[Cite as Eichenberger v. Chilton-Clark, 2019-Ohio-3343.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Raymond L. Eichenberger,                            :

                Plaintiff-Appellant,                :
                                                                     No. 17AP-809
v.                                                  :             (C.P.C. No. 14CV-3847)

Cynthia Chilton-Clark, et al.,                      :        (REGULAR CALENDAR)

                Defendants-Appellees.               :



                                           D E C I S I O N

                                    Rendered on August 20, 2019


                On brief: Raymond L. Eichenberger, pro se. Argued:
                Raymond L. Eichenberger.

                On brief: Cynthia Chilton-Clark, pro se. Argued: Cynthia
                Chilton-Clark.

                On brief: David A. Tawney, pro se.

                  APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
        {¶ 1} Plaintiff-appellant, Raymond L. Eichenberger, appeals two decisions entered
by the Franklin County Court of Common Pleas on July 5, 2016 and October 20, 2017,
respectively denying Eichenberger's motion for summary judgment and granting
defendants-appellees' motions for summary judgment. With respect to his claim regarding
the underlying foreclosure litigation in which he represented defendant-appellee Cynthia
Chilton-Clark, we agree that because his client disputed the amount billed, because
Eichenberger was later adjudged to have behaved unethically toward his client, and because
he only alleged that his client had not paid the full total as billed, he was required to, but
did not, present proper expert evidence to substantiate the reasonableness of his full fee.
We also agree that Eichenberger was not entitled to recover fees on a contingent fee case in
No. 17AP-809                                                                                                   2


which the contingency (the client's recovery) never occurred. We likewise agree that
successor counsel was legally permitted to compete with Eichenberger and was not as a
matter of law interfering in the contract between Eichenberger and his client. For these
reasons, we agree with the trial court that Eichenberger was not entitled to summary
judgment and conversely that the appellees were.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On April 8, 2014, Eichenberger filed suit against appellees, Cynthia Chilton-
Clark1 and David A. Tawney. (Apr. 8, 2014 Compl.) The complaint alleged (and Chilton
admitted) that Chilton had contracted with Eichenberger (who was then an attorney) to
defend her in a foreclosure action and to prosecute a civil case against her former
accountant. (Compl. at ¶ 2-3; May 12, 2016 Chilton Answer at ¶ 2-3.) The complaint went
on to allege that Chilton had breached the foreclosure defense fee agreement by failing to
permit Eichenberger to appeal on her behalf and then failed to pay the balance of her bill,
$3,820. (Compl. at ¶ 6-12.) It alleged that Chilton had breached the fee agreement in
another case against her former accountant by discharging Eichenberger as her counsel
before the case had concluded and by refusing to pay to Eichenberger contingent fees or an
hourly rate for the hours he expended on the litigation. Id. at ¶ 13-21. The complaint also
sought damages against Tawney (the attorney who succeeded Eichenberger as Chilton's
counsel) for interference with the contract between Eichenberger and Chilton because he
agreed to be Chilton's lawyer without the consent of Eichenberger and without first
ensuring that Chilton paid what Eichenberger demanded. Id. at ¶ 24-25.
        {¶ 3} A copy of the hand-signed contingent fee agreement in the case against
Chilton's former accountant was eventually made part of the summary judgment record.
(Contingent Fee Agreement, attached to Apr. 26, 2016 Eichenberger Mot. for Summ. Jgmt.)
The contingent fee agreement provided for payment of one third of the gross amount of any
eventual settlement to Eichenberger and then also provided:
                 Client(s) has/have been told and understand(s) that if the
                 relationship with the attorney is terminated prior to settlement
                 or court judgment that this agreement supersedes any
                 subsequent agreement with any other attorney or any
                 insurance company and that the contingent fee shall still be
1 Though the complaint caption refers to her as Chilton-Clark, she apparently prefers to be known as Ms.

Chilton. (Sept. 16, 2014 Decision at 1, fn. 1.) Thus we shall hereafter refer to her as Chilton rather than Chilton-
Clark.
No. 17AP-809                                                                             3


              owed to the attorney whenever the settlement or judgment is
              paid to the client(s).

              Client(s) also agree(s) that if the legal matter and/or litigation
              is terminated voluntarily at the decision of the client(s) before
              the point where monetary recovery by way of settlement or
              court judgment has been finally denied, or if the client(s) fail(s)
              to cooperate with the attorney at any time to pursue the case,
              or if the client abandons the case, that the client(s) will owe the
              attorney the reasonable value of his services and time spent to
              date on the case up to the point of termination of work by the
              attorney and/or abandonment by the client(s).

              For purposes of this Agreement, the reasonable value of the
              attorney's time is hereby agreed to be $ 200.00 per hour for
              every hour and tenth of an hour attorney expends on the legal
              matter for the client(s).

