Zell v. Klingelhafer et al

Filing 133

ORDER finding as moot 84 Motion for Partial Summary Judgment; granting 85 Motion to Amend/Correct; granting 86 Motion for Summary Judgment. Defendant's Counterclaim 13 is hereby DISMISSED. Signed by Judge Algenon L. Marbley on 3/23/2015. (cw)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
EILEEN L. ZELL,

:
:
Plaintiff,
:
:
v.
:
:
KATHERINE M. KLINGELHAFER, et al., :
:
Defendants.
:

Case No. 2:13-CV-00458
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

OPINION & ORDER
This matter is before the Court on Plaintiff’s Motion for Partial Summary Judgment
(Doc. 84), Plaintiff’s Motion to Amend Motion for Partial Summary Judgment (“Motion to
Amend”) (Doc. 85) and Plaintiff’s Amended Motion for Partial Summary Judgment on
Defendant Frost Brown Todd’s Counterclaim (Doc. 86). The Court GRANTS Plaintiff’s Motion
to Amend (Doc. 85), and thus Plaintiff’s original Motion for Partial Summary Judgment (Doc.
84) is MOOT. This Opinion and Order reviews the substance of Plaintiff’s Amended Motion
for Partial Summary Judgment on Defendant Frost Brown Todd’s Counterclaim (“Plaintiff’s
Motion”) (Doc. 86).
Plaintiff Eileen Zell (“Plaintiff”) seeks summary judgment on Defendant Frost Brown
Todd, LLC’s Counterclaim, (Doc. 13). For the reasons set forth herein, Plaintiff’s Motion (Doc.
86) is GRANTED.
I.

BACKGROUND

Plaintiff’s action arises out of a $90,000 promissory note between Plaintiff Zell and her
nephew, Michael Mindlin, made in December 2000 (the “underlying action”). Plaintiff engaged
Defendant law firm Frost Brown Todd, LLC (“FBT”) to advise her on how to go about

collecting on the note. Before Plaintiff could bring suit, however, Mindlin filed his own
affirmative action for declaratory relief in Franklin County, Ohio. Based on advice from FBT
attorneys, Plaintiff consented to the jurisdiction of the Ohio courts and participated in Mindlin’s
case. Plaintiff claims she participated in the action, and turned down Mindlin’s settlement offers,
because Defendants advised her that her note would be subject to Missouri’s ten-year statute of
limitations, rather than Ohio’s six-year period, even if her case were adjudicated in Ohio.
From the pre-lawsuit planning stage, through the result of her nephew’s case and
subsequent appeals, Plaintiff was represented personally by a succession of FBT attorneys. At
first, Plaintiff was represented by Defendant Patricia Laub, a partner at FBT, assisted by
Defendants Shannah Morris and Douglas Bozelle, and overseen by Defendant Joseph Dehner.
Attorney Laub’s personal representation of Plaintiff ended on October 22, 2010, when Attorney
Morris assumed primary responsibility. On May 6, 2011, Plaintiff requested that FBT replace
Attorney Morris, and Defendant Jeffrey Rupert took over, on May 10. (Id. at ¶¶ 39-40).
Attorney Rupert personally represented Plaintiff from May 10, 2011 through March 28, 2012, at
which time he moved to Seattle. (Id. at ¶¶ 57). During this time, Defendant Katherine
Klingelhafer also worked on Plaintiff’s case, drafting at least two research memoranda on July
13 and August 8, 2011, addressing the choice of law issue related to Plaintiff’s note. (Id. at ¶¶
123, 125-26, 135-38, 140, 146). After Attorney Rupert’s departure, Attorney Dehner took over
personal representation of Plaintiff, including representing Plaintiff on appeal, and provided his
opinion on her seeking review by the Ohio Supreme Court. (Id. at ¶¶ 59, 151). Attorney
Dehner’s last interaction with Plaintiff as her attorney was August 13, 2012, after which he
informed her that FBT was withdrawing from her case. (Id. at ¶¶ 59-61).

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Plaintiff ultimately lost her case against her nephew. Judge Sheward, of the Franklin
County Court of Common Pleas, found that, because she attempted to recover on her note more
than six years after its execution, Plaintiff’s claim was not timely under Ohio law, and the court
thus entered judgment against her. Mindlin v. Zell, No. 10CVH-14965 (Franklin Cnty. C.P. Oct.
12, 2011). On appeal, the Court of Appeals for the Tenth Appellate district agreed, and further
rejected Plaintiff’s alternative arguments on the basis that they were not raised at the trial level,
and thus could not be considered on appeal. Mindlin v. Zell, No. 11AP-983 (Ohio App. Aug. 7,
2012). The Tenth District twice denied Plaintiff’s requests that it reconsider its decision.
Mindlin v. Zell, No. 11AP-983 (Ohio App. Oct. 25, 2012); Mindlin v. Zell, No. 11AP-983 (Ohio
App. Dec. 31, 2012). Plaintiff opted not to seek review by the Ohio Supreme Court.
Plaintiff commenced this action for malpractice against Defendants on May 10, 2013.
(Compl., Doc. 2). On October 14, 2013, Defendant Frost Brown Todd, LLC (“FBT”) filed a
counterclaim against Plaintiff Eileen Zell “demand[ing] judgment against Zell in favor of FBT in
the amount of $17,165,42 [sic], plus attorneys’ fees and the costs of this action, and all other
relief to which FBT may be entitled” for Plaintiff’s alleged refusal to pay fees for Defendant
FBT’s legal services. (Doc. 13). Plaintiff filed her Answer to FBT’s counterclaim on October
23, 2013 denying that she owes FBT fees for legal services. (Doc. 15). Subsequently, on
September 2, 2014, Plaintiff filed a Motion for Partial Summary Judgment, (Doc. 86), asking this
Court to dismiss with prejudice FBT’s counterclaim. This matter has been fully briefed and is
ripe for review.1
II.

STANDARD OF REVIEW

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The Court notes that Plaintiff filed an Amended Complaint on December 3, 2014. Defendant FBT filed an
Amended Answer on December 29, 2014, but did not file a renewed counterclaim.

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Federal Rule of Civil Procedure 56 provides, in relevant part, that summary judgment is
appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of law.” A fact is deemed material only if it
“might affect the outcome of the lawsuit under the governing substantive law.” Wiley v. United
States, 20 F.3d 222, 224 (6th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
The necessary inquiry for this Court is “whether ‘the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.’” Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quoting
Anderson, 477 U.S. at 251-52). In evaluating such a motion, the evidence must be viewed in the
light most favorable to the nonmoving party. United States S.E.C. v. Sierra Brokerage Servs.,
Inc., 712 F.3d 321, 327 (6th Cir. 2013). The court reviewing a summary judgment motion need
not search the record in an effort to establish the lack of genuinely disputed material facts,
however. Guarino v. Brookfield Township Trustees, 980 F.2d 399, 404 (6th Cir.1992). Rather,
the burden is on the nonmoving party to present affirmative evidence to defeat a properly
supported motion, Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989), and to
designate specific facts that are in dispute. Anderson, 477 U.S. at 250; Guarino, 980 F.2d at
404–05.
Under the plain language of Rule 56(c), summary judgment is appropriate “against a
party who fails to make a showing sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

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III.

ANALYSIS

Plaintiff seeks summary judgment on Defendant FBT’s counterclaim. (Doc. 86 at 1).
Plaintiff insists that she no longer has an obligation to pay any outstanding legal fees under either
the law of waiver, gifts, or equitable estoppel. (Id. at 10). In response, Defendant counters that
FBT did not waive Plaintiff’s obligation to pay her legal fees; that FBT did “gift” a debt
forgiveness to Plaintiff; and that FBT should not be equitably estopped from collecting any past
due fees. (Doc. 92, 3-8).
This Court, however, need not address the law of waiver, gifts, or estoppel. Plaintiff’s
arguments put the proverbial cart before the horse. This matter can, and should, be resolved in a
much more straightforward manner. Plaintiff is entitled to summary judgment because
Defendant’s Counterclaim fails to state a claim, and thus Plaintiff is entitled to judgment as a
matter of law.
A. Judgment as a Matter of Law
1. Defendant FBT’s Counterclaim
Defendant’s counterclaim, in its entirety, states the following:
1.

FBT is a limited liability corporation doing business as a law firm and,
through its attorneys, provides legal services.

2.

Eileen Zell retained certain attorneys of FBT, who are named as
Defendants in this action, to provide her with legal representation in
connection with her prosecution of a promissory note.

3.

Eileen Zell agreed at the time of retention and prior to the rendition of
legal services to pay FBT’s bills as they became due.

4.

