Blackwell v. Wynn , 2020 Ohio 1438 ( 2020 )

[Cite as Blackwell v. Wynn, 2020-Ohio-1438.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
GLORIA BLACKWELL, : OPINION
Plaintiff-Appellant, :
CASE NO. 2019-A-0048
- vs - :
ROBERT WYNN, :
Defendant-Appellee. :
Civil Appeal from the Ashtabula Municipal Court, Case No. 2019 CVI 00240.
Judgment: Affirmed.
Gloria Blackwell, pro se, 605 West Prospect Road, Ashtabula, OH 44004 (Plaintiff-
Appellant).
Robert S. Wynn, pro se, 7 Lawyers Row, P.O. Box 121, Jefferson, OH 44047
(Defendant-Appellee).
MATT LYNCH, J.
{¶1} Plaintiff-appellant, Gloria Blackwell, appeals from the judgment of the
Ashtabula Municipal Court, finding in favor of the defendant-appellee, Robert Wynn,
following a small claims trial. For the following reasons, we affirm the lower court’s
judgment.
{¶2} On March 18, 2019, Blackwell filed a Small Claims Complaint against Wynn
in the Ashtabula Municipal Court. In her “Statement of Claim” she stated the following:
“No contract given to me by attorney Wynn and now he wants to charge more.” It
requested a judgment in the amount of $1,000. Attached were e-mail communications
between Wynn and Blackwell relating to his legal representation of her in Ashtabula
Municipal Court Case No. 2018 CVF 01082, a record of payment made to him, as well as
a copy of a motion in which Wynn had sought to withdraw from representing Blackwell in
Case No. 2018 CVF 01082.
{¶3} A trial was held on April 24, 2019. The following pertinent testimony was
presented.
{¶4} Blackwell testified that she sought legal representation from Wynn in a civil
landlord-tenant matter and he told her the charge would be “between $600 and $1,000.”
According to Blackwell, approximately a month after the initial meeting, Wynn told her the
law required he provide her with a written contract but no such document was provided.
Blackwell testified that Wynn subsequently denied quoting her the foregoing price and
told her he was no longer going to represent her. She requested $700 be repaid to her,
conceding that Wynn had already returned $300. An e-mail was presented in which
Blackwell had written that she and Wynn had discussed an hourly rate of $167, but
Blackwell testified that Wynn told her “a different amount” would be charged for this case,
i.e. the $600-$1,000 amount. Blackwell stated that during discussions with Wynn on the
phone he “got loud” and “t[old] her off.”
{¶5} Wynn testified that he and Blackwell had an oral agreement that he would
charge a rate of $175 per hour and did not agree to a flat fee. He testified that the litigation
for which he had represented her was not “simple” and involved a counterclaim and cross-
claim. He ceased representation of her because of the fee dispute and “outrageous
statements” she made, including that he had made advances toward an individual who
had been helping Blackwell with home repairs.
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{¶6} On April 30, 2019, the court issued a Judgment Entry granting judgment in
favor of Wynn. The court found that Wynn moved to withdraw from representation due
to a disagreement over fees and a “deterioration of the working relationship,” which
motion had been granted. It found Wynn had completed five hours of work on the case
prior to his withdrawal and had returned $300 of payment made by Blackwell. The court
concluded that the fee agreement did not have to be in writing, the parties had discussed
the hourly rate and probable total bill, and Wynn provided services warranting the amount
paid.
{¶7} Blackwell filed a timely appeal, although no transcript was filed with the
record. Following briefing and oral argument, on November 22, 2019, Blackwell filed a
motion requesting the record be supplemented with a transcript. The court reporter
subsequently filed an affidavit stating that the transcript had not been prepared due to an
oversight. On December 4, 2019, this court issued a Judgment Entry granting the request
to supplement the record and permitting additional briefing.
{¶8} On appeal, Blackwell raises the following assignments of error:
{¶9} “[1.] Judge Laura DiGiacomo committed error prejudicial in granting
defendant, Robert Wynn, compensation for services rendered. She based her decision
on the fact that Attorney (Judge) Robert Wynn provided services and he should be paid.