Id.
       {¶ 4} Although what purported to be a retyped conformed copy of the fee
agreement in the foreclosure case had been filed in the record, no copy of the original, hand-
signed fee agreement for the foreclosure lawsuit was ever introduced into evidence in
Eichenberger's lawsuit against his former client. (Foreclosure Fee Agreement, Ex. to
Compl.) The foreclosure fee agreement provided that the rate of pay was to be $200 per
hour, to be drawn from periodically deposited retainers, and that the balance of fees would
be due in the event the attorney-client relationship terminated before the legal matter was
concluded. Id.
       {¶ 5} On April 26, 2016, Eichenberger filed a motion for summary judgment
against both Chilton and Tawney. (Apr. 26, 2016 Eichenberger Mot. for Summ. Jgmt.)
Chilton and Tawney moved for summary judgment against Eichenberger on May 25 and
26, 2017, respectively. (May 25, 2017 Chilton Mot. for Summ. Jgmt.; May 26, 2017 Tawney
Mot. for Summ. Jgmt.) Eichenberger and both defendants, Chilton and Tawney, filed
affidavits and other exhibits.
       {¶ 6} Eichenberger's affidavit swore that he was retained by Chilton in the
foreclosure case at a rate of $200 per billed hour, that he provided legal services in
connection with the foreclosure case, and that Chilton refused to pay the final bill amount
for services rendered. (June 9, 2017 Eichenberger Aff. ¶ 3-4, 8, attached to June 9, 2017
Eichenberger Memo. in Opp.) Eichenberger averred that when Chilton refused to pay on
No. 17AP-809                                                                             4


the foreclosure case bill, he refused to do further legal work on the contingent fee case
against her accountant until she paid to his satisfaction. Id. at ¶ 9. Instead of paying as
demanded, Chilton dismissed Eichenberger as her attorney in the contingent fee case. Id.
at ¶ 10. She then refused to pay an hourly billed rate for the work he had already performed
on the contingent fee case. Id. at ¶ 11-13. Eichenberger admitted that not until November
2012 did Chilton's new attorney pick up Chilton's file from his office, but Eichenberger
averred that he had no documents in his possession that were not also in Chilton's
possession. Id. at ¶ 22-23. Eichenberger asserted that Chilton owed him $3,820 for his
work on the foreclosure case and $20,080 on the contingent fee case. Id. at ¶ 18.
Notwithstanding Eichenberger's claim that he was owed fees on the contingent fee case, he
admitted that, with Tawney as counsel, Chilton lost the contingent fee case and that defeat
was affirmed by the court of appeals. Id. at ¶ 14.
        {¶ 7} Chilton, in her affidavit, agreed that she entered into two fee agreements with
Eichenberger. (May 25, 2017 Chilton Aff. at ¶ 3.) She admitted also that she received a bill
from Eichenberger after he claimed she breached the foreclosure case agreement by
refusing to appeal.    Id. at ¶ 4.    However, she averred that she always paid when
Eichenberger asked her for a payment on a case, that she paid by cash or check, and that
Eichenberger never provided her receipts even though she asked for them. Id. at ¶ 5-6. She
stated that she had paid more than what Eichenberger had accounted for in his billing and
that the bills he sent her had errors. Id. at ¶ 12-13. She averred that after Eichenberger
started denying that she had paid, demanding more payments, and mishandling the suit
against her accountant, she asked that he withdraw and return her files. Id. at ¶ 8-10. He
refused on both counts and she was forced to file a pro se motion to force him to withdraw.
Id. at ¶ 10, 14.
        {¶ 8} Tawney, in his affidavit, agreed that he represented Chilton in the contingent
fee case beginning when he entered an appearance on May 15, 2012. (May 26, 2017 Tawney
Aff. at ¶ 9.) Although Tawney explained that he had represented Chilton on other matters
before entering an appearance in the contingent fee case, he averred that he only
represented Chilton in the contingent fee case after she terminated Eichenberger on
April 25, 2012. Id. at ¶ 5-6, 8, 10. He stated that when Chilton told him that she wanted to
No. 17AP-809                                                                             5


