Van Dress Law Offices Co., L.L.C. v. Dawson

[Cite as Van Dress Law Offices Co., L.L.C. v. Dawson, 2017-Ohio-8062.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105189
VAN DRESS LAW OFFICES CO., L.L.C.
PLAINTIFF-APPELLEE
vs.
RUTHERFORD DAWSON, ET AL.
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Berea Municipal Court
Case No. 15-CVF-01687
BEFORE: E.A. Gallagher, P.J., McCormack, J., and Celebrezze, J.
RELEASED AND JOURNALIZED: October 5, 2017
ATTORNEY FOR APPELLANT
L. Bryan Carr
1392 SOM Center Road
Mayfield Heights, Ohio 44124
ATTORNEY FOR APPELLEE
Dean W. Van Dress
Van Dress Law Offices Co., L.L.C.
The Bank of Berea Building
46 Front Street
Berea, Ohio 44017
EILEEN A. GALLAGHER, P.J.:
{¶1} Defendant-appellant Rutherford Dawson1 appeals from the judgment of the
Berea Municipal Court awarding plaintiff-appellee Van Dress Law Offices Co., L.L.C.
(“Van Dress”) $12,325 in damages, plus interest and court costs, on its claim for breach
of contract. For the reasons that follow, we affirm the judgment of the trial court.
Factual Background and Procedural History
The Fee Agreement
{¶2} On December 6, 2013, Van Dress entered into an hourly rate agreement (the
“agreement”) with Rutherford Dawson, DCI United Properties, L.L.C. (“DCI”) and
Within Time, Inc. (“Within Time”) 2 (collectively, “the clients”). Pursuant to the
agreement, Van Dress agreed to represent the clients “in a civil matter, solely for pursuing
[a] claim for illegal taxation/fraudulent assessment of clients’ property located [at] 21201
Miles Road, North Randall, Ohio.” Under the terms of the agreement, Van Dress was to
receive $200 per hour and a $1,800 retainer. The agreement further provided in bold,
underlined type:
The client agrees to permit Attorney to withdraw as counsel should any of
the foregoing terms be breached by the client, including but not limited to
payment of attorney fees or expenses exceeding the initial retainer. The
retainer does not include payment of the court filing fee, which shall be
tendered prior to the filing of any complaint. The client acknowledges that
1
There are two different spellings of Dawson’s first name in the record — Ruthaford and
Rutherford. Likewise, there are two different spellings of one of his companies — Within Time,
Inc. and Withintime, Inc.
2
Dawson is the sole member or shareholder of both DCI and Within Time.
this case is extremely technical and may have significant opposition,
including but not limited to jurisdictional and issues of statute of limitations
but still decides to pursue said action. Attorney offers no promises
regarding the outcome of said case.
{¶3} The agreement provided that Van Dress would file a complaint by December
31, 2013, and that if the retainer was exhausted, Van Dress would “file for a continuance
for response to dispositive motion in order to give client time to get more money.” The
agreement also stated that “[c]lient further agrees to pay reasonable attorney fees, costs
and expenses to Attorney for enforcement or collection of this agreement, exclusive and
original jurisdiction thereof lies in the Berea Municipal Court.”
{¶4} Dawson executed the agreement for the clients as “Ruthaford Dawson for
Pres. DCI United Properties,” signing above a typed signature line that stated, “Client’s
Signature (individually and As authorized representative [sic].”
The Property Valuation Case
{¶5} On January 8, 2014, Attorney Van Dress filed a “Complaint and Petition for
Writ of Mandamus” on behalf of DCI and Within Time against the Cuyahoga County
Fiscal Officer, the Cuyahoga County Treasurer, the Village of North Randall, the
Warrensville Heights Board of Education and the Cuyahoga County Board of Revision in
the Cuyahoga County Court of Common Pleas (Case No. CV-14-819866) challenging the
valuation, for property tax purposes, of a department store building located at the former
Randall Park Mall for tax years 2009-2012 (the “property valuation case”). The
complaint asserted claims of illegal taxation and estoppel, sought a declaration that the
property tax levied against the property from 2009-2012 was illegal, sought to enjoin the
defendants from collecting the “illegal taxes” and sought a writ of mandamus compelling
the defendants to revalue the property. The claims survived a motion to dismiss but, on
August 6, 2015, the trial court granted the defendants’ motion for summary judgment on
the grounds that DCI and Within Time had failed to plead fraud with specificity as
required under Civ.R. 9(B), had failed to produce any evidence of fraud and had failed to
comply with the statutory requirements for filing a tax revision complaint. This court
affirmed that decision on appeal. See Withintime, Inc. v. Cuyahoga Cty Fiscal Officer,
8th Dist. Cuyahoga No. 103482, 2016-Ohio-2944.
