Firror v. Lydon , 110 N.E.3d 1021 ( 2018 )

[Cite as Firror v. Lydon, 2018-Ohio-1662.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
RANDALL FIROR, Individually and as : APPEAL NO. C-170137
Executor of the Estate of Hugh V. Firor, TRIAL NO. A-1505916
M.D., :
THOMAS FIROR, M.D., Individually, : O P I N I O N.
DAVID HOMER, as Successor Trustee :
of the Hugh V. Firor, M.D., Revocable
Trust, :
Plaintiffs-Counterclaim :
Defendants/Appellants,
:
and
:
RANDALL FIROR, and THOMAS
FIROR, M.D., as Co-Trustees of the :
Betty Bourdon Firor Revocable Trust,
:
Plaintiffs-Appellants,
:
vs.
:
DEBORAH R. LYDON,
:
Defendant-Appellee,
:
and
:
DINSMORE & SHOHL LLP,
:
Defendant-Counterclaim
Plaintiff/Appellee. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: April 27, 2018
OHIO FIRST DISTRICT COURT OF APPEALS
F. Harrison Green Co. LPA, and F. Harrison Green, for Plaintiffs-Counterclaim
Defendants/Appellants,
Pinales Stachler Young Burrell & Crouse, Thomas L. Stachler and Shawn M. Young,
for Defendant-Appellee and Defendant-Counterclaim Plaintiff/Appellee.
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OHIO FIRST DISTRICT COURT OF APPEALS
C UNNINGHAM , Presiding Judge.
{¶1} Plaintiffs-counterclaim defendants/appellants, the sons of Hugh V.
Firor, M.D., (“Dr. Firor”) Thomas Firor, M.D., (“Thomas”) and Randall Firor
(“Randall”), in their individual and fiduciary capacities to their father’s estate and trust
and for their mother’s trust, and David Homer, as successor trustee to Dr. Firor’s
revocable trust, for ease of discussion collectively referred to as “the Firors,” engaged
the legal services of defendant-appellee attorney Deborah R. Lydon and her law firm
defendant-counterclaim plaintiff/appellee, Dinsmore & Shohl LLP, (“Dinsmore”)to
recover funds that Thomas and Randall’s sister, Nancy Kibbee, had fraudulently
taken from their father. The Firors ultimately sued Lydon and Dinsmore for legal
malpractice, and Dinsmore counterclaimed for unpaid legal fees.1 The trial court
granted Lydon and Dinsmore’s motion for summary judgment on the Firors’ claims
and on Dinsmore’s counterclaims.
{¶2} Because the Firors’ legal-malpractice claim was barred by the statute
of limitations, and because no genuine issues of material fact remain as to whether
$161,423.83 in fees remain uncollected for Lydon and Dinsmore’s legal services in
the Kibbee litigation, we affirm the trial court’s judgment.
The Kibbee Litigation
{¶3} Thomas and Randall sought Lydon’s services based on their concerns
that their sister had stolen millions of dollars from their father, which should have
been distributed equally among Thomas, Randall, and Nancy upon Dr. Firor’s death.
Thomas and Randall learned that Nancy, with the assistance of her counsel, had
applied to the Hamilton County Probate Court for relief from administration of Dr.
1 The Firors’ mother’s trust and its cotrustees, Randall and Thomas, are not counterclaim
defendants.
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Firor’s estate, claiming that the estate was worth $6,000 and not the $1 to $3 million
that Thomas and Randall claimed should have been in the estate. Thomas and
Randall entered into written agreements of engagement with Lydon and Dinsmore in
which they agreed to pay legal fees as billed at a blended rate of $295 per hour.
{¶4} Lydon’s investigation revealed that Nancy had taken control of her
father’s personal accounts, his retirement funds, funds in the Hugh V. Firor, M.D.,
Revocable Trust, their late mother’s trust (the Betty Bourdon Firor Revocable Trust),
and other assets. Lydon was able to defend some of Dr. Firor’s assets for Thomas
and Randall, including defeating Nancy’s requests for relief from administration and
appointment as executor of her father’s estate, having Thomas and Randall
appointed as cotrustees of their mother’s trust, and securing Homer’s appointment
as successor trustee of Dr. Firor’s trust. Homer, a licensed attorney, is Thomas’ best
friend. The Firors retained Lydon and Dinsmore to represent them in their various
fiduciary capacities, in addition to pursuing their litigation against Kibbee.
