Harvest Missionary Baptist Church v. Caver

[Pages:18][Cite as Harvest Missionary Baptist Church v. Caver, 2008-Ohio-2369.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION Nos. 89873, 89921, and 90149

HARVEST MISSIONARY BAPTIST CHURCH, ET AL.

PLAINTIFFS-APPELLEES vs.

ARTIS F. CAVER, ET AL.

DEFENDANTS-APPELLANTS

JUDGMENT: AFFIRMED (NO. 89921); DISMISSED (NOS. 89873 and 90149)

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case Nos. CV-502845, CV-582518, and Cleveland Municipal Court Case No. 2006 CVG 13942

BEFORE: McMonagle, J., Gallagher, P.J., and Celebrezze, J.

RELEASED:

May 15, 2008

JOURNALIZED:

[Cite as Harvest Missionary Baptist Church v. Caver, 2008-Ohio-2369.]

ATTORNEYS FOR APPELLANTS

For Dale Edwards

Michael L. Belcher 75 Public Square, Suite 910 Cleveland, OH 44113

Percy Squire Percy Squire Co., LLC 514 South High Street Columbus, OH 43215

For Dejan Performing Arts and Learning Center, Inc.

Michael L. Belcher 75 Public Square, Suite 910 Cleveland, OH 44113

For Consolidated Church Financial Co.

Anthony A. Cox 118 W. Streetsboro Street, Suite 95 Hudson, OH 44236

For Artis F. Caver

Robert Smith, III 75 Public Square, Suite 333 Cleveland, OH 44113

ATTORNEY FOR APPELLEE A. Clifford Thornton

-CONTINUED-

-ii- Peckinpaugh & Thornton, LLC Three Commerce Park Square 23230 Chagrin Boulevard, Suite 605 Cleveland, OH 44122-5451

N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct. Prac.R. II, Section 2(A)(1).

[Cite as Harvest Missionary Baptist Church v. Caver, 2008-Ohio-2369.]

CHRISTINE T. McMONAGLE, J.: {? 1} In January 2006, plaintiff-appellee, Harvest Missionary Baptist Church,

Inc., ("Harvest Missionary" or "the church") initiated an action against defendantsappellants Artis F. Caver ("Caver"), Dale Edwards ("Edwards"), Dejan Performing Arts and Learning Center, Inc. ("Dejan"), Consolidated Church Financial Co., LLC ("Consolidated Church"), and D & E Communications, Inc. ("D & E Communications") (collectively "the Edwards defendants"). Caver was the former pastor of the church and Edwards was an officer and/or owner of the remaining defendants.1

{? 2} The record before us demonstrates that the underlying litigation began when Geauga Savings Bank initiated foreclosure proceedings against the church, which was in default of its $1,700 monthly mortgage payments. Caver apparently had sole control over the church and its finances and did not inform the members of the church and its trustees of the default status of the church's loan. The church's trustees and membership, however, eventually became aware of the status of the loan and that the church's building and property were scheduled for sheriff's sale.

1Three actions were consolidated on appeal: common pleas court case numbers CV-502845 and CV-582518 and municipal court case number 2006 CVG 13942. The judgment in CV-582518 (Court of Appeals No. 89921), however, is the only judgment upon which appellants have advanced any argument as to error. The other two cases (CV502845, Court of Appeals No. 89873 and 2006 CVG 13942, Court of Appeals No. 90149) are therefore dismissed, as no allegations as to error have been made.

{? 3} The congregation confronted Caver, and in an attempt to redeem the church from foreclosure, he devised a plan to save the church. The plan required Edwards to loan money to the church to pay off its mortgage and the church to deed the property to Edwards' business, Dejan. It was the church's understanding that Dejan would merely "hold" the deed to the church as collateral for the loan, and would only file the deed as a "last resort." The trustees agreed to Caver's plan and entered into the purported loan transaction. Contrary to the church's understanding, Dejan filed the deed the day after it was executed. Edwards then attempted to lease the building back to the church for $9,100 per month for five years. The church refused to sign the lease agreement (Caver signed it, but the trustees would not). The church further contended that on the same day Dejan acquired the deed to the church, Edwards formed another company, Consolidated Church, which purchased the delinquent note and mortgage from Geauga Savings Bank for $225,000.

