[Cite as Linnen Co., L.P.A. v. Roubic, 2013-Ohio-1022.]


STATE OF OHIO                    )                         IN THE COURT OF APPEALS
                                 )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

LINNEN CO., L.P.A., et al.                                 C.A. No.   26494

        Appellants

        v.                                                 APPEAL FROM JUDGMENT
                                                           ENTERED IN THE
MELISSA R.V. ROUBIC, et al.                                COURT OF COMMON PLEAS
                                                           COUNTY OF SUMMIT, OHIO
        Appellees                                          CASE No.   CV 2011-09-5399

                                 DECISION AND JOURNAL ENTRY

Dated: March 20, 2013



        BELFANCE, Judge.

        {¶1}    Plaintiffs-Appellants Linnen Co., L.P.A. and Jerome T. Linnen, Jr. (collectively

“Linnen”) appeal from the decisions of the Summit County Court of Common Pleas. For the

reasons set forth below, we affirm.

                                                      I.

        {¶2}    Beginning around 2005, Defendants-Appellees Melissa R.V. Roubic and Roubic

Law Offices, L.L.C. (collectively “Roubic”) began referring clients with personal injury legal

issues to Linnen. Ms. Roubic believed that she and her law firm would receive 50% of all

attorney fees received by Linnen for work done on matters she referred to Linnen. Ms. Roubic

believed that she had discretion to determine which clients to refer to Linnen. Linnen believed

that Roubic would receive up to 50% of all fees only if Roubic referred all potential clients

seeking representation regarding personal injury matters to Linnen.
                                                 2


       {¶3}    In 2010, it became clear to Linnen that Ms. Roubic and her law firm were not

referring all clients with personal injury matters to Linnen.     In March 2011, Roubic filed a

complaint and request for fee arbitration before the Akron Bar Association (“ABA”) with respect

to fees that Roubic claimed Linnen owed Ms. Roubic based upon Linnen’s representation of

three clients. An additional client’s complaint concerning a similar issue was referred to the

ABA. The ABA concluded it had authority to hear the matter, held hearings over two days, and

ultimately issued a decision finding in favor of Roubic and awarding Roubic $117,180.46 plus

interest. Roubic filed a motion to confirm the award in the Summit County Court of Common

Pleas, and Linnen moved to vacate the award.

       {¶4}    Prior to the ABA arbitration hearing, Linnen filed a three-count complaint under a

separate case number in the Summit County Court of Common Pleas, seeking a declaration that

there was no fee sharing agreement and that, if there was one, it was void for violating DR 2-107

and/or Prof.Cond.R. 1.5.1 In addition, in count three, Linnen, based upon a theory of unjust

enrichment, sought in excess of $140,000 for attorney fees that Linnen had paid to Roubic.

Linnen alleged that Roubic had been unjustly enriched because the parties did not actually have a

binding agreement for Linnen to share 50% of the fees generated from cases referred by Roubic.

Ultimately, the matter concerning the confirmation of the arbitration award was consolidated

with Linnen’s complaint seeking a declaratory judgment and damages.

       {¶5}    Roubic filed a motion to dismiss Linnen’s complaint pursuant to Civ.R. 12(B)(6),

asserting that Linnen was trying to reargue the issues decided at the arbitration and attached to

the motion the arbitration award. The trial court gave the parties notice that it was converting the

motion to dismiss to a motion for summary judgment and gave the parties time to brief the

       1
        In 2007, the Supreme Court of Ohio adopted Prof.Cond.R. 1.5, replacing DR 2–107.
The language of DR 2-107(B) mirrors that of Prof.Cond.R. 1.5(f).
                                                  3


issues. Linnen filed a motion to modify the briefing schedule to permit discovery. The trial

court overruled his motion, noting that Linnen had failed to file an affidavit as required by Civ.R.

56(F) and that the discovery sought would have no bearing on the determination of whether the

trial court had jurisdiction to hear Linnen’s complaint.         Linnen then filed a motion for

reconsideration and submitted an affidavit. Ultimately, the trial court granted Roubic’s motion

for summary judgment, concluded that it lacked jurisdiction over Linnen’s claims, and dismissed

the complaint.

