Geis v. Markling
Citation2023 Ohio 4506
Date Filed2023-12-13
Docket30494
JudgeSutton
Cited0 times
StatusPublished
Syllabus
Memorandum of Understanding, Rules of Professional Conduct, contract, material adverse effect
Full Opinion (html_with_citations)
[Cite as Geis v. Markling,2023-Ohio-4506
.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
VICKI J. GEIS C.A. No. 30494
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MATTHEW J. MARKLING, et al. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellants CASE No. 2022 CV 00015
DECISION AND JOURNAL ENTRY
Dated: December 13, 2023
SUTTON, Presiding Judge.
{Ā¶1} Defendant-Appellant, Matthew Markling, appeals from the judgment of the
Summit County Court of Common Pleas, Probate Division. This Court affirms.
I.
Relevant Background
{Ā¶2} This appeal arises from a complaint for breach of trust, fraud, conversion, and
removal filed by Plaintiff-Appellee, Vicki Geis, against her cousin Matthew Markling (āMr.
Marklingā) in his individual capacity, as Trustee of the John V. Markling, Jr. Trust dated November
21, 2012, as amended, and as Executor of the John V. Markling, Jr. Estate. Ms. Geis also named
as defendants John V. Markling, Jr.ās grandchildren, D.M., N.M., I.M. B.D., and B.M., beneficiaries
of the John V. Markling, Jr. Trust.1 Ms. Geis then filed a subsequent motion to remove Mr.
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John V. Markling, Jr., the decedent, is Mr. Marklingās father and Ms. Geisā uncle.
Further, D.M., N.M., and I.M., are Mr. Marklingās children, and B.D. and B.M. are Mr. Marklingās
niece and nephew.
2
Markling as Trustee, along with a supplemental motion and affidavits. Mr. Markling, through
counsel, filed a memorandum opposing the motion to remove and a motion to dismiss the complaint
in all three of Mr. Marklingās capacities. After filing the motion to dismiss, responding to Ms.
Geisā motion to remove Mr. Markling as Trustee, and responding to Ms. Geisā first set of discovery
requests, Mr. Marklingās counsel, Carlile Patchen and Murphy, LLP (āCPMā), who represented
Mr. Markling in his capacities as Executor and Trustee, filed an expedited motion to withdraw as
counsel. Mr. Markling responded in opposition and CPM replied. Mr. Markling filed a surreply
without seeking leave of court. The trial court granted CPMās expedited motion to withdraw. That
same day, Mr. Marklingās new counsel, representing him in his capacities as Executor and Trustee,
filed a notice of appearance.
{Ā¶3} Ms. Geis, with leave of court, filed her first amended complaint and another motion
to remove Mr. Markling as Trustee. Mr. Markling, through new counsel, filed a motion to dismiss
the first amended complaint on behalf of Mr. Markling in all three capacities and on behalf of D.M.,
N.M., and I.M. Mr. Markling also filed a Counterclaim. The record reflects Mr. Markling, with
counsel representing him in his individual capacity, filed several motions against Ms. Geis, many
of which his new counsel withdrew.
{Ā¶4} The trial court set this matter for mediation and denied Mr. Marklingās motion to
dismiss. Further, the trial court indicated if the mediation was not successful, it would then rule on
other outstanding motions. On August 9, 2022, the parties, with counsel present, reached an
agreement in mediation as to all issues and signed a Memorandum of Understanding (āMOUā).
The mediator filed a report of mediation indicating the matter was ā[s]ettled pursuant to agreement
between the parties.ā On September 27, 2022, Ms. Geis filed a motion to adopt the MOU as an
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order of the trial court. Mr. Markling did not oppose this motion. In adopting the MOU, the trial
court stated, in relevant part:
The [c]ourt reviewed the signed [MOU] that resulted from [m]ediation. The [c]ourt
approves the [MOU] and incorporates the same in this Judgment Entry as an [o]rder
of the [c]ourt. The [c]ourt hereby dismisses the [c]omplaint and [c]ounterclaim
with prejudice. The [c]ourt retains jurisdiction to enforce the [MOU].
