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Brannon v. Persons

Court of Appeals of Ohio, Second District, Montgomery

January 12, 2018

DWIGHT D. BRANNON, et al. Plaintiffs-Appellees
v.
DONNA K. PERSONS, et al. Defendants-Appellants

         Civil Appeal from Common Pleas Court Trial Court Case Nos. 2015-CV-1473 and 2015-CV-3889

          DWIGHT D. BRANNON, Atty., MATTHEW C. SCHULTZ, Atty. Attorneys for Plaintiffs-Appellees

          DONNA K. PERSONS, Defendant-Appellant-Pro Se

          OPINION

          WELBAUM, J.

         {¶ 1} In this case, Defendant-Appellant, Donna Persons, appeals pro se from a summary judgment rendered on behalf of Plaintiffs-Appellees, Dwight Brannon and Matthew Schultz (collectively, "Appellees"). Persons contends that the trial court erred in finding that she breached a contingent fee contract with Appellees, and in awarding Appellees an amount equal to their contingency fee.

         {¶ 2} We conclude that the trial court did not err in rendering summary judgment in favor of Appellees on their claim for attorney fees, as Appellant failed to submit any evidence that created a genuine issue of material fact regarding the reasonableness of the fees. Further, assuming for the sake of argument that the action was more properly based on quantum meruit than breach of contract, no prejudice occurred. Appellees also asked the court for equitable relief, and Appellant failed to provide the court with any evidence to challenge the fees that were requested. Appellant was entitled under the law to discharge her attorneys, but she was not entitled to breach the settlement agreement in an attempt to recover more money than the sum to which she had agreed during mediation. Finally, Appellant failed to submit any evidence indicating that Appellees committed legal malpractice. Accordingly, the judgment of the trial court will be affirmed.

         I. Facts and Course of Proceedings

         {¶ 3} This action involves two trial court cases that were consolidated. Appellees are attorneys who handled a medical malpractice action for Persons. In March 2015, Appellees filed a complaint against Persons, alleging that she had breached a contingency fee contract by refusing to sign a release, by attempting to renegotiate a settlement, and by discharging Appellees as counsel after they had completed their representation. Appellees also included the following defendants in the lawsuit - Leslie Cowden, fiduciary of the estate of John Cowden, D.P.M., Central Foot and Ankle Center, and Foot and Ankle Specialists (collectively, "Cowden") - and asked for an injunction ordering these parties to place the settlement funds in escrow. In addition, Appellees requested a declaratory judgment that they were entitled to enforce the settlement agreement as third-party beneficiaries. Finally, Appellees asserted a bad faith claim against Persons, contending that she had acted in bad faith.

         {¶ 4} According to the complaint, Persons had signed a contingency fee agreement with Appellees on December 29, 2010. Pursuant to the agreement, Appellees filed a medical malpractice action on Persons' behalf in February 2012. The case was filed against Cowden, and was docketed as Montgomery County Common Pleas Court Case No. 2012-CV-1126.

         {¶ 5} A copy of the fee agreement was attached to the complaint as Ex. 1. The complaint alleged that Cowden and Persons had reached agreement during a mediation in September 2014, and that Persons had signed the settlement agreement. A copy of the settlement agreement, with the amount redacted, was attached as Ex. 2. According to Appellees, Persons failed to perform as required by the settlement agreement, and subsequently discharged Appellees as counsel.

         {¶ 6} In April 2015, Cowden filed an answer and cross-claim against Persons. In the cross-claim, Cowden admitted that a settlement had been reached, and asked the court to order Persons to perform under the settlement contract. Persons filed a pro se answer in April 2015, asking the court to strike the complaint on various grounds. Persons also asked for "relief from judgment" pursuant to Civ.R. 60(B), although no judgment was pending against her.

         {¶ 7} On April 30, 2015, Appellees filed a motion for partial summary judgment on their claims for breach of contract and injunctive relief. The motion was supported by the affidavit of Schultz, who identified the contingency fee contract and the written settlement agreement that Persons had signed on September 11, 2014. Schultz also outlined what had occurred concerning settlement of the medical malpractice case.

         {¶ 8} The contingency fee agreement provided that Appellees would receive a percentage of the gross recovery before suit costs, other appropriate expenses, setoffs, and subrogation. The fee percentage was based on the state at which recovery was received. For example, prior to suit being filed, Appellees' fee would be 40% of the gross recovery; after suit was filed, the percentage would be 45%. Schultz Affidavit, Ex. 1, p. 1. Persons also agreed to pay costs, including Appellees' personal and travel expenses, as well as expenses like expert fees.

