Wood v. Shultz

[Cite as Wood v. Shultz, 2019-Ohio-5398.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ANGEL WOOD, ET AL. : JUDGES:
:
Plaintiffs : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
-vs- : Hon. Patricia A. Delaney, J.
:
BRENDA SHULTZ, ET AL. : Case No. CT2019-0011
:
Defendants-Appellees :
:
-vs- :
:
BRIAN BENBOW : OPINION
:
Appellant :
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CC2017-0125
JUDGMENT: APPEAL DISMISSED
DATE OF JUDGMENT ENTRY: December 26, 2017
APPEARANCES:
For Appellant: For Defendants-Appellees:
BRIAN BENBOW, PRO SE M. JASON FOUNDS
6005 Southview Dr. 471 East Broad St., 19th Floor
Nashport, OH 43830 Columbus, OH 43215-3872
Muskingum County, Case No. CT2019-0011 2
Delaney, J.
{¶1} Appellant Brian Benbow appeals the January 18, 2019 judgment entry of
the Muskingum County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
Personal Injury Action
{¶2} Appellant-Attorney Brian Benbow represented Plaintiffs Angel Mercer-
Wood and Troy Harding in a personal injury action filed in the Muskingum County Court
of Common Pleas on April 10, 2017. Mercer-Wood and Harding alleged they were injured
in a car accident due to the negligence of Defendant-Appellee Brenda Shultz. Plaintiffs
also named State of Ohio Medicaid Program as a party defendant, which filed a cross-
claim against Shultz.
{¶3} The matter proceeded to a jury trial and on May 18, 2018, the jury found
Shultz was negligent. The jury awarded Harding $5,538.89 in compensatory damages
and Mercer-Wood $9,239.51 in compensatory damages.
{¶4} Mercer-Wood and Harding filed a motion for new trial and motion for
judgment notwithstanding the verdict. On June 5, 2018, the trial court journalized the
verdict. The trial court denied the motion for new trial and motion for judgment
notwithstanding the verdict on July 6, 2018. Mercer-Wood and Harding did not appeal the
judgments.
Attorney Suspension
{¶5} On July 18, 2018, the Ohio Supreme Court suspended Benbow from the
practice of law for two years, with the second year stayed. Disciplinary Counsel v.
Benbow, 153 Ohio St. 3d 350, 2018-Ohio-2705, ¶ 21. Benbow filed a notice of
Muskingum County, Case No. CT2019-0011 3
disqualification with the Muskingum County Court of Common Pleas on August 2, 2018.
Plaintiffs did not substitute counsel.
Satisfaction of Judgment and Charging Lien
{¶6} On August 24, 2018, Shultz filed a Motion for a Satisfaction of Judgment
Entry. In her motion, Shultz stated that her insurer, State Farm, and counsel sent payment
on August 20, 2018 via certified mail to Mercer-Wood and Harding in the amount of the
judgments. The payments totaled the full amount of the judgment for each Plaintiff, with
separate checks made payable to Plaintiff and Ohio Tort Recovery in satisfaction of
Plaintiffs’ statutory obligation to reimburse Medicaid for its payments made on behalf of
Plaintiffs for medical expenses. State Farm paid Ohio Tort Recovery $1,930.89 and
Harding $3,608.00. State Farm paid Ohio Tort Recovery $2,673.27 and Mercer-Wood
$6,566.24.
{¶7} Shultz filed a supplemental motion on September 17, 2018 demonstrating
Mercer-Wood and Harding received the payments on August 23, 2018.
{¶8} On October 11, 2018, Benbow filed a Motion to Enforce a Charging Lien
Against Harding, Mercer-Wood, State Farm, and Ohio Medicaid. He also filed a
Memorandum Contra to the Motion for a Satisfaction of Judgment. In his motion to enforce
a charging lien, Benbow requested the trial court place a charging lien on the judgment
for alleged attorney’s fees owed from Harding and Mercer-Wood based on a contingent
fee agreement. Benbow argued the contingent fee agreed stated he was owed 40% of
the gross judgment, equating to $6,475.93. Benbow claimed he was unaware Shultz had
moved for a satisfaction of the judgment in August because he was not served with a
Muskingum County, Case No. CT2019-0011 4
copy of the motion. Benbow became aware that Harding and Mercer-Wood received the
judgment monies on October 8, 2018.