dismiss Eichenberger as her counsel in the contingent fee case, he advised her as to the
steps she would have to take to terminate Eichenberger. Id. at ¶ 7.
       {¶ 9} The parties also introduced some documentary evidence. Eichenberger
introduced sparse itemized time bills for each case. (Bills, attached to June 9, 2017
Eichenberger Memo. in Opp.) Tawney introduced copies of Chilton's pro se motion
dismissing Eichenberger, the trial court's order dismissing Eichenberger as counsel of
record, and dockets for Chilton's divorce and the contingent fee action. (May 26, 2017
Tawney Exs.) Chilton produced a series of correspondence between her and Eichenberger.
(Chilton Exs. 1-5, filed May 17, 2016; Chilton Exs. 2-6, 9-21, attached to May 25, 2017
Chilton Aff.)
       {¶ 10} The correspondence between Chilton and Eichenberger generally confirmed
a contentious relationship between the parties, provided evidence that Chilton made some
payments, showed that Eichenberger nonetheless felt he was owed further payments, and
demonstrated that Eichenberger refused to withdraw and to return Chilton's files. On
January 19, 2012, for example, Chilton wrote to Eichenberger regarding the status of the
cases and inquired, "What hours will you be in on Friday? I most likely will be paying in
cash as usual." (Chilton Ex. 4, attached to May 25, 2017 Chilton Aff.) Then on February 28,
2012, Eichenberger wrote:
                Hello Cindy.

                You didn't drop a check off for me yesterday as I had asked you
                to do.

                Nor have you told me when you are going to pay the bill.

                If you're going to deliver the signature pages of the Affidavits to
                me today, I need for you to include a check for the full amount
                of the foreclosure bill.

                I don't continue to do legal work for people who owe me money.

                Thanks.

                Ray Eichenberger

(Chilton Ex. 2, filed May 17, 2016.) In a separate e-mail, Eichenberger elaborated by
asserting that Chilton was seeking to delay paying her bills and added, "I don't apologize to
No. 17AP-809                                                                            6


clients for expecting them to pay me PROMPTLY for my services rendered." (Chilton Ex.
5, attached to May 25, 2017 Chilton Aff.) Later that day, Chilton replied in relevant part:
              Sending me a bill for over a year of services and making it
              sound as though [I] shouldn't drop off the signed affidavits on
              a different case if I don't have a check is absolutely wrong. I
              have several issues with the bill at first glance, so it will take me
              some time to review it...time that I don't have right now with
              this deadline approaching and you waiting until the last minute
              to send me this stuff to review. I don't have receipts for all
              accounting legal expenses that I paid you by check or cash and
              I can't complete taxes [un]til then.

Id.
       {¶ 11} Approximately one month later, on March 26, 2012, Chilton sent an e-mail
to Eichenberger indicating that he was charging her excessively, had mishandled the case,
was unethically refusing to do further work on the contingency fee case, and that, in
consequence, she was speaking to other attorneys about how to proceed. (Chilton Ex. 6,
attached to May 25, 2017 Chilton Aff.)
       {¶ 12} In April, Eichenberger sent Chilton this e-mail:
              Cindy,

              If you read the Fee Agreement that you signed with me, you just
              breached the Agreement, and I'm entitled to be paid in full for
              my work performed to date.

              When I enter into a Contingent Fee Agreement with someone,
              I am extending them credit- you had and have a duty and
              obligation to fully cooperate with me in the work since I have
              extended you credit. You haven't done so in many, many
              instances.

              Therefore, in order to terminate me from the [contingent fee]
              case, I will prepare a bill and I would expect you to pay me IN
              FULL before I release any information to you or withdraw from
              the case. My guess would be that you owe me at least
              $ 20,000.00 (probably more), in addition to the $ 2,615 you
              owe me on the foreclosure case.

              You owe me a great deal of money, and I'm not going to let you
              cheat me out of being paid for my work.

              I find it hard to believe that you think that I would just walk
              away and let you do that.
No. 17AP-809                                                                       7


             You appear to be very good at trying to evade paying your bill
             obligations.

             Furthermore, I can not withdraw from the case unless the
             Court permits me to do so, which the Judge may refuse to do at
             this late point. I would need to file a Motion to Withdraw, and
             I'm not doing any further work for you until I get paid,
             including such a Motion.

             Any work I need to do to withdraw from the case from this
             point on will be billed to you at the rate of $ 250.00 per hour.

             After you pay me in full for my work, the charge to copy your
             file will be $ 150.00. That's based on my actual expenses
             incurred to copy voluminous records.

             My guess is that you can't afford to pay me any of the above
             amounts, so it looks like I won't be withdrawing from the case.

             I'm sure that it will be a waste of my time to even prepare a bill
             for you.

             Ray Eichenberger

(Chilton Ex. 2, attached to May 25, 2017 Chilton Aff.) Several days later, on April 23,
Chilton wrote Eichenberger stating in relevant part:
             My attorney and I would [like to] know what [i]s going on if you
             would give me my file back. It is an ethics violation for you to
             refuse to withdraw. I want to make sure that you are clear on
             that and you cannot try to use denial later. It is a violation to
             hold onto my documents as well. Will you sign the substitution
             of counsel or are you going to make this situation worse for all
             parties involved?

