Linnen Co., L.P.A. v. RoubicLinnen Co., L.P.A. v. Roubic
{¶1} Plaintiffs-Appellants Linnen Co., L.P.A. and Jerome T. Linnen, Jr. (collectively “Linnen“) appeal from the decisions of the Summit County Court of Common Pleas. For the reasons set forth below, we affirm.
I.
{¶2} Beginning around 2005, Defendants-Appellees Melissa R.V. Roubic and Roubic Law Offices, L.L.C. (collectively “Roubic“) began referring clients with personal injury legal issues to Linnen. Ms. Roubic believed that she and her law firm would receive 50% of all attorney fees received by Linnen for work done on matters she referred to Linnen. Ms. Roubic believed that she had discretion to determine which clients to refer to Linnen. Linnen believed that Roubic would receive up to 50% of all fees only if Roubic referred all potential clients seeking representation regarding personal injury matters to Linnen.
{¶3} In 2010, it became clear to Linnen that Ms. Roubic and her law firm were not referring all clients with personal injury matters to Linnen. In March 2011, Roubic filed a complaint and request for fee arbitration before the Akron Bar Association (“ABA“) with respect to fees that Roubic claimed Linnen owed Ms. Roubic based upon Linnen‘s representation of three clients. An additional client‘s complaint concerning a similar issue was referred to the ABA. The ABA concluded it had authority to hear the matter, held hearings over two days, and ultimately issued a decision finding in favor of Roubic and awarding Roubic $117,180.46 plus interest. Roubic filed a motion to confirm the award in the Summit County Court of Common Pleas, and Linnen moved to vacate the award.
{¶4} Prior to the ABA arbitration hearing, Linnen filed a three-count complaint under a separate case number in the Summit County Court of Common Pleas, seeking a declaration that there was no fee sharing agreement and that, if there was one, it was void for violating DR 2-107 and/or
{¶5} Roubic filed a motion to dismiss Linnen‘s complaint pursuant to
{¶6} Thereafter, the parties briefed the issues surrounding the confirmation or vacation of the arbitration award. The trial court confirmed the award. Mr. Linnen and his law firm have appealed, raising six assignments of error for our review, which we have rearranged to facilitate our review.
II.
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED ERROR BY FAILING TO MAKE A DETERMINATION, AS REQUIRED BY
ASSIGNMENT OF ERROR IV
THE TRIAL COURT COMMITTED ERROR BY FAILING TO VACATE THE ABA ARBITRATION AWARD PURSUANT TO
ASSIGNMENT OF ERROR V
THE TRIAL COURT COMMITTED ERROR BY FAILING TO VACATE THE ABA ARBITRATION AWARD PURSUANT TO
ASSIGNMENT OF ERROR VI
THE TRIAL COURT COMMITTED ERROR BY FAILING TO VACATE THE ABA ARBITRATION AWARD PURSUANT TO
{¶7} Mr. Linnen and his law firm assert in their third through sixth assignments of error that the trial court erred in failing to vacate the arbitration award pursuant to
{¶8} Although
{¶9} “Ohio courts give deference to arbitration awards and presume they are valid.” (Internal quotations and citations omitted.) Ward v. Ohio State Waterproofing, 9th Dist. No. 26203, 2012-Ohio-4432, ¶ 7. “A trial court‘s ability to review an arbitration award is governed by
[T]he court of common pleas shall make an order vacating the award upon the application of any party to the arbitration if:
(A) The award was procured by corruption, fraud, or undue means.
(B) There was evident partiality or corruption on the part of the arbitrators, or any of them.
(C) The arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced.
(D) The arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
{¶10} Mr. Linnen and his firm asserted in their memorandum in support of their motion to vacate the arbitration award that the award should be vacated pursuant to
R.C. 2711.10(D)
{¶11} We begin with a discussion of Linnen‘s last argument. Mr. Linnen and his law firm assert that the ABA lacked authority to conduct the arbitration because the ABA‘s authority
{¶12} Lawyers who are not in the same firm may permissibly divide fees only if they comply with the requirements of
Lawyers who are not in the same firm may divide fees only if all of the following apply:
(1) the division of fees is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation and agrees to be available for consultation with the client;
(2) the client has given written consent after full disclosure of the identity of each lawyer, that the fees will be divided, and that the division of fees will be in proportion to the services to be performed by each lawyer or that each lawyer will assume joint responsibility for the representation;
(3) except where court approval of the fee division is obtained, the written closing statement in a case involving a contingent fee shall be signed by the client and each lawyer and shall comply with the terms of division (c)(2) of this rule;
(4) the total fee is reasonable.
(Emphasis deleted.)
