[Cite as Rengel v. Yeager , 2020-Ohio-4166.]



### IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY

D. Jeffery Rengel Court of Appeals No. E-19-050 Appellee Trial Court No. 2018-CV-0586

v. David Yeager DECISION AND JUDGMENT Appellant Decided: August 21, 2020

* * * * * D. Jeffery Rengel and Thomas R. Lucas, for appellee. David Yeager, pro se.

* * * * * PIETRYKOWSKI, J. {¶ 1} Appellant, David Yeager, appeals the judgment of the Erie Count y Court of Common Pleas granting summary jud gment to appellee, D. Jeffery Rengel, on unpaid attorney fees. Because no genuine issue of material fact exists as to t he debt owed, we affirm.

### 2. {¶ 2} The relevant facts of this cas e are as follows. On August 24, 2004, appellant

retained and entered into a fee agreement with attorney appelle e to represent him in a real estate dispute and litigation involving property on Kelleys Island, Er ie County, Ohio. The fee agreement signed by both partie s listed appellee’s hourly rate of $200 per hour, plus expenses, and for interest upon any unpaid l egal fees at a rate of 18 per cent annually (or 1.5 percent per month). 

### {¶ 3} Appellant was provided legal s ervices from August 2004, through February 2010. Appellant made regular monthl y payments of $400 until November 2017, leaving an outstanding balance. Appellant acknowle dged the outstanding balance, but t he issue of repayment was

neither resolved nor the de bt satisfied. On October 12, 2018, appellee filed his complaint alleging that as of Octo ber 1, 2018, appellant owed him $16,311 .84, plus interest. 1 Appellee

failed to attach Exhibit A, which was identif ied in the complai nt as the current billing statement. 

### {¶ 4} Appellant filed an answe r and the matter was scheduled for a ca se management conference on January 2, 2019. Undis puted by the parties and r aised in appellant ’s answer, the magistrate and parties discussed that under Ohio law absent a w ritten contract signed by the party to be charged agreeing to t he rate of interest other than the statutory rate , the interest rate requested was not recoverable. T hat day, appell ee filed a noti ce of service of plaintiff’s Exhibit A to the complaint. The exhib it was the written retention and fee agreement dated August 18, 2004, marked received August 24, 2004, and was signed by appell ant. It was not the billing statement as represent ed in the complaint.

1 

### The complaint initially named appellant’s wife as a defendant; on February 26, 2019, she was dismissed without prejudice.

### 3. {¶ 5} On April 29, 2019, appellant filed a motion to dismiss. Becaus e there were exhibits attached and relied upon, t he court converted it to a motion for summary judgment. Appellant argued that appellee wa s dishonest because the contra ct he filed and i dentified as Exhibit A was not what was repr esented in the complaint: the c urrent billing statement. Thus, appellant contended t hat appellee committed vi olations of the O hio Rules of Professional Conduct. Appellant fur ther asserted that both the contract and billing statement were required

and that the court could dismi ss the matter absent both documen ts. Appellant c ontinued the argument in a supplemental memorandum. 

### {¶ 6} Appellee also filed a motion for s ummary judgment arguing that no genuine issue

of material fact remained as t o the existence of the debt and t he 18 percent interest rate. Appellee supported that motion w ith an affidavit , itemized bill ing statements, and the answers to requests for admissions. 

### {¶ 7} On August 29, 2019, the trial court granted summary judgment in favor of appellee and denied appellant ’s motion. Specifically, the court found t hat appellant’s arguments surrounding the misidentification of plaintiff’s Exhibit A were , though factual, immaterial. The court reasoned that appellee supported his summary judgment mot ion with evidence that a contract, signed by appellant, s tated that inte rest would be ch arged on amounts 30 days past due at 18 percent annually, and billing st atements that show as of May 31, 2019, appellant owed $18,300.76. The court further found tha t violations of the Ohi o Rules of Professional Conduct do not give rise to private causes of action. This appeal foll owed with appellant raising one assignment of error for our review:

### 4. The trial court erred in grantin g summary judgment and judgment for the Plaintiff-Appell[ee]. 

### {¶ 8} We review the grant or denial of a motion for summary judgment de novo, applying the same standa rd as the trial court. Lorain Natl. Bank v. Saratoga Apts. , 61 Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989); Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). A de novo revi ew requires an independent review of the trial court’s decision without any def erence to its determination. Grafton at 105. A trial court shall grant summary judgment only where (1) no genuine issue of mater ial fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law , and (3) viewing the evidence most strongly in favor of the nonm oving party, reasonable minds can come to but one conclusion

and that conclusion is adverse to the nonmoving party. Civ.R. 56(C); Harless v. Willis Day Warehousing Co. , 54 Ohio St.2d 64, 65-66, 375 N.E.2d 46 (1978). 

### {¶ 9} In appellant’s sole assignment of error, he disputes the trial court’s award of summary judgment in favor of a ppellee on three grounds. Addres sed first, is appellant’s assertion that a genuine issue of material fact existed due to appellee’s failure , in contravention of Civ.R. 10(D)(1), to attach a c urrent billing statement to th e complaint when it was first filed. 

### {¶ 10} Civ.R. 10(D)(1) provides as follows: When any claim or defense is founded on an account or other wri tten instrument, a copy of the acc ount or written instrument must be attached to the pleading. If the account or wr itten instrument is not attached , the reason for the omission must be stated in the pleading.

### 5. {¶ 11} Appellant contends that because a ppellee never attached a curre nt billing statement to his complaint and f ailed to state a reason for its omission it was a “textbook violation” of Civ.R. 10(D)(1). A ppellee admits the error but a rgues that all the evidence needed

to establish the debt owed was befo re the court prior to its ju dgment. 

### {¶ 12} We first note that there is no l anguage in Civ. R. 10(D)(1) sta ting that the written instrument is required to estab lish the adequacy of the complai nt. Fletcher v. Univ. Hosps. of

Cleveland , 120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147, ¶ 11. Further, “any failure to attach the required copies is pr operly addressed by a motion fo r a more definite statement under Civ.R. 12(E).” Id. Those who fail to file a Civ.R. 12(E) motion “before filing [ an] answer has waived [their] right to assert Civ.R. 10(D) as a basis for dism issing the plaintiff’s complaint.”

State Farm Mut. Auto Ins. Co. v. Loken , 5th Dist. Fairfield No. 04-CA-40, 2004-Ohio-5074, ¶ 21, citing Point Rental Co. v. Posani , 52 Ohio App.2d 183, 186, 368 N.E.2d 1267 (10th Dist.1976); Landskroner v. Landskroner , 154 Ohio App.3d 471, 2003-Ohio-4945, 797 N.E.2d 1002 (8th Dist.). 

### {¶ 13} As set forth above, after appell ee discovered the failure to at tach Exhibit A, he

filed a notice of service of the exhibit to which he attached t he retention agreement, rather than the billing statement. However , appellee’s Civ.R. 56 evidence included an affidavit, itemized billing statement, and answers t o requests for admissions showi ng that there was a written contract entered into and signed b y the parties with a set inte rest rate. Notably, appellant did not dispute the value of the servi ces rendered or that the debt was owed; rather, he c hallenged the interest rate charged. We reject appellant’s first argument.

### 6. {¶ 14} Appellant next alleges that summary judgment in favor of appell ee was improper due to appellee’s dece ption or “lack of candor” before the cour t by erroneously supplementing his complaint with the contract a s Exhibit A rather than the cu rrent billing statement. Appellant further argues that an imprope r conflict of interest existed be cause appellee’s “personal pecuniary interest” was advers e to his client’s. To the extent that appellant is a ttempting to raise alleged violations of the Ohio Rules of P rofessional Conduct, t he Ohio Supreme Court has held: The purpose of disciplinary acti ons is to protect the public in terest and to

ensure that members of the bar ar e competent to practice a prof ession imbued with the public trust. Disciplinary Counsel v. Trumbo (1996), 76 Ohio St.3d 369,

667 N.E.2d 1186. These interests are different from the purpos es underlying tort law, which provides a means of r edress to individuals for damag es suffered as a

result of tortious conduct. Accord ingly, violation of the Disc iplinary Rules does not, in itself, create a private cause of action. Am. Express Travel Related Servs.