(Chilton Ex. 16, attached to May 25, 2017 Chilton Aff.) Eichenberger responded the next
day:
             Cindy,

             I will repeat this a final time-

             I plan to attend the mediation on Monday morning of next
             week.

             I do not intend to withdraw from the [contingency] matter.
No. 17AP-809                                                                            8


              Let me know who this new attorney is- I'll be more than happy
              to file a lawsuit against him or her due to interference with my
              contractual relationships.

              You haven't offered to secure my work on the [contingency]
              case at all, and most certainly not in any manner that is fair and
              reasonable to me.

              That being the case, and since you are the one who breached
              our contingent Fee Agreement by failing to cooperate with me,
              I have no obligation to withdraw.

              And, after you pay me the money that you owe me, I still have
              to seek permission from the Judge to withdraw from the case,
              which he may or may not grant at this late hour.

              Ray Eichenberger.

(Chilton Ex. 17, attached to May 25, 2017 Chilton Aff.)
       {¶ 13} On April 25, 2012, Chilton filed a pro se motion requesting that Eichenberger
be dismissed as her counsel. (May 26, 2017 Tawney Exs. at 7.) Two days later, on April 27,
2012, the judge in the contingent fee case granted the motion and dismissed Eichenberger.
Id. at 8-9.
       {¶ 14} On July 5, 2016, the trial court in this case denied Eichenberger's motion for
summary judgment. (July 5, 2016 Decision & Entry.) It found that Eichenberger's
interpretation of his fee agreement (that he was entitled to transform the contingency into
an hourly rate and recover even in the event of no recovery by the client) was unethical and
against public policy. Id. at 14-15. It found genuine disputes of fact as to how much money
was owed in respect to the foreclosure litigation that precluded Eichenberger from being
granted summary judgment. Id. at 15-16.
       {¶ 15} On October 20, 2017, the trial court granted Chilton and Tawney's motions
for summary judgment. (Oct. 20, 2017 Decision & Entry.) The trial court concluded that
Tawney had presented unrebutted evidence that, as a business competitor of Eichenberger,
whatever extent he interfered in the relationship between Eichenberger and Chilton was
privileged as legitimate competition. Id. at 19-23. The court reiterated that Eichenberger's
argument that his contingent fee agreement entitled him to transform the contingency into
an hourly rate and recover even in the event of no recovery by the client was unethical and
against public policy. Id. at 24-28. It held that recovery could only be had by Eichenberger
No. 17AP-809                                                                              9


in the event of no recovery by Chilton if Eichenberger produced evidence that Tawney and
Chilton failed to recover in the contingent fee case as a result of their bad faith. Id. at 28.
However, Eichenberger had not made such an allegation. Id. With respect to the fees
allegedly owed in respect to the foreclosure defense, the trial court found that Chilton, as a
matter of law, could not have breached the contract by failing to permit an appeal. Id. at
32. The court also found that Eichenberger had not met his reciprocal burden to show that
the work he did to earn the fees he alleged he was owed was reasonable and necessary or
that the total fees alleged were, as a whole, reasonable. Id. at 32-43.
       {¶ 16} Eichenberger now appeals.
II. ASSIGNMENTS OF ERROR
       {¶ 17} Eichenberger assigns three errors for our review:
              [1.] THE TRIAL COURT ERRED AS A MATTER OF LAW AND
              ABUSED ITS DISCRETION BY GRANTING THE SUMMARY
              JUDGMENT TO DEFENDANT CLARK CONCERNING THE
              PLAINTIFF'S CAUSE OF ACTION AGAINST HER FOR
              ATTORNEY'S FEES INCURRED IN THE FORECLOSURE
              CASE.

              [2.] THE TRIAL COURT ERRED AS A MATTER OF LAW AND
              ABUSED ITS DISCRETION BY GRANTING THE SUMMARY
              JUDGMENT TO DEFENDANT CLARK CONCERNING THE
              PLAINTIFF'S CAUSE OF ACTION AGAINST HER FOR
              ATTORNEY'S FEES INCURRED IN THE CONTINGENT FEE
              CASE AGAINST HER ACCOUNTANT- THE OHIO SUPREME
              COURT HAS HELD THAT FEES IN SUCH MATTERS
              SHOULD BE RECOVERED ON A QUANTUM MERUIT
              BASIS.

