Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State Ex Rel. Bashein & Bashein Co., Lpa v. Industrial Commission of Ohio

October 6, 2011

STATE EX REL. BASHEIN & BASHEIN CO., LPA, RELATOR,
v.
INDUSTRIAL COMMISSION OF OHIO
AND E. FRED BERCHTOLD, RESPONDENTS.



The opinion of the court was delivered by: French, J.

Cite as State ex rel. Bashein & Bashein Co., L.P.A. v. Indus. Comm.,

(REGULAR CALENDAR)

DECISION

IN MANDAMUS

{¶1} Relator, Bashein & Bashein Co., LPA ("relator"), has filed an original action in mandamus requesting this court to issue a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to (1) vacate its order that determined relator was entitled to receive attorney fees solely under the contingency fee agreement with the client, E. Fred Berchtold ("claimant"), and had no right to receive any other recovery on the basis of quantum meruit, and (2) find that claimant must pay relator for the hours of time expended in relation to claimant's claims.

{¶2} This court referred this matter to a magistrate pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals. The magistrate issued a decision, which includes findings of fact and conclusions of law and is appended to this decision, recommending that this court grant a writ of mandamus ordering the commission to vacate its order finding that relator was only entitled to recover its expenses and to conduct a hearing and consider the evidence submitted in order to establish what a proper quantum meruit recovery should be, beyond simply considering the number of hours worked on the matter.

{¶3} No objections to the magistrate's decision have been submitted. Finding no error on the face of the magistrate's decision, we adopt the decision, including the findings of fact and conclusions of law contained in it, as our own. Accordingly, we grant a writ of mandamus ordering the commission to (1) vacate its order finding that relator was entitled to recover only its expenses and (2) conduct a hearing and consider the evidence submitted in order to establish an appropriate recovery on the basis of quantum meruit, in accordance with the magistrate's decision and applicable law.

Writ of mandamus granted.

BRYANT, P.J., and SADLER, J., concur.

No. 10AP-642 3

A P P E N D I X

IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

State ex rel. Bashein & Bashein Co., LPA, Relator, v. : Industrial Commission of Ohio : and E. Fred Berchtold, Respondents.

No. 10AP-642

(REGULAR CALENDAR)

MAGISTRATE ' S DECISION Rendered on July 12, 2011

Paul W. Flowers Co., LPA, and Paul W. Flowers, for relator Michael DeWine, Attorney General, and Colleen C. Erdman, for respondent Industrial Commission of Ohio. Todd G. Kime & Assoc., and Todd G. Kime, for respondent E. Fred Berchtold.

IN MANDAMUS

{¶4} Relator, Bashein & Bashein Co., LPA, has filed this original action requesting that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order which determined that relator was legally entitled to receive attorney fees solely under the contingency fee agreement with the client, E. Fred Berchtold ("claimant") and had no right to receive any other recovery on the basis of quantum meruit, and ordering the commission to find that claimant is required to pay relator for the hours of time expended in relation to claimant's claims.

Findings of Fact:

{¶5} 1. Relator is a legal professional corporation based in Cleveland, Ohio.

{¶6} 2. Claimant suffered two work-related injuries and retained relator to represent him in conjunction with his workers' compensation claims.

{¶7} 3. Two separate fee agreements, drafted by relator, were signed by claimant with regard to the separate injuries. Both agreements provided that relator would receive a sum of money equal to 33 1/3 percent of whatever recovery may be had whether the case was settled before trial or whether a trial was necessary. The second agreement, dated March 29, 2002 provides greater detail and states as follows:

The Attorney does hereby undertake and agree with the Client to act as his/her/their Legal Counsel in negotiating for a settlement, and if same is not effected, in bringing, conducting and prosecuting an action against the responsible parties and/or insurers to recover damages for injuries which occurred on or about the 24 day of March, 2002, and in consideration for services so rendered and to be rendered by the Attorney, it is agreed that he shall receive a sum of money equal to one-third (33⅓%) of whatever recovery may be had in the event of a settlement of said cause [of] action before the filing of a complaint for suit. In the event the Attorney is unable to settle said claim prior to the filing of a complaint, then the Attorney shall receive an amount equal to one-third (33⅓%) of whatever may be received in litigation or in settlement derived after the filing of said complaint.

The Client understands that he/she/they are responsible for all expenses associated with the prosecution * * * regardless of whether or not a recovery is obtained or attorney fees are incurred. Such expenses include, but are not limited to, filing fees, court costs, deposition fees, witness fees, binding and reproduction charges, research and investigation expenses, record retrieval charges, and expenses incurred in connection with expert witnesses. * * * If a settlement or recovery is not obtained, the Client agrees to reimburse the Attorney for these expenses.

{¶8} 4. It is undisputed that relator was successful in securing awards of compensation for claimant in both claims and relator was paid according to the fee agreement.

{¶9} 5. In a letter dated September 23, 2008, claimant terminated relator's services as follows:

This is to inform you that as of today, September 23, 2008 I will no longer be requiring your services for my workers['] ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.