Roberts v. Hutton

• Decision Date: 31 March 2003
• Docket Number: No. 02AP-6.,No. 01AP-1465.,01AP-1465.,02AP-6.
• Parties: ROBERTS, Appellant, v. v. HUTTON et al., Appellees. Roberts, Appellee, v. Hutton, Appellant; State Farm Mutual Insurance Company, Appellee.
• Court: Ohio Court of Appeals

787 N.E.2d 1267

152 Ohio App.3d 412

2003 Ohio 1650

ROBERTS, Appellant, v. v. HUTTON et al., Appellees.

Roberts, Appellee, v. Hutton, Appellant; State Farm Mutual Insurance Company, Appellee.

No. 01AP-1465.

No. 02AP-6.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided March 31, 2003.

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Scott R. Roberts, pro se.

Mary Hutton, pro se; Lyman Law Offices and Chester T. Lyman Jr., Columbus, for defendant Mary Hutton.

Gallagher, Gams, Pryor, Tallan & Littrell, L.L.P., and Barry W. Littrell, Columbus, for defendant State Farm Mutual Automobile Insurance Company.

PETREE, Presiding Judge.

{¶ 1} On or about October 29, 1996, defendant Mary Hutton was involved in an automobile accident when her car was struck from behind while traveling on Ohio Route 315. Hutton was taken to the emergency room at Ohio State University Hospitals, where she was treated and released that day. Shortly thereafter, Hutton retained the services of an attorney, plaintiff Scott R. Roberts, to represent her in connection with her personal injury and property damage claims. On November 5, 1996, Hutton and Roberts executed a "Retainer and Fee Agreement," which provided:

{¶ 2} "In consideration for the legal representation of ATTORNEYS contemplated by this contract, and as compensation therefore [sic, therefor], CLIENT agrees to pay and hereby assigns to ATTORNEYS 33 1/3 percent of all monies and things of value recovered on behalf of CLIENT. * * *"

{¶ 3} In due course, Roberts prepared settlement documents, which he submitted to the tortfeasor's insurance carrier, State Farm Mutual Automobile Insurance Company ("State Farm"). According to Hutton, she initially offered to settle her claim for $50,000, an offer which State Farm rejected. Thereafter, on October 13, 1998, Roberts filed suit on Hutton's behalf in the Franklin County Court of Common Pleas. However, prior to the date set for trial, the court scheduled Hutton's case for arbitration.

{¶ 4} On June 22, 1998, the parties met, and Roberts offered to settle Hutton's case for $30,000. State Farm rejected this offer and made a counteroffer of $9,500. Hutton refused this counteroffer and, according to Roberts, was unwilling to negotiate further, or to settle her case for any amount less than $30,000.

{¶ 5} According to Roberts, after the settlement conference, both he and Hutton mutually agreed that the two should part company and that Hutton needed to find replacement counsel. However, Hutton suggests in her appellate briefs that Roberts pressured her to accept State Farm's settlement offer and when she refused, Roberts told her that if she did not accept the $9,500 offer and wished to take the case to trial, she would have to find another attorney. In either case, the two parted company, and shortly thereafter Hutton asked Roberts to send her file to attorney Charles W. Gayton.

{¶ 6} On June 28, 1999, Roberts sent a letter to Gayton and counsel for State Farm, advising each that he no longer represented Hutton and that he was placing a lien on Hutton's case to ensure payment of his fee and recovery of the expenses advanced on Hutton's behalf. Roberts did not, however, ask the trial court's permission to withdraw his representation, nor did he notify the trial court that he would no longer be representing Hutton in this matter. Roberts based the amount of his claim for fees upon the following provision contained in the parties' agreement:

{¶ 7} "If either CLIENT or ATTORNEYS terminate this agreement, ATTORNEYS shall be entitled to compensation for the fair market value of their services preceding the termination. If there is a pending settlement offer at the time this agreement is terminated, the parties hereby agree that the fair market value of such services shall be the agreed upon percentage of the last best offer of settlement. * * *"

{¶ 8} Gayton terminated his relationship with Hutton in March 2000. However, before doing so, on March 20, 2000, he voluntarily dismissed Hutton's complaint without prejudice. Thereafter, Hutton retained the services of attorney Jack Vogel who also terminated his representation of Hutton.

