[Cite as Daniel v. Ballitch, 2019-Ohio-5181.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                        JUDGES:
DONNA DANIEL                                    :       Hon. W. Scott Gwin, P.J.
                                                :       Hon. Craig R. Baldwin, J.
                          Plaintiff-Appellee    :       Hon. Earle E. Wise, J.
                                                :
-vs-                                            :
                                                :       Case No. 2019 CA 0052
HAROLD BALLITCH II, M.D., ET AL                 :
                                                :
                   Defendants-Appellees         :       OPINION

(THE DONAHEY LAW FIRM)

                          Appellant




CHARACTER OF PROCEEDING:                            Civil appeal from the Richland County Court
                                                    of Common Pleas, Case No. 2018 CV 0123



JUDGMENT:                                           Dismissed



DATE OF JUDGMENT ENTRY:                             December 11, 2019




APPEARANCES:

For Donna Daniel                                    For Intervenor-Appellant Donahey Law Firm

SARA NICHOLS                                        JAMES E. ARNOLD
7650 Rivers Edge Drive                              115 West Main Street
Suite 150                                           4th Floor
Columbus, OH 43235                                  Columbus, OH 43215
Richland County, Case No. 2019 CA 0052                                                    2


Gwin, P.J.

      {¶1}   Appellant appeals the May 10, 2019 judgment entry of the Richland County

Court of Common Pleas denying its motion to intervene.

                                   Facts & Procedural History

      {¶2}   On February 14, 2018, appellee Donna Daniel filed a medical malpractice

complaint against Harold Ballitch, II., M.D. and the Advanced Eye Care Clinic. Appellee

filed an amended complaint on March 13, 2018. At the time appellee filed the complaint,

her counsel worked at the Donahey Law Firm, the appellant in this case.

      {¶3}   On April 5, 2019, appellee filed a motion to enforce settlement. In her

motion, appellee indicates the case had recently settled and the motion deals with

appellant Donahey Law Firm trying to recover attorney fees from the settlement. Attached

to the motion to enforce settlement is the affidavit of T. Jeffrey Beausay. He avers as

follows: he was an independent contractor for appellant from 2001 until April of 2018

when he, Jacob Beausay, and Sara Nichols (“Nichols”) separated from appellant and

formed their own firm; he and Nichols were the only attorneys to work on appellee’s case

prior to April of 2018; and appellant filed a civil action in Franklin County against him,

Nichols, Jacob Beausay, and the Beausay Law Firm.

      {¶4}   Also attached to the motion to enforce is the affidavit of Nichols. She states:

when she initially began working on the case, she was affiliated with appellant’s law firm;

she separated from appellant’s firm in April of 2018; appellee wanted her and Jeffrey

Beausay to continue to represent her and signed a new fee agreement; appellee

terminated her previous fee agreement with appellant; appellant has been fully

reimbursed for case expenses advanced in connection with this case; and the only
Richland County, Case No. 2019 CA 0052                                                     3


attorneys to work on this case are herself and Jeffrey Beausay. Nichols attached to her

affidavit the letter from appellee to appellant terminating the fee agreement with appellant.

       {¶5}   Also on April 5, 2019, Ballitch and the Advanced Eye Care Clinic filed a

motion requesting the trial court set the matter for hearing to determine disbursement of

settlement proceeds due to the lien appellant asserts on the settlement funds. Ballitch

and the Advanced Eye Care Clinic sought instruction from the trial court as to where the

funds should be deposited.

       {¶6}   Appellant filed a motion to intervene on April 8, 2019. Appellant asserts

that, since it was former counsel for appellee and has an interest in a portion of the

settlement proceeds, it has a right to intervene in the proceedings pursuant to Civil Rule

24(A). Appellee filed a memorandum in opposition to the motion to intervene on April 10,

2019. Appellee argued appellant is not entitled to a charging lien based upon case law

and also stated appellant has sued counsel for appellee in Franklin County, making

intervention in this case unnecessary. Appellee stated appellant has sued Beausay and

Nichols in the Franklin County Court of Common Pleas, alleging breach of compensation

agreement, quantum meruit, unjust enrichment, conversion of Donahey’s client files,

tortious interference with Donahey’s business relationships, misappropriation of

Donahey’s trade secrets, promissory estoppel, and seeking injunctive relief.