              [3.] THE TRIAL COURT ERRED AS A MATTER OF LAW AND
              ABUSED ITS DISCRETION BY GRANTING THE SUMMARY
              JUDGMENT TO DEFENDANT TAWNEY ON THE
              PLAINTIFF'S CAUSE OF ACTION AGAINST HIM FOR
              INTERFERENCE      IN   PLAINTIFF'S  CONTRACTUAL
              RELATIONSHIP WITH DEFENDANT CLARK. THE FACTS
              OF THE CASE CREATED A QUESTION OF FACT
              CONCERNING THE INVOLVEMENT OF DEFENDANT
              TAWNEY AND MADE THE ISSUE NOT SUBJECT TO
              SUMMARY JUDGMENT.
No. 17AP-809                                                                          10


III. DISCUSSION
   A. Standard of Review
      {¶ 18} Ohio Rule of Civil Procedure 56(C) provides that:
             Summary judgment shall be rendered forthwith if the
             pleadings, depositions, answers to interrogatories, written
             admissions, affidavits, transcripts of evidence, 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.

The Supreme Court of Ohio has explained:
             Summary judgment will be granted only when there remains
             no genuine issue of material fact and, when construing the
             evidence most strongly in favor of the nonmoving party,
             reasonable minds can only conclude that the moving party is
             entitled to judgment as a matter of law. Civ.R. 56(C); Temple v.
             Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 Ohio Op.
             3d 466, 364 N.E.2d 267. The burden of showing that no
             genuine issue of material fact exists falls upon the party who
             files for summary judgment. Dresher v. Burt (1996), 75 Ohio
             St.3d 280, 294, 1996 Ohio 107, 662 N.E.2d 264.

Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, ¶ 10; see also, e.g., Esber Bev. Co. v.
Labatt United States Operating Co., L.L.C., 138 Ohio St.3d 71, 2013-Ohio-4544, ¶ 9.
      {¶ 19} The Supreme Court has also discussed in detail the relative burdens of
movant and nonmovant:
             [A] party seeking summary judgment, on the ground that the
             nonmoving party cannot prove its case, bears the initial burden
             of informing the trial court of the basis for the motion, and
             identifying those portions of the record which demonstrate the
             absence of a genuine issue of material fact on the essential
             element(s) of the nonmoving party's claims. The moving party
             cannot discharge its initial burden under Civ.R. 56 simply by
             making a conclusory assertion that the nonmoving party has no
             evidence to prove its case. Rather, the moving party must be
             able to specifically point to some evidence of the type listed in
             Civ.R. 56(C) which affirmatively demonstrates that the
             nonmoving party has no evidence to support the nonmoving
             party's claims. If the moving party fails to satisfy its initial
             burden, the motion for summary judgment must be denied.
             However, if the moving party has satisfied its initial burden, the
             nonmoving party then has a reciprocal burden outlined in
             Civ.R. 56(E) to set forth specific facts showing that there is a
No. 17AP-809                                                                             11


              genuine issue for trial and, if the nonmovant does not so
              respond, summary judgment, if appropriate, shall be entered
              against the nonmoving party.

Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). In deciding summary judgment, the trial
court must give the nonmoving party "the benefit of all favorable inferences when evidence
is reviewed for the existence of genuine issues of material facts." Byrd at ¶ 25. When
reviewing a trial court's decision on summary judgment, our review is de novo and we
therefore apply the same standards as the trial court. Bonacorsi v. Wheeling & Lake Erie
Ry., 95 Ohio St.3d 314, 2002-Ohio-2220, ¶ 24.
   B. First Assignment of Error – Whether the Trial Erred by Granting
      Summary Judgment to Chilton in Regard to the Fees Allegedly Owed in
      the Foreclosure Case
       {¶ 20} Despite the fact that Eichenberger never produced an original or even a
photocopy of an original fee agreement with respect to the foreclosure case, Chilton
admitted the existence of a contract and did not dispute that the retyped or conformed
version Eichenberger submitted was accurate in its essential details. Compare Compl. at
¶ 2-3 with May 12, 2016 Chilton Answer at ¶ 2-3; see also Foreclosure Fee Agreement, Ex.
to Compl. Consequently, it is undisputed that Eichenberger and Chilton had a contract
whereby Chilton would pay for legal services at the rate of $200 per hour to be paid in on-
demand retainers during the course of the litigation. (Foreclosure Fee Agreement, Ex. to
Compl.)
       {¶ 21} Eichenberger avers that Chilton did not pay her bill in full; Chilton avers that
she made payments of some amounts but that the final bill was erroneous and so was not
paid in full. Compare June 9, 2017 Eichenberger Aff. at ¶ 8 with May 25, 2017 Chilton Aff.
at ¶ 6, 12. Correspondence from Eichenberger states a different amount due than is
reflected in his final bill. Compare Chilton Ex. 2, attached to May 25, 2017 Chilton Aff. with
Chilton Ex. 7, attached to May 25, 2017 Chilton Aff. Thus, summary judgment could not be
granted in favor of Eichenberger because the summary judgment record does not show
undisputed facts entitling him to recover an undisputed amount as a matter of law. Hence,
the trial court did not err in refusing summary judgment to Eichenberger.
       {¶ 22} The remaining question is whether Chilton's motion for summary judgment
should have been granted with respect to the foreclosure fee agreement. As the movant,
Chilton bore the initial burden of informing the trial court of the basis for her motion and
No. 17AP-809                                                                              12


