[Cite as Brannon v. Persons, 2018-Ohio-114.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 DWIGHT D. BRANNON, et al.                           :
                                                     :
         Plaintiffs-Appellees                        :   Appellate Case No. 27444
                                                     :
 v.                                                  :   Trial Court Case Nos. 2015-CV-1473
                                                     :   and 2015-CV-3889
 DONNA K. PERSONS, et al.                            :
                                                     :   (Civil Appeal from
         Defendants-Appellants                       :   Common Pleas Court)
                                                     :

                                                ...........

                                               OPINION

                          Rendered on the 12th day of January, 2018.

                                                ...........

DWIGHT D. BRANNON, Atty. Reg. No. 0021657, MATTHEW C. SCHULTZ, Atty. Reg.
No. 0080142, 130 West Second Street, Suite 900, Dayton, Ohio 45402
      Attorneys for Plaintiffs-Appellees

DONNA K. PERSONS, 2939 Tubman Avenue, Dayton, Ohio 45417
    Defendant-Appellant-Pro Se

                                               .............




WELBAUM, J.
                                                                                       -2-




      {¶ 1} In this case, Defendant-Appellant, Donna Persons, appeals pro se from a

summary judgment rendered on behalf of Plaintiffs-Appellees, Dwight Brannon and

Matthew Schultz (collectively, “Appellees”).   Persons contends that the trial court erred

in finding that she breached a contingent fee contract with Appellees, and in awarding

Appellees an amount equal to their contingency fee.

      {¶ 2} We conclude that the trial court did not err in rendering summary judgment

in favor of Appellees on their claim for attorney fees, as Appellant failed to submit any

evidence that created a genuine issue of material fact regarding the reasonableness of

the fees. Further, assuming for the sake of argument that the action was more properly

based on quantum meruit than breach of contract, no prejudice occurred. Appellees also

asked the court for equitable relief, and Appellant failed to provide the court with any

evidence to challenge the fees that were requested. Appellant was entitled under the

law to discharge her attorneys, but she was not entitled to breach the settlement

agreement in an attempt to recover more money than the sum to which she had agreed

during mediation.    Finally, Appellant failed to submit any evidence indicating that

Appellees committed legal malpractice. Accordingly, the judgment of the trial court will

be affirmed.



                             I. Facts and Course of Proceedings

      {¶ 3} This action involves two trial court cases that were consolidated. Appellees

are attorneys who handled a medical malpractice action for Persons. In March 2015,

Appellees filed a complaint against Persons, alleging that she had breached a
                                                                                      -3-


contingency fee contract by refusing to sign a release, by attempting to renegotiate a

settlement, and by discharging Appellees as counsel after they had completed their

representation. Appellees also included the following defendants in the lawsuit – Leslie

Cowden, fiduciary of the estate of John Cowden, D.P.M., Central Foot and Ankle Center,

and Foot and Ankle Specialists (collectively, “Cowden”) – and asked for an injunction

ordering these parties to place the settlement funds in escrow. In addition, Appellees

requested a declaratory judgment that they were entitled to enforce the settlement

agreement as third-party beneficiaries. Finally, Appellees asserted a bad faith claim

against Persons, contending that she had acted in bad faith.

      {¶ 4} According to the complaint, Persons had signed a contingency fee

agreement with Appellees on December 29, 2010.            Pursuant to the agreement,

Appellees filed a medical malpractice action on Persons’ behalf in February 2012. The

case was filed against Cowden, and was docketed as Montgomery County Common

Pleas Court Case No. 2012-CV-1126.

      {¶ 5} A copy of the fee agreement was attached to the complaint as Ex. 1. The

complaint alleged that Cowden and Persons had reached agreement during a mediation

in September 2014, and that Persons had signed the settlement agreement. A copy of

the settlement agreement, with the amount redacted, was attached as Ex. 2. According

to Appellees, Persons failed to perform as required by the settlement agreement, and

subsequently discharged Appellees as counsel.

      {¶ 6} In April 2015, Cowden filed an answer and cross-claim against Persons. In

the cross-claim, Cowden admitted that a settlement had been reached, and asked the

court to order Persons to perform under the settlement contract. Persons filed a pro se
                                                                                         -4-


answer in April 2015, asking the court to strike the complaint on various grounds.

Persons also asked for “relief from judgment” pursuant to Civ.R. 60(B), although no

judgment was pending against her.

       {¶ 7} On April 30, 2015, Appellees filed a motion for partial summary judgment on

their claims for breach of contract and injunctive relief. The motion was supported by the

affidavit of Schultz, who identified the contingency fee contract and the written settlement

agreement that Persons had signed on September 11, 2014. Schultz also outlined what

had occurred concerning settlement of the medical malpractice case.

       {¶ 8} The contingency fee agreement provided that Appellees would receive a

percentage of the gross recovery before suit costs, other appropriate expenses, setoffs,

and subrogation. The fee percentage was based on the state at which recovery was

received. For example, prior to suit being filed, Appellees’ fee would be 40% of the gross

recovery; after suit was filed, the percentage would be 45%. Schultz Affidavit, Ex. 1, p.

1. Persons also agreed to pay costs, including Appellees’ personal and travel expenses,

as well as expenses like expert fees.

       {¶ 9} A mediation had occurred in the medical malpractice case on September 11,

2014, and resulted in an agreement to settle the case. The settlement agreement was

dated the same day, and was signed by Persons, who agreed to settle her pending case

against Cowden for a specific amount (redacted) within thirty days. Persons also agreed

to satisfy any liens related to her claims, and to pay one-half the mediation costs.

       {¶ 10} On April 30, 2015, Cowden filed a motion for judgment on the pleadings in

connection with the cross-claim against Persons.        This was based on the fact that

Persons’ response to the cross-claim was unintelligible, and the fact that Persons did not
                                                                                           -5-


dispute having signed the settlement agreement.

      {¶ 11} Persons responded to Appellees’ summary judgment motion on May 20,

2015, but did not attach any affidavits.         She did file some type of transcript of

conversations with her attorneys that allegedly took place in October 2014, after the

settlement agreement was signed.

      {¶ 12} Further responses from both Persons and Appellees regarding the

summary judgment motion were filed in June 2015. In addition, Persons filed an affidavit

on June 16, 2015, which basically stated that she was not satisfied with the amount of the

settlement to which she had agreed.

