[Cite as Vannucci v. Schneider, 2018-Ohio-1294.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                      No. 105577



                              DOMINIC J. VANNUCCI
                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                 DONNA SCHNEIDER
                                                         DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                                        Civil Appeal from the
                                       Berea Municipal Court
                                      Case No. 2016 CVI 00060


        BEFORE: E.T. Gallagher, J., Keough, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: April 5, 2018
FOR APPELLANT

Donna Schneider, pro se
10600 Shale Brook Way
Strongsville, Ohio 44149


FOR APPELLEE

Dominic J. Vannucci, pro se
22649 Lorain Road
Fairview Park, Ohio 44126
EILEEN T. GALLAGHER, J.:

      {¶1} Defendant-appellant, Donna Schneider, pro se, appeals from the judgment of

the Berea Municipal Court, Small Claims Division, finding in favor of plaintiff-appellee,

Dominic Vannucci, on his complaint for unpaid attorney fees. She raises the following

assignments of error for review:

      1. During the independent review of February 28, 2017, the trial court
      committed prejudicial reversible error by adopting the magistrate’s findings
      pursuant to Civ.R. 53.

      2. Many misdirection or illegal testimony or evidence on points material to
      the issues is presumed to have influenced the trial court, and is therefore
      reversible error.

      3. During the independent review of February 28, 2017, the trial court
      committed prejudicial reversible error by not reviewing all of the
      appellant’s objections, and also the transcript of proceedings before the
      magistrate. All of which the trial court had instructed the appellant in the
      journal entry dated February 3, 2017, to comply within 30 days of receipt of
      said instructions. Appellant did comply in less than 30 days. A
      misdirection or illegal evidence on points material is presumed to have
      influenced the trial court, and is therefore reversible error.

      {¶2} After careful review of the record and relevant case law, we affirm the trial

court’s judgment.

                    I. Procedural History and Factual Background

      {¶3} In January 2016, Vannucci filed a complaint against Schneider and her son,

Travis Garner, alleging that “defendants have failed and refused to pay the balance due to

plaintiff in the amount of $2,675.00 for legal services rendered, despite repeated demands
for payment.” The matter proceeded to a hearing before a magistrate, where the following

testimony was adduced.

       {¶4} Vannucci testified that he was contacted by Schneider in an effort to assist

her son, Garner, in filing a paternity action in the Cuyahoga County Juvenile Court.

According to Vannucci, Schneider indicated that she and Garner each sought visitation

rights. Thus, Vannucci testified that he represented both Schneider and Garner during

the juvenile action.

       {¶5} Prior to initiating the juvenile case, Vannucci sent Schneider and Garner a

letter outlining the terms of his representation. The representation letter was admitted

into evidence and provided, in relevant part:

       Dear Travis and Donna:
               We are now scheduled for December 19, 2014 at 10:00 a.m. for a
       pretrial. The Court will then review your situation and receive input from
       the GAL.
               At this time, we must document our fee arrangement. As you recall,
       I advised that I would charge an hourly rate of $250 per hour. All time
       spent on your matter will be billed at that rate including time away from my
       office. The break down on my invoice will be in tenths of an hour.
               I requested a retainer of $1,500 but agreed to accept $1,000 which
       has been paid. Enclosed you will find a current invoice from the time
       spent to date. This is due and payable.
               Please sign and return the enclosed copy of this letter assenting to
       this attorney/client relationship going forward.

       {¶6} Although the letter contained signature blocks for Schneider and Garner, a

signed copy of the letter was never returned to Vannucci. However, Vannucci testified

that Schneider paid him a retainer fee, via a personal check, in the amount of $1,000, and

later paid him an additional $300 for a portion of the legal services rendered.
       {¶7} Vannucci testified that Schneider actively participated in the visitation

proceedings and that the majority of the communications relating to the visitation case

occurred between Vannucci and Schneider.          In support of his testimony, Vannucci

submitted a handwritten visitation schedule and witness list that Schneider prepared for

Vannucci to use during the visitation hearing. In addition, Vannucci submitted several

letters addressed to Schneider and Garner that were sent to Schneider’s mailing address.

       {¶8} After working on the case for approximately one year, Schneider and Garner

refused to make any further payments for legal services and refused to communicate with

Vannucci. As a result, Vannucci withdrew as counsel and filed the instant complaint for

unpaid legal fees.