{¶5} Throughout the litigation, Thomas and Randall had told Lydon that
one of their primary goals in the Kibbee litigation was to uncover the truth regarding
Kibbee’s alienation of them from their father during the last years of his life. Kibbee
had prevented the two from seeing their father. Thomas and Randall believed that
Kibbee had unduly influenced their father and had transferred most of his funds to
herself while she controlled his affairs.
{¶6} At the outset of the litigation, Lydon had explained to the Firors the
difficulties in collecting their father’s lost assets. In February 2013, she told them in
an email that if Kibbee had taken the funds and had “spent [them] all, and declared
bankruptcy at some point, it could be hard to get back from her.” Thomas and
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Randall nonetheless rejected potential settlements with Kibbee and opted to proceed
with litigation.
{¶7} By mid-2013, Lydon had been successful in recovering $80,000 of
their father’s retirement accounts, and $55,000 that Kibbee had taken from their
father’s trust. In June 2013, Lydon and Dinsmore filed an action against Kibbee and
her attorney in Hamilton County Common Pleas Court. Following extensive
discovery and pretrial practice, in 2014, Kibbee’s attorney agreed to pay the limits of
her insurance coverage—$100,000—to Thomas and Randall to settle their claim.
They agreed to allocate the settlement funds against the attorney fees incurred in the
litigation. In connection with the settlement, the Hamilton County Probate Court
approved all fees incurred by Lydon and submitted by Randall as the successor
trustee of his father’s trust.
{¶8} Over the course of the litigation, Lydon and Dinsmore conducted
extensive discovery proceedings, reviewed over 40,000 documents, exchanged over
3,000 emails with their clients, and engaged in litigation in several venues. Lydon
and Dinsmore achieved significant results for the Firors in taking control over their
father’s assets from Kibbee and in discovering proof of her theft from and undue
influence over Dr. Firor. As a result of her efforts, Lydon obtained over $235,000 for
the Firors, a piece of real estate valued at $7,000, access to a judgment over
$43,000, a contempt judgment against Kibbee for $6,300, and access to over $6,000
for the Betty Firor trust.
{¶9} But Lydon and Dinsmore had also collected approximately $180,000
in fees and expenses from the Firors. In June 2014, the Firors stopped paying the
regularly submitted invoices for services rendered.
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{¶10} On July 7, 2014, the event that Lydon had warned Thomas and
Randall of occurred. Kibbee filed for bankruptcy protection and received an
automatic stay from any litigation filed against her. The next day, Lydon informed
the Firors that the bankruptcy stay meant that Dinsmore’s work on their behalf in
the litigation to recover assets was essentially over. She also told the Firors that
Dinsmore would not take on any additional matters unless they could bring their
outstanding balances up to date.
The Firors’ Claims and Dinsmore’s Counterclaims
{¶11} On November 2, 2015, the Firors filed a verified complaint, ultimately
amended, against Lydon and Dinsmore, in which they alleged that she and her firm
had billed them for work in excess of an amount, not specified at the time of
engagement, that they claimed they had told Lydon not to exceed. They also claimed
that Lydon and Dinsmore had been negligent in failing to warn them of the difficulty
of collecting Kibbee’s assets, particularly if she declared bankruptcy, and in failing to
keep them informed of the spiraling costs of the Kibbee litigation. The amended
verified complaint was filed on December 28, 2015. Attached to the complaint was a
tolling agreement signed by the parties. The agreement suspended the running of
the limitations period for a period of days in mid-2015. One month later, Thomas,
Randall, and Homer, in their individual and fiduciary capacities, each filed sworn
verifications that the statements made in the amended verified complaint were true.
{¶12} Lydon and Dinsmore answered, and Dinsmore filed a counterclaim
seeking $161,423.83 in unpaid legal bills. In September 2016, Lydon and Dinsmore
moved for summary judgment on the Firors’ claims, and Dinsmore moved for
summary judgment on its counterclaims. Dinsmore’s motion was ultimately
supported by three affidavits submitted by Lydon, each with numerous exhibits
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attached, describing her actions and her communications with the Firors. Also
attached to the motion was the affidavit of Victor A. Walton, an experienced
Cincinnati litigation attorney. He stated that based upon his experience in the
Cincinnati legal community and his review of Lydon’s affidavit and attached
materials, including the billing records, “and the related pleadings in the underlying
litigation matters involving Kibbee,” the legal fees of $350,000 were fair, reasonable,
and not excessive. Having reviewed the extensive email and letter records of
communications between Lydon and the Firors, Walton also stated that in his
opinion Lydon had not breached any duty of communication with her clients.