(Emphasis in original.) Subsequent to the trial courtās adoption of the MOU, Mr. Markling,2
representing himself in all three capacities as well as D.M., N.M., and I.M., filed a notice of
satisfaction stating:
While [p]laintiff/[c]ounterclaim [d]efendant [Ms. Geis] has failed to comply with
the terms of the August 9, 2022 [MOU], [d]efendants/[c]ounterclaimants John V.
Markling Jr. Estate; the John V. Markling Jr. Trust dated November 21, 2012, as
amended; Matthew John Markling, individually and in his capacity as Executor of
the John V. Markling, Jr. Estate and as Trustee of the John V. Markling, Jr. Trust
dated November 21, 2012, as amended; [D.M.]; [N.M.]; and [I.M.] (collectively,
ā[d]efendants/[c]ounterclaimantsā) give notice that [they] have complied with the
legally enforceable terms of the August 9, 2022 [MOU][.]
{Ā¶5} Mr. Markling now appeals from the trial courtās orders denying the motion to
dismiss, allowing CPM to withdraw as counsel, and adopting the MOU as an order of the court,
and raises three assignments of error for our review. To aid our analysis, we discuss Mr. Marklingās
assignments of error out of order.
II.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN APPROVING THE CONFIDENTIAL
MEMORANDUM OF UNDERSTANDING.
2
Mr. Markling is a licensed attorney in the State of Ohio.
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{Ā¶6} In his second assignment of error, Mr. Markling argues the trial court erred in
adopting the MOU as an order of the court. Specifically, Mr. Markling argues there is no evidence
in the record that a contract exists or that a breach of contract occurred between the parties.
{Ā¶7} āWhere possible, it is generally within the discretion of the trial judge to promote
and encourage settlements to prevent litigation.ā Rulli v. Fan Co., 79 Ohio St.3d 374, 376(1997), citing In re NLO, Inc.,5 F.3d 154
(6th Cir.1993). āThe result of a valid settlement agreement is a contract between parties, requiring a meeting of the minds as well as an offer and an acceptance thereof.ā Rulli at 376 citing Noroski v. Fallet,2 Ohio St.3d 77, 79
(1982). āTo constitute a valid settlement agreement, the terms of the agreement must be reasonably certain and clear.āRulli at 376
. See also Murral, Inc. v. Shevetz Ents., L.L.C., 7th Dist. Mahoning No. 15 MA 0189, 2016-
Ohio-7040, Ā¶ 31, citing Futey v. Director, 5th Dist. Richland No. 04 CA 14, 2004āOhioā5400, Ā¶
23. (āOhio case law indicates, as a general proposition, a memorandum of understanding is viewed
as a contract.ā). Further, ā[w]here the meaning of terms of a settlement agreement is disputed, or
where there is a dispute that contests the existence of a settlement agreement, a trial court must
conduct an evidentiary hearing prior to entering judgment.ā Rulli at syllabus.
{Ā¶8} Here, as a result of mediation, Ms. Geis and Mr. Markling entered into the
following MOU:
In resolution of any [and] all claims in Case No. 2022 CV 00015 and in resolution
of any and all additional claims arising from the death of John V. Markling,
including but not limited to claims under the Trust Agreement, Matthew J.
Markling, individually and as Trustee and Executor, and Vicki J. Geis agree as
follows:
The Trust will pay to [Ms.] Geis the sum of $100,000 in consideration for release
of her claims as a beneficiary and any additional claims against [Mr.] Markling
individually;
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[Ms.] Geis will take from the Comet Road house all of her own personal property.
