[Cite as Daniel v. Ballitch, 2019-Ohio-5181.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: DONNA DANIEL : Hon. W. Scott Gwin, P.J. : Hon. Craig R. Baldwin, J. Plaintiff-Appellee : Hon. Earle E. Wise, J. : -vs- : : Case No. 2019 CA 0052 HAROLD BALLITCH II, M.D., ET AL : : Defendants-Appellees : OPINION
(THE DONAHEY LAW FIRM)
Appellant
CHARACTER OF PROCEEDING: Civil appeal from the Richland County Court of Common Pleas, Case No. 2018 CV 0123
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: December 11, 2019
APPEARANCES:
For Donna Daniel For Intervenor-Appellant Donahey Law Firm
SARA NICHOLS JAMES E. ARNOLD 7650 Rivers Edge Drive 115 West Main Street Suite 150 4th Floor Columbus, OH 43235 Columbus, OH 43215 Richland County, Case No. 2019 CA 0052 2
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 Richland County, Case No. 2019 CA 0052 3
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. Richland County, Case No. 2019 CA 0052 4
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 representation
with Nichols and Beausay so she terminated her fee agreement with Donahey and
executed a new fee agreement with Nichols and Beausay; and Beausay fully reimbursed
Donahey for expenses advanced on the case up to the time of separation.
{¶8} The trial court found the Hackett cases analogous to this case and, pursuant
to the authority in Hackett, found Ohio law puts a client’s right to counsel of her choice
above such concerns as the prior law firm’s investments in the training and support of
attorneys, or company overhead. Hackett v. Moore, 160 Ohio Misc.2d 107, 2010-Ohio-
6298, 939 N.E.2d 1321 (Hamilton County Common Pleas); Cincinnati Bar Assn. v.
Hackett, 129 Ohio St.3d 186, 2011-Ohio-3096, 950 N.E.2d 969. The trial court stated
appellant did not provided any affidavit or other evidence to demonstrate any attorney
fees or advances on expenses in this case remain unpaid such that appellant has a right
to intervene in the action, whereas the affidavits of Nichols and Beausay demonstrate no
fees or expenses remain due and owing to appellant.
{¶9} The trial court denied appellant’s motion to intervene and found no part of
the settlement in this case should be paid to appellant. Further, the trial court ordered the
settlement check be made payable to appellee and Beausay Law Firm, LLC. Richland County, Case No. 2019 CA 0052 5
{¶10} Appellant appeals the judgment entry of the Richland County Court of
Common Pleas and assigns the following as error:
{¶11} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
DENYING INTERVENOR-APPELLANT’S MOTION TO INTERVENE.”
I.
{¶12} In its assignment of error, appellant argues the trial court abused its
discretion in denying the motion to intervene because the trial court failed to apply Civil
Rule 24(A) and instead made a premature determination of the purported merits of
appellant’s claim, even though the merits of the underlying claim are irrelevant to a
determination of whether intervention should be allowed pursuant to Civil Rule 24(A).
{¶13} Appellee contends the order denying the motion to intervene is not a final
appealable order and, alternatively, that the trial court properly denied the motion to
intervene pursuant to the Hackett case.
{¶14} We must first determine whether the order under review is final and
appealable.
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[Cite as Daniel v. Ballitch, 2019-Ohio-5181.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: DONNA DANIEL : Hon. W. Scott Gwin, P.J. : Hon. Craig R. Baldwin, J. Plaintiff-Appellee : Hon. Earle E. Wise, J. : -vs- : : Case No. 2019 CA 0052 HAROLD BALLITCH II, M.D., ET AL : : Defendants-Appellees : OPINION
(THE DONAHEY LAW FIRM)
Appellant
CHARACTER OF PROCEEDING: Civil appeal from the Richland County Court of Common Pleas, Case No. 2018 CV 0123
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: December 11, 2019
APPEARANCES:
For Donna Daniel For Intervenor-Appellant Donahey Law Firm
SARA NICHOLS JAMES E. ARNOLD 7650 Rivers Edge Drive 115 West Main Street Suite 150 4th Floor Columbus, OH 43235 Columbus, OH 43215 Richland County, Case No. 2019 CA 0052 2
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 Richland County, Case No. 2019 CA 0052 3
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. Richland County, Case No. 2019 CA 0052 4
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 representation
with Nichols and Beausay so she terminated her fee agreement with Donahey and
executed a new fee agreement with Nichols and Beausay; and Beausay fully reimbursed
Donahey for expenses advanced on the case up to the time of separation.
{¶8} The trial court found the Hackett cases analogous to this case and, pursuant
to the authority in Hackett, found Ohio law puts a client’s right to counsel of her choice
above such concerns as the prior law firm’s investments in the training and support of
attorneys, or company overhead. Hackett v. Moore, 160 Ohio Misc.2d 107, 2010-Ohio-
6298, 939 N.E.2d 1321 (Hamilton County Common Pleas); Cincinnati Bar Assn. v.
Hackett, 129 Ohio St.3d 186, 2011-Ohio-3096, 950 N.E.2d 969. The trial court stated
appellant did not provided any affidavit or other evidence to demonstrate any attorney
fees or advances on expenses in this case remain unpaid such that appellant has a right
to intervene in the action, whereas the affidavits of Nichols and Beausay demonstrate no
fees or expenses remain due and owing to appellant.
{¶9} The trial court denied appellant’s motion to intervene and found no part of
the settlement in this case should be paid to appellant. Further, the trial court ordered the
settlement check be made payable to appellee and Beausay Law Firm, LLC. Richland County, Case No. 2019 CA 0052 5
{¶10} Appellant appeals the judgment entry of the Richland County Court of
Common Pleas and assigns the following as error:
{¶11} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
DENYING INTERVENOR-APPELLANT’S MOTION TO INTERVENE.”
I.
{¶12} In its assignment of error, appellant argues the trial court abused its
discretion in denying the motion to intervene because the trial court failed to apply Civil
Rule 24(A) and instead made a premature determination of the purported merits of
appellant’s claim, even though the merits of the underlying claim are irrelevant to a
determination of whether intervention should be allowed pursuant to Civil Rule 24(A).
{¶13} Appellee contends the order denying the motion to intervene is not a final
appealable order and, alternatively, that the trial court properly denied the motion to
intervene pursuant to the Hackett case.
{¶14} We must first determine whether the order under review is final and
appealable. Under Section 3(B)(2), Article IV of the Ohio Constitution, courts of appeals
have jurisdiction only to “affirm, modify, or reverse judgments or final orders of the courts
of record inferior to the court of appeals within the district.” Gen Acc. Ins. Co. v. Ins. Co.
of N. Am. 44 Ohio St.3d 17, 540 N.E.2d 266 (1989). If an order is not final and appealable,
then we have no jurisdiction to review the matter and must dismiss it. Id.
{¶15} To be final and appealable, an order must comply with R.C. 2505.02. R.C.
2505.02(B) provides the following, in pertinent part:
(B) An order is a final order that may be reviewed, affirmed, modified, or
reversed, with or without retrial, when it is one of the following: Richland County, Case No. 2019 CA 0052 6
(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment; * * *
{¶16} We find the Ohio Supreme Court’s case of Gehm v. Timberline Post &
Frame, 112 Ohio St.3d 514, 2007-Ohio-607, 861 N.E.2d 519, instructive in this case. See
also State ex rel. Sawicki v. Court of Common Pleas of Lucas County, 121 Ohio St.3d
507, 2009-Ohio-1523, 905 N.E.2d 1192 (reaffirming the holding in Gehm and holding the
trial court’s denial of the motion to intervene was not a final appealable order when it did
not dispose of the merits of the case). In Gehm, the Ohio Supreme Court held that, “the
denial of a motion to intervene, when the purpose for which intervention was sought may
be litigated in another action, does not affect a substantial right under R.C. 2505.02(B)(1)
that determines the action and prevents the judgment.” As a result, the Ohio Supreme
Court held in Gehm that the denial of the motion to intervene was not a final appealable
order. Id. Even though a motion to intervene is a right recognized by Civil Rule 24 and
thus intervention constitutes a substantial right under R.C. 2505.02(A)(1), because the
motion to intervene was denied, there was no order that had determined an action. Id.
