375+ # 0384

I visited the web site of the Hamilton County Court of Common Pleas to see if the court has any scanned copies of court papers available on line. It does, but you need to register for access, and apparently you need to be (a) an attorney with (b) an Ohio Supreme Court Registration Number, in order to register.

However, anyone can view the docket in the case. Just go to this page -- https://www.courtclerk.org/case.asp -- type A1001370 in the Case Number blank, and click "Submit." This takes you to a Case Summary Page. From the "Case Options" menu on the right, click "Case History." What you will see is the record of an extremely hotly contested litigation, with multiple appeals and motions for findings of contempt of court. Both things are unusual.

I disagree with Jeff Kennedy's interpretation that the appellate court has nullified the parties' settlement agreement. Rather, the First District Court of Appeals (not the Ohio Supreme Court) has ruled that the the Hamilton County Court of Common Pleas (the trial court) committed error when it exercised its jurisdiction and issued orders purporting to enforce the settlement agreement. The Court of Appeals noted that "the parties do not dispute the validity of the forum-selection clause" in the parties' ssettlement agreement, and ruled that the forum-selection clause had divested the Ohio courts of jurisdiction to do anything further in this action.

The docket indicates that Lawson and/or Ford have appealed the ruling of the Court of Appeals. So this dispute is not yet well and truly dead. However, unless the Court of Appeals is overruled, the settlement agreement remains in effect and only the High Court of Justice in London has jurisdiction to adjudicate any disputes arising thereunder. This would include the requests for relief that Lawson and Ford had submitted to the Ohio court, and which formed the basis for the appeal.

 

Upon further review, the orders that the Ohio trial court had made -- and that the Court of Appeals has reversed -- were as follows:

*Granting a July 23, 2013 motion of Florence Swaters (of Belgium) to enforce the Heads of Agreement and to dismiss the Ohio action.
*Specific orders concerning the delivery of the various parts of the Ferrari, the transfer of title, and the disposition of the proceeds from the auction.
*Dismissing all pending claims and counterclaims with prejudice (i.e., final termination on the merits).
*Dismissing the claims of Lawson and Ford prior to the distribution of the proceeds of sale.
*Holding that the Heads of Agreement was enforceable.
*Refusing to find Florence Swaters in breach of the agreement.

My construction of the Court of Appeals opinion is that all these Ohio rulings now cease to exist.

 

I am not sure this is true.

The Supreme Court ruling simply overturned the previous motion and now allows the Ohio Contingent pleadings to be heard. It does not nullify the agreement. Perversely the principal reason for the motion being overturned was an incorrect conclusion that the previous court had the power to grant the motion in the first place. Accordingly it appears that the Ohio Contingent now have the right to have there pleading heard on an agreement that the court believes it has no jurisdiction over.

My take on this is that there is a pot of money sitting in escrow and if the Ohio Contingent make enough noise someone may cough up

 

Thank you for the explanation

 

This is the Ohio Supreme Court ruling of May 28, 2014.
Page Not Found

Take note of Paragraph 15 and 15. I believe that the words are clear that the Heads of Agreement was nullified by the court.

