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Daniel v. Ballitch

Court of Appeals of Ohio, Fifth District, Richland

December 11, 2019

DONNA DANIEL Plaintiff-Appellee
v.
HAROLD BALLITCH II, M.D., ET AL Defendants-Appellees (THE DONAHEY LAW FIRM) Appellant

          Civil appeal from the Richland County Court of Common Pleas, Case No. 2018 CV 0123

         JUDGMENT: Dismissed

          For Donna Daniel, SARA NICHOLS

          For Intervenor-Appellant Donahey Law Firm, JAMES E. ARNOLD

          Hon. W. Scott Gwin, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, J.

          OPINION

          GWIN, P.J.

         {¶1} Appellant appeals the May 10, 2019 judgment entry of the Richland County Court of Common Pleas denying its motion to intervene.

         Facts & Procedural History

         {¶2} On February 14, 2018, appellee Donna Daniel filed a medical malpractice complaint against Harold Ballitch, II., M.D. and the Advanced Eye Care Clinic. Appellee filed an amended complaint on March 13, 2018. At the time appellee filed the complaint, her counsel worked at the Donahey Law Firm, the appellant in this case.

         {¶3} On April 5, 2019, appellee filed a motion to enforce settlement. In her motion, appellee indicates the case had recently settled and the motion deals with appellant Donahey Law Firm trying to recover attorney fees from the settlement. Attached to the motion to enforce settlement is the affidavit of T. Jeffrey Beausay. He avers as follows: he was an independent contractor for appellant from 2001 until April of 2018 when he, Jacob Beausay, and Sara Nichols ("Nichols") separated from appellant and formed their own firm; he and Nichols were the only attorneys to work on appellee's case prior to April of 2018; and appellant filed a civil action in Franklin County against him, Nichols, Jacob Beausay, and the Beausay Law Firm.

         {¶4} Also attached to the motion to enforce is the affidavit of Nichols. She states: when she initially began working on the case, she was affiliated with appellant's law firm; she separated from appellant's firm in April of 2018; appellee wanted her and Jeffrey Beausay to continue to represent her and signed a new fee agreement; appellee terminated her previous fee agreement with appellant; appellant has been fully reimbursed for case expenses advanced in connection with this case; and the only attorneys to work on this case are herself and Jeffrey Beausay. Nichols attached to her affidavit the letter from appellee to appellant terminating the fee agreement with appellant.

         {¶5} Also on April 5, 2019, Ballitch and the Advanced Eye Care Clinic filed a motion requesting the trial court set the matter for hearing to determine disbursement of settlement proceeds due to the lien appellant asserts on the settlement funds. Ballitch and the Advanced Eye Care Clinic sought instruction from the trial court as to where the funds should be deposited.

         {¶6} Appellant filed a motion to intervene on April 8, 2019. Appellant asserts that, since it was former counsel for appellee and has an interest in a portion of the settlement proceeds, it has a right to intervene in the proceedings pursuant to Civil Rule 24(A). Appellee filed a memorandum in opposition to the motion to intervene on April 10, 2019. Appellee argued appellant is not entitled to a charging lien based upon case law and also stated appellant has sued counsel for appellee in Franklin County, making intervention in this case unnecessary. Appellee stated appellant has sued Beausay and Nichols in the Franklin County Court of Common Pleas, alleging breach of compensation agreement, quantum meruit, unjust enrichment, conversion of Donahey's client files, tortious interference with Donahey's business relationships, misappropriation of Donahey's trade secrets, promissory estoppel, and seeking injunctive relief.

         {¶7} The trial court issued an order denying the motion intervene and ordering the disbursement of settlement funds. The trial court found the issue of whether appellant "is entitled to intervene in this case hinges on the question of whether the Donahey Law Firm LLC is entitled to any attorney's fees and/or reimbursement of expenses related to the period from August 27, 2017 through April 7, 2018" for the representation of appellee. The trial court stated the affidavits attached to appellee's motion to enforce settlement establish that: Nichols and Beausay were the only attorneys that worked on appellee's case during the time in question; no other Donahey attorneys performed any work or had any involvement with the representation of appellee; the majority of the work was done after Nichols and Beausay separated from Donahey; Nichols and Beausay presented appellee options for future representation; appellee chose to continue her ...


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