United Assn. of Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry v. Jack's Heating, Air Conditioning & Plumbing, Inc. ( 2013 )

[Cite as United Assn. of Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry v. Jack's
Heating, Air Conditioning & Plumbing, Inc., 2013-Ohio-144.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HARDIN COUNTY
UNITED ASSOCIATION OF
JOURNEYMAN AND
APPRENTICES OF THE PLUMBING
AND PIPE FITTING INDUSTRY,
LOCAL UNION NO. 776,
CASE NO. 6-12-06
PLAINTIFF-APPELLANT,
v.
JACK’S HEATING, AIR
CONDITIONING & PLUMBING, INC., OPINION
DEFENDANT-APPELLEE.
Appeal from Hardin County Common Pleas Court
Trial Court No. CV 20081164
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: January 22, 2013
APPEARANCES:
Joseph M. D’Angelo for Appellant
William E. Clark for Appellee
Case No. 6-12-06
ROGERS, J.
{¶1} Plaintiff-Appellant, United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry, Local Union Number 776
(“Local 776”), appeals the judgment of the Hardin County Court of Common
Pleas denying its request for attorney fees and court costs. On appeal, Local 776
argues that its introduction of an itemized billing statement, two Ohio State Bar
Association (“OSBA”) publications regarding attorney billing practices, and the
testimony of its counsel should have led the trial court to grant its request for
attorney fees and court costs. For the reasons that follow, we affirm in part and
reverse in part the trial court’s judgment.
{¶2} In May 2008, Local 776 filed a complaint against Defendant-
Appellee, Jack’s Heating, Air Conditioning and Plumbing, Inc. (“Jack’s”),
alleging that Jack’s violated Ohio’s prevailing wage law. On July 9, 2010, the
trial court granted Local 776’s summary judgment on its claims that Jack’s
violated the prevailing wage law. In its judgment entry, the trial court stated that
Local 776 was entitled to attorney fees, but it failed to actually order that Jack’s
pay such attorney fees.
{¶3} Both parties appealed to this court. On January 18, 2011, we affirmed
the trial court’s grant of summary judgment in Local 776’s favor. But, we also
reversed the trial court on the basis that it failed to order that Jack’s pay Local
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776’s attorney fees and court costs. The matter was then remanded to the trial
court. See United Assn. of Journeymen & Apprentices of the Plumbing & Pipe
Fitting Industry, Local Union No. 776 v. Jack’s Heating, Air Conditioning &
Plumbing, Inc., 3d Dist. No. 6-10-11, 2011-Ohio-167 (“Jack’s I”).
{¶4} On remand, the trial court conducted a hearing on May 3, 2011 to
determine the issue of attorney fees. Local 776’s attorney throughout the course
of these proceedings was Joseph D’Angelo. During the presentation of evidence,
D’Angelo introduced the following exhibits: (1) an itemized bill from his law firm
for its services on behalf of Local 776 in this matter (the “Bill”); (2) an OSBA
publication entitled “The Economics of Law Practice in Ohio in 2010” (the “2010
Survey”); and (3) another OSBA publication called “The Economics of Law
Practice in Ohio in 2007” (the “2007 Survey”).
{¶5} The Bill details the work that D’Angelo and other members of his law
firm purportedly performed during the course of this action from May 21, 2008
until November 30, 2010. Each time entry describes the task performed and
includes the initials of the firm employee who performed it. However, the Bill
does not include a key that matches the initials with the name and position of the
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firm employees who performed the described work.1 In total, the Bill lists
approximately 400 hours of work performed and $65,537.55 in fees and costs.
When D’Angelo offered the Bill into evidence, he was not under oath. At that
time, he stated that he thought “$65,000 [was] a reasonable allotment of time and
expense for the undertaking.” May 3, 2011 Hearing Transcript, p. 5.
{¶6} The OSBA publications provide the results of online surveys
distributed to Ohio law firms regarding their billing practices. Both publications
provide the median and average billing rate for all Ohio law firms that responded.
They also break down the median and average billing rate based on the size,
location, and practice area of the responding law firms. Further, the publications
list the median and average billing rate for partners and associates based on firm
size.