       {¶9} Garner testified that he did not believe he was obligated to pay Vannucci the

balance of his legal fees because he did not believe Vannucci provided him with effective

assistance of counsel.    He admitted that Schneider paid Vannucci $1,300 and that

Schneider was involved in the decision to terminate Vannucci.

       {¶10} Throughout the hearing, Schneider denied hiring Vannucci to represent her

as counsel. She testified that she did not seek “grandparents rights,” and that Vannucci

was only hired to seek visitation rights for Garner. While she admitted that she paid

Vannucci a total of $1,300, she maintained that she borrowed money from her own

mother to make the payments. Schneider stated that she did not sign any document

expressing her desire to have legal representation, and that she did not actively participate

in, or appear at, the visitation hearings. Schneider did, however, admit that she prepared
the handwritten visitation schedule and witness list that was used by Vannucci during the

visitation case.

       {¶11} At the conclusion of the hearing, the magistrate entered judgment in favor of

Vannucci and against Schneider and Garner, joint and severally. In response, Schneider

filed a motion requesting the magistrate to issue findings of fact and conclusions of law.

       {¶12} In April 2016, the magistrate issued findings of fact and conclusions of law.

 The magistrate made the following findings of fact:

       Defendant, Donna Schneider, contacted the Plaintiff, an Ohio Licenced
       Attorney, regarding representation of her family in a Cuyahoga County
       Juvenile Court case involving a custody/visitation issue involving her son,
       Travis Garner, and her minor grandchild.
       Defendant, Donna Schneider retained the Plaintiff and did in fact give him a
       retainer, with her money, in the sum of $1,300.

       Both Defendants and the Plaintiff testified that the great majority of
       communication was between the Plaintiff and Defendant, Donna Schneider.
        In fact, Defendant Donna Schneider testified that “90% of the time I spoke
       to Dominic about the matter.” Defendant, Donna Schneider, also testified
       that she prepared the visitation schedule and the witness list that was to be
       used by the Plaintiff in the juvenile case. Defendant, Travis Garner
       admitted that he would not return Plaintiff’s phone calls.

       Plaintiff presented evidence that but for Defendant, Donna Schneider’s
       presence, he would of not have accepted the case since Travis Garner had
       no true residence and no means of paying him.

       {¶13} Following its summarization of the relevant facts, the magistrate made the

following conclusions of law:

       1. Defendant, Donna Schneider, hired and retained Plaintiff, Attorney,
       Dominic J. Vannucci, to represent her family in a Cuyahoga County
       Juvenile Court case involving her son’s custody/visitation issues with her
       son’s, defendant, Travis Garner’s minor child.
       2. An attorney-client relationship was in fact created by and between
       Attorney, Dominic J. Vannucci, and defendants Travis Garner and Donna
       Schneider.

       3. The attorney-plaintiff properly conducted his representation of the
       clients. However, he could not communicate with Travis Garner, and
       relied on his communications with defendant, Donna Schneider.

       4. It is clear to this Court, that both defendants, Donna Schneider and Travis
       Garner, retained the plaintiff, Dominic Vannucci, and but for Donna
       Schneider’s initial retainer, presence, and constant involvement in the case
       that the plaintiff would not [have] agreed to said representation or
       continuance of the representation in this matter. To say the least, the
       plaintiff relied on defendant, Donna Schneider’s total involvement in the
       case both in terms of representation and financial payment.

       5. The plaintiff’s fee was supported, very reasonable and basically
       uncontested.

       {¶14} Based on the foregoing, the magistrate recommended finding in favor of

Vannucci and against both Garner and Schneider in the amount of $2,675, plus three

percent interest from June 29, 2015, as well as costs.

       {¶15} Following the magistrate’s decision, Schneider timely filed objections to the

magistrate’s decision. In challenging the magistrate’s decision, Schneider argued that

she never retained or asked Vannucci to represent her, never entered into an oral or

written agreement with Vannucci, and was not part of the visitation proceedings filed by

Garner.

       {¶16} In May 2016, the trial court overruled Schneider’s objections, approved the

magistrate’s decision in its entirety, and entered judgment in favor of Vannucci in the

amount of $2,675, plus three percent interest from June 29, 2015, and costs. The trial

court found that Schneider failed to file a transcript of the magistrate’s proceedings and,
therefore, it could not consider her objections. However, the trial court noted that in

overruling her objections, it reviewed the case file, magistrate’s notes and findings of fact

and conclusions of law, the exhibits presented at trial, Schneider’s objections and

affidavit, and Vannucci’s brief in opposition.