      {¶ 13} On June 18, 2015, the trial judge asked to be disqualified based on his

professional acquaintance with Appellees. The Supreme Court of Ohio then assigned a

visiting judge to the case in September 2015.

      {¶ 14} In July 2015, Persons filed a separate action against Appellees, alleging

breach   of   contract,   legal   malpractice,   breach   of   fiduciary   duty,   fraudulent

misrepresentation, and fraud. This case was docketed as Montgomery County Common

Pleas Court Case No. 2015-CV-03889, and was assigned to the same judge who was

hearing the fee dispute case. In April 2016, Appellees filed a motion for partial summary

judgment on these claims, which Appellees contended were claims for legal malpractice.

The summary judgment motion was supported by the affidavits of several attorneys, who

stated that Appellees had complied with pertinent standards of care.

      {¶ 15} In the meantime, on October 29, 2015, Appellees renewed their motion for

partial summary judgment in the fee dispute case, and attached the affidavits of Matthew

Schultz and Arthur Phelps (counsel for Cowden). Among other things, the affidavits and
                                                                                        -6-


documents indicated that Persons had signed a full and final release of her claims against

Cowden. According to Phelps, Persons had signed the release on October 2, 2015.

       {¶ 16} In February 2016, Cowden also filed a motion for summary judgment,

arguing that no genuine issues of material fact existed concerning whether an enforceable

settlement existed. Cowden further asked the court to allow Cowden to deposit the

settlement proceeds in escrow and to dismiss Cowden from the action.            Cowden’s

motion was supported by the affidavit of Arthur Phelps, who attached Persons’ October

2, 2015 release of all claims against Cowden.

       {¶ 17} The trial court granted Cowden’s summary judgment motion in April 2016,

and ordered Cowden to deposit the settlement proceeds in an escrow account with the

Montgomery County Clerk of Courts. In addition, the court dismissed Cowden from the

action. Subsequently, on May 2, 2016, the trial court concluded that summary judgment

should be rendered in Appellees’ favor on their fee claim as well as on Persons’

malpractice claim. The court then set a hearing for July 26, 2016, to consider disposition

of the funds deposited with the clerk.

       {¶ 18} On June 21, 2016, Persons filed a notice of appeal from the May 2, 2016

summary judgment decision.       However, we dismissed the appeal for lack of a final

appealable order on November 1, 2016. See Brannon v. Persons, 2d Dist. Montgomery

No. 27151 (Nov. 1, 2016).

       {¶ 19} While the case was on appeal, the trial court filed a judgment entry awarding

Appellees the sum of $87,750, which was 45% of the total settlement amount, consistent

with the fee agreement between Appellees and Persons.           The court also awarded

judgment to Appellees on all claims asserted by Persons in Case No. 2015-CV-3889. In
                                                                                         -7-


addition, the court awarded Appellees $2,588.61 in costs and $4,399.52 in prejudgment

interest from November 24, 2014, up to the time of the hearing held on July 26, 2016.

       {¶ 20} At that time, the court overruled Appellees’ motion for attorney fees incurred

in both pending cases, because their claim for bad faith remained pending.             The

judgment, which was filed on August 25, 2016, was accompanied by a Civ.R. 54(B)

certification. Persons filed a notice of appeal from this judgment on September 14, 2016.

We dismissed the appeal, however, finding that the trial court lacked jurisdiction to enter

an order while the appeal was pending. See Brannon v. Persons, 2d Dist. Montgomery

No. 27266 (Dec. 20, 2016).

       {¶ 21} Subsequently, on January 17, 2017, the trial court entered another

judgment, which awarded Appellees the same amounts for attorney fees, costs, and

prejudgment interest. The court, thus, ordered a total of $95,044.13 to be distributed to

Appellees, and $76,539.20 to be distributed to Persons. However, the court also ordered

that $23,416.67 of Person’s award would be retained in escrow, pending the court’s

resolution of Appellees’ claims for bad faith and attorney fees.

       {¶ 22} The January 2017 decision incorporated the May 2, 2016 summary

judgment order, and the court also included a Civ.R. 54(B) certification with the judgment.

Persons then filed a notice of appeal on February 7, 2017, and her appeal was docketed

as Appeal No. 27444 (the current case).

       {¶ 23} On March 15, 2017, Appellees filed a motion to dismiss the current appeal,

based on the fact that the Clerk of Courts paid Appellees the judgment of $95,044.13 on

January 19, 2017. Appellees contended that the appeal, therefore, was moot.

       {¶ 24} We filed a decision and entry on July 5, 2017, overruling the motion to
                                                                                             -8-


dismiss. We noted that while we were overruling the motion at that time, Appellees could

make arguments about mootness in their brief, and the issue would be decided when the

case was submitted to a merit panel. See Brannon v. Persons, 2d Dist. Montgomery No.

27444 (July 5, 2017). Both sides have filed their briefs, and the matter is ready for

disposition. Appellees have reasserted their claim of mootness in their brief, and we will

consider that matter first, as it could dispose of the appeal.



                                  II. Whether the Appeal is Moot

       {¶ 25} According to Appellees, the appeal is moot because Persons failed to obtain

a stay of execution, and the judgment against her was satisfied by the payment to

Appellees on January 19, 2017. Persons did not file a reply brief, and has not responded

to this argument.

       {¶ 26} Requirements for a stay of execution are contained in R.C. 2505.09, which

provides that “an appeal does not operate as a stay of execution until a stay of execution

has been obtained pursuant to the Rules of Appellate Procedure or in another applicable

manner, and a supersedeas bond is executed by the appellant to the appellee, with

sufficient sureties and in a sum that is not less than, if applicable, the cumulative total for

all claims covered by the final order, judgment, or decree and interest involved * * *.”

       {¶ 27} App.R. 7(A) provides that, ordinarily, applications for a stay of execution

must first be made in the trial court. This rule further states that “[a] motion for such relief

* * * may be made to the court of appeals or to a judge thereof, but, except in cases of

injunction pending appeal, the motion shall show that application to the trial court for the

relief sought is not practicable, or that the trial court has, by journal entry, denied an
                                                                                          -9-


application or failed to afford the relief which the applicant requested.” Persons did not

apparently take any of these actions to stay the trial court’s judgment; at a minimum, our

docket does not reveal an application for a stay.

