Green & Green, Lawyers v. Trimbach

[Cite as Green & Green, Lawyers v. Trimbach, 2018-Ohio-194.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
GREEN & GREEN, LAWYERS :
:
Plaintiffs-Appellees : Appellate Case No. 27550
:
v. : Trial Court Case No. 16-CV-3969
:
RODNEY TRIMBACH, et al. : (Civil Appeal from
: Common Pleas Court)
Defendants-Appellants :
:
...........
OPINION
Rendered on the 19th day of January, 2018.
...........
FREDRIC L. YOUNG, Atty. Reg. No. 0059544 and JONATHAN F. HUNG, Atty. Reg. No.
0082434, 800 Performance Place, 109 N. Main Street, Dayton, Ohio 45402
Attorney for Plaintiffs-Appellees
DWIGHT D. BRANNON, Atty. Reg. No. 0021657 and MATTHEW C. SCHULTZ, Atty.
Reg. No. 0080142, 130 W. Second Street, Suite 900, Dayton, Ohio 45402
Attorney for Defendants-Appellants
.............
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FROELICH, J.
{¶ 1} Rodney and Lisa Trimbach and Performance Site Development, LLC,
(“PSD”) appeal from a judgment of the Montgomery County Court of Common Pleas,
which granted summary judgment to the law firm of Green & Green on its claims for
collection on account and unjust enrichment. For the following reasons, the judgment of
the trial court will be affirmed.
Facts and Procedural History
{¶ 2} On August 1, 2016, “Green & Green, Lawyers” filed a complaint for
collection on accounts and unjust enrichment against Mr. and Mrs. Trimbach and PSD,
an Ohio limited liability company of which Mr. Trimbach is the sole and managing
member.
{¶ 3} According to the engagement letter, which was attached to the complaint,
Green & Green was hired to represent the Trimbachs and PSD in a pending foreclosure
action against the Trimbachs’ residence and in a malpractice action.1 Pursuant to an
email sent from Green & Green attorney Jonathan Hung to Mr. Trimbach a few days later,
which was also attached to the complaint, Mr. Trimbach started a “third account” with
Green & Green after some discussions with the attorneys; the third account was for
dissolution of M&R, LLC, in which Mr. Trimbach had a 50% interest.2 Several billing
1 The engagement letter is heavily redacted. There are references in the record
suggesting that the malpractice action involved an attorney who had represented the
Trimbachs in the past, but no specific information about this matter was presented, and
there was no claim in this lawsuit for any fees related to the malpractice representation.
2
The exact nature of the relationship between PSD and M&R is unclear from the record,
but ownership interests and/or clients appear to have overlapped, because the parties’
emails indicate that the dissolution of M&R affected PSD.
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statements for the account numbers associated with the two matters (the foreclosure and
dissolution of M&R) were also attached to the complaint.
{¶ 4} The Trimbachs filed pro se motions to dismiss the complaint against them,
and Mr. Trimbach filed a motion to dismiss on behalf of PSD. The motions to dismiss
alleged that the proper parties had not been named in Green & Green’s complaint and
that some of the bills presented were for matters about which the firm had “not provided
a signed contract for any such legal services.” Green & Green opposed the motions to
dismiss.
{¶ 5} On October 13, 2016, the trial court granted the motion to dismiss Mrs.
Trimbach from the claim for legal services provided to M&R, on the basis that she was
not a member of M&R, and the complaint alleged only that Mr. Trimbach had hired the
firm to provide services dissolving M&R (and protecting PSD’s interests) and owed money
to the firm on behalf of M&R. The court did not dismiss the claims against Mrs.
Trimbach with respect to fees incurred in the foreclosure action. Mr. Trimbach’s motion
to dismiss was overruled in its entirety, and his motion on behalf on PSD was stricken
because, as a non-attorney, he was not permitted to file a pleading on behalf of a
corporation or similar entity.
{¶ 6} After the motions to dismiss were resolved, neither the Trimbachs nor PSD
filed an answer to Green & Green’s complaint.
