Oliver v. Groedel

[Cite as Oliver v. Groedel, 2023-Ohio-275.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
CHRISTINE L. OLIVER FKA CHRISTINE L. LUCARELL,
Plaintiff-Appellant/Cross-Appellee,
v.
CARYN GROEDEL, ESQ., ET AL.,
Defendants-Appellees/Cross-Appellants.
OPINION AND JUDGMENT ENTRY
Case No. 22 MA 0005
Civil Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 2019 CV 02138
BEFORE:
Gene Donofrio, Carol Ann Robb, Judges and Frederick D. Nelson,
Judge of the Tenth District Court of Appeals, Sitting by Assignment (Retired).
JUDGMENT:
Affirmed and Remanded.
Atty. Randy J. Hart, 3601 South Green Road, Suite 200, Beachwood, Ohio 44122, for
Plaintiff-Appellant/Cross-Appellee and
Atty. Caryn M. Groedel and Atty. Matthew S. Grimsky, Caryn Groedel & Associates
Co., LPA, 208 Spriggel Drive, Munroe Falls, Ohio 44262 for Defendants-
Appellees/Cross-Appellants and
Atty. A. Scott Fromson, 25550 Chagrin Boulevard, Suite 400, Beachwood, Ohio
44122, for Defendants-Appellees/Cross-Appellants.
Dated:
January 26, 2023
[Cite as Oliver v. Groedel, 2023-Ohio-275.]
Donofrio, J.
{¶1} Plaintiff-Appellant/Cross-Appellee Christine L. Oliver, formerly known as
Christine L. Lucarell (appellant), appeals the decision of the Mahoning County Court of
Common Pleas awarding attorney fees in the amount of $195,030.60 to Defendants-
Appellees/Cross-Appellants Caryn Groedel, Esquire, and Caryn Groedel and Associates
Co., LPA (Groedel). Groedel filed a cross-appeal. A. Scott Fromson, Esquire and A. Scott
Fromson, Attorney at Law, Inc. (Fromson) cross-appealed as well.
{¶2} On October 22, 2019, appellant filed a complaint for declaratory judgment
in the Mahoning County Court of Common Pleas against Fromson and Groedel. She
averred that in 2009, she contacted Fromson for legal representation concerning her
employment with Nationwide Insurance. Appellant stated that Fromson subsequently
contacted Groedel for co-counsel representation and appellant agreed to such
representation in January 2010.
{¶3} Appellant further averred that Fromson undertook significant efforts to
research the facts and legal basis for her complaint against Nationwide, which included
an invasion of privacy claim. Fromson filed appellant’s complaint against Nationwide in
the Mahoning County Common Pleas Court. The complaint alleged the following causes
of action against Nationwide concerning its Agency Executive (AE) Program: (1) breach
of contract as to the AE Performance Agreement; (2) breach of contract regarding a
Memorandum of Understanding; (3) fraudulent misrepresentation; (4) breach of contract
as to the Independent Contractor Agent’s Agreement; and (5) invasion of privacy and
misappropriation of appellant’s name.
{¶4} In July 2010, appellant discharged Fromson and continued with Groedel’s
legal representation. Appellant alleges that prior to this discharge, Fromson and Groedel
were working under a compensation agreement entitling them to 40% of any gross
recovery of damages against Nationwide. Exhibit K of Groedel’s trial exhibits contains the
contingency fee agreement that appellant signed with Groedel on July 12, 2010.
{¶5} In the Nationwide case, the trial court granted Nationwide’s motion for a
directed verdict on appellant’s fraudulent misrepresentation claim. However, the jury
found in appellant’s favor on all other claims and awarded her over $42 million. The trial
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court applied statutory caps on damages and reduced the judgment to $14,167,010.00.
The court also awarded $187,546.50 in attorney fees and $21,557.64 in costs.
{¶6} Both Nationwide and appellant appealed to this Court in 2013, with Groedel
also representing appellant on appeal. On December 17, 2015, we issued a decision
affirming in part and reversing in part the trial court. Lucarell v. Nationwide Mut. Ins. Co.,
7th Dist. Mahoning Nos. 13 MA 74, 13 MA 133, 2015-Ohio-5286. We reversed the trial
court’s directed verdict on appellant’s fraud claim. Id. We further found that while the trial
court erred by failing to instruct the jury on the clear and convincing burden of proof for
duress on the breach of contract claims, this error was harmless.
{¶7} We affirmed the trial court’s judgment on appellant’s breach of contract
claims, the award of attorney fees, and prejudgment interest, as well as the $10.00 in
nominal damages and $100,000.00 in emotional distress damages on the invasion of
privacy claim. Lucarell v. Nationwide Mut. Ins. Co., supra. We held that appellant’s total
award was $2,375,708.28, plus attorney fees and prejudgment interest. The award
included $100,010.00 in actual damages and $200,020.00 in punitive damages on the
invasion of privacy claim. Id. at ¶ 190. We reduced the jury’s punitive damages award on
the invasion of privacy claim to the statutory cap of twice the compensatory damages, or
$200,020.00.
{¶8} After this appeal, appellant discharged Groedel. She then rehired Fromson,
and hired her current counsel and others to appeal to the Ohio Supreme Court. The Court
accepted the appeal for review.
{¶9} On January 4, 2018, the Ohio Supreme Court affirmed in part and reversed
in part our decision. The Court noted that “Nationwide did not appeal the judgment on the
invasion of privacy claim, its counterclaim on the note, or the award of attorney's fees and
costs, and Lucarell did not appeal the dismissal of her constructive discharge and
retaliation claims.” Lucarell v. Nationwide Mut. Ins. Co., 152 Ohio St.3d 453, 2018-Ohio-
15, 97 N.E.3d 458, ¶ 69. The Court therefore made no ruling on those claims. The Court
ultimately remanded the case to us on appellant’s breach of contract claims to determine
whether to allow a new trial on those claims.
{¶10} After the mandate with remand instructions, Groedel filed a motion with our
Court to reopen the Nationwide case. She asserted that we should reopen the appeal so
that the attorney fees, prejudgment interest, and costs could be resolved and so that she
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could petition for additional attorney fees from April 9, 2013 through the date that
Nationwide paid the attorney fees it stipulated to pay Groedel, which was the $187,546.50
in attorney fees and $21,557.64 in costs.
{¶11} On March 5, 2019, we overruled the motion to reopen the appeal. Lucarell
v. Nationwide Mut. Ins. Co., 7th Dist. Mahoning Nos. 13 MA 74, 13 MA 133. We held that
Groedel withdrew as counsel on March 2, 2016 and she therefore had no standing to file
and litigate the motion to reopen since she was neither a party nor counsel for a party. Id.We further found that even if Groedel had standing, the motion to reopen was moot
because the Ohio Supreme Court had already remanded the case to us for further
proceedings. Id.{¶12} While her case was pending with us on remand, appellant’s current
counsel, and Attorney Patricia A. Morris and Fromson, secured a settlement for her with
Nationwide. The settlement details are under seal.
