Opinion
No. 106289
06-07-2018
DICKSON & CAMPBELL L.L.C. PLAINTIFF-APPELLEE v. JOY MARSHALL DEFENDANT-APPELLANT
FOR APPELLANT Joy L. Marshall, pro se 2745 Scottwood Rd. Columbus, OH 43209 ATTORNEY FOR APPELLEE William P. Campbell Elk & Elk Co. Ltd. 6105 Parkland Blvd., Suite 200 Mayfield Heights, OH 44124
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-07-627533 BEFORE: McCormack, P.J., E.T. Gallagher, J., and Laster Mays, J.
FOR APPELLANT
Joy L. Marshall, pro se
2745 Scottwood Rd.
Columbus, OH 43209
ATTORNEY FOR APPELLEE
William P. Campbell
Elk & Elk Co. Ltd.
6105 Parkland Blvd., Suite 200
Mayfield Heights, OH 44124 TIM McCORMACK, P.J.:
{¶1} Defendant-appellant Joy L. Marshall ("Marshall") appeals from the trial court's journal entry ordering Marshall to pay plaintiff-appellee Dickson and Campbell, L.L.C. ("Campbell") $46,266.20 for attorney fees and expenses. For the reasons that follow, we affirm. Procedural and Factual History
Dickson and Campbell, L.L.C. was the Ohio law firm that initially handled the underlying nursing home malpractice case from which this fee dispute arose. The firm no longer exists. William Campbell was formerly an attorney at Dickson and Campbell, L.L.C. and is pursuing this appeal.
{¶2} This case concerns a dispute over attorney fees from a 2006 nursing home negligence case. The dispute has been ongoing for 12 years. The procedural history of this case is convoluted, as Campbell and Marshall have been litigating the appropriate distribution of attorney fees for over a decade, in this court and others. The following summary of the factual and procedural history comes from this court's decision in Dickson & Campbell, L.L.C. v. Marshall, 8th Dist. Cuyahoga No. 104133, 2017-Ohio-1032:
The dispute arose from the case of Tyus v. Grande Pointe Health Community, et al., Cuyahoga C.P. Case No. CV-05-571328, which was initiated in August 2005 by Campbell on behalf of Bessie Tyus. The gravamen of the complaint was that Tyus had suffered personal injuries due to negligence on the part of Grande Pointe, a nursing home where she had been a patient; other defendants were also named.
In late 2005 or early 2006, Tyus's daughter, Kimberly Tyus, contacted Marshall about her mother's case. Disciplinary Counsel v. Marshall, 142 Ohio St.3d 1, 2014-Ohio-4815, 27 N.E.3d 481, ¶ 7. Kimberly indicated that the family was not satisfied with Campbell's representation; Marshall advised Kimberly that she should remain with Campbell, whose fee contract entitled him to 40 percent of recovery after trial, or 33 1/3 of recovery after a pre-trial settlement. A few days later, however, Kimberly advised Marshall that the Tyus family had decided to retain new counsel, and Marshall agreed to take the case. Kimberly sent Campbell a letter terminating his representation.
Marshall advised Kimberly that, under the doctrine of quantum meruit, Campbell could claim payment for the reasonable value of the services he provided from November 2004 through February 2006. Marshall, therefore, instructed Kimberly to request a statement from Campbell setting his claim for the services he rendered and costs advanced on Tyus's behalf; Kimberly complied.
Campbell sent Kimberly a "settlement memorandum," setting forth $2,943.70 in expenses advanced by his firm; the memorandum did not make mention of any other amounts claimed to be owing by the Tyus family. Kimberly forwarded the memorandum to Marshall and told Marshall that she did not believe that her family owed Campbell any additional fees.
On February 18, 2006, Kimberly entered into a contingent-fee contract with Marshall. The contract specified that Marshall's fee would be one-third of any recovery, plus costs.
In a letter dated February 20, 2006, from Campbell to Kimberly, Campbell confirmed the termination of his services. Campbell also stated in his letter that he intended to assert an attorney's lien on any settlement obtained based on his contingent-fee agreement with Tyus, or, alternatively, under the doctrine of quantum meruit. The letter did not indicate his claim of the value of his services rendered.
