COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 71593 and 71688 TOMROB, INC., ET AL. : : PLAINTIFFS : JOURNAL ENTRY : and : AND : CHARLES GRUENSPAN : OPINION : APPELLANT : : v. : : [CASE NO. 71593] : CUYAHOGA METRO HOUSING : AUTHORITY, ET AL. : : [CASE NO. 71688] : CLAIRE FREEMAN, ET AL. : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 11. 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Nos. CV-311380 and CV-303898. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Appellant Charles Gruenspan, Esq. (Pro Se) Charles Gruenspan: Three Commerce Park Square Suite 900 23200 Chagrin Boulevard Cleveland, OH 44122-5482 -2- For Defendants-Appellees: Stephen M. O'Bryan, Esq. Sylvester Summers, Jr., Esq. David H. Wallace, Esq. Kelley, McCann & Livingstone 35th Floor, BP America Building 200 Public Square Cleveland, OH 44114-2302 Alexander Jurczenko, Esq. 1750 Standard Building 1370 Ontario Street Cleveland, OH 44113 3 DAVID T. MATIA, J.: This is a consolidated appeal arising from the judgment of the Cuyahoga County Court of Common Pleas, Case Nos. CV-311380 and 303898, in which the trial court consolidated the above-referenced cases and denied appellant Charles Gruenspan's motion to intervene in the consolidated cases as a new party plaintiff. Charles Gruenspan assigns three errors for this court's review. Appellant Charles Gruenspan's appeal is not well taken. I. THE FACTS The underlying actions are based upon various construction contracts between TomRob, Inc., a building and construction company owned by Mr. Robert Thompson, and the Cuyahoga Metropolitan Housing Authority ( CMHA ) for the construction of two low-income housing projects in the Cleveland area. The projects in question have been the source of numerous and varied litigation in both federal and state courts, however, for purposes of this appeal, only the following two cases are relevant. On January 6, 1996, TomRob, Inc., et al. filed a complaint in the Cuyahoga County Court of Common Pleas, Case No. CV-301249, against CMHA alleging numerous claims for breach of contract, fraud and promissory estoppel arising out of the construction of the low- income housing projects. This case was assigned to the docket of Judge Thomas P. Curran. On February 26, 1996, TomRob, Inc., et al. filed a complaint in the Cuyahoga County Court of Common Pleas, Case No. CV-303898, against Claire Freeman, et al. alleging tortious interference with 4 a business relationship and conversion. Claire Freeman was the Chief Executive Officer of CMHA during the relevant time period. This case was assigned to the docket of Judge Richard J. McMonagle. In both cases, TomRob, Inc., et al., was represented by appellant Charles Gruenspan. On June 28, 1996, Charles Gruenspan learned through Judge Curran's law clerk that the trial court was on the verge of entering partial summary judgment in favor of TomRob, Inc., et al. in the amount of $259,636.64. Prior to the trial court's journalization of its summary judgment ruling, Gruenspan voluntarily dismissed Case No. CV-301249 pursuant to Civ.R. 41(A)(1)(a) as Gruenspan was apparently unsatisfied by the amount of the trial court's proposed judgment entry. On July 3, 1996, Gruenspan refiled the previously dismissed case which was preliminarily assigned to the docket of Judge Kenneth R. Callahan as Case No. CV-311380. On July 9, 1996, Case No. CV-311380 was transferred back to the docket of Judge Curran pursuant to C.P.Sup.R.4. On July 23, 1996, CMHA filed a motion to consolidate Case No. CV-311380 (formerly 301249) with Case No. CV-303898. CMHA sought to have the cases consolidated and placed upon the docket of Judge Curran as he originally had jurisdiction over the action with the lowest case number, i.e. 301249. On July 30, 1996, Judge Curran granted CMHA's motion to consolidate and, as a result, both CV- 311380 and CV-303898 were assigned to the docket of Judge Curran. 5 On or about October 17, 1996, Robert Thompson, acting on behalf of himself and TomRob, Inc., discharged Charles Gruenspan as attorney of record in all cases relating to TomRob, Inc. including Case Nos. CV-311380 and 303898. As a result, on November 8, 1996, Gruenspan filed the following motions in Case No. CV-311380: 1) verified motion to withdraw as attorney of record for plaintiffs; and 2) motion to intervene, with intervention claim and notice of lien on settlement proceeds attached. The motion to intervene was apparently filed in response to an impending settlement in Case Nos. CV-311380 and 303898. On November 14, 1996, Charles Gruenspan filed Case No. CV- 318761 against TomRob, Inc., Robert Thompson and other officers of TomRob, Inc. seeking compensatory and punitive damages arising out of past legal services for which Gruenspan was allegedly left uncompensated. That same day, Case Nos. CV-311380 and 303898 were settled and dismissed by the parties. On November 15, 1996, Gruenspan filed a motion to stay proceedings and payment of settlement pending appeal of the ruling on the motion to intervene and motion for supersedeas bond. The trial court denied Gruenspan's motions on the same day they were filed. On November 18, 1996, the trial court denied Charles Gruenspan's motion to withdraw and motion to