The parties will exercise good faith in determining the identification of [Ms. Geisā]
property;
The settlement payment shall be held in escrow by [Mr.] Marklingās counsel and
released to [Ms.] Geis upon confirmation that [Ms.] Geis has removed her own
personal property and not removed any other property;
The parties will agree to mutual releases, confidentiality clauses and non-
disparagement clauses; and
The Trust will pay any Mediator fees not otherwise paid by the [c]ourt.
The MOU is signed by Ms. Geis and Mr. Markling in his individual capacity and as Executor and
Trustee. Additionally, underneath the signatures of the parties, the MOU states:
Subsequent to [Mr.] Marklingās signature above, counsel agreed that [Ms. Geisā]
personal property includes her personal effects and all items identified as her
property in the One Drive link. [Ms. Geis] may retain the washer and oven if she
demonstrates that she paid for the same. Counsel further agreed that the settlement
payment shall be held in Calfeeās escrow account.
The MOU is also signed by both partiesā counsel.
{Ā¶9} The record reveals that, forty-nine days after the partiesā mediation, Ms. Geis filed
a motion to adopt the MOU with the trial court. Mr. Markling did not oppose the motion or raise
any issues with the trial court regarding the validity or contents of the MOU. Fifteen days after Ms.
Geisā motion was filed, the trial court issued a judgment entry approving the MOU, dismissing the
complaint and counterclaim with prejudice and retaining jurisdiction to enforce the MOU. Further,
relevant to this discussion, twenty-three days after the trial court issued its judgment entry, Mr.
Markling filed a notice of satisfaction wherein he claimed he, along with D.M., N.M., and I.M.,
complied with the ālegally enforceable termsā of the MOU, but Ms. Geis failed to comply with the
terms of the MOU. Indeed, prior to the trial courtās adoption of the MOU, Mr. Markling did not
challenge whether an MOU existed between himself and Ms. Geis.
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{Ā¶10} Based upon this record, we cannot say the trial court erred in adopting the MOU as
an order of the court.
{Ā¶11} Accordingly, Mr. Marklingās second assignment of error is overruled.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN DENYING THE MOTION TO DISMISS
THE AMENDED COMPLAINT.
{Ā¶12} In his first assignment of error, Mr. Markling argues the trial court erred in denying
his motion to dismiss the amended complaint. Based on our resolution of Mr. Marklingās second
assignment of error, his first assignment of error is moot, and we decline to address it. App.R.
12(A)(1)(c).
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED IN GRANTING THE EXPEDITED MOTION
TO WITHDRAW AS COUNSEL.
{Ā¶13} In his third assignment of error, Mr. Markling argues the trial court erred in granting
CPMās expedited motion to withdraw as counsel. Specifically, Mr. Markling argues the trial courtās
āattitudeā in granting the expedited motion to withdraw is āunreasonable, arbitrary, and
unconscionable,ā and therefore, an abuse of discretion. For the following reasons, we disagree.
{Ā¶14} Pursuant to Prof.Cond.R. 1.16:
(b) a lawyer may withdraw from the representation of a client if any of the following
applies: (1) withdrawal can be accomplished without material adverse effect on the
interests of the client; (2) the client persists in a course of action involving the
lawyerās services that the lawyer reasonably believes is illegal or fraudulent; (3) the
client has used the lawyerās services to perpetrate a crime or fraud; (4) the client
insists upon taking action that the lawyer considers repugnant or with which the
lawyer has a fundamental disagreement; (5) the client fails substantially to fulfill
an obligation, financial or otherwise, to the lawyer regarding the lawyerās services
and has been given reasonable warning that the lawyer will withdraw unless the
obligation is fulfilled; (6) the representation will result in an unreasonable financial
burden on the lawyer or has been rendered unreasonably difficult by the client; (7)
the client gives informed consent to termination of the representation; (8) the
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lawyer sells the law practice in accordance with Rule 1.17; (9) other good cause for
withdrawal exists.
(c) If permission for withdrawal from employment is required by the rules of a
tribunal, a lawyer shall not withdraw from employment in a proceeding before that
tribunal without its permission.
