Bolek v. Miller-McNeal , 2016 Ohio 1383 ( 2016 )

[Cite as Bolek v. Miller-McNeal, 2016-Ohio-1383.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103320
JOSEPH BOLEK
PLAINTIFF-APPELLEE
vs.
TAISHAWN MILLER-McNEAL, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-12-787360
BEFORE: Boyle, J., Jones, A.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: March 31, 2016
ATTORNEY FOR APPELLANTS
Russell S. Bensing
1360 East 9th Street
Suite 600
Cleveland, Ohio 44114
ATTORNEY FOR APPELLEE
David Byrnes
3319 Ardmore Road
Shaker Heights, Ohio 44120
MARY J. BOYLE, J.:
{¶1} Defendants-appellants, Taishawn Miller-McNeal (“McNeal”) and Barbara
Smith, appeal from a judgment of the trial court granting summary judgment to
plaintiff-appellee, Joseph Bolek. In their sole assignment of error, appellants argue that
the trial court erred in doing so. After review, we find merit to appellants’ arguments
and reverse the judgment of the trial court.
I. Procedural History and Factual Background
{¶2} McNeal entered into a Family Law Fee Agreement (“agreement”) with
Bolek in March 2009. Smith, McNeal’s mother, also signed the agreement,
guaranteeing payment on the contract. The agreement stated an initial retainer of
$2,000, with an hourly rate of $300. The agreement further stated that Bolek would
send a monthly statement of services rendered, itemizing the time expended and costs
advanced. McNeal and Smith were obligated to pay the monthly statement upon
receipt, and if they did not, then a monthly interest charge on the outstanding balance at
the rate of 10 percent per annum would be applied until the balance was paid in full.
The agreement made clear that if the monthly statement “continues to go unpaid,” Bolek
could withdraw as McNeal’s attorney.
{¶3} McNeal hired Bolek to represent her after her ex-husband filed a motion to
modify an agreed judgment entry, as well as a motion to show cause and for attorney
fees in domestic relations court. The post-decree matter involved custody and visitation
of McNeal’s and her ex-husband’s children (it is not clear from the record exactly what
the dispute involved or how many children McNeal and her ex-husband had).
{¶4} In February 2010, McNeal’s ex-husband passed away. On March 10,
2010, the domestic relations court dismissed all pending matters in the case.
{¶5} In July 2012, Bolek filed a complaint for breach of contract against
McNeal and Smith alleging that they owed him $39,620.79, plus interest, costs, and
reasonable attorney fees, for the services he performed on behalf of McNeal in the
domestic relations case.
{¶6} Bolek moved for summary judgment multiple times. The trial court denied
the first motion for lack of proper Civ.R. 56 evidence. Eventually, Bolek filed a second
motion for summary judgment with the proper evidence (which will be set forth below)
under Civ.R. 56, after which the trial court granted his motion. It is from this judgment
that McNeal and Smith appeal.
II. Standard of Review
{¶7} An appellate court reviews a trial court’s decision to grant summary
judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d
241 (1996). De novo review means that this court “uses the same standard that the trial
court should have used, and we examine the evidence to determine if as a matter of law
no genuine issues exist for trial.” Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d
378, 383, 701 N.E.2d 1023 (8th Dist.1997), citing Dupler v. Mansfield Journal, 64 Ohio
St.2d 116, 119-120, 413 N.E.2d 1187 (1980). In other words, we review the trial
court’s decision without according the trial court any deference. Brown v. Scioto Cty.
Bd. of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993).
{¶8} Under Civ.R. 56(C), summary judgment is properly granted 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 can come to but one conclusion, and that
conclusion is adverse to the party against whom the motion for summary judgment is
made. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46(1976). If the moving party fails to satisfy its initial burden, “the motion for summary
judgment must be denied.” Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264(1996). But if the moving party satisfies
its initial burden, the nonmoving party then has a reciprocal burden
outlined in Civ.R. 56(E) to set forth specific facts showing that there is a
genuine issue for trial and, if the nonmovant does not so respond, summary
judgment, if appropriate, shall be entered against the nonmoving party.
Id.III. Reasonableness and Necessity of Attorney Fees
{¶9} In their sole assignment of error, appellants argue that the trial court erred
in granting summary judgment to Bolek because Bolek did not even allege, let alone
prove, that his fees were reasonable and necessary.