       {¶6}      Thereafter, the parties briefed the issues surrounding the confirmation or vacation

of the arbitration award. The trial court confirmed the award. Mr. Linnen and his law firm have

appealed, raising six assignments of error for our review, which we have rearranged to facilitate

our review.

                                                 II.

                                  ASSIGNMENT OF ERROR III

       THE TRIAL COURT COMMITTED ERROR BY FAILING TO MAKE A
       DETERMINATION, AS REQUIRED BY OHIO R.C. []2711.10(A), ON
       WHETHER ROUBIC PROCURED THE ABA ARBITRATION AWARD
       THROUGH THE USE OF FRAUD.

                                  ASSIGNMENT OF ERROR IV

       THE TRIAL COURT COMMITTED ERROR BY FAILING TO VACATE THE
       ABA ARBITRATION AWARD PURSUANT TO OHIO R.C. []2711.10(C)
       UPON DEMONSTRATION THAT THE ABA ARBITRATORS WERE
       GUILTY OF MISCONDUCT IN REFUSING TO POSTPONE THE HEARING,
       UPON SUFFICIENT CAUSE SHOWN.
                                                 4


                                  ASSIGNMENT OF ERROR V

       THE TRIAL COURT COMMITTED ERROR BY FAILING TO VACATE THE
       ABA ARBITRATION AWARD PURSUANT TO OHIO R.C. []2711.10(C)
       UPON DEMONSTRATION THAT THE ABA ARBITRATORS WERE
       GUILTY OF MISBEHAVIOR, BY FAILING TO FOLLOW THE RULES
       ESTABLISHED BY THE TRUSTEES OF THE ABA[.]

                                 ASSIGNMENT OF ERROR VI

       THE TRIAL COURT COMMITTED ERROR BY FAILING TO VACATE THE
       ABA ARBITRATION AWARD PURSUANT TO OHIO R.C. []2711.110(D)
       UPON DEMONSTRATION THAT THE ABA ARBITRATORS EXCEEDED
       THEIR POWERS, OR SO IMPERFECTLY EXECUTED THEM THAT A
       MUTUAL, FINAL, AND DEFINITE AWARD UPON THE SUBJECT
       MATTER SUBMITTED WAS NOT MADE.

       {¶7}    Mr. Linnen and his law firm assert in their third through sixth assignments of

error that the trial court erred in failing to vacate the arbitration award pursuant to R.C. 2711.10.

We do not agree.

       {¶8}    Although Chapter 2711 of the Ohio Revised Code applies to arbitration arising by

virtue of a contractual agreement, see R.C. 2711.01, we note that both parties and the trial court

have proceeded under the notion that Chapter 2711 also applies to matters involving non-

contractual fee dispute arbitration. Given that neither side has raised that issue in this appeal, we

will assume for purposes of this appeal that Chapter 2711 is applicable to this matter.

       {¶9}    “Ohio courts give deference to arbitration awards and presume they are valid.”

(Internal quotations and citations omitted.) Ward v. Ohio State Waterproofing, 9th Dist. No.

26203, 2012-Ohio-4432, ¶ 7. “A trial court’s ability to review an arbitration award is governed

by R.C. 2711. A trial court’s review is rather limited as it is precluded from reviewing the actual

merits upon which the award was based.” (Internal citations omitted.) Lowe v. Oster Homes, 9th

Dist. No. 05CA008825, 2006-Ohio-4927, ¶ 7. “After an award in an arbitration proceeding is

made, any party to the arbitration may file a motion in the court of common pleas for an order
                                                 5


vacating, modifying, or correcting the award as prescribed in sections 2711.10 and 2711.11 of

the Revised Code.” R.C. 2711.13.

       [T]he court of common pleas shall make an order vacating the award upon the
       application of any party to the arbitration if:

        (A) The award was procured by corruption, fraud, or undue means.

        (B) There was evident partiality or corruption on the part of the arbitrators, or any
       of them.