       {¶ 28} In Blodgett v. Blodgett, 49 Ohio St.3d 243, 551 N.E.2d 1249 (1990), the

Supreme Court of Ohio held that:

       It is a well-established principle of law that a satisfaction of judgment

       renders an appeal from that judgment moot. “ ‘Where the court rendering

       judgment has jurisdiction of the subject-matter of the action and of the

       parties, and fraud has not intervened, and the judgment is voluntarily paid

       and satisfied, such payment puts an end to the controversy, and takes away

       from the defendant the right to appeal or prosecute error or even to move

       for vacation of judgment.’ ”

Id. at 245, quoting Rauch v. Noble, 169 Ohio St. 314, 316, 159 N.E.2d 451 (1959).

(Other citation omitted.)

       {¶ 29} In Blodgett, the appellant argued that her appeal should not be terminated

because she had signed a satisfaction of the lower court judgment and had taken its

benefits due to economic duress. Id. The Supreme Court of Ohio was not persuaded,

declining “to accept the proposition that if an appellant executes a satisfaction of judgment

merely because she cannot afford to wait for the outcome of an appeal, that satisfaction

of judgment may be subsequently avoided.” Id. at 246.

       {¶ 30} We subsequently distinguished Blodgett because our case (a foreclosure

case where the property had been sold) did not “involve a contract or agreement that a

judgment has been satisfied or settled.” Chase Manhattan Mtg. Corp. v. Locker, 2d Dist.
                                                                                         -10-

Montgomery No. 19904, 2003-Ohio-6665, ¶ 41.            See also Janis v. Janis, 2d Dist.

Montgomery No. 23898, 2011-Ohio-3731, ¶ 28 (noting that “Blodgett does not stand for

the proposition that any payment toward the satisfaction of a judgment while an appeal is

pending renders moot the appeal or any specific issue therein. [Appellee] has cited no

authority for her suggestion that certain aspects of an appeal can be rendered moot by

the actions of the parties without an agreement to that effect and without payment in full.”)

       {¶ 31} In KeyBank Natl. Assn. v. Mazer Corp., 188 Ohio App.3d 278, 2010-Ohio-

1508, 935 N.E.2d 428 (2d Dist.), we also refused to find an appeal moot because

ownership of or interest in property being disputed (several hundred thousand pounds of

paper) had been sold and the proceeds had been placed in escrow pending appeal. Id.

at ¶ 53. Notably, we said that “[t]he statements of the parties indicate that these matters

occurred after the judgment that is on appeal, and they are not properly before us.” Id.

       {¶ 32} We further observed in KeyBank that “[t]he right to appeal is not conditioned

upon obtaining a stay of the judgment from which the appeal is taken. A party who

cannot afford the requisite supersedeas bond, or who is otherwise unable to obtain a stay

of the offending judgment – perhaps * * * because the party loses the race between the

appellant's attempt to obtain a stay and the appellee's attempt to reduce its judgment to

money, does not thereby lose the right to appeal. A voluntary satisfaction of a judgment

waives any appeal from that judgment.” (Emphasis sic.; citations omitted.) Id. at ¶ 54.

       {¶ 33} In the case before us, the payment in question apparently occurred after

judgment was rendered, and is not properly before us. Furthermore, even if this were

otherwise, there is no indication that Persons signed any type of agreement that the

judgment had been satisfied. The money had also been placed in escrow. Based on
                                                                                        -11-


the above authority, we conclude that the appeal is not moot.



                            III. Right to Terminate Fee Agreement

      {¶ 34} Because the First and Second Assignments of Error are interrelated, we will

consider them together. Persons’ First Assignment of Error states that:

             The Trail [sic] Court Erred in Finding that Appellant Donna Persons

      Breach [sic] the Contingency Fee Contract Agreement and Finding that

      Appellant Persons Was Held Binding to the Contingency Fee Contract

      Based on Hear Say [sic] With Regard to Appellant Had Received Advice

      that the Settlement Was a “Bad Deal” from “Insurance Expert” Robert

      McComb, as Lower Court Ruled on May 2, 2016.

      {¶ 35} The Second Assignment of Error states that:

             The Trail [sic] Court Erred in Granting Summary Judgment in the Full

      45% Amount of the Contingency Fee Agreement to Dwight D. Brannon &

      Associates for Breach of Contract against Appellant Donna Persons under

      the Contingency Fee Agree [sic] in Case’s [sic] 2015 CV 01473.

      {¶ 36} As was noted, Persons’ pro se brief is basically unintelligible. Under these

assignments of error, Persons appears to contend that the trial court based its grant of

summary judgment on an improper assumption that Persons received bad advice from a

third party, and that she had a right to terminate the fee contract when Appellees refused

to pursue all damages to which she was entitled, including future surgeries.

      {¶ 37} “A trial court may grant a moving party summary judgment pursuant to Civ.

R. 56 if there are no genuine issues of material fact remaining to be litigated, the moving
                                                                                       -12-


party is entitled to judgment as a matter of law, and reasonable minds can come to only

one conclusion, and that conclusion is adverse to the nonmoving party, who is entitled to

have the evidence construed most strongly in his favor.”          Smith v. Five Rivers

MetroParks, 134 Ohio App.3d 754, 760, 732 N.E.2d 422 (2d Dist. 1999), citing Harless v.

Willis Day Warehousing Co., 54 Ohio St.2d 64, 375 N.E.2d 46 (1978). “We review

decisions granting summary judgment de novo, which means that we apply the same

standards as the trial court.” (Citations omitted.) GNFH, Inc. v. W. Am. Ins. Co., 172

Ohio App.3d 127, 2007-Ohio-2722, 873 N.E.2d 345, ¶ 16 (2d Dist.).

       {¶ 38} In its order on the pending motions for summary judgment, the trial court

noted the factual background of the action. During its discussion, the court commented

on items that had been attached to Appellees’ motion for summary judgment on the fee

issue, and on items attached to Persons’ reply to the motion. The court stated that of

the various materials Persons had attached, only two had been properly submitted under

Civ.R. 56(E). These were requests for admissions and an affidavit of Mr. McCombs.

The court concluded that McCombs’ affidavit was inadmissible as hearsay, and was

additionally irrelevant to any issues in the contract case.