{¶ 7} On January 18, 2017, Green & Green filed a Motion for Default Judgment
and Summary Judgment against the Trimbachs and PSD for the fees owed in the
foreclosure and M&R dissolution (accounts 27893 and 27894, respectively). The firm
sought default judgment on the question of the Trimbachs’ and PSD’s liability, because
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they had not filed answers, and the firm sought summary judgment on the amount of
damages, asserting that there was no genuine issue of material fact as to the amount
owed or the reasonableness of its fees. The Trimbachs and PSD opposed the motion
for default and summary judgment.
{¶ 8} On March 17, 2017, the trial court granted in part and denied in part Green
& Green’s motion for default judgment and summary judgment. The trial court denied
the motion for default judgment, noting that Green & Green had conceded that default
judgment “may not be warranted,” and finding that, although no answers were filed, the
Trimbachs’ motions to dismiss constituted an effort, under Civ.R. 55(A), to “otherwise
defend” against Green & Green’s claim. The trial court granted Green & Green’s motion
for summary judgment on the Trimbachs’ and PSD’s liability for payment of its fees and
on the reasonableness of the fees.
{¶ 9} The Trimbachs and PSD appeal, raising one assignment of error. They
challenge the trial court’s decision granting summary judgment to Green & Green for the
fees owed on their accounts. Specifically, they challenge whether any fees were owed
by PSD and whether sufficient evidence was presented to establish the reasonableness
of all the claimed fees. No issues are raised on appeal regarding the trial court’s rulings
on the motions to dismiss.
Summary Judgment Standard
{¶ 10} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is
no genuine issue as to any material fact, (2) the moving party is entitled to judgment as a
matter of law, and (3) reasonable minds, after construing the evidence most strongly in
favor of the nonmoving party, can only conclude adversely to that party. Zivich v. Mentor
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Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving
party carries the initial burden of affirmatively demonstrating that no genuine issue of
material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526
N.E.2d 798 (1988). To this end, the movant must be able to point to evidentiary materials
of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary
judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996).
{¶ 11} Once the moving party satisfies its burden, the nonmoving party may not
rest upon the mere allegations or denials of the party’s pleadings. Dresher at 293; Civ.R.
56(E). Rather, the burden then shifts to the nonmoving party to respond, with affidavits
or as otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is
a genuine issue of material fact for trial. Id. Throughout, the evidence must be
construed in favor of the nonmoving party. Id.{¶ 12} We review the trial court’s ruling on a motion for summary judgment de
novo. Schroeder v. Henness, 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, ¶ 42.
De novo review means that this court uses the same standard that the trial court should
have used, and we examine the evidence, without deference to the trial court, to
determine whether, as a matter of law, no genuine issues exist for trial. Ward v. Bond, 2d
Dist. Champaign No. 2015-CA-2, 2015-Ohio-4297, ¶ 8.
Evidence Regarding Attorney Fees and Reasonableness
{¶ 13} Factors to be considered in determining the reasonableness of legal fees
include, inter alia, (1) time and labor, novelty of issues raised, and necessary skill to
pursue the course of action; (2) customary fees in the locality for similar legal services;
(3) the result obtained; and (4) the experience, reputation, and ability of counsel. Baker &
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Hostetler, L.L.P. v. Delay, 10th Dist. Franklin No. 08AP-1007, 2009-Ohio-2507, ¶ 29,
citing Brannon & Assoc. v. Barnard, 2d Dist. Montgomery No. 16693, 1997 WL 797712(Dec. 31, 1997).
{¶ 14} An independent expert is not always required to establish the
reasonableness of claimed attorney fees. Barnard at * 3, citing Joseph G. Stafford &
Assoc. v. Skinner, 8th Dist. Cuyahoga No. 68597, 1996 WL 631112 (Oct. 31, 1996).
Testimony of the attorney seeking recovery of fees that the case involved complex issues,
that the fees were within a reasonable range for that type of case, and that the client
never questioned billing statements sent to the client constitutes sufficient evidence to
establish the reasonableness of the charged fees, thereby negating the need for
independent expert testimony. Baker & Hostetler at ¶ 30, citing Thomas & Boles v.
