, 47.)1 The settlement agreement between Yamaha and
Romanowich was read into the record and transcribed by the court reporter who was
present for the deposition. Because the settlement discussions took place at the offices of
Yamaha's counsel, Yamaha's counsel was able to prepare a written settlement agreement
which was signed by Romanowich.
{¶ 4} During this period, settlement discussions also took place between
Romanowich and Solich. A settlement agreement was also reached between Romanowich
and Solich. The terms of this agreement were that Solich agreed to pay Romanowich the
sum of $1,500, and Romanowich agreed to dismiss the complaint against Solich with
prejudice. (Tr. at 13, 49-50.) Because the parties were not located at either the offices of
Solich's or Romanowich's counsel, a written settlement agreement was not prepared at that
time. (Tr. at 16.) To memorialize the settlement agreement, the settlement agreement was
placed on the record and transcribed by the court reporter. (Tr. at 50.)
{¶ 5} On July 23, 2019, Romanowich sent an email to the attention of
Judge Jennifer French, John Sauter (counsel for Solich), and his own counsel Michael
DeWitt, in which he sought to revoke the settlement agreement. (Mot. to Enforce
Settlement Agreement, Ex. 4; Tr. at 19.) On the same day, DeWitt moved to withdraw as
counsel for Romanowich, which was granted by the trial court. (Mot. for Attorney
Withdraw at 1; July 24, 2019 Order at 1.) Romanowich refused to execute the settlement
agreement which had been drafted by attorney Sauter to reflect the terms of the agreement
reached between the parties and placed on the record on July 18, 2019. (Tr. at 18-19.)
{¶ 6} On July 25, 2019, attorney Sauter telephoned Romanowich and requested
that he execute the settlement agreement. The next day, Sauter received an email from
Romanowich rejecting the settlement agreement and describing it as an "insult." (Sauter
1 It was determined that the employee who allegedly made a defamatory statement about Romanowich was
not an employee of Yamaha.
No. 20AP-33 3
Aff. at 2.) On August 6, 2019, Solich filed a motion to enforce the settlement agreement and,
on August 27, 2019, Romanowich filed his response. On November 18, 2019, the trial court
conducted a hearing on the motion.
{¶ 7} At the hearing it was determined that Romanowich was an independent sales
representative selling pianos for Yamaha at sales events at Costco locations throughout the
country. Romanowich is paid a sales commission on the sale of each Yamaha piano.
According to Romanowich, it was also determined that his attorney was aware that
Romanowich has Asperger's Syndrome,2 "a developmental disorder that is part of the
broader category called autism spectrum disorder." (Appellant's Brief at 5; Romanowich
Aff. at 2.)
{¶ 8} During the settlement discussion between DeWitt and Romanowich, DeWitt
saw Romanowich hit himself several times in the head, cry, make noises, and yell at himself.
(Tr. at 63.) The following dialogue occurred when DeWitt testified:
Q. Okay. Did Mr. Romanowich advise you that he was being
triggered?
A. I'm not sure that he advised me that he was being triggered.
I have had enough life experience that I think if someone is
hitting themselves in the head and calling themselves names,
that something is amiss. But I'm not trained, I don't know.
(Tr. at 65.) DeWitt testified about Romanowich's behavior and testified that "during that
behavior he never told me don't settle the case." (Tr. at 53.) DeWitt testified that
Romanowich "began hitting himself in the head, calling himself an idiot, said that everyone
-- that he thinks he's stupid, that he often has suicidal thoughts." (Tr. at 54.) DeWitt testified
as follows:
Q. Okay. So with regards to the Solich Music settlement, did
that occur prior to or after the conduct of Mr. Romanowich that
would be described as hitting himself, saying things and tearing
up?
A. It took place after that.
(Tr. at 70.) DeWitt testified that, after about twenty minutes to one-half hour, Romanowich
calmed down and DeWitt had authority to settle with Solich:
2We note that at the hearing, Romanowich's attorney appears to withdraw his question to DeWitt's about his
knowledge of Romanowich's Asperger's diagnosis. See Tr. at 66-68.
No. 20AP-33 4
Q. And all I'm trying to find out is how much time elapsed from
when he was in the throes of that and when you believe you had
authority from Mr. Romanowich?
A. I'm going to say probably 20 minutes to half an hour.
(Tr. at 71-72.) In discussing settlement with Romanowich, DeWitt informed Romanowich
that only Romanowich could settle the case. However, DeWitt added: "If you go forward,
I'm not going to represent you. I'll seek the Court's permission to withdraw from the case."