       {¶ 39} Concerning the fee claim, the court concluded that Persons signed a final

settlement and release of claims against Cowden on October 2, 2015, and that this

seemingly mooted her claims regarding the settlement agreement. The court then stated

that even if any fraud or misrepresentation claims survived, there was no evidence of

such. The court further commented that Mr. McCombs convinced Persons after the

mediation that she had made a “bad deal” and should get out of it. After making this

observation, the court stated that there were no genuine issues of material fact, and that
                                                                                        -13-


the settlement agreement and contingent fee agreement were binding on Persons.

      {¶ 40} The Supreme Court of Ohio has held that “[w]hen an attorney is discharged

by a client with or without just cause, and whether the contract between the attorney and

client is express or implied, the attorney is entitled to recover the reasonable value of

services rendered the client prior to discharge on the basis of quantum meruit.” Fox &

Assoc. Co., L.P.A. v. Purdon, 44 Ohio St.3d 69, 541 N.E.2d 448 (1989), syllabus. The

court further held that the maximum reach of a law firm’s right to fees “is the reasonable

value of the legal services actually rendered to the date of discharge.” Id. at 72.

      {¶ 41} “One of the central tenets of the Fox approach is that a client has an

absolute right to discharge an attorney or law firm at any time, with or without cause,

subject to the obligation to compensate the attorney or firm for services rendered prior to

the discharge. * * * Once discharged, the attorney must withdraw from the case, and can

no longer recover on the contingent-fee-representation agreement. The discharged

attorney may then pursue a recovery on the basis of quantum meruit for the reasonable

value of services rendered up to the time of discharge.” (Citations omitted.) Reid,

Johnson, Downes, Andrachik & Webster v. Lansberry, 68 Ohio St.3d 570, 574, 629

N.E.2d 431 (1994).

      {¶ 42} Furthermore, “when an attorney representing a client pursuant to a

contingent-fee agreement is discharged, the attorney's cause of action for a fee recovery

on the basis of quantum meruit arises upon the successful occurrence of the

contingency.” Reid at 575. In addition, “the quantum meruit recovery of a discharged

attorney should be limited to the amount provided for in the disavowed contingent fee

agreement.” (Citation omitted.).    Id. at 576.   The totality of circumstances is to be
                                                                                              -14-


considered in determining the fee, including the number of hours an attorney worked

before discharge, “the skill demanded, the results obtained, and the attorney-client

relationship itself.” (Citation omitted.) Id. For aid in analysis, the court also suggested

former DR 2-106(B) of the Code of Professional Responsibility, which provided guidelines

concerning reasonableness of attorney fees. Id. at 576 and fn.3.

        {¶ 43} The factors listed in this section of the Code included:

                  “(1) The time and labor required, the novelty and difficulty of the

        questions involved, and the skill requisite to perform the legal service

        properly.

                  (2) The likelihood, if apparent to the client, that the acceptance of the

        particular employment will preclude other employment by the lawyer.

                  (3) The fee customarily charged in the locality for similar legal

        services.

                  (4) The amount involved and the results obtained.

                  (5) The time limitations imposed by the client or by the

        circumstances.

                  (6) The nature and length of the professional relationship with the

        client.

                  (7) The experience, reputation, and ability of the lawyer or lawyers

        performing the services.

                  (8) Whether the fee is fixed or contingent.”

Reid, 68 Ohio St.3d at 576, fn.3, 629 N.E.2d 431, quoting DR 2-106(B).1


1   Guidelines pertaining to fees and expenses are now found in Prof.Cond.R. 1.5, and
                                                                                            -15-


       {¶ 44} The trial court did not consider the above factors specifically, but concluded

that Persons failed to submit any evidence to support her claims. The issue, therefore,

is whether the court’s failure to specifically discuss the factors was prejudicial error. We

conclude that the error, if any, was not prejudicial. See Civ.R. 61 (“The court at every

stage of the proceeding must disregard any error or defect in the proceeding which does

not affect the substantial rights of the parties.”). See also Fada v. Information Sys. &

Networks Corp., 98 Ohio App.3d 785, 792, 649 N.E.2d 904 (2d Dist.1994) (“errors ‘will

not be deemed prejudicial where their avoidance would not have changed the result of

the proceedings.’ ”) (Citations omitted.) The critical point here is that Persons submitted

absolutely no evidence indicating that the requested fees were unreasonable.

       {¶ 45} In affidavits filed with the trial court, Appellees did not specifically state the

number of hours they had worked prior to discharge, but they did note that they had filed

the case in February 2012, and had conducted discovery and readied the case for trial.

The affidavits indicate that a mediation occurred in September 2014, eleven days before

the case was scheduled to go to trial. At that point, more than two years had elapsed

since the case was filed, and nearly four years had elapsed since Persons initially retained

Appellees. The affidavits further indicate that Brannon, who had decades of experience

in medical malpractice litigation, supervised Schultz's work, and the two spoke about the

case regularly, discussing its progress and issues that arose, including difficulties taking

the deposition of the defendant doctor, who eventually died in August 2014, during the

pendency of the case. Appellees further indicated that they had worked hard preparing



the factors are unchanged from those quoted in Reid.
                                                                                           -16-


the case for trial and had negotiated a very advantageous settlement for Persons.

Furthermore, after the mediation hearing, Appellees negotiated with Persons' subrogated

insurance carrier and were able to reduce the carrier's claims to approximately 45% of its

original lien on the settlement proceeds.

         {¶ 46} Appellees obtained a successful occurrence of the contingency, as a

settlement agreement was signed by Cowden and Persons at the mediation hearing in

September 2014.        Appellees also submitted the affidavit of Sam Caras, who had

practiced law since 1980, and whose practice consisted, in significant part, of

representing plaintiffs in medical malpractice cases. Caras indicated he had reviewed

several documents from the medical malpractice case and had found no instance where

Appellees deviated from the standard of care in connection with their representation of

Persons.

         {¶ 47} According to Caras, it was not unreasonable or below the standard of care

for Appellees to charge a 45% contingency fee. Caras stated that: “Medical malpractice

cases are extremely difficult to pursue successfully, and require specific, specialized

skills. Podiatric malpractice cases are especially difficult to pursue, largely due to the

difficulty of obtaining an expert witness to testify as to the violation of the standard of

care.”     March 24, 2016 Affidavit of Sam Caras, p. 2. Additionally, Caras stated that:

                Given the total medical bills of approximately $130,000.00, and

         actual medical bills paid in the amount of approximately $46,000.00, and

         given the nature of the claim, the difficulty of pursuing a medical malpractice

         claim in general, and a podiatric medical malpractice claim in particular, the

         settlement reached at mediation, for $195,000.00, is reasonable. Advising
                                                                                          -17-


       Ms. Persons to accept such a settlement is not below the standard of care.

