[Cite as Grubb & Assocs., L.P.A. v. Sandor, 2019-Ohio-128.]


STATE OF OHIO                    )                            IN THE COURT OF APPEALS
                                 )ss:                         NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

GRUBB & ASSOCIATES, LPA                                       C.A. No.   29089

        Appellant

        v.                                                    APPEAL FROM JUDGMENT
                                                              ENTERED IN THE
WILLIAM SANDOR                                                COURT OF COMMON PLEAS
                                                              COUNTY OF SUMMIT, OHIO
        Appellee                                              CASE No.   CV-2017-04-1407

                                 DECISION AND JOURNAL ENTRY

Dated: January 16, 2019



        HENSAL, Judge.

        {¶1}    Grubb & Associates, LPA appeals a judgment of the Summit County Court of

Common Pleas that granted summary judgment to William Sandor on its action for breach of

contract and unjust enrichment. This Court affirms.

                                                      I.

        {¶2}    Grubb & Associates represented Mr. Sandor in a legal malpractice action.

According to Natalie Grubb, during Mr. Sandor’s intake interview, she initially told him that

they would charge on an hourly basis. After Mr. Sandor expressed interest in a contingency fee

arrangement, Ms. Grubb explained that the matter might be resolved with something as simple as

a letter to his former attorney, so a contingency fee might not be appropriate. To avoid a

windfall to the firm, they ended up agreeing that the firm would keep track of its hourly charges

and that, if they ended being less than one-third of what Mr. Sandor recovered, he could pay the

lower amount.
                                                 2


       {¶3}    A couple of weeks later, Grubb & Associates asked Mr. Sandor to come in to sign

a written fee agreement. According to Mr. Sandor, when he arrived, the firm presented him with

an hourly-fee agreement, which did not include anything about what he had discussed with Ms.

Grubb. The firm, therefore, made some hand-written changes to the document. Regarding legal

fees, the parties’ agreement ended up stating that “billing will be based upon the following fee

schedule: or percentage at 33% whatever is less.” Ms. Grubb signed it on behalf of the firm.

       {¶4}    After Mr. Sandor’s action against his former attorney was unsuccessful, he

refused to pay anything to Grubb & Associates. The firm, therefore, filed an action against him

for breach of contract and unjust enrichment. Following discovery, Grubb & Associates moved

for summary judgment, but the trial court denied its motion. Mr. Sandor subsequently filed his

own motion for summary judgment, which the trial court granted. Grubb & Associates has

appealed the trial court’s judgment, assigning three errors.

                                                 II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO
       SANDOR WHEN SUCH RULING DIRECTLY CONTRADICTS ITS PRIOR
       ORDER DENYING SUMMARY JUDGMENT TO THE FIRM ON THE SAME
       SET OF FACTS

       {¶5}    Grubb & Associates argues that it was improper for the trial court to award

summary judgment to Mr. Sandor because it had previously determined that a question of

material fact existed as to what amount, if any, Sandor owed under the terms of the parties’

contract. Under Civil Rule 56(C), summary judgment is appropriate if:

       (1) [n]o 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 viewing
       such evidence most strongly in favor of the party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.
                                                 3



Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). To succeed on a motion for

summary judgment, the party moving for summary judgment must first be able to point to

evidentiary materials that demonstrate there is no genuine issue as to any material fact, and that it

is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). If the

movant satisfies this burden, the nonmoving party “must set forth specific facts showing that

there is a genuine issue for trial.” Id. at 293, quoting Civ.R. 56(E). This Court reviews an award

of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996).

       {¶6}     The order that denied Grubb & Associates’ motion for summary judgment was

interlocutory. Dunkle v. Children’s Hosp. Med. Ctr. of Akron, 9th Dist. Summit No. 26612,

2013-Ohio-5555, ¶ 34. Accordingly, the trial court had authority to reconsider, revise, or modify

any decisions it made in that order, including its determination about whether a genuine issue of

material fact existed. Id. The mere fact that the court changed its determination as to whether a

genuine issue of material existed, therefore, was not error.

