[Cite as Cook & LogoThetis, L.L.C. v. King, 2014-Ohio-3346.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
COOK & LOGOTHETIS, L.L.C., : APPEAL NO. C-130673 TRIAL NO. A-1205935 Plaintiff-Appellee, : vs. : O P I N I O N. MICHAEL E. KING, : Defendant-Appellant. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Appeal Dismissed
Date of Judgment Entry on Appeal: August 1, 2014
Cook & Logothetis, L.L.C., and Scott M. Heenan, for Plaintiff-Appellee,
Cornetet, Meyer, Rush & Kirzner and Daniel A. Perry, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
FISCHER, Judge.
{¶1} Defendant-appellant Michael King appeals the judgment of the trial
court granting summary judgment to plaintiff-appellee Cook & Logothetis, L.L.C.
(“C&L”), on C&L’s quantum-meruit claim for unpaid legal services. Because we
determine that we lack jurisdiction over King’s appeal, we must dismiss it.
{¶2} C&L served as legal counsel to the American Federation of
Government Employees Local 2031 (“AFGE”), a labor union, of which King was a
member. AFGE contacted C&L to represent King in his appeal before the Merit
Systems Protection Board (the “Board”) following the termination of King’s
employment from the United States Department of Veterans Affairs (“Department”).
According to C&L, AFGE agreed to pay C&L on an hourly basis for services rendered
in King’s case, and then C&L would repay AFGE all reasonable attorney fees and
expenses recovered from King’s judgment or settlement with the Department. C&L
represented King in a mediation with the Board, a prehearing conference, and
settlement negotiations before seeking to withdraw from its representation of King
for ethical reasons. King then proceeded, pro se, and reached a lump-sum
settlement with the Department, which included attorney fees and expenses,
according to C&L.
{¶3} After King had refused to acknowledge various forms of
correspondence from C&L requesting reimbursement of its fees, C&L filed a
complaint against King for breach of contract, or, alternatively, quantum meruit.
C&L’s quantum-meruit claim sought the legal fees incurred in representing King, as
well as costs, plus interest. In C&L’s prayer for relief, it also sought reasonable
attorney fees and costs incurred in bringing the action.
2 OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} C&L filed a motion for summary judgment on its quantum-meruit
claim, and the trial court granted summary judgment in favor of C&L in the amount
of $17,770.50. C&L then filed two motions: (1) a motion for attorney fees, stating
that King had withheld the money owed to C&L in bad faith, and (2) a motion for
prejudgment and postjudgment interest. Before the trial court ruled on either of
these motions, and before King filed any responsive memoranda, King filed a notice
of appeal.
{¶5} As an initial matter, we must address a jurisdictional issue. An
appellate court lacks jurisdiction over a nonfinal order. Gen. Acc. Ins. Co. v. Ins. Co.
of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989); Article IV, Section 3(B)(2),
Ohio Constitution. To be final, the order appealed from must meet the requirements
of R.C. 2505.02, and, if applicable, the order must contain a Civ.R. 54(B) certification
that there is “no just reason for delay.” Chef Italiano Corp. v. Kent State Univ., 44
Ohio St.3d 86, 541 N.E.2d 64 (1989).
{¶6} The Ohio Supreme Court held in Internatl. Bhd. of Elec. Workers,
Local Union No. 8 v. Vaughn Industries, L.L.C., 116 Ohio St.3d 335, 2007-Ohio-
6439, 879 N.E.2d 187, paragraph two of the syllabus (“Vaughn”), that no final,
appealable order exists in the absence of a Civ.R. 54(B) certification where attorney
fees are requested in an original pleading, and the order appealed from does not
dispose of the attorney-fee request. In Vaughn, the defendant included in its answer
to the plaintiff’s complaint a prayer for relief, which requested statutory attorney fees
and costs, and sanctions under Civ.R. 11 in defending against the action. The
defendant moved for summary judgment on plaintiff’s claims without mentioning its
earlier request for attorney fees. The trial court granted summary judgment. After
3 OHIO FIRST DISTRICT COURT OF APPEALS
the trial court journalized its summary-judgment order, the defendant filed a motion
for attorney fees and costs. In reaching its determination that the summary-
judgment decision was not a final, appealable order, the Supreme Court rejected
plaintiff’s argument in support of finality that the trial court had implicitly denied
defendant’s request for fees when it entered its summary-judgment order. Id. at ¶
12-13. Moreover, the Supreme Court held that a party could properly file a motion
for attorney fees after an entry of a judgment on the other claims if that party had
requested fees in an original pleading. Id. at paragraph one of the syllabus.
{¶7} In this case, C&L’s complaint requested attorney fees incurred in
bringing the action against King, and specifically alleged that King had refused to
respond to its repeated requests seeking payment prior to bringing the action. After
the trial court’s summary-judgment decision, C&L filed a motion for attorney fees
and expenses as the prevailing party, because of King’s bad faith. See Sorin v. Bd. of
Edn., 46 Ohio St.2d 177, 181, 347 N.E.2d 527 (1976); SST Bearing Corp. v. Twin City
Fan Cos., 1st Dist. Hamilton No. C-110611, 2012-Ohio-2490, ¶ 28 (permitting an
award of attorney fees upon a finding of bad faith).
