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Wood v. Shultz

Court of Appeals of Ohio, Fifth District, Muskingum

December 26, 2019

ANGEL WOOD, ET AL. Plaintiffs
v.
BRENDA SHULTZ, ET AL. Defendants-Appellees
v.
BRIAN BENBOW Appellant

          CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CC2017-0125

         JUDGMENT: APPEAL DISMISSED

          For Appellant: BRIAN BENBOW, PRO SE

          For Defendants-Appellees: M. JASON FOUNDS

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.

          OPINION

          DELANEY, J.

         {¶1} Appellant Brian Benbow appeals the January 18, 2019 judgment entry of the Muskingum County Court of Common Pleas.

         FACTS AND PROCEDURAL HISTORY

         Personal Injury Action

         {¶2} Appellant-Attorney Brian Benbow represented Plaintiffs Angel Mercer-Wood and Troy Harding in a personal injury action filed in the Muskingum County Court of Common Pleas on April 10, 2017. Mercer-Wood and Harding alleged they were injured in a car accident due to the negligence of Defendant-Appellee Brenda Shultz. Plaintiffs also named State of Ohio Medicaid Program as a party defendant, which filed a cross-claim against Shultz.

         {¶3} The matter proceeded to a jury trial and on May 18, 2018, the jury found Shultz was negligent. The jury awarded Harding $5, 538.89 in compensatory damages and Mercer-Wood $9, 239.51 in compensatory damages.

         {¶4} Mercer-Wood and Harding filed a motion for new trial and motion for judgment notwithstanding the verdict. On June 5, 2018, the trial court journalized the verdict. The trial court denied the motion for new trial and motion for judgment notwithstanding the verdict on July 6, 2018. Mercer-Wood and Harding did not appeal the judgments.

         Attorney Suspension

         {¶5} On July 18, 2018, the Ohio Supreme Court suspended Benbow from the practice of law for two years, with the second year stayed. Disciplinary Counsel v. Benbow, 153 Ohio St.3d 350, 2018-Ohio-2705, ¶ 21. Benbow filed a notice of disqualification with the Muskingum County Court of Common Pleas on August 2, 2018. Plaintiffs did not substitute counsel.

         Satisfaction of Judgment and Charging Lien

         {¶6} On August 24, 2018, Shultz filed a Motion for a Satisfaction of Judgment Entry. In her motion, Shultz stated that her insurer, State Farm, and counsel sent payment on August 20, 2018 via certified mail to Mercer-Wood and Harding in the amount of the judgments. The payments totaled the full amount of the judgment for each Plaintiff, with separate checks made payable to Plaintiff and Ohio Tort Recovery in satisfaction of Plaintiffs' statutory obligation to reimburse Medicaid for its payments made on behalf of Plaintiffs for medical expenses. State Farm paid Ohio Tort Recovery $1, 930.89 and Harding $3, 608.00. State Farm paid Ohio Tort Recovery $2, 673.27 and Mercer-Wood $6, 566.24.

         {¶7} Shultz filed a supplemental motion on September 17, 2018 demonstrating Mercer-Wood and Harding received the payments on August 23, 2018.

         {¶8} On October 11, 2018, Benbow filed a Motion to Enforce a Charging Lien Against Harding, Mercer-Wood, State Farm, and Ohio Medicaid. He also filed a Memorandum Contra to the Motion for a Satisfaction of Judgment. In his motion to enforce a charging lien, Benbow requested the trial court place a charging lien on the judgment for alleged attorney's fees owed from Harding and Mercer-Wood based on a contingent fee agreement. Benbow argued the contingent fee agreed stated he was owed 40% of the gross judgment, equating to $6, 475.93. Benbow claimed he was unaware Shultz had moved for a satisfaction of the judgment in August because he was not served with a copy of the motion. Benbow became aware that Harding and Mercer-Wood received the judgment monies on October 8, 2018.

         {¶9} On October 15, 2018, the trial court granted the Motion for Satisfaction of Judgment and filed an order stating the judgments were paid in full and satisfied. Costs were assessed to Shultz.

         {¶10} On October 25, 2018, Shultz and State Farm filed a combined Motion to Strike Benbow's Motion to Enforce a Charging Lien. In their response, Shultz and State Farm argued Benbow's charging lien was unenforceable against third parties because the contingent fee agreement appeared defective, Benbow did not intervene in the action, and Benbow failed to put the affected third-parties on notice of his claimed interest in the judgment. Benbow filed a memorandum contra on October 29, 2018, that included the affidavits of Brian Benbow and Amanda Kildow.

         {¶11} Also on October 29, 2018, Benbow filed a Motion to Reconsider the trial court's October 15, 2018 judgment entry. He argued the October 15, 2018 judgment entry granting the satisfaction of judgment was not a final appealable order because Benbow's motion to enforce a charging lien was pending at the time the trial court ruled. Benbow further moved to intervene as a party plaintiff, ...


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