Marshall v. Elliott

2017 Ohio 5813

• Court: Ohio Court of Appeals
• Decided: July 13, 2017
• Docket: 104959
• Status: Published

Opinion

[Cite as Marshall v. Elliott, 2017-Ohio-5813.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 104959

KATHLEEN MARSHALL PLAINTIFF-APPELLANT

vs.

COOPER & ELLIOTT, ET AL.

DEFENDANTS-APPELLEES

JUDGMENT: AFFIRMED IN PART; REVERSED IN PART

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-13-817284

BEFORE: E.A. Gallagher, P.J., E.T. Gallagher, J., and Laster Mays, J.

RELEASED AND JOURNALIZED: July 13, 2017 ATTORNEYS FOR APPELLANT

Randy J. Hart Randy J. Hart, L.L.P. 3601 South Green Road, #309 Beachwood, Ohio 44122

A. Scott Fromson A. Scott Fromson Attorney at Law 32125 Solo Road Solon, Ohio 44139

For Michael A. Dolan

Michael J. O’Shea O’Shea & Associates Co., L.P.A. 700 West St. Clair, Suite 110 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEES

Charles H. Cooper Rex H. Elliott Cooper & Elliott, L.L.C. 2175 Riverside Drive Columbus, Ohio 43221

For Anthony O. Calabrese, III

John R. Christie Lewis, Brisbrois, Bisgaard, & Smith L.L.P. 1375 East Ninth Street, Suite 2250 Cleveland, Ohio 44114 EILEEN A. GALLAGHER, P.J.:

{¶1} Plaintiff-appellant, Kathleen Marshall appeals from the order of the

Cuyahoga County Court of Common Pleas granting summary judgment in favor of

defendants-appellees, Charles H. Cooper, Rex H. Elliott, Cooper & Elliott, L.L.C. and

Anthony O. Calabrese III. For the following reasons, we affirm in part, and reverse in

part.

Facts and Procedural Background

{¶2} On November 14, 2013 appellant filed a complaint against appellees alleging

claims for breach of contract, conversion, fraud and civil conspiracy. These claims

arose out of appellant’s central allegation that appellees conspired with her ex-husband,

G. Timothy Marshall, to conceal attorney fees to which he was entitled, for work

performed in conjunction with appellees during a class action lawsuit from the marital

estate, during her divorce from Marshall. As a part of the divorce settlement appellant

was assigned any contractual rights her husband possessed in this matter.

{¶3} The record reflects that the Law Offices of G. Timothy Marshall, Cooper &

Elliott and Michael Dolan were involved as attorneys of record in a class action lawsuit

involving the unlawful provision of consumer credit information by TransUnion. Dolan

and Marshall worked with Cooper & Elliott to identify class members for the multidistrict

litigation that resulted in a settlement for their clients and attorney fees in the amount of

$1,234,045.00. The fees were distributed after appellant and Marshall had separated but

before their divorce proceeding began. Cooper & Elliott retained $617,000.00 of the fees and distributed $308,000.00 to Dolan and $308,000.00 to Marshall’s nephew,

Calabrese. Calabrese paid Marshall $17,500.00 of the money he received from Cooper

& Elliott.

{¶4} Cooper & Elliott credited Calabrese with the plan to join in the TransUnion

action and maintain that, although he was never listed as an attorney of record in the case,

Calabrese’s role was to assist in developing and implementing the TransUnion strategy,

drafting and editing pleadings, coordinating the entry of claims into a database and to

undertake some of the expenses. In defense of the decision to distribute the $308,000.00

in TransUnion fees to Calabrese rather than the law office of G. Timothy Marshall,

Cooper and Elliott allege that they reasonably believed that Calabrese was operating in an

of-counsel role for Marshall’s firm. They further cite an affidavit wherein Marshall

averred that he had been appropriately paid for his efforts in the TransUnion matter by

Calabrese.

{¶5} Conversely, appellant maintains that Cooper & Elliott breached the

TransUnion attorney fee agreement by directing Marshall’s fees to Calabrese when he

was never listed as an attorney of record in the agreement. She similarly maintains that

the fees were converted by the parties and that they engaged in a fraudulent scheme and

civil conspiracy to shield the fees from the marital estate during her divorce.