Eileen Zell has admitted in her complaint that she was billed for legal
services and that she has left a remaining balance.

5.

Eileen Zell currently owes FBT $16,732 in attorneys’ fees, plus $433.42 in
costs, totally $17,165.42, as reflected in the invoices attached hereto as
Exhibit A.

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6.

FBT has demanded payment from Zell, but Zell has refused to pay.

WHEREFORE, FBT demands judgment against Zell in favor of FBT in the
amount of $17,165,42[sic], plus attorneys’ fees and costs of this action, and all
other relief to which FBT may be entitled.
Summary judgment is appropriate here, because Defendant FBT does not identify any
legal cause of action upon which it seeks relief. Thus, regardless of how the Court might attempt
to characterize the Defendant's cursory counterclaim, it fails as a matter of law.
The Supreme Court has determined that “the plain language of Rule 56(c) mandates the
entry of summary judgment ... against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party's case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986); see also Vita-Mix Corp. v. Basic Holdings, Inc., No. 1:06 CV 2622, 2007
WL 2816209, at *2 (N.D. Ohio Sept. 27, 2007) (“Summary judgment is appropriate when a party
who bears the burden of proof at trial fails to make a showing sufficient to establish an essential
element of his case.”); Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989) (“The presence of
a genuine issue of fact is predicated on the existence of a legal theory which can be considered
viable under the nonmoving party's version of the facts.”) (citing Ivy Street Corp. v. Alexander,
822 F.2d 1432, 1435 (6th Cir. 1987)).
Here, where Defendant’s Counterclaim does not state any legal claim whatsoever, it
certainly also fails to state the existence of the elements essential to a claim. Indeed, this Court
cannot evaluate whether FBT has demonstrated the essential elements of its Counterclaim
because FBT has not stated any cause of action. FBT’s Counterclaim merely states that Plaintiff
agreed to pay her fees as they became due and admitted in her complaint that she did not pay
them. Defendant then demands that this Court enter judgment against Plaintiff in the amount of

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the allegedly outstanding fees. While Defendant FBT may allege an injury by claiming Plaintiff
has not paid her legal fees, Defendant does not state a cause of action under which it is entitled to
relief for that alleged injury. Neither does FBT’s Memorandum in Opposition to Plaintiff’s
Motion expand upon its Counterclaim or otherwise identify a legal claim upon which it seeks
redress. Accordingly, Defendant’s demand on this Court is indecorous and unavailing.
Because Defendant’s Counterclaim does not state a cause of action, the Court is left to
guess what the claim is that Defendant attempts to assert. This is not the role of the Court. Even
if the Court were to assume, however, that Defendant’s Counterclaim intends to assert a claim
for breach of contract against Plaintiff for violating an agreement to pay legal fees, Defendant
FBT does not allege or put forth evidence supporting any of the elements of a breach of contract
claim. A claim for breach of contract in Ohio “must show that a contract existed, the plaintiff
performed, the defendant breached, and the plaintiff suffered damages.” Pavlovich v. Nat'l City
Bank, 435 F.3d 560, 565 (6th Cir. 2006) (citing Wauseon Plaza Ltd. P'ship v. Wauseon
Hardware Co., 156 Ohio App.3d 575, 807 N.E.2d 953, 957 (Ohio Ct. App. 2004)). Thus, even if
Defendant’s Counterclaim did identify a cause of action for breach of contract, Plaintiff would
also be entitled to summary judgment on this basis as well, because Defendant fails to satisfy the
necessary elements as a matter of law. See Bukowski v. Hall, 165 F. Supp. 2d 674, 677 (N.D.
Ohio 2001) (“Summary judgment is appropriate here, because regardless of how the Court
characterizes the defendant's counterclaim, it fails as a matter of law. Defendant Hall
counterclaims for damages coming from the false accusations he says the plaintiffs made. The
defendant does not explicitly identify the cause of action upon which he seeks relief. Based
upon the wording of the defendant's counterclaim and the nature of injury he alleges, it appears

