Okocha v. Fehrenbacher
| Decision Date | 15 February 1995 |
| Docket Number | Nos. 65458,65645,65656 and 67254,s. 65458 |
| Citation | 101 Ohio App.3d 309,655 N.E.2d 744 |
| Parties | OKOCHA, Appellant, v. FEHRENBACHER et al., Appellees; STATE AUTOMOBILE MUTUAL INSURANCE COMPANY, Appellant. * |
| Court | Ohio Court of Appeals |
Okocha & Associates, Nwabueze V. Okocha and Kojo Agyeman, Cleveland, for appellant Nwabueze V. Okocha.
Edgar H. Boles, Chagrin Falls, for appellees.
John A. Valenti, Cleveland, for appellant State Auto. Mut. Ins. Co.
This is a consolidated appeal from a judgment of the Cuyahoga County Court of Common Pleas, which ruled in favor of Elaine Fehrenbacher, defendant-appellee, in an action for unpaid legal fees filed by plaintiff-appellant, Nwabueze Okocha. Okocha's claim arose out of a contingent fee arrangement with Fehrenbacher in which Okocha agreed to handle Fehrenbacher's discrimination claim against her former employer, Southwest General Hospital. Under the contingent fee agreement, which was signed by Elaine and Dan Fehrenbacher on February 14, 1990, Okocha agreed to handle Fehrenbacher's claim for a retainer fee of $12,000 plus forty percent of any recovery. On February 23, 1990, Fehrenbacher paid $6000 as a down payment on the retainer fee and agreed to pay the remaining $6000 in a subsequent payment.
In July 1990, Okocha negotiated a settlement of Fehrenbacher's claims against Southwest General. Southwest agreed to pay $5945.23. The Fehrenbachers and Okocha attended a meeting on September 17, 1990, during which the Fehrenbachers were to sign the release form that outlined the terms of the settlement. Elaine Fehrenbacher refused to sign the agreement as prepared and notified Okocha to negotiate for additional favorable terms. Southwest General agreed to the requested terms and the release form was updated to reflect the added provisions. On October 8, 1990, the Fehrenbachers and Okocha met with Southwest General's Attorney, Hilary Taylor. The Fehrenbachers signed the release and Taylor gave Okocha a check for $5945.23. After a clandestine conversation between Taylor and Okocha, Taylor left with the check. Okocha told the Fehrenbachers that there was a typographical error in the check and that Taylor had agreed to have it corrected. Okocha refused the Fehrenbachers' request to return the signed release. Later that evening, the Fehrenbachers fired Okocha.
The following day, October 9, 1990, Okocha received the $5945.23 settlement check from Southwest General. The check, drawn on Southwest General's
account at Society National Bank, was made out to "Helen [sic] Fehrenbacher and Nwabueze Okocha, Esq." and dated September 13, 1990. Okocha tried unsuccessfully to get Fehrenbacher to come to his office to endorse the check. On or about October 23, Okocha deposited the check into his trust account at Cardinal Federal Savings Bank, then withdrew it and applied it to his outstanding fees and expenses. In an October 23, 1990 settlement statement mailed to the Fehrenbachers, Okocha itemized the fees and expenses as follows:
Amount recovered $5945.23
Attorney's fee (40%) (2378.09)
Balance $3567.14
Expenses
Photocopy $ (9.00)
Postage (21.00)
Facsimile (24.85)
Total expenses (54.85)
Balance brought forward $3512.29
Outstanding retainer fee ($6000.00)
Total amount due ($2487.71)
Okocha demanded payment of the $2487.71 balance. When Fehrenbacher failed to pay any of the amount owed, Okocha filed a complaint seeking the balance of the amount owed under the fee agreement. The Fehrenbachers counterclaimed against Okocha for breach of contract, conversion, fraud, infliction of emotional distress, and violation of Consumer Sales Practice Act. The Fehrenbachers also filed a third-party complaint against Okocha & Associates (Okocha's law partnership), Mitchell Johnson (an associate at Okocha & Associates), Society National Bank, Cardinal Federal Savings Bank, and Southwest General Hospital. All of the defendants named in the third-party complaint were later dismissed from the action except Mitchell Johnson and Okocha & Associates. Mitchell Johnson was dismissed during trial when the trial court granted his motion for directed verdict on April 20, 1993.