{¶6} The trial court granted summary judgment on all of appellant’s claims against

appellees. After the remaining claims by and against other parties were dismissed,

appellant filed the instant appeal. Law and Analysis

{¶7} We review summary judgment rulings de novo, applying the same standard as

the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996 Ohio 336, 671

N.E.2d 241 (1996). We accord no deference to the trial court’s decision and

independently review the record to determine whether summary judgment is appropriate.

{¶8} Under Civ.R. 56, summary judgment is appropriate when (1) no genuine

issue as to any material fact exists, (2) the party moving for summary judgment is entitled

to judgment as a matter of law and (3) viewing the evidence most strongly in favor of the

nonmoving party, reasonable minds can reach only one conclusion that is adverse to the

nonmoving party.

{¶9} On a motion for summary judgment, the moving party carries an initial

burden of identifying specific facts in the record that demonstrate his or her entitlement to

summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 1996-Ohio-107, 662

N.E.2d 264. If the moving party fails to meet this burden, summary judgment is not

appropriate; if the moving party meets this burden, the nonmoving party has the

reciprocal burden to point to evidence of specific facts in the record demonstrating the

existence of a genuine issue of material fact for trial. Id. at 293. Summary judgment is

appropriate if the nonmoving party fails to meet this burden. Id.

I. Breach of Contract

{¶10} In considering summary judgment on appellant’s breach of contract claim,

the trial court concluded that the record demonstrates a breach of contract by Cooper & Elliott regarding the disbursement of attorney fees in this instance. We agree that the

facts raise a genuine issue of material fact as to whether Cooper & Elliott breached their

contract with Marshall. Cooper & Elliot attempt to justify the disbursement of

Marshall’s share of the TransUnion Fees to Calabrese by arguing that they reasonably

relied upon their belief that Anthony Calabrese III represented the Law Office of G.

Timothy Marshall in an of-counsel attorney position. Cooper & Elliot argue that this

belief was reasonable because (1) Calabrese had recently left another firm and his new

firm was in the formative stages, (2) Marshall’s law firm was well established and (3)

Calabrese had a close, personal relationship with Marshall because he was Marshall’s

nephew. Cooper & Elliot further assert that Calabrese was a “point of contact” with

Marshall and emails indicated the two attorneys shared the same legal assistant.

{¶11} None of these points firmly established an of-counsel relationship between

Calabrese and Marshall’s firm. In fact, the reasonableness of Cooper & Elliott’s belief

is called into question by a September 18, 2009 email from Chip Cooper to Calabrese

wherein Cooper stated: “We should talk about how we make sure you’re included (e.g.

are you ‘of counsel’ to Mike Dolan, do we need to list your firm, etc.)”’ It is clear from

this communication that the question of Calabrese’s formal role and relationship to the

parties had been raised and that Cooper was apparently aware that Calabrese had his own

firm. There is no explanation for the parties’ decision to omit Calabrese’s name from

the listed attorneys in the TransUnion litigation, nor is there an explanation why Cooper

& Elliott chose to assume an of-counsel relationship existed when (1) the question had been raised by Cooper and (2) a single phone call or email to Marshall or Calabrese could

have provided a definitive resolution. Reasonable minds could reach differing

conclusions in regards to the reasonableness of Cooper & Elliott’s belief that Calabrese

was of-counsel to Marshall’s firm.

{¶12} We diverge from the trial court’s analysis with its conclusion that appellant

is unable to demonstrate damages due to Marshall’s alleged ratification of the fee

disbursement and his averment that he was paid appropriately by Calabrese. There is no

dispute that the fees should have been distributed to Marshall’s firm. If Calabrese was

an independent attorney in this matter he should have been listed on the various court

filings in the TransUnion case and be paid for his role pursuant to the fee agreement

amongst the several attorneys. If, instead, we accepted Cooper & Elliott’s view of the

facts, the fees should still have been dispersed to Marshall’s firm and then divided

appropriately to any of-counsel attorneys under Marshall’s direction. Neither of these

occurred. Instead, we are left with Marshall’s contention that he was paid appropriately

by Calabrese. However, Marshall, having assigned his claims pertaining to the

TransUnion fees to appellant, is no longer a party-plaintiff in this case and his averments

cannot be treated as stipulations by appellant. Appellant has clearly challenged the

veracity of the statements made by her ex-husband, alleging that he engaged in a scheme

to shelter the TransUnion fees in their divorce. Cooper & Elliott’s alleged breach of

contract in disbursing fees directly to Calabrese rather than through any of the

above-listed options plainly prejudiced appellant’s ability to resolve this matter within the confines of the divorce action. On these facts, we find a genuine issue of material fact

exists.

{¶13} Appellant’s first assignment of error is sustained.

II. Conversion

{¶14} Appellant argues in her second assignment of error that the trial court erred

in granting summary judgment in favor of appellees on her conversion claim.

{¶15} The elements of conversion are “(1) plaintiff's ownership or right to

possession of the property at the time of conversion; (2) defendant’s conversion by a

wrongful act or disposition of plaintiff’s property rights; and (3) damages.” Dream

Makers v. Marshek, 8th Dist. Cuyahoga No. 81249, 2002-Ohio-7069, ¶ 19, quoting Haul

Transport of Va., Inc. v. Morgan, 2d Dist. Montgomery No. CA 14859, 1995 Ohio App.

LEXIS 2240 (June 2, 1995). Conversion is “any distinct act of dominion wrongfully

exerted over one’s property in denial of his rights or inconsistent with it.” Schiff v.

Dickson, 8th Dist. Cuyahoga Nos. 96539 and 96541, 2011-Ohio-6079, ¶ 30.

{¶16} We find that summary judgment was appropriate as to appellant’s

conversion claim based on the holding in Landskroner v. Landskroner, 154 Ohio App.3d

471, 2003-Ohio-5077, 797 N.E.2d 1002, ¶ 27 (8th Dist.) (“Because the property subject

to appellant’s conversion claim is not identifiable, personal property but rather comprises

monies appellant claims are due and owing him under an agreement, appellant can prove

no set of facts that would entitle him to recover on his claim for conversion.”). Appellant’s conversion claim plainly falls within the ambit of Landskroner and is barred

by the holding in that case.

{¶17} Appellant’s second assignment of error is overruled.

III. Fraud and Civil Conspiracy

{¶18} In her third and fourth assignments of error appellant argues that the trial

court erred in granting summary judgment in favor of appellees on her fraud and civil

conspiracy claims. We agree.

{¶19} A case for common law fraud requires proof of the following elements: (1) a

representation or, where there is a duty to disclose, concealment of a fact, (2) which is

material to the transaction at hand, (3) made falsely, with knowledge of its falsity, or with

such utter disregard and recklessness as to whether it is true or false that knowledge may

be inferred, (4) with the intent of misleading another into relying upon it, (5) justifiable

reliance upon the representation or concealment and (6) a resulting injury proximately

caused by the reliance. Cohen v. Lamko, Inc., 10 Ohio St.3d 167, 169, 462 N.E.2d 407

(1984).

{¶20} The elements of a civil conspiracy claim include: (1) a malicious

combination, (2) involving two or more persons, (3) causing injury to person or property,

and (4) the existence of an unlawful act independent from the conspiracy itself. Universal

Coach, Inc. v. New York City Transit Auth., Inc., 90 Ohio App.3d 284, 292, 629 N.E.2d

28 (8th Dist. 1993). {¶21} We find genuine issues of material fact exist on both these claims.

Calabrese and Cooper & Elliott’s explanation for the peculiar oddities and abnormality of

the fee disbursement process vis-a-vis Calabrese and Marshall may be entirely truthful

and valid. However, the questionable circumstances of the disbursement itself raise a

genuine issue of material fact such that the credibility of the explanations should be

resolved by a finder of fact rather than on summary judgment.

{¶22} Appellant’s third and fourth assignments of error are sustained.

{¶23} The judgment of the trial court is affirmed in part, and reversed in part and

remanded to the lower court for further proceedings consistent with this opinion.

It is ordered that appellant and appellee share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to Cuyahoga County Court of Common

Pleas to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

_______________________________________________ EILEEN A. GALLAGHER, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and ANITA LASTER MAYS, J., CONCUR