JOAN JACOBS THOMAS v. BRIAN LAWS
No. 104710
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 29, 2016
[Cite as Thomas v. Laws, 2016-Ohio-8491.]
BEFORE: E.T. Gallagher, P.J., Laster Mays, J., and Celebrezze, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-16-857961
Joan Jacobs Thomas, pro se
31040 Lorain Road
North Olmsted, Ohio 44070
FOR APPELLEE
Brian Laws, pro se
3332 Virginia Avenue
Cleveland, Ohio 44109
{¶1} This cause came to be heard on the accelerated calendar pursuant to
- The decision of the trial court to not award interest on plaintiff/appellant‘s claim is against the manifest weight of the evidence and contrary to law.
- The decision of the trial court to award post-judgment interest at the statutory rate as opposed to the rate speсified in the written contract of the parties was against the manifest weight of the evidence and contrary to law.
{¶2} We find some merit to the appeal, affirm the princiрal amount of the judgment, but remand the case to the trial court to award post-judgment interest at the contract rate instead of the statutory rate.
I. Facts and Procedural History
{¶3} Defendant-appellee, Brian Laws (“Laws“), retained Thomas to represent him in custody matters in the juvenile division of the Cuyahoga County Common Pleas Court. The parties signed an attorney fee agreement wherein Laws agreed to pay Thomas for legal services at the rate of $250 per hour, and Laws paid a retainer of $2,500. The attorney fee agreement also provided that “[a]ll past due charges w[ould] be charged a 1.5% per month charge on the unpaid balance.”
{¶4} Thomas later filed a complaint against Laws in the general division of the Cuyahoga County Common Pleas Court, alleging that he breached the parties’ attorney
{¶5} Laws failed to plead or otherwise defеnd himself, and Thomas filed a motion for default judgment, requesting judgment in the amount of $25,201.40, “along with statutory interest,” as well as costs of the action. (Default Judgment at 1.) The court called the сase for a default hearing at which Thomas appeared through counsel. Laws failed to appear even though he was properly served with process. Accordingly, the court granted Thomas‘s motion for default and entered judgment in her favor “in the amount of $12,500.13 together with interest at the statutory rate from the date of judgment and court costs.” (Judgment Entry.) Thomas now appeals the trial court‘s judgment.
II. Law and Analysis
A. Accrued Contract Interest
{¶6} In the first assignment of error, Thomas argues the trial court erred in failing to award the appropriate rate of interest on her damages claim. She contends the court erroneously failed to include interest at a rate of “1.5% per month” on the unpaid balance as provided in the parties’ agreement.
{¶7}
(A) In cases * * * when money becomes due and payаble upon any bond, bill, note, or other instrument of writing, upon any book account, upon any
settlement between parties, upon all verbal contracts entered into, аnd upon all judgments, decrees, and orders of any judicial tribunal for the payment of money arising out of tortious conduct or a contract or other transaction, the сreditor is entitled to interest at the rate per annum determined pursuant to section 5703.47 of the Revised Code, unless a written 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 interest at the rate provided in that contract.
(Emphasis added.)
{¶8} Thus, where a contract provides an interest rate on money due and owing to a creditor, the interest rate provided in the contract is the applicable interest rate to be applied according to the terms of the contract. In this case, Laws agreed to pay interest at the rate of 1.5% per month on unpaid attorney fees. Thеrefore, Thomas is entitled to interest at that rate.
{¶9} Thomas attached a single unverified invoice to the complaint showing accrued interest in the amount of $5,173.28. She prоvided neither an affidavit verifying the amount of the interest nor an itemization of services performed, hours worked, or bills sent to Laws for payment. Although a defaulting party admits liability by forfeiting a defense to liability, the plaintiff must nevertheless establish damages. Reinbolt v. Kern, 183 Ohio App.3d 287, 2009-Ohio-3492, 916 N.E.2d 1100, ¶ 27 (6th Dist.); McIntosh v. Willis, 12th Dist. Butler No. CA2004-03-076, 2005-Ohio-1925, ¶ 10.
{¶10} Thomas requested damages in the amount of $25,201.40 plus interest. The trial court awarded $12,500.13, plus “interest at the statutory rate from the date of judgment and court costs.” The trial court did not make any findings regarding the
{¶11} The appellant bears the burden of demоnstrating error on appeal by reference to the record of the proceedings below. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980); see also Stancik v. Hersch, 8th Dist. Cuyahoga No. 97501, 2012-Ohio-1955. In the absence of a complete and adequate reсord, a reviewing court must presume the regularity of the trial court proceedings and the presence of sufficient evidence to support the trial court‘s decision. Tisco Trading USA, Inc. v. Cleveland Metal Exchange, Ltd., 8th Dist. Cuyahoga No. 97446, 2012-Ohio-1646, ¶ 6.
{¶12} We find no evidence in the record demonstrating that the trial court‘s damages determination was against the manifest weight of the evidence because there exists no evidence in the record apart from the parties’ fee agreement and an unverified invoice that does not even show an itemized break down of the charges аnd interest.
{¶13} Accordingly, the first assignment of error is overruled.
{¶14} In the second assignment of error, Thomas argues the trial court erred in awarding post-judgment interest at the statutory rate аs opposed to the rate specified in the parties’ contract. She contends the court‘s order charging interest at the statutory rate is contrary to law.
{¶15} Where two parties have contractually agreed to a percentage of interest to be paid on money due and payable under a contract, that pеrcentage is also applicable to any interest accruing on a judgment arising from the underlying transaction. Shelly Materials, Inc. v. Great Lakes Crushing, Ltd., 11th Dist. Portage No. 2013-P-0016, 2013-Ohio-5654, ¶ 59; see also Hobart Bros. Co. v. Welding Supply Serv., Inc., 21 Ohio App.3d 142, 144, 486 N.E.2d 1229 (10th Dist.1985). Thus, “a judgment creditor is entitled to an interest rate in excess of the statutory rate when (1) the parties have a written contract, and (2) that contract provides an interest rate for money that becomes due and payable.” Shelly Materials, Inc., citing Ohio Neighborhood Fin. Inc. v. Massey, 10th Dist. Franklin Nos. 10AP-1020 and 10AP-1121, 2011-Ohio-2165, ¶ 19.
{¶16} The trial court‘s journal entry granting the default judgment ordered interest on the judgment at the statutory rate instead of the rate provided in the parties’ agreement. This mistake is contrary to law. We therefore sustain the second assignment of error.
III. Conclusion
{¶17} The trial court‘s award of $12,500.13 is not against the manifest weight of the evidence even though the parties’ agreement provided a monthly interest rate of 1.5
{¶18} The trial court erred, however, in awarding post-judgment interest at the statutory rate instead of the interest rate agreed to by the parties as provided in the parties’ agreement.
{¶19} Accordingly, we affirm that trial court‘s award of $12,500.13, reverse the court‘s award of interest at the statutory rate, and remand the case to the trial court to award post-judgment interest at the rate of 1.5 percent per month as provided in the parties’ attorney fee agreement.
It is ordered that appellee and aрpellant share costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said сourt to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, PRESIDING JUDGE
ANITA LASTER MAYS, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR