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Eichenberger v. Chilton-Clark

Court of Appeals of Ohio, Tenth District

August 20, 2019

Raymond L. Eichenberger, Plaintiff-Appellant,
Cynthia Chilton-Clark, et al., Defendants-Appellees.

          APPEAL from the Franklin County C.P.C. No. 14CV-3847 Court of Common Pleas

         On brief:

          Raymond L. Eichenberger, pro se.

          Cynthia Chilton-Clark, pro se.

          David A. Tawney, pro se.


          Raymond L. Eichenberger.

          Cynthia Chilton-Clark.


          BRUNNER, J.

         {¶ 1} Plaintiff-appellant, Raymond L. Eichenberger, appeals two decisions entered by the Franklin County Court of Common Pleas on July 5, 2016 and October 20, 2017, respectively denying Eichenberger's motion for summary judgment and granting defendants-appellees' motions for summary judgment. With respect to his claim regarding the underlying foreclosure litigation in which he represented defendant-appellee Cynthia Chilton-Clark, we agree that because his client disputed the amount billed, because Eichenberger was later adjudged to have behaved unethically toward his client, and because he only alleged that his client had not paid the full total as billed, he was required to, but did not, present proper expert evidence to substantiate the reasonableness of his full fee. We also agree that Eichenberger was not entitled to recover fees on a contingent fee case in which the contingency (the client's recovery) never occurred. We likewise agree that successor counsel was legally permitted to compete with Eichenberger and was not as a matter of law interfering in the contract between Eichenberger and his client. For these reasons, we agree with the trial court that Eichenberger was not entitled to summary judgment and conversely that the appellees were.


         {¶ 2} On April 8, 2014, Eichenberger filed suit against appellees, Cynthia Chilton-Clark[1] and David A. Tawney. (Apr. 8, 2014 Compl.) The complaint alleged (and Chilton admitted) that Chilton had contracted with Eichenberger (who was then an attorney) to defend her in a foreclosure action and to prosecute a civil case against her former accountant. (Compl. at ¶ 2-3; May 12, 2016 Chilton Answer at ¶ 2-3.) The complaint went on to allege that Chilton had breached the foreclosure defense fee agreement by failing to permit Eichenberger to appeal on her behalf and then failed to pay the balance of her bill, $3, 820. (Compl. at ¶ 6-12.) It alleged that Chilton had breached the fee agreement in another case against her former accountant by discharging Eichenberger as her counsel before the case had concluded and by refusing to pay to Eichenberger contingent fees or an hourly rate for the hours he expended on the litigation. Id. at ¶ 13-21. The complaint also sought damages against Tawney (the attorney who succeeded Eichenberger as Chilton's counsel) for interference with the contract between Eichenberger and Chilton because he agreed to be Chilton's lawyer without the consent of Eichenberger and without first ensuring that Chilton paid what Eichenberger demanded. Id. at ¶ 24-25.

         {¶ 3} A copy of the hand-signed contingent fee agreement in the case against Chilton's former accountant was eventually made part of the summary judgment record. (Contingent Fee Agreement, attached to Apr. 26, 2016 Eichenberger Mot. for Summ. Jgmt.) The contingent fee agreement provided for payment of one third of the gross amount of any eventual settlement to Eichenberger and then also provided:

Client(s) has/have been told and understand(s) that if the relationship with the attorney is terminated prior to settlement or court judgment that this agreement supersedes any subsequent agreement with any other attorney or any insurance company and that the contingent fee shall still be owed to the attorney whenever the settlement or judgment is paid to the client(s).
Client(s) also agree(s) that if the legal matter and/or litigation is terminated voluntarily at the decision of the client(s) before the point where monetary recovery by way of settlement or court judgment has been finally denied, or if the client(s) fail(s) to cooperate with the attorney at any time to pursue the case, or if the client abandons the case, that the client(s) will owe the attorney the reasonable value of his services and time spent to date on the case up to the point of termination of work by the attorney and/or abandonment by the client(s).
For purposes of this Agreement, the reasonable value of the attorney's time is hereby agreed to be $ 200.00 per hour for every hour and tenth of an hour attorney expends on the legal matter for the client(s).


         {¶ 4} Although what purported to be a retyped conformed copy of the fee agreement in the foreclosure case had been filed in the record, no copy of the original, hand-signed fee agreement for the foreclosure lawsuit was ever introduced into evidence in Eichenberger's lawsuit against his former client. (Foreclosure Fee Agreement, Ex. to Compl.) The foreclosure fee agreement provided that the rate of pay was to be $200 per hour, to be drawn from periodically deposited retainers, and that the balance of fees would be due in the event the attorney-client relationship terminated before the legal matter was concluded. Id.

         {¶ 5} On April 26, 2016, Eichenberger filed a motion for summary judgment against both Chilton and Tawney. (Apr. 26, 2016 Eichenberger Mot. for Summ. Jgmt.) Chilton and Tawney moved for summary judgment against Eichenberger on May 25 and 26, 2017, respectively. (May 25, 2017 Chilton Mot. for Summ. Jgmt.; May 26, 2017 Tawney Mot. for Summ. Jgmt.) Eichenberger and both defendants, Chilton and Tawney, filed affidavits and other exhibits.