Burns, 8th Dist. Cuyahoga No. 64995, 1994 WL 110950 (Mar. 31, 1994). This is
especially true where there is no documentary evidence from the client indicating a
dispute concerning the attorney’s fees as excessive or unreasonable during the attorney-
client relationship; under such circumstances, the court may reasonably discount
allegations by the client that he or she expressed dissatisfaction about the fees before
the attorney-client relationship ended, and independent expert testimony from another
attorney is not required to establish the reasonableness of the fees. Reminger &
Reminger Co., L.P.A. v. Fred Siegel Co., L.P.A., 8th Dist. Cuyahoga No. 77712, 2001 WL
210024, * 8 (March 1, 2001); Barnard at * 3, citing Stafford & Assoc., supra.
{¶ 15} In support of its motion for summary judgment on the Trimbachs’ and PSD’s
liability for its fees and the reasonableness of its fees, Green & Green relied on the
affidavit of Jonathan Hung, lead counsel in the foreclosure action and the dissolution of
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M&R. Hung’s affidavit addressed the circumstances and terms under which the firm had
agreed to represent the Trimbachs and PSD; redacted copies of the engagement letters
and related emails were attached. The affidavit further stated that the firm had provided
legal services as requested.
{¶ 16} Hung also averred that his practice included “debt collection and
foreclosure defense, as well as business governance and litigation” and that he had
experience with the judicial sale of property and receiverships. He stated that he had
reviewed all the charges and the case file in this case, and that all charges on the
accounts were “accurate, reasonable, and in accordance with directions [he] received
from the Trimbachs during the course of representation.”
{¶ 17} Hung’s affidavit further stated that, in his experience, the fees charged for
his services and those of his “fellow staff” at Green & Green – which he detailed as $300
per hour for principals, $200 for associate attorneys, and $100 for support staff ̶ were
reasonable. He stated that, notwithstanding the parties’ fee agreements, the firm had
agreed to reduce some of the Trimbachs’ fees, at their request and “after much
discussion”; the firm reduced all fees related to the foreclosure by 15% and the hourly
rate of one associate attorney, Sean Culley, by 15% in the M&R matter. Hung stated
that, to his knowledge, after the above concessions were made, the Trimbachs “had no
objections to the fees charged,” and that during their conversations, Mr. Trimbach
“appeared to be aware of the fees charged to the two accounts.”
{¶ 18} According to Hung’s affidavit, after informal efforts to collect payment were
unsuccessful, he made a written demand for payment. Neither the Trimbachs nor PSD
made any payment or otherwise contacted Green & Green about payment. At that time,
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the fees in the two matters totaled $35,331.70; $31,556.14 was owed in relation to the
efforts to dissolve M&R, and $3,775.56 was owed for the firm’s representation of the
Trimbachs in the foreclosure action.
{¶ 19} In response to Green & Green’s motion for default judgment and summary
judgment, the Trimbachs asserted that Green & Green was not entitled to default
judgment or summary judgment and, although they had not filed cross-motions for
summary judgment, asserted that they and PSD were entitled to summary judgment.
Affidavits of Mr. and Mrs. Trimbach were attached.
{¶ 20} In Mr. Trimbach’s affidavit, he acknowledged that he had been represented
by Hung and Sean Culley of Green & Green in the foreclosure and M&R matters and had
been charged on an hourly basis in both matters. He asserted that, although his wife
had signed the engagement letter, she had no interest in the house and had been named
in the foreclosure action only “because of her dower rights.” The affidavit expressed
frustration about a lack of progress in the M&R matter, and stated that Green & Green
had been “unable to eliminate the judgment” in the foreclosure action, which Mr. Trimbach
attributed to errors by a previous attorney. He also referenced emails to Hung from early
2016 in which he expressed dissatisfaction with the pace and progress of work done by
the firm on his behalf, and stated that he was not being paid on “certain contracts”
because issues entrusted to the firm had not been resolved. Finally, Mr. Trimbach stated
that Green & Green had not done “any work on behalf of Performance Site Development
other than filing the incorporation documents, for which Mr. Hung has already been paid.”
The affidavit did not address the reasonableness of the fees charged by Green & Green
or identify any specific charges that the Trimbachs disputed.