        (C) The arbitrators were guilty of misconduct in refusing to postpone the hearing,
       upon sufficient cause shown, or in refusing to hear evidence pertinent and
       material to the controversy; or of any other misbehavior by which the rights of
       any party have been prejudiced.

       (D) The arbitrators exceeded their powers, or so imperfectly executed them that a
       mutual, final, and definite award upon the subject matter submitted was not made.

R.C. 2711.10.     “An appeal may be taken from a trial court order that confirms, modifies,

corrects, or vacates an arbitration award. R.C. 2711.13. However, an appellate court may only

review the lower court’s order to discern whether an error occurred as a matter of law.” Lauro v.

Twinsburg, 9th Dist. No. 23711, 2007-Ohio-6613, ¶ 7.

       {¶10} Mr. Linnen and his firm asserted in their memorandum in support of their motion

to vacate the arbitration award that the award should be vacated pursuant to R.C. 2711.10(A),

(C), and (D). In the trial court and on appeal, they argue that the trial court erred in failing to

vacate the award because (1) it was procured by fraud, R.C. 2711.10(A); (2) the arbitrators were

guilty of misconduct in failing to postpone the hearing, R.C. 2711.10(C); (3) the arbitrators were

guilty of misbehavior by failing to follow the ABA rules, R.C. 2711.10(C); and (4) the

arbitrators exceeded their powers. R.C. 2711.10(D).

R.C. 2711.10(D)

       {¶11} We begin with a discussion of Linnen’s last argument. Mr. Linnen and his law

firm assert that the ABA lacked authority to conduct the arbitration because the ABA’s authority
                                                 6


to arbitrate was limited to fee disputes arising under Rule 1.5 of the Professional Rules of

Conduct and the dispute at issue did not arise under Rule 1.5.

       {¶12} Lawyers who are not in the same firm may permissibly divide fees only if they

comply with the requirements of Prof.Cond.R. 1.5(e). Prof.Cond.R. 1.5(e) provides that:

       Lawyers who are not in the same firm may divide fees only if all of the following
       apply:

       (1) the division of fees is in proportion to the services performed by each lawyer
       or each lawyer assumes joint responsibility for the representation and agrees to be
       available for consultation with the client;

        (2) the client has given written consent after full disclosure of the identity of each
       lawyer, that the fees will be divided, and that the division of fees will be in
       proportion to the services to be performed by each lawyer or that each lawyer will
       assume joint responsibility for the representation;

        (3) except where court approval of the fee division is obtained, the written
       closing statement in a case involving a contingent fee shall be signed by the client
       and each lawyer and shall comply with the terms of division (c)(2) of this rule;

        (4) the total fee is reasonable.

(Emphasis deleted.)

       {¶13} Prof.Cond.R. 1.5 also contains a provision for the arbitration of fee disputes

between lawyers. Prof.Cond.R. 1.5(f) states that:

       [i]n cases of a dispute between lawyers arising under this rule, fees shall be
       divided in accordance with the mediation or arbitration provided by a local bar
       association. When a local bar association is not available or does not have
       procedures to resolve fee disputes between lawyers, the dispute shall be referred
       to the Ohio State Bar Association for mediation or arbitration.

(Emphasis added.)

       {¶14} Mr. Linnen and his law firm maintain that fee disputes do not “arise under” Rule

1.5 unless the lawyers have complied with Prof.Cond.R. 1.5(e).            They reason that absent

evidence of compliance with the fee sharing requirements contained in Prof.Cond.R. 1.5(e), there

is no dispute that can be deemed to “aris[e] under th[e] rule[.]” As a result, the arbitrators
                                                 7


exceeded their powers because they had no authority to conduct the arbitration, and, hence, the

award is subject to vacation pursuant to R.C. 2711.10(D).

