[Cite as Cook & LogoThetis, L.L.C. v. King, 2014-Ohio-3346.]



                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO



COOK & LOGOTHETIS, L.L.C.,                       :             APPEAL NO. C-130673
                                                               TRIAL NO. A-1205935
         Plaintiff-Appellee,                     :
   vs.
                                                 :
                                                                  O P I N I O N.
MICHAEL E. KING,
                                                 :
         Defendant-Appellant.
                                                 :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Appeal Dismissed

Date of Judgment Entry on Appeal: August 1, 2014



Cook & Logothetis, L.L.C., and Scott M. Heenan, for Plaintiff-Appellee,

Cornetet, Meyer, Rush & Kirzner and Daniel A. Perry, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS


FISCHER, Judge.

       {¶1}   Defendant-appellant Michael King appeals the judgment of the trial

court granting summary judgment to plaintiff-appellee Cook & Logothetis, L.L.C.

(“C&L”), on C&L’s quantum-meruit claim for unpaid legal services. Because we

determine that we lack jurisdiction over King’s appeal, we must dismiss it.

       {¶2}   C&L served as legal counsel to the American Federation of

Government Employees Local 2031 (“AFGE”), a labor union, of which King was a

member. AFGE contacted C&L to represent King in his appeal before the Merit

Systems Protection Board (the “Board”) following the termination of King’s

employment from the United States Department of Veterans Affairs (“Department”).

According to C&L, AFGE agreed to pay C&L on an hourly basis for services rendered

in King’s case, and then C&L would repay AFGE all reasonable attorney fees and

expenses recovered from King’s judgment or settlement with the Department. C&L

represented King in a mediation with the Board, a prehearing conference, and

settlement negotiations before seeking to withdraw from its representation of King

for ethical reasons.     King then proceeded, pro se, and reached a lump-sum

settlement with the Department, which included attorney fees and expenses,

according to C&L.

       {¶3}   After    King   had   refused    to   acknowledge   various     forms   of

correspondence from C&L requesting reimbursement of its fees, C&L filed a

complaint against King for breach of contract, or, alternatively, quantum meruit.

C&L’s quantum-meruit claim sought the legal fees incurred in representing King, as

well as costs, plus interest. In C&L’s prayer for relief, it also sought reasonable

attorney fees and costs incurred in bringing the action.


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       {¶4}   C&L filed a motion for summary judgment on its quantum-meruit

claim, and the trial court granted summary judgment in favor of C&L in the amount

of $17,770.50. C&L then filed two motions: (1) a motion for attorney fees, stating

that King had withheld the money owed to C&L in bad faith, and (2) a motion for

prejudgment and postjudgment interest. Before the trial court ruled on either of

these motions, and before King filed any responsive memoranda, King filed a notice

of appeal.

       {¶5}   As an initial matter, we must address a jurisdictional issue.           An

appellate court lacks jurisdiction over a nonfinal order. Gen. Acc. Ins. Co. v. Ins. Co.

of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989); Article IV, Section 3(B)(2),

Ohio Constitution. To be final, the order appealed from must meet the requirements

of R.C. 2505.02, and, if applicable, the order must contain a Civ.R. 54(B) certification

that there is “no just reason for delay.” Chef Italiano Corp. v. Kent State Univ., 44

Ohio St.3d 86, 541 N.E.2d 64 (1989).

       {¶6}   The Ohio Supreme Court held in Internatl. Bhd. of Elec. Workers,

Local Union No. 8 v. Vaughn Industries, L.L.C., 116 Ohio St.3d 335, 2007-Ohio-

6439, 879 N.E.2d 187, paragraph two of the syllabus (“Vaughn”), that no final,

appealable order exists in the absence of a Civ.R. 54(B) certification where attorney

fees are requested in an original pleading, and the order appealed from does not

dispose of the attorney-fee request. In Vaughn, the defendant included in its answer

to the plaintiff’s complaint a prayer for relief, which requested statutory attorney fees

and costs, and sanctions under Civ.R. 11 in defending against the action.           The

defendant moved for summary judgment on plaintiff’s claims without mentioning its

earlier request for attorney fees. The trial court granted summary judgment. After

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the trial court journalized its summary-judgment order, the defendant filed a motion

for attorney fees and costs.     In reaching its determination that the summary-

judgment decision was not a final, appealable order, the Supreme Court rejected

plaintiff’s argument in support of finality that the trial court had implicitly denied

defendant’s request for fees when it entered its summary-judgment order. Id. at ¶

12-13. Moreover, the Supreme Court held that a party could properly file a motion

for attorney fees after an entry of a judgment on the other claims if that party had

requested fees in an original pleading. Id. at paragraph one of the syllabus.

