COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68126 ROBERT F. BELOVICH, : : ACCELERATED DOCKET : Plaintiff-Appellant : JOURNAL ENTRY : v. : AND : MEHDI SAGHAFI, : OPINION : : PER CURIAM Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: JUNE 1, 1995 CHARACTER OF PROCEEDING: Civil appeal from Parma Municipal Court Case No. 94-CVF-1485 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellant: Robert F. Belovich, Pro Se 5638 Ridge Road Parma, Ohio 44129 For defendant-appellee: Claudia R. Eklund SINDELL, LOWE & GUIDUBALDI 610 Skylight Office Tower 1660 West Second Street Cleveland, Ohio 44113-1454 -2- PER CURIAM: Plaintiff-appellant, Robert Belovich, is appealing from the judgment of the Parma Municipal Court granting summary judgment in favor of defendant-appellee, Mehdi Saghafi. For the following reasons, we reverse and remand. Saghafi retained Belovich to represent Saghafi in a legal matter. The contingency fee agreement between the parties stated: I Mehdi Saghafi, M.D. hereby agree to retain Mr. Robert Belovich, Sr. and Mr. Robert Belovich, Jr., L.P.A. to represent me as my attorneys in the case of Mehdi Saghafi, M.D. v. Air Radio Corporation, and all other related radio shops or manufactures in the U.S.A. It is agreed that the attorney's fee is 33% of all the amount recovered * * * . The fee agreement also provided that undue delay by the attorney entitled Saghafi to terminate the contract with no fees owed to Belovich. Subsequently, Saghafi terminated Belovich, allegedly for undue delay. Saghafi retained new counsel to represent him in the continuing litigation against Air Radio Corporation. A jury awarded $45,000 to Saghafi and against Air Radio Corporation. However, the amended complaint, allegedly filed by Belovich, did not contain a prayer for money damages and was not amended by subsequent counsel. Former Civ.R. 54(C) required the complaint be amended to include a demand, at least seven days before trial, or the plaintiff could recover nothing. The trial court granted a motion for judgment notwithstanding the verdict by Air Radio Corporation, and entered judgment for zero dollars in favor of Saghafi. -3- Saghafi sued the subsequent counsel for malpractice. The subsequent counsel paid Saghafi $45,000 in settlement of the malpractice claim. Belovich brought the present suit for recovery of the quantum meruit value of his services rendered and expenses incurred during his representation of Saghafi. Appellant's sole assignment of error states: THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. An attorney who is discharged by a client with or without just cause, 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 (1989), 44 Ohio St.3d 69 * * * when an attorney representing a client pursuant to a contingent-fee agreement is discharged, the attorney's cause of action for a fee recovery on the basis of quantum meruit arises upon the successful occurrence of the contingency. Under this approach, in most situations the discharged attorney is not compensated if the client recovers nothing. Reid, Johnson, Downes, Andrachick & Webster v. Lansberry (1994), 68 Ohio St.3d 570. The trial court's journal entry stated the contingency in the parties' contingency fee agreement did not occur because the verdict in Saghafi v. Air Radio Corp. was zero. We believe the contingency did occur because appellee eventually, and in effect, recovered for his claims in Saghafi v. Air Radio Corp. The fact that monetary judgment on appellee's claims required an additional action does not change the fact that appellee recovered. -4- Arguably, the contingency did not occur because appellee technically recovered for malpractice and not for his contract and tort claims against Air Radio Corporation. Even if this contention is true, Reid, supra, at 575 states: Under this approach, in most situations the discharged attorney is not compensated if the client recovers nothing. (Emphasis added.) The Ohio Supreme Court recognized that unusual situations may arise which require exceptions to the rule. In the present situation, appellant's services contributed to the jury verdict against Air Radio Corporation, upon which the verdict in the malpractice action was based. Appellant's services contributed to the recovery in the malpractice action and appellee was unjustly enriched thereby. Additionally, the rationale behind the Reid requirement that the contingency must occur is as follows: First, the amount involved and the result obtained, two significant considerations in deciding whether an attorney fee is reasonable, cannot be determined until the contingency occurs. Second, a client of limited means, for whom the contingent-fee agreement is the only real hope of recovering an award, would be improperly burdened by an absolute obligation to pay his or her former attorney if no award is ever won. Reid, supra, at 575. In this case, the amount involved and the result obtained were known. Appellee is not burdened by an obligation to pay appellant, because appellee eventually won. Thus, the rationale of Reid is not applicable to this case. Summary judgment was not proper because appellant can recover for -5- unjust enrichment despite the zero verdict against Air Radio Corporation. Appellee advanced two other reasons in support of his motion for summary judgment. Both of these reasons lack merit. Appellant re- filed his complaint within the fifteen year statute of limitations for contract actions. See R.C. 2305.06. There are genuine issues of fact concerning whether appellant breached the fee agreement by undue delay. The trial court should have denied appellee's motion for summary judgment. Accordingly, appellant's assignment of error is sustained. The decision of the trial court is reversed and this case is remanded for further proceedings. -6- This cause is reversed and remanded for proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court 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. ANN DYKE, JUDGE JOSEPH J. NAHRA, JUDGE DAVID T. MATIA, PRESIDING JUDGE DISSENTS WITH OPINION. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68126 ROBERT F. BELOVICH : : PLAINTIFF-APPELLANT : : D I S S E N T I N G v. : : O P I N I O N MEHDI SAGHAFI : : DEFENDANT-APPELLEE : DATE: JUNE 1, 1995 DAVID T. MATIA, P.J., DISSENTS: I believe that the trial court properly granted summary judgment in favor of Mehdi Saghafi, defendant-appellee. Accordingly, I respectfully dissent from the majority opinion of this court. In Fox & Associates Co., L.P.A. V. Purdon (1989), 44 Ohio St.3d 69 the Ohio Supreme Court held: "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." Id. at syllabus. In Reid, Johnson, Downes, Andrachick & Webster v. Lansberry (1994), 68 Ohio St.3d 570 the Ohio Supreme Court, in dealing with quantum meruit recovery, held: "When an attorney representing a client pursuant to a contingency-fee agreement is discharged, the -8- attorney's cause of action for a fee recovery on the basis of quantum meruit arises upon the successful occurrence of the contingency." Id. at paragraph two of the syllabus (emphasis added). The Supreme Court, in reaching the conclusion, reasoned: Under this approach, in most situations the discharged attorney is not compensated if the client recovers nothing. Reid at 575. Here, a review of plaintiff-appellant's complaint as well as defendant-appellee's motion for summary judgment and the journal entry of the trial court demonstrates that plaintiff-appellant was attempting to recover fees and expenses incurred in the case of Mehdi Saghafi, M.D. v. Air Radio Corporation for which defendant-appellee's recovery was zero. Pursuant to the Ohio Supreme Court's ruling in Reid, supra, plaintiff-appellant's cause of action for fees and expenses on the basis of quantum meruit depends upon the successful occurrence of the underlying contingency, specifically a monetary recovery greater than zero. Since the underlying contingency failed to occur, plaintiff- appellant is not entitled reimbursement of expenses and payment of fees from defendant-appellee out of the proceeds from a different lawsuit arising out of separate claim for legal malpractice. The trial court correctly granted defendant- appellee's summary judgment motion as no genuine issue of material fact existed and defendant-appellee was entitled to judgment as a matter of law. -3- Accordingly, I would overrule defendant-appellant's sole assignment of error and affirm the judgment of the trial court. .