{¶13} The Firors responded with a memorandum in opposition to the
summary-judgment motion. Attached to the memorandum was a 22-page report
identified as Exhibit A. The report had been prepared by the Firors’ expert witness,
Columbus attorney Jonathan Coughlin. The report was signed, but was not sworn to
or certified, and was incorporated into an attached affidavit. In the report, Coughlin
had given his opinion about whether Lydon had breached the standard of care to her
clients. That opinion was also contained in Coughlin’s deposition testimony, filed
with the trial court on July 20, 2016.
{¶14} On December 1, 2016, the trial court entered summary judgment in
favor of Lydon and Dinsmore on the Firors’ claims. The court stated that the Firors
had failed to produce “expert testimony showing a specific duty to advise a client as
to the collectability of individual defendants, [or] how [Lydon and Dinsmore] had
breached that duty.” The court also entered summary judgment for Dinsmore on its
counterclaims for unpaid fees. The court’s entry of judgment became final and
appealable in March 2017, when the court fully disposed of the counterclaims. The
Firors appealed.
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The Firors’ Legal-Malpractice Claims Are Time-Barred
{¶15} In their first assignment of error, the Firors allege that the trial court
erred in granting summary judgment on claims raised in their amended verified
complaint. They argue both that their claims against Lydon and Dinsmore were not
barred by the statute of limitations, and that Lydon had breached her duty to
communicate with her clients. We disagree.
{¶16} Although the trial court did not expressly rule on the statute-of-
limitations issue when it entered summary judgment for Lydon and Dinsmore, the
matter was argued to the court. In their answer, Lydon and Dinsmore had raised the
affirmative defense that the Firors’ claims were time-barred. Lydon and Dinsmore
moved for summary judgment on a number of grounds, including that the complaint
had been filed outside the statute-of-limitations period. And the Firors argued
against the issue in their memorandum in opposition, responding to the statute-of-
limitations argument with reference only to their amended verified complaint and to
the tolling agreement attached as an exhibit to the complaint.
{¶17} The function of summary judgment is to determine from the
evidentiary materials properly before the court whether triable factual issues exist,
regardless of whether the facts of the case are complex. A court is not precluded from
granting summary judgment merely because of the complexity or length of the
factual record. See Gross v. Western-Southern Life Ins. Co., 85 Ohio App. 3d 662,
666-667, 621 N.E.2d 412 (1st Dist.1993).
{¶18} We review summary-judgment determinations de novo, without
deference to the trial court’s ruling. See Comer v. Risko, 106 Ohio St. 3d 185, 2005-
Ohio-4559, 833 N.E.2d 712, ¶ 8; see also Capital Fin. Credit, L.L.C. v. Mays, 191
Ohio App. 3d 56, 2010-Ohio-4423, 944 N.E.2d 1184, ¶ 3 (1st Dist.).
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{¶19} A motion for summary judgment shall be granted if the court, upon
viewing the inferences to be drawn from the underlying facts set forth in the
pleadings, depositions, answers to interrogatories, written admissions, and affidavits
in a light most favorable to the party opposing the motion, determines (1) that no
genuine issue of material fact remains to be litigated, (2) that the moving party is
entitled to judgment as a matter of law, and (3) that the evidence demonstrates that
reasonable minds can come to but one conclusion and that conclusion is adverse to
the party opposing the motion. See Civ.R. 56(C); see also Dresher v. Burt, 75 Ohio
St.3d 280, 293, 662 N.E.2d 264 (1996).
{¶20} The party moving for summary judgment “bears the initial burden of
informing the trial court of the basis for the motion and of identifying those portions
of the record that demonstrate the absence of a genuine issue of material fact on the
essential element(s) of the nonmoving party’s claims” or defenses. Dresher at 293.
When, as here, the moving party discharges that burden, the nonmoving party then
has a reciprocal burden of specificity and cannot rest on the allegations or denials in
the pleadings, including verified pleadings, but must “set forth specific facts” by the
means listed in the rule, showing that a triable issue of fact exists. See id.; see also
Perkins v. 122 E. 6th St., LLC, 2017-Ohio-5592, 94 N.E.3d 207, ¶ 6 (1st Dist.). If the
nonmoving party does not discharge its reciprocal burden, summary judgment, if
appropriate, shall be entered against it. Dresher at 293.