The Fee Dispute
{¶6} On August 6, 2015, the trial court granted Van Dress’s motion to withdraw as
counsel in the property valuation case and Van Dress filed a complaint in the Berea
Municipal Court asserting claims of breach of contract and fraud against Dawson. Van
Dress alleged that Dawson had failed to pay $12,325 due under the agreement and had
fraudulently induced Van Dress to continue to perform legal services for Dawson by
making a $1,500 credit card payment and then challenging that payment four months
later. Van Dress sought judgment of $15,000 on his claims, “together with all relief
available in law or equity.” Van Dress attached a copy of the agreement to the
complaint along with an invoice dated August 4, 2015, listing a past due balance of
$12,325 for 82.5 hours of “legal time” at the rate of $200 per hour and $125 in expenses
— less $4,300 in payments received. The invoice included a narrative description of the
work performed from December 6, 2013 as follows:
December 6, 2013 to present: Research case law and background facts of
case. Dialogue with client. Serve notice of intent to sue. Draft and file
complaint. Attend hearings. Correspond with opposing counsel. Draft
and serve first request for admissions, for interrogatories and for production
of documents. Receive and reply to written discovery. Attend and
defend deposition of client. R&R motion to dismiss from school board
and motion to dismiss from county defendants. Research issues, draft, and
file opposition brief to motions to dismiss. Conduct independent research
of convictions of major players in federal court: [F]rank [R]usso, [S]andy
[K]limkowski, Louis Damiani, etc. Attend settlement conferences and
other hearings. R&R Defendants’ Motions for Summary Judgment.
Research issues, draft, and file Plaintiffs’ collective opposition brief to
Defendants’ Motion for Summary Judgment. Attend Court hearings.
{¶7} On September 18, 2016, Dawson filed, pro se, a motion to dismiss and an
answer. Dawson argued that because he was a California resident, the case should be
dismissed because it was not filed in the “correct venue” under “Civil [R]ule 12(B)(1).”
Dawson also contended that he was not a party to the contract with Van Dress and,
therefore, was not responsible for Van Dress’s legal fees, that the $1500 credit card
charge was reversed after Van Dress failed to perform legal services as agreed and that
Van Dress had breached its contract with DCI by filing a motion to withdraw as counsel.
The trial court denied Dawson’s motion to dismiss.
{¶8} On November 20, 2015, Van Dress filed a motion for summary judgment
asserting that there was no genuine issue of material fact that the parties had an
enforceable contract and that Dawson had failed to pay $12,325 in attorney fees and
expenses due under the agreement. Van Dress also claimed that it was entitled to an
additional $1,769 in attorney fees, costs and expenses incurred in enforcing the
agreement. Dawson retained counsel and the trial court granted him leave to file an
amended answer. In his amended answer, Dawson denied all of the allegations of the
complaint and asserted a laundry list of “affirmative defenses,” including that the contract
was void and unenforceable and that plaintiff’s claims were barred (1) because Dawson
was not a party to the contract, (2) “due to the defective fee bill [Van Dress] produced”
and (3) due to its own breach of contract and failure to provide “proper legal services.”
Dawson opposed Van Dress’ motion for summary judgment, arguing that he signed the
agreement only in his capacity as president of DCI and was, therefore, not personally
liable under the agreement. He also asserted that Van Dress was not entitled to the fees
claimed because Van Dress failed to properly prosecute the property valuation case.
{¶9} The trial court denied the motion for summary judgment and, on July 20,
2016, the case proceeded to trial before a magistrate.