{¶8} After C&L filed its postjudgment motion requesting attorney fees, but
before the trial court ruled on the motion, King filed his notice of appeal. Applying
the holding in Vaughn, we determine that the trial court’s order granting summary
judgment to C&L on its quantum-meruit claim was not a final, appealable order
because it failed to dispose of C&L’s request for attorney fees incurred in bringing the
action, and C&L filed a postjudgment motion for fees prior to the filing of the notice
of appeal. See Vaughn at ¶ 17.
4 OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} We recognize that several appellate districts have limited the Supreme
Court’s decision in Vaughn, reasoning that where a party sets forth a general request
for attorney fees in its prayer for relief, unsupported by a specific statute or rule, and
a trial court’s order does not raise the attorney-fee issue by deferring either its
adjudication or the determination of an amount, appellate courts should treat the fee
request as having been implicitly overruled by the trial court. See, e.g., Jones v.
McAlarney Pools, Spas & Billiards, Inc., 4th Dist. Washington No. 07CA34, 2008-
Ohio-1365, ¶ 10-11; Knight v. Colazzo, 9th Dist. Summit No. 24110, 2008-Ohio-6613,
¶ 9; Ricciardi v. D’Apolito, 7th Dist. Mahoning No. 09 MA 60, 2010-Ohio-1016.
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[Cite as Cook & LogoThetis, L.L.C. v. King, 2014-Ohio-3346.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
COOK & LOGOTHETIS, L.L.C., : APPEAL NO. C-130673 TRIAL NO. A-1205935 Plaintiff-Appellee, : vs. : O P I N I O N. MICHAEL E. KING, : Defendant-Appellant. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Appeal Dismissed
Date of Judgment Entry on Appeal: August 1, 2014
Cook & Logothetis, L.L.C., and Scott M. Heenan, for Plaintiff-Appellee,
Cornetet, Meyer, Rush & Kirzner and Daniel A. Perry, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
FISCHER, Judge.
{¶1} Defendant-appellant Michael King appeals the judgment of the trial
court granting summary judgment to plaintiff-appellee Cook & Logothetis, L.L.C.
(“C&L”), on C&L’s quantum-meruit claim for unpaid legal services. Because we
determine that we lack jurisdiction over King’s appeal, we must dismiss it.
{¶2} C&L served as legal counsel to the American Federation of
Government Employees Local 2031 (“AFGE”), a labor union, of which King was a
member. AFGE contacted C&L to represent King in his appeal before the Merit
Systems Protection Board (the “Board”) following the termination of King’s
employment from the United States Department of Veterans Affairs (“Department”).
According to C&L, AFGE agreed to pay C&L on an hourly basis for services rendered
in King’s case, and then C&L would repay AFGE all reasonable attorney fees and
expenses recovered from King’s judgment or settlement with the Department. C&L
represented King in a mediation with the Board, a prehearing conference, and
settlement negotiations before seeking to withdraw from its representation of King
for ethical reasons. King then proceeded, pro se, and reached a lump-sum
settlement with the Department, which included attorney fees and expenses,
according to C&L.
{¶3} After King had refused to acknowledge various forms of
correspondence from C&L requesting reimbursement of its fees, C&L filed a
complaint against King for breach of contract, or, alternatively, quantum meruit.
C&L’s quantum-meruit claim sought the legal fees incurred in representing King, as
well as costs, plus interest. In C&L’s prayer for relief, it also sought reasonable
attorney fees and costs incurred in bringing the action.
2 OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} C&L filed a motion for summary judgment on its quantum-meruit
claim, and the trial court granted summary judgment in favor of C&L in the amount
of $17,770.50. C&L then filed two motions: (1) a motion for attorney fees, stating
that King had withheld the money owed to C&L in bad faith, and (2) a motion for
prejudgment and postjudgment interest. Before the trial court ruled on either of
these motions, and before King filed any responsive memoranda, King filed a notice
of appeal.
{¶5} As an initial matter, we must address a jurisdictional issue. An
appellate court lacks jurisdiction over a nonfinal order. Gen. Acc. Ins. Co. v. Ins. Co.
of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989); Article IV, Section 3(B)(2),
Ohio Constitution. To be final, the order appealed from must meet the requirements
of R.C. 2505.02, and, if applicable, the order must contain a Civ.R. 54(B) certification
that there is “no just reason for delay.” Chef Italiano Corp. v. Kent State Univ., 44
Ohio St.3d 86, 541 N.E.2d 64 (1989).