{? 4} The church subsequently filed suit against Caver, Edwards, and the Edwards' defendants, alleging fraudulent transfer and seeking an accounting and money damages. One of the attorneys involved in the litigation, Robert Passov, who represented Edwards, Dejan, and D & E Communications, became seriously ill during the pendency of the case. Attorney Anthony Cox represented the remaining Edwards defendant, Consolidated Church. Attorney Robert Smith, III represented Caver.

{? 5} The case was originally set for a November 13, 2006 jury trial. On that date, Caver, Consolidated Church and the other Edwards defendants requested continuances.2 The court granted the continuances based on attorney Passov's illness, and continued the case until December 1, 2006, stating, "at which time settlement discussions will resume." The docket indicates that "all counsel" were present for the December 1 hearing, and that trial was set for March 1, 2007. (A subsequent docket entry states that trial was set for March 2, 2007.)

{? 6} On February 23, 2007, attorney Cox filed a notice of appearance on behalf of all the Edwards defendants. On that same date, attorney Cox also filed a motion for continuance, again, on behalf of all the Edwards defendants. Attorney Cox also filed a motion in limine and trial brief on behalf of Edwards.

{? 7} Edwards and attorneys Cox and Smith appeared for trial; attorney Passov was not present. Edwards asked the court to continue the trial until April because attorney Passov was too ill to be present. The court denied Edwards' request, stating "[e]veryone was aware back in November 2006 that it might be that Mr. Passov could not continue with this case, so some contingency plans had or should have been made and apparently they weren't."

{? 8} The case proceeded to a jury trial. Despite attorney Cox's previous filings, Edwards represented himself pro se, and Dejan and D & E Communications

2Attorney Cox filed on behalf of Consolidated Church and Attorney Smith filed on behalf of Caver and all of the Edwards defendants, including Consolidated Church.

were not represented. Consolidated Church was represented by attorney Cox. On March 8, 2007, the parties purportedly reached a settlement. The agreement, as read into the record, was that Dejan would deed the church property back to Harvest Missionary in exchange for the church paying Edwards $30,000 at the rate of $500 per month. The transaction was to be evidenced by a promissory note and secured by a mortgage on the church premises. All claims against the Edwards defendants were to be dismissed with prejudice. The record indicates that each member of the Board of Trustees for Harvest Missionary was polled by telephone by its chairman, Robert Jackson; Jackson reported that each trustee approved the terms of the settlement. All parties participated in the settlement, including Edwards.

{? 9} Further, Edwards, Caver (and his attorney Smith) and Consolidated Church (and its attorney Anthony Cox) met and worked out a purported settlement between Edwards' companies and Caver, the terms of which were to be confidential.3

{? 10} On March 12, 2007, Edwards stated that he believed that what had occurred on March 8 were discussions of a possible settlement, and that the boards of the Edwards' companies did not agree to the terms of the proposed settlement.

3As will be set forth later, the court held a hearing on the church's motion to enforce the settlement. The testimony at the hearing established that Edwards would receive from Caver $50,000 within 45 days, with the remainder of $290,000 to be paid at the rate of $4,000 per month. Edwards would also receive a promissory note secured by mortgages on the homes of two members of Caver's new church. Upon payment of the settlement, Caver was to receive a release as to all claims.

Harvest Missionary made an oral motion to enforce the settlement agreement. The court then held an exhaustive evidentiary hearing in order to determine if the parties had, in fact, reached an agreement.

{? 11} On March 15, 2007, the court granted the church's motion to enforce the settlement, outlined its terms, and retained jurisdiction to receive and approve a final written settlement document and to enter further orders necessary to effectuate the settlement. The settlement documents were subsequently drafted; the Edwards defendants refused to execute them.

{? 12} The court issued an entry containing the final agreement. The judgment ordered the Edwards defendants to cooperate with the settlement agreement, and that upon their failure to cooperate, the church's attorney was given the authority, pursuant to Civ.R. 70, to prepare and execute a deed transferring the church property from Dejan to Harvest Missionary, and to execute and file all settlement documents. The court again retained jurisdiction to issue orders necessary for the implementation of the settlement.

{? 13} The Edwards defendants failed to cooperate, and the church's attorney prepared, signed and recorded a warranty deed transferring the church property from Dejan to Harvest Missionary. Counsel for the church also dismissed all actions. The Edwards defendants raise six assignments of error for our review.

{? 14} The sixth assignment of error reads as follows:

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