Fine v. French

[Cite as Fine v. French, 2018-Ohio-2256.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
LAW OFFICE of MONA J. FINE JUDGES:
Hon. John W. Wise, P. J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 17 CA 20
JAMIE M. FRENCH aka BURKE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Municipal Court, Case
No. 17 CVH 00412
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 7, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JEFFREY H. JORDAN JOEL R. ROVITO
LAW OFFICE of JEFFREY H. JORDAN 7538 State Ridge Boulevard
Post Office Box 30863 Reynoldsburg, Ohio 43068
Gahanna, Ohio 43230
Knox County, Case No. 17 CA 20 2
Wise, John, P. J.
{¶1} Defendant-Appellant Jamie M. French appeals the decision of the Mt.
Vernon Municipal Court, Knox County, which ruled in favor of Plaintiff-Appellee Law Office
of Mona J. Fine in a suit to recover unpaid fees for legal services pursuant to a written
retainer agreement. The relevant facts leading to this appeal are as follows.
{¶2} In April 2013, Appellant French retained Attorney Mona J. Fine to represent
her in a child custody and visitation matter. The written fee agreement at issue stated
inter alia that Attorney Fine would charge an hourly rate of $185.00 per hour “for all
services throughout the case ***.” Clause 7 of the agreement included the following
language: “If any balance remains due following thirty days upon conclusion of client’s
[appellant’s] case, an interest charge of 10% per year shall be added to client’s bill for the
total amount then due and owing until all sums are paid in full.” In addition, Clause 15 of
the agreement included the following: “If Attorney [Fine] must engage counsel or
otherwise expend funds to collect bills over sixty (60) days old, client agrees to reimburse
Attorney for all associated fees and costs, plus interest on the outstanding balance.”
{¶3} The total amount of fees claimed by appellee for representation in the
matter was $16,970.50. Appellee claimed that appellant paid $11,000.00 toward the
charges, leaving an unpaid balance of $5,970.50.
{¶4} On May 8, 2017, Appellee Law Office of Mona J. Fine, represented by
outside counsel, filed a “complaint on account” in the Mt. Vernon Municipal Court
(hereinafter "trial court"). The complaint also set forth claims of breach of contract and
unjust enrichment.
Knox County, Case No. 17 CA 20 3
{¶5} Appellant French, proceeding pro se at the trial court level, filed a “response
to complaint” on June 16, 2017.
{¶6} On July 12, 2017, appellee filed a motion for a more definite statement and,
to the extent applicable, a motion to dismiss any counterclaims asserted by appellant.
{¶7} On August 14, 2017, the trial court issued a judgment entry ordering
appellant to provide a more definite statement, if she intended to state a counterclaim in
the action.
{¶8} Appellant filed a second response to the complaint on September 1, 2017.
{¶9} The case proceeded to a bench trial on September 8, 2017.
{¶10} On September 11, 2017, the trial court issued a judgment entry in favor of
appellee, granting the amount of $5,970.50 “for unpaid bills for legal services rendered,”
plus $1,194.10 “for legal fees incurred in the collection of unpaid bills for legal services
rendered,” plus ten percent interest from September 25, 2013, as well as court costs.
{¶11} On October 10, 2017, appellant filed a notice of appeal. She herein raises
the following two Assignments of Error:
{¶12} “I. THE TRIAL COURT ERRED IN AWARDING ATTORNEY FEES TO
PLAINTIFF-APPELLEE IN A BREACH OF CONTRACT CASE.
{¶13} “II. THE TRIAL COURT ERRED IN AWARDING PLAINTIFF-APPELLEE
HER ATTORNEY FEES WHEN NO EXPERT WAS CALLED TO CORROBORATE HER
FEE AS CUSTOMARY AND REASONABLE.”
Knox County, Case No. 17 CA 20 4
I.
{¶14} In her First Assignment of Error, appellant contends the trial court erred in
granting appellee a judgment for collection based attorney fees of $1,194.10 in appellee’s
lawsuit based on the parties’ agreement for legal services.
{¶15} As an initial matter, appellant urges that the judgment entry under appeal is
unclear as to whether the trial court’s legal basis for its decision was the complaint on
account, breach of contract, or unjust enrichment. Our review of the record reveals that
the September 11, 2017 judgment entry, approximately one and one-half pages in length,
contains eight specific factual findings, but is indeed limited as to conclusions of law.