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{¶ 21} The emails attached to Mr. Trimbach’s affidavit evinced his frustration at
the pace at which issues involving the dissolution of M&R were being resolved, the
issuance of subpoenas to some of M&R’s clients, and losing business because of the
“stupidity” of others involved in the cases. The emails also demonstrated Mr. Trimbach’s
frustration with the slow pace of discovery in some of the matters related to M&R and
what he considered to be harassing tactics of the opposing party in that matter; however,
he also encouraged counsel to engage in similar tactics in response (i.e., to issue what
Mr. Trimbach said would be subpoenas “not for any reason other than to show them how
much it interrupts their business”), a tactic which counsel discouraged. The emails,
which included some of Hung’s responses, also indicated that there were liens on some
of M&R’s assets, such that they could not be sold without the involvement and/or
cooperation of the IRS.
{¶ 22} Mrs. Trimbach’s affidavit stated that she had no interest in the property that
was the subject of the foreclosure action, except “possible dower rights,” which “had
already been foreclosed on.” She stated that she was present during a meeting between
her husband and Green & Green attorneys regarding the dissolution of M&R. During
this meeting and in several phone calls between Mr. Trimbach and Hung, Mrs. Trimbach
heard her husband “express his dissatisfaction with the work being done by Jonathan
Hung and the other attorneys at Green & Green, and with the amounts being charged for
that work.” Mrs. Trimbach’s affidavit did not specifically address the reasonableness of
the fees charged or dispute that fees were owed.
{¶ 23} Green & Green filed a reply in support of its motion for default judgment
and summary judgment. Attached to the reply was a second affidavit from Hung,
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including several email correspondences between Hung and Mr. Trimbach. These
documents described or provided evidence of Hung’s efforts to explain to Mr. Trimbach
why the effort to dissolve M&R was “progressing slowly,” including claims by another
person to an ownership interest in M&R property and the basis for that person’s
subpoenas to PSD’s clients; the affidavit also referenced the federal and state tax liens
on Mr. Trimbach’s real property. The attached emails to Mr. Trimbach explained, among
other things, that there was a factual issue as to what property was owned by M&R, and
that, in light of the disputes and notwithstanding Mr. Trimbach’s frustration with opposing
parties’ interviews with his clients, all parties were “entitled to seek information and
documents that are reasonably calculated to lead to admissible evidence.”
{¶ 24} With respect to attorney fees, the affidavit stated that, at an April 8, 2016
meeting, Hung explained to Mr. Trimbach the “firm’s actions” and why M&R’s dissolution
“was progressing slowly.” Hung’s affidavit further stated:
Mr. Trimbach raised no objections at that time to my work regarding the
foreclosure action filed against him and his wife, Defendant Lisa Trimbach
* * *. He also did not inform me specifically of any unjustified or erroneous
billings.
An email which followed this meeting was attached to the affidavit. In the email, dated
April 21, 2016, Hung stated:
This is a follow up to our brief conversation on April 8, 2016. At that
time, you indicated that you were unsatisfied with my firm’s representation,
and that you did not believe that we were entitled to the amount of fees
invoiced. In response, I suggested that you make an offer to settle for an
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amount you feel is reasonable compensation for the unpaid fees. So far,
we have received nothing.
We have previously discussed your dissatisfaction with the case’s
progress, but I have attempted to explain each issue as when [sic] was
raised to me. I have provided a breakdown of the status of each case, and
how you may wish to move forward with each. * * *
As you are aware, we tried to bill you on a monthly basis. Our
engagement letter encourages you to bring to our attention any unjustified
or erroneous billings during the course of representation. When you asked
us to lower the hourly rate of Mr. Culley, who is an associate, we agreed to
do so, and did so by providing a credit commensurate with the time Mr.
Culley has spent on this case. Having received no specific objections to
the time spent on your matter, I stand by the accounting of hours.
{¶ 25} When it granted Green & Green’s motion for summary judgment, the trial
court found, with respect to PSD, that Hung’s initial affidavit presented “credible,
cognizable evidence of every element of Plaintiff’s claims on an account,” including the
nature of the parties’ agreements, detailed and dated charges, the reasonableness of the
time and amount expended, the total due on the account, and “even certain billing
concessions made or discounts given” in response to concern raised by Mr. Trimbach.
