Haber Polk Kabat, L. L.P. v. Condominiums At Stonebridge Owners' Ass'n, Inc.

98 N.E.3d 1172, 2017 Ohio 8069
CourtCourt of Appeals of Ohio, Eighth District, Cuyahoga County
DecidedOctober 5, 2017
DocketNo. 105556
StatusPublished
Cited by4 cases

This text of 98 N.E.3d 1172 (Haber Polk Kabat, L. L.P. v. Condominiums At Stonebridge Owners' Ass'n, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Ohio, Eighth District, Cuyahoga County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Haber Polk Kabat, L. L.P. v. Condominiums At Stonebridge Owners' Ass'n, Inc., 98 N.E.3d 1172, 2017 Ohio 8069 (Ohio Super. Ct. 2017).

Opinion

EILEEN A. GALLAGHER, P.J.:

{¶ 1} In this accelerated appeal, plaintiffs-appellants Haber Polk Kabat, L.L.P. and Thompson Hine L.L.P. (collectively the "law firms") appeal an order of the Cuyahoga County Court of Common Pleas appointing a receiver in an action they filed against their former client, defendant-appellee The Condominiums at Stonebridge Owners' Association (the "Association"), to collect attorney fees due under a written contingency fee agreement. For the reasons that follow, we affirm the trial court's decision.

Factual Background and Procedural History

{¶ 2} In September 2011, the Association retained the law firms on a contingency basis "to represent [the Association] in any claim(s) and/or potential claim(s) against the developers, contractors, and architects, of Stonebridge Condominiums, as well as related adverse parties." Under the terms of the contingency fee agreement, the law firms were entitled to "a contingency fee of forty percent (40%) of [the Association's] gross recovery." "Gross recovery" was not defined in the contingency fee agreement.

{¶ 3} In accordance with the contingency fee agreement, the law firms filed suit on behalf of the Association against the K & D Group and other entities related to water infiltration issues at the Stonebridge Condominiums (the "K & D litigation"). In August 2014, the parties reached an agreement in principle to settle the K & D litigation and, in November 2014, a settlement agreement was executed. Under the terms of the settlement, the Association was to receive: (1) a cash payment of $12 million, (2) the transfer of 46 unencumbered condominium units, (3) the transfer of an adjacent parking lot with a minimum of 25 parking spaces and (4) the assignment of certain claims against third-party subcontractors. The Association paid the law firms 40% of the $12 million cash settlement-$4.8 million-and an additional $200,000 in fees from settlements of related actions against subcontractors.

*1176{¶ 4} In December 2014, ownership of the 46 condominium units was transferred to the Association by general warranty deed.1 Although there appears to be no dispute that the law firms were entitled to 40% of the entire settlement the Association received, i.e., both 40% of the cash received in the settlement and 40% of the noncash component of the settlement, there was no agreement between the Association and the law firms as to how to apply the contingency fee agreement to the noncash portion of the settlement.

{¶ 5} For more than a year, the parties engaged in discussions regarding the value of the law firm's 40% interest in the 46 condominium units or, alternatively, the terms upon which 40% of the 46 condominium units could be transferred to the law firms to satisfy the law firms' 40% interest in the noncash portion of the settlement under the contingency fee agreement. However, the parties were unable to resolve the issue.

{¶ 6} On March 31, 2016, the Association advised the law firms that it had retained a commercial real estate broker, had decided to sell the 46 condominium units at a public auction and would pay the law firms 40% of the auction proceeds.

{¶ 7} The following day, the law firms filed suit against the Association, asserting claims for breach of contract, fraud, unjust enrichment and an accounting. The law firms sought to recover compensatory damages, punitive damages, interest and attorney fees resulting from the Association's failure to pay them 40% of the value of the 46 condominium units due under the contingency fee agreement or "[i]n the alternative, ownership, without encumbrance or restriction of 40% of the 46 condominium units at issue." On April 4, 2016, the law firms filed a certificate of lis pendens with the Cuyahoga County fiscal officer.