{¶10} In Climaco, Seminatore, Delligatti, & Hollenbaugh v. Carter, 100 Ohio
App.3d 313, 323-324, 653 N.E.2d 1245 (10th Dist.1995), the court explained:
Compensation for services rendered by an attorney is generally
fixed by contract prior to employment and the formation of the fiduciary
relationship between attorney and client. Jacobs v. Holston (1980), 70
Ohio App.2d 55, 434 N.E.2d 738. After the fiduciary relationship is
established, the attorney has the burden of establishing the reasonableness
and fairness of fees. Id. Where, prior to employment, the attorney and
client have reached an agreement as to the hourly rate to be charged and
the amount of the retaining fee, but the agreement fails to provide for the
number of hours to be expended by the attorney, in an action for attorney
fees the burden of proving that the time was fairly and properly used and
the burden of showing the reasonableness of work hours devoted to the
case rest on the attorney. Id.{¶11} Before granting summary judgment, a trial court must determine whether
attorney fees are reasonable based upon the actual value of the necessary services
performed by the attorney and evidence must exist in support of the court’s
determination. Koblentz & Koblentz v. Summers, 8th Dist. Cuyahoga No. 94806,
2011-Ohio-1064, ¶ 9, citing In re Hinko, 84 Ohio App.3d 89, 95, 616 N.E.2d 515 (8th
Dist.1992). In making that determination, some of the factors to be considered include
“(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) result obtained;
and (4) experience, reputation and ability of counsel.” Pyle v. Pyle, 11 Ohio App.3d
31, 35, 463 N.E.2d 98 (8th Dist.1983), quoting DR 2-106(B), Code of Professional
Responsibility; Annotation, 57 A.L.R.3d 475 (1974).
{¶12} Generally, merely submitting an attorney’s itemized bill is insufficient to
establish the reasonableness of the amount of work billed. United Assn. of Journeyman
& Apprentices of the Plumbing and Pipe Fitting Industry, Local Union No. 776 v. Jack’s
Heating, Air Conditioning & Plumbing, Inc., 3d Dist. Hardin No. 6-12-06,
2013-Ohio-144, ¶ 25; Whitaker v. Kear, 123 Ohio App.3d 413, 424, 704 N.E.2d 317 (4th
Dist.1997); Climaco, Seminatore, Delligatti & Hollenbaugh, 100 Ohio App.3d 313, 324,
653 N.E.2d 1245. And, frequently, a party will offer expert testimony to establish that
the hours charged were reasonable in light of the litigation’s particular facts. See, e.g.,
Hawkins v. Miller, 11th Dist. Lake No. 2011-L-036, 2011-Ohio-6005, ¶ 28 (affirming
award of attorney fees where expert testified to the amount of time and hourly rate
charged); Whitaker at 424-425 (affirming trial court’s finding that evidence was
sufficient to prove reasonableness of fee request where expert testified to the
reasonableness of the time spent on the litigation).
{¶13} In some matters, the requesting party refrains from offering expert
testimony but instead offers testimony from other individuals to corroborate the
attorney’s self-serving testimony that the fee request is reasonable. See, e.g., Koblentz
& Koblentz v. Summers, 8th Dist. Cuyahoga No. 94806, 2011-Ohio- 1064, ¶ 14
(affirming award of attorney fees in a collection action where both an attorney with the
plaintiff law firm and a third-party attorney testified to the nature of the proceedings
giving rise to the collection action); Schottenstein, Zox & Dunn Co., L.P.A. v. Reineke,
9th Dist. Medina No. 10CA0138-M, 2011-Ohio- 6201, ¶ 26-28 (affirming award of
attorney fees in collection action where both an attorney with the plaintiff-law firm and
the defendant-client testified the nature of the proceedings giving rise to the collection
action).
{¶14} Thus, it is well established that “attorney 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, citing Disciplinary Counsel v. Johnson, 113 Ohio St.3d 344,
2007-Ohio-2074, 865 N.E.2d 873, ¶ 71. As we explained in Swanson v. Swanson, 48
Ohio App.2d 85, 355 N.E.2d 894 (8th Dist.1976):
[D]ifficulties exist with respect to the [trial court’s award of
attorney fees]. Counsel for the appellee submitted a twenty-three page
statement of account for legal services rendered to the appellee. Though
that statement purports to concern “all legal services rendered” in the case,
an examination of the document reveals that it is concerned only with those
services rendered after the separation agreement — commencing on
December 4, 1972. Specific actions of counsel are listed, but the amount
of the fee requested by the appellee and granted by the court was obtained
by a simple mechanical formula. The appellee indicated that a total of
211.7 hours had been expended by her counsel. That figure was
multiplied by $40, which represented the minimum fee under the schedule
of the Bar Association. This multiplication produced a subtotal of
$8,468, to which $312.40 for miscellaneous costs was added, making a
total of $8,780.40.
As a matter of law we find that this method of determining fees is
deficient. Under both the disciplinary rules and the extensive case law, see
annotation 57 A.L.R.3d 475, time expended is only one of the factors to be
considered. The value of services may be greater or less than that which
would be reflected by a simple multiplication of an hourly rate by time
expended. We think that in divorce cases, as in probate cases, “[t]o employ
the time clock method alone as the test for legal services * * * would
certainly be improper and result in completely inadequate fees in large
estates and disproportionately high fees in modest ones.” In re Augar
(1963), 39 Misc. 2d 936, 242 N.Y.S.2d 84, 89, aff’d, 245 N.Y.S. 2d 358.
Indeed, it is recognized that domestic relations cases tend to
consume a considerable amount of time and that counsel must generally
realize that he cannot always expect full compensation for the time so
consumed. E.g., DeWitt v. DeWitt (S.D.1971), 191 N.W.2d 177; Shuman
v. Shuman (Pa.1961), 170 A.2d 602.