{¶7} The 2010 Survey covers the billing practices of Ohio law firms in
2009 while the 2007 Survey covers 2006 trends. A review of the 2010 Survey
reveals the following relevant information regarding billing practices in 2009:
Median Hourly Rate (all firms): $200;
Median Hourly Rate (firms with 3-6 attorneys): $198;
Median Hourly Rate (firms in Northwest region): $175;
Median Hourly Rate (firms in Toledo): $185;
Median Hourly Rate (general practice firms): $160;
1
We note that D’Angelo filed a brief with the trial court that identifies the names and positions of the
employees who are shown as billing time. These identifications, however, are merely listed in the
argument section of the brief and not included in evidentiary material, such as an affidavit. Further, there
was no testimony during the hearing as to these identifications. Consequently, there is no evidence in the
record identifying the names and positions of the employees whose initials are included in the itemized bill.
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Median Hourly Rate (labor law firms representing unions): $150;
Median Hourly Rate (partners in firms with 2-7 partners): $200;
Median Hourly Rate (associates in firms with 2-7 partners): $175.
(Exhibit 2, p. 23-24).
Meanwhile, the 2007 survey provides the 2006 median hourly rate for each of
these categories. When introducing the publications, D’Angelo offered no
testimony indicating which median hourly rate was appropriate to consider when
assessing the reasonableness of his request for attorney fees.
{¶8} After introducing these exhibits into evidence, D’Angelo rested on
behalf of Local 776. Jack’s then called D’Angelo as though on cross-examination.
At that time, the trial court placed D’Angelo under oath. His testimony revealed
that his office is located in Toledo and that he is a partner in a law firm with five
attorneys. When asked the nature of his practice, D’Angelo indicated that he does
work on behalf of labor unions and that his firm is “full service.” Id. at p. 9.
{¶9} In regard to the Bill, D’Angelo testified that he reviewed it and
“eliminated any time entries that appeared in my opinion to be duplicative of other
entries that were already there.” Id. at p. 10. He also stated that a variety of
associates and law clerks performed work on the case to keep fees to a minimum.
Further, D’Angelo conceded that several of the time entries in the Bill were for
work on pleadings that were never filed with the trial court. Finally, he admitted
that Local 776 was requesting $65,000 in attorney fees for his firm’s efforts in
obtaining a judgment of approximately $5,000 against Jack’s.
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{¶10} After Jack’s counsel finished his questioning, the parties presented
closing arguments. In his closing, D’Angelo indicated that he has 16 years of
legal experience. D’Angelo also supplemented the evidence and argument
presented at the hearing by filing a brief that summarized Local 776’s legal
position on its request for attorney fees. No evidentiary material was attached to
the brief.
{¶11} On December 23, 2011, the magistrate denied Local 776’s request
for attorney fees. The basis for the denial was that Local 776 “failed to present
sufficient evidence to support its request * * *.” (Docket No. 51, p. 4). While the
magistrate noted that the Bill was “detailed and comprehensive,” Local 776 failed
to present “disinterested third-party evidence that the number of billable hours was
either reasonable or necessary to the action.” (Id.). Further, the magistrate found
little value in the 2010 Survey because although it “indicated the range of fees
charged by lawyers in the Toledo area,” Local 776 did not provide “evidence as to
the skill, reputation, experience or ability of the lawyer(s) involved, or the
complexity of the issues * * *.” (Id.).
{¶12} Local 776 objected to the magistrate’s decision. After each party
filed its respective briefs, the trial court affirmed the magistrate’s decision on the
basis that Local 776 “has failed to meet its evidentiary burden in supporting its
request for attorney’s fees.” (Docket No. 59).
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{¶13} It is from this judgment that Local 776 filed this timely appeal,
presenting the following assignment of error for our review.
Assignment of Error No. I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR
WHEN IT REFUSED TO AWARD COSTS AND
ATTORNEYS’ FEES TO THE PLAINTIFF/APPELLANT.
{¶14} In its sole assignment of error, Local 776 contends that since it
presented sufficient evidence for the trial court to award attorney fees and court
costs, the trial court erred in failing to grant such an award. We agree in part and
disagree in part.
Standard of Review
{¶15} We review a trial court’s attorney fees award for abuse of discretion.
Bittner v. Tri-Cty. Toyota, Inc., 58 Ohio St.3d 143, 146 (1991). A trial court will
be found to have abused its discretion when its decision is contrary to law,
unreasonable, not supported by the evidence, or grossly unsound. See State v.
