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Green & Green v. Trimbach

Court of Appeals of Ohio, Second District, Montgomery

January 19, 2018

GREEN & GREEN, LAWYERS Plaintiffs-Appellees
RODNEY TRIMBACH, et al. Defendants-Appellants

         Civil Appeal from Common Pleas Court Trial Court Case No. 16-CV-3969

          FREDRIC L. YOUNG, Atty. Reg. No. 0059544 and JONATHAN F. HUNG, Atty. Reg. No. 0082434 Attorney for Plaintiffs-Appellees.

          DWIGHT D. BRANNON, Atty. Reg. No. 0021657 and MATTHEW C. SCHULTZ, Atty. Reg. No. 0080142 Attorney for Defendants-Appellants.


          FROELICH, J.

         {¶ 1} Rodney and Lisa Trimbach and Performance Site Development, LLC, ("PSD") appeal from a judgment of the Montgomery County Court of Common Pleas, which granted summary judgment to the law firm of Green & Green on its claims for collection on account and unjust enrichment. For the following reasons, the judgment of the trial court will be affirmed.

         Facts and Procedural History

         {¶ 2} On August 1, 2016, "Green & Green, Lawyers" filed a complaint for collection on accounts and unjust enrichment against Mr. and Mrs. Trimbach and PSD, an Ohio limited liability company of which Mr. Trimbach is the sole and managing member.

         {¶ 3} According to the engagement letter, which was attached to the complaint, Green & Green was hired to represent the Trimbachs and PSD in a pending foreclosure action against the Trimbachs' residence and in a malpractice action.[1] Pursuant to an email sent from Green & Green attorney Jonathan Hung to Mr. Trimbach a few days later, which was also attached to the complaint, Mr. Trimbach started a "third account" with Green & Green after some discussions with the attorneys; the third account was for dissolution of M&R, LLC, in which Mr. Trimbach had a 50% interest.[2] Several billing statements for the account numbers associated with the two matters (the foreclosure and dissolution of M&R) were also attached to the complaint.

         {¶ 4} The Trimbachs filed pro se motions to dismiss the complaint against them, and Mr. Trimbach filed a motion to dismiss on behalf of PSD. The motions to dismiss alleged that the proper parties had not been named in Green & Green's complaint and that some of the bills presented were for matters about which the firm had "not provided a signed contract for any such legal services." Green & Green opposed the motions to dismiss.

         {¶ 5} On October 13, 2016, the trial court granted the motion to dismiss Mrs. Trimbach from the claim for legal services provided to M&R, on the basis that she was not a member of M&R, and the complaint alleged only that Mr. Trimbach had hired the firm to provide services dissolving M&R (and protecting PSD's interests) and owed money to the firm on behalf of M&R. The court did not dismiss the claims against Mrs. Trimbach with respect to fees incurred in the foreclosure action. Mr. Trimbach's motion to dismiss was overruled in its entirety, and his motion on behalf on PSD was stricken because, as a non-attorney, he was not permitted to file a pleading on behalf of a corporation or similar entity.

         {¶ 6} After the motions to dismiss were resolved, neither the Trimbachs nor PSD filed an answer to Green & Green's complaint.

         {¶ 7} On January 18, 2017, Green & Green filed a Motion for Default Judgment and Summary Judgment against the Trimbachs and PSD for the fees owed in the foreclosure and M&R dissolution (accounts 27893 and 27894, respectively). The firm sought default judgment on the question of the Trimbachs' and PSD's liability, because they had not filed answers, and the firm sought summary judgment on the amount of damages, asserting that there was no genuine issue of material fact as to the amount owed or the reasonableness of its fees. The Trimbachs and PSD opposed the motion for default and summary judgment.

         {¶ 8} On March 17, 2017, the trial court granted in part and denied in part Green & Green's motion for default judgment and summary judgment. The trial court denied the motion for default judgment, noting that Green & Green had conceded that default judgment "may not be warranted, " and finding that, although no answers were filed, the Trimbachs' motions to dismiss constituted an effort, under Civ.R. 55(A), to "otherwise defend" against Green & Green's claim. The trial court granted Green & Green's motion for summary judgment on the Trimbachs' and PSD's liability for payment of its fees and on the reasonableness of the fees.

         {¶ 9} The Trimbachs and PSD appeal, raising one assignment of error. They challenge the trial court's decision granting summary judgment to Green & Green for the fees owed on their accounts. Specifically, they challenge whether any fees were owed by PSD and whether sufficient evidence was presented to establish the reasonableness of all the claimed ...

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