701 N.E.2d 774 | Ohio Ct. App. | 1997
Plaintiff-appellant, Deana L. Putnam, appeals from a judgment of the Franklin County Court of Common Pleas which referred attorney Thomas Taneff's claim for fees against plaintiff to binding arbitration before the Ohio State Bar Association pursuant to DR 2-107 (B). Because the trial court erred in referring the fee dispute between plaintiff and Taneff to binding arbitration before the Ohio State Bar Association, we reverse the judgment of the trial court and remand for further proceedings.
The lengthy and tortured history of this action began on May 5, 1993, when plaintiff filed two complaints in the common pleas court: one in the general division, contesting the inter vivos trust established by Dean E. Walcutt, and the other in the probate division, contesting Walcutt's will. On June 9, 1993, plaintiff discharged one of her attorneys, Thomas Taneff. Taneff submitted a bill to plaintiff for $21,656 for costs and attorney fees, which plaintiff refused to pay. In September 1994, Taneff filed a Notice of Attorney's Lien on Walcutt's estate. *353
After both trial and appellate proceedings, the parties on January 29, 1996, filed an agreed judgment entry indicating that the inter vivos trust and will contest actions had been settled and dismissed. On the same day, an entry was filed indicating that Taneff had agreed to release his lien on the Walcutt estate in exchange for plaintiff's agreement to place $21,656 of the settlement proceeds from the underlying actions into escrow in the common pleas court for resolution of Taneff's claim. Additionally, the entry noted, "[t]his case shall remain active and this Court shall retain jurisdiction until the disposition of the attorney fees claimed by Thomas N. Taneff is determined by this Court."
In an effort to determine Taneff's right to the money, plaintiff filed interrogatories and request for production of documents; Taneff failed to comply, and plaintiff responded on May 23, 1996 with a motion to compel discovery. When efforts to mediate a resolution of the fee dispute failed, Taneff on June 12, 1996, moved to refer the matter to the Ohio State Bar Association pursuant to DR 2-107 (B). Following full briefing, the trial court granted Taneff's motion.
Although plaintiff filed a motion for reconsideration, the trial court overruled the motion and entered judgment referring the matter to the Ohio State Bar Association for mandatory binding arbitration pursuant to DR 2-107 (B). Plaintiff appeals, assigning the following errors:
"I. The common pleas court committed reversible error by referring the issue of a discharged attorney's fees to the Ohio State Bar Association for binding arbitration.
"II. The common pleas court committed reversible error by basing its decision referring the issue of a discharged attorney's fees to the Ohio State Bar Association for binding arbitration upon a statement of counsel contained in an opposing memorandum.
"III. The common pleas court lacked jurisdiction to make any orders in connection with attorney fees.
"IV. The common pleas court abused its discretion and committed reversible error in overruling plaintiff's motion to compel discovery."
Plaintiff's third assignment of error contends that the trial court lacked jurisdiction to resolve Taneff's claim arising from the lien placed on the estate because Taneff was required to initiate a separate lawsuit to recover his fees, and could not litigate the matter in the pending case. Plaintiff's contentions highlight the somewhat unusual posture of this case, not only substantively but procedurally as well.
Ohio recognizes two types of attorney liens: (1) general, or retaining liens, and (2) special, or charging liens. FireProtection Resources, Inc. v. *354 Johnson Fire Protection Co. (1991),
An attorney may also have a special or charging lien upon a judgment, decree, or award obtained for a client. See Mancino v.Lakewood (1987),
Here, we need not determine whether Taneff could place a charging lien on settlement proceeds, as he did not attempt to do so. Rather, he filed a prejudgment lien on the Walcutt estate. Moreover, we need not determine whether such a prejudgment lien is appropriate, as plaintiff and Taneff agreed the lien would be discharged in exchange for plaintiff's escrowing $21,656 of the settlement proceeds to resolve Taneff's claim for fees. The foregoing, however, undermines Taneff's reliance on FireProtection to support his contention that the trial court had jurisdiction to adjudicate his claim as part of the underlying action.
Fire Protection states that "`until a judgment is fully executed, the court retains jurisdiction of the subject matter and the parties for the purpose of hearing any motion affecting such judgment, and if the attorney desires to have his lien established and declared against such judgment, he may apply to the court for that purpose. * * * An attorney's lien is enforceable through the control the courts have of their judgments and records, and by means of their own process.'" Id.,
Nonetheless, the trial court stated in its January 29, 1996 entry that it was retaining jurisdiction over the matter until Taneff's claim for attorney fees was resolved. Plaintiff never objected to the trial court's action during the proceedings, and indeed sought discovery from Taneff, and then discovery sanctions from the court. Only on appeal does plaintiff question the trial court's jurisdiction in this case, making two claims: (1) the trial court's subject matter jurisdiction was never properly invoked, and (2) the trial court never obtained personal jurisdiction over her.
Plaintiff's complaint about the trial court's lack of personal jurisdiction was waived in plaintiff's requesting discovery and in seeking discovery sanctions from the court, as her actions plainly indicate that she submitted to the court's exercise of personal jurisdiction over her. While parties cannot confer subject matter jurisdiction upon a court, Fox v. Eaton Corp.
