[Cite as Poppe Law Office v. Orick, 2013-Ohio-5662.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MERCER COUNTY




POPPE LAW OFFICE,

        PLAINTIFF-APPELLEE,                            CASE NO. 10-13-07

        v.

TY ORICK,                                              OPINION

        DEFENDANT-APPELLANT.




                          Appeal from Celina Municipal Court
                             Trial Court No. 12CVF00801

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                         Date of Decision: December 23, 2013




APPEARANCES:

        David K. Goodin for Appellant

        Joshua A. Muhlenkamp for Appellee
Case No. 10-13-07


ROGERS, J.

         {¶1} Defendant-Appellant, Ty Orick, appeals the judgment of the Celina

Municipal Court, holding him liable to Poppe Law Office for $6,892.00 in

attorney fees. On appeal, Orick claims that the trial court erred because it found

that he was liable to Poppe Law Office for breach of contract arising from a

purported legal fee agreement. He also requests that we award him the unused

portion of the retainer he paid Poppe Law Office. For the reasons that follow, we

affirm in part and reverse in part the trial court’s judgment.

         {¶2} On November 16, 2012, Poppe filed a complaint against Orick

alleging Orick owed him “the sum of $6980.501 [sic]” for services Poppe rendered

to B.O., Orick’s minor child. On December 14, 2012, Orick filed his answer

contending that he had fired Poppe and did not owe Poppe any attorney fees after

the date of his termination. A trial on the matter was held on March 14, 2013.

Orick represented himself pro se. The following relevant evidence was adduced at

trial.

         {¶3} On June 26, 2008, Orick executed a fee agreement with Poppe Law

Office to represent B.O. in a criminal appeal and in post-appeal proceedings.2

According to Orick, he attended the meeting with his wife, Dawn Orick, and

1
  The amount Poppe requested in his prayer for relief differed from the amount that was displayed in
Poppe’s bills. At trial, Poppe conceded that the correct outstanding balance was $6,892.00.
2
  Poppe was successful on appeal and was able to get B.O.’s sex conviction overturned. Poppe was also
able to negotiate with the prosecutor and new charges were never filed against B.O. As a result, B.O. was
no longer required to register as a sex offender.

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Brenda Schneider, B.O.’s biological mother. However, Orick admitted he was the

only person who signed the fee agreement that day.

       {¶4} About a month later, Orick became dissatisfied with the legal services

Poppe was providing.      It is undisputed that Orick called Poppe to voice his

unhappiness and to purportedly fire Poppe. However, at trial Poppe stated that he

did not believe that Orick had the authority to fire him since B.O. was his client,

not Orick. Nevertheless, Poppe admitted that Orick had the “right to say I don’t

want to pay you anymore * * *.” Trial Tr., p. 20.

       {¶5} After this phone conversation, Poppe started to send all the bills to

Schneider, instead of Orick. Poppe “[could not] remember” why this happened

but testified it was probably due to a change in B.O.’s residential address. Id. at

23. Poppe also testified that B.O. expressed a desire for Poppe to continue with

the appeal even after Orick’s phone call. Further, Poppe admitted that Schneider

made numerous payments on the balance that was owed.

       {¶6} On cross-examination, Poppe stated that he expected to get paid every

month. Poppe was also asked whether he ever represented Schneider in court and

he replied, “I don’t think I’ve ever represented her.” Trial Tr., p. 28.

       {¶7} Orick then testified that when he retained Poppe on June 26, 2008, he

was assured that Poppe would have B.O. out of custody within two weeks of

receiving the retainer. It was Poppe’s failure to secure B.O’s release from custody


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that led Orick to purportedly fire Poppe. Orick testified that he did not make any

payments to Poppe after giving him a $1,500.00 retainer at their June 26, 2008

meeting. He also stated that he had not received any bills, besides the first one,

dated July 22, 2008. Orick also pointed out how his name was never listed on any

subsequent bills in regard to B.O.’s case.