{¶9} On October 15, 2018, the trial court granted the Motion for Satisfaction of
Judgment and filed an order stating the judgments were paid in full and satisfied. Costs
were assessed to Shultz.
{¶10} On October 25, 2018, Shultz and State Farm filed a combined Motion to
Strike Benbow’s Motion to Enforce a Charging Lien. In their response, Shultz and State
Farm argued Benbow’s charging lien was unenforceable against third parties because
the contingent fee agreement appeared defective, Benbow did not intervene in the action,
and Benbow failed to put the affected third-parties on notice of his claimed interest in the
judgment. Benbow filed a memorandum contra on October 29, 2018, that included the
affidavits of Brian Benbow and Amanda Kildow.
{¶11} Also on October 29, 2018, Benbow filed a Motion to Reconsider the trial
court’s October 15, 2018 judgment entry. He argued the October 15, 2018 judgment entry
granting the satisfaction of judgment was not a final appealable order because Benbow’s
motion to enforce a charging lien was pending at the time the trial court ruled. Benbow
further moved to intervene as a party plaintiff, pursuant to Civ.R. 24, in order to protect
his interest relating to his attorney’s fees and charging lien.
{¶12} Shultz responded to the motions on November 7, 2018. She also filed a
Motion to Strike Benbow’s Reply to Memorandum Contra Motion to Enforce Charging
Lien and Affidavits of Brian Benbow and Amanda Kildow. Benbow filed replies on
November 13, 2018. Shultz filed sur-replies on November 26, 2018.
Muskingum County, Case No. CT2019-0011 5
{¶13} On January 18, 2019, the trial court granted Shultz’s Motion to Strike
Benbow’s Reply to Memorandum Contra Motion to Enforce Charging Lien and Affidavits
of Brian Benbow and Amanda Kildow filed on October 25, 2018.1 It denied Benbow’s
Motion for Reconsideration and Motion to Intervene.
{¶14} On February 14, 2019, Benbow filed a Notice of Appeal of the trial court’s
January 18, 2019 judgment entry. On March 1, 2019, Shultz filed a Motion to Dismiss
Benbow’s appeal. In this Opinion, we consider the Motion to Dismiss the appeal and the
Assignments of Error.
ASSIGNMENTS OF ERROR
{¶15} Benbow raises five Assignments of Error:
{¶16} “I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN
SUMMARILY DISMISSING BRIAN BENBOW [SIC] MOTION TO ENFORCE A
CHARGING LIEN AND BY SUMMARILY STRIKING THE MOTIONS, AFFIDAVITS AND
EXHIBITS FILED BY BRIAN BENBOW. IN SO DOING, THE TRIAL COURT
COMPLETELY VIOLATED ITS EXPRESS AND UNAMBIGUOUS DUTY TO
ADJUDICATE BRIAN BENBOW’S CHARGING LIEN MOTION IN VIOLATION OF THE
CASE LAW SET FORTH BY FIRE PROTECTION RESOURCES, INC. V. JOHNSON
FIRE PROTECTION CO., 72 OHIO APP.3D 205, 211, 594 N.E.2D 146 (6TH DIST.1991),
WHICH HOLDS THAT THE TRIAL COURT IN WHICH THE JUDGMENT WAS
RENDERED MUST ENTERTAIN THE ATTORNEY’S CHARGING LIEN MOTION.
