Middleton & Associates v. Mark R. Weiss

• Decision Date: 19 June 1997
• Docket Number: 71416,97-LW-2760
• Parties: MIDDLETON & ASSOCIATES, PLAINTIFF-APPELLANT v. MARK R. WEISS, DEFENDANT-APPELLEE CASE
• Court: Ohio Court of Appeals

MIDDLETON & ASSOCIATES, PLAINTIFF-APPELLANT v. MARK R. WEISS, DEFENDANT-APPELLEE

No. 71416.

97-LW-2760 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

June 19, 1997

Civil appeal from Common Pleas Court, No. CV-311950.

For Plaintiff-Appellant: Gregory R. Glick, Esq., 23200 Chagrin Boulevard, Building 4, 6th Floor, Beachwood, OH 44122; Roy J Schecter, Esq., 1510 Hanna Building, Playhouse Square Cleveland, OH 44115-2001.

For Defendant-Appellee: Frank E. Piscitelli, Jr., Esq., Security Federal Plaza, 500 E. Royalton Road, Suite 180, Broadview Heights, OH 44147.

OPINION

DAVID T. MATIA, P.J.

Middleton & Associates, plaintiff-appellant, appeals the decision of the Cuyahoga County Court Of Common Pleas granting Mark Weiss', defendant-appellee's, motion to dismiss. Appellant raises three errors for review. This courts finding no error, the decision of the trial court.

Middleton & Associates ("Middleton"), plaintiff appellant prepares and presents complaints seeking reductions in Property taxes for their clients. On or about February 28, 1992, appellant entered into a contingent fee agreement with Mark Weiss, defendant-appellee, to pursue a reduction in the value of appellee's building located in Rocky River, Ohio. The contract provided that Mr. Weiss would pay appellant a fee of fifty percent (50%) of the amount of any tax savings resulting from the presentation of such claims and/or appeals for the reduction of the real property assessment to the years 1991 and 1992.

That same day the parties also entered into a "Appointment of Exclusive Agent", contract which holds that appellant would act as the exclusive agent for the preparation, presentation and/or negotiation of the claim and/or appeals for the reduction of the real property assessment. This contract further states:

In the event Middleton and Associates determines that an appeal to the Court of Common Pleas, or State of Ohio Board of tax Appeals has merit, it is understood that Middleton and Associates is hereby authorized to retain the services of an attorney at law to present such claim or claims in behalf of the undersigned, provided that Middleton and Associates are solely responsible for payment of any resulting attorney fees.

* * *

The term of this exclusive agency shall extend for that period of time required by Middleton and Associates to complete the presentation of claims and appeals referred to above.

The initial assessed value of the property at issue for the tax year 1991 was $1,831,057. On July 2, 1993, Middleton presented the matter to the Cuyahoga County Board of Revision asserting that the assessed value of the subject property should be reduced to $1,003,000. The Board denied said request on July 8, 1993.

Appellant argues that it then selected and retained the services of attorney, Jon Burney, to file an appeal in the Cuyahoga County Court of Common Pleas. However, appellee argues that appellant refused to pursue the appeals, and he personally retained Mr. Burney. On October 23, 1993, Mr. Burney filed the appeal with the Court of Common Pleas pursuant to R.C. 5717.05 and subsequently negotiated a reduction in appellee's property tax. On December 28, 1994, a Stipulated Judgment was executed between counsel for the respective parties which resulted in a reduction of the assessed value of the subject property in the amount of $731,057 for the tax year 1991. Appellee subsequently received tax refunds in the amount of $45,532.17 for 1991, 1992 and 1993. Mr. Burney billed appellee directly and was paid directly by appellee for services rendered.

Appellant then issued an invoice to Mr. Weiss, appellee, in the amount of fifty percent (50%) of the savings which amounted to $22,766.08. Mr. Weiss refused to pay appellant claiming that their agreement ended when Middleton refused to pursue the appeal. On July 17, 1996, appellant filed a complaint in the Cuyahoga County Court of Common Pleas for breach of contract. On August 7, 1996, appellee filed a motion to dismiss on the grounds that the services contracted for with appellant in representing others before the Board of Revision constituted an unauthorized practice of law thereby invalidating said contract. On September 13, 1996, the trial court granted appellee's motion to dismiss. Middleton, appellant, timely files this appeal.

II. FIRST, SECOND AND THIRD ASSIGNMENTS OF ERROR

As Middleton & Associates', appellant's, first, second and third assignments of error contain similar issues of law and fact, we will consider them concurrently:

I.

THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION TO DISMISS ON THE GROUNDS THAT THE CONTRACT HE SIGNED IS NOT ENFORCEABLE BECAUSE IT PROVIDED FOR THE APPEARANCE OF MIDDLETON AND ASSOCIATES BEFORE THE BOARD OF REVISION WHICH CONSTITUTES THE UNAUTHORIZED PRACTICE OF LAW ON THE PART OF APPELLANT.

II.

THE TRIAL COURT ERRED IN NOT FOLLOWING THE DECISION OF THE BOARD OF COMMISSIONERS ON THE UNAUTHORIZED PRACTICE OF LAW OF THE SUPREME COURT OF OHIO WHICH HAD ALREADY DETERMINED THAT THE ACTIVITIES OF NONATTORNEY APPELLANT MIDDLETON AND ASSOCIATES IN REPRESENTING OTHERS BEFORE THE COUNTY BOARD OF REVISION DID NOT CONSTITUTE THE UNAUTHORIZED PRACTICE OF LAW.

III.

THE TRIAL COURT WHICH IS LOCATED IN THE EIGHTH APPELLATE DISTRICT ERRED IN RELYING ON THE DECISION OF THE TENTH APPELLATE DISTRICT IN THE WRONGLY DECIDED CASE OF KRIER V. FRANKLIN COUNTY BD. OF REVISION.

A.

ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION TO DISMISS.

Middleton & Associates ("Middleton), plaintiff-appellant, argues the trial court erred in granting Mark Weiss', defendant-appellee's, motion to dismiss. Specifically, appellant argues the trial court erred in holding the representation of appellee by appellant before the Cuyahoga County Board of Revision constitutes the unauthorized practice of law and that the contract provided for such service is unenforceable.

Plaintiff-appellant's first, second and third assignments of error are not well taken.

B. STANDARD OF REVIEW: MOTION TO DISMISS.

A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey Ct. Bd. Of Commrs. (1992), 65 Ohio St.3d 545. It is well settled that "when a party files a motion to dismiss for failure to state a claim, all factual allegations of the complaint must be taken as true and all reasonable inferences must be drawn in favor of the nonmoving party." Byrd v. Faber (1991), 57 Ohio St.3d 56, 60, citing Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192.

C.

THE TRIAL COURT DID NOT ERR IN GRANTING APPELLEE'S MOTION TO DISMISS.

We begin noting that the practice of law...