COURT OF APPEALS , EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71901 JAMES ALEXANDER, JR. : ACCELERATED DOCKET : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION CARL DOSS : : PER CURIAM : DEFENDANT -APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JUNE 12, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-309565. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Alexander James, Jr., Esq. (pro se) 2940 Noble Road Suite 100 Cleveland Heights, OH 44121-2422 For Defendant-Appellant: Paul Mancino, Jr., Esq. 75 Public Square Suite 1016 Cleveland, OH 44113-2098 PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.App.R. 25, the record from the -2- Cuyahoga County Court of Common Pleas and the briefs of counsel. Carl Doss, defendant-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, Case No. CV-309565, in which the trial court granted the summary judgment motion of James Alexander, plaintiff-appellee. Defendant-appellant assigns one error for this court's review. Defendant-appellant's appeal is well taken. On May 31, 1996, James Alexander, plaintiff-appellee, filed a complaint for money damages and restraining orders against Carl Doss, defendant-appellant, and the Village of Bratenahl Police Department. Plaintiff-appellee alleged that Doss, a former criminal client of plaintiff-appellee, owed $11,339.50 to plaintiff-appellee for past legal services rendered. Plaintiff-appellee also sought to enjoin the Village of Bratenahl from releasing certain personal property in its possession to defendant-appellant. Attached to the complaint was an alleged invoice from plaintiff-appellee to defendant-appellant for the amount of $11,339.50 for past legal services rendered. The invoice was dated May 30, 1996, one day before the filing of the underlying complaint, and was not signed by plaintiff-appellee. On June 28, 1996, defendant-appellant filed an answer to the complaint in which he maintained that he did not owe any money to plaintiff-appellee since he had been paid in full for all legal services rendered. On August 23, 1996, plaintiff-appellee filed a motion for summary judgment as to all claims raised against Carl Doss, defendant-appellant. Attached to the summary judgment motion were -3- two exhibits. Exhibit A was a purported special power of attorney notarized by plaintiff-appellee which allowed plaintiff-appellee access to defendant-appellant's checking account; designated plaintiff-appellee as attorney of record in criminal case no. CR- 305375 at the rate of $130.00 per hour; and provided for a retainer in the amount of $1,500.00. Exhibit B was a handwritten statement allegedly signed by defendant-appellant designating plaintiff- appellee as defendant-appellant's counsel of record at $130.00 per hour. On September 20, 1996, defendant-appellant filed a brief in opposition to plaintiff-appellee's motion for summary judgment. Attached to the brief in opposition was defendant-appellant's affidavit which stated: I, CARL E. DOSS, being duly sworn, deposes and states the following: 1. That he is the defendant in the within action; that he hired plaintiff, James Alexander, Jr. and paid him the sum of $1500.00; that his agreement with him was that he would be paid $1500.00 to fully represent him at the trial in the Court of Common Pleas of Cuyahoga County, Case No. CR305375. 2. Affiant states that James Alexander, Jr. was hired in addition to Attorney William Droe; that William Droe was paid in full and also represented him at trial of this case. 3. Affiant states that James Alexander, Jr. was paid had been paid (sic) in full and no more money is owed to him by affiant for any legal services. FURTHER AFFIANT SAYETH NAUGHT. On October 2, 1996, the Village of Bratenahl filed a motion to dismiss plaintiff-appellee's complaint pursuant to Civ.R. -4- 12(B)(6). The Village of Bratenahl maintained that since plaintiff-appellee did not have a final monetary judgment against defendant-appellant, plaintiff-appellee was not entitled to an attorney's retaining lien on defendant-appellant's property held by the Village of Bratenahl nor could he enjoin the Village from releasing defendant-appellant's personal property. On October 15, 1996, plaintiff-appellee filed a separate affidavit in support of his motion for summary judgment. The affidavit stated in part that the special power of attorney and handwritten note attached to the complaint were both executed by defendant-appellant and that defendant-appellant was well aware of the fact that he $1,500.00 retainer did not represent the total fees necessary to represent defendant-appellant fully in the underlying criminal matter. Plaintiff-appellee stated further that the bill for legal services attached to the complaint represented reasonable compensation for the services rendered. On December 16, 1996, the trial court granted the Village of Braten ahl's motion to dismiss the complaint pursuant to Civ.R. 12(B)(6). The trial court noted that the dismissal was a partial judgment since it only pertained to the Village of Bratenahl. That same day, the trial court granted plaintiff-appellee's motion for summary judgment in the amount of $11,339.50 without opinion. On January 14, 1997, Carl Doss, defendant-appellant, filed a timely notice of appeal from the trial court's judgment which granted the motion for summary judgment of plaintiff-appellee. The Village of Bratenahl is not a party to the instant appeal. -5- On appeal, defendant-appellant's sole assignment of error states: THE