       {¶15} The trial court concluded that the ABA panel had authority to decide the issues

before it. “The language in R.C. 2711.10(D) reflects the General Assembly’s concern that

arbitrators operate only within the bounds of the authority granted them within [the] underlying

agreement.” (Internal quotations and citation omitted.) Citibank South Dakota, N.A. v. Wood,

169 Ohio App.3d 269, 2006-Ohio-5755, ¶ 33 (2d Dist.). Generally, “[i]n determining whether

an arbitrator has jurisdiction to determine an issue, one must look to the provision in the contract

that authorizes the arbitration; the arbitrator’s authority is derived solely from the contract. The

arbitrator does not have the power to decide issues that the parties have not, by their contract,

submitted to arbitration.” (Internal quotations and citations omitted.) Id. at ¶ 34. Of course, this

matter is different than the typical arbitration scenario because the parties do not have a contract

authorizing arbitration and defining its scope. Instead, the local bar associations, such as the

ABA, possess the authority to arbitrate fee disputes pursuant to Prof.Cond.R. 1.5(f). See Shimko

v. Lobe, 103 Ohio St.3d 59, 2004-Ohio-4202, ¶ 26, 63, 65.

       {¶16} In Shimko, the Ohio Supreme Court considered the constitutionality of former DR

2-107(B) which required the arbitration of fee disputes between lawyers who are not in the same

firm. The Supreme Court upheld the constitutionality of mandatory arbitration and, in so doing,

had occasion to discuss the contours and breadth of the rule. The Court pointed out that it alone

had “the power and responsibility to admit and discipline persons admitted to the practice of law,

to promulgate and enforce professional standards and rules of conduct, and to otherwise broadly

regulate, control, and define the procedure and practice of law * * * .” Id. at ¶ 15. The Court

stated that, “no person has a right to practice law, but that the practice of law is an extraordinary
                                                  8


privilege bestowed by [the Supreme Court] upon one who meets the qualifications for admission

and continues to maintain the standard of ethical conduct as prescribed by the rules of the court.”

Id. at 54. The Court noted that “compensation for advocacy has never been treated as an

ordinary debt or contractual right, but has since antiquity been regulated by the prevailing

governmental authority possessing the power to control the practice of law.” Id. at ¶ 47. To that

end, rules governing lawyers contain a broad range of mandatory rules limiting the attorney’s

pursuit of legal fees. Id. at ¶ 16-22.     In keeping with its authority over the regulation of the

practice of law, a licensed attorney’s obligation to abide by the Rules of Professional Conduct in

order to practice law in Ohio, “gives the mediators or arbitrators their authority to resolve the fee

disputes.” (Internal quotations and citation omitted.) Id. at ¶ 65. Former DR 2-107(B), now

embodied in Prof.Cond.R. 1.5(f), authorizes local bar associations to provide “the arbitral

machinery for determining a fee dispute between attorneys from different firms * * *.” Id. at ¶

63.

          {¶17} Thus, on the face of the matter, it would appear that the trial court did not err in

determining that the ABA did not exceed its authority in finding it had authority to hear the

matter. There is no question that Ms. Roubic and Mr. Linnen, attorneys from different firms, had

a fee dispute that the ABA arbitrated. Linnen’s main contention is that a fee dispute cannot be

deemed to arise under Prof.Cond.R. 1.5 unless there has been compliance with Prof.Cond.R.

1.5(e).    While Linnen’s position finds support in pre-Shimko case law, see, e.g., Schroeder v.

DeVito, 136 Ohio App.3d 610 (8th Dist.2000), we conclude that the same analysis cannot be

employed in light of the principles enunciated in Shimko. See Bauer v. White, 11th Dist. No.

2011-T-0071, 2012-Ohio-1135, ¶ 23-25. Essentially, Mr. Linnen and his law firm suggest a

more narrow interpretation of the phrase “arising under this rule.”            Prof.Cond.R. 1.5(f).
                                                 9


However, this interpretation is at odds with the purpose of the rule. The Shimko Court stated that

“the salient purpose of the rule is to prevent litigation of disputes between lawyers over the

division of fees[.]” Shimko, 103 Ohio St.3d 54, 2004-Ohio-4202, at ¶ 26. If the purpose of the

rule is to prevent litigation of fee disputes and mandate mediation or arbitration, then taking