{¶21} The substantive law governing the Firors’ claims and Lydon and
Dinsmore’s statute-of-limitations defense identifies the factual issues that are
material and whether Lydon and Dinsmore are entitled to judgment as a matter of
law. See Gross, 85 Ohio App. 3d at 666-667, 621 N.E.2d 412.
The Firors’ Claims Sound in Legal Malpractice
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{¶22} In their amended verified complaint, the Firors brought three claims
against Lydon and Dinsmore: (1) breach of contract related to excessive billing; (2)
the negligent provision of legal services and legal advice; and (3) breach of fiduciary
duty. But for purposes of applying the proper statute of limitations, the cause of
action is determined not from the language or form of the complaint, but from the
gist—the essential ground or object—of the complaint. See Hibbett v. Cincinnati, 4
Ohio App. 3d 128, 131, 446 N.E.2d 832 (1st Dist.1982); see also Chateau Estate
Homes, LLC v. Fifth Third Bank, 1st Dist. Hamilton No. C-160703, 2017-Ohio-6985,
¶ 11.
{¶23} Here, each of the Firors’ claims arose out of the manner in which they
were represented by Lydon and Dinsmore within the attorney-client relationship.
Thus, their claims sound in legal malpractice, despite being labeled otherwise. See
Taft, Stettinius, & Hollister, LLP v. Calabrese, 2016-Ohio-4713, 69 N.E.3d 72, ¶ 13
(1st Dist.). We note that a law firm may be vicariously liable for legal malpractice
only when one or more of its principals or associates are liable for legal malpractice.
See Natl. Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, 122 Ohio St. 3d 594, 2009-
Ohio-3601, 913 N.E.2d 939, paragraph two of the syllabus.
{¶24} The determination of whether a statute of limitations bars claims often
presents a mixed question of fact and law. But, as here, in the absence of genuine
issues of material fact, the application of a statute of limitations presents a question
of law appropriate for resolution by summary judgment. See, e.g., Calabrese at ¶ 13;
see also Cyrus v. Henes, 89 Ohio App. 3d 172, 175, 623 N.E.2d 1256 (9th Dist.1993).
A One-Year Period to Bring Legal-Malpractice Claims
{¶25} Since the Firors sought recovery for damages allegedly caused by legal
malpractice, their claims were subject to the one-year statute-of-limitations period
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set forth in R.C. 2305.11(A). The Firors filed their first verified complaint and began
this action on November 2, 2015. Thus, we must determine whether there are
genuine issues of material fact remaining as to whether the Firors’ causes of action
accrued within one year of that date, or before the expiration of any extension of the
statutory period effected by the tolling agreement.
{¶26} Under R.C. 2305.11(A), a cause of action for legal malpractice accrues
and the limitations period begins to run either (1) when there is a cognizable event by
which the plaintiff discovers or should discover the injury giving rise to a claim and is
put on notice of the need to pursue possible remedies against the attorney; or (2)
when the attorney-client relationship for that particular transaction terminates,
whichever occurs later. See Zimmie v. Calfee, Halter & Griswold, 43 Ohio St. 3d 54,
538 N.E.2d 398 (1989), syllabus; see also Calabrese at ¶ 18. A cognizable event is
“some noteworthy event” that would alert reasonable persons that they have been
damaged as a result of improper representation, such as when a client learns of an
adverse decision in litigation. See Zimmie at 58; see also Cutcher v. Chapman, 72
Ohio App. 3d 265, 267, 594 N.E.2d 640 (1st Dist.).
{¶27} Here, it is unrebutted that the “noteworthy event” that alerted the
Firors of an alleged injury resulting from Lydon’s representation occurred on July 8,
2014, the day after Kibbee filed for bankruptcy protection. The Firors argue that
they were under the belief that Kibbee could not file for bankruptcy because she had
already filed a similar action two years before. In their amended verified complaint,
the Firors alleged that Lydon had argued this point in probate court, and that they
had been injured by Lydon’s failure to either properly investigate the prior
bankruptcy or give them appropriate advice about the risk of a subsequent
bankruptcy filing.