{¶10} After hearing the evidence and the arguments of counsel, the magistrate
found for Van Dress and recommended that judgment be entered in favor of Van Dress
for $12,325 plus 3% interest from July 20, 2016. Dawson filed a request for findings of
fact and conclusions of law pursuant to Civ.R. 52. On August 10, 2016, the magistrate
issued findings of fact and conclusions of law supporting his decision as follows:
The following are the facts as determined by this Court.
The Plaintiff is a sole member limited liability Company. The only
member of said entity is an attorney, to wit: Dean Van Dress, who is
licensed to practice law in the State of Ohio. Said attorney has good
reputation in the legal community and is known by this Court as qualified,
experienced attorney.
Defendant, Rutherford Dawson is an individual who has total ownership in
the following entities, DCI United Properties, LLC and Within Time, Inc.
Said individual entities own real estate in Cuyahoga County, Ohio.
Undisputed evidence was presented to the Court, through testimony of both
Dean Van Dress and Rutherford Dawson, as well as numerous exhibits,
which indicated the following:
1) Van Dress Law Office, Co., LLC and Rutherford Dawson, DCI
United Properties, LLC and Within Time, Inc. entered into an
“Hourly Rate Agreement” on December 13, 2013, in Berea, Ohio,
which provided that the Van Dress Law Office, Co., LLC. would
provide legal services, at Two Hundred Dollars ($200.00) per hour to
Rutherford Dawson, DCI United Properties, LLC and Within Time,
Inc. for a representation in a civil litigation in Cuyahoga County,
Ohio, for matter which was “ * * * extremely technical and may have
significant opposition, including but not limited to jurisdictional and
issues of statute of limitations * * * attorney offers no promises
regarding the outcome of said case.” Rutherford Dawson executed
said contract personally, and also on behalf of the noted entities.
See, Exhibit “A.”
2) Attorney, Dean Van Dress, on behalf of the Plaintiff did file
lawsuit in said matter in the Cuyahoga Common Pleas Court. The
entire matter took approximately two (2) years. During said time,
Attorney, Van Dress, did hours of research, opposed several motions,
attended at least one extensive deposition, participated in
voluminous paper discovery, attended multiple pre-trials and entered
into numerous settlement negotiations.
3) Attempts at settlements were made; however, defendant(s) refused
all settlement offers. See, Exhibit “K.”
4) Plaintiff did send several bills to the Defendants and payments
were in fact made by Defendant, Rutherford Dawson.
5) Defendant, Rutherford Dawson, put on virtually no defense to the
case, other than testifying that he did have discussions with attorney
Van Dress about his bills, did make payments on said bills in the
amount of $4,300.00 but believed that attorney Van Dress’s time was
inflated on his billing.
6) The Court did take notice that Rutherford Dawson, in his initial
answer submitted, admitted that Defendant, DCI United Properties,
LLC does own [sic] plaintiff the sum of $12,325.00.
Based on the above noted Findings of Facts, the Court makes the following
Conclusions of Law:3
1) A contract was entered into by the parties;
2) Plaintiff did excessive legal work pursuant to the contract;
3) The value of said legal work and costs expended were $16,625.00,
which Defendant was billed for;
4) The Defendant paid the sum of $4,300.00 on said billing; and
5) Thus, Defendant owes Plaintiff the sum of $12,325.00 for which
judgement was/is rendered.
{¶11} On August 24, 2016, Dawson filed preliminary objections to the
magistrate’s decision, asserting that the magistrate’s decision was not supported by the
evidence. Dawson argued that the trial court should reject the magistrate’s decision
because Van Dress had failed to establish that its fees were reasonable or necessary and
had failed to introduce any expert testimony supporting its claim. He further argued that
Van Dress should be precluded from collecting its fees because it never submitted an
itemized billing statement and that Dawson should not be held individually liable on the
fee agreement because he did not sign the agreement in his individual capacity. Dawson
also challenged the magistrate’s findings regarding the value of Van Dress’s services, that
Van Dress had a good reputation in the legal community, that Dawson “put on virtually
3
Although denoted “Conclusions of Law,” we note that many of these findings are actually
findings of fact.
no defense” and that Dawson “admitted” in his initial answer that DCI owed Van Dress
$12,325. Dawson requested an extension of time to file supplemental objections once
the trial transcript was prepared and filed with the court.