       {¶8} Orick introduced a letter written by B.O. into evidence. The letter,

which was drafted while B.O. was still in custody, states, in relevant part:

       [Poppe] is coming up here to talk to me because he got a call that
       said we are stopping the appeal. * * * Dad I know you said you
       weren’t going to court but you should to see whats [sic] going on.
       I’m going to see if I can call you or have [Poppe] call you. Because
       I don’t want to stop the appeal, we could still win. * * * I don’t
       want to be on house arrest for a year and a half.

(Defendant’s Exhibit A, p. 1). Orick also introduced a judgment entry filed in the

Court of Common Pleas for Mercer County, Juvenile Division in Case No. 2-

2007-217. The judgment entry reads, in relevant part, as follows:

       This matter came before the Court on June 22, 2009 for hearing on
       child support obligations as previously ordered in entry filed in June
       24, 2008. The subject child was present and in the custody of his
       mother, Brenda Schneider. She was represented by Attorney John
       Poppe. The child’s father, Tyson Orick, was also present and was
       unrepresented by counsel.

(Emphasis added.) (Defendant’s Exhibit B, p. 1).

       {¶9} On cross-examination, Orick admitted that he signed the fee

agreement and acknowledged his signature. On redirect, Orick explained,


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       I think all my exhibits show, it started out with a note I hired Mr.
       Poppe to do a job for me. It was not done to my satisfaction, as I am
       in the service business also. I took it upon myself to fire Mr. Poppe.
       I paid what I had to pay for him. It was abolished and moved onto
       Ms. Schneider, his mother. All the bills show and states they were
       sent to her and not me.

Trial Tr., p. 42.

       {¶10} On March 20, 2013, the court issued its judgment entry finding in

favor of Poppe Law Office. The trial court ordered Orick to pay Poppe Law

Office $6,892.00 with an interest rate of three percent per year.

       {¶11} Orick timely appealed this judgment, presenting the following

assignment of error for our review.

                            Assignment of Error No. I

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR
       AS A MATTER OF LAW WHEN IT DETERMINED THAT
       APPELLANT ORICK WAS RESPONSIBLE FOR THE
       PAYMENT FOR LEGAL SERVICES PERFORMED BY
       POPPE FOR APPELLANT’S SON AFTER SUCH TIME AS
       POPPE WAS TERMINATED.

       {¶12} In his sole assignment of error, Orick argues that the trial court erred

by ruling in favor of Poppe Law Office on his breach of contract claim and by

failing to award him the unused portion of the retainer he paid. We agree with

Orick as to the breach of contract claim, but disagree as to the trial court’s failure

to award him the unused portion of the retainer he paid.




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                            Breach of Contract Issue

      {¶13} This matter implicates the construction of Orick’s and Poppe’s

contractual relationship. As such, this matter presents a question of law, and this

court employs a de novo standard of review. Graham v. Drydock Coal Co., 76

Ohio St.3d 311, 313 (1996). In applying de novo review, we grant no deference to

the trial court’s judgment. Twigg v. Trapp, 3d Dist. Seneca No. 13-05-44, 2006-

Ohio-3236, ¶ 5.

      {¶14} In their briefs, both Orick and Poppe center their arguments on

whether Orick was able to terminate Poppe from providing legal services to B.O.

Orick contends that he was able to terminate Poppe’s and B.O.’s attorney-client

relationship and does not owe Poppe any legal fees after the date of termination.

However, Poppe argues that Orick was incapable of firing Poppe, since Poppe’s

client was B.O., not Orick. While the ability of Orick to terminate Poppe is

relevant to our analysis, it is not dispositive. The more important factors to

consider are whether a valid contract existed between Orick and Poppe and

whether Poppe’s conduct dissolved the contract.

