NAILAH K.

BYRD
CUYAHOGA COUNTY CUERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113

Court of Appeals

RESPONSE IN OPPOSITION TO
December 7,2018 08:44

By: MATTHEW J. MARKLING 0068095

Confirmation Nbr. 1569085

STATE OF OHIO, EX. REL., BRIAN J. ESSI CA 16 104659

vs.
Judge:
CITY OF LAKEWOOD, OHIO

Pages Filed: 4

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 IN THE COURT OF APPEALS
EIGHTH APPELLATE DISTRICT
CUYAHOGA COUNTY, OHIO

)
State of Ohio ex rel. ) CASE NO. CA-16-104659
BRIAN J. ESSI )
)
Relator, )
)
v. )
)
CITY OF LAKEWOOD, OHIO )
)
Respondent. )
)

INTERVENOR’S REPLY TO RESPONDENT CITY OF LAKEWOOD’S BRIEF IN

OPPOSITION

Now comes Intervenor McGown & Markling Co., L.P.A. (“Intervenor”), former legal

counsel for Relator Brian J. Essi (“Relator”). The arguments asserted in Respondent City of

Lakewood’s (“Respondent”) Brief in Opposition to Intervenor’s Motion to Intervene (“Brief in

Opposition”) must be rejected and Intervenor’s Motion to Intervene (“Motion to Intervene”)

granted because Respondent (1) presents an inaccurate and misleading analysis of case law; (2)

misapplies Intervenor’s argument in the Motion to Intervene; and (3) asserts arguments that are

trivial. Each argument is addressed below.

I. LAW AND ANALYSIS

As an initial matter, the Brief in Opposition presents an inaccurate and misleading

analysis of the case law in arguing that intervention should be denied because an attorney’s

charging lien cannot attach where no ‘“judgment, settlement, or other fund-creating event’” has

yet to occur. Brief in Opposition at 2, citing Slater v. Ohio Dept, ofRehab, and Correction, 10th

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 Dist. Franklin No. 17AP-453, 2018-Ohio-1475, ^ 29. See also Brief in Opposition at 1-2, citing

Ruttman v. Flores, 8th Dist. Cuyahoga No. 66079, 1994 WL 677539, * 14 (Dec. 1, 1994),

Kisling, Nestico & Redick, LLC v. Progressive Max Ins. Co., 8th Dist. Cuyahoga No. 105287,

2017-0hio-8064, If 14. However, this is an inaccurate and misleading analysis of the case law as

all of these courts made determinations based upon a contingency fee agreement between the

attorney and the attorney’s former client. See Slater at ]f 2 (holding the same); Ruttman at *14

(holding the same); Kisling at 117 (holding the same). In the instant matter, Intervenor has an

hourly representation agreement with Relator that is not a contingent fee agreement. Relator

owes Intervenor attorney fees regardless of the outcome of in this case.

Respondent also misconstrues Intervenor’s use of the phrase “prospective judgment in

this case, as well as settlement funds and applicable proceeds that may be paid” to mean that no

fund exists from which Intervenor may claim a right of attorney fees. See Brief in Opposition at

1-2. However, Intervenor already established fees which are owed to it by Relator and

Intervenor’s use of the term “prospective” is simply to denote that a specific damages amount

has not yet been realized in the present case. Therefore, an attorney’s charging lien is

appropriate at present.

Additionally, Respondent’s argument that the Motion to Intervene is premature is trivial.

Both Relator and Respondent filed Motions for Summary Judgment with this Honorable Court

and all factual matters have been resolved. This case is at the precipice of final judgment and the

Motion to Intervene is appropriate at this stage to assert Intervenor’s right of priority over funds

obtained in said judgment. This case also involves a public records request dispute pursuant to

R.C. 149.43, which provides damages of attorney’s fees under R.C. 149.43(C)(3)(b). Therefore,

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 final judgment in favor of Relator will allow damages for attorney’s fees which Intervenor has

asserted a right in.

II. CONCLUSION

Based on the foregoing, Intervenor respectfully requests that this Honorable Court grant

intervention in this case so that Intervenor may assert its attorney’s charging lien against any

prospective judgment in this case, as well as settlement funds and applicable proceeds that may

be paid by Respondent to Relator in this case.

Respectfully submitted,

/s/ Patrick Vrobel_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Matthew John Markling (0068095)
Patrick Vrobel (0082832)
John T. Sulik, Jr. (0097577)
McGown & Markling Co., L.P.A.
1894 North Cleveland-Massillon Road
Akron, Ohio 44333
Telephone: 1.330.670.0005
Facsimile: 1.330.670.0002
Email: mmarkling@mcgownmarkling.com
pvrobel@mcgownmarkling.com
j sulik@mcgownmarkling.com

Attorneys for Intervenor

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 CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing will be sent via the court’s electronic filing

system on December 7, 2018, to the following:

Mazanec, Raskin & Ryder Co., L.P.A.

John T. McLandrich
Terence L. Williams
34305 Solon Road
100 Franklin’s Row
Cleveland, Ohio 44139
jmclandrich@mrrlaw.com
twilliams@mmrlaw.com

Attorneys for Respondent City ofLakewood, Ohio

The Dann Law Firm

Marc E. Dann
Donna Taylor-Kolis
P.O. Box 6031040
Cleveland, Ohio 44103
mdann@dannlaw. com
dkolis@dannlaw.com
notices@dannlaw.com

Attorneys for Relator Brian J. Essi

/s/Patrick Vrobel

Patrick Vrobel (0082832)

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