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Vasquez v. Ezanidis

Court of Appeals of Ohio, Fifth District

June 26, 2013

DOUGLAS E. VASQUEZ, Plaintiff-Appellee
v.
PETER EZANIDIS, ESQ., ET AL. Defendants-Appellants

Appeal from the Fairfield County Court of Common Pleas, Case No. 11 CV 75

For Plaintiff-Appellee DANIEL J. FRUTH Stebelton, Aranda & Snider A Legal Professional Asosciation

For Defendants-Appellants RICK E. MARSH Lane, Alton & Horst, LLC

Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J.

OPINION

HON. WILLIAM B. HOFFMAN

{¶1} Defendants-appellants Peter Ezandis, et al. appeal the September 5, 2012 Agreed Judgment Entry entered by the Fairfield County Court of Common Pleas, which granted judgment in favor of plaintiff-appellee Douglas E. Vasquez and against Appellants in the amount of $100, 000.

STATEMENT OF THE FACTS AND CASE

{¶2} Appellants Peter Ezanidis and Jeffrey Donnellon are attorneys, licensed to practice in the State of Ohio. Donnellon & Ezanidis, LLC is their legal professional corporation.

{¶3} On February 10, 2009, Virginia Zapf filed a complaint for divorce against her husband, Appellee herein. In addition to the complaint, Zapf filed a motion and affidavit in support, seeking the issuance of a temporary restraining order against Appellee. The trial court issued a reciprocal temporary restraining order on the same day. The TRO prohibited, inter alia, the following:

Neither party shall change the beneficiary or beneficiaries of any life insurance policies, or the payable on death beneficiaries or joint and survivorship ownership of any tax deferred savings plans, pension plans, retirement plans, certificates of deposits, savings accounts, stock or brokerage accounts or other such intangible assets owned by either or both parties, whether marital or non-marital. Judgment Entry/Restraining Order at para. 5.

{¶4} Pursuant to its terms, the TRO was immediately effective upon Zapf and would be effective upon Appellee upon service. Zapfs attorney, Darren McNair, prepared the Judgment Entry/Restraining Order, and signed an attestation the Order was identical to that required by Local R. 9.3.

{¶5} On March 4, 2009, Zapf executed a request to change the primary beneficiaries of her life insurance policy to her parents, Tom and Nikki Zapf ("the Elder Zapfs"). Appellee was the named beneficiary under the policy. Attorney Stephen Dodd sent the request to AIG Insurance via telefax on March 5, 2009. Appellee did not file an answer or any other responsive pleading in the divorce proceeding as Zapf died on March 10, 2009, prior to any service of process upon Appellee.

{¶6} The Elder Zapfs filed a declaratory judgment action, seeking the allocation of rights under Zapfs life insurance policy issued by AIG Insurance. Appellee and AIG were named defendants. The dispute focused on whether the March 4, 2009 change of beneficiary designation form effectively changed Zapfs beneficiary from Appellee to the Elder Zapfs. AIG interpled $150, 000, the money owing under the life insurance policy, and was dismissed from the action. On July 30, 2009, Appellee hired Appellants to represent him in the declaratory judgment action. Appellants entered an appearance on Appellee's behalf

{¶7} The declaratory judgment action was settled with Appellee receiving a gross settlement of $10, 000. Appellants were paid their 40% contingent fee from that amount. From their initial involvement in the declaratory action, Appellants were aware of the divorce proceeding as such matter was mentioned in the Elder Zapfs' complaint. Further, at the time of the settlement, Appellant Ezanidis was aware a TRO had been issued by the trial court therein. Attorney Ezanidis was not, however, aware of the contents of the TRO or that such was binding on Zapf Appellants did not raise the TRO as a defense, affirmative defense, cross-claim, counterclaim, third party complaint of otherwise present a ...


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