Boles, 2d Dist. No. 23037, 2010-Ohio-278, ¶17-18, citing Black’s Law Dictionary
11 (8th Ed.2004). Under the abuse of discretion standard, a reviewing court may
not simply substitute its judgment for that of the trial court. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983). In applying abuse of discretion review
to attorney fee awards, we only reverse a trial court’s order upon a showing that
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“the amount of fees [awarded] is so high or so low as to shock the conscience.”
White v. Lima Auto Mall, Inc., 3d Dist. No. 1-08-63, 2009-Ohio-411, ¶ 15.
{¶16} Local 776 concedes that the abuse of discretion standard generally
applies to appellate review of attorney fee awards. However, it also argues that
because the trial court based its order on Local 776’s failure to meet its evidentiary
burden, this appeal presents a question of law that should be reviewed de novo.
This argument fails to account for the numerous cases in which the court of
appeals has applied abuse of discretion review where the trial court entirely denied
an award of attorney fees due to the failure of the requesting party to establish the
reasonableness of its request. E.g., Unick v. Pro-Cision, Inc., 7th Dist. No.
09MA171, 2011-Ohio-1342, ¶ 26. Based on this case law, we reject Local 776’s
contention that de novo review applies to this matter.
The American Rule and R.C. 4115.16(D)
{¶17} Ohio follows the American Rule, which requires that each party bear
its own attorney fees and costs during the course of litigation. Sorin v. Bd. of Edn.
of Warrensville Hts. School Dist., 46 Ohio St.2d 177, 179 (1976). However, there
are a number of exceptions to this general rule. Specifically, “attorney fees may
be awarded when a statute * * * provides for the losing party to pay the prevailing
party’s attorney fees.” Wilborn v. Bank One Corp., 121 Ohio St.3d 546, 2009-
Ohio-306, ¶ 7.
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{¶18} Since this is a prevailing wage matter, the dictates of R.C.
4115.16(D) apply. The statute provides that when a trial court finds that a party
violated the prevailing wage law, it “shall award attorney fees and court costs to
the prevailing party.” (Emphasis added.) R.C. 4115.16(D). Due to the statute’s
plain language, we have interpreted R.C. 4115.16(D) as requiring that trial courts
award attorney fees and court costs whenever they find violations of the prevailing
wage law. Jack’s I, 2011-Ohio-167, at ¶ 22; Internatl. Bhd. of Elec. Workers,
Local Union No. 8 v. Stollsteimer Elec., Inc., 3d Dist. No. 4-05-29, 2005-Ohio-
6866, ¶ 3; see also Internatl. Bhd. of Elec. Workers, Local Union No. 8 v.
Stollsteimer Elec., Inc., 168 Ohio App.3d 238, 2006-Ohio-3865, ¶ 16 (6th Dist.)
(agreeing with our reading of R.C. 4115.16(D)). As a result, by virtue of the trial
court’s grant of summary judgment, Local 776 is entitled to an award of attorney
fees and court costs in this matter.
Bittner Framework for the Reasonableness of Attorney Fee Awards
{¶19} When an exception to the American Rule allows for an award of
attorney fees, trial courts are generally instructed to follow the two-part test
enunciated in Bittner. Although Bittner was handed down in the context of the
Ohio Consumer Sales Practices Act, courts have applied it to fee awards in a
variety of other contexts, e.g., Jefferson v. Creveling, 9th Dist. No. 24206, 2009-
Ohio-1214, ¶ 33 (applying Bittner to request for attorney fees under R.C. 2323.51
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for bad faith conduct during litigation), including in prevailing wage enforcement
actions, e.g., Village of W. Unity ex rel. Beltz v. Merillat, 169 Ohio App.3d 71,
2006-Ohio-5105, ¶ 11-23 (6th Dist.). As such, we likewise apply its guidance
here.
{¶20} Under Bittner, “[t]he trial court should first calculate the number of
hours reasonably expended on the cases [and multiply it] by an hourly fee * * *.”
Bittner, 58 Ohio St.3d at 145. The product of this calculation is called the
“lodestar” figure. Unick, 2011-Ohio-1342, at ¶ 27. To satisfactorily prove the
lodestar, the requesting party must show that the hours billed are “necessary to the
action and [do] not include ‘hours that are excessive [or] redundant.’” Id. at ¶ 28,
quoting Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1903 (1983); Jacobs v.