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{¶28} In her first affidavit in support of summary judgment, Lydon stated
that she had informed the Firors in a telephone conference on that date that Kibbee
had filed for bankruptcy. Lydon explained that the automatic stay on litigation
against Kibbee afforded by the bankruptcy filing meant that Lydon and Dinsmore’s
efforts to recover funds from Kibbee were effectively over. Thomas admitted in his
deposition, an excerpt of which is attached as an exhibit to Lydon’s second affidavit
in support of summary judgment, that the Firors had learned of the bankruptcy filing
from Lydon on July 8, 2014. Thus, under the first prong of Zimmie, no genuine issue
of material fact remains as to whether, by July 8, 2014, a cognizable event, whereby
the Firors had discovered the injury that gave rise to their claims, had occurred.
{¶29} We must next determine if, under the second prong of Zimmie, the
Firors’ attorney-client relationship with Lydon and Dinsmore on the Kibbee matters
terminated after the July 8, 2014 cognizable event and within the prescribed period.
Because an attorney-client relationship is a consensual one, the actions of either
party may signal the termination of the relationship. See Trombley v. Calamunci,
Joelson, Manore, Farah & Silvers, L.L.P., 6th Dist. Lucas No. L-04-1138, 2005-
Ohio-2105, ¶ 44; see also Sandor v. Marks, 9th Dist. Summit No. 26951, 2014-Ohio-
685, ¶ 13.
{¶30} On appeal, the Firors maintain that Lydon and Dinsmore’s last day of
representation on this matter was September 16, 2014. But this assertion is not
supported by evidence cognizable under Civ.R. 56. The Firors cite only to Lydon and
Dinsmore’s memorandum in support of summary judgment. But a memorandum is
not evidence of the kind contemplated by Civ.R. 56(C) or 56(E) and with which a
party may discharge its reciprocal burden to demonstrate the existence of triable
issues.
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{¶31} The memorandum does mention September 16. But the date is
referenced only as the date of a draft letter from Thomas to Dinsmore’s managing
partner. That letter was, in turn, described in an email prepared by Thomas, and
that email was attached as an exhibit to Lydon’s first affidavit in support of summary
judgment. But in that email, Thomas acknowledged that Lydon had withdrawn from
representation in the Kibbee case on July 8, 2014, and had instructed them to get
another attorney if they wished to pursue the bankruptcy matter.
{¶32} Thomas also admitted in his deposition, an excerpt of which is
attached as an exhibit to Lydon’s second affidavit in support of summary judgment,
that the Firors had considered Lydon’s representation terminated in July 2014. And
four days after Thomas had sent his email to his brother and to Homer, stating his
belief that Lydon had withdrawn from representation on July 8, 2014, the Firors
discussed consulting another attorney.
{¶33} While substantial evidence supports the contention that the Firors
believed that Lydon and Dinsmore had terminated their representation for the
Kibbee matter in July 2014, Lydon maintained, in her first affidavit, that July 22,
2014, was “the last date for which services were rendered by Dinsmore and billed to
[the Firors], other than the Estate [representation].” Thus, construing the facts most
strongly in favor of the Firors, the nonmoving party, there is no genuine issue of
material fact remaining as to whether the attorney-client relationship for the Kibbee
matters terminated on July 22, 2014.
{¶34} While Dinsmore’s representation of the Firors in the administration of
the estate continued until September 15, 2014, under the second prong of Zimmie,
the statute of limitations begins to run “when the attorney-client relationship for * *
* [this] particular transaction or undertaking terminates.” (Emphasis added.)
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Zimmie, 43 Ohio St. 3d at 58, 538 N.E.2d 398. Here, as stated in the amended
verified complaint, the basis of the Firors’ claims is Lydon’s and Dinsmore’s alleged
negligence committed, not in the administration of the probate estate, but in efforts
to find and recover the unaccounted-for funds transferred to Kibbee while she
controlled the affairs of Dr. Firor. Even construing the facts most strongly in favor of
the Firors, the administration of the estate is not the same transaction or
undertaking as that challenged in the Firors’ action.
{¶35} Thus, there is no genuine issue of material fact remaining as to
whether the Firors’ cause of action accrued on July 22, 2014, the later of the dates
memorializing a cognizable event and the termination of the attorney-client
relationship.
The Tolling Agreement
{¶36} Nonetheless, the Firors argue that even if they should have filed their
lawsuit before July 22, 2015,—one year after the date of accrual—the tolling
agreement suspended the running of the limitations period for their malpractice
claims. Without elaboration, the Firors argue that under the tolling agreement, their
claim was filed within the extended statutory period. We disagree.
