Kohrman9/14/2000
In this case, appellee did not challenge appellant's responses to its discovery requests for his failure to attach to them his oath. Appellee instead both attached them to its motion as exhibits and, further, relied upon them as evidence to support its argument that it was entitled to judgment on its claims against appellant. Since these documents bore no verification under oath in appellee's use of them, appellant also could properly depend upon them as evidentiary materials in the case. Rodger v. McDonald's Restaurants of Ohio, Inc., supra.
The trial court's failure to permit appellant to do so not only was unfair but contravened its duties pursuant to Civ.R. 56 both to require appellee to sustain its burden and also to construe the evidence most strongly in appellant's favor.
A review of the evidence before the trial court, moreover, compels the conclusion appellee failed to demonstrate no genuine issues of material fact remained.
In order to prove its claims against appellant of breach of contract, unjust enrichment, account, and quantum meruit, appellee was required to provide evidence to demonstrate each element of one or more of these several causes of action was met. However, appellee did not do so.
While appellant acknowledged he had made an oral legal services agreement with appellee, his understanding of the terms of the agreement as expressed in his admissions and responses to appellee's interrogatories did not coincide with the amount of money appellee stated was due from appellant. Thus, the charges were disputed. Skidmore & Assoc. Co., L.P.A. v. Southerland (1993), 89 Ohio App.3d 177; Heller v. McLaughlin (Sept. 26, 1996), Cuyahoga App. No. 70072, unreported. Cf., Wilson v. Lynch & Lynch Co., L.P.A. (1994), 99 Ohio App.3d 760; Baer v. Woodruff (1996), 111 Ohio App.3d 617, 620.
Compensation for services rendered by an attorney is generally fixed by contract prior to employment. Jacobs v. Holston (1980), 70 Ohio App.2d 55. Once the attorney establishes a fiduciary relationship is created, he then bears the burden of establishing the fairness and reasonableness of his fee. Id. at headnote 2 (emphasis added); see, also, Climaco, Seminatore, Deligatti & Hollenbaugh v. Carter (1993), 100 Ohio App.3d 313; Gioffre v. Simakis (1991), 72 Ohio App.3d 424.
Notably absent from the record in this case is any evidence by affidavit or otherwise to support this element of appellee's relevant causes of action against appellant. Climaco, supra; cf., Thompson, Hine & Flory v. Pingue Properties, Inc. (Mar. 29, 1996), Franklin App. No. 95APE07-881, unreported. Moreover, each of the cases appellee has cited as authority to justify an award of summary judgment in its favor is distinguishable since the action had proceeded to trial and thus evidence had been adduced on the matter either by testimony or by stipulation of the parties. See Hermann, Cahn & Schneider v. Viny (1987), 42 Ohio App.3d 132; Stafford & Assocs. v. Skinner (Oct. 31, 1996), Cuyahoga App. No. 68597, unreported; Brannon v. Barnard (Dec. 31, 1997), Montgomery App. No. 16693, unreported; Randolph v. Howard (May 11, 1994), Hamilton App. No. C-930274, unreported; see, also, Burke v. Gammarino(1995), 108 Ohio App.3d 138; Yoder v. Dellabona (Mar. 19, 1999), Lucas App. No. L-98-1326, unreported.
Furthermore, even had appellee provided evidence to prove every element of its claims, appellant asserted he was entitled to a recoupment on appellee's claims based upon the Gasoil matter. Monastra v. D'Amore (1996), 111 Ohio App.3d 296.
Appellant stated in his answers to appellee's interrogatories that obligations [to him] were incurred by Mr. L
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