intervene as a new party plaintiff. The motion to withdraw was apparently denied since Gruenspan had already been discharged by TomRob, Inc., et al., on October 17, 1996. The motion to intervene was apparently 6 denied due to the presence of the additional lawsuit by Gruenspan against TomRob, Inc., et al., filed on November 14, 1996 and designated as Case No. CV-318761. On December 3, 1996, appellant Charles Gruenspan filed a timely notice of appeal from the trial court's judgment in Case Nos. CV-311380 and 303898. Case No. CV-311380 was designated as Appeal No. 71593 and Case No. CV-303898 was designated as Appeal No. 71688. II. FIRST AND SECOND ASSIGNMENTS OF ERROR Appellant Charles Gruenspan's first assignment of error in Appeal No. 71593 states: THE TRIAL COURT ERRED IN CONSOLIDATING THIS CASE WITH CASE NO. 303898. Appellant Charles Gruenspan's first assignment of error in Appeal No. 71688 states: THE TRIAL COURT ERRED IN CONSOLIDATING THIS CASE WITH CASE NO. 311380. Appellant Charles Gruenspan's second assignment of error in both appellate cases is identical and provides: THE TRIAL COURT (JUDGE CURRAN) ERRED IN ASSUMING JURISDICTION OVER THIS CASE. Having a common basis in both law and fact, this court shall consider appellant's first and second assignments of error simultaneously. . THE ISSUE RAISED: WHETHER CASE NOS. CV-311380 AND CV-303898 WERE PROPERLY CONSOLIDATED AND ASSIGNED TO THE DOCKET OF JUDGE CURRAN. 7 Appellant maintains, through his first and second assignments of error, that the trial court improperly consolidated Case Nos. CV-311380 and CV-303898. Appellant maintains further that, once the two cases were improperly consolidated, Judge Curran erred further by assuming jurisdiction over the consolidated cases even though Judge Richard McMonagle presided over the action with the lower case number, i.e., 303898. It is appellant's position that, pursuant to Loc.R. 15 of the Court of Common Pleas of Cuyahoga County, General Division, Judge McMonagle should have properly ruled upon the motion to consolidate and then proceed to retain jurisdiction over the consolidated cases by virtue of the fact that he presided over the lowest numbered case. CMHA, et al., defendants-appellees', maintain that, since appellant Charles Gruenspan was not a party to the underlying actions, he is without standing to appeal the judgments of the trial court regarding consolidation of the underlying cases and this court is without jurisdiction to consider either the first or second assignments of error. Defendants-appellees maintain further that, even if this court had jurisdiction to consider appellant's purported errors, it is clearly apparent from the record that the trial court did not err in consolidating the two cases on the docket of Judge Curran given the factual similarities between the two cases and the procedural history of Case No. CV-311380. For the following reasons, appellant Charles Gruenspan's first and second assignments of error are not well taken. . STANDARD OF REVIEW FOR STANDING. 8 It is well established in Ohio that an appeal lies only on behalf of a party aggrieved. Such party must be able to show that he has a present interest in the subject matter of the litigation and that he has been prejudiced by the judgment of the lower court. In re Guardianship of Love (1969), 19 Ohio St.2d 111, 249 N.E.2d 794. Therefore, the ability to appeal from a judgment belongs to those who were either a party to the action or who attempted to intervene in the action. Januzzi v. Hickman (1991), 61 Ohio St.3d 40, 45; 572 N.E.2d 642; State, ex rel. Lipson v. Hunter(1965), 2 Ohio St.2d 255, 208 N.E.2d 133. In other words, an appeal lies only on behalf of a party, or would be party, aggrieved by the final order being appealed. See, In Re Bowers (Jan. 3, 1992), Athens App. No. 1490 unreported at 3; In re 730 Chickens, Alleged Forfeited Property (1991), 75 Ohio App.3d 476, 483. One who was not a party to the proceedings in the trial court, or did not attempt to intervene as a party, is without capacity or right to appeal. In re Grand Jury (June 1, 1995), Washington App. Nos. 93CA09, 93CA10, 93CA12, unreported at 5. However, while it is true that the denial of a motion to intervene does constitute a final appealable order, appeal therefrom is limited solely to the issue of intervention, not the merits of the underlying appeal. See, Fouche v. Denihan (1990), 66 Ohio App.3d 120, 126; citing to Blackburn v. Hamoudi (1986), 29 Ohio App.3d 350, 505 N.E.2d 1010, 29 OBR 479; Atlantis Development Corp. V. United States, 379 F.2d 818 (5th Cir. 1967). 