(Tr. at 45.)
{¶ 9} Based on DeWitt's belief that he had authority to settle the case against
Solich, the parties' agreement was read into the record. Romanowich entered the
conference room briefly but was not present when the agreement was read into the record
and did not give his assent on the record. (Tr. at 17.) DeWitt then testified that Romanowich
approached him after the settlement was read into the record, stating:
We were really in the process of sort of really cleaning up. It
had been put on the record. The case was settled.
And [Romanowich] then * * * came up and said, I don't want to
go through with it. And so I said, well, it's a little late, but let's
talk about this.
(Tr. at 51.) "He never told me to go tell them he wasn't going forward with it after that
discussion." (Tr. at 51.)
{¶ 10} Romanowich testified that he objected to the amount Solich offered and
stated that the amount was "ridiculously low," but DeWitt said "you got to take it." (Tr. at
86.) Romanowich testified that it felt like DeWitt "completely turned to the other side and
went to bat for the other team." (Tr. at 87.) Romanowich testified that DeWitt raised his
voice and berated him. (Tr. at 87.) Romanowich testified he attempted to discuss the issues
regarding the strength of his case with DeWitt, but his attorney simply kept telling him they
"weren't going to pay"; "you don't have a case"; "[y]ou're not going to win, it is just
impossible." (Tr. at 89.) Romanowich testified that he never agreed to settle for $1,500. (Tr.
at 92.) "Mr. DeWitt said it would be $1,500 and then if I had the ability to prove all of these
other deals and all the other money, that he had authorization from Mr. Sauter to then pay
me on those funds as well." (Tr. at 93.) Romanowich continued:
No. 20AP-33 5
So I think at that point -- and, correct, at that point I said yes to
the agreement, but I also thought that at that time that I would
at least be able to get some additional [sic] out of Solich. So
when I'm saying no, my rational thought, my decision after that
point is no and before this fit happened it was still no. So it was
after the point that I heard, you don't have a case, you're not
going to win, et cetera that I felt strong-armed and coerced into
an agreement of that.
(Tr. at 93-94.)
{¶ 11} Romanowich testified that he did authorize DeWitt to accept $1,500 but that
it was during the middle of a terrible fit he was having; and that he retracted that authority
the same day. (Tr. at 95-96.) Romanowich testified that he was still sobbing immediately
before the settlement was read into the record; that he did not calm down for "many hours
later"; and that he was unable to make a rational decision. (Tr. at 96.)
{¶ 12} DeWitt testified on rebuttal that there were discussions regarding something
additional to the $1,500 settlement. He told Romanowich those additional claims were not
covered by the settlement agreement. (Tr. at 104, 108-12.) DeWitt further testified that the
point at which Romanowich authorized the settlement was after he had calmed down, and
was twenty to thirty minutes after the episode had ended. (Tr. at 71-72.)
{¶ 13} On December 18, 2019, in granting Solich's motion to enforce the settlement
agreement, the trial court stated:
In the case at hand, the Court conducted a hearing on
Defendant Solich's Motion to Enforce Settlement, and heard
testimony from (1) Mr. Sauter, Defendant Solich's former
attorney; (2) Mr. DeWitt, Plaintiff's former attorney; and (3)
Plaintiff. All three were present on July 18, 2019 when the
alleged settlement occurred. Based on this evidence provided
at the hearing, the court finds that Mr. DeWitt had the apparent
and actual authority to settle the claims between
[Romanowich] and Defendant Solich for $1,500. Mr. DeWitt
testified that [Romanowich] was indeed agitated and upset at
one point of the conference, but that Mr. DeWitt had talked
with [Romanowich], and [Romanowich] had calmed down and
agreed to the settlement before it was memorialized by Mr.
DeWitt and Mr. Sauter on the record. See [Tr. at 52-59, 71-73.]
Mr. DeWitt further explained how he discussed both
settlements with [Romanowich], and explained to
[Romanowich] that opposing counsel had presented him with
certain discovery that made several of [Romanowich]'s claims
unlikely to be ultimately successful, and that opposing counsel
No. 20AP-33 6
had also threatened to request sanctions if [Romanowich]
chose to proceed with his deposition and case considering this
new information. Id. at 33-34. The Court further notes that
although [Romanowich] testified that certain additional
monies were also discussed and were to be included in the
settlement, Mr. DeWitt clarified that although these additional
monies were discussed, they were outside the parties'
settlement agreement. Id. at 84-86, 93, 101, 104, 108-112. Mr.
