COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71891 McINTYRE, KAHN & KRUSE CO. JOURNAL ENTRY AND OPINION Plaintiff-appellee vs. WILLIAM McCLAREN Defendant-appellant DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 11, 1997 CHARACTER OF PROCEEDINGS: Civil appeal from Common Pleas Court Case No. CV-292092 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: For defendant-appellant: ROBERT R. KRACHT, ESQ. MICHAEL F. DADISMAN, ESQ. McINTYRE, KAHN, KRUSE & BROADVIEW PROFESSIONAL BLDG. GILLOMBARDO CO., L.P.A. 5455 Broadview Road Galleria & Towers at Erieview Parma, Ohio 44134 1301 East 9th Street, #1200 Cleveland, Ohio 44114-1824 KARPINSKI, J.: Defendant-appellant William McLaren appeals from an order of the trial court granting summary judgment for attorney fees and interest in favor of plaintiff-appellee McIntyre, Kahn & Kruse Co. L.P.A. (the Law Firm ). McLaren was a securities broker and has been involved in a substantial amount of litigation over the last several years. He ultimately filed a petition for relief under the federal Bankruptcy Code in 1989 seeking to discharge over $13 million in debts. McLaren subsequently retained the Law Firm to represent him in several pending cases filed by creditors against him in the bankruptcy court, federal district court, and state common pleas courts. The litigation included claims of fraud by former clients in connection with investments. Several additional actions were filed against McLaren, and the Law Firm also represented him in connection with these cases and a matter involving the Internal Revenue Service. During the course of the representation, the Law Firm submitted periodic invoices to McLaren. A spendthrift trust established for the benefit of McLaren paid the cost of some of these services. McLaren has not personally paid any amount for these services. The Law Firm filed this action against McLaren to collect on the outstanding balance for attorney fees and accrued interest. The Law Firm filed a motion for summary judgment supported by an affidavit of a partner, Robert McIntyre, a detailed description of 3 legal services and time spent performing them, and monthly invoices issued to McLaren through May, 1995. McLaren filed a brief in opposition to summary judgment. He argued that the Law Firm agreed to perform all legal services for a total of $110,000 and agreed to forgo certain interest charges. An affidavit of McLaren, executed by his wife, was attached to the brief along with photocopies of various correspondence. No one disputes the parties entered into a contract. Nor does defendant assert that the parties agreed to fees other than the Law Firm's prevailing hourly rates. The Law Firm filed a reply brief and moved to strike the affidavit executed by McLaren's wife. The brief argued that the affidavit did not recite that she had personal knowledge of any of the matters set forth in the affidavit. The trial court thereafter granted summary judgment for the Law Firm. McLaren timely appeals raising the following two assignments of error: I. THE TRIAL COURT ERRONEOUSLY GRANTED PLAINTIFF- APPELLEE'S MOTION FOR SUMMARY JUDGMENT BECAUSE GENUINE ISSUES OF MATERIAL FACT EXIST BASED UPON THE SUBMITTED BRIEFS AND OTHER DOCUMENTARY EVIDENCE CONCERNING THE PLAINTIFF-APPELLEE'S AGREEMENT TO CAP LEGAL EXPENSES AT $80,000.00 AND PLAINTIFF- APPELLEE'S FAILURE TO ESTABLISH REASONABLENESS AS TO HOURS EXPENDED. I. THE TRIAL COURT ERRED IN AWARDING THE PLAINTIFF- APPELLEE 10% INTEREST FROM MAY 31, 1995 TO DECEMBER 13, 1996 AS LIQUIDATED DAMAGES, BECAUSE PLAINTIFF- APPELLEE AGREED TO WAIVE ALL INTEREST RATES. These assignments lack merit. 4 McLaren su judgment in favor of the Law Firm because there was evidence that the parties agreed to a cap on the legal fees andcontends that the Law Firm agreed to forgo various interest charges. There is no evidence to support these claims. The affidavit submitted in opposition to summary judgment was defective. Civ.R. 56(E) specifically governs the use of affidavits in this context and requires that affidavits be based on personal knowledge. In this case, the affidavit, which purported to be the testimony of William McLaren, was executed in the following manner: William McLaren, by Karen McLaren P.O.A. 1 It is well established that assertions in an affidavit that one is duly authorized to make statements on behalf of another do not satisfy the requirement of personal knowledge or demonstrate the person is competent to testify to the matters stated therein. Olverson v. Butler (1975), 45 Ohio App.2d 9, 12. As a result, the affidavit was insufficient to constitute testimony from William McLaren. The affidavit does not show, moreover, that Karen McLaren had personal knowledge or was otherwise competent to testify to the matters described in the affidavit. Accordingly, the trial court was warranted in excluding the affidavit. The exhibits attached to the affidavit were properly excluded for the same reason and WE ALSO NOTE THAT THE RECORD DOES NOT CONTAIN A POWER OF ATTORNEY PERMITTING KAREN MCLAREN TO ACT ON BEHALF OF WILLIAM MCLAREN. 5 because the affidavit did not aver that they were true and accurate copies. The Law Firm's motion for summary judgment, granted by the trial court, contained extensively detailed information concerning the time spent and the hourly rates of employees providing services for McLaren on these matters. The hourly rates ranged from $25 to $150 per hour. McLaren never objected, moreover, to any monthly invoice for attorney fees or the amount of hours or hourly rates before filing this litigation or during the summary judgment proceedings in the trial court. The first time McLaren challenged the reasonableness of the rates was in his brief on appeal. However, the motion for summary judgment contained ample documentation to permit a judge to evaluate both the reasonableness of services provided to McLaren and the reasonableness of the rates charged by the Law Firm for those services. The fee bills and invoices supporting the motion comprise approximately one-half the bulk of the Cleveland metropolitan phonebook. Inter alia, each entry on the fee bill describes the services performed in the various matters and the time charged for performing them. Under the circumstances, the trial court could properly find that the services and time spent performing them were reasonable from the detailed documentation in this case. In re Wood (1977), 55 Ohio App.2d 67. We specifically note that McLaren did not dispute the necessity or reasonableness of any single fee item either in the trial court or in his argument on appeal. 6 McLaren's remaining contention that the Law Firm agreed not to charge him interest on the outstanding balance for attorney fees and expenses is not supported by the record. Even if we considered the letter which he cites in support, it reflects no more than his unilateral request that the Law Firm forgo charging interest on unpaid balances. In short, McLaren did not submit any evidence to support his theory of the case that the parties agreed to place a cap on the total fees, that the time spent or hourly rates were unreasonable, or that the Law Firm agreed not to charge him interest on unpaid balances. The Law Firm's motion for summary judgment was sufficient to support the trial court's award of attorney fees and interest in this case. Accordingly, McLaren's two assignments of error are overruled. Judgment affirmed. 7 It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court 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. PORTER, P.J., and O'DONNELL, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .