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According to the testimony of Dennis P. Strong, attorney at law, who
represented Plaintiff in securing the agreement at issue in the case, implicit
in the agreement was an unwritten provision that a grievance would not be filed
so long as Defendant complied with the terms thereof. From all the evidence, it
appears that not only was such provision implicit, it was the essence of the
agreement. Whether there was any malpractice in Defendant's representation is
not clear. However, the evidence failed to establish a causal relationship
between the alleged malpractice and the damages. Plaintiff's own intransigence
in not settling the Cleveland Metal Abrasives, Inc. case was probably the
single cause of his alleged damage.
Moreover, from the evidence it appears that when Defendant defaulted on the
terms of the agreement, Plaintiff in fact filed a written grievance on
September 22, 1986. Therefore, the Court concludes that Plaintiff extracted the
subject agreement from Defendant on threat of disciplinary action. As such, the
agreement contravenes public policy and is void, unlawful and unenforceable.
IT IS ORDERED that judgement be entered for Defendant on Plaintiff's
complaint at Plaintiff's cost. The Decision was signed by Judge Robert D.
Nichols.
Now before I start pointing out to you just how much in error this decision
was I want to relate what happened before we went to court. When Art refused to
pay the balance of what he owed me, I had a strange feeling that somehow he was
going to get out of it. I didn't know exactly how, but after what I'd been
through with the local legal system, nothing would have surprised me. They
rigged the court system before, so what would stop them from doing it again?
That would be the only way Art could have been so confident about winning in
court. I believe Art and his political connections selected the judge they
wanted to hear the case and that the outcome of the hearing was decided well
before we ever walked into the courtroom.
With this in mind, when Art refused to pay me the balance of what he owed,
he broke the contract--plain and simple. So at the same time Dennis filed the
lawsuit I filed a grievance against Art with the Toledo Bar Association; this
time in writing. Right after I filed the grievance I happened to find out through
the grapevine that Art had two other grievances filed against him with the Bar
Association. He was just about to settle them, and if I followed through with
my grievance, it would probably be enough to finish his legal career.
I'll admit that I wanted Art's head on a platter and was going to do
anything I could, legally that is, to make him pay for what he did. Well,
before my grievance could be heard, Art surrendered his license to practice law
in Ohio. Does that sound like something an innocent person would do, let alone
a lawyer? Hardly. When you’re innocent you stand up and fight the charge, not
fold and run. Yet that's what he did because he knew that he was guilty.
Now that’s off my chest, let's go to the judges decision. The first error in
Judge Nichols’ decision is in the first paragraph where he states that I agreed
to forbear from prosecuting criminal, ethical and civil malpractice against
Art. If you look at #3 in the Agreement, it states that the Creditor agrees to
forego "suing" the Debtor, no where in the Agreement did it state
that I agreed not to prosecute criminal or ethical malpractice.
When Art broke the contract, it states in #10 of the Agreement that failure
of the debtor of any of the conditions of this Agreement shall make the $40,000.00
become due and payable at the time of the breach. When Art failed to pay me as
agreed, then refused to pay the balance when given the opportunity, he breached
the Agreement. Therefore he owed me the balance in full, plus interest. So when
Art refused to pay I had no choice but to go after him. What the hell was I
supposed to do? Just sit there and say, "that's the way it goes?"
Hardly. I did the only thing I knew how to do. I went after him every way I
could.
The next error appears in the third paragraph where the judge states that it
appears that Plaintiff was awarded a money judgement with which he was
unsatisfied. Now where in the hell he got that idea is beyond me because it
couldn't have been any further from the truth. I was more than satisfied with
the judgement. It was Cleveland Metal Abrasives Inc. that was unhappy with the
judgement.
The next error is in the next sentence where the judge states that the
Defendant (Art) prosecuted an appeal, but failed to file a brief. The judge was
half right on this one because Art did fail to file a Brief in the appeal. As
for Art prosecuting an appeal, the judge was dead wrong. Cleveland Metal
Abrasives filed the appeal, not me.
In the same paragraph the judge states the Defendants (Cleveland Metal
Abrasives, Inc.) therein made several efforts to settle and resolve the matter
by payment of money. Once again the judge was incorrect because Art only once
discussed any settlement offer with me, and on top of that I took Art's advice
and refused their offer.
In the next sentence the judge states that Plaintiff therein wanted job
reinstatement, which was correct but then he states that "therefore he
rejected all settlement offers." Once again the judge is incorrect because
there was only one settlement offer presented to me and that was it.
Then in the very next sentence the judge states that the Sixth Circuit Court
of Appeals modified the judgement of the trial and reduced it to $1,466.90
because of Plaintiff's failure to mitigate damages. On this one I have no proof
of why they reduced the judgement but I don't think the judge did either. My
bet would be that they reduced it because of Art's screw-up, not mine.
The judge went on to state that "Defendant herein received the check in
settlement. He negotiated it and applied it against attorney's fees owed him by
Plaintiff." Once again the judge was at best only 33 1/3% correct because
if Art did take it toward attorney fees he was only entitled to 33 1/3% of the
settlement. So why did he keep the entire amount? Better yet, why didn't Art
ever tell me that he lost the appeal and that the judgement had been reduced to
$1,446.90 and that he forged my name to the check and had decided to keep the
entire amount? The truth of the matter was that Art had told me that the case
was still in the appeals process. I don't know when I'd have found out if
Dennis hadn't told me. Now that's the truth of the matter.
The next error comes in the very next sentence when the judge states that
"Upon discovery of the circumstances, Plaintiff sought criminal
prosecution and disciplinary action. Police investigation apparently
established express or implied authority for Defendant to negotiate the
check." I do have to give the judge credit for getting at least one thing
right: I did seek criminal prosecution and disciplinary actions against Art
when I discovered that he had lied about the case, forged my name to the check
and kept the entire amount without ever telling me about it. As far as a police
investigation, if there was one it had to have been the shortest one on the
books because it lasted less than half an hour. I know. I was there the entire
time.
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