{¶12} On August 31, 2016, the trial court granted Dawson’s motion for extension
of time and indicated that it would withhold ruling on Dawson’s preliminary objections
pending supplementation. Van Dress filed a response to Dawson’s objections and an
“opposition to any further delay.” On September 22, 2016, the trial court set a deadline
of October 5, 2016, for Dawson to supplement his objections. Dawson did not file any
supplemental objections. Although the trial exhibits were filed,4 the trial transcript was
not filed with the trial court.
{¶13} On October 18, 2016, the trial court overruled Dawson’s objections,
approved and confirmed the magistrate’s decision and entered judgment for Van Dress in
the amount of $12,325 plus 3% interest from July 20, 2016, and court costs.
{¶14} Dawson appealed the trial court’s judgment, raising the following two
assignments of error for review:
4
The trial exhibits consisted of copies of: the agreement; email exchanges
between Van Dress and Dawson regarding the status of, and developments in, the
property valuation case, the need for funds to prosecute the property valuation case
and settlement negotiations; the August 4, 2015 invoice, a January 2015 and an April 20, 2015
invoice; an invoice dated July 20, 2016 reflecting a balance due of $4,148 for legal fees and expenses
incurred in enforcing the agreement; the complaint, plaintiffs’ combined opposition to
defendants’ motions for summary judgment and the journal entry granting
defendants’ motions for summary judgment in the property valuation case; the
docket from the property valuation case and this court’s decision in Withintime,
Inc., 8th Dist. Cuyahoga No. 103482, 2016-Ohio-2944.
Assignment of Error I:
The trial court erred in finding that a contract existed between the appellee
and appellant.
Assignment of Error II:
The trial court erred in awarding appellee $12,325.00 in attorney fees; the
appellee’s narrative invoices are vague and inappropriate; the fees requested
(and awarded) are unreasonable.
Law and Analysis
Standard of Review
{¶15} We review a trial court’s adoption of a magistrate’s decision under an
abuse of discretion standard. Agnew v. Muhammad, 8th Dist. Cuyahoga No. 100599,
2014-Ohio-3419, ¶ 15, citing Butcher v. Butcher, 8th Dist. Cuyahoga No. 95758,
2011-Ohio-2550, ¶ 7. Under an abuse of discretion standard, the trial court’s decision
will be reversed only if it is unreasonable, arbitrary or unconscionable. Blakemore v.
Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983).
Independent Review
{¶16} As an initial matter, Dawson argues that the trial court’s judgment should
be reversed because the trial court failed to conduct a “thorough independent review” of
the facts and conclusions set forth in the magistrate’s decision.
{¶17} When ruling on objections to a magistrate’s decision, Civ.R. 53 requires the
trial court to “undertake an independent review as to the objected matters to ascertain that
the magistrate has properly determined the factual issues and appropriately applied the
law.” Civ.R. 53(D)(4)(d). An appellate court “‘must presume that a trial court has
performed an independent review of the magistrate’s recommendations unless the
appellant affirmatively demonstrates the contrary.’” Walpole v. Walpole, 8th Dist.
Cuyahoga No. 102409, 2015-Ohio-3238, ¶ 63, quoting Barrientos v. Barrientos, 196
Ohio App. 3d 570, 2011-Ohio-5734, 964 N.E.2d 492, ¶ 5 (3d Dist.). Simply because a
trial court adopted the magistrate’s decision does not mean that it did not exercise its
independent judgment. See, e.g., Millers v. Kasnett, 2015-Ohio-298, 26 N.E.3d 915, ¶
20 (8th Dist.), citing Brzozowski v. Brzozowski, 8th Dist. Cuyahoga No. 101013,
2014-Ohio-4820, ¶ 7.
{¶18} Dawson asserts that there was “no thorough independent review” of his
objections to the magistrate’s decision because the trial court “failed to advise” why it
awarded $12,325 attorney fees to Van Dress. However, the fact that a trial court
overrules a party’s objections to a magistrate’s decision and adopts that decision without a
detailed explanation “does not show lack of an independent review of the matters to
which proper objections were raised.” Millers at ¶ 21. “‘[T]he trial court is not required
to “comment or reference” any portion of the record in undertaking its independent
review of the record.’” Id., quoting Ernsberger v. Ernsberger, 8th Dist. Cuyahoga No.