(1976),
Finally, as to subject matter jurisdiction, plaintiff does not contend that the court lacked jurisdiction of the subject matter generally, but that it was never properly invoked. Plaintiff, however, agreed to the trial court's retaining jurisdiction to resolve the fee dispute, and she may not claim now that a separate action is necessary to decide that issue.
Accordingly, plaintiff's third assignment of error is overruled.
Plaintiff's first and second assignments of error are interrelated, and thus we address them jointly. Together they raise the issue of whether the trial court properly referred the underlying dispute concerning Taneff's attorney fees to binding arbitration pursuant to DR 2-107 (B), which states:
"In cases of dispute between lawyers arising under this rule, fees shall be divided in accordance with mediation or arbitration provided by a local bar association. Disputes that cannot be resolved by a local bar association shall be referred to the Ohio State Bar Association for mediation or arbitration." *356
DR 2-107 (B) does not purport to encompass fee disputes between a client and his or her attorney. Indeed, were it to do so the rule would raise substantial constitutional questions, as it would deprive nonlawyers, not bound by the Code of Professional Responsibility, of the ability to litigate an attorney's claim for fees. Rather, DR 2-107 (B) applies to the dispute between or among two or more attorneys disagreeing on dividing an agreed fee. The issue under plaintiff's first and second assignments of error, then, resolves to whether the dispute at issue is between plaintiff and Taneff, or between plaintiff's two attorneys, Taneff and Smith.
According to the evidence before the trial court, Taneff's originally hired by Deana L. Putnam and others to act as co-counsel with attorney Scott E. Smith, pursuant to a contingency fee Agreement dated January 27, 1993 * * *." A copy of the agreement is attached to Taneff's affidavit and provides that the clients1 retain and employ the attorneys to act for them, in exchange for which the attorneys will receive thirty-three and one-third percent of whatever sum may be recovered before filing suit, and forty percent if suit is filed. According to the agreement, "[i]n the event services of the attorney are needed or requested following settlement or after one trial, a new and separate agreement will be entered into by client and attorney. If no agreement is entered into, attorneys shall proceed on behalf of the client at $150 per hour." The agreement further stipulates that any money received by either party on account of any settlement or judgment shall be held until distribution is made according to the agreement. The agreement apparently further authorizes the attorneys to place a lien on all documents, property, or money in their possession for the payment of all sums due, and finally concludes that "if a dispute or controversy arises as to payment of fees or costs, the client is responsible for all fees and costs incurred by Attorney, first by arbitration2 and after that by suit, if necessary." (Footnote added.) Taneff and Smith agreed to divide the contingency fee, fifty-five percent to Smith and forty-five percent to Taneff. By letter dated June 19, 1993, Taneff's services were terminated.
Given the foregoing evidence, plaintiff, not Smith, hired Taneff. Taneff and Smith simply agreed how to divide the fee between them. Moreover, the evidence indicates that plaintiff has consistently maintained throughout the action that (1) she disputes the amount of money to which Taneff is entitled, and (2) she *357 has not consented to Taneff's recovering any portion of the $21,656 held in escrow.
As the Ohio Supreme Court pointed out in Reid, Johnson, Downes,Andrachik Webster v. Lansberry (1994),
Here, Taneff was discharged prior to the recovery sought in the underlying action, and thus is not entitled to the contingent fee under the agreement between plaintiff and himself. However, on settlement of the underlying action, he became entitled to recovery in quantum meruit. The amount to which he is entitled has never been determined; plaintiff has not agreed to that amount, and no tribunal has determined the amount under the parameters set forth in the Supreme Court's opinion in Lansberry. Plaintiff is entitled to litigate that matter either in a court of law or pursuant to the terms of her fee agreement with Taneff. She may not be forced to have that determined under DR 2-107 (B) in a mandatory binding arbitration procedure before the Ohio State Bar Association.
Moreover, the statement in one of plaintiff's memoranda that noted that Smith also claimed a right to the money held in escrow does not deprive plaintiff of her right to litigate the amount owed to Taneff. While plaintiff may yet owe Smith attorney fees for his work on the case, and in that sense owes him from the settlement proceeds being held in escrow, her obligation to Smith does not create a concomitant obligation to pay Taneff unless Taneff is determined to be entitled to fees under a quantum meruit theory.
Given the foregoing, the trial court erred in referring this matter to binding mandatory arbitration before the Ohio State Bar Association pursuant to DR 2-107 (B). To that extent, plaintiff's first two assignments of error are sustained.
In her final assignment of error, plaintiff contends that the trial court erred in failing to grant her motion to compel discovery. The trial court overruled the motion, finding it moot due to the court's having referred the matter to binding arbitration before the bar association. Because we have reversed that ruling, the trial court on remand may consider the propriety of plaintiff's motion to compel discovery. To that extent, plaintiff's fourth assignment of error is sustained. *358
Having overruled plaintiff's third assignment of error, but having sustained her first, second, and fourth assignments of error to the extent indicated, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
Judgment reversed and case remanded.
PEGGY BRYANT, PETREE and LAZARUS, JJ., concur.