H.R. v. P.J.E. ( 2024 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as H.R.
v. P.J.E., Slip Opinion No. 2024-Ohio-4549.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2024-OHIO-4549H.R., APPELLANT, v. P.J.E., APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as H.R. v. P.J.E., Slip Opinion No. 2024-Ohio-4549.]
S.Ct.Prac.R. 4.03(A)—As an appropriate sanction for appellant’s counsel’s
instituting a frivolous appeal, $13,351 in reasonable attorney fees awarded
to appellee to be paid by appellant’s counsel, with credit given for counsel’s
prior payment of $10,751.
(No. 2023-0907—Submitted July 9, 2024—Decided September 19, 2024.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 112990.
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The per curiam opinion below was joined by KENNEDY, C.J., and FISCHER,
DEWINE, DONNELLY, and DETERS, JJ. STEWART, J., dissented, with an opinion
joined by BRUNNER, J.
SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} This matter is before the court following the issuance of the master
commissioner’s report and recommendation, which recommends that appellee,
P.J.E., be awarded $10,751 in attorney fees, payable by appellant H.R.’s counsel—
Joseph G. Stafford, Nicole A. Cruz, and Kelley R. Tauring (collectively, “the
Stafford counsel”). Because the Stafford counsel have paid this amount under the
terms of a settlement with P.J.E., the master commissioner further recommends that
we deem the award satisfied.
{¶ 2} P.J.E. has filed objections to the report and recommendation, arguing
that he should be awarded a total of $13,351, with credit given for the Stafford
counsel’s prior payment of $10,751, thus leaving a remainder of $2,600 to be paid.
The Stafford counsel have filed a motion for leave to file a brief in opposition to
P.J.E.’s objections. We sustain P.J.E.’s objections and deny the Stafford counsel’s
motion.
I. BACKGROUND
{¶ 3} We previously concluded that the appeal filed in this case by the
Stafford counsel on H.R.’s behalf was frivolous under S.Ct.Prac.R. 4.03(A)
because it was “neither warranted by existing law nor supported by a good-faith
argument for the extension, modification, or reversal of existing law.” 2023-Ohio-
4185, ¶ 10. As an appropriate sanction, we determined that reasonable attorney
fees should be awarded to P.J.E., payable by the Stafford counsel. Id. at ¶ 15.
Additionally, because the Stafford counsel have filed multiple jurisdictional
memoranda in other cases advancing a proposition of law similar to the one they
filed in this case, we declared that the Stafford counsel are vexatious litigators. Id.
at ¶ 17, 19. To aid in our determination of the attorney-fee award, we referred the
matter to a master commissioner for the purposes of holding a sanctions hearing
and recommending an award. Id. at ¶ 15; 2023-Ohio-4194.
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January Term, 2024
{¶ 4} After we referred the matter to a master commissioner, Jill Friedman
Helfman, P.J.E.’s lead counsel, and the Stafford counsel agreed that if the latter
paid the former’s fees, then the attorney-fee dispute would be considered resolved.
To this end, Helfman submitted to the Stafford counsel a fee statement, which we
will call fee statement No. 1, reflecting a bill of $10,751 for services rendered in
this case by Helfman and others associated with the law firm Taft Stettinius &
Hollister, L.L.P., from July 19, 2023, to February 5, 2024. It is undisputed that the
Stafford counsel sent Helfman a check for $10,751, which she cashed.
{¶ 5} The Stafford counsel thereafter filed a notice of dismissal based on
the parties’ settlement, but the notice failed to disclose the amount of the settlement.
In an entry dated March 1, 2024, we struck the notice but provided the parties an
opportunity to avoid attending the sanctions hearing by submitting an agreed
stipulation setting forth a reasonable amount of attorney fees incurred by P.J.E. that
would be paid by the Stafford counsel. 2024-Ohio-769.
{¶ 6} Helfman and Cruz exchanged proposed stipulations to avoid the need
for a sanctions hearing. Helfman’s first proposed stipulation adopted the language
of the court’s March 1 entry word for word and included the amount of attorney
fees set forth in fee statement No. 1. The Stafford counsel rejected Helfman’s first
proposed stipulation, which used the phrases “frivolous conduct” and “reasonable
fees.” Helfman then sent another proposed stipulation to Cruz, stating only that the
fees were “reasonable.” The Stafford counsel rejected Helfman’s second proposed
stipulation.
{¶ 7} With the parties unable to agree on language for a stipulation that
would avoid a sanctions hearing, the Stafford counsel attempted instead to dispose
of the case by filing a “motion to accept settlement agreement.” The motion failed
to specify a stipulated amount of reasonable attorney fees, and we denied the
motion, 2024-Ohio-1066.