Swanson at 91-92.
IV. Analysis
{¶15} McNeal and Smith are correct that in Bolek’s summary judgment motion,
he merely set forth the law for a breach of contract claim, i.e., the existence of the
contract, breach by the defendants, and damages, but he did not set forth any argument or
evidence regarding the reasonableness and necessity of his fees. Indeed, he did not
even mention “reasonable” or “necessary” in his motion or affidavit attached to his
summary judgment motion.
{¶16} In his affidavit, Bolek authenticated the exhibits that were attached to his
motion. These exhibits included the agreement between the parties, a docket of the
domestic relations matter, itemized statements sent to McNeal and Smith that included
detailed billing and the outstanding balance owed, copies of checks that McNeal and
Smith paid to Bolek, and an addendum to the parties’ agreement that was signed in
September 2009. Thus, the question presented here is whether Bolek met his burden of
proving that his attorney fees were reasonable and necessary as a matter of law through
the evidence that he attached to his summary judgment motion. After review, we find
that he did not.
{¶17} Bolek argues that he was not required to offer evidence or expert testimony
as to the reasonableness and necessity of his fees because appellants never expressed
dissatisfaction with his work on the case or with his fees. He maintains that this is
evidenced by appellants entering into an addendum to the agreement with him in
September 2009 (when they owed Bolek $26,303.69 as of September 9, 2009). In the
addendum, appellants acknowledged what they owed Bolek at that point, and agreed to
pay Bolek $1,200 per month toward the balance and any additional fees incurred.
Appellants do not offer any evidence that they expressed to Bolek that they were
dissatisfied with his services or his fees.
{¶18} Even though appellants did not express any dissatisfaction to Bolek, he still
has not met his burden as a matter of law in this case. In Lillie & Holderman, 8th Dist.
Cuyahoga No. 99271, 2013-Ohio-3431, at ¶ 10, this court explained:
Where a client does 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, no expert testimony regarding the reasonableness of charged fees is
required. Koblentz & Koblentz v. Summers, 8th Dist. Cuyahoga No.
94806, 2011-Ohio- 1064, ¶ 13, citing Hermann, Cahn & Schneider v. Viny,
42 Ohio App.3d 132, 537 N.E.2d 236 (8th Dist.1987); Reminger &
Reminger Co., L.P.A. v. Siegel Co., L.P.A., 8th Dist. Cuyahoga No. 77712,
2001 Ohio App. LEXIS 760 (Mar. 1, 2001). In such cases, the attorney
can testify to the reasonableness of his own fees. Id.{¶19} In Lillie & Holderman, however, we reversed the trial court’s judgment
granting summary judgment to the attorney, stating:
The record here reflects that L&H, on December 22, 2008, March
13, 2009, February 15, 2010, October 1, 2010, November 8, 2010 and
January 12, 2011, sent appellant statements for services rendered. The
records also reflect that from July 12, 2008, through November 5, 2010,
appellant made twelve payments totaling $24,000 on the account.
Because there was absolutely no evidence that appellant at any point
expressed dissatisfaction with the fee L&H was charging for the firm’s
services, Lillie could testify to the reasonableness of his fees. However,
Lillie’s affidavit offers no evidence consistent with the above Pyle factors
to support his legal conclusion that his fees are reasonable. Although
Lillie was not required to offer independent expert testimony on the issue
of a reasonable rate, he was still required to offer evidence consistent with
Pyle. Koblentz & Koblentz v. Summers, 8th Dist. Cuyahoga No. 94806,
2011-Ohio-1064, ¶ 9; Climaco, Seminatore, Delligatti & Hollenbaugh v.
Carter, 100 Ohio App.3d 313, 653 N.E.2d 1245 (10th Dist.1995). As no
such evidence exists in the record we find that the trial court erred in
granting summary judgment in favor of L&H on this issue.
Id. at ¶ 11.
{¶20} Just as in Lillie & Holderman, Bolek attached evidence to his summary
judgment motion establishing that he sent statements to McNeal and Smith throughout
2009 and 2010. After McNeal’s ex-husband passed away, Bolek continued to send
statements to appellants regarding payments that they had made on the account. And
because appellants never complained to Bolek that his fees were unreasonable, Bolek
was competent to testify as to the reasonableness of his rate. Nonetheless, Bolek did
not offer any evidence consistent with the above Pyle factors regarding the
reasonableness and necessity of his fees. Accordingly, Bolek has not met his burden of
establishing that the amount of time he spent on the matter (resulting in approximately
$55,000 in fees) was reasonable and necessary in the 11-month time period that he
represented McNeal.
{¶21} Appellants’ sole assignment of error is sustained.
{¶22} Accordingly, we reverse the judgment of the trial court and remand to the
lower court for further proceedings consistent with this opinion.
It is ordered that appellants recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
MARY J. BOYLE, JUDGE
LARRY A. JONES, SR., A.J., and
EILEEN A. GALLAGHER, J., CONCUR