       {¶17} Schneider filed a direct appeal from the trial court’s judgment in Vannucci v.

Schneider, 8th Dist. Cuyahoga No. 104598, 2017-Ohio-192. This court reversed the trial

court’s judgment, finding that “the trial court acted unreasonably and abused its discretion

because it overruled Schneider’s objections due to lack of a transcript before 30 days had

passed from the time the magistrate’s decision was filed.” Id. at ¶ 24. We explained

that “[u]nder Civ.R. 53(D)(3)(b)(iii), Schneider had 30 days to file the transcript” and,

therefore, “the trial court acted unreasonably and abused its discretion in overruling

Schneider’s objections and adopting the magistrate’s decision before the 30-day time

period [expired].” Id. at ¶ 25. We instructed the trial court on remand “to consider the

transcript and follow the required ‘action on objections’ set forth in Civ.R. 53(D)(4)(d),”

which provides:

       If one or more objections to a magistrate’s decision are timely filed, the
       court shall rule on those objections. In ruling on objections, the court shall
       undertake an independent review as to the objected matters to ascertain that
       the magistrate has properly determined the factual issues and appropriately
       applied the law. Before so ruling, the court may hear additional evidence
       but may refuse to do so unless the objecting party demonstrates that the
       party could not, with reasonable diligence, have produced that evidence for
       consideration by the magistrate.

       {¶18} On remand, the trial court considered the filed transcript and once again

overruled Schneider’s objections, approved the magistrate’s decision in its entirety, and
entered judgment in favor of Vannucci in the amount of $2,675, plus three percent

interest from June 29, 2015, and costs. The judgment stated, in pertinent part:

       Upon Defendant’s objection, submitted a second time following remand
       from the 8th District Court of Appeals, and this time containing the full
       transcript of the Magistrate’s hearing, the Court makes the following
       findings:

       1. This Court has independently reviewed the objected matters including
       the transcript of testimony, the exhibits, briefs and affidavits and all other
       evidence.

       2. This Court finds that the need to hear additional evidence, i.e.: conduct
       a trial de novo, does not exist in this case because Defendant did not
       demonstrate that any evidence produced at a trial de novo could not with
       reasonable diligence have been produced before the Magistrate at the
       original Magistrate hearing.

       3. Magistrate Decision herein was both factually and legally sound and
       justified by the evidence. Therefore, objection overruled. Judgment for
       the Plaintiff in sum of $2,675.00, 3% interest from 6/29/15 and costs.

       {¶19} Schneider now appeals the trial court’s judgment.

                                  II. Law and Analysis

       {¶20} For the purposes of judicial clarity, we address Schneider’s assignments of

error together. Within her assigned errors, Schneider argues the trial court erred in

adopting the magistrate’s decision because Vannucci failed to support his claim with

adequate evidence at the trial level.

       {¶21} The standard of review for proceedings in small claims court is abuse of

discretion.    Video Discovery, Inc. v. Passov, 8th Dist. Cuyahoga No. 86445,

2006-Ohio-1070, ¶ 7; Feinstein v. Habitat Wallpaper & Blinds, 8th Dist. Cuyahoga No.

67419, 1994 Ohio App. LEXIS 5771 (Dec. 22, 1994). We also review a trial court’s
adoption of a magistrate’s decision under an abuse of discretion standard of review.

Abbey v. Peavy, 8th Dist. Cuyahoga No. 100893, 2014-Ohio-3921, ¶ 13, citing Lindhorst

v. Elkadi, 8th Dist. Cuyahoga No. 80162, 2002-Ohio-2385.

       {¶22} When applying an abuse of discretion standard, we cannot substitute our

judgment for that of the trial court. A trial court abuses its discretion only if its decision

is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983).         “‘A decision is unreasonable if there is no sound

reasoning process that would support that decision.’” Ockunzzi v. Smith, 8th Dist.

Cuyahoga No. 102347, 2015-Ohio-2708, ¶ 9, quoting AAAA Ents. Inc. v. River Place

Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597

(1990). An abuse of discretion may also be found where the trial court “‘applies the

wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous

findings of fact.’” Ockunzzi at ¶ 9, quoting Thomas v. Cleveland, 176 Ohio App.3d 401,

2008-Ohio-1720, 892 N.E.2d 454, ¶ 15 (8th Dist.).