However, absent a request in accordance with Civ.R. 52, a trial court need not issue
findings and conclusions. Law Office of Natalie F. Grubb v. Bolan, 11th Dist. Geauga No.
2010-G-2965, 2011-Ohio-4302, ¶ 24. Furthermore, where, as in the case sub judice, a
party fails to request findings of fact and conclusions of law, the reviewing court must
presume the trial court applied the law correctly. See Smith v. Smith, 5th Dist. Muskingum
No. CT2005-0040, 2006-Ohio-3251, ¶ 27.
{¶16} Appellant next directs us to the “American Rule” regarding attorney fees.
This rule provides that each party in a lawsuit ordinarily shall bear its own attorney fees
unless there is express statutory authorization to the contrary. See, e.g., TCF Natl. Bank
v. Brinkley, 5th Dist. Stark No. 2009 CA 00120, 2010-Ohio-1486, ¶ 7, citing Alyeska
Pipeline Service Co. v. Wilderness Society (1975), 421 U.S. 240, 95 S. Ct. 1612, 44
L. Ed. 2d 141. We recently summarized the rule as follows: “Parties are responsible for
their own attorney fees in a civil case. Exceptions to this rule include the existence of a
statute or enforceable contract specifically providing for the recovery of attorney fees or
Knox County, Case No. 17 CA 20 5
if the prevailing party can establish bad faith on the part of the losing party.” Fox v. City
of Pataskala, 5th Dist. Licking No. 17-CA-75, 2018-Ohio-1592, ¶ 32 (additional citations
omitted).
{¶17} In the case sub judice, we reiterate the language of Clause 15 of the
agreement:
{¶18} “If Attorney [Fine] must engage counsel or otherwise expend funds to collect
bills over sixty (60) days old, client agrees to reimburse Attorney for all associated fees
and costs, plus interest on the outstanding balance.”
{¶19} It is undisputed the trial court calculated the attorney fee amount based on
appellee’s outside counsel’s utilization of twenty percent of the judgment as his fee for
assisting appellee in collecting what was owed on the fee agreement between appellant
and appellee. The trial court determined that $5,970.50 was still owed for legal services
rendered by appellee, hence the calculation of $1,194.10 (or $5,970.50 x 20%). But
appellant charges that the clause in question creates a “one-sided obligation,” and she
presently asks, apparently with the American Rule in mind, *** how can we now throw a
20% collection contingency fee into the mix in the middle of trial and the [trial court]
actually award that contingency fee in its decision?” Appellant’s Brief at 10, 12. She relies
in part on Miller v. Kyle (1911), 85 Ohio St. 186, wherein the Ohio Supreme Court found
a stipulated attorney fee provision in a promissory note in a commercial setting contrary
to public policy and thus unenforceable because it promoted litigation and evaded usury
laws. Id.
{¶20} Nonetheless, we note Civ.R. 8(C) states in pertinent part: “In pleading to a
preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration
Knox County, Case No. 17 CA 20 6
and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress,
estoppel, failure of consideration, want of consideration for a negotiable instrument, fraud,
illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute
of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or
affirmative defense. ***.” Specifically, unconscionability is an affirmative defense to a
breach of contract claim. Am. Express Centurian Bank v. Banaie, 7th Dist. Mahoning No.
10 MA 9, 2010-Ohio-6503, ¶ 24, citing Deutsche Bank Natl. Trust Co. v. Pevarski, 4th
Dist. No. 08CA52, 2010–Ohio–785, ¶ 29. Under Civ.R. 8(C), a party must set forth the
listed affirmative defenses with specificity or else they are waived. Martin v. Morgan Cty.
Agricultural Soc., 5th Dist. No. 12 AP 0009, 2013-Ohio-3106, 995 N.E.2d 951, ¶ 17, citing
Taylor v. Meridia Huron Hospital of Cleveland Clinic Health System (2000), 142 Ohio
App.3d 155, 157, 754 N.E.2d 810,
{¶21} Upon review of the record, we find appellant’s pro se responses to
appellee’s complaint in the trial court do not clearly raise affirmative defenses in the nature
of a claim of illegality or unconscionability concerning the bill collection provision under
Clause 15, supra. Although appellant, in her reply brief, points out that her responses to
the complaint at minimum asserted that appellee took advantage of her lack of legal
knowledge and her physical, emotional, and financial state at the time, we find appellant’s
specific challenge to the trial court’s award of attorney fees of $1,194.10 to be waived in
the present appeal.
