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Myocare Nursing Home, Inc. v. Hohmann

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 29, 2018

MYOCARE NURSING HOME, INC. PLAINTIFF-APPELLANT
v.
WILLIAM HOHMANN, ET AL. DEFENDANTS-APPELLEES

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-14-823107

          ATTORNEY FOR APPELLANT Stephen D. Dodd Stephen D. Dodd Co.,

          ATTORNEYS FOR APPELLEES For William Hohmann David Ross Reminger Co., L.P.A.

          For Kenneth Boukis Matthew B. Barbara Taft Stettinius & Hollister, L.L.P.

          Holly M. Wilson Reminger Co., L.P.A.

          BEFORE: S. Gallagher, J., Kilbane, P.J., and Laster Mays, J.

          JOURNAL ENTRY AND OPINION

          SEAN C. GALLAGHER, JUDGE

         {¶1} Myocare Nursing Home, Inc. ("Myocare"), appeals the judgment entered in favor of William Hohmann ("Attorney Hohmann"), Kenneth Boukis, and Hohmann, Boukis & Curtis, L.P.A. (collectively "Hohmann"), upon Myocare's legal malpractice claims and the law firm's counterclaim for unpaid legal fees. For the following reasons, we affirm.

         {¶2} Myocare retained Hohmann in June 2011 to commence collection efforts on a judgment Myocare obtained against a third party ("debtor"). Originally, Hohmann agreed to undertake the representation for a "basic contingent fee of 5% and an additional amount depending upon whether or not the claim is contested." The debtor had been awarded a multi-million-dollar judgment in an unrelated action filed in Summit County, and at the time, the debtor's case was pending in the appellate court. An appellate bond had been posted with the Summit County Clerk of Courts. Myocare intended to use the debtor's judgment and the bond in that case in order to satisfy the $253, 828.66 outstanding debt.

         {¶3} On June 22, Hohmann filed a creditor's bill action on behalf of Myocare in Cuyahoga County Court of Common Pleas, naming the Summit County Clerk of Courts as a defendant, in an effort to establish a lien on the $2.5 million bond. The debtor, around the same time, executed a settlement agreement in which the bond would be used for partial satisfaction of the judgment he received. Ninety days later, the debtor was to be paid an additional amount of approximately $190, 000. Sometime on June 22, the Summit County Clerk of Courts transferred the multi-million-dollar bond to the debtor's attorney, at Buckingham, Doolittle & Burroughs ("Buckingham"), as partial satisfaction of the judgment awarded to the debtor.

         {¶4} Realizing the transfer had occurred, Hohmann immediately contacted the debtor's attorney at Buckingham and notified him of the lien established against the bond. Buckingham paid the debtor's other creditors but retained $260, 000 to cover Myocare's lien. Perhaps partially concerned that the lien established by the creditor's bill had been ineffective to prevent the transfer, Hohmann followed up by filing a garnishment of property proceeding in municipal court against Buckingham. In the process, Myocare's judgment lien was transferred to municipal court on June 30, and in mid-July, the notice of garnishment was served. Myocare claims there is a dispute regarding the date of the filing; however, the earliest date that could be considered as the commencement of the garnishment proceedings was June 30. After the filing of the garnishment proceedings, Hohmann was discharged as Myocare's attorney and new counsel entered an appearance.

         {¶5} Before the garnishment action was filed, a second creditor entered the picture. On June 27, First Federal of Lakewood Bank and Trust ("First Federal") filed its own creditor's bill action, also in the Cuyahoga County Court of Common Pleas, against Buckingham in an attempt to place a lien on the debtor's money. First Federal was owed over $700, 000 by the debtor. Both Myocare's and First Federal's creditor's bills were consolidated into one action, and Myocare appears to have abandoned the garnishment proceeding. The creditor's bill actions were settled among the parties with Myocare agreeing to receive $160, 733.26 and First Federal agreeing to receive $250, 000 as partial satisfaction of their respective judgments.

         {¶6} Myocare then filed a legal malpractice action against Hohmann, claiming that its failure in amending the June 22 creditor's bill to name Buckingham as a defendant caused Myocare to lose its priority to First Federal over the $260, 000 Buckingham withheld. The trial court granted partial summary judgment upon the malpractice action in favor of Hohmann. The parties filed a contingent dismissal entry in order to allow Myocare to challenge the interlocutory ruling. Myocare appealed the partial summary judgment in Myocare Nursing Home, Inc. v. Hohmann, 8th Dist. Cuyahoga No. 104290, 2017-Ohio-186. The appeal was dismissed for the want of jurisdiction. Id.

         {¶7} Upon remand, the trial court resolved the counterclaim for unpaid legal services in Hohmann's favor following a bench trial, ultimately ...


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