Holston, 70 Ohio App.2d 55, 60 (6th Dist. 1980) (stating that to establish
reasonableness of attorney fee request, the lawyer must establish the
reasonableness of the hourly rate and the amount of time expended on the case).
The requesting party must also establish the reasonableness of the hourly rate. In
doing so, the requesting party must “‘produce satisfactory evidence – in addition
to the attorney’s own affidavits – that the requested rates are in line with those
prevailing in the community for similar services by lawyers of reasonably
comparable skill, experience, and reputation.” Unick at ¶ 27, quoting Blum v.
Stenson, 465 U.S. 886, 895-96, 104 S.Ct. 1541 (1989); see also Southeast Land
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Dev., Ltd. v. Primrose Mgt. L.L.C., 193 Ohio App.3d 465, 2011-Ohio-2341, ¶ 15
(3d Dist.) (outlining same requirements in determining the lodestar figure).
{¶21} Once the lodestar is determined, the trial court should consider
modifying it based on the factors listed in the Ohio Rules of Professional Conduct
regarding the reasonableness of the fee. Bittner, 58 Ohio St.3d at 145.2 Rule
1.5(a) lists the following factors as relevant to determining the reasonableness of
an attorney fee award:
(1) [T]he time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal
service properly;
(2) [T]he likelihood, if apparent to the client, that the acceptance of
the particular employment will preclude other employment by the
lawyer;
(3) [T]he fee customarily charged in the locality for similar legal
services;
(4) [T]he amount involved and the results obtained;
(5) [T]he time limitations imposed by the client and by the
circumstances;
(6) [T]he nature and length of the professional relationship with the
client;
2
The Ohio Rules of Professional Conduct became effective on February 1, 2007 and superseded the Ohio
Code of Professional Responsibility. Since Bittner was decided in 1991, the court cited the factors listed in
DR 2-106(B) as those trial courts should consider in awarding attorney fees. Since this matter implicates
attorney fees incurred after February 1, 2007, we consider the factors included in the Rules of Professional
Conduct as controlling our review. See O’Neill v. Tanoukhi, 7th Dist. No. 10-MA-45, 2011-Ohio-2626, ¶
12 (applying factors in Prof.Cond.R. 1.5 to Bittner analysis since matter post-dated the effective date of the
Rules of Professional Conduct). Regardless, we note that the factors in DR 2-106(B) are substantially
similar to the factors in Prof.Cond.R. 1.5(a).
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(7) [T]he experience, reputation, and ability of the lawyer or
lawyers performing the services; and
(8) [W]hether the fee is fixed of contingent.
Burden of Proof under Bittner
{¶22} We can find no case that specifically requires the prevailing party in
a prevailing wage enforcement action to prove the reasonableness of its attorney
fee request. But, under the Bittner framework, courts have generally required the
requesting party to prove the reasonableness of its request. E.g., Southeast Land
Dev., Ltd., 193 Ohio App.3d 465, 2011-Ohio-2341, at ¶ 15, quoting Unick, 2011-
Ohio-1342, at ¶ 27. Further, other courts that have addressed matters implicating a
statutorily-mandated attorney fee award have placed the burden of proof regarding
the attorney fee request upon the requesting party. E.g., TCF Natl. Bank v. Smith,
5th Dist. No. 2009 CA 00101, 2010-Ohio-1336, ¶ 21-22 (requiring prevailing
party to prove reasonableness of its fee request when seeking attorney fees under
R.C. 5721.39); In re Estate of Szczotka, 11th Dist. No. 2005-L-042, 2006-Ohio-
1449, ¶ 29 (requiring defender of will in will contest to prove reasonableness of its
fee request when seeking attorney fees under R.C. 2107.75). We apply the
persuasive guidance of these cases here and find that R.C. 4115.16(D) does not
vary the general requirement under Bittner that requesting parties prove the
reasonableness of their fees. Accordingly, our review of the record here focuses
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on whether Local 776 has carried its burden to establish the reasonableness of its
fee request.