[Cite as Swaters v. Lawson, 2014-Ohio-2252.]
Civil Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Final Judgment Entered
Date of Judgment Entry on Appeal: May 28, 2014
Graydon, Head & Ritchey LLP, Scott K. Jones and Stacy A. Cole, for Plaintiff-
Appellee Florence Swaters,
Timothy A. Smith, for Defendant-Appellant Kristine Kleve Lawson,
Joseph L. Ford III, pro se,
Gottesman & Associates and Zachary Gottesman, for Intervenor-Appellee.
Please note: This case has been removed from the accelerated calendar.
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
FLORENCE SWATERS,
Plaintiff-Appellee,
vs.
KRISTINE KLEVE LAWSON,
and
JOSEPH L. FORD III,
Defendants-Appellants,
and
CHRISTOPHER GARDNER,
Intervenor-Appellee.
:
:
:
:
:
:
:
:
:
:
APPEAL NOS. C-130604
C-130627
TRIAL NO. A-1001370
O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS
2
HILDEBRANDT, Judge.
{¶1} Defendants-appellants Kristine Kleve Lawson and Joseph L. Ford
III appeal the judgment of the Hamilton County Court of Common Pleas granting a
motion to enforce a settlement agreement and dismissing all claims filed in a dispute
over the ownership of a vintage automobile.
Ownership Claims
{¶2} Plaintiff-appellee Florence Swaters is a resident of Belgium. In
February 2010, she filed a complaint alleging that her father Jacques Swaters had
purchased the chassis of a vintage Ferrari that had been previously reported stolen in
Ohio from Karl Kleve, Lawson’s father. According to the complaint, the automobile
had been cleared for sale by Belgian authorities, and Jacques Swaters had purchased
the car in good faith. Swaters sought possession of the remaining parts of the vehicle
from Lawson and others, asserting that her father had settled all ownership issues
with Kleve.
{¶3} Lawson, as a beneficiary of Kleve’s estate, filed an answer and
counterclaim in which she alleged that Jacques Swaters and others had wrongfully
gained possession of the car. The dispute over the ownership of the Ferrari
continued for several years, with Ford and intervenor-appellee Christopher Gardner
also asserting interests.
{¶4} In March 2013, the parties executed a document titled “Heads of
Agreement.” The purpose of the agreement, according to its own terms, was “to
extinguish all claims and counterclaims” among the parties in relation to the Ferrari.
The agreement provided for delivery of the various automobile parts to an auction
house in London and for distribution of the proceeds after the car had been sold.
OHIO FIRST DISTRICT COURT OF APPEALS
3
{¶5} The agreement identified the parties as the “BC,” the Belgian
contingency, and the “OC,” the Ohio contingency. Paragraph 2 of the agreement
stated the following:
All claims and counterclaims between BC and OC whether, already
asserted or not, [sic] are hereby waived and permanently extinguished on
distribution of the funds from the sale to the signees of this agreement.
BC and the OC parties will promptly enter an agreement discontinuing all
action in Ohio in such form as is appropriate under Ohio law.
{¶6} Although Paragraph 2 of the agreement made reference to
dismissal under Ohio law, Paragraph 12 stated that “[t]his Agreement shall be
governed by English law and any dispute in relation to it will be determined by the
High Court of Justice in London.”
{¶7} On July 23, 2013, Florence Swaters filed a motion to enforce the
Heads of Agreement and to dismiss the action. On August 19, 2013, the trial court
issued a judgment entry granting the motion. In its entry, the court made specific
orders concerning the delivery of the various parts of the Ferrari, the transfer of title,
and the disposition of the proceeds from the auction. In the same judgment entry,
the court dismissed all pending claims and counterclaims with prejudice.
The Motion to Dismiss the Instant Appeal as Moot
{¶8} As a threshold issue, we must address the appellees’ motion to
dismiss the appeals on the basis that judgment has been satisfied and that the
appeals are therefore moot. In support of the motion, Swaters and Gardner have
submitted an affidavit and other documents purporting to demonstrate that Lawson
and Ford have fulfilled their obligations under the agreement and under the trial
court’s order enforcing that agreement.
OHIO FIRST DISTRICT COURT OF APPEALS
4
{¶9} We find no merit in the motion to dismiss. The affidavit and other
exhibits submitted to this court by Swaters and Gardner were not before the trial
court and are not part of the appellate record within the meaning of App.R. 9(A).
See, e.g., Willis v. Martin, 4th Dist. Scioto No. 06CA3053, 2006-Ohio-4846, ¶ 24
(affidavit submitted to the court of appeals but not to the trial court was not
cognizable under App.R. 9). Thus, we cannot consider those materials, and we
hereby overrule the motion to dismiss.
The Trial Court’s Enforcement of the Settlement Agreement
{¶10} We turn now to the merits of the appeals. In three related
assignments of error, Lawson and Ford argue that the trial court erred in dismissing
their claims prior to the distribution of the proceeds of sale; that the court erred in
holding that the Heads of Agreement was enforceable; and that the court erred in
failing to find Florence Swaters in breach of the agreement. Because we conclude
that the trial court erred in failing to enforce the forum-selection clause in paragraph
12 of the agreement, we reverse the judgment.
{¶11} A court must construe a contract as a whole and give effect to each
of its provisions if it is reasonable to do so. Saunders v. Mortensen, 101 Ohio St.3d
86, 2004-Ohio-24, 801 N.E.2d 452, ¶ 16. The court must enforce the plain and
ordinary meaning of the contract if its terms are unambiguous. Adaranijo v. Morris
Invest. Co., 1st Dist. Hamilton No. C-070453, 2008-Ohio-2705, ¶ 6, citing Saunders
at ¶ 9. The construction of a contract is a question of law, and we accordingly review
the judgment of the trial court de novo. Cincinnati Entertainment Assoc., Ltd. v. Bd.
of Commrs. of Hamilton Cty., 141 Ohio App.3d 803, 810, 753 N.E.2d 884 (1st
Dist.2001).
OHIO FIRST DISTRICT COURT OF APPEALS
5
{¶12} “Forum-selection clauses are ‘presumptively valid’ and have
generally been enforced.” Zilbert v. Proficio Mtge. Ventures, L.L.C., 8th Dist.
Cuyahoga No. 100299, 2014-Ohio-1838, ¶ 20, citing Conway v. Huntington Natl.
Bank, 10th Dist. Franklin No. 11AP-1105, 2013-Ohio-1201.
{¶13} In this case, the parties do not dispute the validity of the forumselection
clause. The clause unambiguously requires any dispute arising under the
Heads of Agreement to be resolved in the High Court of Justice in London. Thus, the
trial court erred in enforcing the terms of the Heads of Agreement, because the
forum-selection clause divested it of any authority to implement the agreement. And
because the trial court’s dismissal of all claims was based on the erroneous premise
that the court had the authority to enforce the agreement, the granting of the motion
to dismiss was also improper.
{¶14} Therefore, to the extent that Lawson and Ford contend that the
trial court erred in enforcing the Heads of Agreement and in dismissing the claims,
we sustain the assignments of error.
Conclusion
{¶15} We reverse the judgment of the trial court and enter judgment
denying the motion to enforce the Heads of Agreement and reinstating the pending
claims dismissed by the trial court.
Judgment reversed and final judgment entered.
CUNNINGHAM, P.J., and FISCHER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.