         {¶ 6} Eichenberger's affidavit swore that he was retained by Chilton in the foreclosure case at a rate of $200 per billed hour, that he provided legal services in connection with the foreclosure case, and that Chilton refused to pay the final bill amount for services rendered. (June 9, 2017 Eichenberger Aff. ¶ 3-4, 8, attached to June 9, 2017 Eichenberger Memo. in Opp.) Eichenberger averred that when Chilton refused to pay on the foreclosure case bill, he refused to do further legal work on the contingent fee case against her accountant until she paid to his satisfaction. Id. at ¶ 9. Instead of paying as demanded, Chilton dismissed Eichenberger as her attorney in the contingent fee case. Id. at ¶ 10. She then refused to pay an hourly billed rate for the work he had already performed on the contingent fee case. Id. at ¶ 11-13. Eichenberger admitted that not until November 2012 did Chilton's new attorney pick up Chilton's file from his office, but Eichenberger averred that he had no documents in his possession that were not also in Chilton's possession. Id. at ¶ 22-23. Eichenberger asserted that Chilton owed him $3, 820 for his work on the foreclosure case and $20, 080 on the contingent fee case. Id. at ¶ 18. Notwithstanding Eichenberger's claim that he was owed fees on the contingent fee case, he admitted that, with Tawney as counsel, Chilton lost the contingent fee case and that defeat was affirmed by the court of appeals. Id. at ¶ 14.

         {¶ 7} Chilton, in her affidavit, agreed that she entered into two fee agreements with Eichenberger. (May 25, 2017 Chilton Aff. at ¶ 3.) She admitted also that she received a bill from Eichenberger after he claimed she breached the foreclosure case agreement by refusing to appeal. Id. at ¶ 4. However, she averred that she always paid when Eichenberger asked her for a payment on a case, that she paid by cash or check, and that Eichenberger never provided her receipts even though she asked for them. Id. at ¶ 5-6. She stated that she had paid more than what Eichenberger had accounted for in his billing and that the bills he sent her had errors. Id. at ¶ 12-13. She averred that after Eichenberger started denying that she had paid, demanding more payments, and mishandling the suit against her accountant, she asked that he withdraw and return her files. Id. at ¶ 8-10. He refused on both counts and she was forced to file a pro se motion to force him to withdraw. Id. at ¶ 10, 14.

         {¶ 8} Tawney, in his affidavit, agreed that he represented Chilton in the contingent fee case beginning when he entered an appearance on May 15, 2012. (May 26, 2017 Tawney Aff. at ¶ 9.) Although Tawney explained that he had represented Chilton on other matters before entering an appearance in the contingent fee case, he averred that he only represented Chilton in the contingent fee case after she terminated Eichenberger on April 25, 2012. Id. at ¶ 5-6, 8, 10. He stated that when Chilton told him that she wanted to dismiss Eichenberger as her counsel in the contingent fee case, he advised her as to the steps she would have to take to terminate Eichenberger. Id. at ¶ 7.

         {¶ 9} The parties also introduced some documentary evidence. Eichenberger introduced sparse itemized time bills for each case. (Bills, attached to June 9, 2017 Eichenberger Memo. in Opp.) Tawney introduced copies of Chilton's pro se motion dismissing Eichenberger, the trial court's order dismissing Eichenberger as counsel of record, and dockets for Chilton's divorce and the contingent fee action. (May 26, 2017 Tawney Exs.) Chilton produced a series of correspondence between her and Eichenberger. (Chilton Exs. 1-5, filed May 17, 2016; Chilton Exs. 2-6, 9-21, attached to May 25, 2017 Chilton Aff.)

         {¶ 10} The correspondence between Chilton and Eichenberger generally confirmed a contentious relationship between the parties, provided evidence that Chilton made some payments, showed that Eichenberger nonetheless felt he was owed further payments, and demonstrated that Eichenberger refused to withdraw and to return Chilton's files. On January 19, 2012, for example, Chilton wrote to Eichenberger regarding the status of the cases and inquired, "What hours will you be in on Friday? I most likely will be paying in cash as usual." (Chilton Ex. 4, attached to May 25, 2017 Chilton Aff.) Then on February 28, 2012, Eichenberger wrote:

Hello Cindy.
You didn't drop a check off for me yesterday as I had asked you to do.
Nor have you told me when you are going to pay the bill.
If you're going to deliver the signature pages of the Affidavits to me today, I need for you to include a check for the full amount of the foreclosure bill.
I don't continue to do legal work for people who owe me money.
Ray Eichenberger

(Chilton Ex. 2, filed May 17, 2016.) In a separate e-mail, Eichenberger elaborated by asserting that Chilton was seeking to delay paying her bills and added, "I don't apologize to clients for expecting them to pay me PROMPTLY for my services rendered." (Chilton Ex. 5, attached to May 25, 2017 Chilton Aff.) Later that day, Chilton replied in relevant part:

Sending me a bill for over a year of services and making it sound as though [I] shouldn't drop off the signed affidavits on a different case if I don't have a check is absolutely wrong. I have several issues with the bill at first glance, so it will take me some time to review it...time that I don't have right now with this deadline approaching and you waiting until the last minute to send me this stuff to review. I don't have receipts for all accounting legal expenses that I paid you by check or cash and I can't complete taxes [un]til then.


         {¶ 11} Approximately one month later, on March 26, 2012, Chilton sent an e-mail to Eichenberger indicating that he was charging her excessively, had mishandled the case, was unethically refusing to do further work on the contingency fee case, and that, in consequence, she was speaking to other attorneys about how to proceed. (Chilton Ex. 6, attached to May 25, 2017 Chilton Aff.)

         {¶ 12} In April, Eichenberger ...

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