         {¶ 9} A mediation had occurred in the medical malpractice case on September 11, 2014, and resulted in an agreement to settle the case. The settlement agreement was dated the same day, and was signed by Persons, who agreed to settle her pending case against Cowden for a specific amount (redacted) within thirty days. Persons also agreed to satisfy any liens related to her claims, and to pay one-half the mediation costs.

         {¶ 10} On April 30, 2015, Cowden filed a motion for judgment on the pleadings in connection with the cross-claim against Persons. This was based on the fact that Persons' response to the cross-claim was unintelligible, and the fact that Persons did not dispute having signed the settlement agreement.

         {¶ 11} Persons responded to Appellees' summary judgment motion on May 20, 2015, but did not attach any affidavits. She did file some type of transcript of conversations with her attorneys that allegedly took place in October 2014, after the settlement agreement was signed.

         {¶ 12} Further responses from both Persons and Appellees regarding the summary judgment motion were filed in June 2015. In addition, Persons filed an affidavit on June 16, 2015, which basically stated that she was not satisfied with the amount of the settlement to which she had agreed.

         {¶ 13} On June 18, 2015, the trial judge asked to be disqualified based on his professional acquaintance with Appellees. The Supreme Court of Ohio then assigned a visiting judge to the case in September 2015.

         {¶ 14} In July 2015, Persons filed a separate action against Appellees, alleging breach of contract, legal malpractice, breach of fiduciary duty, fraudulent misrepresentation, and fraud. This case was docketed as Montgomery County Common Pleas Court Case No. 2015-CV-03889, and was assigned to the same judge who was hearing the fee dispute case. In April 2016, Appellees filed a motion for partial summary judgment on these claims, which Appellees contended were claims for legal malpractice. The summary judgment motion was supported by the affidavits of several attorneys, who stated that Appellees had complied with pertinent standards of care.

         {¶ 15} In the meantime, on October 29, 2015, Appellees renewed their motion for partial summary judgment in the fee dispute case, and attached the affidavits of Matthew Schultz and Arthur Phelps (counsel for Cowden). Among other things, the affidavits and documents indicated that Persons had signed a full and final release of her claims against Cowden. According to Phelps, Persons had signed the release on October 2, 2015.

         {¶ 16} In February 2016, Cowden also filed a motion for summary judgment, arguing that no genuine issues of material fact existed concerning whether an enforceable settlement existed. Cowden further asked the court to allow Cowden to deposit the settlement proceeds in escrow and to dismiss Cowden from the action. Cowden's motion was supported by the affidavit of Arthur Phelps, who attached Persons' October 2, 2015 release of all claims against Cowden.

         {¶ 17} The trial court granted Cowden's summary judgment motion in April 2016, and ordered Cowden to deposit the settlement proceeds in an escrow account with the Montgomery County Clerk of Courts. In addition, the court dismissed Cowden from the action. Subsequently, on May 2, 2016, the trial court concluded that summary judgment should be rendered in Appellees' favor on their fee claim as well as on Persons' malpractice claim. The court then set a hearing for July 26, 2016, to consider disposition of the funds deposited with the clerk.

         {¶ 18} On June 21, 2016, Persons filed a notice of appeal from the May 2, 2016 summary judgment decision. However, we dismissed the appeal for lack of a final appealable order on November 1, 2016. See Brannon v. Persons, 2d Dist. Montgomery No. 27151 (Nov. 1, 2016).

         {¶ 19} While the case was on appeal, the trial court filed a judgment entry awarding Appellees the sum of $87, 750, which was 45% of the total settlement amount, consistent with the fee agreement between Appellees and Persons. The court also awarded judgment to Appellees on all claims asserted by Persons in Case No. 2015-CV-3889. In addition, the court awarded Appellees $2, 588.61 in costs and $4, 399.52 in prejudgment interest from November 24, 2014, up to the time of the hearing held on July 26, 2016.

         {¶ 20} At that time, the court overruled Appellees' motion for attorney fees incurred in both pending cases, because their claim for bad faith remained pending. The judgment, which was filed on August 25, 2016, was accompanied by a Civ.R. 54(B) certification. Persons filed a notice of appeal from this judgment on September 14, 2016. We dismissed the appeal, however, finding that the trial court lacked jurisdiction to enter an order while the appeal was pending. See Brannon v. Persons, 2d Dist. Montgomery No. 27266 (Dec. 20, 2016).