 

if the comprehension is correct... the foundation for assignment of documents / decisions allowing for original delivery of ownership / documents to the London/ UK court / auction house is flawed with defect and reversed by the appeals court... precluding any subsequent court from ruling or effecting a transfer of ownership.. the UK court / or anyone else has no standing without a clear conveyance

 

Again I respectfully disagree with Jeff Kennedy, and now also with cheesey's construction of the Court of Appeals opinion. Judicial opinions are rarely written for clarity, and this one is a typical example. But if you cut through all the verbiage you'll see that the Court of Appeals has held that the parties entered into a binding contract in settlement of all disputes concerning #0384; that one provision of that contract was a forum selection clause, vesting jurisdiction in the High Court of Justice in London; and that the Ohio trial court's rulings on disputes concerning #0384 were void for lack of jurisdiction. The big picture ruling is that the Heads of Agreement is binding on the parties. I expect that Mr. Lawson will verify these things, if he chooses to add further to this thread.

 

For absolute clarity, I probably should add that, if any party does continue to dispute the binding nature of the Heads of Agreement -- e.g., that one party's breach of a term of the agreement has excused the performance of the other party, or has abrogated the agreement altogether -- the Ohio Court of Appeals has held that this dispute must be addressed to the London court.

 

This will be expensive with the added risk of costs being awarded against the loser.

 

I will post a my London attorney's letter to Bonhams. It is time for the classic car community to see firsthand what Bonhams did, and under what circumstances.

Joe
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I went from thinking..... Let's auction it to get the parties to see how much more they can get by settling to something....

