Zunshine v. Cott (3rd Appeal)

No Quantum Meruit if Contigency Never Occurs


Attorney sued his former client in the Franklin County Court of Common Pleas (Ohio) for (1) malicious prosecution, and (2) unpaid fees associated with a bad faith claim against an insurer which the client dismissed in a case in which the attorney had represented the client on a contingent fee basis. The trial court granted the client's summary judgment motion and dismissed the case. The attorney appealed.

The attorney represented the former client in a personal injury case on a contingent fee basis. The client chose to dismiss a bad faith claim asserted against her insurer. When the attorney successfully sued her for his contingent fee, her malpractice counterclaim was unsuccessful. The attorney sought sanctions against her for asserting this claim, and the denial of that motion was affirmed. The appellate court held the attorney was properly denied fees for the bad faith claim because (1) he was already paid a percentage of the client's property damage settlement, (2) to the extent property damage was not the sole basis of the bad faith claim, it was dismissed, and the client recovered nothing more, so the attorney could recover nothing more, (3) the claim should have been raised in his first fee suit, as the work had been done and any fees were owed when that suit was filed, and, (4) res judicata barred the claim as it was not raised in the initial fee suit. Res judicata also barred the malicious prosecution claim because it was disposed of when the attorney previously moved for Civ. R. 11 sanctions against the client, and the denial of that motion was affirmed.

Attorney’s cause of action for a fee recovery on the basis of quantum meruit arises upon the successful occurrence of the contingency

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Reference Info:Decision | State, 6th Circuit, Ohio | United States

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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