identifying those portions of the record that demonstrated the absence of a genuine issue
of material fact that would deny Eichenberger at least one essential element of his claim.
Dresher, 75 Ohio St.3d at 293. Chilton succeeded in this regard on the issue of damages.
She argued that Eichenberger was unable to prove that the bills he produced were
reasonable. She averred that she made some payments to Eichenberger but that the final
bill included "multiple errors, excessive fees, and charg[ed] fees to the wrong case."
(May 25, 2017 Chilton Aff. at ¶ 13; May 25, 2017 Chilton Mot. for Summ. Jgmt. at 8-11.)
The burden then shifted to Eichenberger to show at least a genuine issue of material fact on
that point to avoid summary judgment being granted against him. Civ.R. 56(E); Dresher
at 293. Simply put, Eichenberger needed to produce "facts as would be admissible in
evidence," that Chilton owed more than the amount she paid. Civ.R. 56(E); Dresher at 293.
He did not do this. Instead, he stated in his affidavit that, "[a]ll of the legal work performed
by [Eichenberger] on behalf of [Chilton] was reasonable and necessary in both [cases]."
(June 9, 2017 Eichenberger Aff. at ¶ 15.)
       {¶ 23} The Ohio Rules of Professional Responsibility prohibit charging clearly
excessive fees and contain factors for determining whether a fee is clearly excessive:
              A lawyer shall not make an agreement for, charge, or collect an
              illegal or clearly excessive fee. A fee is clearly excessive when,
              after a review of the facts, a lawyer of ordinary prudence would
              be left with a definite and firm conviction that the fee is in
              excess of a reasonable fee. The factors to be considered in
              determining the reasonableness of a fee include the following:

              (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;
No. 17AP-809                                                                             13


                (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.

Prof.Cond.R. 1.5(a)(1) through (8). Rather than discuss these factors, Eichenberger opined
in his affidavit that his time spent on both of Chilton's cases was necessary and reasonable.
(June 9, 2017 Eichenberger Aff. at ¶ 15.) His affidavit additionally justifies the fees charged
only by stating that hourly rate of $200 was "very reasonable for an attorney of
[Eichenberger]'s experience, which is over thirty-five (35) years of practicing law." Id. at
¶ 16. He argues that this conclusory testimony as his own expert is sufficient evidence to
meet his reciprocal burden under Dresher and Civ.R. 56(E). (Eichenberger Brief at 24.) We
do not agree.
       {¶ 24} Attorney testimony as to the reasonableness of the attorney's own bills has
been permitted in cases where the client did not, during the course of the representation,
question the reasonableness of the bills provided. See Baker & Hostetler, LLP v. Delay,
10th Dist. No. 08AP-1007, 2009-Ohio-2507, ¶ 30, citing Reminger & Reminger Co., L.P.A.
v. Fred Siegel Co., L.P.A., 8th Dist. No. 77712, 2001 WL 210024, 2001 Ohio App. LEXIS
760, *19-20 (March 1, 2001); Dwight D. Brannon & Assocs. v. Barnard, 7th Dist. No.
16693, 1997 WL 797712, 1997 Ohio App. LEXIS 5935, *7-9 (Dec. 31, 1997); Thomas & Boles
v. Burns, 8th Dist. No. 64995, 1994 WL 110950, 1994 Ohio App. LEXIS 1390, *21-22
(March 31, 1994). However, here the undisputed evidence shows that Chilton did complain
about the reasonableness of the amounts Eichenberger attempted to charge her while the
litigation was ongoing. (Chilton Ex. 5, attached to May 25, 2017 Chilton Aff.) In such
circumstances, courts have required "independent expert testimony" concerning the
reasonableness of the fees. Joseph G. Stafford & Assocs. v. Skinner, 8th Dist. No. 68597,
1996 WL 631112, 1996 Ohio App. LEXIS 4803, *23-24 (Oct. 31, 1996) (collecting and
comparing cases). Even if Eichenberger had been able to qualify on the basis of experience
as his own expert, he was obviously not independent. See Evid.R. 702. Having failed to
produce sufficient "facts as would be admissible in evidence" on the topic of whether his
billed fee was reasonable, Eichenberger failed to meet his reciprocal burden under Dresher.
No. 17AP-809                                                                              14