Linnen’s position undermines the purpose of the rule. Further, we find it difficult to conclude

that a fee dispute can never “aris[e] under” a rule if the rule is not technically complied with in

its entirety.   While the failure to comply with Prof.Cond.R. 1.5(e) may have additional

consequences, that failure does not negate the existence of a fee dispute. In this case, even if the

lawyers did not comply with all of their professional obligations under the fee sharing rule, it is

evident that their dispute is over the division of fees. Certainly if the Supreme Court of Ohio had

intended to limit arbitration of fee disputes to fee agreements that complied fully with

Prof.Cond.R. 1.5(e), it could have explicitly stated so in Prof.Cond.R. 1.5(f) given its rule-

making authority. Moreover, there is no suggestion of any limitation concerning arbitration in

Shimko itself. In light of the foregoing, we overrule Linnen’s sixth assignment of error.

R.C. 2711.10(A) and (C)

        {¶18} Mr. Linnen and his law firm assert in their third assignment of error that the trial

court erred in failing to consider their argument that Roubic procured the award via fraud, and,

thus, the award should have been vacated pursuant to R.C. 2711.10(A). Mr. Linnen and his law

firm assert in their fourth assignment of error that the trial court erred in failing to vacate the

arbitration award pursuant to R.C. 2711.10(C) because the arbitrators failed to continue the

hearing. In their fifth assignment of error, Mr. Linnen and his law firm argue that the trial court

erred in failing to vacate the arbitration award pursuant to R.C. 2711.10(C) because the ABA

failed to follow its rules. We do not agree.
                                                 10


       {¶19} Notably, the arbitration proceedings were not transcribed. Thus, they were not

available for this Court or the trial court to review, and our review is thereby limited. See

Bennett v. Sunnywood Land Dev., Inc., 9th Dist. No. 06CA0089-M, 2007-Ohio-2154, ¶ 32. We

also note that the trial court was precluded from reviewing the merits upon which the award was

based. Lowe, 2006-Ohio-4927, ¶ 7.

       {¶20} With respect to Linnen’s third assignment of error and the assertion that the

arbitration award was procured via fraud, we agree with the trial court that this argument is not

reviewable absent a transcript of the proceedings. While Mr. Linnen and his firm submitted the

allegedly fraudulent affidavits that were submitted to the arbitration panel, along with evidence

that they assert demonstrates the fraud, absent a transcript of all of the evidence before the

arbitration panel, it is impossible to evaluate Linnen’s claim. See Bennett at ¶32. Given that Mr.

Linnen and his law firm claim that Ms. Roubic perpetrated a fraud upon the arbitration panel,

consideration of Ms. Roubic’s testimony to the arbitration panel would be important in

evaluating his assertion. Accordingly, we overrule Linnen’s third assignment of error.

       {¶21} Mr. Linnen and his firm assert in their fourth assignment of error that that the trial

court erred in failing to vacate the arbitration award pursuant to R.C. 2711.10(C) because the

arbitrators failed to continue the hearing. We cannot say that, as a matter of law, the trial court

erred in failing to vacate the award for this reason.

       {¶22} R.C. 2711.10(C) states in part that an arbitration award is subject to vacation if

“[t]he arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient

cause shown[.]” “The decision to grant or deny a continuance is discretionary. [Linnen] must

demonstrate that in light of the information presented to the arbitrator, the arbitrator abused his

discretion in denying the requested continuance.” (Internal citation omitted.) CitiFinancial
                                                11


Mtge. Co., Inc. v. Carson, 10th Dist. No. 04AP-137, 2004-Ohio-6448, ¶ 14. The trial court

discussed the arbitration panel’s ruling and the circumstances surrounding it, as recited in the

arbitration decision. The trial court found that sufficient cause was not shown. We cannot say

that the trial court’s conclusion was erroneous as a matter of law. The arbitration panel stated as

follows:

       On the first day of hearing Linnen appeared pro se. The day before the second
       day of hearing began, Linnen asked for a continuance to obtain an attorney.
       Roubic objected. Linnen had adequate notice of the starting date for hearing. No
       request for continuance was made to the Panel by Linnen prior to the first day of
       hearing. No attorney appeared for Linnen requesting a continuance. The motion
       to continue was denied.