{¶13} On October 22, 2019, appellant filed a complaint for declaratory judgment
in the Mahoning County Common Pleas Court as to her obligations to pay attorney fees
to Fromson and Groedel from the Nationwide case. Fromson and Groedel answered
appellant’s complaint and Groedel filed a counterclaim for attorney fees owed.
{¶14} Appellant filed a motion for partial summary judgment asserting that
Groedel was not entitled to any attorney fees since we overruled her motion to reopen
the appeal. Appellant alternatively asserted that the trial court should find as a matter of
law that Groedel was entitled to attorney fees only as to the successful claims before the
Ohio Supreme Court.
{¶15} Mahoning County Common Pleas Court Magistrate Welsh held a hearing
on the motion and overruled the motion. He found that appellant misconstrued our
decision overruling Groedel’s motion to reopen the appeal. He found our holding to mean
that Groedel could not pursue her fee claim in the Nationwide case because she was not
a party or counsel in that case and she therefore lacked standing to collect attorney fees
from Nationwide. Magistrate Welsh held that Groedel did have standing in the instant
case because she was a party and had been former counsel for appellant.
{¶16} Magistrate Welsh also noted that appellant ultimately settled all of her
claims with Nationwide, and even though some of the aspects of the underlying case were
never appealed, there were causes of action remaining that had not been determined
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when the settlement occurred. Magistrate Welsh reasoned that determining the extent, if
any, that the remaining causes of action had on settlement of the Nationwide case was
an issue for a trier of fact to determine.
{¶17} Magistrate Welsh subsequently held a bench trial on April 21, 2021, with
appellant, Fromson, Attorney Matthew Ries, Groedel, and Attorney Randy Hart testifying.
The parties thereafter submitted post-trial briefs.
{¶18} Relevant parts of the trial included Groedel’s testimony that her contingency
agreement with appellant provided that she and her firm were entitled to “40% of the value
of that which we recover on your behalf by settlement or verdict, plus costs.” (Groedel
Exhibit K at 1). The agreement further stated, “[i]f we are unable to complete our
representation of you for any reason, then we will be paid a quantum meruit amount of
money for the work we have performed…” (Groedel Exhibit K at 3).
{¶19} Fromson testified that he also had a contingent fee agreement with
appellant, but he could not produce it because he left it at Groedel’s office when they
were working on the complaint and discovery. (Tr. at 3). He testified that he was entitled
to an attorney fee from the invasion of privacy claim and from the stipulated Nationwide
attorney fee, to the extent that it related to the invasion of privacy claim. (Tr. at 72-73). He
also testified that he kept no billing records as to time spent on the case because he had
a contingency-fee agreement with appellant. (Tr. at 159).
{¶20} Appellant testified that she retained Fromson on a contingency basis in
2009. (Tr. at 257). She stated that Fromson performed a great deal of work prior to the
hiring of Groedel, and she believed Fromson was entitled to a portion of the attorney fee
for the successful invasion of privacy claim. (Tr. at 373, 388). Appellant further testified
that she was willing to pay Groedel and Fromson attorney fees for the invasion of privacy
claim. (Tr. at 388).
{¶21} Groedel testified that she and Fromson had known each other for years
and she had done prior work for him. (Tr. at 468). She stated that she met with Fromson
in January 2010 concerning possible cases against Nationwide by agents, including
appellant. (Tr. at 471). She stated that Fromson knew of her expertise in employment
cases and they thereafter met with appellant on January 13, 2010. (Tr. at 477). She
testified that she began work on appellant’s case, but wanted a co-counseling agreement
Case No. 22 MA 0005
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with Fromson and her name as co-counsel on all fee agreements with clients. (Tr. at 481-
483).
{¶22} Groedel testified that by March 22, 2010, she and Fromson had not agreed
on a co-counseling agreement and she and her firm had done all of the work on the
complaint and discovery, but would not file them without a co-counseling arrangement.
(Tr. at 486-488). Groedel testified that she sent the complaint to Fromson only for review
since he was listed as counsel on the case at that time. (Tr. at 493). She stated that she
rejected his proposed co-counsel agreement and he then told her that he did not want to
work with her. (Tr. at 496). She testified that appellant kept calling her and she told
appellant that she had to choose who she wanted as counsel. (Tr. at 496). Appellant
chose Groedel and discharged Fromson.
{¶23} On July 16, 2021, Magistrate Welsh issued his decision with findings of fact
and conclusions of law. He cited Reid, Johnson, Downers, Andrachik & Webster v.
Landberry, 68 Ohio St.3d 570, 629 N.E.2d 431 (1994), where the Ohio Supreme Court
set forth the law on compensating discharged attorneys and announced factors that a
court should consider when determining the amount of attorney fees to award.
{¶24} Magistrate Welsh noted that Groedel and Fromson had prior contingency
fee agreements with appellant, and Fromson had been paid for his post-discharge
services in helping to settle the Nationwide case and representing appellant before the
Ohio Supreme Court. Magistrate Welsh agreed with appellant that her claim for the prior
award of legal fees belonged to her, as she was the real party in interest. However, he
found that Groedel successfully pursued those legal fees on behalf of appellant and met
the contingency set forth in her contingency agreement with appellant. Magistrate Welsh
accordingly found that the stipulated award of legal fees in Nationwide should be
considered when calculating the amount of legal fees due Groedel and Fromson.
{¶25} Magistrate Welsh reviewed the Reid factors, considering the content of the
complaint in the Nationwide case and Fromson’s representation of appellant prior to filing
the complaint. He reviewed Fromson’s help in drafting the complaint and his role in
securing Groedel as co-counsel. Magistrate Welsh also considered Groedel’s certification
and expertise in labor and employment law, the significant time and skill involved in the
litigation against Nationwide, and the 975 hours that Groedel documented and testified to
concerning the time spent on the case.
Case No. 22 MA 0005
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{¶26} Magistrate Welsh held that he could not award attorney fees to Groedel
from appellant’s ultimate settlement of the case because doing so would be purely
speculative. He reasoned that it was impossible to determine whether Groedel’s work on
the case contributed to the settlement, or the amount of hours spent and fees relating to
Groedel’s work that could be attributed toward the settlement.
{¶27} Accordingly, Magistrate Welsh found that appellant’s total amount of
recovery due to the efforts of Fromson and Groedel was $487,576.50, which was the
$187,546.50 stipulated attorney fee and the invasion of privacy verdict and punitive
damages of $300,030.00. Taking all factors into consideration, Magistrate Welsh
concluded that Groedel was entitled to $125,000.00 in attorney fees and Fromson was
entitled to $25,000.00 in attorney fees.
