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Hans v. Kevin O'Brien & Associates Co.

January 25, 2007


The opinion of the court was delivered by: Algenon L. Marbley United States District Judge


Magistrate Judge Kemp



This matter is before the Court on various motions. Plaintiff Joseph Adam Hans ("Plaintiff") brought a legal malpractice suit against Defendants Kevin O'Brien & Associates Co., L.P.A. ("O'Brien & Associates"), Kevin J. O'Brien ("O'Brien"), and Kim M. Halliburton-Cohen ("Halliburton-Cohen") (collectively "Defendants"). Defendants moved for summary judgment. Halliburton-Cohen brought a counterclaim against Plaintiff for legal fees. Plaintiff brought a Motion to Strike the Counterclaim as untimely. Halliburton-Cohen countered with a Motion to Strike Plaintiff's Motion to Strike and in the alternative, for a Motion for Leave to file her Counterclaim Instanter. For the reasons set forth below, the Court: (1) GRANTS Defendants' Motion for Summary Judgment; (2) GRANTS Plaintiff's Motion to Strike the Counterclaim; (3) DENIES Defendant's Motion to Strike Plaintiff's Motion to Strike; (4) DENIES Defendant's Motion for Leave to file the Counterclaim Instanter; and (5) DISMISSES Defendants O'Brien and O'Brien & Associates' counterclaim for lack of subject matter jurisdiction.



In 1977, Plaintiff's father, Joseph H. Hans, and his step-mother, Shirley Stedman ("Stedman"), divorced and entered into a separation agreement which provided that:

[Stedman] is further to receive all the husband's interest in a parcel of land containing the description of 20.1467 acres located on the Reynoldsburg-New Albany Road in Franklin County . . . [Stedman] further agrees to provide a piece of land on the 20.1467 to each of the husband's four (4) children from a previous marriage, namely [Plaintiff], Kenny, Polly and Gretchen, for each of said children to build a home if they so desire. Said piece of land is to be a minimum of two (2) acres. (Hans v. Hans, No. 77DM-03-743, Sep. Agr. ¶ 5, ¶ 8, Mar. 25, 1977) (emphasis added). Unbeknownst to Stedman, prior to their divorce, her husband transferred his interest in the New Albany property by quit-claim deed to Reno Borean ("Borean"). As a result, Plaintiff's father had no interest in the New Albany property at the time that he entered into the separation agreement. Borean subsequently transferred his interest in the land to Stedman.

Thereafter, she retained sole ownership of the property.

Plaintiff's father died intestate in 1994 and the administrator of his estate brought a quiet-title action against Stedman regarding the New Albany property. Upon his death, Plaintiff's father owed the federal government a significant amount of money. As a result, the Internal Revenue Service ("IRS") placed a lien on the New Albany property, joined the quiet-title action, and removed the case to federal court. On January 29, 2001, after protracted litigation, the parties entered into a stipulation agreement to dismiss the suit upon certain conditions. The stipulation agreement required Stedman to satisfy her late ex-husband's debt by selling the land. In return, Stedman, the estate, its heirs and assignees, and the IRS consented to release one another from:

[a]ll debts, claims, demands, damages, actions and cause of action whatsoever, including, but not limited to, all claims now asserted or that could have been asserted in the case pending in the United States District Court and any and all claims asserted or that could have been asserted by the Estate of [Plaintiff's father] in the Franklin County Probate proceeding, including but limited to all claims or rights of ownership or an interest in or entitlement to the said New Albany and any amount properties of which are the subject of this lawsuit. (Kaiserv. Stedman, No. C2-95-1074 (Jan. 31, 2001)). Pursuant to the stipulation agreement, the case was dismissed with prejudice. Stedman then sold the property, paid $1,080,000 of the proceeds to satisfy the mortgage and the IRS, and retained the balance of the sale, a mere $65,000. Neither Plaintiff nor any of his siblings, despite their interest in the property, attempted to intervene in the action, challenged the stipulation agreement, or disputed the sale of the property.

On December 7, 2001, almost a year after the conclusion of the federal court proceedings, Plaintiff retained Defendants O'Brien and Halliburton-Cohen, attorneys with the firm O'Brien & Associates. Plaintiff then brought a contempt action against his step-mother in the Franklin County Court of Domestic Relations for failure to provide him with two acres of the New Albany property in violation of the 1977 separation agreement. On March 31, 2004, the Domestic Relations Court ruled that the doctrine of res judicata barred Plaintiff's claim.

Stedman v. Hans, No. 77-DM-08-743, at *15 (Ohio Ct. Com. Pleas Mar. 31, 2004). The court found that the "claims in the [federal-court] action and the action now brought by [Plaintiff] concern the same issues, the same facts, the same property, and the same desired result, which was to obtain ownership interest in the property." Id. As a result, the court held that the ...

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