Page 37 - November 2018 | Cleveland Metropolitan Bar Journal

BUSINESS LITIGATION

agreed with Khouri and vacated the settlement necessary steps to ensure your counterparty insurance companies in claims involving allegations
agreement. Thus, the case is distinguishable has been provided with access to all material of professional misconduct. He has been a CMBA
from Turoczy Bonding Co. in the sense information in a timely manner and that member since 1996. He can be reached at (216)
new information came to light after the your client is not withholding documents or 539-9370 or jsimms@koehler.law.
settlement had be reached that was material information the other side is entitled to receive.
to the issues and the Court refused to honor Because, if material information exists but isn’t
the terms because of Berryhill’s fraudulent discovered until after a settlement has been Mallory A. Rohr is an associate at
misrepresentations. reached, a party may not — and likely won’t Koehler Fitzgerald LLC, where she
As to mutual mistake, Ohio law recognizes — be bound to honor the agreement. Simple works on commercial litigation and
that a settlement based on a mutual mistake as contract defenses will help support a claim Out-of-Network defense. She is a
to a material fact may be rescinded. A mistake that the settlement, out of fairness, should not graduate of Capital University Law
is material to a contract when it is “a mistake as be enforced, and Ohio precedent shows these School. Before joining Koehler Fitzgerald LLC,
to a basic assumption on which the contract was defenses are available. Mallory was the National Coordinating Analyst
made [that] has a material effect on the agreed for a large national law firm. Prior to that, she
exchange of performances.” 1 Restatement of served as an intern at the White House during the
the Law 2d, Contracts (1981) 385, Mistake, Joseph S. Simms is a partner at Obama Administration in Washington D.C., the
Section 152(1). Thus, the intention of the Koehler Fitzgerald LLC, where his Ohio Department of Rehabilitation and Correction
parties must have been frustrated by the mutual practice is focused on business and in Columbus, Ohio, and the Court of Common
mistake. Reilley v. Richards, 69 Ohio St. 3d 352, commercial litigation, complex Pleas of Franklin County, Ohio. Mallory is currently
352-353, 632 N.E.2d 507, 508-509, 1994 Ohio securities litigation and arbitration, an active member of the Women In Law Section
LEXIS 1062, *2-3, 1994-Ohio-528. “Regarding financial institution litigation, regulatory of CMBA and volunteers with the Cleveland
settlement agreements, ‘if each party is mistaken investigations and inquiries, and broker-dealer Homeless Legal Assistance Program. She has been
as to a material fact of settlement, then there liability defense, in which he represents brokers, a CMBA member since 2017. She can be reached
could be no meeting of the minds, and thus no broker-dealers, investment advisors, banks, and at (216) 539-9370 or mrohr@koehler.law.
valid contract for settlement.’” KMV V Ltd. v.
Debolt, 2011-Ohio-525, P27, 2011 Ohio App.
LEXIS 473, *10, 2011 WL 379138 quoting
Connolly v. Studer, 7th Dist. No. 07 CA 846, IP protection
2008 Ohio 1526, at ¶24.
Ingle-Barr, Inc. v. Scioto Valley Local Sch. reimagined.
Dist. Bd., 2009-Ohio-5345, P18, 2009 Ohio
App. LEXIS 4510, *9-10, 2009 WL 3214561, is
an example of a case in which a settlement
was found to be unenforceable due to
mutual mistake. In Ingle-Barr, Inc., the
plaintiff sought to enforce a settlement
agreement between the parties even though
it was later discovered that plaintiff had
already received payment for a portion
of the damages sought in the matter.
Plaintiff neither disputed nor admitted the
overpayment, but instead argued that the
settlement agreement should nonetheless
be enforced as a negotiated contract. The We work with you to develop
court, however, refused, finding that the innovative intellectual property
agreement had resulted from a mutual protection strategies to safeguard
mistake between both parties as to how
much money the plaintiff had already your most valuable business assets.
received. Unlike Turoczy Bonding Co., in Contact: Kristen M. Hoover 216.696.1422
which the defendant sought to avoid the
agreement because of a change of heart,
the parties to the agreement in Ingle-Barr,
Inc. mutually misunderstood a fact material
to the settlement and the Court, therefore, Trusted Advisors. Respected Advocates. SM
would not enforce its terms. www.mccarthylebit.com
Bottomline, it is important to take the
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