      {¶15} The resolution of this matter implicates the three types of contracts:

express, implied in fact, and implied in law. Legros v. Tarr, 44 Ohio St.3d 1, 6

(1989); Rice v. Wheeling Dollar Sav. & Trust Co., 155 Ohio St. 391 (1951);

Hummel v. Hummel, 133 Ohio St. 520, 525 (1938). In an express contract, the


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approval of its terms is actually expressed in the offer and acceptance. Legros at

6.   Meanwhile, “[i]n a contract implied in fact the meeting of the minds,

manifested in express contracts by offer and acceptance, is shown by the

surrounding circumstances which made it inferable that the contract exists as a

matter of tacit understanding.” Id. at 6-7. Finally, contracts implied in law do not

have a meeting of the minds, rather, “civil liability arises out of the obligation cast

by law upon a person * * *. Contracts implied in law are not true contracts; the

relation springing therefrom is not in a strict sense contractual but quasi-

contractual or constructively contractual.” Hummel at 525; see also Columbus,

Hocking Valley & Toledo Ry. Co. v. Gaffney, 65 Ohio St. 104 (1901).                We

accordingly consider whether any type of contract existed in this matter and could

support Poppe Law Office’s recovery for breach of contract.

                                  Express Contract

       {¶16} Here, Poppe Law Office argues that the fee agreement Orick signed

is an express contract which obligates Orick to pay B.O.’s attorney fees. We

disagree. Looking at the single-page fee agreement provided in the record, we see

that Orick’s signature is on the line that says “client signature.”        (Emphasis

added.) (Plaintiff’s Ex. 1). There is no mention anywhere in the fee agreement

that B.O. is Poppe’s actual client and that Orick is only paying attorney fees

incurred during Poppe Law Office’s representation of B.O. Further, Poppe Law


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Office, the actual party to this appeal, is not listed anywhere in the fee agreement.

Although the fees for John Poppe are explained in the fee agreement, the actual

party to this suit is not named.

       {¶17} Thus, if we were to interpret the fee agreement as an express

contract, Orick was Poppe’s client and could terminate his services at any time.

Further, we are unsure if Poppe Law Office actually has standing to bring this suit,

since it was not a party to the purported contract.

       {¶18} Even if we were to read the fee agreement as an express contract

wherein Orick would pay Poppe Law Office for Poppe’s representation of B.O. on

appeal, it was clearly abandoned by Poppe. “Parties who have entered into a

contract may, by mutual consent or conduct, abandon the contract which they have

entered into.” Hunter v. BPS Guard Serv., Inc., 100 Ohio App.3d 532, 541 (10th

Dist. 1995). A contract will be considered abandoned when the acts of one party,

which are inconsistent with the contract, are accepted by the other party. Id.

Thus, “mutual abandonment of a contract need not be express, but can be inferred

from the conduct of the parties and the surrounding circumstances.” Id; Dickson

v. Wolin, 18 Ohio Law Abs. 107 (1934); see also, Bryant v. Richfield Properties,

9th Dist. Summit No. 14533, 1990 WL 129237 (Sept. 5, 1990). When one party

abandons the contract, the other party can consent to the abandonment and the

contract is then dissolved. Hunter at 541. When this happens, “the parties are


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restored to their original positions and neither party may sue for breach of the

contract, nor compel specific performance.” Id.

       {¶19} In this case, Orick called Poppe Law Office in the summer of 2008 to

tell Poppe he was unsatisfied with his performance and wished to terminate him.

Although Orick may have been mistaken about his ability to “fire” Poppe, he was

able to state he did not want to proceed with the fee agreement and continue

paying Poppe’s fees for representing his son. Poppe consented to the termination

of the contract by sending all subsequent bills to Schneider.         This was in

contravention to Poppe’s own purported contract, which states that he is required

to send the bills every 30 days to his paying clients. After their discussion, Poppe

never put Orick’s name on a bill again or had any contact with Orick until he

initiated this suit, four years later.   Orick’s actions made it clear he wished to

abandon the contract and not continue to pay Poppe’s fees and Poppe’s own

actions consented to the abandonment.

       {¶20} Thus, any express contract that might have existed was dissolved by

mutual assent and neither Poppe nor Orick may sue for breach of the contract.

                               Implied in Fact Contract

       {¶21} Our finding that an express contract theory could not support Poppe

Law Office’s recovery does not end our inquiry here. In implied in fact contracts,

the parties’ meeting of the minds is shown by surrounding circumstances, the


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conduct, and the declarations of the parties which infers a contract exists. Point E.