DeWitt testified that if [Romanowich] could substantiate these
additional claims, Mr. Sauter had agreed that Defendant Solich
would later consider it. Id.
(Trial Ct. Decision at 5-6.) The trial judge stated she found DeWitt's testimony and version
of the events to be credible, and she further found that DeWitt had the actual authority on
behalf of Romanowich to enter into the July 18, 2019 settlement agreement with Solich.
Romanowich filed a notice of appeal on January 10, 2020.
{¶ 14} In his first assignment of error, Romanowich contends the trial court erred
in finding he had given his attorney express authority to settle the case with Solich for
$1,500. Romanowich points to his testimony that he wasn't going to settle "before this fit
happened * * *. So it was after the point that I heard, you don't have a case, you're not going
to win, et cetera that I felt strong-armed and coerced into an agreement of that." (Tr. at
94.) Romanowich argues that the trial court erred in failing to find that he revoked the
settlement authority.
{¶ 15} Romanowich argues that no reasonable attorney would have believed that he
still had authority to settle the case after he had acted in such an unusual manner in front
of the attorney who knew he was diagnosed with Asperger's. Romanowich points out that
DeWitt told him about the settlement after he calmed down, approximately 20 minutes
after his self-described fit. (Appellant's Brief at 24, citing Tr. at 72.) Finally, he notes that
despite his unusual conduct, his attorney did not feel the need to have him state on the
record that he agreed with the terms of the settlement agreement.
{¶ 16} He further argues that, even if the authority to settle the case was given to his
attorney, it was immediately revoked prior to him communicating it to opposing counsel.
Romanowich contends that the agreement was repudiated within minutes of it being placed
on the record. He also notes that he was communicating with opposing counsel and the
Court within a few days after the settlement was placed on the record and before any written
agreement was executed.
No. 20AP-33 7
{¶ 17} DeWitt testified that Romanowich never told him to go tell opposing counsel
that the settlement was off after their discussions.
{¶ 18} In his second assignment of error, Romanowich contends the trial court's
decision is against the manifest weight of the evidence. In support of his argument he cites
the case of Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, wherein the court
explained the meaning of "weight of the evidence." Id. at ¶ 7.
Nevertheless, even if a trial court judgment is sustained by
sufficient evidence, an appellate court may nevertheless
conclude that the judgment is against the manifest weight of
the evidence:
"Weight of the evidence concerns 'the inclination of the greater
amount of credible evidence, offered in a trial, to support one
side of the issue rather than the other. It indicates clearly to the
jury that the party having the burden of proof will be entitled to
their verdict, if, on weighing the evidence in their minds, they
shall find the greater amount of credible evidence sustains the
issue which is to be established before them. Weight is not a
question of mathematics, but depends on its effect in inducing
belief.' "
(Emphasis sic.) Eastley at ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380, 387 (1997),
quoting Black's Law Dictionary 1594 (6th Ed.1990). Romanowich argues the trial court
clearly lost its way in finding that attorney DeWitt had authority to settle the case against
Solich for $1,500. We disagree.
{¶ 19} This court finds there is evidence in the record to support the trial court's
finding that DeWitt had actual authority from Romanowich to settle his lawsuit against
Solich for $1,500. The trial court was in the best position to evaluate the credibility of
Romanowich and his former counsel DeWitt. DeWitt testified that Romanowich gave him
permission to settle the case 20 minutes after he calmed down from his self-described "fit."
(Appellant's Brief at 24.) Romanowich himself admitted that "if [he] had the ability to prove
all these other deals and all the other money, that [attorney DeWitt] had authorization from
[attorney] Sauter to then pay me on those funds as well." (Tr. at 93.) There is evidence in
the record that counsel and the parties engaged in extensive discussions for over two hours
regarding Romanowich's claims against Solich. The deposition of Romanowich was delayed
to see if a settlement could be reached.
No. 20AP-33 8
{¶ 20} The trial court was in the best position to determine whether there had been
a "meeting of the minds" in reaching the settlement. See Rulli v. Fan Co., 79 Ohio St.3d
374, 376 (1997).
{¶ 21} Appellants' two assignment of error are overruled. The judgment of the
Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
DORRIAN, P.J. and MENTEL, J., concur.
BROGAN, J., retired, of the Second Appellate District,
assigned to active duty under authority of the Ohio
Constitution, Article IV, Section 6(C).
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