{¶37} The tolling agreement was entered into by the parties to effect their
“desire to toll any statute of limitations, to allow the parties to investigate and to
negotiate an amicably [sic] resolution of any disputes either of them may have with
the other.” The agreement, attached as an exhibit to the amended verified
complaint, was signed by all the parties. It provided, in pertinent part, that:
If not terminated earlier by notice, this Agreement shall
terminate on September 30, 2015 (the “Termination Date”). The
period from the date this Agreement is entered into through
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September 30, 2015, shall not be included in determining the
applicability of any statute of limitations in any action involving the
Parties. The running of any period relevant to any applicable statute
of limitations that may be applicable to any claims shall re-commence
running on the day after the Termination Date.
The effective date of the tolling agreement was July 9, 2015.
{¶38} Absent the agreement, the one-year statutory period for the Firors to
bring their malpractice claims would have expired on July 22, 2015. On the effective
date of the agreement, 13 days remained in that period. Once the tolling agreement
expired on September 30, 2015, “[t]he running” of the statutory period “re-
commence[d],” and the Firors had 13 more days, or until October 13, 2015, in which
to bring their claims. It is clear from our record that the Firors brought their claims
on November 2, 2015,—some 33 days after the statutory period recommenced
running and 20 days outside the statutory period as extended by the tolling
agreement.
{¶39} There remains no genuine issue of material fact as to whether the
Firors sought recovery for damages allegedly caused by Lydon’s and Dinsmore’s legal
malpractice outside of the statute-of-limitations period as extended by the tolling
agreement. And Lydon and Dinsmore are entitled to judgment as a matter of law on
the Firors’ malpractice claims. Therefore, the trial court did not err in entering
summary judgment on those claims. See Civ.R. 56(C); see also R.C. 2305.11(A). The
first assignment of error is overruled.
Dinsmore’s Counterclaims for Unpaid Fees
{¶40} In two assignments of error, the Firors challenge the trial court’s entry
of summary judgment on Dinsmore’s counterclaims for uncollected legal fees against
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the counterclaim-defendants Randall, individually and as the executor of his father’s
estate; Thomas; and Homer, as successor trustee of Dr. Firor’s trust.
{¶41} Civ.R. 56(A) makes summary judgment available to a party seeking to
recover upon its own claims or counterclaims. See Mays, 191 Ohio App. 3d 56, 2010-
Ohio-4423, 944 N.E.2d 1184, at ¶ 4. Where a party seeks affirmative relief on its own
counterclaims as a matter of law, it bears the burden of affirmatively demonstrating
that there are no genuine issues of material fact with respect to every essential
element of its claims. See Dresher, 75 Ohio St. 3d at 294, 662 N.E.2d 264; see also
Mays at ¶ 5. And its motion for summary judgment must be denied if the party fails
to satisfy this initial burden. The nonmoving party’s reciprocal burden to establish
the existence of genuine issues of material fact by evidence cognizable under Civ.R.
56 arises only if the movant meets its initial burden. See Mays at ¶ 5.
{¶42} When, as here, the party moving for summary judgment discharges its
initial burden to identify the absence of genuine issues of material fact on an
essential element of the nonmoving party’s claim, the nonmoving parties then have
reciprocal burdens of specificity and cannot rest on the allegations or denials in the
pleadings, but must set forth specific facts, by the means listed in Civ.R. 56(C) and
56(E), demonstrating that triable issues of fact exist. See Civ.R. 56; see also Dresher
at 293, 662 N.E.2d 264.
{¶43} To prevail on its counterclaims for fees, Dinsmore was required to
establish the existence of a contract for fees, performance on its part, breach of a
duty to perform by the counterclaim defendants, and its own damage or loss.
See Brunsman v. W. Hills Country Club, 151 Ohio App. 3d 718, 2003-Ohio-891, 785
N.E.2d 794, ¶ 11 (1st Dist.).