       {¶23} In challenging the trial court’s judgment, Schneider collectively argues that

Vannucci was not entitled to recover attorney fees from her because (1) she cannot be

held liable for her adult son’s debts, (2) she was not Vannucci’s client because she never

signed a contract, (3) the trial court failed to acknowledge “the fact that each of

[Vannucci’s] invoices [for attorney fees] are addressed to Travis Garner and only Travis

Garner,” (4) she did not participate in or benefit from Garner’s visitation action, and (5)

the money used to pay Vannucci during the visitation action derived from a loan
Schneider received from her own mother. Schneider cites no legal authority to support

her arguments, but contends that her “conviction for liability of attorney fees is against

the manifest weight of the testimony, evidence, and lack of evidence.”

       {¶24} We note that while Schneider’s assigned errors utilize the “manifest weight

of the evidence” language, this court has reiterated that “the proper standard of review for

a trial court judgment that adopts a magistrate’s decision is abuse of discretion, and the

instant appeal will be properly reviewed under this standard.” Agnew v. Muhammad, 8th

Dist. Cuyahoga No. 100599, 2014-Ohio-3419, ¶ 16.

       {¶25} The Ohio Supreme Court has held that “an attorney-client relationship need

not be formed by an express written contract or by the full payment of a retainer.”

Cuyahoga Cty. Bar Assn. v. Hardiman, 100 Ohio St.3d 260, 2003-Ohio-5596, 798 N.E.2d

369, ¶ 8. “Instead, * * * an attorney-client relationship may be created by implication

based upon the conduct of the parties and the reasonable expectations of the persons

seeking representation.” Id.

       {¶26} After careful review of the transcript and exhibits, we are unable to

conclude that the trial court abused its discretion by concluding that the magistrate’s

decision was supported by the evidence adduced at trial. We find Vannucci’s testimony

before the magistrate reasonably established that Schneider “hired and retained

[Vannucci] to represent her family in a Cuyahoga County Juvenile Court case involving

her son’s custody/visitation issues with her son’s minor child.” Significantly, Vannucci

testified that he represented Schneider and Garner and that Schneider sought grandparent
visitation rights. In an effort to corroborate his testimony, Vannucci submitted a

handwritten proposed witness list that Schneider sent to him via facsimile during the

pendency of the underlying custody case.         In the fax, Schneider provided a list of

potential witnesses she believed Vannucci should contact and explained, in relevant part:

       I’m trying to have visitation so [the minor child] can be with [Garner] * * *
       and his brother and sister. (Emphasis added.)

       {¶27} Simply stated, we find the court reasonably determined that Schneider

secured the services of Vannucci for her own benefit and not merely for Garner. See

Drake, Phillips, Kuenzli, & Clark v. Skundor, 27 Ohio App.3d 337, 339-340, 501 N.E.2d

88 (3d Dist.1986) (“[A] parent is bound to a contract and liable for the debt of the child,

even on an oral contract, if it can be determined that the parent secured the services of the

attorney for his or her own benefit, and not merely for their child.”).

       {¶28} While the record reflects that Schneider never returned a signed copy of the

representation agreement to Vannucci, the testimony established that she subsequently

acquiesced to his continued representation, as evidenced by her personal payment of

$1,300 in legal fees and her active presence and participation in the juvenile court case.

Whether Schneider borrowed the money from a family member to retain Vannucci’s legal

services is irrelevant. Thus, the trial court properly relied on Schneider’s conduct to

conclude that an attorney-client relationship was formed by implication.           Although

Schneider correctly argues that Vannucci should have taken the necessary steps to ensure

that he obtained the parties’ signature on a written fee agreement in accordance with the
stated preference of Prof.Cond.R. 1.5(b),1 the record reflects, at the very least, that the

parties orally agreed to the fee arrangement and even negotiated to reduce Vannucci’s

retainer fee from $1,500 to $1,000.

       {¶29} Under these circumstances, we find the trial court did not arbitrarily

conclude that Schneider and Garner had a legal obligation to compensate Vannucci for

unpaid legal services.      Accordingly, the trial court did not abuse its discretion by

overruling Schneider’s objections and adopting the magistrate’s decision in its entirety.

       {¶30} Schneider’s first, second, and third assignments of error are overruled.