       {¶7}     Grubb & Associates also argues that the trial court should have vacated its order

under Civil Rule 60(B). We note that, after the trial court granted summary judgment to Mr.

Sandor, Grubb & Associates moved to vacate the judgment under Rule 60(B).                  Grubb &

Associates filed its notice of appeal with this Court before the trial court ruled on its motion.

After the trial court denied the motion to vacate, Grubb & Associates did not file a new notice of

appeal or attempt to amend its original one. Accordingly, we do not have jurisdiction to consider

the trial court’s ruling on the motion to vacate. OneWest Bank, FSB v. Wheeler, 9th Dist.

Medina No. 16CA0026-M, 2017-Ohio-7925, ¶ 7. Grubb & Associates’ first assignment of error

is overruled.
                                                 4


                                  ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO
       SANDOR WHEN THE RETAINER AGREEMENT IS CLEARLY AND
       UNAMBIGUOUSLY AN HOURLY RETAINER AGREEMENT WITH A
       HANDWRITTEN MODIFICATION TO ENSURE THAT SANDOR GETS THE
       MAXIMUM BENEFIT AT THE LOWEST COST.

       {¶8}     Grubb & Associates next argues that the trial court incorrectly concluded that Mr.

Sandor does not owe it anything under their contract. It argues that the handwritten language on

the contract was added so that Mr. Sandor could obtain the most benefit in the event he

recovered on his legal malpractice claim. It argues that Mr. Sandor otherwise agreed to pay on

an hourly basis and that the parties never intended for him to pay nothing if his claim was

unsuccessful.

       {¶9}     “It is a well-known and established principle of contract interpretation that

‘[c]ontracts are to be interpreted so as to carry out the intent of the parties, as that intent is

evidenced by the contractual language.’” (Alteration sic.) Lutz v. Chesapeake Appalachia,

L.L.C., 148 Ohio St.3d 524, 2016-Ohio-7549, ¶ 9, quoting Skivolocki v. E. Ohio Gas Co., 38

Ohio St.2d 244 (1974), paragraph one of the syllabus. “When contractual language is clear and

unambiguous, courts must look to the express language of the contract to determine the intent of

the parties and ‘interpret it according to its plain, ordinary, and common meaning.’” Summit

Retirement Plan Servs., Inc. v. Bergdorf, 9th Dist. Summit No. 23200, 2006-Ohio-6154, ¶ 12,

quoting Haley v. Hunter, 9th Dist. Summit No. 23027, 2006-Ohio-2975, ¶ 15. On the other

hand, “[e]xtrinsic evidence is admissible to ascertain the intent of the parties when the contract is

unclear or ambiguous, or when circumstances surrounding the agreement give the plain language

special meaning.” Lutz at ¶ 9, quoting Graham v. Drydock Coal Co., 76 Ohio St.3d 311, 313-
                                                 5


314 (1996). The Ohio Supreme Court has also explained that “a contract is to be construed

against the party who drew it.” Graham at 314.

       {¶10} The parties’ agreement is in the form of a letter from the firm to Mr. Sandor and

indicates that it is in regard to an “Hourly Retainer Agreement[.]” It begins by providing:

       This letter will confirm that you have retained Grubb & Associates, LPA, to
       represent you in a legal matter concerning [c]hild support issues and improper
       calculation of income. Experience has shown that the attorney-client relationship
       works best when there is a mutual understanding about fees and payment terms
       and about the conduct of a legal proceeding.

The agreement proceeds to a section titled “Legal Fees[.]” That section provides that “billing

will be based upon the following fee schedule:” then outlines the different rates that will be

charged depending on whether it is Ms. Grubb, an associate, a law clerk, or a paralegal providing

a service. Next to those provisions is a handwritten note that states “or percentage at 33%

whatever is less.” Grubb & Associates admits that the handwritten notation is a term of the

agreement. Following the “Legal Fees” section, there are sections titled “Fees in Advance[,]”

“Costs and Disbursements[,]” “Billing[,]” “Payment[,]” “Appeals[,]” “Estimates[,]” and

“Practice Guidelines[.]”

