Marshall v. Elliott

[Cite as Marshall v. Elliott, 2017-Ohio-5813.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104959
KATHLEEN MARSHALL
PLAINTIFF-APPELLANT
vs.
COOPER & ELLIOTT, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED IN PART;
REVERSED IN PART
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-13-817284
BEFORE: E.A. Gallagher, P.J., E.T. Gallagher, J., and Laster Mays, J.
RELEASED AND JOURNALIZED: July 13, 2017
ATTORNEYS FOR APPELLANT
Randy J. Hart
Randy J. Hart, L.L.P.
3601 South Green Road, #309
Beachwood, Ohio 44122
A. Scott Fromson
A. Scott Fromson Attorney at Law
32125 Solo Road
Solon, Ohio 44139
For Michael A. Dolan
Michael J. O’Shea
O’Shea & Associates Co., L.P.A.
700 West St. Clair, Suite 110
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEES
Charles H. Cooper
Rex H. Elliott
Cooper & Elliott, L.L.C.
2175 Riverside Drive
Columbus, Ohio 43221
For Anthony O. Calabrese, III
John R. Christie
Lewis, Brisbrois, Bisgaard, & Smith L.L.P.
1375 East Ninth Street, Suite 2250
Cleveland, Ohio 44114
EILEEN A. GALLAGHER, P.J.:
{¶1} Plaintiff-appellant, Kathleen Marshall appeals from the order of the
Cuyahoga County Court of Common Pleas granting summary judgment in favor of
defendants-appellees, Charles H. Cooper, Rex H. Elliott, Cooper & Elliott, L.L.C. and
Anthony O. Calabrese III. For the following reasons, we affirm in part, and reverse in
part.
Facts and Procedural Background
{¶2} On November 14, 2013 appellant filed a complaint against appellees alleging
claims for breach of contract, conversion, fraud and civil conspiracy. These claims
arose out of appellant’s central allegation that appellees conspired with her ex-husband,
G. Timothy Marshall, to conceal attorney fees to which he was entitled, for work
performed in conjunction with appellees during a class action lawsuit from the marital
estate, during her divorce from Marshall. As a part of the divorce settlement appellant
was assigned any contractual rights her husband possessed in this matter.
{¶3} The record reflects that the Law Offices of G. Timothy Marshall, Cooper &
Elliott and Michael Dolan were involved as attorneys of record in a class action lawsuit
involving the unlawful provision of consumer credit information by TransUnion. Dolan
and Marshall worked with Cooper & Elliott to identify class members for the multidistrict
litigation that resulted in a settlement for their clients and attorney fees in the amount of
$1,234,045.00. The fees were distributed after appellant and Marshall had separated but
before their divorce proceeding began. Cooper & Elliott retained $617,000.00 of the
fees and distributed $308,000.00 to Dolan and $308,000.00 to Marshall’s nephew,
Calabrese. Calabrese paid Marshall $17,500.00 of the money he received from Cooper
& Elliott.
{¶4} Cooper & Elliott credited Calabrese with the plan to join in the TransUnion
action and maintain that, although he was never listed as an attorney of record in the case,
Calabrese’s role was to assist in developing and implementing the TransUnion strategy,
drafting and editing pleadings, coordinating the entry of claims into a database and to
undertake some of the expenses. In defense of the decision to distribute the $308,000.00
in TransUnion fees to Calabrese rather than the law office of G. Timothy Marshall,
Cooper and Elliott allege that they reasonably believed that Calabrese was operating in an
of-counsel role for Marshall’s firm. They further cite an affidavit wherein Marshall
averred that he had been appropriately paid for his efforts in the TransUnion matter by
Calabrese.
{¶5} Conversely, appellant maintains that Cooper & Elliott breached the
TransUnion attorney fee agreement by directing Marshall’s fees to Calabrese when he
was never listed as an attorney of record in the agreement. She similarly maintains that
the fees were converted by the parties and that they engaged in a fraudulent scheme and
civil conspiracy to shield the fees from the marital estate during her divorce.
{¶6} The trial court granted summary judgment on all of appellant’s claims against
appellees. After the remaining claims by and against other parties were dismissed,
appellant filed the instant appeal.
Law and Analysis
{¶7} We review summary judgment rulings de novo, applying the same standard as
the trial court. Grafton v. Ohio Edison Co., 77 Ohio St. 3d 102, 105, 1996 Ohio 336, 671
N.E.2d 241 (1996). We accord no deference to the trial court’s decision and
independently review the record to determine whether summary judgment is appropriate.
{¶8} Under Civ.R. 56, summary judgment is appropriate when (1) no genuine
issue as to any material fact exists, (2) the party moving for summary judgment is entitled
to judgment as a matter of law and (3) viewing the evidence most strongly in favor of the
nonmoving party, reasonable minds can reach only one conclusion that is adverse to the
nonmoving party.
{¶9} On a motion for summary judgment, the moving party carries an initial
burden of identifying specific facts in the record that demonstrate his or her entitlement to
summary judgment. Dresher v. Burt, 75 Ohio St. 3d 280, 292-293, 1996-Ohio-107, 662
N.E.2d 264. If the moving party fails to meet this burden, summary judgment is not
appropriate; if the moving party meets this burden, the nonmoving party has the
reciprocal burden to point to evidence of specific facts in the record demonstrating the
existence of a genuine issue of material fact for trial. Id. at 293. Summary judgment is
appropriate if the nonmoving party fails to meet this burden. Id.
I. Breach of Contract
{¶10} In considering summary judgment on appellant’s breach of contract claim,
the trial court concluded that the record demonstrates a breach of contract by Cooper &
Elliott regarding the disbursement of attorney fees in this instance. We agree that the
facts raise a genuine issue of material fact as to whether Cooper & Elliott breached their
contract with Marshall. Cooper & Elliot attempt to justify the disbursement of
Marshall’s share of the TransUnion Fees to Calabrese by arguing that they reasonably
relied upon their belief that Anthony Calabrese III represented the Law Office of G.
Timothy Marshall in an of-counsel attorney position. Cooper & Elliot argue that this
belief was reasonable because (1) Calabrese had recently left another firm and his new
firm was in the formative stages, (2) Marshall’s law firm was well established and (3)
Calabrese had a close, personal relationship with Marshall because he was Marshall’s
nephew. Cooper & Elliot further assert that Calabrese was a “point of contact” with
Marshall and emails indicated the two attorneys shared the same legal assistant.
{¶11} None of these points firmly established an of-counsel relationship between
Calabrese and Marshall’s firm. In fact, the reasonableness of Cooper & Elliott’s belief
is called into question by a September 18, 2009 email from Chip Cooper to Calabrese
wherein Cooper stated: “We should talk about how we make sure you’re included (e.g.
are you ‘of counsel’ to Mike Dolan, do we need to list your firm, etc.)”’ It is clear from
this communication that the question of Calabrese’s formal role and relationship to the
parties had been raised and that Cooper was apparently aware that Calabrese had his own
firm. There is no explanation for the parties’ decision to omit Calabrese’s name from
the listed attorneys in the TransUnion litigation, nor is there an explanation why Cooper
& Elliott chose to assume an of-counsel relationship existed when (1) the question had
been raised by Cooper and (2) a single phone call or email to Marshall or Calabrese could
have provided a definitive resolution. Reasonable minds could reach differing
conclusions in regards to the reasonableness of Cooper & Elliott’s belief that Calabrese
was of-counsel to Marshall’s firm.
{¶12} We diverge from the trial court’s analysis with its conclusion that appellant
is unable to demonstrate damages due to Marshall’s alleged ratification of the fee
disbursement and his averment that he was paid appropriately by Calabrese. There is no
dispute that the fees should have been distributed to Marshall’s firm. If Calabrese was
an independent attorney in this matter he should have been listed on the various court
filings in the TransUnion case and be paid for his role pursuant to the fee agreement
amongst the several attorneys. If, instead, we accepted Cooper & Elliott’s view of the
facts, the fees should still have been dispersed to Marshall’s firm and then divided
appropriately to any of-counsel attorneys under Marshall’s direction. Neither of these
occurred. Instead, we are left with Marshall’s contention that he was paid appropriately
by Calabrese. However, Marshall, having assigned his claims pertaining to the
TransUnion fees to appellant, is no longer a party-plaintiff in this case and his averments
cannot be treated as stipulations by appellant. Appellant has clearly challenged the
veracity of the statements made by her ex-husband, alleging that he engaged in a scheme
to shelter the TransUnion fees in their divorce. Cooper & Elliott’s alleged breach of
contract in disbursing fees directly to Calabrese rather than through any of the
above-listed options plainly prejudiced appellant’s ability to resolve this matter within the
confines of the divorce action. On these facts, we find a genuine issue of material fact
exists.