{¶17} In this case, on January 14, 2019, appellant filed a civil action in the Franklin
County Court of Common Pleas against counsel for appellee, the Beausay Law Firm, for
the specific purpose of trying to recover attorney fees and expenses in all of the cases for
which Beausay was responsible before and after the separation from appellant’s firm in
April of 2018. The Franklin County case encompasses all of the cases for which Nichols,
Jeffrey Beausay, and Jacob Beausay were responsible for while associated with
appellant, including this case. The allegations contained in the Franklin County complaint
mirror those in the intervening complaint proposed by appellant in this case. Richland County, Case No. 2019 CA 0052 7
{¶18} Appellant’s proposed intervening complaint in this case includes the
following claims: breach of compensation agreement, quantum meruit, unjust
enrichment, and promissory estoppel. Appellant’s complaint in Franklin County against
counsel for appellee includes the following claims: breach of compensation agreement,
quantum meruit, unjust enrichment, conversion of appellant’s client files, tortious
interference with business relationships, misappropriation of trade secrets, and
promissory estoppel. Pursuant to Gehm, the denial of the motion to intervene in this case
is not a final appealable order because the purpose for which the intervention was sought
may, and actually is, being litigated in another action. Thus, pursuant to R.C. 2505.02,
there is no order in this case that determines the action and prevents a judgment. See
Jackson v. Proto Machine & MFG, Inc., 11th Dist. Portage No. 2013-P-0078, 2015-Ohio-
1205; Luna v. Allstate Ins. Co., 10th Dist. Franklin No. 07AP-430, 2007-Ohio-6597;
Schmidt v. AT&T, Inc., 8th Dist. Cuyahoga No. 94856, 2010-Ohio-5491; State ex rel.
Sawicki v. Court of Common Pleas of Lucas County, 121 Ohio St.3d 507, 2009-Ohio-
1523, 905 N.E.2d 1192.
{¶19} Appellant cites to this Court’s case of McKinney v. Omni Die Casting, 5th
Dist. Stark No. 2016CA00150, 2016CA00152, 2017-Ohio-2949, in support of its argument
that the denial of the motion to intervene is final and appealable. In McKinney, the Bureau
of Worker’s Compensation sought to intervene to assert its statutory right to subrogation.
Id. No such statutory right of subrogation is at issue in this case. We find this case
analogous to Gehm rather than McKinney, particularly since appellant has an action
pending against counsel for appellee in the Franklin County Court of Common Pleas. Richland County, Case No. 2019 CA 0052 8
{¶20} Further, while appellant admits it has filed a lawsuit against counsel for
appellee in another forum, it contends its right to immediately protect its interest in legal
fees earned from the settlement in this case cannot be adequately protected in the
Franklin County action. We disagree. As evidenced by the fact that the intervening
complaint in this case contains the same allegations and causes of action as contained
in the Franklin County complaint, appellant’s interest can adequately be protected in the
Franklin County action. Luna v. Allstate Ins. Co., 10th Dist. Franklin No. 07AP-430, 2007-
Ohio-6597 (holding when a former counsel for plaintiff seeks to be paid for services
rendered to the plaintiff, the denial of a motion to intervene is not a final appealable order
because the former counsel has the opportunity to litigate the quantum meruit claim for
attorney fees in the future).
{¶21} Like the appellant in Gehm, appellant in this case contends because of the
denial of the motion to intervene in this case and because the trial court discussed the
merits of appellant’s claims against counsel for appellee, appellant will be collaterally
estopped from making these arguments in the Franklin County case. We disagree. As
the Ohio Supreme Court stated in Gehm, and we specifically re-iterate here in this case,
“when a party has sought and been denied intervention, collateral estoppel will not
prohibit future litigation of similar issues.” Thus, because the trial court denied
intervention in this case, appellant will not be estopped from litigating its claims in the
Franklin County case. Further, to the extent that the trial court went beyond Civil Rule
24(A) and looked at the merits of appellant’s claims in this case, based upon the holding
in Gehm, the trial court’s analysis and decision has no impact or preclusive effect on Richland County, Case No. 2019 CA 0052 9
appellant’s rights in the Franklin County case and does not qualify as a decision on the
merits in regards to collateral estoppel or res judicata.
{¶22} Accordingly, we find the trial court’s denial of the motion to intervene in this
case, since the purpose for which intervention is sought may and is being litigated in
another action, is not a final appealable order.
{¶23} Because there is no final appealable order, this Court does not have
jurisdiction to entertain appellant’s appeal and the appeal is therefore dismissed.
By Gwin, P.J.,
Baldwin, J., and
Wise, Earle, J., concur