       {¶31} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the Berea Municipal Court to carry

this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE


          Prof.Cond.R. 1.5(b) provides, in relevant part:
       1


       The nature and scope of the representation and the basis or rate of the fee and
       expenses for which the client will be responsible shall be communicated to the client,
       preferably in writing, before or within a reasonable time after commencing the
       representation, unless the lawyer will charge a client whom the lawyer has regularly
       represented on the same basis as previously charged.
MELODY J. STEWART, J., CONCURS;
KATHLEEN ANN KEOUGH, P.J., DISSENTS WITH SEPARATE OPINION

KATHLEEN ANN KEOUGH, P.J., DISSENTING:

       {¶32} I would find merit to the appeal and reverse the trial court’s decision

entering judgment against Donna Schneider.              Absent an expressed agreement that

Schneider would be responsible for her son’s legal fees or evidence of an expectation that

Vannucci was also representing Schneider in the juvenile matter, I would find that

Schneider had no legal obligation to compensate Vannucci for unpaid legal services.

Accordingly, I respectfully dissent.

       {¶33} The Supreme Court of Ohio has said that “[w]hile it is true that an

attorney-client relationship may be formed by the express terms of a contract, it ‘can also

be formed by implication based on conduct of the lawyer and expectations of the client.’”

 (Citations omitted.)     Cuyahoga Cty. Bar Assn. v. Hardiman, 100 Ohio St.3d 260,

2003-Ohio-5596, 798 N.E.2d 369, ¶ 10.                   “The determination of whether an

attorney-client relationship was created turns largely on the reasonable belief of the

prospective client.” Id.

       {¶34} In this case, no signed fee agreement was submitted into evidence. In fact,

it is undisputed that the engagement letter sent to Garner and Schneider was not returned.2


           What is interesting to note, however, is that the engagement letter sent by Vannucci only
       2


mentioned the receipt of a retainer and his hourly rate. The letter did not set forth the scope of
representation, an explanation of fees and expenses, billing practices, or payment terms. Testimony
was presented that only Garner signed a document during the initial meeting with Vannucci in his
office. However, that document was not submitted into evidence and no testimony was given about
the content of that document.
 Accordingly, no contract or agreement exists holding Schneider liable for Vannucci’s

unpaid legal services.

       {¶35} I would also find Schneider’s involvement with her son’s case did not create

an attorney-client relationship.   The fax sent by Schneider does not prove that an

attorney-client relationship existed between Schneider and Vannucci.        It only reveals

that she wanted visitation to allow her grandson to spend more time with her son and

family. My reading of the entire content of the fax is that this was just another attempt

to help assist her son in his visitation case. Moreover, although Vannucci testified that

Schneider was seeking grandparent visitation, no court documentation or filings were

presented at trial evidencing that Vannucci ever filed anything on Schneider’s behalf

requesting such visitation.

       {¶36} Additionally, all filings that were submitted into evidence show that

Vannucci was “Attorney for Travis Garner.”     Finally, when Vannucci formally withdrew

as counsel in the juvenile matter, he was withdrawing as counsel for Garner.

Accordingly, Vannucci did not engage in any conduct that created an expectation by

Schneider that he represented her in the juvenile matter or that she had a reasonable belief

that she was a client.

       {¶37} Moreover, no evidence was presented that implied that Schneider would be

legally responsible for Vannucci’s unpaid legal fees.      The exhibits submitted at trial

evidence that Vannucci’s fee bills were only sent to Garner, thus creating an inference

that payment of services was solely Garner’s responsibility.    The evidence submitted at
trial only established that Schneider paid Vannucci the initial retainer on behalf of her son

and then submitted an additional payment to Vannucci on behalf of her son. Financial

assistance does not create a contractual obligation for unpaid services.

       {¶38} Additionally, I would find that the magistrate’s conclusions of law are not

supported by the record. Vannucci did not testify to and no evidence supports the

conclusion that but for Schneider’s involvement with case, Vannucci would not have

agreed to and continue the representation. Supporting the decision to hold Schneider

financially responsible for the unpaid fees, the magistrate concluded that Vannucci relied

on Schneider’s “involvement in the case in terms of both representation and financial

payment.”    However, Vannucci’s reliance on Schneider does not create an implied

obligation of Schneider to Vannucci.

       {¶39} Rather, the record clearly shows that a mother was financially helping her

son secure legal representation for a custody matter and that she communicated with

Vannucci to assist in this representation. These actions, in my opinion, do not equate to

being legally responsible for her son’s unpaid legal fees.