{¶13}
[i]n cases of a dispute between lawyers arising under this rule, fees shall be divided in accordance with the mediation or arbitration provided by a local bar association. When a local bar association is not available or does not have procedures to resolve fee disputes between lawyers, the dispute shall be referred to the Ohio State Bar Association for mediation or arbitration.
(Emphasis added.)
{¶14} Mr. Linnen and his law firm maintain that fee disputes do not “arise under” Rule 1.5 unless the lawyers have complied with
{¶15} The trial court concluded that the ABA panel had authority to decide the issues before it. “The language in
{¶16} In Shimko, the Ohio Supreme Court considered the constitutionality of former DR 2-107(B) which required the arbitration of fee disputes between lawyers who are not in the same firm. The Supreme Court upheld the constitutionality of mandatory arbitration and, in so doing, had occasion to discuss the contours and breadth of the rule. The Court pointed out that it alone had “the power and responsibility to admit and discipline persons admitted to the practice of law, to promulgate and enforce professional standards and rules of conduct, and to otherwise broadly regulate, control, and define the procedure and practice of law * * * .” Id. at ¶ 15. The Court stated that, “no person has a right to practice law, but that the practice of law is an extraordinary
{¶17} Thus, on the face of the matter, it would appear that the trial court did not err in determining that the ABA did not exceed its authority in finding it had authority to hear the matter. There is no question that Ms. Roubic and Mr. Linnen, attorneys from different firms, had a fee dispute that the ABA arbitrated. Linnen‘s main contention is that a fee dispute cannot be deemed to arise under
R.C. 2711.10(A) and (C)
{¶18} Mr. Linnen and his law firm assert in their third assignment of error that the trial court erred in failing to consider their argument that Roubic procured the award via fraud, and, thus, the award should have been vacated pursuant to
{¶19} Notably, the arbitration proceedings were not transcribed. Thus, they were not available for this Court or the trial court to review, and our review is thereby limited. See Bennett v. Sunnywood Land Dev., Inc., 9th Dist. No. 06CA0089-M, 2007-Ohio-2154, ¶ 32. We also note that the trial court was precluded from reviewing the merits upon which the award was based. Lowe, 2006-Ohio-4927, ¶ 7.
{¶20} With respect to Linnen‘s third assignment of error and the assertion that the arbitration award was procured via fraud, we agree with the trial court that this argument is not reviewable absent a transcript of the proceedings. While Mr. Linnen and his firm submitted the allegedly fraudulent affidavits that were submitted to the arbitration panel, along with evidence that they assert demonstrates the fraud, absent a transcript of all of the evidence before the arbitration panel, it is impossible to evaluate Linnen‘s claim. See Bennett at ¶ 32. Given that Mr. Linnen and his law firm claim that Ms. Roubic perpetrated a fraud upon the arbitration panel, consideration of Ms. Roubic‘s testimony to the arbitration panel would be important in evaluating his assertion. Accordingly, we overrule Linnen‘s third assignment of error.
{¶21} Mr. Linnen and his firm assert in their fourth assignment of error that that the trial court erred in failing to vacate the arbitration award pursuant to
{¶22}
On the first day of hearing Linnen appeared pro se. The day before the second day of hearing began, Linnen asked for a continuance to obtain an attorney. Roubic objected. Linnen had adequate notice of the starting date for hearing. No request for continuance was made to the Panel by Linnen prior to the first day of hearing. No attorney appeared for Linnen requesting a continuance. The motion to continue was denied.
{¶23} Prior to the hearing, the parties received a letter from the ABA informing them of the hearing date and stating that the hearing date was firm and would not be rescheduled. Mr. Linnen and his law firm contend that, because this letter stated that the hearing date was firm and that it would not be rescheduled, this indicates that the ABA panel acted improperly to deny a continuance before Linnen requested one. In other words, Mr. Linnen and his law firm suggest that the panel had already predetermined the issue and that he was foreclosed from seeking a continuance regardless of the circumstances. Linnen‘s argument is belied by the fact that Linnen did move for a continuance (albeit belatedly), and the arbitration decision indicated that the panel did in fact consider the motion and the surrounding factual circumstances. In light of the record before us, we cannot say that the trial court‘s conclusion that the arbitration panel did not abuse its discretion is erroneous as a matter of law. Accordingly, Linnen‘s fourth assignment of error is overruled.