Civ.R. 56(E); Dresher at 293. He averred that Chilton never paid the full bill but never
presented proper independent expert evidence to create a genuine issue of material fact as
to whether his full bill was a reasonable fee that could be collected. In this situation, it was
Eichenberger's responsibility to do that in response to Chilton's motion for summary
judgment.
          {¶ 25} This Court has previously noted:
                " 'A lawyer engaging in clear and serious violation of duty to a
                client may be required to forfeit some or all of the lawyer's
                compensation for the matter.' " [In re] Fraelich[, 11th Dist. No.
                2000-T-0016, 2004-Ohio-4538 at ¶ 23], quoting Restatement
                of the Law 3d, Governing Lawyers (2000), Section 37.
                Similarly, " '[a] lawyer who does not at all times represent the
                client with undivided fidelity is not entitled to compensation
                for his or her services[.]" [King v. ]White[, 962 P.2d 475, 486
                (Kan. 1998)], quoting 7 Am.Jur.2d, Attorneys at Law Section
                279, Fidelity and professional competence. " 'An attorney who
                is guilty of actual fraud or bad faith toward a client * * * is not
                entitled to any compensation for his or her services.' " Id.

State v. Silverman, 10th Dist. No. 05AP-837, 2006-Ohio-3826, ¶ 159. In this case, far from
rendering valuable legal advocacy for which Eichenberger could justifiably expect to be
compensated, Eichenberger frequently acted in an unprofessional manner toward his
client.
          {¶ 26} For example, Eichenberger alleged that Chilton breached the fee agreement
by not permitting him to appeal her case. (Compl. at ¶ 4, 7; May 25, 2017 Chilton Aff. at
¶ 7-8.) But the client, not the attorney, holds the reins in making the decision about whether
to extend litigation by filing an appeal. Prof.Cond.R. 1.2(a); Jones v. Barnes, 463 U.S. 745,
751 (1983). The Rules of Professional Conduct also require that "[a] lawyer shall act with
reasonable diligence and promptness in representing a client."                  (Emphasis sic.)
Prof.Cond.R. 1.3. That obligation persists despite "opposition, obstruction, or personal
inconvenience to the lawyer." Prof.Cond.R. 1.3, comment [1]. In other words, "[a] lawyer
should carry through to conclusion all matters undertaken for a client, unless the client-
lawyer relationship is terminated as provided in Rule 1.16." Prof.Cond.R. 1.3, comment [4].
Yet, by Eichenberger's own admission, when Chilton allegedly failed to pay to his
satisfaction on the foreclosure defense case, he ceased work (but did not withdraw) on the
contingent fee case, in a visibly coercive effort to force payment of what he believed he
No. 17AP-809                                                                             15


deserved. (June 9, 2017 Eichenberger Aff. at ¶ 9.) Finally, Ohio Rule of Professional
Conduct 1.16 requires that a lawyer "shall withdraw" when discharged by the client and
requires counsel, on termination, to "promptly" deliver to the client all client papers and
property including "correspondence, pleadings, deposition transcripts, exhibits, physical
evidence, expert reports, and other items reasonably necessary to the client's
representation." (Emphasis sic.) Prof.Cond.R. 1.16(a)(3), (d). When Chilton sought to
discharge Eichenberger from all work on her behalf after he refused to work on the
contingent case when she protested the case with the hourly bill, he refused to undertake
his duty to withdraw in either case and held Chilton's files hostage for the better part of one
year. (Chilton Exs. 2, 17, attached to May 25, 2017 Chilton Aff.; June 9, 2017 Eichenberger
Aff. at ¶ 10, 23; May 26, 2017 Tawney Exs. at 7-9.)
       {¶ 27} The trial court did not err in holding that a question of fact about the amount
allegedly owed prevented Eichenberger from being awarded summary judgment. It also
did not err in holding that, under the unusual factual circumstances in this case,
Eichenberger's failure to present independent and more-than-conclusory expert evidence
about the reasonableness of his fee made it impossible, as a matter of law, for his claim to
survive Chilton's summary judgment motion. Eichenberger's first assignment of error is
overruled.
   C. Second Assignment of Error – Whether the Trial Court Erred in Holding
      that Eichenberger Could not, as a Matter of Law, Recover Under the
      Contingent Fee Agreement where no Contingency had Occurred
       {¶ 28} The Supreme Court has stated:
              1. 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.