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{¶44} In their second assignment of error, the counterclaim defendants
argue that the parties never had a written or an oral contract for legal fees. Yet, in
their amended verified complaint, the counterclaim defendants admitted that they
had “engaged” Dinsmore to recover funds from Kibbee, that Lydon’s alleged
malpractice had occurred “during the course of representation,” and that Dinsmore
had “collected” approximately $180,000 in fees from them. Moreover, in Lydon’s
second affidavit in support of summary judgment, she stated that she had attended
the depositions of Thomas, Randall, and Homer. She properly attached to her
affidavit excerpts of their deposition transcripts in which each acknowledged the
existence of written letters of engagement with Dinsmore. There is no genuine issue
of material fact remaining as to the existence of contracts for legal services. The
second assignment of error is overruled.
{¶45} In their third assignment of error, the counterclaim defendants allege
that the trial court erred by failing “to review the reasonableness, necessity and
benefit” of Dinsmore’s legal services. First, they argue that Dinsmore has not met its
burden to provide a detailed report “on hours spent and the nature of the effort
expended,” particularly to support Dinsmore’s claim for quantum meruit. Next, they
argue, without citation to any authority, that because Lydon had failed to
communicate with her clients regarding the mounting fees, Dinsmore was not
entitled to collect fees.
{¶46} These arguments must also fail. Dinsmore supported its motion for
summary judgment on its counterclaims with Walton’s and Lydon’s affidavits. These
affidavits clearly identified the existence of written contracts of engagement that
provided that Dinsmore was to be paid on an hourly basis for legal services
performed, that Dinsmore performed the work, that it regularly billed the
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counterclaim defendants for the work performed, and that $161,423.83 remained
unpaid. In his affidavit, Walton stated that he had reviewed the litigation and the
attached billing records for the “underlying litigation matters involving Kibbee.” He
concluded that the fees charged were fair, reasonable, and not excessive. He also
stated that Lydon had not breached any duty of communication with her clients.
{¶47} Dinsmore thus discharged its initial burden to identify the absence of
genuine issues of material fact on the essential elements of its counterclaims and
triggered the counterclaim defendants’ reciprocal burden of specificity under Civ.R.
56(E). The counterclaim defendants have failed to discharge their burden.
{¶48} The only evidence cognizable under Civ.R. 56 offered to rebut
Dinsmore’s summary-judgment motion was Coughlin’s deposition testimony and the
statements made by the counterclaim defendants in their amended verified
complaint.
{¶49} At one point in their appellate brief, the counterclaim defendants refer
to the report prepared by Coughlin, submitted as Exhibit A to their memorandum in
opposition. The signed, undated report was not sworn to, certified, or incorporated
into an attached affidavit filed in the trial court and thus was not the type of
evidentiary material contemplated under Civ.R. 56(C) or 56(E). See State ex rel. The
V Cos. v. Marshall, 81 Ohio St. 3d 467, 473, 692 N.E.2d 198 (1998). “Other types of
documents may be introduced as evidentiary material only through incorporation by
reference in a properly framed affidavit. Documents that have not been sworn,
certified, or authenticated by way of affidavit ‘have no evidentiary value.’ ” Mitchell v.
Internatl. Flavors & Fragrances, Inc., 179 Ohio App. 3d 365, 2008-Ohio-3697, 902
N.E.2d 37, ¶ 17 (1st Dist.).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶50} A court may consider evidence other than that specifically listed
in Civ.R. 56 only when there is no objection to that evidence. See Marshall at 473;
see also Cincinnati Ins. Co. v. Schwerha, 7th Dist. Mahoning No. 04 MA 257, 2006-
Ohio-3521, ¶ 12; compare Loukinas v. Roto-Rooter Servs. Co., 167 Ohio App. 3d 559,
2006-Ohio-3172, 855 N.E.2d 1272, ¶ 22 (1st Dist.) (holding that a court may consider
evidence other than that listed in Civ.R. 56 when there is no objection). Here,
Dinsmore, in a motion in limine and its reply memorandum in support of summary
judgment, expressly objected to the use of the report as a basis for resolving
summary judgment.
{¶51} In advancing their third assignment of error, the counterclaim
defendants cite to the report only as evidence that Lydon had breached a duty to her
clients. That evidence was otherwise properly before the trial court in Coughlin’s
filed deposition testimony.