{¶28} Appellant, Fromson, and Groedel filed objections to the magistrate’s
decision. On January 14, 2022, the trial court issued a judgment stating that it had
reviewed the objections, the trial record, and Magistrate Welsh’s decision and adopted it
in part, rejected it in part, and modified the magistrate’s decision. The court adopted
Magistrate Welsh’s findings of fact to the extent that they were not modified by the court’s
conclusions of law.
{¶29} The trial court agreed that the total amount of recovery realized by
appellant due to the efforts of Fromson and Groedel was $487,576.50. In its conclusions
of law, the trial court indicated that reasonable attorney fees were to be determined under
Reid, as modified by Phoenix Lighting Grp., LLC. V. Genlyte Thomas Grp., LLC, 160 Ohio
St.3d 32, 2020-Ohio-1056. The court noted that the attorneys had to base their claims on
quantum meruit.
{¶30} The trial court held that while Groedel’s efforts may have warranted an
enhancement of the lodestar amount, “the only element that realistically represents the
amount of reasonable attorney fees is the contingent structure of the fee between plaintiff
and the Groedel defendants.” The court concluded that Groedel was therefore entitled to
40% of the $487,576.50 recovery, which equaled $195,030.60.
{¶31} The court concluded that Fromson was entitled to no attorney fees
“because, as a matter of law, he has failed to provide his contribution” to appellant’s
recovery.
Case No. 22 MA 0005
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{¶32} Appellant appealed the trial court’s decision awarding attorney fees to
Groedel. Groedel and Fromson filed cross-appeals.
Appellant’s (Lucarell/Oliver) Assignment of Error Number 1
{¶33} Appellant presents two assignments of error on appeal. In her first
assignment of error, appellant asserts:
The Seventh District Court of Appeals Has Already Ruled That
The Attorneys’ Fees at Issue Here Belong To Oliver And Not To
Any Of The Lawyers In The Case.
{¶34} Appellant asserts that the trial court erred by finding that Groedel was
entitled to part of the $187,546.50 attorney fee award. She contends that if Groedel and
Fromson are entitled to attorney fees, it should be based only upon the invasion of privacy
recovery. Appellant submits that the doctrines of collateral estoppel and the law of the
case apply.
{¶35} Appellant cites our decision denying Groedel’s motion to reopen the
Nationwide case and points out that we italicized the words “party” and “prevailing party”
when we cited cases holding that attorney fees belong to the client and not the attorney.
Appellant also notes that we relied on Parker v. J&F Insulation Co., 89 Ohio St.3d 261,
268, 2000-Ohio-151, for the proposition that “post judgment interest on attorney fees aids
in making the prevailing party whole * * * .” Appellant indicates that Groedel did not appeal
our ruling on her motion to reopen and therefore the issue of attorney fees has been
decided.
{¶36} Groedel counters that Nationwide stipulated to the attorney fee award
which resulted exclusively from her work. She cites her fee agreement with appellant,
which specifically stated that, “all attorney’s fees awarded by the court will be included as
a component of the total recovery” upon which the 40% contingency fee was based.
Groedel also asserts that our decision denying her motion to reopen in the Nationwide
case is irrelevant to this case. She explains that there, we held that Groedel could not
pursue a personal claim for attorney fees against Nationwide because she was not a party
to that case and she was no longer counsel for a party. Groedel submits that she and her
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firm are parties in this case and are suing appellant for attorney fees for services
rendered.
{¶37} Groedel further asserts that her attorney fee should include a portion of the
prejudgment interest award and a portion of appellant’s settlement recovery in the
Nationwide case. Citing Dickson & Campbell, L.L.C., v. Marshall, 8th Dist. No. 106289,
2018-Ohio-2233, ¶ 12, she contends that the only leverage appellant had in obtaining a
settlement with Nationwide was due to her legal work on the breach of contract claims
which she conceived, advanced, supported, presented to the jury, and argued in post-
trial motions and on appeal. She submits that this was the only work upon which the
settlement was based since it resulted in a remand to this Court. She concludes that she
should receive at least 95% of her contingency fee from the settlement recovery.
{¶38} Groedel also submits that even if appellant is correct that attorney fees are
recovered only on successful claims, the trial court awarded appellant attorney fees solely
based on issues that prevailed in the case. Groedel explains that Nationwide stipulated
to the attorney fee award, which was upheld on appeal, and no further appeal was filed.
Groedel also notes that this Court affirmed the pre-discharge prejudgment interest award
and no further appeal was filed.
{¶39} Groedel further argues that Fromson is not entitled to attorney fees beyond
those he already collected. She contends that Fromson performed no work on the
invasion of privacy claim and he admitted that he kept no time records for legal services
provided to appellant.
{¶40} This Court applies a de novo standard of review in determining whether a
court properly applied the law of the case doctrine. Giancola v. Azem, 153 Ohio St.3d
594, 2018-Ohio-1694, 109 N.E.3d 1194, ¶ 13, citing Arnott v. Arnott, 132 Ohio St.3d 401,
2012-Ohio-3208, 972 N.E.2d 586, ¶ 17. We also apply a de novo standard of review when
reviewing a trial court’s application of collateral estoppel. State v. Hill, 177 Ohio App.3d
171, 2008-Ohio-3509, 894 N.E.2d 108, ¶ 37 (11th Dist.).
{¶41} We find that our decision overruling Groedel’s motion to reopen the
Nationwide case has no bearing on the instant case. In that case, we held that Groedel
had no standing to file her motion for attorney fees. Lucarell v. Nationwide Mut. Ins. Co.,
7th Dist. Mahoning Nos. 13MA74, 13MA133. We held that Groedel was not a party to the
Nationwide case and was no longer counsel for a party. Id. We further held that even if
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Groedel had standing, the Ohio Supreme Court had already remanded the case to our
Court and therefore a motion to reopen the appeal was not necessary. Id. We stated that
“Attorney Groedel is seeking to reopen the appeal in order to pursue a personal claim for
attorney fees. A claim for attorney fees within a civil case belongs to a party, not to any
particular attorney that may have made an appearance in the action.” Id. We therefore
held that Groedel had no standing to file her claim for attorney fees in the case between
appellant and Nationwide.
{¶42} The law of the case doctrine states that “the decision of a reviewing court
in a case remains the law of that case on the legal questions involved for all subsequent
proceedings in the case at both the trial and reviewing levels.” Nolan v. Nolan, 11 Ohio
St.3d 1, 3, 462 N.E.2d 410 (1984). Although not a rule of law, it is necessary “to ensure
consistency of results in a case, to avoid endless litigation by settling the issues, and to
preserve the structure of superior and inferior courts as designed by the Ohio
Constitution.” Hopkins v. Dyer, 104 Ohio St.3d 461, 2004-Ohio-6769, 820 N.E.2d 329, ¶
15 citing State ex rel. Potain v. Mathews, 59 Ohio St.2d 29, 32, 391 N.E.2d 343 (1979).
{¶43} The instant case is not the same case as the Nationwide case. As we held
in denying Groedel’s motion to reopen the Nationwide case, she was not a party to that
case and the case had already been remanded to us by the Ohio Supreme Court. “The
law-of-the-case doctrine requires a court to follow rulings on issues previously resolved
within the same case.” Reid v. Cleveland Police Dept., 151 Ohio St.3d 243, 2017-Ohio-
7527, 87 N.E.3d 1231, ¶ 11. The instant case is a new case in which Groedel is a party
and is suing appellant for attorney fees. The Nationwide case was between appellant and
Nationwide and concerned issues different from those in the instant case. Accordingly,
the law of the case doctrine does not apply.
{¶44} We also find that collateral estoppel does not apply. Collateral estoppel, or
issue preclusion, “prevents parties or their privies from relitigating facts and issues in a
subsequent suit that were fully litigated in a prior suit.” Thompson v. Wing, 70 Ohio St.3d
176, 183, 637 N.E.2d 917 (1994). The doctrine applies when the fact or issue: “(1) was
actually and directly litigated in the prior action, (2) was passed upon and determined by
a court of competent jurisdiction, and (3) when the party against whom collateral estoppel
is asserted was a party in privity with a party to the prior action.” Id. See also McCabe
Corp. v. Ohio Environmental Protection Agency, 10th Dist. Franklin No. 12AP-204, 2012-
Case No. 22 MA 0005
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Ohio-6256, 2012 WL 6738651, ¶ 19 (“[T]he elements of issue preclusion under Ohio law
are that: (1) the identical issue or fact was actually and directly at issue in a previous
action; (2) the issue or fact was passed upon and determined by a court of competent
jurisdiction; (3) the issue or fact was actually litigated, directly determined, and essential
to the final judgment in the prior action; and (4) both actions involved the same parties,
or their privies.”).
{¶45} Applying the collateral estoppel elements, the issue of Groedel’s right to
attorney fees was not actually and directly litigated in the Nationwide case. While Groedel
filed a motion to reopen the appeal in that case, we did not rule on whether she was
entitled to attorney fees. Rather, we held that she did not have standing to file the motion
in a case in which she was not party or counsel for a party. Further, the issue of attorney
fees was not actually litigated or directly determined, and was not necessary to the final
judgment in the Nationwide case. Moreover, we held that Groedel was not a party in the
Nationwide case and had no standing. The instant case is between appellant, Fromson,
and Groedel only.
{¶46} Accordingly, appellant’s first assignment of error lacks merit and is
overruled.
Appellant’s Assignment of Error Number 2
{¶47} In her second assignment of error, appellant asserts:
The Trial Court Erred In Awarding Groedel Attorneys’ Fees
Which Were Based On Issues and a Judgment Which Did Not
Prevail.
{¶48} Appellant acknowledges that a discharged contingent-fee attorney is
entitled to recover attorney fees on the basis of quantum meruit. However, citing Reid,
Johnson, Downes, Andrachik & Webster v. Lansberry, 68 Ohio St.3d 570, 629 N.E.2d
431, she contends that attorney fees under quantum meruit arise only “upon the
successful occurrence of the contingency.” Appellant contends that there was no such
occurrence in the Nationwide case.
{¶49} Appellant submits that she did not prevail on any of her claims before the
Ohio Supreme Court. She contends that the Ohio Supreme Court essentially overturned
her entire award in the Nationwide case, except for her invasion of privacy claim. As to
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that claim, appellant notes that the Court took no action on it as it was not challenged on
appeal. She concludes that Groedel was therefore not successful on any claims.
{¶50} She further contends that while the Court reinstated a directed verdict on
her fraud claim and remanded her breach of contract claims for further determination on
the issue of duress, her current lawyers would have had to develop new evidence as to
these claims since the Court found that Groedel presented “scant evidence” concerning
those claims. She notes that the Court also commented on Groedel’s limited contribution
when it held that “in light of the limited evidence in the record, the failure to instruct the
jury on the heightened standard of proof was prejudicial. Accordingly, if the Court of
Appeals holds on remand that the trial court did not err in allowing the contract claims to
go to the jury, a new trial is required based upon the erroneous jury instruction on duress.”
Id. at ¶ 60.
{¶51} Appellant further asserts that under Reid, the client has an obligation to
compensate discharged counsel only for services rendered prior to the discharge. She
notes that the number of hours worked prior to discharge is only one factor for a court to
consider and the court should consider the other factors outlined in Reid, such as the
recovery sought, the skill demanded, the results obtained, and the contingency fee
agreement itself. Appellant contends that Magistrate Welsh attempted to properly apply
the Reid factors to determine a reasonable attorney fee, but the trial court rejected this
application and instead applied the contingency fee agreement, which is prohibited under
Reid.
{¶52} Appellant also submits that Groedel is not entitled to any part of the
$187,546.50 stipulated attorney fees from the Nationwide case. She contends that
Nationwide’s stipulation was only that the amount of the fees was reasonable. She points
out that the stipulation specifically stated that, “[i]t is further understood that this stipulation
is submitted only as to the reasonableness of the fees and expenses and is not a
stipulation as to [Nationwide’s] liability. [Nationwide] retains the rights to challenge the
jury’s fee award in post-trial proceedings and on appeal.” (Trial Exhibit S). Appellant
argues that Groedel is not entitled to these attorney fees because Civ. R. 60(B)(4) still
allows a motion for relief from judgment when the judgment has been reversed or
otherwise vacated. She contends that the fact that the issue was not appealed does not
mean that it was not subject to later revision or reduction. Appellant further asserts that
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her current counsel, not Groedel, was responsible for requiring Nationwide to keep the
attorney fee stipulation and at the very least, this shows that Groedel is not 100%
responsible for that award since it was not appealed.
{¶53} Appellant also contends that neither Fromson nor Groedel met their burden
of establishing the hours of work spent solely on the winning invasion of privacy claim.
Thus, she asserts, they are entitled to nothing.
{¶54} Alternatively, appellant asserts that if the invasion of privacy judgment is
considered successful, Groedel only performed a marginal amount of work on it because
it was primarily based on Fromson’s work. She cites the testimony of Attorney Matthew
Ries, who was employed by Groedel and worked as lead counsel on her case until trial
began. She cites Ries’s testimony that the evidence used to support the invasion of
privacy claim was based mainly upon appellant’s testimony and the testimony of Daniel
Baker, a Nationwide employee who was deposed by Fromson in a prior case. (Tr. at 174).