              2. 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 v. Lansberry, 68 Ohio St.3d 570 (1994), paragraphs one and two of the syllabus.
       {¶ 29} In this case, Eichenberger's own complaint and Chilton's answer establish
that he had a contingent fee agreement with Chilton. (Chilton Answer at ¶ 3; Compl. at ¶ 3.)
And his own affidavit makes clear that the specified contingency—her recovery in the suit
No. 17AP-809                                                                            16


against her former accountant—never occurred because she lost the case. (June 9, 2017
Eichenberger Aff. at ¶ 14; Contingent Fee Agreement.) Thus, Eichenberger cannot recover
with a quantum meruit theory under Reid.
       {¶ 30} Eichenberger argues that, notwithstanding the fact that the contingency
never occurred, he is entitled to recover because of the Supreme Court's decision in Fox &
Assocs. Co., L.P.A. v. Purdon, 44 Ohio St.3d 69 (1989). Eichenberger states in his brief
before this Court at pages 29-30 that the trial court "obviously had no inkling of the
existence of the holding" in Fox because if it had "properly applied that case" then it could
not have ruled against him. We hold that Fox does not conflict with Reid. The only reason
the attorney-plaintiffs in Fox were entitled to recover anything from successor counsel in
quantum meruit was because the client recovered; in essence, the contingency triggered.
Fox at 70. Not only is Eichenberger not entitled to recover in the absence of a "successful
occurrence of the contingency," contingency fee contracts which purport to entitle an
attorney to recovery whether or not the client recovers have been found by the Supreme
Court to be unethical. Cuyahoga County Bar Assn. v. Levey, 88 Ohio St.3d 146, 148
(2000).
       {¶ 31} We overrule Eichenberger's second assignment of error.
   D. Third Assignment of Error – Whether the Trial Court Erred in Granting
      Tawney Summary Judgment on Eichenberger's Claim that Tawney
      Interfered in his Contractual Relationship with Chilton
       {¶ 32} "In order to recover for a claim of intentional interference with a contract,
one must prove (1) the existence of a contract, (2) the wrongdoer's knowledge of the
contract, (3) the wrongdoer's intentional procurement of the contract's breach, (4) the lack
of justification, and (5) resulting damages." Kenty v. Transamerica Premium Ins. Co., 72
Ohio St.3d 415 (1995), paragraph two of the syllabus. The Supreme Court has recognized
that competition (if the competitor does not employ wrongful means or create or continue
an unlawful restraint of trade) can be a justification for interference in a contract and will
defeat a claim of tortious interference in a contract where the contract was terminable at
will. Fred Siegel Co., L.P.A. v. Arter & Hadden, 85 Ohio St.3d 171, 179-80 (1999); see also
Restatement of the Law 2d, Torts, Section 768. It has also recognized that clients have a
right to terminate counsel in favor of new counsel and, thus, that the "privilege of fair
competition has been recognized in the context of the legal profession." Siegel at 180, citing
No. 17AP-809                                                                            17


Reid at 570; Ramirez v. Selles, 784 P.2d 433 (Ore.1989); Koeppel v. Schroder, 122 A.D.2d
780, 782 (N.Y.1986); Restatement of the Law 2d, Torts, Section 768.
       {¶ 33} Tawney has explained in his affidavit how Chilton became frustrated with
Eichenberger and acted to terminate him in favor of hiring Tawney. (May 26, 2017 Tawney
Aff. at ¶ 7-10.)    The correspondence in the summary judgment record between
Eichenberger and Chilton clearly shows that Chilton became frustrated with Eichenberger's
behavior and fired him. (Chilton Exs. 2-5, 16-17, attached to May 25, 2017 Chilton Aff.) The
correspondence shows (and Tawney's affidavit admits) that Chilton was in communication
with Tawney before she filed the motion to dismiss Eichenberger on April 25, 2012.
(Chilton Ex. 16, attached to May 25, 2017 Chilton Aff.; Tawney Aff. at ¶ 7.) However, utterly
lacking from Eichenberger's reciprocal submission to defend himself against summary
judgment is any fact to suggest that this contact between Tawney and Chilton was anything
other than permitted, justifiable competition.
       {¶ 34} Eichenberger's third assignment of error is overruled.
IV. CONCLUSION
       {¶ 35} Chilton disputed the amounts billed for legal fees for which Eichenberger
claims payment is owed. Eichenberger behaved unprofessionally toward Chilton in
attempting to collect his fees pre-litigation. In attempting to collect his fees from Chilton
through subsequent litigation, Eichenberger averred that Chilton had failed to pay the full
billed amount, but Eichenberger did not meet his burden of establishing both the
reasonableness and fairness of the fees. Chilton was also entitled to summary judgment to
prevail over Eichenberger's contingency fee claims because Eichenberger could not legally
recover fees in the contingent fee case when the contingency (Chilton's recovery) never
occurred. Finally, Tawney was entitled to summary judgment because Tawney did not
interfere in the contractual relationship between Eichenberger and Chilton. Accordingly,
we overrule all of Eichenberger's assignments of error and affirm the judgment of the
Franklin County Court of Common Pleas.
                                                                       Judgment affirmed.
                           BROWN and SADLER, JJ., concur.