         {¶ 21} Subsequently, on January 17, 2017, the trial court entered another judgment, which awarded Appellees the same amounts for attorney fees, costs, and prejudgment interest. The court, thus, ordered a total of $95, 044.13 to be distributed to Appellees, and $76, 539.20 to be distributed to Persons. However, the court also ordered that $23, 416.67 of Person's award would be retained in escrow, pending the court's resolution of Appellees' claims for bad faith and attorney fees.

         {¶ 22} The January 2017 decision incorporated the May 2, 2016 summary judgment order, and the court also included a Civ.R. 54(B) certification with the judgment. Persons then filed a notice of appeal on February 7, 2017, and her appeal was docketed as Appeal No. 27444 (the current case).

         {¶ 23} On March 15, 2017, Appellees filed a motion to dismiss the current appeal, based on the fact that the Clerk of Courts paid Appellees the judgment of $95, 044.13 on January 19, 2017. Appellees contended that the appeal, therefore, was moot.

         {¶ 24} We filed a decision and entry on July 5, 2017, overruling the motion to dismiss. We noted that while we were overruling the motion at that time, Appellees could make arguments about mootness in their brief, and the issue would be decided when the case was submitted to a merit panel. See Brannon v. Persons, 2d Dist. Montgomery No. 27444 (July 5, 2017). Both sides have filed their briefs, and the matter is ready for disposition. Appellees have reasserted their claim of mootness in their brief, and we will consider that matter first, as it could dispose of the appeal.

         II. Whether the Appeal is Moot

         {¶ 25} According to Appellees, the appeal is moot because Persons failed to obtain a stay of execution, and the judgment against her was satisfied by the payment to Appellees on January 19, 2017. Persons did not file a reply brief, and has not responded to this argument.

         {¶ 26} Requirements for a stay of execution are contained in R.C. 2505.09, which provides that "an appeal does not operate as a stay of execution until a stay of execution has been obtained pursuant to the Rules of Appellate Procedure or in another applicable manner, and a supersedeas bond is executed by the appellant to the appellee, with sufficient sureties and in a sum that is not less than, if applicable, the cumulative total for all claims covered by the final order, judgment, or decree and interest involved * * *."

         {¶ 27} App.R. 7(A) provides that, ordinarily, applications for a stay of execution must first be made in the trial court. This rule further states that "[a] motion for such relief * * * may be made to the court of appeals or to a judge thereof, but, except in cases of injunction pending appeal, the motion shall show that application to the trial court for the relief sought is not practicable, or that the trial court has, by journal entry, denied an application or failed to afford the relief which the applicant requested." Persons did not apparently take any of these actions to stay the trial court's judgment; at a minimum, our docket does not reveal an application for a stay.

         {¶ 28} In Blodgett v. Blodgett, 49 Ohio St.3d 243, 551 N.E.2d 1249 (1990), the Supreme Court of Ohio held that:

It is a well-established principle of law that a satisfaction of judgment renders an appeal from that judgment moot. " Where the court rendering judgment has jurisdiction of the subject-matter of the action and of the parties, and fraud has not intervened, and the judgment is voluntarily paid and satisfied, such payment puts an end to the controversy, and takes away from the defendant the right to appeal or prosecute error or even to move for vacation of judgment.' "

Id. at 245, quoting Rauch v. Noble, 169 Ohio St. 314, 316, 159 N.E.2d 451 (1959). (Other citation omitted.)

         {¶ 29} In Blodgett, the appellant argued that her appeal should not be terminated because she had signed a satisfaction of the lower court judgment and had taken its benefits due to economic duress. Id. The Supreme Court of Ohio was not persuaded, declining "to accept the proposition that if an appellant executes a satisfaction of judgment merely because she cannot afford to wait for the outcome of an appeal, that satisfaction of judgment may be subsequently avoided." Id. at 246.

         {¶ 30} We subsequently distinguished Blodgett because our case (a foreclosure case where the property had been sold) did not "involve a contract or agreement that a judgment has been satisfied or settled." Chase Manhattan Mtg. Corp. v. Locker, 2d Dist. Montgomery No. 19904, 2003-Ohio-6665, ¶ 41. See also Janis v. Janis, 2d Dist. Montgomery No. 23898, 2011-Ohio-3731, ¶ 28 (noting that "Blodgett does not stand for the proposition that any payment toward the satisfaction of a judgment while an appeal is pending renders moot the appeal or any specific issue therein. [Appellee] has cited no authority for her suggestion ...


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