              The reasonableness of this settlement amount is not dependent on

       whether Ms. Persons needed a further corrective surgery. Even if Ms.

       Persons needed further surgery, an allegation that is not at all clear from

       her deposition taken less than two months before the mediation, it was not

       below the standard of care of Mr. Brannon and Mr. Schultz to advise Ms.

       Persons to accept the $195,000 settlement offer.

Caras Affidavit at pp. 2-3.

       {¶ 48} Appellees also submitted the affidavit of another attorney, Julius Carter,

who made similar observations about the reasonableness of the contingency fee and the

difficulty of pursuing medical malpractice cases. See April 7, 2016 Affidavit of Julius

Carter.

       {¶ 49} Persons failed to present any admissible evidence challenging the above

statements, nor did she present any evidence indicating that Appellees’ requested fees

were unreasonable under the circumstances.          What the evidence indicated is that

Persons agreed to settle her case for $195,000 during mediation, and signed a written

agreement to that effect. She also filed an affidavit in the current action, stating that she

had informed Appellees before the mediation that she would need two more corrective

surgeries on her foot. See April 19, 2016 Second Affidavit of Donna Persons, p. 2. In

addition, Persons stated in the affidavit that she was told during the mediation

proceedings that “all damages” were included in the $195,000 figure, and agreed with the

settlement at that point. Id. Both the contingency fee agreement and the settlement

agreement informed Persons that she would be required to pay any subrogation
                                                                                         -18-


expenses or liens related to her claims.

       {¶ 50} After signing the settlement agreement, Persons apparently became

dissatisfied with the amount she was going to receive. A few days after the mediation,

Persons appeared at Appellees’ office with a self-described “insurance expert,” Robert

McComb. McComb was not an attorney. Persons then appeared again at Appellees’

office in October 2014, this time with McComb and her sons. At the latter meeting,

Persons expressed unhappiness with the subrogation amount (which had been reduced

considerably), and asserted (incorrectly) that the settlement amount did not cover future

surgeries that she would need. Persons, therefore, wanted to re-negotiate both the

settlement amount and the fee agreement.

       {¶ 51} Appellees refused, and submitted the fee dispute to the Dayton Bar

Association’s Attorney Fee Dispute Arbitration Program on October 21, 2014. However,

Persons refused to participate in that process. Consequently, Appellees filed a motion

to reactivate Person’s medical malpractice case, and Cowden filed a motion in that action

on November 17, 2014, asking the court to enforce the settlement. Subsequently, on

November 20, 2014, Persons informed Appellees that she no longer wished them to

represent her. Appellees then filed a motion to withdraw as counsel on December 1,

2014, and their motion to withdraw was granted on December 26, 2014.

       {¶ 52} Appellees filed a motion to intervene in the pending medical malpractice

action, but before the court could rule on their motion to intervene or on Cowden’s motion

to enforce the settlement, Persons filed a Civ.R. 41(A) dismissal of her medical

malpractice action. Appellees then filed the current action in March 2015, asking for

enforcement of the fee agreement, for equitable relief in the form of an injunction, and for
                                                                                       -19-


a declaratory judgment.

       {¶ 53} As was noted, at no point has Persons submitted any Civ.R. 56 evidence

that challenges the reasonableness of the fee awarded. “While a nonmoving party has

no burden of proof in opposing a motion for summary judgment, when presented with a

motion for summary judgment properly supported showing no issue of fact exists and that

the moving party is entitled to judgment as a matter of law, the nonmoving party does

have a burden to supply evidentiary materials to support his position that a genuine issue

of fact exists.” Beard v. Mayfield, 73 Ohio App.3d 173, 176-77, 596 N.E.2d 1056 (10th

Dist.1991), citing Mathis v. Cleveland Pub. Library, 9 Ohio St.3d 199, 459 N.E.2d 877

(1984).   Accord Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996);

Deutsche Bank Natl. Tr. Co. v. Holden, 147 Ohio St.3d 85, 2016-Ohio-4603, 60 N.E.3d

1243, ¶ 34.

       {¶ 54} Accordingly, because Persons failed to meet her burden under Civ.R. 56(E),

any error in the trial court’s analysis was harmless. Appellees presented evidence that

the contingency in the fee contract successfully occurred.        Specifically, Appellees

obtained a settlement, and Persons signed a release of her claims against Cowden on

October 2, 2015, in exchange for the amount of the settlement that Appellees had

negotiated. The fee awarded was also not more than the amount established in the

contingency fee contract. Reid, 68 Ohio St.3d at 576, 629 N.E.2d 431. Furthermore,

the undisputed evidence that Appellees submitted revealed that the fee was reasonable

under the totality of the circumstances.

       {¶ 55} “The factors a court considers to determine the reasonableness of a

discharged attorney's fees under a quantum meruit claim, in addition to the ultimate
                                                                                          -20-


amount of quantum meruit recovery by the discharged attorney, are matters to be

resolved by the trial court within the exercise of its discretion.”      (Citations omitted.)

Doellman v. MidFirst Credit Union, Inc., 12th Dist. Warren No. CA2006-06-074, 2007-

Ohio-5902, ¶ 17. An abuse of discretion “means we will affirm unless we find the trial

court's attitude ‘unreasonable, arbitrary or unconscionable.’ ” Schafer v. RMS Realty,

138 Ohio App.3d 244, 300, 741 N.E.2d 155 (2d Dist.2000), quoting AAAA Enterprises,

Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553

N.E.2d 597 (1990). “Decisions are unreasonable if they are not supported by a sound

reasoning process.”     Id.   We see no evidence that the trial court’s decision was

unsupported by sound reasoning.

       {¶ 56} As a final matter, we note that the trial court held a hearing on July 26, 2016,

regarding the disposition of funds held by the Clerk of Courts. No transcript of the

hearing was filed, and we have no idea what occurred at the hearing.              “Without a

transcript, we must presume the validity of the trial court's proceedings, and [Appellant’s]

evidentiary arguments necessarily fail.” (Citations omitted.) Jenkins v. Pullins, 2d Dist.