The following day, February 21, 2006, Campbell filed a motion to withdraw as counsel in the trial court, and informed the court that he was asserting an attorney's lien for "fees and costs advanced," stating that the value was $2,943.70. Campbell also sent a letter to Marshall, stating a claim for that same value.
In March 2006, approximately one month after she began her representation of Tyus, Marshall settled the case for $150,000. On March 27, 2006, Campbell filed a notice of charging lien with the trial court and a motion to enforce it. Campbell claimed, for the first time, that he had performed 95 percent of the work on the case and requested $47,500 in attorney fees, plus reimbursement for the costs he claimed to have advanced. Because of the uncertainty regarding disbursement of the settlement proceeds, the defendants in the case gave the settlement check to the trial court, which set a hearing date for Campbell's motion.
The hearing on Campbell's motion started on April 28, 2006. Campbell testified about his work on the case and claimed that the value of his services rendered was $47,500 and that he had advanced $2,943.70 in costs and, thus, he sought $50,443.70 out of the settlement proceeds as his compensation. An attorney assisting Marshall started cross-examining Campbell, but before the attorney had concluded, the trial court continued the hearing. Marshall was not able to present her evidence regarding the work she claimed to have performed on the case.
Upon continuing the April 28 hearing, the trial court gave the settlement check to Marshall, and ordered her not to disburse more than $85,000 of the proceeds to Tyus. The court ordered that Marshall put the remaining portion of the proceeds in trust, pending resolution of counsel's dispute. The trial court gave Marshall a copy of a judgment entry memorializing its instructions. The judgment entry was not filed until June 21, 2006, however.
Per the trial court's instruction, Marshall established a trust account for Tyus's benefit, and deposited the settlement proceeds into it on May 1, 2006. Thereafter, the following activity on the account occurred: (1) on May 5, 2006, Marshall wrote herself a check for $1,127.66 as reimbursement for her costs, and distributed $63,352.34 to Tyus; and (2) on May 31, 2006, $241.15 in interest was transferred from the account presumably to the state treasurer for the Legal Aid Fund. Thus, a balance of $85,500 was in the account. Shortly after Marshall had wired the above-mentioned money to Tyus, Kimberly sent $25,000 to Marshall as a "gift." The "gift" came from the settlement funds Tyus had received.
On June 22, 2006, Campbell withdrew his motion to enforce the charging lien, advising the trial court that he would file a post-judgment motion to intervene in the underlying case in order to seek enforcement of the charging lien.
The following day, June 23, the settlement funds in the account were depleted by Marshall. Marshall closed the account.
Although there is some discrepancy in the prior litigation as to exactly how Marshall effectuated the depletion of the funds, the net effect was that she disbursed an additional $60,006.50 to Tyus, and she (Marshall) received an additional $25,493.50 for her claimed fees in the case. The disbursements occurred while the trial court's order directing Marshall how to distribute the settlement funds was still in effect.
On June 26, 2006, Campbell filed a motion to intervene. On August 1, 2006, attorney Cassandra Collier-Williams entered a notice of appearance on behalf of Tyus. The matter was set to continue the hearing on Campbell's request for compensation, and on the morning of the hearing, Marshall withdrew from the case. Following her withdrawal, the trial court ordered Marshall to leave the courtroom, which she did.
Attorney Collier-Williams advised the court that Tyus did not wish to dispute Campbell's fees and, therefore, she would not continue cross-examining him. Collier-Williams informed the court that Tyus's interest vis-a-vis Campbell and Marshall's fee dispute was only that her (Tyus's) attorney-fee obligation would not exceed the amount that the court had ordered Marshall to hold in trust.
The court, therefore, treated Campbell's request for compensation as unopposed, and granted him a judgment in the amount of $50,443.70. The court ordered that Marshall would receive $4,557 as compensation for her work on the case. Marshall never presented testimony or evidence regarding her work on the case.
The trial court memorialized its decision in a judgment entry, and ordered Marshall in that entry to retain $4,557 for herself, and transfer the remaining $60,443 to Collier-Williams, who was to distribute $50,443.70 to Campbell and the remaining $10,000 to Tyus.
In August 2006, Collier-Williams informed the trial court that Marshall had failed to comply with this court's order. Contempt and bankruptcy proceedings followed. In sum, Marshall was unable or unwilling to account for the funds that the trial court had ordered were Campbell's for his representation in the underlying case, she was held in contempt of court, and the amount was not discharged in bankruptcy.