Condominium Owners’ Assn. v. Cedar House Assoc. Co., 104 Ohio App.3d 704,

713 (8th Dist. 1995). Thus, to establish an implied in fact contract, a plaintiff may

“show[] that the circumstances surrounding the parties’ transactions make it

reasonably certain that an agreement was intended.” Lucas v. Costantini, 13 Ohio

App.3d 367, 369 (12th Dist. 1983).

       {¶22} Here, it is clear that an implied in fact contract existed. At trial and

on appeal, it is undisputed that Poppe Law Office was retained to represent

Orick’s minor son in a criminal appeal for a sex conviction. However, to recover

compensation upon an implied contract for services performed, the party

performing such services must have had, at the time of performing them, an

intention to claim compensation from the defendant; if the performing party

expected to receive compensation from some third party, no recovery can be had.

Bick v. Perelman, 87 Ohio L. Abs. 33 (8th Dist. 1961). It is clear from the record

that Poppe was not expecting Orick to pay his son’s legal fees after Orick

attempted to fire him. This is evidenced by Poppe’s own admission at trial that

Orick had the “right to say I don’t want to pay you anymore” and the glaring fact

that after this discussion took place, Poppe started sending all the bills to

Schneider at a separate address different than Orick’s. Further, Orick’s name was

never listed on any subsequent bills, Orick never had any contact with Poppe until


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the lawsuit was initiated, and Orick never made another payment to Poppe.

Based on this conduct, we are unable to find how Poppe could expect to be paid

by Orick when Poppe sent bills to a third party, at a different address, for four

years. As such, any implied in fact contract between Poppe Law Office and Orick

was terminated in the summer of 2008.

                             Implied in Law Contract

       {¶23} Poppe also argues, and the trial court found, that Poppe is entitled to

quasi-contractual relief based on the law of necessaries, which is a type of implied

in law contract. In an implied in law contract, the obligation does not arise from

consent, but is created by the law. Legros, 44 Ohio St.3d at 7-8. Thus, the

liability exists from an implication of law that arises from facts and circumstances

independent of agreement or presumed intention. Cent. Natl. Bank of Cleveland v.

Internl. Sales Co., 87 Ohio App. 207, 214 (8th Dist. 1950).

       {¶24} A parent’s “ ‘natural duty to support his [or her] children is generally

recognized. In Ohio, this duty is enjoined by both statute and common law. * * *’

” Aharoni v. Michael, 74 Ohio App.3d 260, 263 (1991), quoting Kulcsar v.

Petrovic, 20 Ohio App.3d 104, 105 (1984). Thus, common law allows third

persons to bring a cause of action against a parent for necessaries provided to

minor children. Id. at 264. “To establish a claim for necessaries * * * plaintiff

must have unofficiously [sic] and in good faith provided necessary and reasonable


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goods or services with the intent to charge the defendant’s credit, and only if the

defendant neglected provision of such services and refused to do so.” Id.

       {¶25} In Aharoni, the plaintiff, a psychologist who provided counseling for

the defendant’s minor children, sued the defendant for an unpaid portion of the

children’s medical bills. Id. at 262. The plaintiff testified that she usually sent the

original billing statements to the custodial parent, and sent photocopies to the

noncustodial parents. Id. The defendant, meanwhile, testified that he neither

entered into a contract with plaintiff for her services nor received any billing

statements. Id. at 263. The court in Aharoni held that the plaintiff failed to

demonstrate she was entitled to charge the defendant for services rendered because

“her bare expectation that defendant would pay for the services was not enough to

establish a right of restitution where there was no awareness of the need for and

the rendering of said services and where defendant neither requested nor refused to

provide the services.” Id. at 265.

       {¶26} While we find that the payment of attorney fees of a minor child can

be considered a necessary, we also find that Poppe did not establish the

requirements to succeed on a third-party creditor claim. See In re R.B., 166 Ohio

App.3d 626, 2006-Ohio-264, ¶ 31-32 (2d Dist.) (“A parent’s responsibility to

adequately support his/her child would encompass paying for necessary legal

services. * * * [T]he child’s parents will be encouraged to hire counsel for their


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child and will be advised by the Court that, if counsel is not hired, the court will

appoint an attorney for the child, and that appointed counsel’s legal fees may be

taxed as court costs against the parents.”). Poppe has failed to prove that Orick

refused to provide his son with necessary services; in fact, the opposite is true.