{¶6} The Ohio Supreme Court held in Internatl. Bhd. of Elec. Workers,
Local Union No. 8 v. Vaughn Industries, L.L.C., 116 Ohio St.3d 335, 2007-Ohio-
6439, 879 N.E.2d 187, paragraph two of the syllabus (“Vaughn”), that no final,
appealable order exists in the absence of a Civ.R. 54(B) certification where attorney
fees are requested in an original pleading, and the order appealed from does not
dispose of the attorney-fee request. In Vaughn, the defendant included in its answer
to the plaintiff’s complaint a prayer for relief, which requested statutory attorney fees
and costs, and sanctions under Civ.R. 11 in defending against the action. The
defendant moved for summary judgment on plaintiff’s claims without mentioning its
earlier request for attorney fees. The trial court granted summary judgment. After
3 OHIO FIRST DISTRICT COURT OF APPEALS
the trial court journalized its summary-judgment order, the defendant filed a motion
for attorney fees and costs. In reaching its determination that the summary-
judgment decision was not a final, appealable order, the Supreme Court rejected
plaintiff’s argument in support of finality that the trial court had implicitly denied
defendant’s request for fees when it entered its summary-judgment order. Id. at ¶
12-13. Moreover, the Supreme Court held that a party could properly file a motion
for attorney fees after an entry of a judgment on the other claims if that party had
requested fees in an original pleading. Id. at paragraph one of the syllabus.
{¶7} In this case, C&L’s complaint requested attorney fees incurred in
bringing the action against King, and specifically alleged that King had refused to
respond to its repeated requests seeking payment prior to bringing the action. After
the trial court’s summary-judgment decision, C&L filed a motion for attorney fees
and expenses as the prevailing party, because of King’s bad faith. See Sorin v. Bd. of
Edn., 46 Ohio St.2d 177, 181, 347 N.E.2d 527 (1976); SST Bearing Corp. v. Twin City
Fan Cos., 1st Dist. Hamilton No. C-110611, 2012-Ohio-2490, ¶ 28 (permitting an
award of attorney fees upon a finding of bad faith).
{¶8} After C&L filed its postjudgment motion requesting attorney fees, but
before the trial court ruled on the motion, King filed his notice of appeal. Applying
the holding in Vaughn, we determine that the trial court’s order granting summary
judgment to C&L on its quantum-meruit claim was not a final, appealable order
because it failed to dispose of C&L’s request for attorney fees incurred in bringing the
action, and C&L filed a postjudgment motion for fees prior to the filing of the notice
of appeal. See Vaughn at ¶ 17.
4 OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} We recognize that several appellate districts have limited the Supreme
Court’s decision in Vaughn, reasoning that where a party sets forth a general request
for attorney fees in its prayer for relief, unsupported by a specific statute or rule, and
a trial court’s order does not raise the attorney-fee issue by deferring either its
adjudication or the determination of an amount, appellate courts should treat the fee
request as having been implicitly overruled by the trial court. See, e.g., Jones v.
McAlarney Pools, Spas & Billiards, Inc., 4th Dist. Washington No. 07CA34, 2008-
Ohio-1365, ¶ 10-11; Knight v. Colazzo, 9th Dist. Summit No. 24110, 2008-Ohio-6613,
¶ 9; Ricciardi v. D’Apolito, 7th Dist. Mahoning No. 09 MA 60, 2010-Ohio-1016.
Those cases are distinguishable because they do not involve postjudgment motions
for attorney fees. See McAlarney at ¶ 12, fn. 5; Knight at ¶ 6-9; Ricciardi at ¶ 10-13.
Here, C&L requested attorney fees in an original pleading and in a postjudgment
motion; therefore, we cannot treat C&L’s request for attorney fees as having been
implicitly overruled.
{¶10} In addition to a motion for attorney fees, C&L also filed a motion for
prejudgment interest after the trial court’s summary-judgment decision. The Ohio
Supreme Court held that a journalized jury verdict does not constitute a final,
appealable order where a motion for prejudgment interest has been filed after the
judgment and remains pending. See Miller v. First Internatl. Fid. & Trust Bldg.,
Ltd., 113 Ohio St.3d 474, 2007-Ohio-2457, 866 N.E.2d 1059, ¶ 8. In reaching its
decision, the Supreme Court determined that prejudgment interest was more in the
nature of damages and that “judicial economy would be better served by allowing the
trial court to determine whether prejudgment interest should be awarded before an
appeal can be filed.” Id. At least one court has applied the Supreme Court’s decision
5 OHIO FIRST DISTRICT COURT OF APPEALS
to determine that a trial court’s summary-judgment decision was not a final,
appealable order where a party filed a motion for prejudgment interest after the
summary-judgment entry, but before the notice of appeal, and the motion had not
been ruled upon by the trial court. See Third Wing, Inc. v. Columbia Cas. Co., 8th
Dist. Cuyahoga No. 96450, 2011-Ohio-4827, ¶ 8.
{¶11} In this case, the record shows that C&L’s motion for prejudgment
interest was pending when King appealed the entry granting summary judgment.
Thus, the order from which King appeals is not a final, appealable order. See Miller
at syllabus.
{¶12} In conclusion, because the order from which King appeals is not a
final, appealable order, we lack jurisdiction over King’s appeal, and therefore we
dismiss it.
Appeal dismissed.
HILDEBRANDT, P.J., and HENDON, J., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.