100675, 2014-Ohio-4470, ¶ 21.
{¶19} Here, the trial court stated in its October 18, 2016 judgment entry that it
“independently reviewed the Report and Recommendation of the magistrate” and that
“[p]laintiff substantiated his claim.” Dawson has pointed to nothing in the record
indicating that the trial court failed to conduct an independent review of the magistrate’s
decision. Accordingly, we find no merit to Dawson’s argument that the trial court
failed to independently review the magistrate’s decision.
{¶20} Furthermore, we note that Dawson did not file a transcript or affidavit with
his objections to the magistrate’s decision. Under Civ.R. 53, any “objection to a factual
finding, whether or not specifically designated as a finding of fact under Civ.R.
53(D)(3)(a)(ii), shall be supported by a transcript of all the evidence submitted to the
magistrate relevant to that finding or an affidavit of that evidence if a transcript is not
available.” Civ.R. 53(D)(3)(b)(iii). In this case, although the trial court granted
Dawson leave to file supplemental objections once the transcript was prepared, Dawson
never did so. The record reflects that Dawson filed the transcript only after the case was
on appeal. “It is well established that if the objecting party fails to file a proper transcript
of all relevant testimony with his or her objections, a trial court’s review is necessarily
limited to the magistrate’s conclusions of law.” Vannucci v. Schneider, 8th Dist.
Cuyahoga No. 104598, 2017-Ohio-192, ¶ 17; see also James v. My Cute Car, L.L.C., 10th
Dist. Franklin No. 16AP-603, 2017-Ohio-1291, ¶ 15 (“‘In the absence of both a transcript
and an affidavit, the trial court must accept the magistrate’s findings of fact and may only
examine the legal conclusions drawn from those facts.’”), quoting Ramsey v. Ramsey,
10th Dist. Franklin No. 13AP-840, 2014-Ohio-1921, ¶ 16-18.
{¶21} Likewise, the failure to file a transcript or affidavit under Civ.R.
53(D)(3)(b)(iii) waives all factual challenges to the magistrate’s decision on appeal. See,
e.g., In re A.L., 8th Dist. Cuyahoga No. 99040, 2013-Ohio-5120, ¶ 11; Scott v. Nameth,
10th Dist. Franklin No. 16AP-64, 2016-Ohio-5532, ¶ 23; see also Gill v. Grafton Corr.
Inst., 10th Dist. Franklin No. 09AP-1019, 2010-Ohio-2977, ¶ 14 (“where a party files
objections to a magistrate’s decision in the trial court, but does not support those
objections with a transcript or affidavit, that party is precluded from arguing on appeal
that the trial court erred in its factual determinations”). Because the trial court did not
have the transcript before it when it made its decision, we cannot consider the transcript
on appeal. See, e.g., Vannucci at ¶ 18; In re A.L., at ¶ 12. “[A]n appellate court is
precluded from considering a transcript of proceedings submitted in conjunction with the
appellate record when said transcript was not made a part of the proceedings before the
trial court.” Wells Fargo Bank v. Rennert, 8th Dist. Cuyahoga No. 101454,
2014-Ohio-5292, ¶ 14-15; see also Ortega v. Ortega, 5th Dist. Fairfield No. 15-CA-8,
2017-Ohio-7346, ¶ 10 (“‘When a party objecting to a magistrate’s decision has failed to
provide the trial court with the evidence and documents by which the trial court could
make a finding independent of the report, the appellate court is precluded from
considering the transcript of the hearing submitted with the appellate record.’”), quoting
Oyler v. Oyler, 5th Dist. Stark No. 2014CA00015, 2014-Ohio-3468, ¶ 27. As the Ohio
Supreme Court has stated:
If a party fails to follow the procedures set forth in Civ.R. 53(D)(3)(b)(iii)
for objecting to a magistrate’s findings by providing a transcript to the trial
court when filing objections, that party waives any appeal as to those
findings other than claims of plain error. Civ.R. 53(D)(3)(b)(iv). * * * In
plain terms, the court of appeals cannot consider evidence that the trial
court did not have when it made its decision. Herbert v. Herbert, 12th Dist.