Clark No. 2007-CA-14, 2008-Ohio-6727, ¶ 18.

       {¶ 57} Based on the preceding discussion, we find no error in the grant of summary

judgment or abuse of discretion in the trial court’s award of fees to Appellees. Persons’

First and Second Assignments of Error, therefore, are overruled.



                                     IV. Breach of Contract

       {¶ 58} Persons’ Third Assignment of Error states that:

              The Trial Court Erred by Granting Summary Judgment to Dwight D.
                                                                                         -21-


       Brannon & Associates/Matthew Schultz in Case Number 2015 CV 01473,

       for Breach of Contract Under the Contingency Fee Agreement Against

       Appellant Donna Persons.

       {¶ 59} Under this assignment of error, Persons contends that Appellees had no

cause of action for breach of contract under the fee agreement; instead, their only

recovery was under a theory of quantum meruit, which they failed to plead.             Also

mentioned in the discussion of this assignment of error is that Appellees were terminated

for “just cause” because they were negligent and breached the fee agreement.

       {¶ 60} Persons’ response to the complaint was a rambling 29-page document that

was docketed as an “Answer.” It was not titled as an answer; instead, Persons asked

the court to strike and dismiss the complaint on various grounds, including lack of standing

and lack of personal and subject matter jurisdiction. Persons did raise, at page 26, the

fact that Appellees’ remedy was under “quantum merits” [sic] and that the court should

dismiss the complaint for breach of contract and other remedies.         Appellees filed a

response on April 30, 2015, asking the court to strike all or part of Persons’ response to

the complaint.

       {¶ 61} On September 30, 2015, Persons filed another motion to dismiss, arguing

that the contract became “void” on her termination of the contract. Appellees responded

to this motion on October 14, 2015, noting that both of Persons’ motions to dismiss

referenced matters not in the complaint. In addition, Appellees noted that the Ohio cases

that Persons cited, which dealt with fee disputes, simply discussed the type of relief

afforded, not whether a claim had been stated. On May 2, 2016, the trial court granted

the motions for summary judgment that Appellees had filed with respect to the fees and
                                                                                         -22-


malpractice claims. Two days later, the court overruled Persons’ motion to dismiss.

         {¶ 62} As was noted, Persons filed a notice of appeal from these summary

judgment decisions, but we dismissed her appeal for lack of a final appealable order.

See Brannon v. Persons, 2d Dist. Montgomery No. 27151 (Nov. 1, 2016). After the case

was remanded to the trial court, Persons never actually filed an answer to the complaint.

She had also not previously filed an answer after the trial court denied her motion to

dismiss.     Following remand, the trial court issued another order granting summary

judgment in Appellees’ favor on January 17, 2017, and included a Civ.R. 54(B)

certification.

         {¶ 63} Civ.R. 12(A)(2) requires answers to be served within fourteen days after the

court denies a motion to dismiss. Failure to deny an averment in a pleading has been

held to be an admission of the averment. See, e.g., Am. Savs. Bank v. Wrage, 4th Dist.

Scioto No. 13CA3566, 2014-Ohio-2168, ¶ 19; U.S. Bank, N.A. v. Goldsmith, 10th Dist.

Franklin No. 14AP-783, 2015-Ohio-3008, ¶ 9. In Goldsmith, the court commented that

“[a]lthough Civ.R. 8(D) does not differentiate between allegations of fact and legal

conclusions, judicial admissions, by definition, can only admit the truth of allegations of

fact.”   (Citations omitted.)   Id.   Under this theory, one could assume that Persons,

therefore, admitted the truth of the factual allegations in the complaint, but could

potentially assert a legal argument.

         {¶ 64} Assuming that Persons’ “legal” argument is properly before us, we find no

reversible error. We noted earlier that the Supreme Court of Ohio held in Fox that

“[w]hen an attorney is discharged by a client with or without just cause, and whether the

contract between the attorney and client is express or implied, the attorney is entitled to
                                                                                      -23-


recover the reasonable value of services rendered the client prior to discharge on the

basis of quantum meruit.” Fox, 44 Ohio St.3d 69, 541 N.E.2d 448, at syllabus.

      {¶ 65} In Fox, the defendant entered into a written contingency fee agreement with

Fox & Associates for the filing of a personal injury claim.    Id. at 70.   The attorney

(Michael Ellerbrock), who handled defendant’s case at Fox, left the firm before the case

was settled. As a result, the defendant discharged the law firm. The afternoon of the

discharge, Ellerbrock advised the defendant that the insurance company had increased

its offer, and she accepted. Id.   When Ellerbrock received the settlement money, he

retained the agreed-upon one-third fee and costs, and gave defendant the rest of the

money. Id. At that point, the law firm sued the defendant, seeking the full one-third

contingency fee. Id. The trial court concluded that defendant had breached the contract

by discharging the law firm without just cause, and awarded the firm the approximate

amount of the one-third contingency fee. Id.

      {¶ 66} Before Fox was decided, the rule had been that where an express

contingency fee contract existed and the client breaches without just cause, “ ‘the

measure of damages in such case is not limited to the reasonable value of the services

rendered by the lawyers employed prior to the cancellation of the contract,’ but rather

damages should be for the full contract price.” Id. at 71, quoting Roberts v. Montgomery,

115 Ohio St. 502, 154 N.E. 740 (1926), paragraph two of the syllabus. In this situation,

full payment would be required “even if the attorney has not yet rendered services.” Id.,

citing Scheinesohn v. Lemonek, 84 Ohio St. 424, 95 N.E. 913 (1911).

      {¶ 67} The court stressed that “[t]his rule is based on the premise that quantum

meruit should not be used as the measure for damages since the client has not been
                                                                                         -24-


benefited by some service, and yet, the value of the attorney's anticipated services has

been fixed by agreement of the parties.” (Emphasis added.) Fox, 44 Ohio St.3d at 71,

541 N.E.2d 448. An additional factor was the assumption of courts “that placing value

on attorney services is difficult since such services are not easily apportionable to the

time or the labor performed or to be performed in the future.” (Citation omitted.) Id.

Ultimately, the Supreme Court of Ohio decided to abandon this reasoning, due to “the

contemporary and regulated status of today's attorney-client relationship relative to fees.”