{¶ 8} The Association filed an answer and counterclaims against the law firms and several partners of the law firms, attorneys Andrew Kabat, Richard Haber and Frank DeSantis (the "individual counterclaim defendants") (collectively the "attorneys").2 The Association asserted (1) claims for declaratory judgment, to quash the certificate of lis pendens and to quiet title against the law firms, and (2) claims for breach of fiduciary duty and professional negligence against all of the attorneys. The Association alleged that the attorneys had breached their fiduciary obligations by (1) advising the Association that it was required to pay the law firms the cash equivalent of the value of the noncash portion of the settlement under the contingency fee agreement, (2) failing to advise the Association to seek separate counsel on the issue, and (3) acting to prevent the Association from selling the real property so that it could pay the law firms the sum owed under the contingency fee agreement. The law firms filed an answer to the counterclaims and the individual counterclaim defendants filed an answer, a cross-claim against the Association and a third-party complaint asserting a contribution claim against the Association's counsel, Thacker Robinson Zinz L.P.A. ("Thacker Robinson") and one of its partners, attorney Mark Wallach (incorporating by reference *1177the law firms' complaint and first amended complaint).3

{¶ 9} On January 10, 2017, the law firms were granted leave to file an amended complaint. In their first amended complaint, the law firms (1) alleged that the Association had breached a fiduciary duty owed to the law firms by failing to preserve the value of the property and failing to pay the law firms 40% of the collected rent, (2) sought additional attorney fees relating to the transfer of the parking lot to the Association and (3) asserted a contribution claim against Thacker Robinson and Attorney Wallach.

{¶ 10} The Association filed a motion to strike the attorneys' breach of fiduciary duty claims pursuant to Civ.R. 12(F) and a motion for partial summary judgment on the attorneys' fraud claims. The attorneys filed a motion for partial summary judgment on the Association's counterclaims for breach of fiduciary duty and professional negligence, and Thacker Robinson and Attorney Wallach filed a motion to dismiss the attorneys' contribution claims.

{¶ 11} On February 21, 2017, the trial court, sua sponte, entered an order appointing a receiver pursuant to R.C. 2735.01(A)(7).4 In its journal entry, the trial court indicated that "[t]he parties have [j]udicially admitted in their pleadings and agree that Plaintiff[s] are entitled to an undivided 40% of the value of the 46 condominium units * * * [and] the 25 parking lot spaces contained within the adjacent parking lot." It found that appointment of a receiver for the property was warranted under R.C. 2735.01(A)(7) based on the following findings:

This Court finds that the appointment of receiver is proper under the agreed and admitted facts and circumstances of this case as set forth in the pleadings; and that legal and equitable grounds dictate that the appointment of receiver of the real property as described above and any personal property attendant thereto is proper pursuant to O.R.C. 2735.01(A)(7). This court finds that the appointment of a receiver is proper and necessary in order to protect, preserve and maximize the value of the aforestated real and personal property attendant thereto.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Fannie Mae v. Clarkwood Apts., L.P.
2025 Ohio 5221 (Ohio Court of Appeals, 2025)
Stern v. Rob Oldham Properties, L.L.C.
2022 Ohio 2273 (Ohio Court of Appeals, 2022)
UBS Fin. Servs., Inc. v. Assurance Invest. Mgt., L.L.C.
2019 Ohio 3661 (Ohio Court of Appeals, 2019)
State ex rel. Haber Polk Kabat, L.L.P. v. Sutula
114 N.E.3d 649 (Court of Appeals of Ohio, Eighth District, Cuyahoga County, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
98 N.E.3d 1172, 2017 Ohio 8069, Counsel Stack Legal Research, https://law.counselstack.com/opinion/haber-polk-kabat-l-lp-v-condominiums-at-stonebridge-owners-assn-ohctapp8cuyahog-2017.