       {¶23} Prior to the hearing, the parties received a letter from the ABA informing them of

the hearing date and stating that the hearing date was firm and would not be rescheduled. Mr.

Linnen and his law firm contend that, because this letter stated that the hearing date was firm and

that it would not be rescheduled, this indicates that the ABA panel acted improperly to deny a

continuance before Linnen requested one. In other words, Mr. Linnen and his law firm suggest

that the panel had already predetermined the issue and that he was foreclosed from seeking a

continuance regardless of the circumstances. Linnen’s argument is belied by the fact that Linnen

did move for a continuance (albeit belatedly), and the arbitration decision indicated that the panel

did in fact consider the motion and the surrounding factual circumstances. In light of the record

before us, we cannot say that the trial court’s conclusion that the arbitration panel did not abuse

its discretion is erroneous as a matter of law. Accordingly, Linnen’s fourth assignment of error

is overruled.

       {¶24} In their fifth assignment of error, Mr. Linnen and his law firm assert that the trial

court erred in failing to vacate the arbitration award pursuant to R.C. 2711.10(C) because the

arbitrators were guilty of misbehavior by failing to follow their own rules. R.C. 2711.10(C)
                                                12


additionally states that an arbitration award will be vacated if the arbitrators were guilty of “any

other misbehavior by which the rights of any party have been prejudiced.” We cannot say that

the trial court’s conclusion was erroneous as a matter of law. To the extent that Mr. Linnen and

his law firm allege prejudice by the ABA failing to follow its rule requiring the panel to be

composed of two lawyers and one lay person, as opposed to three lawyers, Mr. Linnen and his

law firm have not explained how they were prejudiced in light of the panel’s unanimous

decision. To the extent that Mr. Linnen and his law firm assert that the ABA rules require them

to have assented to the arbitration, which did not occur, as we noted above, the trial court is

correct that a licensed attorney is obligated to abide by former DR 2-107(B) and/or Prof.Cond.R.

1.5(f) which requires arbitration of fee disputes between attorneys of different firms and “gives

the mediators or arbitrators their authority to resolve the fee disputes.” (Internal quotations and

citation omitted.) Shimko, 103 Ohio St.3d 59, 2004-Ohio-4202, at ¶ 65. Thus, Mr. Linnen and

his law firm were required to arbitrate the dispute and cannot demonstrate prejudice.

       {¶25} Additionally, Mr. Linnen and his law firm assert that the panel failed to follow its

rule that excludes disputes which appear to constitute a violation of the ethical rules from being

heard by the ABA. Mr. Linnen and his law firm assert that they “presented substantial evidence

to the ABA arbitration committee concerning Roubic’s ethical violations * * * .” While some of

that evidence was submitted to the trial court as well, it is unclear whether some of this evidence

also took the form of testimony and discussion by the panel at the arbitration hearing. Absent a

transcript of the arbitration hearing, the trial court could not fully evaluate the merits of this

argument, and neither can we. See Bennett, 2007-Ohio-2154, at ¶ 32. Accordingly, Linnen’s

fifth assignment of error is overruled.
                                                13


                                  ASSIGNMENT OF ERROR I

        THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING LINNEN
        THE RIGHT TO ENGAGE IN DISCOVERY AS PROVIDED UNDER THE
        OHIO RULES OF CIVIL PROCEDURE[.]

        {¶26} Mr. Linnen and his law firm essentially contend in their first assignment of error

that the trial court abused its discretion in denying Linnen discovery prior to ruling on Roubic’s

motion for summary judgment concerning whether the trial court had jurisdiction over Linnen’s

claims. We do not agree.