Local 776’s Evidence for its Attorney Fee Request
{¶23} Local 776 presented three exhibits and offered D’Angelo’s testimony
on cross-examination by Jack’s counsel in its attempt to carry its burden under
Bittner. Since this evidence is insufficient to establish that the number of hours
billed by D’Angelo was reasonable, we find that Local 776 has not carried its
burden to establish the reasonableness of its fee request.
{¶24} Courts have recognized that merely submitting an attorney’s
itemized bill is insufficient to establish the reasonableness of the amount of work
billed. Whitaker v. Kear, 123 Ohio App.3d 413, 424 (4th Dist. 1997); Climaco,
Seminatore, Delligatti & Hollenbaugh v. Carter, 100 Ohio App.3d 313, 324 (10th
Dist. 1995). Often, parties offer expert testimony to establish that the hours
charged was reasonable in light of the litigation’s particular facts. E.g., Hawkins
v. Miller, 11th Dist. No. 2011-L-036, 2011-Ohio-6005, ¶ 28 (affirming award of
attorney fees where expert testified to the amount of time and hourly rate
charged); Whitaker at 424-25 (affirming trial court’s finding that evidence was
sufficient to prove reasonableness of fee request where expert testified to the
reasonableness of the time spent on the litigation). Meanwhile, in some matters,
the requesting party refrains from offering expert testimony but instead offers
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testimony from other individuals to corroborate the attorney’s self-serving
testimony that the fee request is reasonable. E.g., Koblenz & Koblenz v. Summers,
8th Dist. No. 94806, 2011-Ohio-1064, ¶ 14 (affirming award of attorney fees in
collection action where both an attorney with the plaintiff law firm and a third
party attorney testified to the nature of the proceedings giving rise to the collection
action); Schottenstein, Zox & Dunn Co., L.P.A. v. Reineke, 9th Dist. No.
10CA0138-M, 2011-Ohio-6201, ¶ 26-28 (affirming award of attorney fees in
collection action where both an attorney with the plaintiff-law firm and the
defendant-client testified the nature of the proceedings giving rise to the collection
action).
{¶25} Here, Local 776 offered the Bill and D’Angelo’s testimony to show
that the amount of hours charged was reasonable. The Bill itself cannot show that
the amount of hours charged was reasonable since there is no indication in the Bill
itself that the work performed was necessary. As a result, D’Angelo’s testimony
could serve as the only possible basis for establishing the necessity and
reasonableness of the hours charged in the Bill.
{¶26} In considering D’Angelo’s testimony, we preliminarily note that
D’Angelo made his statement that the bill was reasonable for the amount of time
he spent on behalf of Local 776 before the trial court placed him under oath. It is
well-settled that a trial court may only receive testimony after a witness is placed
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under oath, R.C. 2317.30; Evid.R. 603, and the failure to place a witness under
oath precludes the consideration of a witness’s statement as evidence, Arcaro
Bros. Builders, Inc. v. Zoning Bd. of Appeals, City of N. College Hill, 7 Ohio St.2d
32, 33 (1966). As a result, D’Angelo’s statement about the reasonableness of the
Bill was non-testimonial, and we only consider D’Angelo’s statements after he
was placed under oath as evidence in support of Local 776’s attorney fee request.
{¶27} D’Angelo did testify that he removed duplicative entries from the
Bill before offering it into evidence. But this self-serving testimony does not, by
itself, prove that the amount of hours billed was reasonable and necessary for the
prosecution of the action. It merely proves that the time removed before the Bill’s
introduction was unreasonable. Further, a review of D’Angelo’s testimony reveals
that he offered no statements describing the complexity of the issues involved in
this matter, the ultimate goals of Local 776, and the adversarial nature of the
proceedings.3 Compare Reineke, 2011-Ohio-6201, at ¶ 26 (affirming award of
attorney fees in collection suit where the requesting attorney testified “at length”
regarding the complexity of the case, the aims of his client, and the adversarial
nature of the action).
{¶28} Absent expert testimony regarding the reasonableness of Local 776’s
fee request or in-depth testimony from either D’Angelo or another witness
3
D’Angelo’s testimony also suffers from other deficiencies. Most notably, he conceded that several of the
time entries in the Bill are for work on pleadings that were never filed.
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regarding the nature of this matter, the trial court would have to speculate as to the
reasonable amount of time necessary for the successful prosecution of this matter.