{¶24} In their fifth assignment of error, Mr. Linnen and his law firm assert that the trial court erred in failing to vacate the arbitration award pursuant to
{¶25} Additionally, Mr. Linnen and his law firm assert that the panel failed to follow its rule that excludes disputes which appear to constitute a violation of the ethical rules from being heard by the ABA. Mr. Linnen and his law firm assert that they “presented substantial evidence to the ABA arbitration committee concerning Roubic‘s ethical violations * * * .” While some of that evidence was submitted to the trial court as well, it is unclear whether some of this evidence also took the form of testimony and discussion by the panel at the arbitration hearing. Absent a transcript of the arbitration hearing, the trial court could not fully evaluate the merits of this argument, and neither can we. See Bennett, 2007-Ohio-2154, at ¶ 32. Accordingly, Linnen‘s fifth assignment of error is overruled.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING LINNEN THE RIGHT TO ENGAGE IN DISCOVERY AS PROVIDED UNDER THE OHIO RULES OF CIVIL PROCEDURE[.]
{¶26} Mr. Linnen and his law firm essentially contend in their first assignment of error that the trial court abused its discretion in denying Linnen discovery prior to ruling on Roubic‘s motion for summary judgment concerning whether the trial court had jurisdiction over Linnen‘s claims. We do not agree.
{¶27} Linnen filed a motion “for modification of briefing schedule to permit discovery” in January 2012 following the trial court‘s order which converted Roubic‘s motion to dismiss into a motion for summary judgment. Mr. Linnen and his law firm asserted that they were entitled to discovery concerning threshold jurisdictional issues and filed the motion prior to Roubic filing the motion for summary judgment. Linnen did not attach an affidavit to the motion. Roubic opposed the motion and filed a motion to stay discovery. Also in January, Linnen filed motions to compel discovery and to deem Linnen‘s requests for admissions admitted. The trial court construed Linnen‘s motion as a motion for a continuance pursuant to
{¶28} “Initially, we note that courts have broad discretion over discovery matters.” (Internal quotations and citations omitted.) Haley v. Nomad Preservation, Inc., 9th Dist. No. 26341, 2013-Ohio-86, ¶ 12.
Should it appear from the affidavits of a party opposing the motion for summary judgment that the party cannot for sufficient reasons stated present by affidavit facts essential to justify the party‘s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.
{¶29} “A party seeking a
{¶30} We cannot say that the trial court abused its discretion. Linnen failed to demonstrate why the discovery would be necessary in light of the issues raised by Roubic‘s motion for summary judgment. The question posed by Roubic‘s motion for summary judgment was whether Linnen‘s claim could be heard by the trial court. We cannot say it was unreasonable for the trial court to conclude that it could resolve the issue without further
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED ERROR IN DISMISSING LINNEN‘S COMPLAINT IN ITS ENTIRETY, FINDING THAT IT LACKED SUBJECT-MATTER JURISDICTION.
{¶31} Mr. Linnen and his law firm assert in their second assignment of error that the trial court erred in granting Roubic‘s motion for summary judgment and dismissing Linnen‘s complaint. We do not agree.
{¶32} This Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). “We apply the same standard as the trial court, viewing the facts in the case in the light most favorable to the non-moving party and resolving any doubt in favor of the non-moving party.” Garner v. Robart, 9th Dist. No. 25427, 2011-Ohio-1519, ¶ 8.
{¶33} Pursuant to
(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). To succeed on a summary judgment motion, the movant bears the initial burden of demonstrating that there are no genuine issues of material fact concerning an essential element of the opponent‘s case. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). If the movant satisfies this burden, the nonmoving party “‘must set forth specific facts showing that there is a genuine issue for trial.‘” Id. at 293, quoting
{¶34} Linnen‘s first two claims for declaratory relief essentially sought a declaration that, due to the disagreement about the terms of the referral agreement (i.e. whether Roubic had to refer all personal injury matters to Linnen and whether the fee was up to 50% or 50%), there was no agreement or, if there was an agreement, it was void for violating DR 2-107 and/or
{¶35} There is nothing on the face of the complaint or in the record to suggest that any of the three counts represent anything other than a fee dispute between lawyers in different firms which is subject to mandatory, binding arbitration pursuant to Shimko. See Shimko, 103 Ohio St.3d 59, 2004-Ohio-4202, at ¶ 26. Mr. Linnen, by virtue of being licensed to practice law in Ohio, is obligated to abide by the Rules of Professional Conduct, thereby giving arbitrators authority to resolve the fee disputes at issue. See id. at ¶ 65. In light of the broad language in Shimko, we do not read the language of
III.
{¶36} In light of the foregoing, we overrule Linnen‘s six assignments of error and affirm the judgment of the Summit County Court of Common Pleas.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellants.
EVE V. BELFANCE
FOR THE COURT
MOORE, P.J.
HENSAL, J.
CONCUR
APPEARANCES:
JEROME T. LINNEN, JR., Attorney at Law, for Appellants.
WILLIAM D. DOWLING, Attorney at Law, for Appellee.