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SUPREME COURT OF OHIO
{¶ 8} At the sanctions hearing, Helfman submitted fee statement No. 1 and
a second fee statement, which we refer to as fee statement No. 2. Fee statement
No. 2 reflects a bill of $2,600 for services rendered by Helfman from March 11,
2024, to March 26, 2024. Following the hearing, P.J.E. argued in his posthearing
brief that he should be awarded $13,351 in attorney fees—that is, the sum of fee
statement Nos. 1 and 2—with credit given for the Stafford counsel’s prior payment
of $10,751. In other words, P.J.E. sought payment of $2,600 as reflected in fee
statement No. 2.
{¶ 9} The master commissioner recommends that we reject P.J.E.’s
argument, reasoning that when P.J.E. agreed to settle the case for $10,751 as
reflected in fee statement No. 1, he relinquished the opportunity to argue in favor
of a higher award and assumed the risk that $10,751 might appear suboptimal in
hindsight.
{¶ 10} P.J.E. filed objections to the master commissioner’s report and
recommendation, renewing his argument that he should be entitled to an additional
payment of $2,600. The Stafford counsel did not file objections, but they have filed
a motion for leave to file a brief in opposition to P.J.E.’s objections.
II. ANALYSIS
A. The Stafford counsel’s motion
{¶ 11} We begin with the Stafford counsel’s motion for leave to file a brief
in opposition to P.J.E.’s objections to the master commissioner’s report and
recommendation. We deny the motion because the Stafford counsel’s proposed
brief in opposition that is attached to their motion essentially recasts arguments that
are already before us, namely, those advanced in their posthearing brief.
B. P.J.E.’s objections
{¶ 12} P.J.E. argues that he should be awarded a total of $13,351 in attorney
fees, with credit given for the Stafford counsel’s prior payment of $10,751, thus
leaving an outstanding payment due of $2,600. We agree.
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January Term, 2024
{¶ 13} An attorney-fee calculation begins with the lodestar, which is the
product of a reasonable hourly rate and a reasonable number of hours. See Cruz v.
English Nanny & Governess School, 2022-Ohio-3586, ¶ 47. We “strong[ly]
presum[e]” that the lodestar constitutes “the proper amount for an attorney-fee
award.” Phoenix Lighting Group, L.L.C. v. Genlyte Thomas Group, L.L.C., 2020-
Ohio-1056, ¶ 19.
{¶ 14} Because fee statement No. 1 has been paid by way of a settlement,
we have no occasion to evaluate this fee statement under a lodestar analysis;
instead, we take it as a given that the hours and services described therein should
be included in the attorney-fee award. The remaining question therefore is whether
P.J.E. should be permitted to recoup the attorney fees set forth in fee statement No.
2.
{¶ 15} Our previous decision provided that “P.J.E. shall be permitted to
recoup reasonable attorney fees incurred in responding to H.R.’s jurisdictional
memorandum and in preparing for and participating in the sanctions hearing.”
2023-Ohio-4185 at ¶ 15. Here, we find that the descriptions of the entries set forth
in fee statement No. 2 fall within the ambit of preparing for and participating in the
sanctions hearing. And we further find that Helfman’s hourly rate of $650 is
reasonable.
{¶ 16} P.J.E. asks that we apply Helfman’s hourly rate to an expenditure of
four hours. Two of the four hours relate to Helfman’s estimate of how long the
sanctions hearing would last. The sanctions hearing in this case, however, took a
little over an hour to complete. Helfman’s two-hour estimate thus overcounts the
time spent at the hearing. Even so, we will not reduce the estimate. As P.J.E. notes
in his objections, fee statement No. 2 does not include travel time for the four-hour
round trip that Helfman made from Cleveland to Columbus to attend the hearing.
If anything, then, fee statement No. 2 undercounts the time incurred by Helfman in
this matter. See Henry v. Webermeier, 738 F.2d 188, 194 (7th Cir. 1984) (“When
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SUPREME COURT OF OHIO
a lawyer travels for one client he incurs an opportunity cost that is equal to the fee
he would have charged that or another client if he had not been traveling.”).
{¶ 17} We disagree with the master commissioner’s view that when P.J.E.
accepted payment in the amount set forth in fee statement No. 1, he effected a
relinquishment of his opportunity to recoup the amount set forth in fee statement
No. 2. That view is inconsistent with our previous decision authorizing P.J.E. to
recoup attorney fees in “preparing for and participating in the sanctions hearing,”
2023-Ohio-4185 at ¶ 15. Moreover, we agree with P.J.E. that the Stafford counsel’s
refusal to accept the terms of the stipulations proposed by Helfman was the reason
that this matter culminated in a hearing. We will not punish P.J.E. for the hard line
drawn by the Stafford counsel, which necessitated that Helfman prosecute this
matter at a hearing.