(d) As part of the termination of representation, a lawyer shall take steps, to the
extent reasonably practicable, to protect a clientās interest. The steps include giving
due notice to the client, allowing reasonable time for employment of other counsel,
delivering to the client all papers and property to which the client is entitled, and
complying with applicable laws and rules. Client papers and property shall be
promptly delivered to the client. āClient papers and propertyā may include
correspondence, pleadings, deposition transcripts, exhibits, physical evidence,
expert reports, and other items reasonably necessary to the clientās representation.
(Emphasis added and omitted.)
{Ā¶15} Here, because Mr. Markling would not agree to terminate the attorney-client
relationship, CPM filed an expedited motion to withdraw with the trial court. In its expedited
motion, CPM stated, in relevant part:
This case is in its infancy. The [c]ourt has not yet issued a case management
schedule, and Mr. Marklingās new counsel in his individual capacity has already
made a litany of filings, some of which touch on Trust and Executor issues. This
[c]ourt has not yet granted [Ms. Geisā] [m]otion for [l]eave to [f]ile an [a]mended
[c]omplaint. The only responsive filing on the calendar is Mr. Marklingās
opposition to [Ms. Geisā] [m]otion for [l]eave, which he will file through his
individual counsel. The [m]otion for [l]eave will not be unopposed. Further, the
filing of the [m]otion for [l]eave effectively mooted Mr. Marklingās [m]otion to
[d]ismiss. Because of the [m]otion for [l]eave, there is no responsive deadline
looming to reply in support of the [m]otion to [d]ismiss. [CPMās] withdrawal can
be accomplished without material adverse effect on Mr. Markling.
Without disclosing confidential attorney-client communications, [CPM] and Mr.
Markling have a fundamental disagreement as to the course of the litigation.
Additionally, other issues have arisen necessitating [CPMās] withdrawal. Mr.
Markling has made certain statements and allegations regarding [CPMās]
representation, providing an extensive list of alleged examples, that has created an
adversarial relationship between [CPM] and Mr. Markling. In the same way an
attorney cannot represent parties adverse to each other in the same transaction,
[CPM] cannot represent Mr. Markling while adverse to him in defending itself
against his allegations. Such allegations, even though meritless, cannot be
reconciled with ongoing representation. It is unreasonable to require any attorney
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to continue to represent a client when an adversarial relationship has arisen between
client and counsel. Indeed, such is impossible to do so. The relationship between
[CPM] and Mr. Markling has reached the point where [CPM] cannot continue to
represent Mr. Markling in any capacity in accordance with the Ohio Rules of
Professional Conduct.
Notably, as indicated above, Mr. Marklingās new counsel, representing him in his capacities as
Executor and Trustee, filed a notice of appearance the same day the trial court granted CPMās
expedited motion to withdraw.
{Ā¶16} Based upon this record, which supports CPMās position that its withdrawal was
accomplished without material adverse effect on the interests of Mr. Markling, we cannot say the
trial court abused its discretion in allowing CPM to withdraw as counsel in this matter.
{Ā¶17} Accordingly, Mr. Marklingās third assignment of error is overruled.
III.
{Ā¶18} Mr. Marklingās second and third assignments of error are overruled, and his first
assignment of error is moot. Further, Ms. Geisā motion for sanctions and attorney fees is denied.
The judgment of the Summit County Court of Common Pleas, Probate Division, 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 Summit, 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.
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
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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 Appellants.
BETTY SUTTON
FOR THE COURT
HENSAL, J.
FLAGG LANZINGER, J.
CONCUR.
APPEARANCES:
MATTHEW J. MARKLING, Attorney at Law, pro se, Appellants.
MATTHEW S. BROWN and BRYAN M. PRITIKIN, Attorneys at Law, for Appellee.
LEE M. GROSSCUP, Attorney at Law, for Appellee.