Appellant notes that Ries identified only 14.5 hours of time from Groedel’s billing records
that could be attributed to appellant’s case, although he admitted that even these records
included time spent on an unrelated case. (Tr. at 175, 181, 185-187). Appellant further
notes Ries’s testimony that the billing records were not broken down by time spent on
each claim and it was not possible to determine by fee entry the time spent on more than
one activity or claim. (Tr. at 184, 187).
{¶55} Groedel contends that appellant misconstrues the law that a contingent-
fee discharged attorney can only recover on successful judgments. She notes that a
number of cases settle before going to court and discharged attorneys would not be
entitled to any attorney fees in such a case under appellant’s theory. Groedel submits
that the Reid holding that “fee recovery on the basis of quantum meruit arises upon the
successful occurrence of the contingency,” means that a quantum meruit claim does not
ripen until the contingency occurs and not that the claims have to be successful judgments
in order to recover an attorney fee. Groedel posits that attorney fees under this doctrine
are based on the value of the services and not whether the claim ultimately prevails.
{¶56} Groedel also cites Reid and other cases for support that a discharged
contingent-fee attorney may recover the amount provided for in the disavowed contingent
fee agreement when a client discharges the attorney after the attorney successfully
obtains judgment awards.
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{¶57} Groedel further submits the trial court awarded attorney fees only on the
successful invasion of privacy claim and the $187,546.50 stipulated attorney fee award
which Groedel exclusively procured. She asserts that she clearly met the burden of proof
warranting attorney fees based upon the record in the Nationwide case, which shows the
skill and effort spent as to her legal services and the meticulous time-keeping records of
her work.
{¶58} As to Fromson, Groedel contends that he performed little to no work on the
case as he was discharged immediately after the filing of the original complaint. Groedel
asserts that Fromson also had no time or billing records for any services allegedly
provided to appellant. She cites the Reid holding that even an attorney operating under a
contingent-fee agreement should keep accurate time records because an attorney can
be discharged and needs proof of his effort in order to obtain fees.
{¶59} Groedel contends that she and her firm alone conceived of and formulated
the invasion of privacy claim. She explains that she was familiar with such a clam from
her prior legal experiences in Maryland and the District of Columbia and she asked an
independent researcher to confirm that Ohio recognized such a claim. She also
challenges appellant’s credibility concerning her testimony and statements of Fromson’s
extensive legal work on her case. Groedel notes that appellant complained that Fromson
had performed little work with her case and had presented the same claim as appellant
in a prior case. She notes that Fromson’s prior case was a single breach of contract claim
and she helped him prepare for the deposition of Daniel Baker in that case. She points
out that the deposition of Baker in appellant’s Nationwide case occurred two years later.
{¶60} Finally, Groedel submits that the attorney fee award in the Nationwide
case was not subject to further review, as appellant claimed. She asserts that Nationwide
did not appeal the stipulated fee award that was exclusively for her legal services in that
case. She further contends that even if the award was subject to further review, her
success on the invasion of privacy claim established a successful result on all claims for
attorney fee purposes, even if the other claims were not successful. Hollingsworth v. Time
Warner Cable, 168 Ohio App.3d 658, 2006-Ohio-4903 (1st Dist. 2006).
{¶61} “In light of the fact-specific nature of the inquiry and the equitable balancing
involved, a court's decision to award attorney fees on a quantum meruit basis is
reviewable only for an abuse of discretion.” Dickson & Campbell L.L.C. v. Marshall, 8th
Case No. 22 MA 0005
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Dist. Cuyahoga No. 106289, 2018-Ohio-2233, ¶ 10. “[T]he term ‘abuse of discretion’
implies that the court's attitude was unreasonable, arbitrary or unconscionable.”
Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). “Decisions are
unreasonable if they are not supported by a sound reasoning process.” Schafer v. RMS
Realty, 138 Ohio App.3d 244, 300, 741 N.E.2d 155 (2d Dist.2000), quoting AAAA
Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d
157, 161, 553 N.E.2d 597 (1990).
{¶62} A client who has a contingent fee agreement with an attorney can
discharge the attorney prior to resolution of the case. The discharged attorney in such a
case cannot recover attorney fees pursuant to the contingency agreement. However, the
attorney can recover for legal services rendered under the theory of quantum meruit for
the reasonable value of her services provided up through the time that she is discharged.
Reid, Johnson, Downes, Andrachik & Webster v. Lansberry, 68 Ohio St.3d 570, 629
N.E.2d 431 (1994); Fox & Associates Co., L.P.A. v. Purdon, 44 Ohio St.3d 69, 541 N.E.2d
448 (1989), syllabus. In order to advance a claim for attorney's fees under quantum
meruit, the contingency must have successfully occurred. Id. at 576. Moreover, the
attorney fees recovered under quantum meruit are limited to the amount set forth in the
disavowed contingency agreement. Id.
{¶63} In determining the reasonable value of a discharged attorney’s legal
services rendered pursuant to a contingency fee agreement, the court considers the
totality of the circumstances surrounding the situation, including: “[t]he number of hours
worked by the attorney before the discharge[,] * * * the recovery sought, the skill
demanded, the results obtained, and the attorney-client relationship itself.” Pipino v.
Norman, 7th Dist. Mahoning No. 16 MA 0153, 2017-Ohio-9048, ¶ 30, quoting Reid, at
576-577. Courts may also consider the factors for determining the reasonableness of fees
used by the rules governing attorney conduct. Id. at 576–577, 629 N.E.2d 431. “Quantum
meruit can be used whether there is an express contract for fees (written or oral) or where
there is no express contract for fees (i.e., there is an implied contract).” Id.{¶64} The trial court held that Groedel was entitled to $195,030.60 in attorney
fees and Fromson was entitled to no attorney fees. The court cited Reid and held that the
contingency fee agreement between appellant and Groedel was the only evidence that
realistically represented a reasonable attorney fee. The court added the stipulated
Case No. 22 MA 0005
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attorney fee amount of $187,546.50 to the $300,030.00 recovery on the invasion of
privacy claim and multiplied 40% by that total, which was the percentage provided for in
the contingency fee agreement. The court awarded the $195,030.60 solely to Groedel.
{¶65} We find that the trial court did not abuse its discretion. The trial court
properly found that quantum meruit was the means for recovery of contingent-fee
attorneys who are discharged prior to completion of the case. “When an attorney is
discharged by a client with or without just cause and whether the contract between the
attorney and client is express or implied, the attorney is entitled to recover the reasonable
value of services rendered the client prior to discharge on the basis of quantum meruit.”
Fox & Associates Co., L.P.A. v. Purdon, 44 Ohio St.3d 69, 541 N.E.2d 448 (1989),
syllabus.
{¶66} We further find that a successful occurrence of the contingency occurred
in this case. In Pipino, we held that, “[a]s the Reid case added, when a client terminates
an attorney with a contingency fee agreement, the attorney's cause of action for quantum
meruit arises on the successful occurrence of the contingency, e.g., the discharged
attorney can recover after the client recovers in the underlying case and the attorney is
usually not compensated if the client recovers nothing.” Pipino v. Norman, 7th Dist.
