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Petty v. Kroger Food & Pharmacy12/15/2005
{ } Appellant, attorney Scott E. Smith, appeals from the May 9, 2005 decision of the Franklin County Court of Common Pleas denying his motion to intervene. Appellant sought to intervene to assert a charging lien against James Petty, a former client. For the following reasons, we affirm.
{ } In April 2001, James Petty ("Petty"), retained appellant to represent him against Kroger Food and Pharmacy ("Kroger") asserting claims of false arrest and malicious prosecution. Petty and appellant entered into a written contingent fee agreement that specifically provided appellant the right to a charging lien. Some time later, Petty became unsatisfied with appellant and sought representation on the Kroger claims by attorney Thomas Tyack ("Tyack"). On February 28, 2002, Tyack, on Petty's behalf, filed a complaint against Kroger. That case was dismissed voluntarily pursuant to Civ.R. 41(A) on August 8, 2003. The case was then refiled by Tyack on August 4, 2004.
{ } In late 2001, Petty had also retained appellant for representation on a municipal traffic violation. While appellant did represent Petty in the matter, Petty failed to pay appellant's attorney fees of $750. Appellant obtained a default judgment on the account in June 2005. Appellant has thus far been unable to collect the judgment amount.
{ } On October 21, 2004, appellant filed a notice of attorney and charging lien in the refiled Kroger case. No party opposed or objected to appellant's filing. In March 2005, appellant filed a motion to intervene in the Kroger case. Appellant asserted he was entitled to a lien on any settlement, judgment, verdict or award rendered in the Kroger case for both his work on the case and his unpaid fees from the traffic case. The trial court denied the motion in May 2005 holding the outstanding traffic fees were an entirely separate matter and therefore intervention in the Kroger case was inappropriate. The trial court failed to address appellant's claims for fees relating to the Kroger case itself.
{ } Appellant now appeals from the trial court's decision denying intervention. Appellant asserts one assignment of error:
THE TRIAL COURT ERRED IN DENYING SCOTT E. SMITH'S RIGHT TO INTERVENE AND PROTECT HIS CLAIM IN HIS FORMER CLIENT'S PERSONAL INJURY CASE.
Appellant contends a decision denying intervention is a final appealable order, rendering an appeal timely and proper. Further, appellant asserts that his equitable right to payment combined with the written contract terms make intervention appropriate in the Kroger case. Petty argues appellant has no right to a charging lien because he did not procure judgment on the case. Additionally, Petty contends the trial court correctly determined that intervention is inappropriate.
{ } Appellant first asserts that a decision denying a motion to intervene is a final appealable order. No party has challenged this assertion. We have previously stated that while the granting of a motion to intervene is not a final appealable order, the denial of a motion to intervene is a final appealable order. Fifth Third Bank, (Central Ohio) v. Banks, Franklin App. No. 04AP-860, 2005-Ohio-4972. Therefore, appellant has correctly stated the law, and appeal at this time is appropriate.
{ } Appellant next asserts the trial court erred in denying his motion to intervene pursuant to Civ.R. 24(A). The appropriate standard of review for such a motion is abuse of discretion. Myers v. Basobas (1998), 129 Ohio App.3d 692, 696. In order to find an abuse of discretion, we must determine that the trial court's decision was unreasonable, arbitrary, or unconscionable, and not merely an error of law or judgment. Blake
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