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Lillie & Holderman v. Dimora

Court of Appeals of Ohio, Eighth District

August 8, 2013

LILLIE & HOLDERMAN PLAINTIFF-APPELLEE
v.
JAMES DIMORA DEFENDANT-APPELLANT

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-754423

ATTORNEY FOR APPELLANT David V. Patton

ATTORNEYS FOR APPELLEE Robert B. Weltman David S. Brown Weltman, Weinberg & Reis Co

BEFORE: E.A. Gallagher, J., Stewart, A.J., and Edwards, J.

JOURNAL ENTRY AND OPINION

EILEEN A. GALLAGHER, J.:

{¶1} Defendant-appellant, James Dimora, appeals the order of the Cuyahoga County Court of Common Pleas granting summary judgment in favor of plaintiff-appellee Lillie & Holderman in the amount of $79, 325. For the reasons stated herein, we affirm, in part, reverse, in part, and remand for a hearing to determine the reasonableness and necessity of certain billing entries included in the attorney fee award.

{¶2} The law firm Lillie & Holderman (hereinafter "L&H") filed an action for the recovery of legal fees in connection with the firm's representation of appellant. The complaint alleged that, pursuant to an agreement between the parties, L&H performed 413.30 hours of legal services on behalf of appellant from July 14, 2008 through January 12, 2011; that the total value of L&H's legal services was $103, 325; that appellant had made payments in the amount of $24, 000 and that there remains a balance due and owing of $79, 325. L&H sought judgment in that amount plus interest from February 12, 2011.

{¶3} Appellant filed an answer denying the allegations of the complaint. L&H moved for summary judgment and attached thereto an affidavit by attorney Richard G. Lillie detailing the parties' agreement and the outstanding legal fees. L&H also attached a final billing statement, periodic billing statements provided to appellant during the course of representation, an invoice detailing the services provided with corresponding time computations and two legal services agreements that were never signed by Dimora. Appellant opposed L&H's motion for summary judgment by denying that an agreement existed between the parties but offered no evidentiary materials in support of that position.

{¶4} The trial court granted summary judgment in favor of L&H and found that, although the parties never executed a formal written agreement for legal services, L&H could recover under a theory of quantum meruit. Based on the documentary evidence submitted by L&H, the trial court granted judgment in the amount of $79, 325 plus interest at the rate of three percent from February 12, 2011. Appellant brought this appeal asserting four assignments of error that we address together because each asserts that the trial court erred in granting summary judgment in favor of L&H and that genuine issues of material fact remain.

{¶5} Our review of a trial court's grant of summary judgment is de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241. Pursuant to Civ.R. 56(C), summary judgment is appropriate when (1) there is no genuine issue of 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 nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 1995-Ohio-286, 653 N.E.2d 1196, paragraph three of the syllabus; Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 1998-Ohio-389, 696 N.E.2d 201. The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107, 662 N.E.2d 264.

{¶6} The trial court correctly noted that, in the absence of an express contract, an attorney can recover the reasonable value of services rendered on the basis of quantum meruit. Shearer v. Creekview Broadview Hts. Homeowners' Assn., 8th Dist. Cuyahoga No. 94549, 2010-Ohio-5786, ¶ 14, citing Baer v. Woodruff, 111 Ohio App.3d 617, 676 N.E.2d 1195 (10th Dist. 1996). The appellant does not challenge the trial court's application of quantum meruit to the facts in this case. Indeed, the record reflects that although a written legal services agreement was never executed by the parties, appellant retained L&H in June 2008 to provide legal services and representation of him in connection with a federal grand jury investigation. [1] Appellant argues that genuine issues of material fact remain as to the reasonableness of legal fees owed to L&H.

{¶7} The evidence in the record indicates that L&H agreed to represent appellant at the rate of $250 per hour in regard to a federal grand jury investigation. After appellant was indicted in United States v. Dimora, L&H agreed to represent him at the rate of $300 per hour. For the purposes of this collection action, however, L&H is seeking only the rate of $250 per hour for its legal fees.

{¶8} Appellant argues that a genuine issue of material fact exists as to the reasonableness of L&H's rate of $250 per hour. 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." Id., quoting Pyle v. Pyle, 11 Ohio App.3d 31, 35, 463 N.E.2d 98 (8th Dist.1983).

{¶9} Rather than referencing the factors cited in Pyle, appellant argues that Rule 1.5(a) of the Rules of Professional Conduct should be applied to determine the reasonableness of fees. The factors identified in Pyle overlap with the factors in Rule 1.5(a), and the additional factors can be useful in the determination of a reasonable fee. However, we caution that the present action is not a disciplinary action. It is not the duty of this court to impose disciplinary sanctions upon a ...


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