{¶22} Appellant's First Assignment of Error is therefore overruled.
Knox County, Case No. 17 CA 20 7
II.
{¶23} In her Second Assignment of Error, appellant contends the trial court erred
in granting judgment in favor of appellee for unpaid attorney fees of $5,970.50 under the
parties’ written agreement, despite the lack of an outside expert to testify as to the
reasonableness of the fees charged.
{¶24} Compensation for services rendered by an attorney is generally fixed by
contract prior to employment and the formation of the fiduciary relationship between
attorney and client. Climaco, Seminatore, Delligatti & Hollenbaugh v. Carter, 100 Ohio
App.3d 313, 323, 653 N.E.2d 1245, (10th Dist.1995), citing Jacobs v. Holston (1980), 70
Ohio App. 2d 55, 24 O.O.3d 72, 434 N.E.2d 738. After the fiduciary relationship is
established, the attorney has the burden of establishing the reasonableness and fairness
of fees. Id. Nonetheless, as an appellate court, we are not the trier of fact. Our role is to
determine whether there is relevant, competent, and credible evidence upon which the
fact-finder could base his or her judgment. Tennant v. Martin–Auer, 188 Ohio App. 3d 768,
2010-Ohio-3489, 936 N.E.2d 1013, ¶ 16, citing Cross Truck Equip. Co. v. Joseph A.
Jeffries Co., 5th Dist. Stark No. CA–5758, 1982 WL 2911.
{¶25} In the case sub judice, Attorney Fine herself testified that she practices
domestic relations law, probate law, and estate planning in Newark, Ohio. She has a
bachelor's degree, two master's degrees in education, and a juris doctor degree from
Pepperdine University. She spent approximately twenty years doing insurance defense
work in California, following which time she opened her own practice in that state, before
relocating to Newark. Tr. at 6.
Knox County, Case No. 17 CA 20 8
{¶26} On direct examination, Attorney Fine described the underlying family law
matter as “a very contentious grandparent visitation case.” Id. Furthermore, Attorney Fine
was asked, to a reasonable degree of certainty in the practice of law and based upon her
personal knowledge, whether the amount of $16,970.50 was a reasonable fee for her to
charge for her work in appellant’s child custody/visitation matter. She responded: “As
contentious as this case was, I would say that it was inexpensive for a contentious custody
battle that – and that my charge for my experience, I also undercharge for the normal rate
in my community.” Tr. at 14. Attorney Fine also responded, in regard to a question
regarding the amount of work she performed, that “[n]ot only was it necessary, but
[appellant] demanded it.” Id. She also testified that the amounts of time listed to perform
the work were reasonable. See Tr. at 15.
{¶27} “As a general rule, the reasonableness of the value of attorney fees
ordinarily must be proven by expert testimony and is not a proper matter for judicial
notice.” Frey v. Stegall, 4th Dist. Athens No. CA 1586, 1994 WL 170845. But this rule is
not ironclad; at least in some contexts, when the amount of time and work spent on the
case by the attorney is evident, an award of attorney fees, even in the absence of specific
evidence, is not an abuse of discretion. See Lough v. Lough, 5th Dist. Licking No.
03CA104, 2005-Ohio-79, ¶ 94, citing Babka v. Babka (1992), 83 Ohio App. 3d 428, 435,
615 N.E.2d 247. More importantly, however, where an appellant fails to object to the
testimony of a witness and/or her qualification as an expert, an appellate court may treat
those issues as waived. See AFK Bldg. Systems, LLC v. Cottrill, 5th Dist. Fairfield No.
02-CA-55, 2003-Ohio-1042, ¶ 10.
Knox County, Case No. 17 CA 20 9
{¶28} Our review of the trial transcript in the case sub judice indicates that while
appellant did object to some of appellee’s exhibits in the form of invoices and/or business
records (see Tr. at 22-24), she did not object to any of the aforesaid testimony of Attorney
Fine and did not ask her any questions on cross-examination at that time.
{¶29} Appellant's Second Assignment of Error is therefore overruled on grounds
of waiver.
{¶30} For the reasons stated in the foregoing opinion, the judgment of the Mt.
Vernon Municipal Court, Knox County, Ohio, is hereby affirmed.
By: Wise, John, P. J.
Delaney, J., and
Wise, Earle, J., concur.
JWW/d 0521