Id. As a result, the court overruled Scheinesohn and also overruled Roberts, “to the

extent that it distinguishes between recovery in cases where express contracts exist (full

price must be paid), and recovery on the basis of quantum meruit in the absence of an

express contract.” Id. at 72. The court, thus, decided that, in either situation, “the

attorney is entitled to recover the reasonable value of services rendered prior to the

discharge on the basis of quantum meruit.” Id.

       {¶ 68} The court then reversed the case and remanded it to the trial court for a

decision on the reasonable value of the services rendered by the law firm. Id. The court

did not say that the action should be dismissed because it had been brought for breach

of contract, rather than under quantum meruit.

       {¶ 69} Subsequently, the Supreme Court of Ohio stated that:

              One of the central tenets of the Fox approach is that a client has an

       absolute right to discharge an attorney or law firm at any time, with or

       without cause, subject to the obligation to compensate the attorney or firm

       for services rendered prior to the discharge. * * * Once discharged, the

       attorney must withdraw from the case, and can no longer recover on the
                                                                                        -25-


       contingent-fee-representation agreement. The discharged attorney may

       then pursue a recovery on the basis of quantum meruit for the reasonable

       value of services rendered up to the time of discharge.

Reid, 68 Ohio St.3d at 574, 629 N.E.2d 431.

       {¶ 70} The case before us differs from many cases that we have reviewed, in that

it was completely resolved through settlement by one set of attorneys who are requesting

fees for their work. Many cases involve situations where an initial attorney or law firm

performed some work and the case was eventually resolved by another attorney or law

firm. See, e.g., Fox, 44 Ohio St.3d at 70, 541 N.E.2d 448; In re J.F., 162 Ohio App.3d

716, 2005-Ohio-4258, 834 N.E.2d 876, ¶ 3-5 (9th Dist.). Often, competing contingent

fee contracts are involved. See, e.g., Reid, 68 Ohio St.3d at 571-572, 629 N.E.2d 431;

J.F. at ¶ 3-4.

       {¶ 71} In September 2014, Persons signed a written settlement agreement, stating

that she would accept a sum certain for her claims. She discharged her counsel in

November 2014, and thereafter, did not retain further counsel. Persons then signed a

release of her claims in October 2015, after Appellees had filed their action. Thus, the

only real issue before the trial court was what compensation, if any, should be given to

Appellees for their work.

       {¶ 72} In Randolph v. Howard, 1st Dist. Hamilton No. C-930274, 1994 WL 176908

(May 11, 1994), the appellant argued that the trial court had erred in awarding an attorney

fees based on a contract, when the reasonable value of his services should have been

determined based on quantum meruit.         Id. at *2.   The appellate court agreed, but

concluded that the “error was harmless because, in light of all the evidence, the award is
                                                                                       -26-


consistent with reasonable value and substantial justice has been rendered.” (Citation

omitted.)

      {¶ 73} In the case before us, Persons fails to indicate how she was prejudiced if

the action was incorrectly brought on a contract basis rather than in quantum meruit. As

was noted, Persons failed to present any admissible evidence challenging the

reasonableness of the attorney fees that Appellees claimed or establishing a genuine

issue of material fact as to the reasonableness of the fees under the totality of the

circumstances.

      {¶ 74} We also note the decision in Harraman v. Howlett, 5th Dist. Morrow No.

03CA0023, 2004-Ohio-5566, in which the trial court imposed a constructive trust on

attorney fees received by a second group of attorneys who had settled a case. When

the second set of attorneys appealed, the court of appeals rejected their argument that

the trial court erred in imposing a constructive trust on their fees. The court of appeals

stressed that both quantum meruit and constructive trusts are equitable remedies, and

that a “constructive trust” could be imposed against “ ‘ “one * * * who in any way against

equity and good conscience either has obtained or holds the legal right to property which

he ought not, in equity and good conscience, hold and enjoy. It is raised by equity to

satisfy the demands of justice. * * * ” ’ ” (Emphasis sic.) Harraman at ¶ 38, quoting

Ferguson v. Owens, 9 Ohio St.3d 223, 459 N.E.2d 1293 (1984), which in turn quotes 76

American Jurisprudence 2d, Trusts, Section 221 (1975).

      {¶ 75} In Harraman, the court of appeals commented that when the successful

contingency occurred (the settlement), the original attorney’s cause of action for a

recovery based on quantum meruit arose; thus, the trial court correctly imposed a
                                                                                           -27-


constructive trust because the second set of attorneys wrongfully held title to the fees,

even though no fraud had occurred. Id. at ¶ 31-43.

       {¶ 76} Similarly, in the case before us, Appellees included Cowden, the current

holder of the settlement proceeds, as a defendant, and asserted a property right in the

proceeds that Cowden held. See Plaintiff’s Complaint, ¶s 36-41. Appellees also asked

the trial court for an injunction ordering the proceeds to be placed in escrow to protect

their right to a portion of the proceeds pending resolution of their claims. Id. at ¶ 41.

The trial court did order that the funds be placed in escrow pending a decision on

Appellees’ claim. Since this served the same equitable purpose as a claim for quantum

meruit, we fail to see how Persons was prejudiced.

       {¶ 77} In Fox, the court stressed that the quantum meruit rule does not “create a

threat that the discharged attorney will not be compensated for services rendered before

discharge occurs. * * * An attorney who substantially performs under the contract may be

entitled to the full price of the contract in the event of discharge ‘on the courthouse steps,’

or just prior to settlement. * * * Similarly, it would be inequitable to force a client who has

received no service from the discharged attorney to pay the full price of the contract. Any

benefit received by the client through subsequently successful litigation or settlement may

have been the result of in propria persona representation or representation by new

counsel.” Fox, 44 Ohio St.3d at 72, 541 N.E.2d 448.

       {¶ 78} In the case before us, the discharge did not occur prior to settlement; it was

after settlement, and after the parties had entered into a written settlement agreement.

Persons also did not obtain new counsel who had a claim to any fees.               Under the

circumstances, there is no basis for awarding something other than the full amount of the
                                                                                          -28-


requested fees. Again, Persons failed to submit any evidence establishing a genuine

issue of material fact concerning the reasonableness of the fees. The fact that she

wanted to obtain more money than the amount to which she had agreed does not justify

a reduction of attorney fees. It is true that Persons had a right to discharge her attorneys,

but that does not mean she was entitled to more money as a result of her choices.