Co. v. Mandilakis (1996), 111 Ohio App.3d 160, 675 N.E.2d 1279. 

### Fred Siegel Co., L.P.A. v. Arter & Hadden , 85 Ohio St.3d 171, 178, 707 N.E.2d 853 (1999). {¶ 15} Further, appellant has failed to de monstrate any purposeful dec eption or improper motive in appellee’s actions befo re the trial court. As to the alleged conflict of interest, appellant’s contention, if true, w ould mean that a conflict exi sts in every att orney/client relationship; the attorney’s bene fit of being paid versus the c lient’s detriment of paying. Accordingly, we reject appellant’s argument.

### 7. {¶ 16} Finally, appellant claims that a genuine issue of material fact exists as to the enforceability of the interest ra te charged. Charging an inter est rate higher than the statutory rate requires a written contract. P ursuant to R.C. 1343.03(A): 

### [T]he creditor is entitled to interest at the rate per annum de termined pursuant to section 5703.47 of the Revised Code, unless a writt en contract provides a different rate of interest in relation to the money that becomes due and payable, in which case the creditor is entitled to inte rest at the rate provided in that contract. {¶ 17} As noted by the Supreme Court of Ohio “‘in order for a written contract to exist for purposes of R.C. 1343.03(A), the re must be a writing to whi ch both parties ha ve assented. * * * An invoice or monthly statemen t does not constitute such a writing.’” Minster Farmers Coop. Exchange Co., Inc. v. Meyer , 117 Ohio St.3d 459, 2008-Ohio-1259, 884 N.E.2d 1056, ¶ 27, quoting WC Milling, L.L.C. v. Grooms , 164 Ohio App.3d 45, 2005-Ohio-5420, 841 N.E.2d 324, ¶ 20 (4th Dist.). See C apital One Bank, N.A. v. Heidebrink , 6th Dist. Ottawa No. 

### OT-08-049, 2009-Ohio-2931, ¶ 43 (“[b]ecause [creditor] did not submit proof that its claimed interest rate of 20.40 percent was a term of an agreed- upon contract, the trial court did not abuse its discretion in imposing the statutory ra te pursuant to R.C. 1343.03(A).”). {¶ 18} As set forth above, appellee f iled a notice of filing Exhibit A to the complaint. The retention and fee agreement was signed by bo th appellant an d appellee and stated in relevant part:

### 8. Finally, our billing cycle is monthly and payment is due upon r eceipt. Any balance remaining after 30 days will be assessed a 1.5% per month, 18% per annum, interest charge compounded m onthly unless other arrangem ents have

been made with the firm. 

### {¶ 19} The submission of the contract evi denced appellant’s consent to the 18 percent

annual interest rate. Further , appellant made regular payments through November 2017, and disputed the interest charge d only upon appellee’s commencement of this action in October 2018. Additionally, appellant has not provided evidence showin g the invalidity of the agreement or that legal services were not rendered. Therefore, we find n o issue of fact as to the interest agreed upon in the contract. 

### {¶ 20} Based on the forgoing, we find tha t no issue of material fact e xists for trial and

that the trial court did not err when it granted summary judgme nt in favor of appellee. Appellant’s assignment of error is not well-taken. 

### {¶ 21} For the foregoing reasons, we find that substantial justice has been done the party complaining, and the judgment of t he Erie County Court of Commo n Pleas is affirmed. Appellant is ordered to pay the c osts of this appeal pursuant t o App.R. 24.



### Judgment affirmed.

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

### 9. Rengel v. Yeager C .A. No. E-19-050

Mark L. Pietrykowski, J. ________________________

_______ JUDGE Christine E. Mayle, J.

_______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.