{¶52} In that deposition testimony, Coughlin stated that he had no opinion
on the measure of damages due to Dinsmore because he had “not been retained to
testify about damages.” He admitted that he had reviewed only a small portion of the
billing records, and that he hadn’t reviewed any billing records for the work
performed for Dr. Firor’s trust. While he stated that Lydon had breached the
standard of care due her clients “by virtue of the excessive fees,” he admitted that he
had reached his opinion without having reviewed litigation records that filled an
additional “40 bankers boxes.” He admitted that he had seen no written evidence
that supported the allegation that Lydon and the Firors had an understanding that
she was not to incur fees in an unspecified amount “beyond their initial disclosure of
funds available for the prosecution of the claims,” as stated in the amended verified
complaint. He admitted that he had based his opinion that Lydon had failed to
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OHIO FIRST DISTRICT COURT OF APPEALS
communicate sufficiently with her clients largely upon the statements of his clients in
the amended verified complaint. And he acknowledged that his opinion could
change if those statements “were not correct.”
{¶53} We note that the Ohio Supreme Court has stated that, generally, sworn
pleadings like a verified complaint “constitute evidence” for some purposes under
Civ.R. 56. State ex rel. Spencer v. East Liverpool Planning Comm., 80 Ohio St. 3d
297, 298, 685 N.E.2d 1251 (1997) (holding that the nonmoving party’s reciprocal
duty to respond with additional evidence to set forth specific facts as per Civ.R. 56(E)
was not triggered when the defendant, in moving for summary judgment, had failed
to satisfy its initial burden under Civ.R. 56 by setting forth evidence countering the
allegations made in the plaintiff’s verified complaint). Yet where a party moving for
summary judgment has sufficiently rebutted the allegations made in a verified
complaint, the nonmoving party still bears a reciprocal burden to respond with
additional evidence, setting forth specific facts under Civ.R. 56(E) to counter the
movant’s supported claim that no genuine issue remains for trial. See Miller v.
Blume, 7th Dist. Noble No. 13 NO 398, 2013-Ohio-5290, ¶ 29-30. Under those
conditions, an assertion in a pleading, even a sworn one, is insufficient to meet the
reciprocal burden of a nonmoving party under Civ.R. 56(E). Id. at ¶ 30. Moreover,
averments in a verified complaint may be accepted as evidence only to the extent
that, like an affidavit, they present evidence within the personal knowledge of the
affiant. See Brunner Firm Co., L.P.A. v. Bussard, 10th Dist. Franklin No. 07AP-867,
2008-Ohio-4684, ¶ 14.
{¶54} Here, Dinsmore has rebutted the allegations made in the verified
complaint, largely through the deposition testimony of the counterclaim defendants
found as attachments to Lydon’s affidavits. Homer admitted in his deposition that
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OHIO FIRST DISTRICT COURT OF APPEALS
he had not read the amended complaint before signing the verification stating that
statements in the complaint were “true to the best of my knowledge.” Each
counterclaim defendant’s deposition testimony contradicts his earlier allegations in
the complaint, relied upon by Coughlin in reaching his conclusions, that Lydon had
exceeded a limit of fees that they had imposed and had failed to adequately
communicate with them regarding the fees expended. Thomas admitted that Lydon
had explained that the fees incurred would vary based upon how aggressively they
wished to pursue the Kibbee funds, and that she had spelled out the various factors
which could increase the overall costs of the litigation. He stated that he had had
conversations with Lydon “throughout the entire process” of the litigation over the
costs, and that he had never raised an objection with Lydon about the regular
invoices submitted for payment. Moreover, he admitted that the Firors had never set
a limit on litigation costs to be incurred in the Kibbee matters, and that he had not
communicated a limit to Lydon. Homer made similar statements in his deposition,
including that Dinsmore had sent regular invoices, and that there were sufficient
funds in Dr. Firor’s trust that he could have used to pay Dinsmore’s invoices.
Randall’s deposition testimony echoed that of his brother and Homer.
{¶55} The counterclaim defendants did not supplement their own
testimony or that of Coughlin in response to Lydon’s and Walton’s affidavits. In light
of the counterclaim defendants’ deposition testimony, we hold that their assertions
in the amended verified complaint were insufficient to meet the reciprocal burden of
a nonmoving party under Civ.R. 56(E). See Civ.R. 56; see also Dresher at 293, 662
N.E.2d 264; Miller, 7th Dist. Noble No. 13 NO 398, 2013-Ohio-5290, at ¶ 30. The
trial court did not err in entering summary judgment on Dinsmore’s counterclaims
for uncollected fees. The third assignment of error is overruled.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶56} Accordingly, we affirm the trial court’s entry of summary judgment for
Lydon and Dinsmore.
Judgment affirmed.
MILLER and DETERS, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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