Raymond L. Eichenberger, Plaintiff-Appellant,
Cynthia Chilton-Clark, et al., Defendants-Appellees.
from the Franklin County C.P.C. No. 14CV-3847 Court of Common
Raymond L. Eichenberger, pro se.
Cynthia Chilton-Clark, pro se.
A. Tawney, pro se.
Raymond L. Eichenberger.
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
FACTS AND PROCEDURAL HISTORY
2} On April 8, 2014, Eichenberger filed suit against
appellees, Cynthia Chilton-Clark 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
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 ¶
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
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
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
(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
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 ...