Orick was the one who retained a private attorney for his son in hopes to overturn

B.O’s sex conviction.       However, Orick became unsatisfied with Poppe’s

performance and wished to terminate their relationship. Nowhere in the record

can we find that Orick wished to stop the appeal altogether; instead, he just wanted

Poppe to stop working on the appeal.

       {¶27} Further, just as in Aharoni, Orick never received the original or

photocopied bills for Poppe’s services. Besides the first bill sent directly to Orick,

the remaining 10 bills were sent to Schneider at a different address. Finally, we

cannot say that Poppe provided legal services to B.O. with the good faith

expectation that Orick would pay for them. Poppe was put on notice by Orick that

he was not going to pay Poppe for his services; however, Poppe continued

representing B.O., decided to send all subsequent bills to Schneider, and never

informed the trial court or this Court (during B.O.’s appeal) of his unique

predicament. In light of these circumstances, we elect to not imply a contract in

law to benefit Poppe Law Office.




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       {¶28} Consequently, we find that Poppe Law Office is unable to recover

under any theory of contracts. As such, the trial court erred in granting judgment

in Poppe Law Office on its claim for breach of contract.

                             Reasonable Attorney Fees

       {¶29} Orick also argued that the trial court erred by forcing Orick to pay for

services   where    Poppe    represented   Schneider    against     Orick   and   for

communications Poppe had with Ron Delong, a psychologist. Under App.R.

12(A)(1)(c) this argument is moot and we elect to not address it.

                                 Unused Retainer

       {¶30} Orick also argues that he should be refunded the amount of his

unused retainer at the time he purportedly fired Poppe, which amounts to $410.50.

We disagree.       According to Civ.R. 13(A), “[a] pleading shall state as a

counterclaim any claim which at the time of serving the pleading the pleader has

against the opposing party, if it arises out of the transaction or occurrence that is

the subject matter of the opposing party’s claim * * *.” (Emphasis added.) Orick

never stated a counterclaim for the unused retainer, nor did he raise the issue in

any pleading. Thus, he has waived this issue and is barred from asserting this

claim on appeal.

       {¶31} Accordingly, we sustain Orick’s first assignment of error insofar as it

challenges the trial court’s award to Poppe Law Office for breach of contract.


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However, we overrule Orick’s first assignment of error insofar as he seeks the

return of his unused retainer.

       {¶32} Having found error to Orick in part in the particulars assigned and

argued, we affirm in part and reverse in part the trial court’s judgment and remand

this matter for further proceedings consistent with this opinion.

                                                        Judgment Affirmed in Part,
                                                             Reversed in Part and
                                                                Cause Remanded

PRESTON, P.J., concurs.

/jlr


WILLAMOWSKI, J., Concurring Separately.

       {¶33} I agree with the result of the majority, however I write separately due

to the potential issue of jurisdiction. The record in this case is unclear as to

whether Poppe Law Office is a legal entity that has the standing to invoke the

jurisdiction of the trial court. Both a plaintiff and a defendant in a lawsuit must be

legal entities with the capacity to sue or be sued. Patterson v. V & M Auto Body,

63 Ohio St.3d 573, 589 N.E.2d 1306 (1992). “A sole proprietorship has no legal

identity separate from that of the individual who owns it. It may do business under

a fictitious name if it chooses, but ‘ * * * [d]oing business under another name

does not create an entity distinct from the person operating the business.’” Id. at

574-75. The record in this case is silent as to whether Poppe Law Office, without

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an actual human representative, is a partnership, corporation, limited liability

company, or any other enterprise that may sue or be sued in its own name.

Without this evidence, there is no way to tell whether the judgment is proper, so

this court must assume it is. Thus, I concur with the majority’s opinion.




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