{¶10} “[2.] Title 28 of the United States Code (The Judicial Code) provide[s]
standards for judicial disqualification or recusal, Section 455, captioned ‘Disqualification
of justice, judge, or magistrate judge.’ A judge should disqualify himself in any proceeding
in which his impartiality might reasonably be questioned.’ [sic] The section also provides
that a judge is disqualified ‘where he has a personal bias or prejudice concerning a party,
or personal knowledge of disputed evidentiary facts concerning the proceeding’, when
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the judge has previously served [as a] lawyer or witness concerning the same case or
has expressed an opinion concerning its outcome, or when the judge or a member of his
or her immediate family has a financial interest in the outcome of the proceeding.
{¶11} “[3.] Did Attorney Wynn have a right to withdraw from representing his
client?
{¶12} “[4.] Judge DiGiacomo committed prejudicial error concluding that Attorney
Wynn was being reasonable in his fees. The basis was based on his itemized statement
that he submitted to court. This statement was provided after Attorney Wynn decided to
withdraw from the case. After client found out that he wanted to withdraw, she requested
the statement.”
{¶13} As an initial matter, we note that in her supplemental brief, Blackwell
submitted her argument under a single assignment of error, the language of which differs
from those errors set forth in her original brief. We will consider the supplemental
arguments within the relevant original assignments of error.
{¶14} In her first assignment of error, Blackwell argues that the trial court erred in
finding Wynn was entitled to payment for services rendered because there was no written
fee agreement and he was responsible for providing such agreement to be entitled to
compensation for his representation.
{¶15} Blackwell’s contention that Wynn was required to provide a written
agreement for his fees lacks merit. As the lower court properly held, a written agreement
for attorney’s fees is not mandatory in all cases. The Ohio Rules of Professional Conduct
provide that the rate of the fee and expenses “shall be communicated to the client,
preferably in writing” but do not require a written agreement except in certain
circumstances not evident from the record here, such as in the case of a contingent fee
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or where a client must be advised of entitlement to a refund for uncompleted
representation when a flat fee is charged. Prof.Cond.R. 1.5(b), (c)(1), and (d)(3). These
circumstances do not apply in the present matter and, thus, Wynn is not precluded from
recovering fees in this matter in the absence of a written fee agreement.
{¶16} To the extent that Blackwell takes issue with the amount of fees awarded
for Wynn’s services, this will be addressed in the fourth assignment of error.
{¶17} The first assignment of error is without merit.
{¶18} In her second assignment of error, Blackwell argues that Judge DiGiacomo
should have disqualified herself since she had developed a bias against Blackwell and
had previously formed an opinion in Case No. 2018 CVF 01082.
{¶19} The issue of disqualification and bias is properly raised by utilizing the
procedure set forth in R.C. 2701.031, which requires a party to file an affidavit of
disqualification with the clerk of the supreme court if he or she believes a judge “allegedly
is interested in a proceeding pending before the judge, allegedly is related to or has a
bias or prejudice for or against a party to a proceeding pending before the judge or to a
party’s counsel, or allegedly otherwise is disqualified to preside in a proceeding pending
before the judge * * *.” The affidavit of disqualification is then decided in accordance with
Section 2701.03. Blackwell did not follow this procedure. “[A] court of appeals has no
authority to render a decision regarding the disqualification of a municipal court judge.”
State v. Bradley-Lewis, 11th Dist. Ashtabula No. 2018-A-0006, et al., 2018-Ohio-1445, ¶
13; Shelton v. Huff, 11th Dist. Trumbull No. 2012-T-0101, 2014-Ohio-1344, ¶ 30 (“[a]n
appellate court has no jurisdiction to vacate a trial court’s judgment on a claim of judicial
bias”) (citation omitted). Thus, we decline to address the claim that the lower court judge
was biased and should have been disqualified, as it is not properly before this court.
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{¶20} The second assignment of error is without merit.
{¶21} In her third assignment of error, Blackwell argues that Wynn was unjustified
in withdrawing from his representation of her in Case No. 2018 CVF 01082. She contends
that her statement to Wynn that he was “robbing” her was the basis for his withdrawal
and this was not “good reason” for withdrawing as her counsel.