Meanwhile, in June 2007, Campbell had filed this action, alleging that Marshall had engaged in fraud, conversion/theft, embezzlement, and tortious interference with a business relationship. Marshall counterclaimed for fraud, interference with contractual relations, libel, abuse of process, and intentional and negligent
infliction of emotional distress. A different trial court judge than the one who presided over the Tyus proceedings handled this case.(Citations omitted.) Id. at ¶ 3-24.
Campbell filed a motion for summary judgment, seeking judgment on both his claims and Marshall's counterclaims. Marshall also filed a motion for summary judgment, seeking summary judgment in her favor on Campbell's claims. The trial court granted summary judgment in favor of Campbell on his fraud, theft, embezzlement and conversion claims and awarded him a judgment of $50,443.70, the same amount the trial court had awarded him in the Tyus case. Marshall appealed, but this court dismissed the appeal for lack of a final, appealable order because her counterclaims and Marshall's tortious-interference claims remained pending.
In 2012, disciplinary proceedings were instituted against Marshall by disciplinary counsel for the Ohio Supreme Court, and Marshall was disciplined. The discipline consisted of a two-year suspension from the practice of law. Further, the Ohio Supreme Court ordered that Marshall was to "make full restitution" to Campbell "in an amount to be determined by the trial court in this case."
Thereafter, the case was placed back on the trial court's active docket. Campbell dismissed his tortious interference claim, and the trial court issued a judgment rendering judgment in favor of Campbell on Marshall's counterclaims and rendering a judgment for $50,433.70 in his favor. Marshall sought a hearing on the issue of restitution, which the trial court denied as moot.
{¶3} Marshall appealed, and this court affirmed the trial court's granting of summary judgment in favor of Campbell as to the theft/conversion and embezzlement claims. It reversed the trial court's granting of summary judgment in favor of Campbell as to the fraud claim, holding that summary judgment in favor of Marshall was proper as to the fraud claim. Finally, this court found that the trial court abused its discretion in awarding Campbell $50,443.70 "without allowing Marshall an opportunity to be heard and with scant evidence in the record as to Campbell's services vis-a-vis Marshall's services rendered in the Tyus case." Dickson & Campbell, L.L.C., 8th Dist. Cuyahoga No. 104133, 2017-Ohio-1032, at ¶ 43. In light of this abuse of discretion, this court remanded the case to the trial court for a hearing with the parties solely for the determination of the amount of relief Campbell is entitled to pursuant to the doctrine of quantum meruit.
{¶4} The trial court held a quantum meruit hearing on August 15, 2017. The court heard testimony from both Campbell and Marshall as to their respective involvement in the Tyus case, and the parties cross-examined each other. Following this hearing, the trial court issued a journal entry on August 24, 2017, awarding Campbell $43,312.50 in attorney fees plus $2,953.70 in expenses for a total of $46,266.20.
{¶5} Marshall appealed, presenting the following assignments of error for our review:
I. The trial court abused its discretion and issued a judgment contrary to the manifest weight of the evidence when it granted Campbell $46,266.20 under the doctrine of quantum meruit when it failed to apply the standards dictated by the Ohio Supreme Court.Law and Analysis
II. The trial court abused its discretion and issued a judgment contrary to the manifest weight of the evidence when it granted Campbell a judgment of $46,266.20 based upon Marshall's production rather than Campbell's production.
III. The trial court violated Marshall's right to equal protection under the laws when it ignored facts favorable to [Marshall] in order to abrogate her contract and award her a constructive fee of less than $0, transferring her fee to Campbell, granting him more than $1,000 an hour despite the doctrine of quantum meruit.
IV. The trial court abused its discretion, as a matter of public policy, when it promoted the abrogation of lawyer-client contracts, lawyer liability to discharged counsel and fee disputes brought before the court in contravention of the rules of the Ohio Supreme Court, the due process clause, the freedom of contract clause, and equity.
