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Wilson v. Lynch & Lynch Co.12/27/1994
CHRISTLEY, Judge.
This opinion will address the merits of two appeals, each of which has been taken from a separate final judgment of the Geauga County Court of Common Pleas. Prior to being heard, both appeals were placed upon this court's accelerated calendar docket and were consolidated for purposes of briefing and disposition.
In the first appeal, App. No. 93-G-1804, appellant Neil R. Wilson seeks the reversal of the trial court's decision granting summary judgment in favor of appellees, Sandra Davis ("Davis"), Edna Best and Robert Best ("Bests"), Matthew Lynch ("Lynch"), and Lynch & Lynch Co., L.P.A.
In the second, App. No. 93-G-1814, appellees seek review of the court's judgment denying their motion for attorney fees.
Prior to accepting an appointment as a judge in February 1989, appellant was a practicing attorney in Lake County, Ohio. For approximately three of thossearlier years, appellant represented Sandra Davis and the Bests in certain matters pertaining to the administration of the estate of Walter Best.
In November 1988, Davis and the Bests decided to hire a second attorney, Lynch, to assist appellant in bringing an action against the executor of the estate. Approximately one month later, in addition to entering into a contingent fee agreement with Davis and the Bests, Lynch entered into an agreement with appellant as to the splitting of any contingent fee which might result from any action to reduce the amount of attorney and executor fees previously paid to the current executor of the estate. The terms and enforceability of this latter agreement are in dispute.
Upon receiving the judicial appointment, appellant terminated his representation of Davis and the Bests on February 3, 1989, and sent them a final bill for his hourly services. Davis and the Bests pay this bill. As a result, Lynch became sole counsel in the action against the executor.
In November 1990, Lynch negotiated A settlement of that action, under the terms of which the Bests and Davis received the sum of $350,000. However, while Lynch informed appellant of the settlement, he refused to pay appellant one-fourth of the contingent fee which appellant believed was still owed to him.
In July 1992, after voluntarily dismissing his first action against appellees, appellant filed the instant action in the Cuyahoga County Court of Common Pleas. In both his original and amended complaints, appellant asserted claims sounding in breach of contract and fraud. The former claim was predicated upon the following allegations: (1) in December 1988, appellant had entered into a fee agreement with appellees; (2) this agreement was designed to compensate him for past legal services and future legal services pertaining to the estate; and (3) appellees had refused to pay him his shire in accordance with the agreement. After the action had been transferred to Geauga County, appellees moved for summary judgment as to both claims.
As grounds for this motion, appellees primarily argued that any agreement between the parties concerning the payment of a contingent fee to appellant was unenforceable because appellant had not tendered any services subsequent to the date that he became a judge, i.e., the agreement was unenforceable because of a lack of consideration.
In his response to appellees' motion, appellant maintained that at the time Lynch was added as co-counsel, Davis and the Bests had agreed to pay appellant a part of any contingent fee which would be paid to Lynch from any recovery in the action against the executor.
Appellant further argued that this arrangement had constitu
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