Butler No. CA2011-07-132, 2012-Ohio-2147, ¶ 13-15.5
State ex rel. Pallone v. Ohio Court of Claims, 143 Ohio St. 3d 493, 2015-Ohio-2003, 39
N.E.3d 1220, ¶ 11; see also State ex rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio
St.3d 728, 730, 654 N.E.2d 1254 (1995) (“When a party objecting to a referee’s report
has failed to provide the trial court with the evidence and documents by which the court
could make a finding independent of the report, appellate review of the court’s findings is
limited to whether the trial court abused its discretion in adopting the referee’s report, and
the appellate court is precluded from considering the transcript of the hearing submitted
with the appellate record. * * * In other words, an appeal under these circumstances can
be reviewed by the appellate court to determine whether the trial court’s application of the
law to its factual findings constituted an abuse of discretion.”); App.R. 9(C)(2) (“If any
part of the error assigned on appeal relates to a factual finding, the record on appeal shall
include a transcript or affidavit previously filed with the trial court as set forth in Civ.R.
53(D)(3)(b)(iii) * * *.”). Thus, our review is limited to determining whether the trial
court abused its discretion in adopting the magistrate’s decision with regard to
conclusions of law. Wells Fargo Bank at ¶ 15.
Existence of a Contract Between Van Dress and Dawson
{¶22} In his first assignment of error, Dawson contends that the trial court’s
judgment should be reversed because its finding that a contract existed between Dawson
There has been no claim of plain error in this case.
5
and Van Dress was “clearly erroneous.” He contends that he “never signed [the
agreement] personally” and only signed the agreement in his capacity as president for
DCI. In support of his argument, Dawson cites to the agreement and various pages of
the trial transcript.
{¶23} As indicated above, we cannot consider the trial transcript or any factual
issues allegedly raised by the testimony presented at trial because the trial court did not
have the transcript before it when it made its decision.
{¶24} Even if we could properly consider the issue, the agreement supports the
trial court’s conclusion that Dawson signed the agreement both as president of DCI and
individually. Whether a corporate officer is personally liable on a contract “‘depends
upon the form of the promise and the form of the signature.’” R.C.H. Co. v. Classic Car
Auto Body & Frame, Inc., 8th Dist. Cuyahoga No. 83697, 2004-Ohio-6852, ¶ 13, quoting
Spicer v. James, 21 Ohio App. 3d 222, 223, 487 N.E.2d 353 (2d Dist.1985). If a contract
is ambiguous as to whether a person signed a contract in an individual or corporate
capacity, it is an issue of fact for the trier of fact. J.D.S. Props. v. Walsh, 8th Dist.
Cuyahoga No. 91733, 2009-Ohio-367, ¶ 19.
{¶25} Dawson cites Marhofer v. Baur, 101 Ohio App. 3d 194, 655 N.E.2d 248 (9th
Dist.1995), to support his position that Dawson is not personally liable for the attorney
fees awarded against him. In this case, Dawson is the signatory on the contract. He
signed on the signature line as “Ruthaford Dawson for Pres. DCI United Properties” and
said signature line was above the printed words “Client’s Signature (individually and As
authorized representative [sic].” The preamble of the contract reflects that the agreement
was entered into “by and between Van Dress Law Offices Co[.] LLC, Attorney, 46 Front
Street, Berea, Ohio 44017 and DCI United Properties LLC, Within Time Inc. and
Ruthaford Dawson residing at 2443 E. 67th 44104, in the City of Cleveland, State of Ohio
(hereinafter “client”).” (Emphasis added.)
{¶26} In Marhofer, the contract at issue was entered into by John A. Marhofer
d.b.a. Automotive Business Associates, Courtesy Pontiac Olds Inc. and “Daniel E. Baur,
its Pres; collectively, jointly and severally, SELLER.” Id. at 197. Baur’s signature
appeared at the end of the agreement directly below the typed words “Courtesy Pontiac
Olds, Inc.” Id. at 196. The typed word “By,” followed by a colon, immediately
proceeded his signature, and his signature was followed by the designation “Pres.” Id.