COURT COMMITTED PREJUDICIAL ERROR IN GRANTING SUMMARY JUDGMENT SINCE THERE WERE DISPUTED FACTUAL ISSUES THAT COULD NOT BE RESOLVED UPON A MOTION FOR SUMMARY JUDGMENT. Defendant-appellant argues, through his sole assignment of error, that the trial court improperly granted the motion for summaryjudgment of plaintiff-appellee. Specifically, defendant- appellant maintains that a genuine issue of material fact exists since the special power of attorney and handwritten document attached to the motion for summary judgment was not properly certified and could not be considered by the trial court in order to refute the allegations in defendant-appellant's affidavit. It is defendant-appellant's position that even if the trial court could consider the documents in question, a genuine issue of material fact still exists since defendant-appellant maintained that he did not owe plaintiff-appellee any money and that plaintiff-appellee had been paid in full. Plaintiff-appellee maintains that he did, in fact, file an affida vit in support of the motion for summary judgment which verified the exhibits attached to the summary judgment motion as well as the invoice for legal services attached to the complaint. It is plaintiff-appellee's position that, in light of his affidavit, the trial court was left with no alternative but to grant the motion for summary judgment since defendant-appellant did not refute the substance of the documents in question. -6- Civ.R. 56(C) provides that before summary judgment may be granted, the court must determine that (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewingsuch evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Osbornev. Lyles (1992), 63 Ohio St.3d 326. A motion for summary judgment forces the non-moving party to produce evidence on issues for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. Of Texas (1991), 59 Ohio St.3d 108 (syllabus). The non-movant must also presentspecific facts and may not rely merely upon the pleadings or upon unsupported allegations. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Ohio Supreme Court recently discussed the proper standard to be applied when reviewing summary judgment motions. The court found as follows: Again, we note that there is no requirement in Civ.R. 56 that any party submit affidavits to support a motion for summary judgment. See, e.g., Civ.R. 56(A) and (B). There is a requirement, however, that a moving party, in support of a summary judgment motion, specifically point to something in the record that comports with the evidentiary materials set forth in Civ.R. 56(C). Id. at 298. -7- This court's analysis of an appeal from a summary judgment is conducted under a de novo standard of review. See Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107; Howard v. Willis (1991), 77 Ohio App.3d 133. No deference is given to the decision under review, and this court applies the same test as the trial court. Bank One of Portsmouth v. Weber (Aug. 7, 1991), Scioto App. No. 1920, unreported. In the instant case, defendant-appellant attached an affidavit to his brief in opposition to plaintiff-appellee's motion for summary judgment which stated that plaintiff-appellee had been paid in full for all legal services rendered. The affidavit provided further that the total amount plaintiff- appellee was to be paid for representing defendant-appellant in criminal case no. CR-305375 would be $1,500.00. In addition, in the answers to plaintiff-appellee's first set of interrogatories, defendant-appellant maintained that the special power of attorney and handwritten document attached to plaintiff-appellee's motion for summary judgment were altered by plaintiff-appellee and therefore fraudulent. Civ.R. 56(C) imposes an absolute duty upon the trial court to read and consider all pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact when ruling on a motion for summary judgment. Murphy v. Reynoldsburg (1992), 65 Ohio St.3 d 356, 359. This evidence must be viewed in a light most favorable to the non-moving party, construing all doubt in favor -8- of that party. Jawhari v. Pizza Hut (May 29, 1997), Cuyahoga App. No. 71830, unreported. Viewing the evidence in this case in a light most favorable to defendant-appellant, it is apparent that the trial court improperly granted plaintiff-appellee's motion for summ ary judgment since genuine issues of material fact exist rega rding the amount of the legal fees plaintiff-appellee is entitled to receive as well as the validity of the documents atta ched to plaintiff-appellee's motion for summary judgment, particularly the special power of attorney upon which plaintiff- appellee relies. This document is suspect since plaintiff- appellee was designated as the agent and also served as the notary public acknowledging the validity of the document. Accordingly, defendant-appellant's sole assignment of error is well taken. Judg ment of the trial court is reversed and remanded for further proceedings consistent with this opinion. Reversed and Remanded. -9- This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate issue out of this court directi ng 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. PATRICIA BLACKMON, PRESIDING JUDGE DAVID T. MATIA, JUDGE LEO M. SPELLACY, 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 pursuantto 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 revi ew by the Supreme Court of Ohio shall begin to run upon the jour nalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section .