Mahoning No. 16 MA 0153, 2017-Ohio-9048, ¶ 30, citing Reid, 68 Ohio St.3d at 575-576,
629 N.E.2d 431 [emphasis added].
{¶67} Here, appellant recovered on the invasion of privacy claim, and she was
awarded punitive damages related to that claim, stipulated attorney fees, and
prejudgment interest. Thus, a successful contingency occurred.
{¶68} Moreover, the trial court did not err in using the attorney fee provided in a
contingency fee agreement as a guide for awarding attorney fees to a discharged
contingent-fee attorney. Law Offices of Russell A. Kelm v. Selby, 10th Dist. Franklin No.
15AP-1135, 2017-Ohio-8239, ¶ 30 (no abuse of discretion by trial court in valuing attorney
fee award under quantum meruit on earlier contingency agreement). While a discharged
contingent-fee attorney cannot recover attorney fees pursuant to the contingency fee
agreement, courts may use that agreement to help value the legal services rendered by
the attorney. As to determining attorney fees in such circumstances, the Court held in Fox
that, “* * * the maximum reach of its right to fees, with regard to the client, is the reasonable
Case No. 22 MA 0005
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value of the legal services actually rendered to the date of discharge.” 44 Ohio St.3d at
72, 541 N.E.2d at 450.
{¶69} The trial court aptly explained that it used the 40% contingency fee contract
between Groedel and appellant only as a guide. The court adopted the findings of fact
set forth by Magistrate Welsh to the extent that they were not modified by the court’s
conclusions of law. Magistrate Welsh thoroughly reviewed the Reid factors, specifically
finding that Groedel secured the invasion of privacy recovery for appellant, she
meticulously maintained billing records on the hours she expended, she had expertise in
employment cases, the case was complex, and she expended a great number of hours
on the case representing appellant through trial and on appeal.
{¶70} We also find that the trial court did not abuse its discretion by additionally
awarding Groedel attorney fees based on quantum meruit from the stipulation by
Nationwide to $187,546.50 in attorney fees through trial. Again, the trial court adopted
Magistrate Welsh’s findings of fact regarding this award and applied the 40% contingency
fee as a guide. Magistrate Welsh noted that Groedel secured this stipulation, she kept
meticulous billing records, she had expertise in labor cases, the case was complex, and
Groedel spent a great number of hours on the case. The trial court adopted Magistrate
Welsh’s findings to the extent that they correlated with the court’s conclusions of law.
{¶71} We reject appellant’s assertion that Groedel is not entitled to any of the
stipulated fee award because Nationwide can still challenge this award under Civ. R.
60(b)(4). The stipulation between appellant and Nationwide does state that Nationwide
“retains the rights to challenge the jury’s fee award in post-trial proceedings and on
appeal.” (Groedel’s Trial Exhibit S). However, the $187,546.50 fee was not appealed and
was included as part of the ultimate settlement between appellant and Nationwide. It is
therefore not error to include a portion of this amount in the trial court’s quantum meruit
award.
{¶72} We also reject appellant’s assertions that awarding Groedel attorney fees
on losing claims results in a windfall to Groedel. The trial court did not award Groedel on
any claim other than invasion of privacy and the stipulated attorney fee award. Thus, even
if quantum meruit as to attorney fees only applies to successful claims, the trial court did
not abuse its discretion in the attorney fee award to Groedel in this case.
Case No. 22 MA 0005
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{¶73} In sum, we find that the trial court did not abuse its discretion by applying
quantum meruit to award attorney fees, using the contingency fee agreement as a guide
for awarding fees, and awarding Groedel attorney fees based upon the invasion of privacy
recovery and the stipulated attorney fee award.
{¶74} Accordingly, appellant’s second assignment of error lacks merit and is
overruled.
Groedel’s Cross-Assignment of Error
{¶75} Groedel’s assignment of error on cross-appeal states:
The trial court abused its discretion in determining that only
$487,576.50 of Lucarell’s total recovery was attributable to
CG&A’s legal services, and thus, erroneously limited CG&A’s
quantum meruit recovery to $195,030.60.
{¶76} Groedel contends that pursuant to Reid, a trial court must consider the
totality of the circumstances in determining an attorney fee pursuant to quantum meruit.
She asserts that the trial court did not consider all relevant circumstances because it failed
to award her an attorney fee from appellant’s prejudgment interest award. Groedel points
out that the prejudgment interest award of 3% per annum with interest commencing July
7, 2009 was not subject to further appeal and the trial court should have awarded her the
full 40% contingency fee on this amount. (Groedel Trial Exhibits U, V). Groedel submits
that Nationwide stipulated to the prejudgment interest award and this was a final award
that resulted exclusively from Groedel’s work.
{¶77} Groedel further asserts the trial court also erred by not awarding attorney
fees from appellant’s ultimate settlement with Nationwide. Groedel asserts that quantum
meruit recovery is not limited to pre-settlement money judgments that occurred prior to
the discharge of the attorney. Citing Dickson v. Campbell, L.L.C. v. Marshall, 8th Dist.
Cuyahoga No. 106289, 2018-Ohio-2233, ¶ 12, she asserts that if a client benefits from
the discharged attorney’s legal services after discharge, the discharged attorney should
be compensated based on any ultimate settlement in the case as well, even if new
counsel negotiated the settlement. She cites Pipino v. Norman, 7th Dist. Mahoning No.
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16 MA 0153, 2017-Ohio-9048, 101 N.E.3d 597 where we applied the Eighth District’s
holding in Redmond v. Sberna, 8th Dist. No. 68529, 1996 WL 273764 (May 23, 1996):
The measure of the benefit provided by the services of the attorneys
in a quantum meruit action such as this is measured by the benefit
provided to the client. * * * Clients who receive monetary settlements
after discharging their attorneys benefit from the services their
attorneys performed prior to discharge. The extent to which they
benefitted is left to the discretion of the trial judge.
{¶78} Groedel also cites Kaushiva v. Hutter, 454 A.2d 1373 (D.C.App. 1983), and
Fox, Supra, 44 Ohio St.3d 69, 724, 541 N.E.2d 448 (1989), to assert that a discharged
contingent-fee attorney may be entitled to the full contingency on the settlement amount
where the attorney substantially performs and the client prevents the attorney from
completing performance by terminating the relationship after the legal services that
generated the value of the case.
{¶79} Groedel asserts that her work was appellant’s exclusive leverage for
securing the settlement with Nationwide since the only claim that survived in the Ohio
Supreme Court was the breach of contract claims that she had conceived of and
advanced at trial, in post-trial motions, and on appeal. She posits that but for her work on
these claims, the case would have concluded in the Ohio Supreme Court and no
settlement would exist.