       {¶7}   In this case, C&L’s complaint requested attorney fees incurred in

bringing the action against King, and specifically alleged that King had refused to

respond to its repeated requests seeking payment prior to bringing the action. After

the trial court’s summary-judgment decision, C&L filed a motion for attorney fees

and expenses as the prevailing party, because of King’s bad faith. See Sorin v. Bd. of

Edn., 46 Ohio St.2d 177, 181, 347 N.E.2d 527 (1976); SST Bearing Corp. v. Twin City

Fan Cos., 1st Dist. Hamilton No. C-110611, 2012-Ohio-2490, ¶ 28 (permitting an

award of attorney fees upon a finding of bad faith).

       {¶8}   After C&L filed its postjudgment motion requesting attorney fees, but

before the trial court ruled on the motion, King filed his notice of appeal. Applying

the holding in Vaughn, we determine that the trial court’s order granting summary

judgment to C&L on its quantum-meruit claim was not a final, appealable order

because it failed to dispose of C&L’s request for attorney fees incurred in bringing the

action, and C&L filed a postjudgment motion for fees prior to the filing of the notice

of appeal. See Vaughn at ¶ 17.




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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶9}    We recognize that several appellate districts have limited the Supreme

Court’s decision in Vaughn, reasoning that where a party sets forth a general request

for attorney fees in its prayer for relief, unsupported by a specific statute or rule, and

a trial court’s order does not raise the attorney-fee issue by deferring either its

adjudication or the determination of an amount, appellate courts should treat the fee

request as having been implicitly overruled by the trial court. See, e.g., Jones v.

McAlarney Pools, Spas & Billiards, Inc., 4th Dist. Washington No. 07CA34, 2008-

Ohio-1365, ¶ 10-11; Knight v. Colazzo, 9th Dist. Summit No. 24110, 2008-Ohio-6613,

¶ 9; Ricciardi v. D’Apolito, 7th Dist. Mahoning No. 09 MA 60, 2010-Ohio-1016.

Those cases are distinguishable because they do not involve postjudgment motions

for attorney fees. See McAlarney at ¶ 12, fn. 5; Knight at ¶ 6-9; Ricciardi at ¶ 10-13.

Here, C&L requested attorney fees in an original pleading and in a postjudgment

motion; therefore, we cannot treat C&L’s request for attorney fees as having been

implicitly overruled.

       {¶10} In addition to a motion for attorney fees, C&L also filed a motion for

prejudgment interest after the trial court’s summary-judgment decision. The Ohio

Supreme Court held that a journalized jury verdict does not constitute a final,

appealable order where a motion for prejudgment interest has been filed after the

judgment and remains pending. See Miller v. First Internatl. Fid. & Trust Bldg.,

Ltd., 113 Ohio St.3d 474, 2007-Ohio-2457, 866 N.E.2d 1059, ¶ 8. In reaching its

decision, the Supreme Court determined that prejudgment interest was more in the

nature of damages and that “judicial economy would be better served by allowing the

trial court to determine whether prejudgment interest should be awarded before an

appeal can be filed.” Id. At least one court has applied the Supreme Court’s decision

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to determine that a trial court’s summary-judgment decision was not a final,

appealable order where a party filed a motion for prejudgment interest after the

summary-judgment entry, but before the notice of appeal, and the motion had not

been ruled upon by the trial court. See Third Wing, Inc. v. Columbia Cas. Co., 8th

Dist. Cuyahoga No. 96450, 2011-Ohio-4827, ¶ 8.

       {¶11} In this case, the record shows that C&L’s motion for prejudgment

interest was pending when King appealed the entry granting summary judgment.

Thus, the order from which King appeals is not a final, appealable order. See Miller

at syllabus.

       {¶12} In conclusion, because the order from which King appeals is not a

final, appealable order, we lack jurisdiction over King’s appeal, and therefore we

dismiss it.

                                                                       Appeal dismissed.


HILDEBRANDT, P.J., and HENDON, J., concur.




Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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