[Cite as Fahey Banking Co v. Rees Ents. Inc., 2010-Ohio-4172.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
THE FAHEY BANKING COMPANY,
PLAINTIFF-APPELLEE, CASE NO. 9-09-40
v.
REES ENTERPRISES INC., ET AL., OPINION
DEFENDANTS-APPELLANTS.
Appeal from Marion County Common Pleas Court
Trial Court No. 06-CV-0968
Judgment Affirmed
Date of Decision: September 7, 2010
APPEARANCES:
Kevin P. Collins for Appellants
Michael N. Schaeffer and Scott N. Schaeffer for Appellee
Case No. 9-09-40
WILLAMOWSKI, P.J.,
{¶1} Defendants-Appellants, Rees Enterprises, Inc., et al. (“Appellants”
or “the Rees parties”), appeal the decision of the Marion County Court of
Common Pleas awarding judgment on a promissory note and attorney fees in favor
of Plaintiff-Appellee, Fahey Banking Company, Inc. (“Fahey Bank”). Appellants
maintain that the trial court erred because the judgment entry was contrary to the
parties’ settlement agreement and that it was improper to award attorney fees. For
the reasons set forth below, the judgment is affirmed.
{¶2} Fahey Bank loaned $401,509.02 to Appellants on December 27,
1999. The original promissory note (“the Note”) had a repayment date of January
1, 2005, and was signed by all of the Rees parties.1 Appellants Rebecca and David
Rees also executed a Guaranty of any and all obligations of Rees Enterprises, Inc.
The parties subsequently entered into a Modification Agreement on December 3,
2005, which altered some of the terms.
{¶3} On November 29, 2006, Fahey Bank brought suit stating that
Appellants breached the terms and conditions of the Note and Modification
Agreement by failing to pay the Note when due and failing to make the payments
required by the Modification Agreement. Fahey Bank stated that as of November
1
The promissory note listed Rees Enterprises, Inc. as the borrower, and was signed by Rebecca Rees,
individually and as president of Rees Enterprises; Richard Rees, individually and as vice president of Rees
Enterprises; David Rees, individually and as secretary/treasurer of Rees Enterprises; and Ellen Rees,
individually.
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24, 2006, Appellants owed a balance of $399,190.48, plus default interest from the
date of default to the date of judgment, late fees and interest from the date of
judgment at the prime rate, plus 10% per annum.
{¶4} After many discussions and negotiations over nearly two years, the
parties reached an agreement (“Settlement Agreement”) at a status conference on
June 26, 2008. The terms of the Settlement Agreement called for Appellants to
pay a reduced amount, $298,421.05, at a reduced interest rate within 90 days.
Interest payments of $1,243.42 were to commence immediately (within 10 days)
and continue every 30 days until the loan was paid in full. The Rees parties also
had the option of a 30-day extension.
{¶5} The Settlement Agreement also specified the procedures that were to
be followed if Appellants did not pay the reduced amount within the specified
time period. The terms of the agreement were read into the record and a written
Settlement Agreement was later prepared and executed.
{¶6} Appellants breached their obligations under the Settlement
Agreement by failing to make the required payments and other defaults. Pursuant
to the terms of the Settlement Agreement, Fahey Bank submitted an affidavit
summarizing the amount the Rees parties owed along with a proposed judgment
entry. On October 27, 2008, the trial court entered judgment in favor of Fahey
Bank and against the Rees parties, jointly and severally, “in the amount of
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$559,770.80 with interest accruing from October 22, 2008, at the rate of
$143.5404 per day, plus reasonable attorney fees and costs.” (Oct. 27, 2008 J.E.)
Appellants immediately appealed, but this appeal was dismissed sua sponte by this
Court for lack of a final appealable order because the amount of attorneys’ fees
and costs had not been resolved. See 3d Dist. No. 9-08-63, dismissed on
December 15, 2008.