1On October 25, 2018, Shultz and State Farm filed a “Motion to Strike the Motion of Non-Party Brian
Benbow to Enforce a Charging Lien Against Troy Harding, Angel Mercer (Wood), State Farm Ins Co and
Ohio Medicaid.” On November 7, 2018, Shultz filed a “Motion to Strike Mr. Benbow’s Reply to
Memorandum Contra Motion to Enforce Charging Lien and Affidavits of Brian Benbow and Amanda
Kildow.”
Muskingum County, Case No. CT2019-0011 6
{¶17} “II. IN THAT THE TRIAL COURT HAD PENDING BEFORE IT BRIAN
BENBOW’S CHARGING LIEN MOTION PRIOR TO THE TRIAL COURT ISSUING
SATISFACTION OF JUDGMENT, THE TRIAL COURT COMMITTED PREJUDICIAL
ERROR BY NOT ADJUDICATING THE PRIORITY OF LIENS BETWEEN BRIAN
BENBOW AND MEDICAID, WHICH PARTY WAS FULLY PAID ITS LIEN BY APPELLEE
IN VIOLATION OF THE CASE LAW SET FORTH BY COHEN V. GOLDBERGER (1923),
109 Ohio St. 22, 141 N.E. 656.
{¶18} “III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY NOT
ADDRESSING BRIAN BENBOW’S CLAIMS AGAINST MEDICAID, TROY HARDING
AND ANGEL MERCER, WHEN NONE OF THESE PARTIES RESPONDED TO BRIAN
BENBOW’S CHARGING LIEN MOTION AND WHICH PARTIES WERE NOT AFFECTED
BY THE MOTION FOR A SATISFACTION OF JUDGMENT.
{¶19} “IV. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN
SUMMARILY STRIKING THE MOTIONS, AFFIDAVITS AND EXHIBITS FILED BY
BRIAN BENBOW. IN SO DOING, THE TRIAL COURT VIOLATED THE OHIO AND
FEDERAL CONSTITUTIONS IN THAT THE TRIAL COURT’S ACTIONS AFFORDED NO
PROCEDURAL AND SUBSTANTIVE DUE PROCESS TO BRIAN BENBOW.
{¶20} “V. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN
DENYING BRIAN BENBOW’S MOTION TO INTERVENE IN THAT BRIAN BENBOW
HAD AN ABSOLUTE RIGHT TO INTERVENE AS A MATTER OF RIGHT.”
Muskingum County, Case No. CT2019-0011 7
ANALYSIS
Motion to Dismiss Appeal
Jurisdiction under App.R. 4(A)
{¶21} Before we address the merits of Benbow’s appeal, we consider Shultz’s
Motion to Dismiss Appeal. On March 1, 2019, Shultz filed a motion with this Court arguing
Benbow’s appeal should be dismissed because he filed the appeal outside of the 30-day
time requirement of App.R. 4(A), therefore this Court lacks jurisdiction to consider the
appeal. Her argument this Court does not have jurisdiction to consider the appeal is
premised on the contention that the October 15, 2018 judgment entry granting the
satisfaction of judgment was a final appealable order. She argues that while Benbow filed
a Motion to Enforce a Charging Lien and a Memorandum Contra to Shultz’s Motion for
Satisfaction of Judgment on October 11, 2018, the trial court granted the request for
satisfaction of judgment on October 15, 2018, thereby implicitly denying Benbow’s motion
for a charging lien. The October 15, 2018 judgment entry granting the request for
satisfaction of judgment was a final appealable order and Benbow had until November
14, 2018 to file an appeal of that order. Instead of filing an appeal of the October 15, 2018
judgment entry, Benbow filed a Motion for Reconsideration and Motion to Intervene. The
trial court denied Benbow’s motions on January 18, 2019 and Benbow filed a Notice of
Appeal of that entry on February 14, 2019.
{¶22} Benbow responded to the Motion to Dismiss on March 12, 2019. He argues
the October 15, 2018 judgment entry was not a final appealable order because (1) his
motion to enforce a charging lien was still pending at the time the trial court ruled, (2) the
October 15, 2018 judgment entry did not dispose of all issues and did not contain Civ.R.