9 . APPELLANT CHARLES GRUENSPAN LACKS STANDING TO APPEAL THE CONSOLIDATION OF CASE NO. CV-311380 AND 303898 ON THE DOCKET OF JUDGE CURRAN. In the case sub judice, a review of the record from the trial court demonstrates that appellant was, at no time during the pendency of the underlying cases, a party to either action. Appellant's only role in the subject cases was as the attorney for TomRob, Inc. and Robert Thompson up to October 17, 1996, the date appellant was discharged by TomRob, Inc. and Robert Thompson and replaced by Alexander Jurczenko. Accordingly, since appellant was never an actual party to the litigation, appellant does not now have standing to challenge the trial court's ruling on CMHA's motion to consolidate or the trial court's decision to assume jurisdiction over Case Nos. CV-311380 and 303898. Renn v. T.T.C., Inc., et al., (Sept. 20, 1996), Montgomery App. No. 15433, unreported. While it is true that appellant did attempt to intervene in the subject cases as a new party plaintiff, the fact that the trial court denied appellant's motion to intervene limits this court's review on appeal to the issue of intervention, not the merits of the underlying cases. Fouche, supra. For the following reasons, appellant Charles Gruenspan's first and second assignments of error are not well taken. III. THIRD ASSIGNMENT OF ERROR Appellant Charles Gruenspan's third and final assignment of error states: THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO INTERVENE. 10 . THE ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY OVERRULING APPELLANT'S MOTION TO INTERVENE. Appellant maintains, through his third and final assignment of error, that the trial court improperly overruled his motion to intervene in the underlying cases as a new party plaintiff. Specifically, appellant argues that he satisfied the requirements of Civ.R. 24(A) since he had an interest in the settlement proceeds by virtue of a contingency fee agreement with TomRob, Inc. It is appellant's position that, since he was improperly prevented from intervening in the underlying cases, his ability to recover his portion of the settlement proceeds which constituted attorney fees may have been impaired because the interests of TomRob, Inc. and Robert Thompson were potentially adverse to those of appellant given the bankruptcy proceedings then pending involving TomRob, Inc. CMHA argues that appellant failed to satisfy all of the requirements necessary for intervention given the fact that appellant had an alternative remedy available to him which would adequately protect appellant's interests, namely a separate lawsuit against TomRob, Inc. and Robert Thompson. For the following reasons, appellant's third assignment of error is not well taken. . STANDARD OF REVIEW FOR A MOTION TO INTERVENE. Civ.R. 24(A), which deals with intervention, states: (A) Intervention of right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or (2) when the applicant claims as 11 interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. In Blackburn, supra,the court set forth four conditions which must be established in order to demonstrate a right to intervene: (1) the application to intervene must be timely made; (2) the prospective intervenor must claim an interest relating to the property or transaction which is the subject of the action; (3) the movant must be so situated that the disposition of the action may as a practical matter impair or impede his ability to protect his interest; and (4) that the existing parties do not adequately represent the movant's interest. See also Fouche, supra at 122. The failure by a prospective intervenor to satisfy any one of the elements in Civ.R. 24(A) will result in the denial of the right to intervene. Fairview General Hosp. v. Fletcher (1990), 69 Ohio App.3d 827, 831. In reviewing the trial court's denial of a motion to intervene, the proper standard of review is whether the trial court's action constituted an abuse of discretion. Young v. Equitec Real Estate Inv. Fund (1995), 100 Ohio App.3d 136, 138; Widder and Widder v. Kutnick (August 8, 1996), Cuyahoga App. No. 69945 unreported, at 6. The term abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157; Blakemore v. Blakemore 12 (1983), 5 Ohio St..3d 217, 219; Castlebrook, Ltd. V. Dayton Properties, Ltd. (1992), 78 Ohio App.3d 340, 346. . THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY OVERRULING APPELLANT'S MOTION TO INTERVENE. In this case, a review of the complete record from the trial court demonstrates that the trial court did not abuse its discretion by overruling appellant's motion to intervene. Appellant's only stated reason for intervention in the underlying cases was to protect his interest in the settlement proceeds arising out of the settlement agreement between CMHA and appellant's former clients TomRob, Inc. and Robert Thompson. However, appellant also brought suit against his former clients and additional parties in an effort to protect those identical interests. Clearly, appellant not only had an alternative remedy available to protect his interests in the subject cases but appellant availed himself of the alternative remedy by filing an additional lawsuit. Accordingly, the trial court did not abuse its discretion by overruling appellant's eleventh hour motion to intervene. Likeover v. Cleveland (1978), 60 Ohio App.2d 154, 159; Passmore v. Greene Cty. Bd. Of Elections (1991), 74 Ohio App.3d 707, 712. Appellant's third and final assignment of error is not well taken. Judgment of the trial court is affirmed. 13 It is ordered that defendants-appellees recover of appellant Charles Gruenspan their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas 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. BLACKMON, P.J. and O'DONNELL, J., CONCUR. DAVID T. MATIA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's .