After a jury trial, Fehrenbacher was awarded $5945.23 in damages. On April 29, 1993, Okocha filed a notice of appeal from the jury verdict (case No. 65458). The trial court set a May 3, 1993 hearing on punitive damages. Fehrenbacher filed a motion for attorney fees and prejudgment interest. Fehrenbacher also filed a motion to join State Automobile Mutual Insurance Company ("State Auto") as a party to the action. On May 4, 1993, the trial court entered its final judgment in the case. Okocha and Okocha & Associates were ordered to pay $50,000 in punitive damages and $17,500 in attorney fees. State Auto was joined as a party and ordered to pay Fehrenbacher $5945.23 on the replevin bond.
On June 2, 1993, in case No. 65645, State Auto appealed from the trial court's decision to add State Auto as a new third-party defendant. On June 3, 1993, Okocha appealed from the final judgment (case No. 65656). On March 9, 1994, the court of appeals determined that numerous pleadings were missing from the appellate record and that the finality of the trial court's judgment was questionable. The court of appeals ordered the appellants to complete the record. The supplemental record included a revised journal entry dated April 28, 1994 that journalized the dismissal of Southwest General Hospital, Society National Bank, and Cardinal Federal Savings Bank. Okocha appealed from the revised journal entry on May 9, 1994 (case No. 67254). Case No. 67254 was consolidated with the other cases. Okocha assigns ten errors for review. 1 State Auto assigns three errors for review. 2
In his first assignment of error, Okocha argues that the trial court erred in overruling the motions for summary judgment filed by Okocha and Mitchell Johnson. Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts, and written stipulations of facts show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). When evaluating a motion for summary judgment, the trial court must construe the evidence most strongly in favor of the nonmovant. Id. Consequently, doubts must be resolved in favor of the nonmovant. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138, 139-140. The nonmovant may not rest on his pleadings, however, but must produce evidence on any issue for which he bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 111, 570 N.E.2d 1095, 1099.
Okocha's first assignment of error raises the issue of whether material issues of fact exist concerning the Fehrenbachers' liability under the fee agreement. The agreement provided:
Both parties agree that the Fehrenbachers paid $6000 of the $12,000 retainer fee. However, Fehrenbacher claimed that Okocha breached the fee agreement by settling her case against Southwest General without her consent. The contract provided:
"It is further understood and agreed upon that we are authorized to negotiate for a settlement or compromise of the above mentioned lawsuit, but no settlement or compromise may be made without your consent and approval."
In her brief opposing Okocha's motion for summary judgment, Helen Fehrenbacher claimed that Okocha settled her lawsuit "in contravention to her authority, and then refused to rectify the mistake." In her affidavit, Fehrenbacher stated that Okocha was authorized to settle her claim against Southwest General for three months' severance pay. However, Okocha settled the case for two and one-half months' severance pay. She maintains that Okocha refused her request to renegotiate the unauthorized settlement. We find this evidence established a genuine issue of material fact as to whether Okocha breached the fee agreement.
We also find a genuine issue of material fact existed as to whether Okocha & Associates misrepresented to the Fehrenbachers that Mitchell Johnson was an attorney. In their complaint against Okocha & Associates, the Fehrenbachers claimed that Okocha introduced Mitchell Johnson as an associate. In his affidavit accompanying his motion for summary judgment, Johnson denied ever telling the Fehrenbachers that he was an attorney and denied that Okocha presented him as an attorney. Because these material facts were in dispute, the trial court properly denied Okocha & Associates' motion for summary judgment.
Okocha also claims that the trial court should have granted his motion for summary judgment on the Fehrenbachers' counterclaim and third-party complaint. He argues that the release signed by the Fehrenbachers constitutes an absolute bar to a later action or claim arising out of the same transaction. We disagree.
The release executed by the Fehrenbachers and Southwest General Hospital on October 10, 1990 provided:
"Elaine Fehrenbacher * * * does release and forever discharge and by these presents, does for herself, her heirs, executors, and administrators, release and forever discharge Southwest, its related companies, administrators, agents, successors, assigns, employees and attorneys, of and from all manner of actions * * * including but not limited to all matters alleged in and related to the EEOC...
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