{¶7} After this dismissal, the trial court reviewed extensive briefing on
the issue of reasonable attorney fees and costs and held a hearing on May 21, 2009
to accept additional evidence. On September 18, 2009, the trial court issued a
judgment entry awarding Fahey Bank attorney fees of $27,077.50 plus costs of
$1,413.55 for a total award of $28,491.05.
{¶8} On October 15, 2009,2 the Rees parties appealed this judgment
setting forth the following three assignments of error for our review.
First Assignment of Error
The trial court erred by granting an award of attorney fees to
[Fahey Bank] because the Settlement Agreement did not
expressly provide for the payment of attorney fees.
Second Assignment of Error
The trial court’s judgment in the amount of $559,770.80 plus
interest from October 22, 2008 at the rate of $143.5404 per day
was contrary to the Settlement Agreement.
2
This appeal was temporarily stayed due to Richard and Ellen Rees filing for bankruptcy. Subsequently,
an Agreed Order for Relief from Stay was granted for the limited purpose of concluding the appellate
proceedings in this case, thereby allowing this appeal to continue.
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Third Assignment of Error
The trial court erred by awarding to [Fahey Bank] $27,077.50
for attorney fees and $1,413.55 for costs.
{¶9} In order to facilitate our review, we elect to address the assignments
of error out of order. In the second assignment of error, Appellants maintain that
the trial court’s award of $559,770.80 plus interest was not expressly provided for
in the Settlement Agreement. Appellants contend that the Settlement Agreement
was not clear or specific in the amount that was to be paid upon default and they
argue that the trial court should have held a damages hearing in order to determine
the amount of the judgment.
{¶10} Fahey Bank maintains that the terms of the Settlement Agreement
were clear and unambiguous, and a hearing was not required. Fahey Bank
understood the terms to mean that if Appellants performed under the Settlement
Agreement, a Judgment Entry of Dismissal would be filed and the matter would be
over. However, if Appellants failed to pay the agreed upon settlement, Fahey
Bank was to submit an affidavit and proposed judgment entry and the trial court
would grant a judgment for the full amount due under the stated terms of the REI
Loan Documents. “REI Loan Documents” was a defined term in the Settlement
Agreement, referencing the Rees Enterprises, Inc. (“REI”) Promissory Note, along
with an associated security agreement and the personal Guaranty.
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{¶11} The REI Loan Documents and the Settlement Agreement are
contracts and the trial court based its judgment on the interpretation of those
contracts. Issues involving the construction of contracts are matters of law, and
thus, when reviewing questions involving contract interpretation, this Court uses a
de novo standard of review. Great Invest. Properties, L.L.C. v. Bentley, 3d Dist.
No. 9-9-36, 2010-Ohio-981, ¶13, citing Graham v. Drydock Coal Co. (1996), 76
Ohio St.3d 311, 313, 667 N.E.2d 949, and Alexander v. Buckeye Pipe Line Co.
(1978), 53 Ohio St.2d 241, 374 N.E.2d 146, paragraph one of the syllabus,
superseded by statute on other grounds.
{¶12} The parties agreed to the following payment terms in Paragraph 4 of
the Settlement Agreement:
Amount of Payoff for REI Loan. If the REI loan is paid in full
within the time required by this agreement, the amount of the
payoff shall be $298,421.05, plus interest on such balance at the
Wall Street Journal prime rate, with credit for any payments
made pursuant to paragraph 5 below. If the REI Loan is not
paid in full within such time period, then the amount due shall be
the amount due under the stated terms of the REI Loan
Documents, including without limitation interest at post-maturity
rate, and all costs permitted by the terms of the REI Loan
Documents.
(Settlement Agreement, pp. 1-2, ¶4, emphasis added.) In the event of default by
Appellants, the mechanism chosen by the parties for informing the trial court,
presenting the amount due and creating the proposed judgment entry was also
specified in the same paragraph of the Settlement Agreement:
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Fahey shall be authorized to file the appropriate [Judgment]
entry on the earlier of ninety-one days after the date of this
Agreement, or upon default. In conjunction with the filing of
the entry granting monetary judgment Fahey shall provide an
affidavit of facts evidencing payments received and the existence
of default under this agreement.
