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Lehmkuhl v. ECR Corp.

December 2, 2008

PHILLIP D. LEHMKUHL, PLAINTIFF-APPELLANT
v.
ECR CORPORATION DEFENDANT-APPELLEE



CHARACTER OF PROCEEDING: Appeal from the Mount Vernon Municipal Court Case No. 06-CVH-541.

The opinion of the court was delivered by: Delaney, J.

JUDGES: Hon. W. Scott Gwin, P.J. Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J.

OPINION

JUDGMENT: AFFIRMED.

{¶1} Plaintiff-appellant Phillip Lehmkuhl, Esq. ("Lehmkuhl") appeals from the trial court's entry awarding judgment in his favor against defendant-appellee ECR Corporation ("ECR") in the amount of $480, following a bench trial in this attorney-client fee dispute.

{¶2} Lehmkuhl is an attorney registered to practice in Ohio. On June 26, 2006, Lehmkuhl filed a complaint in the Mount Vernon Municipal Court seeking payment of unpaid attorney fees for services rendered on behalf of ECR and its employee, Jeff Hall. Both were named defendants in a civil case captioned Wagner v. Reed, et al., Case No. 06OT010046, filed in the Knox County Court of Common Pleas on January 31, 2006.

{¶3} The underlying facts follow.

{¶4} On February 9, 2006, Marc Hawk, president of ECR, verbally engaged Lehmkuhl to represent ECR and Hall in the Wagner litigation. The parties did not execute a written engagement letter. The parties agreed to an hourly rate of $160 per hour. Lehmkuhl discussed the filing of a "Motion for More Definite Statement" on behalf of ECR and Hall in response to the Wagner complaint. Hawk testified that he had "a clear expectation that 2 to 3 hours at $160 an hour was an efficient way to do it". (T. at 33). The conversation between the parties lasted for about 15 minutes.

{¶5} On February 10, 2006, Lehmkuhl filed a Motion for a More Definite Statement, pursuant to Civ.R. 12(E) on behalf of both ECR and Hall. The motion was opposed by Wagner, and Lehmkuhl filed a reply brief on February 20, 2006.

{¶6} On February 23, 2006, Lehmkuhl sent Hawk a bill for legal and secretary services rendered to ECR and Hall between February 8, 2006 to February 21, 2006 in the amount of $6,050. (Ex. A and C). On February 24, 2006, Hawk contacted Lehmkuhl expressing anger over the amount of the bills and informed Lehmkuhl of his plan to obtain substitute counsel. (T. at 35). On March 10, 2006, a notice of substitution of counsel was filed by attorney Steve Schrock. Thereafter, Lehmkuhl billed ECR for additional legal and secretarial services performed from February 24 to March 10, 2008 in the amount of $405 (Ex. B).

{¶7} On an unspecified date, the Knox County Court of Common Pleas summarily denied the "Motion for More Definite Statement" filed by Lehmkuhl.

{¶8} Lehmkuhl then filed suit in the Mount Vernon Municipal Court, seeking recovery for the value of services he rendered to ECR and Hall in the amount of approximately $6,400. The only defendant was ECR. Lehmkuhl sought recovery under the theories of express contract, implied contract and unjust enrichment.

{¶9} A bench trial was held on December 8, 2006. The parties gave opening statements, followed by the testimony of Lehmkuhl and Hawk. After the admission of exhibits, Lehmkuhl rested his case. The court announced a short recess. Upon return, the court addressed the parties, as follows:

{¶10} "Mr. Lehmkuhl, * * * it is definitely my impression today from hearing this case, that this was a matter of billable hours, not representing your client. First of all, on February 9th, your talking to Mr. Hall -- or Hawk and telling him it's gonna take 2 to 3 hours, and you've already billed up 8 hours. You've already spent 8 hours on this case and tellin' him it's gonna take 2 to 3. That just not credible, that you can tell -- you're statin' to him that this is only gonna cost him for 2 or 3 hours when you've already spent 8 hours and haven't done anything. So what I'm gonna do, Mr. Lehmkuhl, is -- I think you misrepresented the case, what you -- the scope of representation, what you were going to be doing for E.C.R. You told Mr. Hawk it'd take 2 to 3 hours. Your rate was $160 Dollars. I'll give you the benefit of the hour -- that, and say 3 hours. Judgment for the Plaintiff, $480 Dollars."

{¶11} T. at 37.

{¶12} Thereafter, the court filed a judgment entry stating, in relevant part:

{¶13} * * *

{¶14} "At the conclusion of Plaintiff's case, this Court sua sponte announced that Plaintiff had failed to prove the existence of a contract with Defendant to perform more than 3 hours of services, at $160/hour, and thus had not proven damages in excess of $480, and therefore would not be entitled to judgment in any greater amount, regardless of any evidence which may be presented by Defendant.

{¶15} "In announcing this decision, the Court further noted in its findings that Plaintiff had attempted to bill Defendant for legal research performed before Defendant retained Plaintiff, that Plaintiff had misrepresented the amount of time for which he would be billing Defendant, and that Plaintiff's bills to Defendant were clearly excessive in time and amount for the services performed."

{¶16} Judgment Entry, December 14, 2006.

{ΒΆ17} Lehmkuhl timely appeals and raises seven ...


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