Muskingum County, Case No. CT2019-0011 8
54(B) language, and (3) the Motion for Satisfaction of Judgment and the October 15, 2018
judgment entry were never served upon Benbow. Because the October 15, 2018
judgment entry was not final appealable, the Benbow contends the trial court was free to
reconsider its ruling. Benbow contends the trial court’s January 18, 2019 judgment entry
denying Benbow’s motion to reconsider was a final appealable order from which Benbow
timely appealed.
{¶23} Shultz filed a reply to its Motion to Dismiss on March 21, 2019.
Charging Lien
{¶24} Benbow contends his Motion to Enforce Charging Lien was pending at the
time the trial court granted the satisfaction of judgment, therefore the October 15, 2018
judgment entry was not a final appealable order. To assist in our analysis, we first
describe the concept of a “charging lien.” Ohio recognizes two types of attorney liens: (1)
general, or retaining liens, and (2) special, or charging liens. Kisling, Nestico & Redick,
L.L.C. v. Progressive Max Ins. Co., 2018-Ohio-1207, 110 N.E.3d 681, ¶ 14 (8th Dist.)
citing Putnam v. Hogan, 122 Ohio App. 3d 351, 353-354, 701 N.E.2d 74 (10th Dist.1997)
citing Fire Protection Resources, Inc. v. Johnson Fire Protection Co., 72 Ohio App. 3d
205, 594 N.E.2d 146 (6th Dist.1991). Under 2 Restatement of Law 2d, Agency, Section
464(e) (1958),
[a]n attorney of record who has obtained a judgment has a security interest
therein, as security for his fees in the case and for proper payments made
and liabilities incurred during the course of the proceedings.
Bd. Of Commrs. v. Maloof Properties, Ltd., 197 Ohio App. 3d 712, 2012-Ohio-470, 968
N.E.2d 602, ¶ 13 (8th Dist.). The charging lien is a lien upon a judgment or moneys
Muskingum County, Case No. CT2019-0011 9
awarded to a client, or a former client, for work previously performed by the attorney. Id.
(citations omitted). The basis of the charging lien rests on the equity of the attorney to be
paid out of a judgment obtained by the service and skill of the attorney:
[t]he right of an attorney to payment of fees earned in the prosecution of
litigation to judgment, though usually denominated a lien, rests on the equity
of such attorney to be paid out of the judgment by him obtained, as is upheld
on the theory that his services and skill created the fund.
Id. at ¶ 14 citing Cohen v. Goldberger, 109 Ohio St. 22, 141 N.E. 656 (1923), paragraph
one of the syllabus.
{¶25} In Fire Protection Resources, Inc. v. Johnson Fire Protection Co., 72 Ohio
App.3d 205, 594 N.E.2d 146 (6th Dist.1991), the Sixth District established elements the
trial court should review when an attorney files a charging lien:
(1) the right of the client to be heard on the merits; (2) the right of an attorney
to invoke the equitable jurisdiction of the courts to protect his fee for services
rendered; (3) the elimination of unnecessary and duplicative litigation; (4)
the opportunity for the client to obtain counsel to litigate the claim for
attorney fees; (5) the propriety of an order opposed to a judgment; (6) a
forum for the presentation of witnesses, as necessary; and (7) the equitable
nature of the proceeding.
Id. at 201-211; Galloway v. Galloway, 2017-Ohio-87, 80 N.E.3d 1225, ¶ 11 (8th Dist.).
The Sixth District Court of Appeals held:
a motion to declare and enforce an attorney’s charging lien on the proceeds
of judgment must be entertained by the court in the action in which the
Muskingum County, Case No. CT2019-0011 10
judgment was rendered, when * * * (1) the client against whom such motion
was filed has been given the opportunity to obtain new counsel and (2) there
is a final judgment in the case which the claiming attorney helped secure by
his services in that litigation or incident to that litigation.
Fire Protection, at 211; Galloway, ¶ 11.