Hung presented a detailed billing statement of services performed related to M&R’s
dissolution (Exhibit 4 to his January 18, 2017 affidavit) and, although this exhibit does not
expressly reference PSD, it is clear from the emails attached to Mr. Trimbach’s affidavit
that the interests of M&R overlapped and were intertwined with the interests of PSD, and
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that the representation discussed in the emails dovetailed with the engagement letter
(email) for the M&R matter.
{¶ 26} With respect to Mr. Trimbach’s argument that he had already paid for
Green & Green’s services related to PSD, the trial court concluded that “payment is a
defense” and that Mr. Trimbach had not presented any evidence showing that the amount
owed had been reduced by any payments or that he had objected to the firm’s failure to
properly credit any payments made on behalf of PSD. The court “decline[d] to find that
Mr. Trimbach’s unsubstantiated averment regarding complete payment of PSD’s legal
fees suffices to create a genuine issue of material fact regarding Defendant PSD’s
indebtedness for the amounts claimed to be due” on that account.
{¶ 27} The trial court also found no genuine issue of material fact as to Mrs.
Trimbach’s liability for the legal fees related to the foreclosure, because she had expressly
agreed to pay for those services by signing the engagement letter, regardless of whether
she personally benefitted from such services; the court further found that Mrs. Trimbach’s
dower interest in the property was a “cognizable ownership interest.”
{¶ 28} Finally, the court concluded that Green & Green had established that there
was no genuine issue of material fact regarding Mr. Trimbach’s liability on both accounts;
he did not deny signing the engagement letters, and he presented no evidence that the
amounts charged by the firm were unreasonable. The court recognized that Green &
Green, as the plaintiff, bore the initial burden of establishing the reasonableness and
fairness of its fees, but further found that an attorney’s own testimony is generally
accepted as adequate proof of the reasonableness of the fees sought. It also found that
the Trimbachs had failed to demonstrate a genuine issue of material fact that they had
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objected to the reasonableness of any of the fees that remained at issue. Concessions
had been previously made by the firm on other fees, and Hung’s unrefuted affidavit stated
that no objections had been lodged after the concessions were made. The court found
that the Trimbachs’ references to expressions of dissatisfaction with the work being done
were not analogous to objections to the reasonableness of the fees.
{¶ 29} The trial court did not err in granting summary judgment to Green & Green
on the Trimbachs’ liability for and the reasonableness of its fees. Mr. Trimbach’s affidavit
and the attached emails demonstrate his dissatisfaction with the pace of the litigation and
the manner in which discovery by other parties involved in the dissolution of M&R
interfered, in his view, with his business relationships. However, these emails do not
indicate any specific disagreement with how his attorneys were handling the matters.
Moreover, the email discussions reflect the complexity of the tasks undertaken, including
an apparent disagreement with the other owner of M&R about the proportion of assets to
which Mr. Trimbach was entitled, the suggestion by others involved in the dissolution that
Mr. Trimbach had “cooked the books,” which contributed to the amount of discovery being
conducted, and the existence of federal and state tax liens on some of the
property/properties involved in the case. We are cognizant of the frustrations inherent in
litigation, but the existence of such frustrations, without more, does not establish any
unreasonableness of the attorney fees charged in the case.
{¶ 30} Moreover, we agree with the trial court’s conclusion that Hung’s affidavits
satisfied Green & Green’s initial burden of establishing the terms of the parties’ fee
agreements, what work had been performed, and the fairness and reasonableness of the
fees charged. In response, the Trimbachs and PSD did not object to any specific
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charges or present evidence, beyond their own assertions, that any of the claimed work
had not been performed. The Trimbachs and PSD also did not present any expert
testimony that the charges were unreasonable. Under these circumstances, Green &
Green was not required to present expert testimony, beyond that provided by the attorney
who worked on the case, concerning the reasonableness of its fees. Summary judgment
was appropriate.
{¶ 31} The assignment of error is overruled.
{¶ 32} The judgment of the trial court will be affirmed.
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HALL, J. and WELBAUM, J., concur.
Copies mailed to:
Fredic L. Young
Jonathan F. Hung
Dwight D. Brannon
Matthew C. Schultz
Hon. Mary L. Wiseman