III. CONCLUSION
{¶ 18} P.J.E.’s objections to the master commissioner’s report and
recommendation are sustained, and the Stafford counsel’s motion for leave to file
a brief in opposition to P.J.E.’s objections is denied. We award a total of $13,351
in attorney fees to P.J.E., with credit given for the Stafford counsel’s prior payment
of $10,751, which leaves an outstanding payment due of $2,600. The Stafford
counsel shall make the outstanding payment within 14 days of today’s decision.
So ordered.
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STEWART, J., joined by BRUNNER, J., dissenting.
{¶ 19} I disagree with the majority opinion’s determination that the
payment of the attorney fees set forth in fee statement No. 1 by appellant H.R.’s
counsel—Joseph G. Stafford, Nicole A. Cruz, and Kelley R. Tauring (collectively,
“the Stafford counsel”)—did not settle this case in its entirety. I therefore dissent
from the majority’s judgment awarding appellee, P.J.E., $2,600 in additional
attorney fees that are set forth in fee statement No. 2.
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January Term, 2024
{¶ 20} The majority opinion determines that P.J.E. is entitled to payment of
the attorney fees set forth in fee statement No. 2 based on the language contained
in our November 22, 2023 decision that stated: “P.J.E. shall be permitted to recoup
reasonable attorney fees incurred in responding to H.R.’s jurisdictional
memorandum and in preparing for and participating in the sanctions hearing,”
2023-Ohio-4185, ¶ 15. The majority reasons that since fee statement No. 2 covers
the attorney fees associated with the sanctions hearing, it would conflict with our
November 22, 2023 decision to determine that the Stafford counsel should not pay
that bill. Majority opinion, ¶ 17. The majority is incorrect. While the November
22, 2023 decision stated that P.J.E. is entitled to attorney fees associated with the
sanctions hearing, 2023-Ohio-4185 at ¶ 15, we clarified that decision on March 1,
2024, through an entry that stated that the parties could avoid a sanctions hearing
by submitting “an agreed stipulation setting forth a stipulated amount of reasonable
attorney fees incurred by [P.J.E.] and to be paid by [the Stafford counsel] as a result
of [the Stafford counsel’s] frivolous appeal to this court.” 2024-Ohio-769. By
issuing this latter entry, we contemplated that an attorney-fee award in this case
would not include fees associated with preparing for and participating in a sanctions
hearing, because the latter entry recognized that the parties could avoid a sanctions
hearing if they stipulated to the amount of attorney fees to be paid by the Stafford
counsel. See id.{¶ 21} Although the sanctions hearing did go forward, I disagree with the
majority’s finding that blame for the hearing going forward should be placed solely
on the Stafford counsel, see majority opinion at ¶ 17. Our March 1, 2024 entry did
not explicitly require that the parties’ agreed stipulation contain any specific
language. While the Stafford counsel could have agreed to the language of the
stipulations that P.J.E.’s lead counsel, Jill Friedman Helfman, proposed, it is
equally true that Helfman could have worked with the Stafford counsel on different
language rather than insisting that the Stafford counsel adopt the language that she
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SUPREME COURT OF OHIO
had proposed. The Stafford counsel were unwilling to join a stipulation proposed
by Helfman that used the words “frivolous conduct” and “reasonable fees” and
were also unwilling to join a stipulation proposed by Helfman that used the word
“reasonable” regarding her fees. In her testimony before the master commissioner,
Helfman explained that she included this language in the proposed stipulations
because that was the language that this court used in its March 1, 2024 entry. It is
certainly understandable why Helfman would choose to draft the stipulations this
way, and, to be sure, the Stafford counsel took a hard, and seemingly unnecessary,
line here. But the March 1 entry, although it used the phrases “frivolous appeal”
and “reasonable attorney fees,” 2024-Ohio-769, did not require that the agreed
stipulation contain these phrases or any specific phraseology. Had the parties
submitted an agreed stipulation setting forth or enumerating the amount of money
to be awarded from the Stafford counsel to P.J.E., the court could have drawn the
appropriate inference that that award was indicative of an amount of reasonable
attorney fees that had been agreed to be paid by the Stafford counsel for their
frivolous appeal to this court.
{¶ 22} For these reasons, I disagree with the majority’s judgment awarding
an additional $2,600 in attorney fees to be paid by the Stafford counsel to P.J.E. I
would find that the Stafford counsel’s payment of $10,751, representing the
payment of the attorney fees set forth in fee statement No. 1, satisfied their
obligation to pay for P.J.E.’s reasonable attorney fees associated with their
frivolous appeal to this court.
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Stafford Law Co., L.P.A., Joseph G. Stafford, Nicole A. Cruz, and Kelley
R. Tauring, for appellant.
Taft Stettinius & Hollister, L.L.P., and Jill Friedman Helfman, for appellee.
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