       {¶7}   The trial court issued an order denying the motion intervene and ordering

the disbursement of settlement funds. The trial court found the issue of whether appellant

“is entitled to intervene in this case hinges on the question of whether the Donahey Law

Firm LLC is entitled to any attorney’s fees and/or reimbursement of expenses related to

the period from August 27, 2017 through April 7, 2018” for the representation of appellee.
Richland County, Case No. 2019 CA 0052                                                     4


The trial court stated the affidavits attached to appellee’s motion to enforce settlement

establish that: Nichols and Beausay were the only attorneys that worked on appellee’s

case during the time in question; no other Donahey attorneys performed any work or had

any involvement with the representation of appellee; the majority of the work was done

after Nichols and Beausay separated from Donahey; Nichols and Beausay presented

appellee options for future representation; appellee chose to continue her representation

with Nichols and Beausay so she terminated her fee agreement with Donahey and

executed a new fee agreement with Nichols and Beausay; and Beausay fully reimbursed

Donahey for expenses advanced on the case up to the time of separation.

       {¶8}   The trial court found the Hackett cases analogous to this case and, pursuant

to the authority in Hackett, found Ohio law puts a client’s right to counsel of her choice

above such concerns as the prior law firm’s investments in the training and support of

attorneys, or company overhead. Hackett v. Moore, 160 Ohio Misc.2d 107, 2010-Ohio-

6298, 939 N.E.2d 1321 (Hamilton County Common Pleas); Cincinnati Bar Assn. v.

Hackett, 129 Ohio St.3d 186, 2011-Ohio-3096, 950 N.E.2d 969. The trial court stated

appellant did not provided any affidavit or other evidence to demonstrate any attorney

fees or advances on expenses in this case remain unpaid such that appellant has a right

to intervene in the action, whereas the affidavits of Nichols and Beausay demonstrate no

fees or expenses remain due and owing to appellant.

       {¶9}   The trial court denied appellant’s motion to intervene and found no part of

the settlement in this case should be paid to appellant. Further, the trial court ordered the

settlement check be made payable to appellee and Beausay Law Firm, LLC.
Richland County, Case No. 2019 CA 0052                                                      5


       {¶10} Appellant appeals the judgment entry of the Richland County Court of

Common Pleas and assigns the following as error:

       {¶11} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

DENYING INTERVENOR-APPELLANT’S MOTION TO INTERVENE.”

                                                  I.

       {¶12} In its assignment of error, appellant argues the trial court abused its

discretion in denying the motion to intervene because the trial court failed to apply Civil

Rule 24(A) and instead made a premature determination of the purported merits of

appellant’s claim, even though the merits of the underlying claim are irrelevant to a

determination of whether intervention should be allowed pursuant to Civil Rule 24(A).

       {¶13} Appellee contends the order denying the motion to intervene is not a final

appealable order and, alternatively, that the trial court properly denied the motion to

intervene pursuant to the Hackett case.

       {¶14} We must first determine whether the order under review is final and

appealable. Under Section 3(B)(2), Article IV of the Ohio Constitution, courts of appeals

have jurisdiction only to “affirm, modify, or reverse judgments or final orders of the courts

of record inferior to the court of appeals within the district.” Gen Acc. Ins. Co. v. Ins. Co.

of N. Am. 44 Ohio St.3d 17, 540 N.E.2d 266 (1989). If an order is not final and appealable,

then we have no jurisdiction to review the matter and must dismiss it. Id.

       {¶15} To be final and appealable, an order must comply with R.C. 2505.02. R.C.

2505.02(B) provides the following, in pertinent part:

       (B) An order is a final order that may be reviewed, affirmed, modified, or

       reversed, with or without retrial, when it is one of the following:
Richland County, Case No. 2019 CA 0052                                                      6


       (1) An order that affects a substantial right in an action that in effect

       determines the action and prevents a judgment; * * *

       {¶16} We find the Ohio Supreme Court’s case of Gehm v. Timberline Post &

Frame, 112 Ohio St.3d 514, 2007-Ohio-607, 861 N.E.2d 519, instructive in this case. See

also State ex rel. Sawicki v. Court of Common Pleas of Lucas County, 121 Ohio St.3d

507, 2009-Ohio-1523, 905 N.E.2d 1192 (reaffirming the holding in Gehm and holding the

trial court’s denial of the motion to intervene was not a final appealable order when it did

not dispose of the merits of the case). In Gehm, the Ohio Supreme Court held that, “the

denial of a motion to intervene, when the purpose for which intervention was sought may

be litigated in another action, does not affect a substantial right under R.C. 2505.02(B)(1)

that determines the action and prevents the judgment.” As a result, the Ohio Supreme

Court held in Gehm that the denial of the motion to intervene was not a final appealable

order. Id. Even though a motion to intervene is a right recognized by Civil Rule 24 and

thus intervention constitutes a substantial right under R.C. 2505.02(A)(1), because the

motion to intervene was denied, there was no order that had determined an action. Id.