{¶27} In Marhofer, there was no argument that Baur had signed the agreement in
his personal capacity; rather, the appellant argued that an individual who signs a contract
only in his corporate capacity could be held personally liable based upon the “form of the
promise.” Id. at 197. Applying Spicer, 21 Ohio App. 3d 222, 487 N.E.2d 353, the court
held that “the form of the signature controls over the form of the promise when there is a
discrepancy between the two.” Marhofer at 197-198.
{¶28} In this case, there is no such discrepancy. In this case, both the “form of
the promise” and the “form of Dawson’s signature” supports the trial court’s conclusion
that he was individually liable under the agreement. Although Dawson contends that
what was printed below his signature is “irrelevant,” we disagree. The “form of the
signature” includes both the typed text underlying the signature and the signature itself.
See Marhofer at 197.
{¶29} The contractual terms identify two entities and Dawson as the parties who
contracted with Van Dress. In addition, Dawson’s signature identified himself both as
the authorized representative of the previously identified entity and as signing
“individually.” Dawson did not strike out the word “individually” when signing the
agreement. Dawson did not sign the agreement only as president of DCI and therefore,
he was not entitled to judgment as a matter of law. See R.C.H., 2004-Ohio-6852, at ¶ 13
(where “the clear intent” of the agreement was that individual was a party to the contract
and would be individually liable, individual could not “defeat this obvious intent” by
writing the word “president” above his signature on the line marked with his name
individually).
{¶30} Accordingly, based on the record before us, we find no abuse of discretion
in the trial court’s adoption of the magistrate’s decision that Dawson executed the
agreement “personally” and was individually liable for any amounts due under the
agreement. Dawson’s first assignment of error is overruled.
Reasonableness of Fees Billed
{¶31} In his second assignment of error, Dawson contends that the trial court
abused its discretion in adopting the magistrate’s decision to award Van Dress $12,325 in
attorney fees because Van Dress provided only “narrative invoices,” failed to establish
that the amounts billed were reasonable and necessary and failed to present expert
testimony regarding its fees.
{¶32} Where an attorney brings an action to recover attorney fees, the attorney
has the burden of proving (1) that “‘the time was fairly and properly used’” and (2) “‘the
reasonableness of [the] work hours devoted to the case.’” Koblentz & Koblentz v.
Ferrante, 8th Dist. Cuyahoga No. 86969, 2006-Ohio-1740, ¶ 24, quoting Climaco,
Seminatore, Delligatti & Hollenbaugh v. Carter, 100 Ohio App. 3d 313, 653 N.E.2d 1245
(10th Dist.1995); see also Reminger & Reminger Co., L.P.A. v. Fred Siegel Co., L.P.A.,
8th Dist Cuyahoga No. 77712, 2001 Ohio App. LEXIS 760, 16 (Mar. 1, 2001) (“‘where a
fee agreement exists, that contains the hourly rate as well as a retainer fee, the attorney
seeking to recover fees must also demonstrate that the time spent was fairly and properly
used, and that the work hours devoted to the case were reasonable’”), quoting Thompson,
Hine & Flory v. Pingue Properties, Inc., 10th Dist. Franklin No. 95APE 07-881, 1996
Ohio App. LEXIS 1346, 4 (Mar. 29, 1996). “‘[A]ttorney fees are not justified merely
because the lawyer has charged his professional time and expenses at reasonable rates; a
legitimate purpose must also explain why the lawyer spent that time and incurred those
costs.’” Lillie & Holderman v. Dimora, 8th Dist. Cuyahoga No. 99271, 2013-Ohio-3431,
¶ 12, quoting Disciplinary Counsel v. Johnson, 113 Ohio St. 3d 344, 2007-Ohio-2074, 865
N.E.2d 873, ¶ 71.
{¶33} Dawson asserts that because Van Dress failed to submit itemized billing
statements, it “simply cannot collect fees” and that “[c]ourts demand attorneys provide
itemized billing statements when determining the reasonableness and necessity of fees.”