{¶13} Appellant’s first assignment of error is sustained.
II. Conversion
{¶14} Appellant argues in her second assignment of error that the trial court erred
in granting summary judgment in favor of appellees on her conversion claim.
{¶15} The elements of conversion are “(1) plaintiff's ownership or right to
possession of the property at the time of conversion; (2) defendant’s conversion by a
wrongful act or disposition of plaintiff’s property rights; and (3) damages.” Dream
Makers v. Marshek, 8th Dist. Cuyahoga No. 81249, 2002-Ohio-7069, ¶ 19, quoting Haul
Transport of Va., Inc. v. Morgan, 2d Dist. Montgomery No. CA 14859, 1995 Ohio App.
LEXIS 2240 (June 2, 1995). Conversion is “any distinct act of dominion wrongfully
exerted over one’s property in denial of his rights or inconsistent with it.” Schiff v.
Dickson, 8th Dist. Cuyahoga Nos. 96539 and 96541, 2011-Ohio-6079, ¶ 30.
{¶16} We find that summary judgment was appropriate as to appellant’s
conversion claim based on the holding in Landskroner v. Landskroner, 154 Ohio App. 3d
471, 2003-Ohio-5077, 797 N.E.2d 1002, ¶ 27 (8th Dist.) (“Because the property subject
to appellant’s conversion claim is not identifiable, personal property but rather comprises
monies appellant claims are due and owing him under an agreement, appellant can prove
no set of facts that would entitle him to recover on his claim for conversion.”).
Appellant’s conversion claim plainly falls within the ambit of Landskroner and is barred
by the holding in that case.
{¶17} Appellant’s second assignment of error is overruled.
III. Fraud and Civil Conspiracy
{¶18} In her third and fourth assignments of error appellant argues that the trial
court erred in granting summary judgment in favor of appellees on her fraud and civil
conspiracy claims. We agree.
{¶19} A case for common law fraud requires proof of the following elements: (1) a
representation or, where there is a duty to disclose, concealment of a fact, (2) which is
material to the transaction at hand, (3) made falsely, with knowledge of its falsity, or with
such utter disregard and recklessness as to whether it is true or false that knowledge may
be inferred, (4) with the intent of misleading another into relying upon it, (5) justifiable
reliance upon the representation or concealment and (6) a resulting injury proximately
caused by the reliance. Cohen v. Lamko, Inc., 10 Ohio St. 3d 167, 169, 462 N.E.2d 407
(1984).
{¶20} The elements of a civil conspiracy claim include: (1) a malicious
combination, (2) involving two or more persons, (3) causing injury to person or property,
and (4) the existence of an unlawful act independent from the conspiracy itself. Universal
Coach, Inc. v. New York City Transit Auth., Inc., 90 Ohio App. 3d 284, 292, 629 N.E.2d
28 (8th Dist. 1993).
{¶21} We find genuine issues of material fact exist on both these claims.
Calabrese and Cooper & Elliott’s explanation for the peculiar oddities and abnormality of
the fee disbursement process vis-a-vis Calabrese and Marshall may be entirely truthful
and valid. However, the questionable circumstances of the disbursement itself raise a
genuine issue of material fact such that the credibility of the explanations should be
resolved by a finder of fact rather than on summary judgment.
{¶22} Appellant’s third and fourth assignments of error are sustained.
{¶23} The judgment of the trial court is affirmed in part, and reversed in part and
remanded to the lower court for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to Cuyahoga County Court of Common
Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
_______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
ANITA LASTER MAYS, J., CONCUR