Accordingly, we find Persons’ argument without merit.

       {¶ 79} The final issue is the summary judgment granted to Appellees on Persons’

claims for legal malpractice. As was noted, Persons’ brief is largely unintelligible, but

she does mention in passing that Appellees “breached” the contingency agreement when

they failed to pursue all the damages to which she was entitled, including the cost of future

surgeries.

       {¶ 80} In rejecting Persons’ malpractice claim, the trial court noted that Appellees

had submitted several affidavits from legal experts indicating they did not fall below the

standard of care in representing Persons. The court further observed that Persons failed

to submit any evidence, by way of affidavit or otherwise, to indicate that Appellees fell

below the pertinent standards of care.

       {¶ 81} “An action against one's attorney for damages resulting from the manner in

which the attorney represented the client constitutes an action for malpractice within the

meaning of R.C. 2305.11, regardless of whether predicated upon contract or tort or

whether for indemnification or for direct damages.” Muir v. Hadler Real Estate Mgt. Co.,

4 Ohio App.3d 89, 89–90, 446 N.E.2d 820 (10th Dist.1982). “Malpractice by any other

name still constitutes malpractice.”     Id. at 90.    Accord Pierson v. Rion, 2d Dist.

Montgomery No. 23498, 2010-Ohio-1793, ¶ 13.
                                                                                          -29-


       {¶ 82} Consequently, despite how Persons may have phrased her complaint

against Appellees, her action is for legal malpractice. “To establish a cause of action for

legal malpractice based on negligent representation, a plaintiff must show (1) that the

attorney owed a duty or obligation to the plaintiff, (2) that there was a breach of that duty

or obligation and that the attorney failed to conform to the standard required by law, and

(3) that there is a causal connection between the conduct complained of and the resulting

damage or loss.” Vahila v. Hall, 77 Ohio St.3d 421, 674 N.E.2d 1164 (1997), syllabus.

“The failure of a party asserting a legal malpractice claim to establish any one of the three

elements entitles the opposing party to summary judgment.”                (Citation omitted.)

Lundeen v. Graff, 2015-Ohio-4462, 46 N.E.3d 236, ¶ 12 (10th Dist.)

       {¶ 83} In Vahila, the court also stated that:

       We are aware that the requirement of causation often dictates that the

       merits of the malpractice action depend upon the merits of the underlying

       case. Naturally, a plaintiff in a legal malpractice action may be required,

       depending on the situation, to provide some evidence of the merits of the

       underlying claim. * * * However, we cannot endorse a blanket proposition

       that requires a plaintiff to prove, in every instance, that he or she would have

       been successful in the underlying matter.

(Citations omitted.) Vahila at 427-428.

       {¶ 84} Subsequently, the Supreme Court of Ohio clarified Vahila, commenting that

“[w]hen a plaintiff premises a legal-malpractice claim on the theory that he would have

received a better outcome if his attorney had tried the underlying matter to conclusion

rather than settled it, the plaintiff must establish that he would have prevailed in the
                                                                                          -30-


underlying matter and that the outcome would have been better than the outcome

provided by the settlement.” Environmental Network Corp. v. Goodman Weiss Miller,

L.L.P., 119 Ohio St.3d 209, 2008-Ohio-3833, 893 N.E.2d 173, syllabus.

      {¶ 85} After reviewing this matter, we conclude that the trial court’s recitation of the

evidence and its conclusions about the lack of malpractice were correct.                As a

preliminary matter, Persons’ claim was not precisely that she would have received more

money if she had gone to trial; her complaint, in essence, is that her settlement should

have included compensation for future surgeries. However, in an affidavit filed in the

current action, Persons stated that she had informed her counsel before the mediation

that she would need two more corrective surgeries on her foot. See April 19, 2016

Second Affidavit of Donna Persons, p. 2. Persons also stated in the affidavit that she

was told during the mediation proceedings that “all damages” were included in the

$195,000 figure, and agreed with the settlement at that point. Id.

      {¶ 86} The trial court stated that:

      Clearly the settlement dealt with all aspects of [Persons’] case and that all

      damages were included as she alleges she was advised. The Court has

      no idea what Plaintiff means by “to incorporate the constructive evidence

      that two more future surgeries would be required.” If she means that Mr.

      Schultz advised her that the settlement includes all future damages,

      including future surgeries, it does.

May 2, 2016 Orders on Summary Judgment, p. 7.

      {¶ 87} We agree with the trial court.      Furthermore, even if we assumed that

Persons’ claim fits within the less stringent standard in Vahila, the fact is that Persons
                                                                                          -31-

failed to present “some” or even any evidence of the merits of her underlying claim.

Vahila, 77 Ohio St.3d at 428, 674 N.E.2d 1164.

       {¶ 88} Moreover, Persons also failed to present any evidence that Appellees failed

to comply with appropriate standards of care in settling her case. “[I]n a legal malpractice

case, expert testimony is generally required in order to prove breach of the duty that the

attorney owed to the plaintiff, unless the claimed breach of professional duty is ‘well within

the common understanding of * * * laymen.’ ” Lundeen, 2015-Ohio-4462, 46 N.E.3d 236,

at ¶ 17, quoting McInnis v. Hyatt Legal Clinics, 10 Ohio St.3d 112, 461 N.E.2d 1295

(1984).

       {¶ 89} In the case before us, the issue of Appellees’ alleged negligence could not

be determined by laypersons without the assistance of expert witnesses. Whether the

settlement was appropriate in light of the alleged injury is not something within the

common knowledge of laypersons. Accordingly, because Persons failed to set forth any

evidence on the issue of the alleged malpractice, the trial court properly rendered

summary judgment in favor of Appellees. Persons’ Third Assignment of Error, therefore,

is overruled.



                                          V. Conclusion

       {¶ 90} All of Persons’ assignments of error having been overruled, the judgment

of the trial court is affirmed.

                                      .............

HARSHA, J. and HOOVER, J., concur.

(Hon. William H. Harsha and Hon. Marie Hoover, Fourth District Court of Appeals, sitting
by assignment of the Chief Justice of the Supreme Court of Ohio.)
                                           -32-




Copies mailed to:

Dwight D. Brannon
Matthew C. Schultz
Donna K. Persons
Arthur Phelps
Laurence Lasky
Hon. Dale A. Crawford, Visiting Judge
c/o Montgomery County Common Pleas Court