{¶26} Charging liens are considered superior to the claims of the client’s other
creditors. Id.at ¶ 18 citing Goldberger, paragraph two of the syllabus. The Eighth District
has held that, “[a]n attorney to whom an interest in the proceeds of the judgment has been
assigned may enforce his interest against the judgment debtor if he has notified the
judgment debtor of his interest.” Maloof, supra at ¶ 18 citing In re Simms Constr. Serv.
Co., Inc. 311 B.R. 479 (6th Cir.2004).
Was the October 15, 2018 Judgment Entry a Final Appealable Order?
{¶27} We now consider Shultz’s argument that the October 15, 2018 was a final
appealable order that Benbow should have appealed instead of the appealing the January
18, 2019 judgment entry. “Appellate courts have jurisdiction to review the final orders or
judgments of lower courts within their appellate districts.” Section 3(B)(2), Article IV, Ohio
Constitution. Pursuant to App.R. 4(A)(1), “[s]ubject to the provisions of App.R. 4(A)(3), a
party who wishes to appeal from an order that is final upon its entry shall file the notice of
appeal required by App.R. 3 within 30 days of that entry.” App.R. 4(D) defines “entry” or
“entered” as “when a judgment or order is entered under Civ.R. 58(A) or Crim.R. 32(C).”
There is no dispute the October 15, 2018 judgment entry was an “entry” as defined by
App.R. 4(D). The issue raised in Shultz’s motion to dismiss is whether the October 15,
Muskingum County, Case No. CT2019-0011 11
2018 judgment entry granting the satisfaction of judgment was a final appealable order
from which Benbow was required to file a notice of appeal within 30 days.
{¶28} R.C. 2505.02(B) defines final orders, in relevant part, as follows:
(B) An order is a final order that may be reviewed, affirmed, modified, or
reversed, with or without retrial, when it is one of the following:
(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special proceeding or
upon a summary application in an action after judgment;
(3) An order that vacates or sets aside a judgment or grants a new trial;
(4) An order that grants or denies a provisional remedy and to which both
of the following apply:
(a) The order in effect determines the action with respect to the provisional
remedy and prevents a judgment in the action in favor of the appealing party
with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective
remedy by an appeal following final judgment as to all proceedings, issues,
claims, and parties in the action * * *
{¶29} In this case, there is no dispute the Satisfaction of Judgment filed on
October 15, 2018 was a judgment entry from the trial court. It has been held that a
satisfaction of judgment entry is a final appealable order from which a direct appeal must
be taken within the time prescribed by the Appellate Rules of Procedure. See Sereda v.
Szogle, 71 Ohio App. 3d 497, 499, 594 N.E.2d 1053 (8th Dist. 1992); Neal v. Beer & Wine
Muskingum County, Case No. CT2019-0011 12
Emporium, Inc., 10th Dist. Franklin No. 94 APE12-1795, 1995 WL 527666, *2 (Sept. 5,
1995); 1st Natl. Fin. Servs. v. Ashley, 10th Dist. Franklin No. 16AP-18, 2016-Ohio-5497,
¶ 15, 20 (“Once the trial court has acknowledged the satisfaction of judgment by entry of
a final appealable order, the 30-day time limit in App.R. 4(A) begins to run”).
{¶30} A satisfaction of judgment demonstrates the rights and obligations of the
parties have been finalized. “Once the rights and obligations of the parties have been
extinguished through satisfaction of the judgment, a judgment on appeal cannot have any
practical effect upon the issues raised by the pleadings.” Akron Dev. Fund I, Ltd. v.
Advanced Coatings Internatl., Inc., 9th Dist. Summit No. 25375, 2011-Ohio-3277, ¶ 21.
