[Cite as Van Dyne v. Cortez, 2012-Ohio-2618.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

J. ELLIOTT VAN DYNE                                JUDGES:
                                                   Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellant                        Hon. William B. Hoffman, J.
                                                   Hon. Julie A. Edwards, J.
-vs-
                                                   Case No. 11-CA-100
LOUISE CORTEZ

        Defendant-Appellee                         OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Licking County Court of
                                                Common Pleas, Case No. 10 CV 00446


JUDGMENT:                                       Reversed and Remanded


DATE OF JUDGMENT ENTRY:                         June 11, 2012


APPEARANCES:


For Plaintiff-Appellant                         For Defendant-Appellee


JOHN L. ONESTO                                  J. MICHAEL KING
600 S. High Street                              Jones, Norpell, Miller & Howarth
Columbus, Ohio 43215                            35 South Park Place, Suite 35
                                                P.O. Box 4010
                                                Newark, Ohio 43058-4010
Licking County, Case No. 11-CA-100                                                    2

Hoffman, J.


       {¶1}   Plaintiff-appellant J. Elliott Van Dyne appeals the September 13, 2011

Judgment Entry entered by the Licking County Court of Common Pleas in favor of

Defendant-appellee Louise Cortez.

                          STATEMENT OF THE FACTS AND CASE

       {¶2}   The parties entered into a written Attorney Employment Contract on March

4, 2008 in which Appellant agreed to represent John Cortez relative to two different

criminal indictments containing twenty-five counts. The contract stated a total fee of

$65,000.00.

       {¶3}   On November 26, 2007, Appellant was contacted by Michael Cortez

concerning representation of his son, John Cortez, on numerous charges involving sex

and drugs with a minor. John Cortez had fled to South Carolina, and was awaiting

extradition to Licking County.

       {¶4}   Appellant agreed to represent John Cortez for the set fee of $65,000 for

both indictments, subject to a written fee contract and indemnification of the monies by

a co-signer and notes and mortgages. Subsequently, Appellee Louise Cortez agreed to

be a co-signer, and made payments pursuant to the Attorney Employment Contract

(“Agreement”) entered into between the parties.

       {¶5}   On January 9, 2009, guilty pleas were entered in both criminal cases, and

John Cortez was sentenced.          Following the pleas and sentencing, Appellant’s

representation of John Cortez concluded pursuant to the parties’ Agreement.

       {¶6}   Appellant filed a complaint for the collection of $17,700 due according to

the Attorney Employment Agreement.        Appellee did not file an answer within the
Licking County, Case No. 11-CA-100                                                    3


allowed time. On May 17, 2010, Appellant filed a motion for default judgment. On May

18, 2010, the trial court granted the motion for default judgment, rendering judgment in

favor of Appellant.

       {¶7}   On June 23, 2010, Appellee filed a motion to set aside the default

judgment, which was granted by the trial court. Appellee subsequently filed an answer.

       {¶8}   On October 18, 2010, Appellant filed a motion for summary judgment.

Appellee filed a memorandum contra opposing the motion for summary judgment on

November 29, 2010. Via Judgment Entry of January 20, 2011, the trial court denied

Appellant’s motion for summary judgment.

       {¶9}   The matter proceeded to a bench trial. The parties subsequently filed

proposed findings of fact and conclusions of law. Via Judgment Entry filed September

13, 2011, the trial court entered judgment in favor of Appellee.

       {¶10} Appellant now appeals, assigning as error:

       {¶11} "THE TRIAL COURT ERRED IN FAILING TO GRANT PLAINTIFF'S

MOTION FOR SUMMARY JUDGMENT."

       {¶12} II."THE TRIAL COURT'S DECISION WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE."

                                                I.

       {¶13} Appellate courts review trial court summary judgment decisions de novo.

Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241.

Accordingly, appellate courts must independently review the record to determine if

summary judgment is appropriate. In other words, appellate courts need not defer to

trial court summary judgment decisions. See Brown v. Scioto Cty. Bd. of Commrs.
Licking County, Case No. 11-CA-100                                                       4

(1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153; Morehead v. Conley (1991), 75

Ohio App.3d 409, 411–412, 599 N.E.2d 786. Thus, to determine whether a trial court

properly awarded summary judgment, an appellate court must review the Civ.R. 56

summary judgment standard as well as the applicable law. Civ.R. 56(C) provides:

       {¶14} Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence in the pending case, and written stipulations of fact, if any, timely filed in the

action, show that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law. No evidence or stipulation may be

considered except as stated in this rule. A summary judgment shall not be rendered

unless it appears from the evidence or stipulation, and only from the evidence or

stipulation, that reasonable minds can come to but one conclusion and that conclusion

is adverse to the party against whom the motion for summary judgment is made, that

party being entitled to have the evidence or stipulation construed most strongly in the

party's favor.