{¶80} Appellant counters that Groedel’s prejudgment interest argument makes
no sense because prejudgment interest was awarded by the trial court based on all of the
claims that Groedel successfully tried, and she prevailed only on the invasion of privacy
claim. Appellant further contends that there is no indication that Nationwide ever paid
prejudgment interest and there is no evidence that prejudgment interest was part of the
settlement entered into by Nationwide and appellant.
{¶81} Appellant also contends that Groedel is not entitled to attorney fees on the
ultimate settlement in the Nationwide case. She cites to the Ohio Supreme Court’s
mention of the “limited evidence” presented in the record and the “scant evidence”
presented and notes that this evidence was that presented by Groedel. She contends
that her case was remanded to our Court to either remand the case to the trial court for a
Case No. 22 MA 0005
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new trial on the breach of contract and duress issue or to find that the trial court erred in
allowing these claims to go to the jury. Appellant opines that if we would have found that
the trial court erred in allowing these claims to go to the jury, Groedel had no other work
to do and her attorney award was sufficient. If we decided that a new trial was warranted,
appellant argues that her new counsel would have to perform additional work because
Groedel’s work was “scant” and “limited.” She concludes that this establishes that the
breach of contract claims could not have contributed to the settlement with Nationwide.
She also notes that Reid allows for the compensation of a discharged contingent fee
attorney for legal services rendered only prior to the time of discharge.
{¶82} Magistrate Welsh did not address the prejudgment interest award in his
decision, although the issue was discussed at trial. (Tr. at 501). Groedel also raised this
issue in her objections to the magistrate’s decision. However, the trial court did not
address prejudgment interest in its decision and did not state its rulings on the objections.
Rather, the trial court stated that it was adopting in part, rejecting in part, and modifying
Magistrate Welsh’s decision.
{¶83} After the jury trial in Nationwide, Groedel filed a motion for prejudgment
interest under R.C. 1343.03 and the trial court granted the motion. The court found that
Nationwide failed to act in good faith in trying to settle the case and that appellant did not
fail to make a good faith effort to settle. We affirmed the prejudgment interest award on
appeal. No further appeals were filed on the interest awards. In this case, while the trial
court adopted the magistrate’s findings to the extent not modified, Magistrate Welsh did
not address whether attorney fees should be awarded based on quantum meruit on
appellant’s award of prejudgment interest. We agree with Groedel that this needs to be
addressed.
{¶84} The trial court also failed to address whether Groedel was entitled to a
quantum meruit award from appellant’s ultimate settlement in the Nationwide case.
However, the trial court adopted Magistrate Welsh’s findings to the extent not modified by
its conclusions of law. The magistrate’s decision addressed this issue and found that
Groedel was not entitled to attorney fees on any part of the settlement. Magistrate Welsh
reasoned that it was too speculative to determine the extent, if any, that Groedel’s work
and the breach of contract claims had on the settlement. Thus, the trial court adopted the
magistrate’s decision on this issue since it was not modified by the court. We find no
Case No. 22 MA 0005
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abuse of discretion in denying Groedel a quantum meruit attorney fee recovery on any
settlement amount secured by appellant.
{¶85} In sum, we find that the trial court erred by failing to address whether
Groedel was entitled to attorney fees from appellant’s prejudgment interest award. There
was no abuse of discretion in holding that Groedel was not entitled to attorney fees on
the ultimate settlement in the Nationwide case.
{¶86} Accordingly, we find merit in part with Groedel’s cross-assignment of error.
We sustain that part of Groedel’s assignment of error concerning the lack of a ruling on
her entitlement to a portion of appellant’s prejudgment interest awards. We overrule that
part of Groedel’s assignment asserting trial court error in denying her attorney fees from
any settlement in the Nationwide case on the basis of quantum meruit.
Fromson’s Cross-Assignment of Error
{¶87} In his cross-appeal assignment of error, Fromson asserts that:
The Trial Court Erred in Failing to Provide Fromson with Any
Quantum Meruit Recovery of Attorneys’ Fees for the Only
Successful Claim – Invasion of Privacy.
{¶88} Fromson contends that the trial court erred by not applying the same
quantum meruit principles to his attorney fee claim as those applied to Groedel’s claims.
He asserts that he was not discharged at the outset of appellant’s case against
Nationwide as Groedel asserted and he performed work on the case.
{¶89} Citing to appellant’s testimony and his own testimony before Magistrate
Welsh, Fromson states that he had a contingency fee agreement with appellant and
appellant hired him in 2009 as counsel for her claims against Nationwide. (Tr. at 25, 373-
374). Fromson cites his testimony that he performed work on the case prior to bringing
Groedel on the case in 2010. (Tr. at 25-28). He cites appellant’s testimony that she
brought him large boxes of documents and 450 emails to review prior to meeting with
Groedel. (Tr. at 373-374). Fromson also cites his testimony that he helped draft the
complaint in appellant’s case and the complaint bore both his name and Groedel’s name
as counsel. (Tr. at 36-44). He asserts that he worked on discovery in the matter, sent
settlement letters, and provided the relevant information, evidence, and claims for
Case No. 22 MA 0005
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appellant’s case from a prior case he had handled against Nationwide for another agent.
(Tr. at 48-53, 373-375).
{¶90} Fromson contends that the trial court must have used factors other than
billing hours in determining that Groedel was entitled to $195,030.60 in attorney fees. He
points out that Groedel’s billing records showed only 11 hours of provable work on the
invasion of privacy claim, and the court’s award of $195,030.60 amounts to $17,727.27
per hour of work. Fromson concludes that the trial court must have therefore considered
factors beyond hours worked in order to determine Groedel’s attorney fee award.
{¶91} Groedel counters that the trial court did not abuse its discretion by awarding
Fromson no attorney fees. She contends that Fromson performed no work on the invasion
of privacy claim and there is no evidence establishing that he did. Groedel cites the
holding in Reid that an attorney’s number of hours worked is an important factor in
determining the reasonable value of the attorney’s services under quantum meruit and
attorneys working under contingency fee agreements should keep time records because
proof may be needed if they are discharged. She cites to Fromson’s admission that he
kept no billing records and notes that he could not even produce his contingency fee
agreement with appellant at trial.
{¶92} Groedel asserts that she and her firm alone conceived of and performed
all of the work on the invasion of privacy claim. She notes that she was familiar with such
claims through her prior employment in Maryland and the District of Columbia. Groedel
explains that she asked another lawyer to research such a claim to confirm that it existed.
{¶93} Groedel further contends that we should reject Fromson’s discussion about
reliance upon his work in a prior Nationwide case to assert that he is entitled to attorney
fees in appellant’s case. She indicates that Fromson has been paid in that case, she
actually helped him in that case, and the case is publicly available for Groedel to have
used in preparing appellant’s case.
