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Petty v. Kroger Food & Pharmacy12/15/2005
torney cannot attach funds to cover fees until after final settlement has been reached. Irwin & Flickinger v. Bruce L. Christy Co., L.P.A. (1989), 61 Ohio App.3d 131. It stands to reason that one cannot collect or attach something that does not yet exist.
{ } Our holding is supported by case law from other Ohio appellate districts. The Ninth District has held that "without such a judgment or fund, there can be no attorney charging lien, as there is nothing upon which to attach this lien and any argument over the legal aspects of that lien become moot." Telxon Corp. v. Smart Media of Delaware, Inc., Summit App. No. 22543, 2005-Ohio-6223, . The Sixth and Eighth Districts have also held a judgment, settlement, or other fund-creating event must exist before an attorney can assert a charging lien. Fire Protection Resources, Inc. v. Johnson Fire Protection Co. (1991), 72 Ohio App.3d 205; and Mancino v. City of Lakewood (1987), 36 Ohio App.3d 219.
{ } Appellant's written contingent fee contract does not obviate the need for judgment or other fund-creating event. In pertinent part, appellant's agreement states: "Attorney shall have a charging lien upon the proceeds of any insurance monies, settlement, judgment, verdict, award or property obtained in your behalf[.]" While the language encompasses all fund-creating events, it does not allow for collection of fees prior to fund creation. In fact, the contingent nature of the contract emphasizes that appellant has no right to any fees unless funds are obtained on Petty's behalf. At this time, no funds have been obtained.
{ } Since judgment, settlement, or any other fund-creating event has not yet occurred in the Kroger case, appellant is premature in his attempts to assert his charging lien. As such, until judgment or like event, appellant has no interest in the subject matter of the litigation and intervention is inappropriate. However, appellant is free to assert his lien after the fund has been created. The trial court can assess the validity of the lien at that time.
{ } Accordingly, we find the trial court did not abuse its discretion in denying the motion to intervene. We affirm the judgment, albeit on different grounds.
Judgment affirmed.
BRYANT and FRENCH, JJ., concur.
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