(Id.) In addition, to the written Settlement Agreement, the terms of the agreement
that were read into the record at the June 26, 2008 conference, and which
Appellants quote in their brief, stated:
In the event of default, Fahey Bank may submit an affidavit
advising the Court as to the nature of the default, advising the
Court of the payments received for purposes of credit, and
granting judgment for that balance. (Emphasis added.)
{¶13} On October 24, 2008, Fahey Bank filed the required affidavit, setting
forth the default and the amount due under the REI Loan Documents and
including the proposed judgment entry referenced in the Settlement Agreement
and at the June 26, 2008 status conference. The trial court then issued its
judgment entry based upon this information.
{¶14} We find that the Settlement Agreement clearly and unambiguously
called for the amount of the judgment entry to be determined based upon the
information in the affidavit and the REI Loan Documents in the event that
Appellants failed to make the agreed payments under the Settlement Agreement.
There was no provision in the Settlement Agreement to hold a hearing to
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determine the judgment amount, nor was there any reference in the transcript of
the status conference.
{¶15} The purpose of the Settlement Agreement was to reach a final
settlement in the matter, not to go back and continue the litigation if Appellants
defaulted on their promise to pay. This would have only resulted in further delay
of the case. There would not have been any benefit or incentive for Fahey Bank to
settle for a reduced payment if Appellants’ failure to honor the Settlement
Agreement only resulted in further hearings and continued litigation. This would
allow the Appellants to have it both ways, i.e., negotiate a reduced payment in
settlement, but be allowed to continue on with litigation with no consequences if
they chose not to honor the Settlement Agreement.
{¶16} Furthermore, upon presentation of the Notice of Default, the
affidavit and the judgment entry, Appellants did not challenge any of the facts or
submissions in the trial court below. It was uncontroverted that Appellants
breached the Settlement Agreement. They never requested a hearing, filed a
counter-affidavit, or presented any contrary evidence to the facts attested to in
Fahey Bank’s affidavit. Appellants’ second assignment of error is overruled.
{¶17} Appellants’ first and third assignments of error both complain that
the trial court erred in awarding attorney fees and costs. In the first assignment of
error, Appellants argue that the Settlement Agreement did not include an express
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obligation for the payment of attorney fees and that the trial court erred as a matter
of law in concluding that the agreement provided for the payment of attorney fees.
Appellants maintain the Ohio courts follow the “American Rule,” which requires
that each party pay his or her own attorney fees.
{¶18} Appellants correctly state that Ohio has long adhered to the
“American Rule,” whereby parties are generally responsible for their own attorney
fees. See Wilborn v. Bank One Corp., 121 Ohio St.3d 546, 2009-Ohio-306, 906
N.E.2d 396, ¶7. However, Appellants also correctly note that there are several
exceptions to this rule. Awards of attorney fees are proper if based upon: (1)
statutory provisions allowing for the recovery of attorney fees by the prevailing
party; (2) a finding of bad faith; or, (3) in cases where the contract between the
parties allows for fee-shifting. Id.; Heffner Investments, Ltd. v. Piper, 3d Dist.
Nos. 10-07-09 & 10-07-10, 2008-Ohio-2495, ¶56.
{¶19} Two of the exceptions are applicable in this case, permitting the trial
court to award Fahey Bank payment of its attorney fees. The contractual
agreements between the parties provided for the payment of attorney fees and R.C.
1301.21 allows the award of attorneys’ fees to a prevailing lender in an action
such as this.