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that his action sounds in tort for either malicious prosecution or defamation. In either cause of
action, however, the defendant fails to satisfy the necessary elements as a matter of law.”).
B. Rule 11 Sanctions
Plaintiff’s Reply brief (Doc. 98) asks this Court to strike the Declaration of Defendant
Attorney Joseph Dehner, attached to FBT’s Memorandum in Opposition to Plaintiff’s Motion for
Partial Summary Judgment, and “impose other sanctions as appropriate” because “Plaintiff
believes that Defendant Dehner’s Declaration was filed in bad faith.” (Doc. 98 at 6). Although
not the height of clarity, the Court takes Plaintiff’s request as a motion for sanctions under Rule
11 of the Federal Rules of Civil Procedure.
1. Legal Standard
Federal Rule of Civil Procedure 11 provides that, when a motion is submitted, a party or
counsel represents to the court that:
(1) it is not being presented for any improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by
existing law or by a nonfrivolous argument for the extension, modification, or
reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or, if
specifically so identified, are likely to have evidentiary support after a reasonable
opportunity for further investigation or discovery; ....
Fed. R. Civ. P. 11(b)(1)-(3).
Rule 11 was adopted to “require litigants to ‘stop-and-think’ before initially making legal
or factual contentions.” Fed. R. Civ. P. 11 advisory committee notes (1993 Amendments). The
focus of the rule is narrow, concerned only with whether the attorney believes “on the basis of
reasonable inquiry that there is a reasonable basis in law and fact for the position taken and that

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the paper is not filed for an improper purpose” at the time that the paper is signed. Jackson v.
Law Firm of O'Hara, Ruberg, Osborne & Taylor, 875 F.2d 1224, 1229 (6th Cir.1989).
If the Court determines that Rule 11(b) has been violated, the Court may impose
appropriate sanctions on the attorneys or parties who violated the Rule or are responsible for the
violation. See Fed. R. Civ. P. 11(c). The standard for determining whether to impose sanctions is
one of objective reasonableness. First Bank of Marietta v. Hartford Underwriters Ins. Co., 307
F.3d 501, 517 (6th Cir.2002) (recognizing that “the imposition of Rule 11 sanctions requires a
showing of ‘objectively unreasonable conduct’ ”) (quoting United States v. Kouri-Perez, 187
F.3d 1, 8 (1st Cir.1999)); Union Planters Bank v. L & J Development Co., Inc., 115 F.3d 378,
384 (6th Cir.1997) (finding that the test for the imposition of Rule 11 sanctions is “whether the
individual's conduct was reasonable under the circumstances”) (citation omitted); see also Waste
Mgmt. Inc. v. Danis Indus. Corp., No. 3:00-CV-256, 2014 WL 4559228, at *4 (S.D. Ohio Sept.
12, 2014) (noting that to determine if a Rule 11 violation warrants sanctions the Court must
“whether the attorney's conduct was reasonable under the circumstances.”).
Relevant factors for determining whether the attorney acted reasonably include: “‘the
time available to the signor for investigation; whether the signor had to rely on a client for
information as to the facts underlying the pleading, motion, or other paper; whether the pleading,
motion, or other paper was based on a plausible view of the law; or whether the signor depended
on forwarding counsel or another member of the bar.’” Davis v. Crush, 862 F.2d 84, 88 (6th
Cir.1988) (quoting Century Products, Inc. v. Sutter, 837 F.2d 247, 250-51 (6th Cir.1988)).
2. Plaintiff’s Request for Sanctions Against Defendant FBT
In her Reply, Plaintiff spends nearly fifty pages of briefing disputing and denying each
factual assertion contained in the Declaration made by Attorney Joseph Dehner, attached to

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Defendant FBT’s Memorandum in Opposition. She then asserts that this Court should impose
sanctions against Defendant because Mr. Dehner’s Declaration was made “in bad faith.” The
Court surmises that Plaintiff takes issue with Mr. Dehner’s Declaration essentially because it
presents statements that are contrary to the evidentiary support Plaintiff provided with her own
Motion – specifically, an Affidavit submitted by her son, Jonathan Zell. Unfortunately, Plaintiff
does not present any evidence demonstrating that Defendant FBT submitted a perjurious or
frivolous declaration – other than Plaintiff’s personal opinion, to the extent that can be
considered “evidence” – or that it was otherwise objectively unreasonable for Defendant’s
counsel to submit the declaration to this Court under Rule 11. For these reasons, Plaintiff’s
motion for sanctions (Doc. 98) is DENIED.
IV.

CONCLUSION

For the reasons states above, Plaintiff’s Motion for Partial Summary Judgment (Doc. 86)
is GRANTED. Plaintiff’s Motion for Sanctions (Doc. 98) is DENIED.
IT IS SO ORDERED.

s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: March 23, 2015

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