Court of Appeals of Ohio, Second District, Montgomery
DWIGHT D. BRANNON, et al. Plaintiffs-Appellees
DONNA K. PERSONS, et al. Defendants-Appellants
Appeal from Common Pleas Court Trial Court Case Nos.
2015-CV-1473 and 2015-CV-3889
D. BRANNON, Atty., MATTHEW C. SCHULTZ, Atty. Attorneys for
K. PERSONS, Defendant-Appellant-Pro Se
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.
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
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
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
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
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
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
Id. at 245, quoting Rauch v. Noble, 169
Ohio St. 314, 316, 159 N.E.2d 451 (1959). (Other citation
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 ...