       {¶15} Accordingly, trial courts may not grant summary judgment unless the

evidence demonstrates that (1) no genuine issue as to any material fact remains to be

litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it

appears from the evidence that reasonable minds can come to but one conclusion, and

after viewing the evidence most strongly in favor of the nonmoving party, that

conclusion is adverse to the party against whom the motion for summary judgment is

made. See, e.g., Vahila v. Hall (1997), 77 Ohio St.3d 421, 429–430, 674 N.E.2d 1164.
Licking County, Case No. 11-CA-100                                                        5


       {¶16} Appellant contends the fee agreement was a “flat-fee” or “set fee”

agreement. Appellant cites Skidmore and Associates Company, L.P.A. v. Southerland,

et. al., (1993) 89 Ohio App.3d 177 for the proposition “Where the employment of an

attorney is under an express, valid contract for an agreed fee, either for a specified

amount or a specified percentage of recovery, such contract is conclusive as to the

amount of such compensation.”          When an amount is agreed upon, there is no

reasonableness evaluation as there would be in a case where an hourly rate is agreed

upon, and the client later contests the amount of hours spent. Giannini v. Maston

(2003) 2003-Ohio-1237, 7th District.

       {¶17} Appellee counters the fee agreement is a “non-refundable” fee agreement

based upon Paragraph 4 of the Attorney Employment Contract which reads:

       {¶18} “The Sixty Five Thousand Dollar, legal fee is payable as follows: (1) Co-

signor and Client have paid Fifteen Thousand Dollars to Attorney; and (2) the balance

owing of Fifty Thousand Dollars shall be paid in full prior to the trial date. It is further

understood and agreed that if the legal fee is not paid as agreed upon by the Client and

Co-signor, attorney may apply to the Court for leave to withdraw as Counsel of Record

in this cause without reimbursement of any legal fees paid and may cease any further

representation immediately.

       {¶19} “It is further understood and agreed that the above legal fees do not

include any expenses for surety bail bonds or expert witnesses. The above legal fees

do not include investigator fees.”

       {¶20} Ohio Rule of Professional Conduct 1.5(d) reads,
Licking County, Case No. 11-CA-100                                                        6


       {¶21} “A lawyer shall not enter into an arrangement for, charge, or collect any of

the following;

       {¶22} ***

       {¶23} “(3) a fee denominated as “earned upon receipt,” “non-refundable,” or in

any similar terms, unless the client is simultaneously advised in writing that if the lawyer

does not complete the representation for any reason, they may be entitled to a refund if

the lawyer does not complete the representation.”

       {¶24} Assuming, arguendo, the parties’ Agreement was a non-refundable

agreement subject to Rule 1.5d and Appellee conceded it was made without providing a

written advisement informing Appellee of her right to reimbursement pursuant to Rule

1.5(d) should Appellant cease representation, we find such of no consequence under

the facts herein.   As set forth above, Appellant’s representation of John Cortez as

contemplated in the Agreement was completed upon the plea of guilty to the criminal

charges and the subsequent pronouncement of sentences. Therefore, we conclude it is

immaterial whether Appellant provided Appellee a written advisement informing her of

her right to reimbursement should Appellant cease representation prematurely. We do

not find the failure to give the letter of advisement required by Rule 1.5(d) renders the

Agreement void.

       {¶25} The Agreement is not illegal or unconscionable. It remains enforceable,

and reasonable minds can come to but one conclusion adverse to Appellee.

Accordingly, we hold the trial court erred in not granting summary judgment in favor of

Appellant.

       {¶26} The first assignment of error is sustained.
Licking County, Case No. 11-CA-100                                                  7


                                              II.

      {¶27} Based upon our analysis and disposition of Appellant's first assignment of

error, Appellant's second assignment of error is moot.

      {¶28} The September 13, 2011 Judgment Entry of the Licking County Court of

Common Pleas is reversed, and the matter remanded to the trial court for further

proceedings in accordance with the law and this Opinion.

By: Hoffman, J.

Delaney, P.J. and

Edwards, J. concur

                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ Patricia A. Delaney _________________
                                            HON. PATRICIA A. DELANEY


                                            s/ Julie A. Edwards ___________________
                                            HON. JULIE A. EDWARDS
Licking County, Case No. 11-CA-100                                                    8


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


J. ELLIOTT VAN DYNE                        :
                                           :
       Plaintiff-Appellant                 :
                                           :
-vs-                                       :          JUDGMENT ENTRY
                                           :
LOUISE CORTEZ                              :
                                           :
       Defendant-Appellee                  :          Case No. 11-CA-100


       For the reasons stated in our accompanying Opinion, the September 13, 2011

Judgment Entry entered by the Licking County Court of Common Pleas is reversed, and

the matter is remanded to the trial court for further proceedings in accordance with the

law and our Opinion. Costs to Appellee.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ Patricia A. Delaney _________________
                                           HON. PATRICIA A. DELANEY


                                           s/ Julie A. Edwards___________________
                                           HON. JULIE A. EDWARDS