V. Campbell failed to add necessary parties.
VI. The trial court improperly denied the request for jury trial.
VII. The trial court improperly abrogated Marshall's contract.
{¶6} As an initial matter, we note that only assignments of error Nos. 1, 2, and 3 are properly before this court. The remaining assignments of error either were presented or could have been presented in Marshall's appeal of the trial court's grant of summary judgment in favor of Campbell. The doctrine of res judicata provides that an existing final judgment or decree between parties to litigation is conclusive as to all claims that were or might have been litigated in a prior action. Cincinnati Ins. Co. v. Cleveland, 8th Dist. Cuyahoga No. 95292, 2011-Ohio-1369, ¶ 14, citing Rogers v. Whitehall, 25 Ohio St.3d 67, 69, 494 N.E.2d 1387 (1986).
{¶7} Marshall's fourth assignment of error, challenging the abrogation of her contract with Tyus, is nearly identical to an assignment of error this court addressed in its 2017 opinion. Dickson & Campbell, L.L.C., 8th Dist. Cuyahoga No. 104133, 2017-Ohio-1032, at ¶ 26. Marshall's seventh assignment of error, also challenging the abrogation of her contract with Tyus, was likewise previously addressed. Marshall's fifth and sixth assignments of error could have been raised in her earlier appeal to this court. Therefore, because these claims are now barred, we will address her first three assignments of error on their merits. Because they are closely related, we will address them together.
{¶8} Marshall's first three assignments of error all challenge the trial court's August 24, 2017 journal entry awarding Campbell $46,266.20 after holding a quantum meruit hearing.
{¶9} "A trial court called upon to determine the reasonable value of a discharged contingent-fee attorney's services in quantum meruit should consider the totality of the circumstances involved in the situation." Reid, Johnson, Downes, Andrachik & Webster v. Lansberry, 68 Ohio St.3d 570, 629 N.E.2d 431, (1994).
{¶10} Factors to be considered by courts making this determination will vary in each case, but can include:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;Prof.Cond.R. 1.5(a). In light of the fact-specific nature of the inquiry and the equitable balancing involved, a court's decision to award attorney fees on a quantum meruit basis is reviewable only for an abuse of discretion. Dickson & Campbell, L.L.C., 8th Dist. Cuyahoga No. 104133, 2017-Ohio-1032, at ¶ 42, citing Goldauskas v. Elyria Foundry Co., 145 Ohio App.3d 490, 496, 763 N.E.2d 645 (9th Dist. 2001).
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) The fee customarily charged in the locality for similar legal services;
(4) The amount involved and the results obtained;
(5) The time limitations imposed by the client or by the circumstances;
(6) The nature and length of the professional relationship with the client;
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services;
(8) Whether the fee is fixed or contingent.
{¶11} "An abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). When applying the abuse of discretion standard, a reviewing court may not substitute its judgment for that of the trial court. Goldauskas at 496, citing Freeman v. Crown City Mining, 90 Ohio App.3d 546, 552, 630 N.E.2d 19 (4th Dist.1993).
{¶12} On remand, the trial court in this case held a hearing in which it heard extensive testimony from Campbell and Marshall relevant to all of the factors described above. The parties explained their respective legal experience, the respective nature of their work on the case, and the nature of the settlement negotiations. Marshall asserted that her decision to amend the complaint to include additional falls endured by the client had a significant impact on the case. Campbell asserted that Marshall did minimal work on the case over the course of a few weeks and ultimately used his work product to achieve a settlement favorable to the client. He further asserted that the amended complaint was unlikely to have impacted the overall value of the case. In addition to their own testimony, the parties presented documentary evidence to aid the court in its determination. A review of the record, including the transcript from the quantum meruit hearing and the court's subsequent journal entry, shows that the court considered all of the relevant factors. The court considered evidence concerning, among other things, the timing of both counsel's involvement in the case relative to settlement, the nature of the work done, and the settlement negotiations, and ultimately concluded that 95% of the initial $125,000 settlement offer was attributable to Campbell's work on the case. Noting that the remainder of the $150,000 settlement offer may have been attributable to either Marshall's efforts or Campbell's initial work on the case, the court distributed that $25,000 evenly between Campbell and Marshall. Based on these considerations, we find nothing in the record indicating that the trial court's award constitutes an abuse of discretion. Therefore, we affirm the judgment of the trial court.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
TIM McCORMACK, PRESIDING JUDGE EILEEN T. GALLAGHER, J., and
ANITA LASTER MAYS, J., CONCUR