        {¶27} Linnen filed a motion “for modification of briefing schedule to permit discovery”

in January 2012 following the trial court’s order which converted Roubic’s motion to dismiss

into a motion for summary judgment. Mr. Linnen and his law firm asserted that they were

entitled to discovery concerning threshold jurisdictional issues and filed the motion prior to

Roubic filing the motion for summary judgment. Linnen did not attach an affidavit to the

motion. Roubic opposed the motion and filed a motion to stay discovery. Also in January,

Linnen filed motions to compel discovery and to deem Linnen’s requests for admissions

admitted. The trial court construed Linnen’s motion as a motion for a continuance pursuant to

Civ.R. 56(F). The trial court overruled Linnen’s motion noting that Linnen did not attach an

affidavit to the motion in accordance with Civ.R. 56(F) and concluding that the discovery sought

did not have a bearing on the trial court’s determination of whether it had jurisdiction. The trial

court also granted Roubic’s motion to stay discovery until the trial court determined its

jurisdiction.   Linnen filed a motion for reconsideration on February 9, 2012, and filed an

affidavit. In the trial court’s decision granting summary judgment to Roubic, the trial court

concluded that Linnen’s pending discovery motions were moot.
                                               14


       {¶28} “Initially, we note that courts have broad discretion over discovery matters.”

(Internal quotations and citations omitted.) Haley v. Nomad Preservation, Inc., 9th Dist. No.

26341, 2013-Ohio-86, ¶ 12. Civ.R. 56(F) provides that

       Should it appear from the affidavits of a party opposing the motion for summary
       judgment that the party cannot for sufficient reasons stated present by affidavit
       facts essential to justify the party’s opposition, the court may refuse the
       application for judgment or may order a continuance to permit affidavits to be
       obtained or discovery to be had or may make such other order as is just.

       {¶29} “A party seeking a Civ.R. 56(F) continuance has the burden of stating a factual

basis and reasons why the party cannot present sufficient documentary evidence without a

continuance.”    (Internal quotations and citations omitted.) McPherson v. Goodyear Tire &

Rubber Co., 9th Dist. No. 21499, 2003-Ohio-7190, ¶ 15. “Further, the party must do more than

assert a general request; it must demonstrate that a continuance is warranted.”          (Internal

quotations and citations omitted.) Id. “This Court has stated that [t]he affidavit requirement is

no mere trifle. To obtain a continuance under Civ.R. 56(F), a party must file an affidavit that

sets forth why it is unable to present sufficient facts to rebut a motion for summary judgment.”

(Internal quotations and citations omitted.) King v. Rubber City Arches, L.L.C., 9th Dist. No.

25498, 2011-Ohio-2240, ¶ 35. In addition, we note that, generally, a trial court has discretion to

grant a stay of discovery pending resolution of a dispositive motion. See State ex rel. Ebbing v.

Ricketts, 133 Ohio St.3d 339, 2012-Ohio-4699, ¶ 21.

       {¶30} We cannot say that the trial court abused its discretion.          Linnen failed to

demonstrate why the discovery would be necessary in light of the issues raised by Roubic’s

motion for summary judgment. The question posed by Roubic’s motion for summary judgment

was whether Linnen’s claim could be heard by the trial court.            We cannot say it was

unreasonable for the trial court to conclude that it could resolve the issue without further
                                                15


discovery. The trial court was not faced with examining the merits of Linen’s claims in light of

the facts, but instead with considering whether it could hear Linnen’s claims at all. Further, we

note that Linnen was able to respond to the motion for summary judgment and was able to

submit evidentiary materials including affidavits and numerous exhibits. Moreover, Linnen’s

motion pursuant to Civ.R. 56(F) asserted that discovery was required (1) to take the deposition of

Ms. Roubic with respect to issues surrounding the fee for one of the clients that was the subject

of arbitration; and (2) to submit the affidavit of James Skelton. Because the deposition was

being sought regarding a matter that was previously arbitrated, it is arguable that the trial court

could have reviewed the deposition request as being more related to Linnen’s motion to vacate

the arbitration award, as opposed to responding to the motion for summary judgment.                In

addition, the trial court may have considered that Linnen wished to pursue discovery to further

substantiate the argument that the disputes at issue did not arise under Rule 1.5. However, in

light of the analysis above, discovery would not have assisted Linnen in responding to the

jurisdictional issue. As to the affidavit of James Skelton, we note that such was made a part of

the record prior to the trial court ruling on Roubic’s motion for summary judgment. In light of

the foregoing, we cannot say that the trial court abused its discretion in denying Linnen a

continuance or in granting a stay of discovery. Linnen’s first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT COMMITTED ERROR IN DISMISSING LINNEN’S
       COMPLAINT IN ITS ENTIRETY, FINDING THAT IT LACKED SUBJECT-
       MATTER JURISDICTION.