{¶20} Although the Settlement Agreement itself did not specifically
stipulate the payment of “attorney fees,” that matter was included by reference. If
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Appellants had honored the Settlement Agreement and paid the reduced payoff
amount, attorney fees would not be calculated. However, as stated above in
paragraph 4 of the Settlement Agreement: “[i]f the REI Loan is not paid in full
within such time period, then the amount due shall be the amount due under the
stated terms of the REI Loan Documents, including without limitation interest at
post-maturity rate, and all costs permitted by the terms of the REI Loan
Documents.” (Emphasis added.) The terms of the original Promissory Note in the
REI Loan Documents specifically included a section on “Collection Costs and
Attorney’s Fees” stating that “I agree to pay all costs of collection, replevin or any
other or similar type of cost if I am in default” and that “if [Fahey Bank] hires an
attorney to collect this Note, I [Appellants] also agree to pay any fee you incur
with such attorney ***.” (Emphasis added.) Appellants argue that any ambiguity
in the agreements must be construed against Fahey Bank because the bank drafted
the documents. However, we find that the terms of the Settlement Agreement and
the Note clearly and unambiguously require Appellants to pay all of Fahey Bank’s
costs incurred, including attorney fees, in the event that Appellants failed to
comply with the Settlement Agreement.
{¶21} Appellants’ argument that the effect of the Settlement Agreement
“was to supplant the original agreement, i.e., the promissory note” is also baseless.
The Settlement Agreement specifically states, in Section 6 – Validity of Loan
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Documents, that “the REI Loan Documents *** are each in full force and effect,
are binding upon each of the Rees Parties ***.” By reaffirming and
acknowledging the terms of the REI Loan Documents and incorporating them into
the Settlement Agreement, the parties unambiguously recognized the obligation of
Appellants to pay “all amounts due,” including attorneys’ fees and costs upon their
default under the Settlement Agreement.
{¶22} Furthermore, R.C. 1301.21, “Enforcement of commitment to pay
attorneys' fees,” states:
(B) If a contract of indebtedness includes a commitment to pay
attorneys' fees, and if the contract is enforced through judicial
proceedings or otherwise after maturity of the debt, a person
that has the right to recover attorneys' fees under the
commitment, at the option of that person, may recover
attorneys' fees in accordance with the commitment, to the extent
that the commitment is enforceable under divisions (C) and (D)
of this section.
The definition of a “contract of indebtedness” includes notes, such as the
promissory note in this case, as long as the indebtedness is not primarily for
personal, family, or household purposes. See R.C.1301.21(A)(1). Divisions C
and D of R.C. 1301.21 require that the total amount owed exceed one hundred
thousand dollars and that the amount of the attorney fees is reasonable. The Note
underlying the trial court’s judgment was a commercial contract of indebtedness;
the debt had matured by virtue of appellants’ default; “the contract [was] enforced
through judicial proceedings”; and the initial contract of indebtedness exceeded
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$100,000. Having met the requirements of the statute, Fahey Bank was entitled to
enforce Appellants’ contractual commitment to pay attorneys’ fees and costs.
{¶23} The trial court had the authority to award attorneys’ fees and costs
because the parties’ agreements clearly provided for that payment and it was
authorized under R.C. 1301.21. Appellants’ first assignment of error is overruled.
{¶24} In the final assignment of error, Appellants maintain that the amount
of attorney fees was improper because there was insufficient evidence to support a
finding that they were necessary and reasonable. Furthermore, Appellants
complain that the total amount was based upon services rendered throughout the
entire case, whereas Appellants believe that only those attorney fees related to the
enforcement of the Settlement Agreement would be proper.
{¶25} Any attorney fees awarded by a court must be “fair, just and
reasonable as determined by the trial court upon full consideration of all of the
circumstances of the case.” Nottingdale Homeowners’ Ass’n, Inc. v. Darby, 33
Ohio St.3d 32, 514 N.E.2d 702, at the syllabus; Wilborn, 121 Ohio St.3d 546, at
¶19, fn.3. And, R.C. 1301.21(D) states:
*** In determining the amount of attorneys' fees that is
reasonable, all relevant factors shall be considered, including but
not limited to, the nature of the services rendered, the time
expended in rendering the services, the amount of money and
the value of the property affected, and the professional skill and
expertise of the attorney or attorneys rendering the services.