       {¶11} The trial court determined that the language of the parties’ agreement was plain

and unambiguous and created either an hourly fee arrangement or a contingency fee arrangement

depending on which method of calculating Mr. Sandor’s fees would cost him less. Because it

determined that the contract was not ambiguous, it declined to consider any parol evidence.

Applying the language of the contract to the undisputed fact that Mr. Sandor did not recover

anything on his legal malpractice claim, it calculated that it would cost Mr. Sandor less for the

agreement to proceed as a contingency fee arrangement. Accordingly, because 33% of zero is
                                                 6


zero, the trial court concluded that Mr. Sandor did not owe any attorney fees to Grubb &

Associates.

       {¶12} Grubb & Associates does not argue that the agreement is ambiguous.

Nevertheless, it points to evidence outside of the terms of the agreement in support of its

argument that it was not the intent of the parties that Mr. Sandor would pay nothing if his

malpractice claim failed. It also argues that the handwritten notation should be construed to

provide that, “if there were a settlement or other recovery on Sandor’s claim, Sandor would pay

the lesser of the hourly fee or 1/3 of the amount recovered.”

       {¶13} The agreement does not provide that the “percentage at 33%” language only

applies if Mr. Sandor recovers on his claim. Upon review of the agreement, we agree with the

trial court that its language is unambiguous and that its plain language applies. Because Mr.

Sandor did not recover on his legal malpractice claim, he will owe less if the agreement operates

as a contingency fee arrangement. We conclude that the trial court correctly determined that Mr.

Sandor did not owe any fees to Grubb & Associates under the terms of their fee agreement and

correctly awarded summary judgment to him. Grubb & Associates’ second assignment of error

is overruled.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO
       SANDOR WHEN SANDOR TESTIFIED UNDER OATH THAT HE
       UNDERSTOOD THAT THE RETAINER AGREEMENT WAS NOT A
       “STRAIGHT CONTINGENCY” AGREEMENT.

       {¶14} In its third assignment of error, Grubb & Associates again points to testimony by

Mr. Sandor about his understanding of the fee agreement to support its argument that the

agreement cannot be construed as a pure contingency arrangement. It also points to an affidavit
                                                  7


it submitted in support of its motion to vacate as additional evidence that it was the parties’ intent

to enter into an hourly fee arrangement and that the trial court should have vacated its order.

       {¶15} As previously noted, when the language of a contract is clear and unambiguous,

the intent of the parties is determined by examining the language of the contract. Bergdorf,

2006-Ohio-6154, at ¶ 12; Ohio Northern Univ. v. Charles Constr. Servs., Inc., __ Ohio St.3d __,

2018-Ohio-4057, ¶ 11. “Only when the language of a contract is unclear or ambiguous, or when

the circumstances surrounding the agreement invest the language of the contract with a special

meaning will extrinsic evidence be considered in an effort to give effect to the parties’

intentions.” Shifrin v. Forest City Enters., Inc., 64 Ohio St.3d 635 (1992), syllabus. Because the

language of the contract in this case is not ambiguous and does not contain language with a

special meaning, Mr. Sandor’s testimony about his understanding of the contract is immaterial.

Regarding the affidavit Grubb & Associates submitted with its motion to vacate, we have

previously explained that we do not have jurisdiction to consider the trial court’s ruling on that

motion. Grubb & Associates’ third assignment of error is overruled.

                                                 III.

       {¶16} Grubb & Associates’ assignments of error are overruled. The judgment of the

Summit County Court of Common Pleas is affirmed.

                                                                                 Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                 8


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



SCHAFER, P. J.
TEODOSIO, J.
CONCUR.


APPEARANCES:

NATALIE F. GRUBB and MARK. E. OWENS, Attorneys at Law, for Appellant.

SCOTT M. DELIMAN, Attorney at Law, for Appellee.