       {¶31} Mr. Linnen and his law firm assert in their second assignment of error that the

trial court erred in granting Roubic’s motion for summary judgment and dismissing Linnen’s

complaint. We do not agree.
                                                 16


         {¶32} This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). “We apply the same standard as the trial court,

viewing the facts in the case in the light most favorable to the non-moving party and resolving

any doubt in favor of the non-moving party.” Garner v. Robart, 9th Dist. No. 25427, 2011–

Ohio–1519, ¶ 8.

         {¶33} Pursuant to Civ.R. 56(C), summary judgment is appropriate when:

         (1) No genuine issue as to any material fact remains to be litigated; (2) the
         moving party is entitled to judgment as a matter of law; and (3) it appears from
         the evidence that reasonable minds can come to but one conclusion, and viewing
         such evidence most strongly in favor of the party against whom the motion for
         summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). To succeed on a summary

judgment motion, the movant bears the initial burden of demonstrating that there are no genuine

issues of material fact concerning an essential element of the opponent’s case. Dresher v. Burt,

75 Ohio St.3d 280, 292 (1996). If the movant satisfies this burden, the nonmoving party “‘must

set forth specific facts showing that there is a genuine issue for trial.’” Id. at 293, quoting Civ.R.

56(E).

         {¶34} Linnen’s first two claims for declaratory relief essentially sought a declaration

that, due to the disagreement about the terms of the referral agreement (i.e. whether Roubic had

to refer all personal injury matters to Linnen and whether the fee was up to 50% or 50%), there

was no agreement or, if there was an agreement, it was void for violating DR 2-107 and/or

Prof.Cond.R. 1.5. With respect to Linnen’s claim for unjust enrichment, from the complaint it

can be discerned that Linnen paid Roubic referral fees based on what, at the time, Mr. Linnen

believed was an agreement. Later, Mr. Linnen came to discover that Ms. Roubic was not
                                               17


referring all personal injury clients to Linnen, and this led Linnen to believe that there was no

agreement.

       {¶35} There is nothing on the face of the complaint or in the record to suggest that any

of the three counts represent anything other than a fee dispute between lawyers in different firms

which is subject to mandatory, binding arbitration pursuant to Shimko. See Shimko, 103 Ohio

St.3d 59, 2004-Ohio-4202, at ¶ 26. Mr. Linnen, by virtue of being licensed to practice law in

Ohio, is obligated to abide by the Rules of Professional Conduct, thereby giving arbitrators

authority to resolve the fee disputes at issue. See id. at ¶ 65. In light of the broad language in

Shimko, we do not read the language of Prof.Cond.R. 1.5(f) so narrowly as to exclude fee

disputes that are not in technical compliance with the mandates of Prof.Cond.R. 1.5(e) or fee

disputes in which the attorneys question the terms that make up their agreement. See id. at ¶ 26

(noting that “the salient purpose of the rule is to prevent litigation of disputes between lawyers

over the division of fees”). Accordingly, the trial court properly determined it did not have

jurisdiction over Linnen’s complaint. Linnen’s second assignment of error is overruled.

                                               III.

       {¶36} In light of the foregoing, we overrule Linnen’s six assignments of error and affirm

the judgment of the Summit County Court of Common Pleas.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                18


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellants.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT



MOORE, P.J.
HENSAL, J.
CONCUR


APPEARANCES:

JEROME T. LINNEN, JR., Attorney at Law, for Appellants.

WILLIAM D. DOWLING, Attorney at Law, for Appellee.