“It is a well-established principle of law that a satisfaction of judgment renders an appeal
from that judgment moot.” City of Cleveland v. Spears, 8th Dist. Cuyahoga No. 107841,
2019-Ohio-3041, 2019 WL 3410056, ¶ 7 quoting Blodgett v. Blodgett, 49 Ohio St. 3d 243,
245, 551 N.E.2d 1249 (1990). As has been recognized, absent fraud, a timely appeal
should be dismissed if the final judgment is voluntarily paid and satisfied because such
payment puts an end to the controversy and takes away from the defendant the right to
appeal or prosecute error. Id., citing Rauch v. Noble, 169 Ohio St. 314, 316, 159 N.E.2d
451 (1959), and Lynch v. Bd. of Edn., 116 Ohio St. 361, 156 N.E. 188 (1927), paragraph
three of the syllabus.
{¶31} Benbow contends the October 15, 2018 judgment entry was not a final
order because his Motion for Charging Lien was pending at the time the trial court issued
the Satisfaction of Judgment. We have held, however, that when a trial court enters
judgment without expressly ruling on a pending motion, the motion is generally
considered to be impliedly overruled. Everhome Mtge Co. v. Meryo, 5th Dist. Knox No.
Muskingum County, Case No. CT2019-0011 13
11-CA-04, 2011-Ohio-3513, 2011 WL 2739647, ¶ 14 citing Portofe v. Portofe, 153 Ohio
App.3d 207, 2003-Ohio-3469, 792 N.E.2d 742, ¶ 16 (7th Dist.). On October 11, 2018,
Benbow filed a Motion to Enforce Charging Lien and a Memorandum Contra to Shultz’s
Motion for Satisfaction of Judgment. In Benbow’s motions to the trial court, he argued the
trial court should not grant the Motion for Satisfaction of Judgment because the plaintiffs
had not paid Benbow pursuant to their contingent fee agreement, requiring the trial court
to enforce a charging lien in favor of Benbow. While Benbow’s motions were pending, the
trial court issued the October 15, 2018 judgment entry granting the satisfaction of
judgment. The October 15, 2018 judgment was a final appealable order that implicitly
overruled Benbow’s Motion to Enforce Charging Lien.
{¶32} Further, because the October 15, 2018 judgment entry granting the
Satisfaction of Judgment was a final order, Benbow’s Motion for Reconsideration had no
effect on the judgment. Generally, motions for reconsideration to a trial court are only
permissible to obtain relief from a non-final order. Bringman v. Bringman, 5th Dist. Knox
No. 16CA01, 2016-Ohio-7514, 2016 WL 6392883, ¶ 22 citing Frabott v. Swaney, 5th Dist.
Delaware No. 13 CAE 05 0047, 2013–Ohio–3354, ¶ 17 citing McGee v. Lynch, 6th Dist.
Erie No. E–06–063, 2007–Ohio–3954, ¶ 27. The Ohio Civil Rules do not provide for
motions for reconsideration after a final judgment. Id. Therefore, the motion for
reconsideration is considered a nullity. Pitts v. Dept. of Transportation, 67 Ohio St. 2d 378,
423 N.E.2d 1105 (1981).
{¶33} Under these procedural circumstances, we find Benbow erred in not timely
appealing the October 15, 2018 judgment entry granting the satisfaction of judgment
pursuant to App.R. 4. The October 15, 2018 judgment entry was a final appealable order
Muskingum County, Case No. CT2019-0011 14
which implicitly denied Benbow’s Motion to Enforce Charging Lien, making the issue of
the charging lien ripe at that time for our appellate review. App.R. 4 and its 30-day time
limit for appeal constrains our jurisdiction to review Benbow’s possibly valid contention
that the trial court should have considered his argument he should be awarded a charging
lien against his client’s judgment.
{¶34} As such, we grant Shultz’s Motion to Dismiss Appeal for this Court’s lack of
jurisdiction under App.R. 4. Based upon our dismissal of the appeal, we are without
jurisdiction to consider the merits of the Assignments of Error.
CONCLUSION
{¶35} The appeal of the January 18, 2019 judgment entry of the Muskingum
County Court of Common Pleas is dismissed.
By: Delaney, J.,
Gwin, P.J. and
Wise, John, J., concur.