Such rank speculation is contrary to the guidance of Bittner and its progeny and
the trial court appropriately declined from engaging in it. Further, without the
necessary evidence to show the reasonableness of the amount of time charged in
the Bill, the trial court was unable to properly calculate the lodestar figure.
Consequently, we find that the trial court did not abuse its discretion in finding
that Local 776’s evidence did not satisfy its burden under Bittner to prove the
reasonableness of its fee request.
{¶29} We also note that Local 776’s evidence regarding the hourly rate
charged by D’Angelo and his law firm has three significant deficiencies. First,
when offering the OSBA publications, D’Angelo did not indicate which statistics
in the publications were relevant to the reasonableness of the hourly rates. As a
result, the trial court was left with no guidance from Local 776 as to how the
statistics in the voluminous OSBA publications applied to the hourly rates charged
by D’Angelo. Second, D’Angelo’s testimony obfuscated the proper statistic to
consider. For instance, he testified that his law firm was “full-service” but also
that he handled many union matters. Based on this conflicting testimony, it is
questionable whether the trial court should have compared the hourly rates in the
Bill to the typical hourly rates charged by general practice firms or the typical
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hourly rates charged by labor law firms.4 Third, Local 776 failed to offer any
evidence of D’Angelo’s reputation, experience, and ability, which is fatal to its
ability to prove the reasonableness of the hourly rates charged in the Bill.5 City of
Canton v. Irwin, 5th Dist. No. 2011CA00029, 2012-Ohio-344, ¶ 22 (reversing trial
court’s awarding of attorney fees on basis of $250 hourly rate where the
requesting party offered no evidence of the attorney’s reputation, experience, and
ability).
{¶30} Local 776 cites to Merillat in support of its contention that the Bill
and the OSBA surveys are sufficient to carry its burden under Bittner. However, a
review of Merillat reveals that it is inapposite to this matter. There, the requesting
party appealed the trial court’s award of attorney fees because it argued that the
award was too low. The court of appeals reversed the award for the following
reasons: (1) the trial court failed to account for fees incurred by law
clerks/paralegals; (2) the trial court arbitrarily reduced the hourly rate and total fee
award due to the billing practices of the non-requesting party’s attorney; and (3)
the trial court failed to award fees incurred during the preparation of the fee
request. Merillat, 2011-Ohio-6201, at ¶ 27-38. The court of appeals gave no
4
There are other portions of D’Angelo’s testimony that confuse the analysis of the hourly rates’
reasonableness. He testified that his law firm has five attorneys and is located in Toledo. It is questionable
based on this testimony whether the trial court should have considered the typical rates for law firms of the
same size, or whether it should have considered the typical rates for Toledo law firms or Northwestern
Ohio law firms.
5
In his closing argument on behalf of Local 776, D’Angelo stated that he had 16 years of experience.
However, this statement was not made while D’Angelo was under oath, which, as noted above, precludes it
from being considered as evidence.
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explicit or implicit indication that the requesting party’s bill and an OSBA survey
were sufficient to support its request. Consequently, none of the issues presented
in Merillat are under consideration here and the court of appeals’ decision there
has no bearing on our analysis.
{¶31} Local 776 also argues that since trial court judges are lawyers, they
are able to assess the reasonableness of fee requests without any corroborating
evidence, besides bills and OSBA surveys, directing them. Although trial court
judges may have experience and knowledge regarding the setting of fees, they
“must base the fee determination upon evidence adduced and cannot substitute
[their] own knowledge for evidence.” In re Wood’s Estate, 55 Ohio App.2d 67, 75
(10th Dist. 1977). Accordingly, we reject Local 776’s suggestion that trial court
judges are able to determine reasonable attorney fees without the necessary
evidence.
{¶32} In sum, the trial court did not abuse its discretion in finding that
Local 776 failed to present sufficient evidence to establish the reasonableness of
its fee request.
Consequences for Failure to Satisfy Bittner
{¶33} We now turn to determining the appropriate consequence for Local
776’s failure to carry its burden under Bittner. We can find no case explicitly
indicating the consequences that result from a party’s failure to prove the
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reasonableness of its request for statutorily-mandated attorney fees. As such, we
must resort to analysis by analogy to guide our review.