{¶22} To the extent that Blackwell argues that the granting of the motion to
withdraw was improper, this determination was made in a separate case not before this
court on appeal. However, there is authority for the proposition that unjustified withdrawal
can be raised as a defense against a claim for attorney’s fees. W. Wagner & G. Wagner
Co., L.P.A. v. Block, 107 Ohio App.3d 603, 609, 669 N.E.2d 272 (6th Dist.1995); Sandler
v. Gossick, 87 Ohio App.3d 372, 377, 622 N.E.2d 389 (8th Dist.1993). In relation to the
contention that Blackwell is entitled to the return of fees paid because Wynn improperly
withdrew from representing her, the arguments relate to the court’s weighing of the
evidence and thus, we will review whether the judgment was supported by the weight of
the evidence. Weight of the evidence concerns “‘the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather than the other.’”
(Citations omitted.) (Emphasis deleted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-
Ohio-2179, 972 N.E.2d 517, ¶ 12. In a civil case, “‘[t]he [reviewing] court * * * weighs the
evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost
its way and created such a manifest miscarriage of justice that the [judgment] must be
reversed and a new trial ordered.’” (Citations omitted.) Meeker R & D, Inc. v. Evenflo Co.,
Inc., 11th Dist. Portage Nos. 2014-P-0060 and 2015-P-0017, 2016-Ohio-2688, ¶ 40.
{¶23} The record does not demonstrate that withdrawal was improper and
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Blackwell is not entitled to a return of the fees paid on this ground. Testimony presented
in the trial in this matter demonstrated that Blackwell had become “bombastic,” disagreed
about the amount of fees owed, and made allegations that Wynn was robbing her and
had made a pass at someone Blackwell employed. Ohio Rule of Professional Conduct
1.16 allows an attorney to withdraw from representation of a client under several
circumstances, including if “withdrawal can be accomplished without material adverse
effect on the interests of the client,” “the representation will result in an unreasonable
financial burden on the lawyer or has been rendered unreasonably difficult by the client,”
or for “other good cause.” Prof.Cond.R. 1.16(B)(1), (6), and (9). Here, the breakdown in
the attorney-client relationship, arguments between Blackwell and Wynn, and concerns
about payment in light of the fee dispute, to the extent there is testimony about these
issues present in this record, demonstrated that withdrawal was not unjustified.
Furthermore, Blackwell’s allegations that Wynn caused hardship to her by withdrawing
are not properly supported by the trial court record, including her testimony.
{¶24} The third assignment of error is without merit.
{¶25} In her fourth assignment of error, Blackwell argues that Wynn’s fee was
excessive in light of quotes given to her by other attorneys and that he provided
inconsistent statements to her regarding the amount he would charge.
{¶26} Initially, regarding Blackwell’s contention that the amount she was billed by
Wynn was excessive compared to other quotes received, there is no evidence of this
present in the record and we cannot consider this argument.
{¶27} As to the court’s determination that Wynn was entitled to the compensation
he had received, it was supported by the weight of the evidence. Wynn testified that he
had performed work on the underlying civil litigation defending against a complaint, that
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the matter was “not a simple defense of the civil complaint” but involved a counterclaim
and cross-claim in excess of $3,000, and that he had spent time viewing the property
since Blackwell claimed her tenant had damaged it. Blackwell failed to provide testimony
or evidence demonstrating that the work was not performed or was otherwise
unnecessary. To the extent that there was a fee dispute, we find no reason to reject the
trial court’s determination that the compensation received by Wynn was reasonable and
consistent with the evidence. While Blackwell also contests the rate at which she was
billed, alleging she agreed to a rate less than that Wynn charged, Wynn disagreed and
testified that he billed at the agreed upon rate. As resolving this issue turned upon witness
credibility, we emphasize that the “trier of fact is in the best position to evaluate
inconsistencies in the testimony by observing the witness’s manner and demeanor on the
witness stand” and we will not substitute our judgment for that of the trial court. State v.
Williams, 11th Dist. Lake No. 2012-L-078, 2013-Ohio-2040, ¶ 21.
{¶28} The fourth assignment of error is without merit.
{¶29} For the foregoing reasons, the judgment of the Ashtabula Municipal Court
is affirmed. Costs to be taxed against appellant.
THOMAS R. WRIGHT, J.,
MARY JANE TRAPP, J.,
concur.
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