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Keller & Kehoe, L.L.P. v. Blaeuer

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 16, 2017

KELLER & KEHOE, L.L.P. N.K.A. KEHOE & ASSOCIATES, L.L.C. PLAINTIFF-APPELLANT
v.
DENNIS C. BLAEUER DEFENDANT-APPELLEE

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-853890

          ATTORNEYS FOR APPELLANT Robert D. Kehoe Kevin P. Shannon Kehoe & Associates, L.L.C.

          ATTORNEY FOR APPELLEE Dennis C. Blaeuer, pro se.

          BEFORE: E.A. Gallagher, J., Keough, A.J., and S. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          EILEEN A. GALLAGHER, J.

         {¶1} Plaintiff-appellant Keller & Kehoe, L.L.P. n.k.a. Kehoe & Associates, L.L.C. appeals from default judgment granted in the Cuyahoga County Court of Common Pleas against defendant-appellee Dennis Blaeuer in the amount of $527, 096.06 for legal services performed under contract. For the following reasons, we affirm in part, and reverse in part.

         Factual and Procedural Background

         {¶2} The background facts of this fee collection case were fully set forth by this court in Keller & Kehoe, L.L.P. v. Smart Media of Delaware, Inc., 8th Dist. Cuyahoga No. 103607, 2016-Ohio-5409 ("Keller & Kehoe I "). In 2014, appellant sued appellee and related parties for breach of contract seeking unpaid legal fees for which the parties were jointly and severally liable. Appellant obtained default judgment against all parties except for Blaeuer, who was dismissed from the case due to appellant's failure to obtain service on him. The trial court awarded appellant judgment against the remaining parties in the amount of $527, 096.06 plus statutory interest from the date of judgment and court costs. Appellant appealed that judgment to this court in Keller & Kehoe I. We affirmed the amount of the award but reversed the trial court's judgment as to statutory interest and remanded for the court to assess and award prejudgment interest. Id. at ¶ 41.

         {¶3} In 2015, appellant refiled the present case against Blaeuer, obtained service and default judgment in the amount of $527, 096.06 plus statutory interest from the date of judgment and court costs. Appellant appeals presenting substantially the same arguments pertaining to the amount of the judgment and prejudgment interest that were addressed in Keller & Kehoe I.

         Law and Analysis

         I. Prejudgment Interest

         {¶4} Appellant's first assignment of error asserts that the trial court erred in failing to award prejudgment interest. Consistent with our resolution of this issue in Keller & Kehoe I, we agree and remand for proper calculation of prejudgment interest by the trial court. Id. . at ¶ 36.

         {¶5} Pursuant to Waina v. Abdallah, 8th Dist. Cuyahoga No. 86629, 2006-Ohio-2090, the award of prejudgment interest is not discretionary once liability for breach of contract has been established. R.C. 1343.03(A) provides that: " when money becomes due and payable upon any bond, bill, note, or other instrument of writing, * * * for the payment of money arising out of * * * a contract or other transaction, the creditor is entitled to interest at the rate per annum determined pursuant to section 5703.47 of the Revised Code * * *."

         {¶6} This court has consistently recognized that in a breach of contract case between private parties where liability is established, "the trial court does not have discretion in awarding prejudgment interest." Fiorilli Constr., Inc. v. A. Bonamase Contracting Inc., 8th Dist. Cuyahoga No. 94719, 2011-Ohio-107, ¶ 57, citing Waina, supra; Reminger & Reminger Co. L.P.A. v. Fred Siegel Co., 8th Dist. Cuyahoga No. 77712, 2001 Ohio App. LEXIS 760 (Mar. 1, 2001). Indeed, "where a party has been granted ...


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