{¶ 9} On March 20, 2001, Hutton refiled her complaint against State Farm without the benefit of legal counsel. She then successfully negotiated a settlement of her claims in March 2001 for approximately $11,000. At that time, Roberts demanded that he be reimbursed for Hutton's advanced expenses, in addition to what Roberts contended was the full value of the services rendered to Hutton. According to Roberts, this amount was $3,166.67, or, according to the parties'"Retainer and Fee Agreement," 33 1/3 percent of $9,500, the last offer presented by State Farm at the settlement conference. When Hutton refused to pay this amount, Roberts filed a collection action against her in the Franklin County Municipal Court on May 1, 2001. As a result of the filing of Roberts's collection suit, State Farm issued a check in the amount of $3,166.67, jointly payable to both Hutton and Roberts. In response to Roberts's complaint, Hutton filed an answer and counterclaim for breach of contract and legal malpractice.

{¶ 10} On November 16, 2001, the trial court granted Roberts's leave to file a motion seeking summary judgment on his complaint against Hutton, as well as upon Hutton's counterclaim. The trial court granted this motion on December 4, 2001, awarding Roberts the amount advanced to Hutton for costs. However, it did not award Roberts any amount for attorney fees. The trial court also awarded Roberts judgment on Hutton's counterclaim for breach of contract and malpractice. A review of the record reveals that the court granted judgment in two, one-page judgment entries, which lack any meaningful analysis, findings of fact, or conclusions of law.

{¶ 11} Both parties appeal the trial court's rulings. For purposes of briefing and argument, the two appeals were consolidated. In case No. 01AP-1465, Roberts sets forth the following single assignment of error:

{¶ 12} "Although the trial court correctly granted plaintiff/appellant's Motion for Summary Judgment, the trial court erred in the [sic] calculating the amount of such judgment by failing to include in that judgment the reasonable value of plaintiff/appellant's legal services as agreed upon in the parties' contingent fee contract."

{¶ 13} Conversely, in case No. 02AP-6, Hutton presents the following four assignments of error for our review:

{¶ 14} "[1.] Trial court erred in granting summary judgment to Mr. Roberts without ruling first on the outstanding motion to compel Mr. Roberts to comply with discovery rules.

{¶ 15} "[2.] Trial court erred by granting summary judgment to Mr. Roberts on his complaint (although Mrs. Hutton agrees with the court's decision to only award Mr. Roberts $220) when disputed issues existed as to whether Mr. Roberts breached his contract with Mrs. Hutton before Mr. Roberts filed this complaint for fees.

{¶ 16} "[3.] The trial court erred in granting summary judgment to Mr. Roberts on Mrs. Hutton's counterclaim of breach of contract and malpractice based on the statute of limitations when disputed issues existed as to when Mr. Hutton discovered the breach and malpractice.

{¶ 17} "[4.] The trial court erred by granting State Farm's motion to dismiss without first requiring State Farm to release $3,166.67 in funds that it is holding pending the outcome of this case."

{¶ 18} The burden of affirmatively demonstrating error on appeal rests with the party asserting error. App.R. 9 and 16(A)(7); and State ex rel. Fulton v. Halliday (1944), 142 Ohio St. 548, 27 O.O. 487, 53 N.E.2d 521. Pursuant to App.R. 16(A)(7), an appellant must present his or her contentions with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record upon which he or she relies. It is not the duty of this court to search the record for evidence to support an appellant's argument as to alleged error. Slyder v. Slyder (Dec. 29, 1993), Summit App. No. 16224, 1993 WL 548760; Sykes Constr. Co. v. Martell (Jan. 8, 1992), Summit App. No. 15034 and 15038, 1992 WL 2919. It is also not appropriate for this court to construct the legal arguments in support of an appellant's appeal. "If an argument exists that can support this assignment of error, it is not this court's duty to root it out." Cardone v. Cardone (May 6, 1998), Summit App. No. 18349, 1998 WL 224934.

{¶ 19} In this case, Roberts seeks a determination that the trial court incompletely entered summary judgment in his favor. A motion for summary judgment allows a court to terminate litigation where a resolution of factual or legal dispute is unnecessary. In order to make a determination that the trial court erred in making its determination, we review the facts and law applicable to this case independently, without deference to the ruling of the trial court. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 671 N.E.2d 241. Civ.R. 56(C) provides:

{¶ 20} "* * * 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. * * *"

{¶ 21} The Ohio Supreme Court has held that in order for a motion for summary judgment to be granted, the moving party "bears the initial burden of demonstrating that there are no genuine issues of material fact concerning an essential element of the opponent's case." Dresher v. Burt (1996), 75 Ohio St.3d 280, 292, 662 N.E.2d 264. In order to carry this burden:

{¶ 22} "* * * [T]he movant must be able to point to evidentiary materials of the type listed in Civ.R. 56(C) that...