Motion No.

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

Court of Appeals

MOTION FOR...
November 2,2018 10:03

By: MATTHEW J. MARKLING 0068095

Confirmation Nbr. 1539795

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

vs.
Judge:
CITY OF LAKEWOOD, OHIO

Pages Filed: 6

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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. )
)

MOTION OF MCGOWN & MARKLING CO.. L.P.A. TO INTERVENE IN ORDER TO

ASSERT AN ATTORNEY’S CHARGING LIEN

McGown & Markling Co., L.P.A. (“Intervenor”), former legal counsel for Relator Brian

J. Essi (“Relator”), respectfully requests that this Honorable Court grant intervention pursuant to

Civ.R. 24(A) so that Intervenor can assert an attorney’s charging lien upon any prospective

judgment in this case, as well as settlement funds and applicable proceeds that may be paid by

Respondent City of Lakewood, Ohio (“Respondent”) to Relator in this case. Because Relator

objects to Intervenor disclosing the total amount now due to Intervenor by Relator, Intervenor

shall submit the same, as well as the underlying fee agreement and statements, as deemed

appropriate by this Honorable Court. The basis for the instant motion is set forth below.

I. LAW & ARGUMENT

Rule 1.8(i)(l) of the Ohio Rules of Professional Conduct allows Intervenor to “acquire a

lien authorized by law to secure the lawyer’s fee or expenses.” “The law of each jurisdiction

determines which liens are authorized by law. These may include liens granted by statute, liens

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 originating in common law and liens acquired by contract with the client.” Prof.Cond.R. 1.8,

Comment 16. In the Eighth District, an attorney’s charging lien originates in common law.

The basis for an attorney’s charging lien originating in common law is well-established

and set forth in the case of Cohen v. Goldberger, 109 Ohio St. 22, 141 N.E. 656 (1923). In

Cohen, the Ohio Supreme Court recognizes that “this right, though called a lien, rests [* * *] on

the equity of an attorney to be paid his fees and disbursements out of the judgment which he has

obtained, and is upheld on the theory that his service and skill produced the judgment, and in

accordance with the principle which gives a mechanic a lien upon a valuable thing which, by his

skill and labor, he has produced.” Id. at 27.

While Cohen involves the right of a current attorney to assert a charging lien for attorney

fees and expenses, this Honorable Court extends this right to former attorneys and recognizes

that such attorneys may intervene in order to assert such charging liens. See, e.g., Cuyahoga Cty.

Bd. ofCommrs. v. Maloof Properties, Ltd., 197 Ohio App.3d 712, 2012-0hio-470, 968 N.E.2d

602 (8th Dist.) (extending and recognizing the same). In the case of Maloof Properties, Ltd., this

Honorable Court held that former attorneys can recover upon charging liens “so long as counsel

can demonstrate the significance his contribution has to that judgment.” Id. at^[ 17.

In this case, Intervenor will demonstrate a significant contribution toward the prospective

judgment before Relator substituted counsel on June 13, 2017. There is no dispute that

Intervenor will demonstrate a significant contribution toward the preparation of the voluminous

public records requests that are at issue in this case. Likewise, a simple review of the online

docket evidences that Intervenor will demonstrate a signification contribution to all materially

significant pleadings, motions, and memoranda; discovery; and mediation/settlement

negotiations. In fact, Intervenor is solely responsible - if not significantly responsible - for

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 obtaining the orders from this Honorable Court demanding that Respondent produce requested

public records.

Intervenor is solely responsible for obtaining the May 9, 2017 Judgment Entry mandating

that:

By May 1, 2017, Lakewood shall comply with Essi’s requests by

preparing and releasing an “Index of Records Supplied, Supplied
with Redactions, or Withheld” along with the appropriate records
to Essi and filing a copy of the Index with the court. The Index
shall specify by record request each and all records released,
released with redactions, or withheld. At the time of filing the
Index, Lakewood shall also file a motion for summary judgment
on the records released with redactions or withheld. The motion for
summary judgment shall explain with specificity the reasons for
redaction or withholding. At the time of filing the motion for
summary judgment, Lakewood shall also submit under seal five
copies of each of the disputed records as well as four copies of
records which indicate partial redactions. Lakewood shall also
certify the steps it undertook to locate the requested records and
that they have either released or submitted under seal all records it
could find coming within Essi’s request. Essi’s brief and any
supporting materials shall be filed by May 31, 2017.

Intervenor is also solely responsible for obtaining the June 16, 2017 Judgment Entry

mandating, in pertinent part, that:

Lakewood’s motion for summary judgment, including the “Index

of records supplied, supplied with redactions, or withheld” is now
due July 28, 2017. Essi’s response is due August 28, 2017. All
other provisions of this court’s previous orders concerning the
resolution of this case remain in full force and effect. The court
directs Lakewood to continue to review its records and release to
Essi those records it concludes are public records without
exemptions. Notice issued.

Intervenor respectfully submits that Intervenor made a significant contribution - if not

solely responsible - toward obtaining the April 12, 2018 Judgment Entry mandating, in pertinent

part, that:

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 In conducting the in camera inspection, the court discovered that it
could not conduct the inspection of Jennifer Pae’s calendar
because the redacted copy was unreadable. On the copy the court
examined, all dates, date ranges, times, and appointment headings
were removed. Moreover, there were inconsistencies between the
unredacted and the redacted copy, e.g., the redacted copy had more
bullet points than the unredacted copy. The court further notes the
Pae’s redacted copy was inconsistent with Butler’s redacted copy.
Accordingly, the court orders Lakewood to submit under seal a
properly redacted copy of Pae’s calendar and an unredacted copy
of Pae’s calendar for a proper in camera inspection. The
submission shall be within two weeks of the date of this order.
Notice issued.

Intervenor’s significant contribution toward the prospective judgment in this case resulted

in significant attorney fees and expenses that remain unpaid. As stated above, Relator objects to

Intervenor disclosing the total amount now due to Intervenor by Relator so Intervenor shall

submit the same, as well as the underlying fee agreement and statements, as deemed appropriate

by this Honorable Court.

While this Honorable Court has not issued a final judgment against Respondent in this

case, Intervenor seeks intervention in order to assert an attorney’s charging lien with respect to

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.

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 II. CONCLUSION

Based upon 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/ Matthew John Markling_ _ _ _ _ _ _ _ _ _ _ _ _ _

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
jsulik@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 November 2, 2018, to the following:

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

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

Attorneys for Respondent City of Lakewood, 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/ Matthew John Marklins_ _ _ _ _ _ _ _ _ _ _ _ _ _

Matthew John Markling (0068095)

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