{¶34} The most analogous cases that we have found implicate contractual
provisions that mandate the awarding of attorney fees to a prevailing party in
breach of contract claims. For instance, in Unick, the parties entered into a
contract that included the following provision: “[i]n the event of a default * * *,
the defaulting party shall reimburse the nondefaulting party * * * for all costs and
expenses reasonably incurred by the nondefaulting party * * * in connection with
the default, including without limitation attorney’s fees.” (Emphasis added.)
Unick, 2011-Ohio-1342, at ¶ 6. The trial court entirely denied the attorney fee
award even though the contract required such an award because the requesting
party failed to carry its burden under Bittner. Id. at ¶ 21. The court of appeals
affirmed the denial and found that “when a prevailing party does not present
sufficient evidence to support a request for attorney’s fees, the trial court has the
discretion to deny the request in its entirety.” Id. at ¶ 33; see also Southeast Land
Dev., Ltd., 193 Ohio App.3d 465, 2011-Ohio-2341, at ¶ 15 (“If all elements of the
required proof are not provided, the trial court may deny the request for attorney
fees in its entirety.”); Stonehenge Land Co. v. Beazer Homes Invests., L.L.C., 177
Ohio App.3d 7, 2008-Ohio-148, ¶ 47 (10th Dist.) (affirming denial of attorney fees
where requesting party did not carry burden under Bittner even though the contract
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entitled the requesting party to an attorney fee award). In light of this case law, we
find that the mandatory nature of attorney fee awards under R.C. 4115.16(D) does
not preclude a trial court from denying attorney fees altogether where the
requesting party fails to provide sufficient evidence to establish the reasonableness
of its request. Without the discretion to entirely deny attorney fees, trial courts
would be required to engage in rank speculation and hand down awards that are
unsupported by the evidence, which is plainly a result that is not contemplated by
R.C. 4115.16(D).
{¶35} We acknowledge that an outright denial of attorney fees seems
inconsistent with R.C. 4115.16(D)’s compulsory language. But, other cases
involving statutorily-mandated fee awards have implicitly recognized that trial
courts are empowered to deny all attorney fees if the requesting party fails to carry
its burden. In Szczotka, the court of appeals addressed the awarding of statutorily-
mandated attorney fees under R.C. 2107.75. There, the court reversed the trial
court’s denial of attorney fees, but only because it failed to enumerate its
reasoning for the denial. Szczotka, 2006-Ohio-1449, at ¶ 31. It further remanded
the matter so that the trial court could provide its basis for the denial. This
disposition indicates that an outright denial of statutorily-mandated attorney fees is
appropriate provided that the trial court provides its reasoning and that its
reasoning is compliant with Bittner.
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Case No. 6-12-06
{¶36} Based on the foregoing, the trial court in this matter was empowered
to entirely deny Local 776’s awarding of attorney fees provided that Local 776
failed to carry its burden under Bittner. Consequently, the trial court did not abuse
its discretion in doing so.
Court Costs
{¶37} R.C. 4115.16(D) also mandates that a non-prevailing party reimburse
the prevailing party for the court costs it incurred in prosecuting the action.
Unlike requests for attorney fees, there is no burden on the prevailing party to
prove the reasonableness of its court cost request. Here, the trial court did not
order that Jack’s pay the court costs incurred by Local 776. This failure
contravenes the requirements of R.C. 4115.16(D) and constitutes reversible error.
Accordingly, we reverse the trial court’s order insofar as it fails to award court
costs to Local 776.
{¶38} In sum, Local 776 had the burden of proving the reasonableness of
its attorney fee request and it failed to prove that the amount of hours charged by
its attorney were reasonable to the prosecution of this action. As a result, the trial
court did not abuse its discretion in finding that Local 776 failed to carry its
burden under Bittner and it appropriately exercised its discretion in denying Local
776’s fee request in its entirety. However, the trial court did err in failing to award
court costs to Local 776.
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{¶39} Accordingly, we overrule in part and sustain in part Local 776’s sole
assignment of error.
{¶40} Having found error prejudicial to Local 776, in the particulars
assigned and argued in part in its sole assignment of error, we affirm in part and
reverse in part the judgment of the trial court, and remand for further proceedings
consistent with this opinion.
Judgment Affirmed in Part,
Reversed in Part and,
Cause Remanded
PRESTON, P.J. and WILLAMOWSKI, J., concur.
/jlr
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