Even assuming Van Dress failed to submit itemized billing statements, the cases Dawson
cites for these propositions do not support them. In Breen v. Total Quality Logistics,
10th Dist. Franklin No. 16AP-3, 2017-Ohio-439, the court held that the submission of
itemized statements together with the attorney’s own testimony was “sufficient evidence”
from which the trial court could find that his fees were reasonable and that expert
testimony was not required. Id. at ¶ 25. It did not address an attorney’s failure to
provide itemized billing statements. In Hrenya v. Loch, 8th Dist. Cuyahoga No. 84099,
2004-Ohio-5032, the appellant argued that trial court’s attorney fee award was not
supported by the evidence. Although the trial court noted that the attorney “did not
provide an itemized account of his time,” it found that appellant had waived the issue
because he did not question the reasonableness of the attorney’s time or his hourly rate
during cross-examination at the damages hearing. Id. at ¶ 10. Disciplinary Counsel v.
Smith, 143 Ohio St. 3d 325, 2015-Ohio-1304, 37 N.E.3d 1192, involved a disciplinary
proceeding in which the respondent was charged with multiple violations of the
disciplinary rules arising out of his alleged unethical billing practices, i.e., billing for
work performed by another attorney, billing time in excess of the time actually spent on a
particular task, billing for work that was never performed by anyone and billing time to
multiple cases and clients for identical services and time on the same day. Id. at ¶ 1-2.
The respondent alleged that his clients “had requested and approved generic billing
narratives” and that “his billing methods were consistent with the billing instructions he
had received from his clients.” Id. at ¶ 3, 9. Based on the respondent’s defense, the
court remanded the case for further discovery and hearing regarding the content of online
databases that “in all probability would serve to either confirm or discredit [the
respondent’s] claims.” Id. at ¶ 14. Cincinnati Bar Assn. v. Selnick, 94 Ohio St. 3d 1,
759 N.E.2d 764 (2001), involved a disciplinary action in which the parties stipulated to
numerous disciplinary rule violations arising out of, among other things, the respondent’s
failure to provide itemized bills or accountings and failure to refund the unused portion of
clients’ retainers after the clients terminated the representation. Id. at 2-3.
{¶34} Dawson also claims that, because there is a dispute between the parties as to
the amount of fees billed, Van Dress was required to support its claim for attorney fees
with independent expert testimony. However, where “the client did not make any
attempt to contact the attorney during the tenure of the attorney-client relationship to
express dissatisfaction with the legal services rendered or the amount being charged for
those services, and the attorney kept the client apprised of the status of the client’s legal
matter,” this court has held that no expert testimony is required and that “the attorney can
testify to the reasonableness of his own fees.” See, e.g., Koblentz & Koblentz v.
Summers, 8th Dist. Cuyahoga No. 94806, 2011-Ohio-1064, ¶ 13; see also Lillie &
Holderman at ¶ 12; Reminger at 21-22.
{¶35} There is nothing in the record before the trial court that would indicate that
Dawson ever expressed dissatisfaction with the fees charged during the tenure of their
attorney-client relationship. Nor is there any indication that Van Dress was not keeping
Dawson apprised of the status of the case. To the contrary, the email exchanges between
Dawson and Van Dress that were included in the trial exhibits express Dawson’s
satisfaction with the work Van Dress was doing and show that Van Dress was updating
Dawson regarding the status of the case.
{¶36} With respect to Dawson’s claim that Van Dress otherwise failed to present
sufficient evidence establishing that the fees it billed were reasonable and necessary,
resolution of Dawson’s objections would necessarily involve a factual analysis of the
evidence presented before the magistrate. Based on the evidence presented, the
magistrate concluded that the value of the work performed and related expenses was
$16,625 and that after subtracting Dawson’s $4,300 in payments, Dawson owed $12,325.
Given his failure to file the transcript, the objections Dawson raised with the trial court
regarding the magistrate’s findings were unsupported.
{¶37} Accordingly, the trial court did not abuse its discretion in overruling
Dawson’s objections and adopting the magistrate’s decision with respect to the amount of
attorney fees due Van Dress. We overrule Dawson’s second assignment of error.
{¶38} Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Berea Municipal Court to carry
this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
________________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE
TIM McCORMACK, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR