Galloway v. Galloway
2017 Ohio 87
| Ohio Ct. App. | 2017Background
- Mark Galloway retained Reminger Co., L.P.A. to litigate claims involving his father’s revocable trust and related suits affecting his inheritance of real property.
- Reminger’s representation produced a settlement/judgment by which Galloway obtained title to two parcels of land held in his father’s trust.
- Galloway did not pay outstanding attorney fees; Reminger filed a motion in probate court to enforce a charging lien in the amount of $112,665.08 against the real property awarded to Galloway.
- Probate court held an evidentiary hearing, found Reminger’s services helped secure the judgment Galloway sought, and granted a charging lien on the real property to secure payment.
- Galloway appealed, raising five assignments of error: lack of probate court jurisdiction to entertain the fee-collection motion; inability to impose a charging lien where fee agreement was hourly (not contingent); charging lien cannot attach to real property; inclusion of fees for related-defense work; and improper attachment to property titled in a trust.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Subject-matter jurisdiction to decide fee dispute in probate court | Probate court lacked jurisdiction to hear a collection action between lawyer and client absent trust/estate paying fees | Probate court had concurrent and plenary jurisdiction over the underlying trust litigation and post-judgment motions affecting that judgment | Court upheld probate court jurisdiction under R.C. 2101.24 concurrent/plenary powers; motion properly heard there |
| Whether hourly-fee agreement precludes a charging lien | Charging lien allowable only for contingency agreements or express lien agreements | Charging liens recognized regardless of contingency; equitable lien attaches when attorney created the fund/judgment | Court held charging lien permitted even where fee agreement was hourly; attorney’s equitable lien applies |
| Whether charging lien may attach to real property (not just monetary fund) | Charging lien limited to money/funds, not real property | Equitable principle: attorney who creates the fund (here, real property judgment) may have lien on it | Court upheld lien on real property; no prohibition where attorney’s services produced the property judgment |
| Inclusion of fees for defending related suits in lien amount | Fees for separate/unrelated case cannot be charged against recovery here | Related defense work was intertwined with and necessary to obtain the property result | Court found defense work was part of the same overall representation and could be included in charging lien |
| Attaching lien to property held in trust (not individually titled) | Property titled in family trust (and owner not party) cannot be charged; claimant lacked notice of alleged fraudulent transfer | Transfers after notice were made to avoid creditor and trust was revocable; equitable power to treat transfer as ineffective against creditor | Court held transfer into revocable family trust did not prevent attachment; fraudulent-transfer theory supports lien attaching to trust-held property |
Key Cases Cited
- Corron v. Corron, 40 Ohio St.3d 75 (Ohio 1988) (probate court limited jurisdiction; concurrent jurisdiction over inter vivos trusts)
- Fire Protection Resources, Inc. v. Johnson Fire Protection Co., 72 Ohio App.3d 205 (Ohio App. 1991) (factors and procedure for courts to entertain charging-lien motions in actions producing the judgment)
- Cohen v. Goldberger, 109 Ohio St. 22 (Ohio 1923) (attorney’s equitable right to be paid out of judgment — lien exists even absent express agreement)
- Wagner v. Galipo, 50 Ohio St.3d 194 (Ohio 1990) (fraudulent conveyance finding and creditor relief may be made without separate complaint when facts show transfer to avoid creditor)
- Putnam v. Hogan, 122 Ohio App.3d 351 (Ohio App. 1997) (distinguishes retaining vs. charging liens and recognizes charging liens on judgments)
- Mancino v. Lakewood, 36 Ohio App.3d 219 (Ohio App. 1987) (attorney lien premised on equity that attorney should be paid from the judgment created by services)