       {¶17} In this case, on January 14, 2019, appellant filed a civil action in the Franklin

County Court of Common Pleas against counsel for appellee, the Beausay Law Firm, for

the specific purpose of trying to recover attorney fees and expenses in all of the cases for

which Beausay was responsible before and after the separation from appellant’s firm in

April of 2018. The Franklin County case encompasses all of the cases for which Nichols,

Jeffrey Beausay, and Jacob Beausay were responsible for while associated with

appellant, including this case. The allegations contained in the Franklin County complaint

mirror those in the intervening complaint proposed by appellant in this case.
Richland County, Case No. 2019 CA 0052                                                   7


      {¶18} Appellant’s proposed intervening complaint in this case includes the

following claims:    breach of compensation agreement, quantum meruit, unjust

enrichment, and promissory estoppel. Appellant’s complaint in Franklin County against

counsel for appellee includes the following claims: breach of compensation agreement,

quantum meruit, unjust enrichment, conversion of appellant’s client files, tortious

interference with business relationships, misappropriation of trade secrets, and

promissory estoppel. Pursuant to Gehm, the denial of the motion to intervene in this case

is not a final appealable order because the purpose for which the intervention was sought

may, and actually is, being litigated in another action. Thus, pursuant to R.C. 2505.02,

there is no order in this case that determines the action and prevents a judgment. See

Jackson v. Proto Machine & MFG, Inc., 11th Dist. Portage No. 2013-P-0078, 2015-Ohio-

1205; Luna v. Allstate Ins. Co., 10th Dist. Franklin No. 07AP-430, 2007-Ohio-6597;

Schmidt v. AT&T, Inc., 8th Dist. Cuyahoga No. 94856, 2010-Ohio-5491; State ex rel.

Sawicki v. Court of Common Pleas of Lucas County, 121 Ohio St.3d 507, 2009-Ohio-

1523, 905 N.E.2d 1192.

      {¶19} Appellant cites to this Court’s case of McKinney v. Omni Die Casting, 5th

Dist. Stark No. 2016CA00150, 2016CA00152, 2017-Ohio-2949, in support of its argument

that the denial of the motion to intervene is final and appealable. In McKinney, the Bureau

of Worker’s Compensation sought to intervene to assert its statutory right to subrogation.

Id. No such statutory right of subrogation is at issue in this case. We find this case

analogous to Gehm rather than McKinney, particularly since appellant has an action

pending against counsel for appellee in the Franklin County Court of Common Pleas.
Richland County, Case No. 2019 CA 0052                                                      8


       {¶20} Further, while appellant admits it has filed a lawsuit against counsel for

appellee in another forum, it contends its right to immediately protect its interest in legal

fees earned from the settlement in this case cannot be adequately protected in the

Franklin County action. We disagree. As evidenced by the fact that the intervening

complaint in this case contains the same allegations and causes of action as contained

in the Franklin County complaint, appellant’s interest can adequately be protected in the

Franklin County action. Luna v. Allstate Ins. Co., 10th Dist. Franklin No. 07AP-430, 2007-

Ohio-6597 (holding when a former counsel for plaintiff seeks to be paid for services

rendered to the plaintiff, the denial of a motion to intervene is not a final appealable order

because the former counsel has the opportunity to litigate the quantum meruit claim for

attorney fees in the future).

       {¶21} Like the appellant in Gehm, appellant in this case contends because of the

denial of the motion to intervene in this case and because the trial court discussed the

merits of appellant’s claims against counsel for appellee, appellant will be collaterally

estopped from making these arguments in the Franklin County case. We disagree. As

the Ohio Supreme Court stated in Gehm, and we specifically re-iterate here in this case,

“when a party has sought and been denied intervention, collateral estoppel will not

prohibit future litigation of similar issues.”     Thus, because the trial court denied

intervention in this case, appellant will not be estopped from litigating its claims in the

Franklin County case. Further, to the extent that the trial court went beyond Civil Rule

24(A) and looked at the merits of appellant’s claims in this case, based upon the holding

in Gehm, the trial court’s analysis and decision has no impact or preclusive effect on
Richland County, Case No. 2019 CA 0052                                                     9


appellant’s rights in the Franklin County case and does not qualify as a decision on the

merits in regards to collateral estoppel or res judicata.

       {¶22} Accordingly, we find the trial court’s denial of the motion to intervene in this

case, since the purpose for which intervention is sought may and is being litigated in

another action, is not a final appealable order.

       {¶23} Because there is no final appealable order, this Court does not have

jurisdiction to entertain appellant’s appeal and the appeal is therefore dismissed.


By Gwin, P.J.,

Baldwin, J., and

Wise, Earle, J., concur