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{¶26} We review a trial court’s determination regarding attorney fees for
an abuse of discretion. Bittner v. TriCounty Toyota, Inc. (1991), 58 Ohio St.3d
143, 146, 569 N.E.23 464 (outlining a two step process for a trial court to follow
when determining the amount of fees to award the prevailing party). The Ohio
Supreme Court stated in Bittner that when awarding reasonable attorney fees, the
trial court should first calculate the number of hours reasonably expended on the
case and then multiply that number by a reasonable hourly rate. Id. at 145. The
trial court may then modify that calculation by applying the factors listed in DR 2-
106(B).3 Id.; see, also, Stults & Associates, Inc. v. United Mobile Homes, Inc., 3d
Dist. No. 9-01-09, 2001-Ohio-2240; Bergman Group v. OSI Development, LTD,
12th Dist. No. CA2009-12-080, 2010-Ohio-3259, ¶¶65-68. An abuse of discretion
implies that the court's decision was unreasonable, arbitrary, or unconscionable,
and not merely an error in judgment. Blakemore v. Blakemore (1983), 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140.
{¶27} First, Appellants provide no argument nor do they point to any facts
or law supporting their contention that “only those attorney fees related to the
enforcement of the Settlement Agreement would be proper.” As discussed above
in our review of the first assignment of error, in the event that Appellants did not
honor the Settlement Agreement the provisions for the payment of fees that were
3
Professional Conduct Rule 1.5 is now applicable.
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included in the REI Loan Documents would be applicable. These documents,
executed long before the existence of the Settlement Agreement and reaffirmed by
the Settlement Agreement, required the payment of “any fee[s]” associated with
hiring an attorney in the event of a default.
{¶28} In order to determine whether attorney fees were payable and what
would be reasonable, the trial court reviewed the briefs that both parties submitted
on the issue and held a hearing. The trial court concluded that the time expended
and hourly rate of $250 were reasonable based upon the evidence presented.
{¶29} Fahey Bank presented considerable evidence in support of its request
for attorneys’ fees and costs, including: (1) a fourteen-page memorandum
describing the history of the matter and addressing all factors contained in
Professional Conduct Rule 1.5; (2) a seven-page affidavit of attorney Michael N.
Schaeffer detailing his experience and skill in matters of this type, the progress of
the litigation below, the reasonableness of the hourly rate, the necessity of the
work performed, a review of the total fees and costs and the overall reasonableness
thereof; (3) the affidavit of the law firm’s office administrator attesting that all
bills had been paid by Fahey Bank; (4) forty-two pages of detailed billing records,
explaining every charge down to the tenth of an hour, for services rendered and
costs incurred from October 2006 through the May 21, 2009 hearing; (5)
testimony of Michael Schaeffer, counsel for Fahey Bank in the matter; and, (6)
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testimony of expert witness Mark Sheriff who testified that the hours worked were
reasonable, the rates charged were reasonable for a lawyer of Mr. Schaeffer’s
reputation and experience in matters of this type, and that in his opinion the
overall fees and costs were reasonable. Appellants had the opportunity to cross
examine the witnesses at the hearing, but presented no witnesses or evidence of
their own.
{¶30} Fahey Bank’s attorney also testified that the case was made more
difficult than it should have been because of the personalities of the players and
opposing counsel and the fact that Appellants retained numerous lawyers on their
behalf, making litigation more time-consuming because of having to frequently
“start-over” when new counsel was employed. Fahey Bank had a single attorney
throughout, although it was also necessary to retain West Virginia counsel
pertinent to liens on Appellants’ out-of-state property. Furthermore, Fahey Bank’s
attorney testified that Appellants failed to produce records and requested
documents, and the matter involved numerous pre-trials, client meetings, and
attempts to reach a settlement, including a day-long mediation.
{¶31} We find that there was more than sufficient competent and credible
evidence to support the findings of the trial court concerning attorney’s fees and
costs. Appellants have failed to demonstrate that the trial court abused its
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discretion or that its findings were against the weight of the evidence. The third
assignment of error is overruled.
{¶32} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and PRESTON, J.J., concur.
/jlr
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