Now that this level has been hit, I can now see how this creates a whole new reason to argue....

I don't think this is now going to be settled quickly unless the market tanks.

 

Welcome back!

 

Joe. Thank you for adding more detail albeit from your side only

Two questions

What was wrong with the heads of agreement ? You signed it in March and then sort to frustrate and claim it invalid

What is wrong with 50% of the proceeds as an equitable solution ? £5 million is a lot more then was claimed at the outset

 

Sorry Joe I think you have already answered the first question in your earlier post

 

I agree with 180 Out. Your post are on target, and legally fairly accurate. The Court of Appeals opinion is simple – This is a Finial Judgment Entry. It says and means ‘’FINIAL’’. The decision takes into account that the “Forum-selection clauses are ‘presumptively valid’ and have generally been enforced.” It states that : Quote : ‘’In this case, the parties do not dispute the validity of the forumselection’’. The forum selection is The High Court of Justice in London.

Had Ford or Lawson wanted to ‘’get out of the deal with Bonhams’’ they would have to enter the London Court to press to annul the contract with Bonhams. That would mean placing a huge bond in the amount of the Ferrari and to show why Bonhams did something wrong. As I see it, Lawson/Ford’s scheme was that if no sale took place in September 2013, hence the agreement was void. Such a tactical delay in delivery of the Ferrari parts by Ford/Lawson to late for the September 2013 seems the ‘’set-up’’ for such a sting to annul the agreement. Such a delay in the sale date would not be material to the agreement given the new sale takes place within a reasonable period of time. The court would not forget that the delay was caused by Ford/Lawson in the first place.

From the signing of the Bonhams agreement on March 2013 to June 27,2014 neither Ford or Lawson did anything in the selected Forum to exercise their claim regarding the Heads Of Agreement. It was up to them to show cause in the London High Court.


Game over. Finial Judgment entered. Car sold.

 

For 'Finial' read 'Final'?

DCN

 

Come on Doug! Is that the best reply? Sorry for the typo...English is not my first language.
We both saw #0384 sell at Bonhams on Friday and the new owner has the Ferrari 375 Plus in his possession and is enjoying it as he should.
He is now the 100% legal owner and these people on this thread are only trying to start more legal headaches for both Bonhams and the buyer.
**Yes I know who the buyer is but will not offer his name to this lot.
This thread is getting old and boring. Some of the members should 'get a life' and leave it alone.
The Ferrari 375 Plus #0384 has been sold and paid for. Can't wait to see it race again.
Simple as that...END of STORY!

 

there cannot be a valid sale, US courts have nullified the documents as presented to Bonhams...

litigants posted a alibi lis pendens warning, which Bonhams ignored by continuing with sale... making a legal transfer of ownership impossible ( by definition )

Next Chapter... Litigation to nullify sale and litigation against Bonhams for acting in a reckless manner

 

Same thing with knobs on

 

Isn't there still some question as to how the car was acquired by the Belgian Contingent? Was it in fact a stolen car?

Perry

 

GO BACK TO SPEEP AND PERHAPS GET INTO THE CHEESEY BURGER BUSINESS.
WHO ARE YOU?

 

Probably a better question for you to answer along with a few of the other anonymous yet outspoken newbies who have joined simply to contribute their slant to this thread.

Keep in mind, confidence is good but over confidence can be dangerous.

>8^)
ER

 

If our esteemed new colleague Max Vito is in fact going to be answering questions from those of us in the hoi polloi, perhaps he could help with this one:
http://www.ferrarichat.com/forum/143207226-post1165.html

 

YOU are black flagged, and have to go back to Page 1, and read the entire thread!

Of course it was stolen, from Kleve's yard where it was dismantled, and rusting into the mud. it didn't drive itself into Swater's garage......

 

Actually that's NOT true, in my experience...I take the Ohio title, and surrender it to Texas, for a new one, were I the legal buyer of this car, which sadly, I am not.

I guess Texas then might mail it back to them, but I doubt it.

This car should go to Japan, they hide them in Japan....or maybe a Russian mobster, they would not care...