{¶94} As to any award of an attorney fee to Fromson from the $187,546.50
Nationwide stipulation, Groedel asserts that this is ludicrous. She contends that this fee
was procured exclusively by her and Nationwide agreed to this fee based upon the
exclusive work of her and her firm.
{¶95} Before the magistrate, Fromson testified that a contingency fee agreement
existed with appellant, he had numerous meetings with appellant and others regarding
Case No. 22 MA 0005
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her case, and he reviewed a number of documents and emails. (Tr. at 25-44, 48-53, 373-
374). He also explained that he had prior experience in a similar Nationwide case which
he applied to appellant’s case and he helped draft the complaint and discovery. (Tr. at
25-44, 48-53, 373-374). Both appellant and Groedel agreed at trial that Fromson provided
some value to the invasion of privacy award with his work. (Tr. at 388, 554).
{¶96} Magistrate Welsh found that Fromson represented appellant for several
months prior to getting Groedel involved and Fromson’s initial representation involved
client meetings, using and applying information that he procured from his prior Nationwide
case, and preparing and filing the complaint. Magistrate Welsh considered the Reid
factors and apportioned $125,000.00 in quantum meruit attorney fees to Groedel and
$25,000.00 to Fromson.
{¶97} However, the trial court rejected the magistrate’s decision as to Fromson
and held that he was not entitled to attorney fees because he failed to establish his
contribution to appellant’s recovery. Civ. R. 53(b) and (d) allow the trial court to reject,
accept, or modify the magistrate’s decision and to conduct an independent review to
determine if the magistrate properly determined the facts and properly applied the law.
{¶98} Further, we cannot find that the trial court’s attitude in denying Fromson
attorney fees on the basis of quantum meruit was unreasonable, arbitrary or
unconscionable. Looking at the totality of the circumstances and the factors in Reid, the
trial court acted reasonably in finding that Fromson’s testimony before the magistrate was
insufficient to establish his contribution.
{¶99} Contradictory testimony was presented at trial before the magistrate by
Fromson and Groedel concerning their legal work in appellant’s case. Fromson testified
about his work on the Gina Scruggs case that he used in appellant’s case and for which
he had already been paid. (Tr. at 89, 134-135). He noted that the information that he
obtained from Daniel Baker of Nationwide in the Scruggs case was instrumental for
appellant’s invasion of privacy claim. (Tr. at 89). However, testimony was presented that
the information in the Scruggs case was not instrumental to the invasion of privacy claim
and Groedel’s firm deposed Baker for appellant’s case. (Tr. at 89). Fromson also testified
that he kept no record of the hours that he spent on appellant’s case and he could not
determine the number of hours that he worked on appellant’s invasion of privacy claim
apart from the other claims. (Tr. at 158-159, 184). He noted that he engaged Groedel on
Case No. 22 MA 0005
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the case because she had special skill in these types of claims and he was not certified
as a specialist in any legal area. (Tr. at 78, 82, 165). He also testified that appellant
discharged his legal services early on in the case. (Tr. at 51-52).
{¶100} Further, emails between Fromson and Groedel challenged Fromson’s
testimony that he drafted the complaint in appellant’s case and specifically the invasion
of privacy claim. (Tr. at 84-99). Groedel testified that she drafted the complaint and
discovery requests and merely sent them to Fromson for his review. (Tr. at 82-86, 482-
483). Fromson testified that the facts that he developed and his complaint drafting were
responsible for the invasion of privacy claim. (Tr. at 86-111). Groedel testified that after
speaking with appellant about whether Nationwide was still representing that she was
their agent, Groedel recalled from her employment practice in Maryland and the District
of Columbia the tort claim of misappropriation of name and likeness. (Tr. at 486-488). She
testified that she sent an email and asked a research assistant to research whether Ohio
had a misappropriation of name and likeness claim or something similar. (Tr. at 488-489).
She carbon-copied Fromson on the email and he responded to her that the only section
he found research on was a breach of contract. (Tr. at 490). She testified that Fromson
misunderstood her email as she was not asking for a breach of contract action but a tort
action. (Tr. at 490). She also testified that Fromson brought only a breach of contract
action in the Scruggs case and he attempted to amend that complaint after the invasion
of privacy claim was created in appellant’s complaint. (Tr. at 492).
{¶101} Based upon the trial court’s review of the testimony, we find that the trial
court did not abuse its discretion and could reasonably conclude that Fromson failed to
establish his contribution to the invasion of privacy claim. Thus, he was not entitled to
attorney fees on the basis of quantum meruit. We therefore find that Fromson’s cross-
assignment of error lacks merit.
{¶102} In conclusion, this Court finds no merit with appellant’s assignments of
error. We find merit in part with Groedel’s cross-assignment of error. We find merit with
that part of Groedel’s assignment concerning trial court error in failing to rule whether
Groedel was entitled to attorney fees from the award of prejudgment interest. We find no
merit to that part of Groedel’s assignment asserting trial court error in denying her attorney
fees from appellant’s settlement in the Nationwide case on the basis of quantum meruit.
Finally, we find no merit to cross-appellant Fromson’s assignment of error.
Case No. 22 MA 0005
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{¶103} Based on the foregoing, this matter is remanded to the trial court to
address whether Groedel is entitled to attorney fees from the award of prejudgment
interest on the basis of quantum meruit, and if so, the amount thereof.
Robb, J., concurs.
Nelson, J., concurs.
Case No. 22 MA 0005
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For the reasons stated in the Opinion rendered herein, the assignments of error by
appellant/cross-appellee, Christine Oliver, fka Christine Lucarell, are overruled. The cross-
assignment of error by appellees/cross-appellants Caryn Groedel, Esquire and Caryn
Groedel Associates, L.P.A. Company is sustained in part and overruled in part. We sustain
that part of Groedel’s assignment concerning trial court error in failing to rule whether Groedel
was entitled to attorney fees from the award of prejudgment interest. We overrule that part
of Groedel’s assignment asserting trial court error in denying her attorney fees from
appellant’s settlement in the Nationwide case. The cross-assignment of error by
appellees/cross-appellants Scott Fromson, Esquire and A. Scott Fromson, Attorney at Law,
Inc. is overruled. Costs to be taxed against all parties.
The judgment of the trial court is hereby affirmed and remanded to the trial court
pursuant to law and consistent with this Court’s Opinion. On remand, the trial court is to rule
whether appellees/cross-appellants Caryn Groedel, Esquire and Caryn Groedel Associates,
L.P.A. Company are entitled to attorney fees from the award of prejudgment interest on the
basis of quantum meruit, and if so, the amount thereof.
A certified copy of this opinion and judgment entry shall constitute the mandate in this
case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified
copy by sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 22 MA 0005