Christen v. Continental Ents., Ltd. ( 2020 )

[Cite as Christen v. Continental Ents., Ltd., 2020-Ohio-3665.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOHN CHRISTEN, :
Plaintiff-Appellee, :
No. 108736
v. :
CONTINENTAL ENTERPRISES, :
LTD., ET AL.,
:
Defendants-Appellants.
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: July 9, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-17-879680
Appearances:
The Law Office of Michael Dylan Brennan L.L.C., and
Michael Dylan Brennan, for appellee.
Ted S. Friedman, for appellants.
MARY EILEEN KILBANE, J.:
Defendants-appellants, Continental Enterprises Ltd. (“Continental”),
appeals from the order of the trial court that awarded attorney fees to plaintiff-
appellee, John Christen (“Christen”).
For the reasons that follow, we affirm the trial court and remand for
a final determination of the final amount of fees owed.
I. FACTUAL BACKGROUND
Alan Pearlman (“Pearlman”) is the managing member of Continental,
which owns two 66-unit apartment buildings at 3341 and 3351 Warrensville Center
Road, Shaker Heights, Ohio 44122.1 Christen is a resident of Virginia and an
employee of General Electric. His work sometimes required him to stay in the
Cleveland area for extended periods of time, which led him to rent an apartment in
the area.
Christen and Continental entered into a written lease for Christen’s
rental of apartment 406 located at 3351 Warrensville Center Road, Shaker Heights,
Ohio. Christen was the tenant and Continental the landlord. Pursuant to the lease,
rent was $1,050 per month. Christen tendered a security deposit to Continental in
the amount of $925. The security amount included a $75 deposit for a garage door
opener. Apartment 406 is on the top floor of the flat-roofed apartment building.
The lease term began on November 5, 2014. It ran for thirteen
months and automatically renewed for another year on December 31, 2015, unless
Christen provided written notice of termination by October 31, 2015. Christen did
not seek to terminate the lease in October 2015, so the lease automatically renewed
1 Christen named Pearlman a defendant in his personal capacity in the
underlying complaint because it was unclear whether Pearlman had failed to
maintain formalities as the managing member of Continental and might, therefore,
be personally liable to Christen. Before trial, the trial court granted Christen’s oral
motion to dismiss Pearlman. Pearlman is not party to this appeal.
for a one-year term that automatically terminated on December 31, 2016. It is
undisputed that Christen paid all rent due under the lease.
Around March 30, 2016, Christen noticed some water damage that
originated in the ceiling of the bathroom and leaked down the wall. Christen
reported this damage to Pearlman by email. Christen also informed Pearlman that
his garage door opener was not working and that he expected to be in Cleveland for
work less often and asked when he could call Pearlman to discuss possibly
terminating the lease early. Pearlman responded by email the next day, writing “You
can call me when you have the garage door opener with you and I will tell you how
to reprogram it. We will investigate the roof leak.”
On April 4, 2016, Christen emailed Pearlman to ask whether anyone
had looked at the damage in his apartment and checked the roof. The same day,
Pearlman replied that he was waiting for the water on the roof to dry up in order to
find the “small opening that is causing the leak into your apartment.” Pearlman did
not repair the interior water damage in Christen’s apartment. Pearlman testified
that he intended to wait to repair the damage until Christen moved out at the end of
the year.
In the summer of 2016, Christen’s work took him to Cleveland less
often. During one of his infrequent stays at his apartment, he noticed that the
interior water damage had not been repaired. Other tenants also emailed Pearlman
to complain about water damage in their apartments, but the emails themselves
were inadvertently permanently deleted before this litigation began. Christen also
noticed that his air conditioner was out of service and testified that it blew hot air
into his apartment. He often did not stay at the apartment that summer due to the
broken air conditioning.
On June 29, 2016, Christen emailed Pearlman for an update on the
leaky ceiling, although he did not notice any new damage at that time. Christen
again informed Pearlman that the air conditioning was still not working. Neither
Pearlman nor Continental responded to this email. Christen believed someone
eventually repaired the air conditioning and it worked periodically thereafter.
However, he testified that the water damage to the wall remained in the same
condition throughout his tenancy as when he first noticed the damage in March
2016.
On December 22, 2016, Christen notified Pearlman by email that he
was moving out and asked where he should leave the keys. Pearlman responded
that he should leave the keys in the rental deposit box in an envelope with his name
on it. Christen hired cleaners to clean the apartment before he moved out. He
vacated the premises on the 22 or 23 of December 2016 and left the keys in the box
as instructed. Christen testified that he included a note with the keys that provided
his forwarding address for the return of his security deposit. Before leaving the
apartment, Christen took a photograph of the still-unrepaired water damaged wall
that had been in that condition since March 2016.
On January 31, 2017, Pearlman emailed Christen to inform him that
his security deposit of $925 would not be returned. Pearlman claimed $75 for the
unreturned garage door opener; $700 to repair and replace the water-damaged wall;
and $150 to refinish the stained bathtub. Pearlman claimed the water damage was
due to Christen’s failure to notify Pearlman of the damage when it first occurred.
Christen was willing to pay the $75 for the garage door opener, but disputed the
deductions for the water-damaged wall and bathtub repairs. He claimed that his
emails in March, April, and June notified Pearlman of the water damage and that
the bathtub was not stained when he vacated the apartment. Pearlman refused to
return the security deposit.
II. PROCEDURAL BACKGROUND
Christen believed he was entitled to the security deposit and engaged
counsel at a rate of $250 per hour on April 21, 2017, to recover his deposit. Around
April 25, 2017, Christen’s counsel sent a letter to Pearlman that requested payment
of the $925 security deposit, $925 in statutory damages, and $500 in legal fees to
that date. It is not clear based on the record whether Pearlman or Continental
(collectively “Landlords”) responded, but they did not return the security deposit at
that time.
On May 2, 2017, Christen filed a complaint against Continental and
Pearlman. Christen brought one count against Continental and a second against
Pearlman personally. Both counts sought to recover the $925 security deposit,
damages, and reasonable attorney fees under R.C. 5321.16.
On July 6, 2017, Landlords filed an answer and counterclaim on July
6, 2017. They denied Christen’s allegations and sought damages in the amount of
$5,000.00 for Christen’s alleged violations of R.C. 5321.05(A)(1) and (5). They also
sought reasonable attorney fees pursuant to R.C. 5321.05(C)(1). Landlords claimed
they were entitled to damages for the cost of the bathtub and water damage repairs
and also to several months’ rent payments during which the apartment allegedly
could not be rented due to the condition in which Christen left the apartment. Both
parties filed motions to dismiss. The trial court denied both motions.
By telephone conference on July 24, 2017, the trial court ordered that
discovery be completed by October 24, 2017, and set trial for April 4, 2018. At a
pretrial hearing on October 24, 2017, the court extended the discovery deadline to
December 15, 2017. The parties failed to settle at the final pretrial hearing on
February 22, 2018. At Landlords’ unopposed request for continuance, the trial was
postponed and reset for June 20, 2018.
On May 25, 2018, Christen moved for a protective order and to
compel written discovery responses from Landlords. Christen attached
correspondence between the parties’ counsel that detailed the deficiencies. He
sought a protective order preventing Landlords from taking the deposition of
Christen before they had answered his written discovery, which he served on
September 14, 2017.
The motion to compel sought separate discovery responses from
Continental and Pearlman. Christen claimed that Continental provided incomplete
responses and that Pearlman had not responded at all to Christen’s document
requests, requests for admission, and interrogatories. In particular, Christen sought
from Continental documents related to the history and maintenance of the
apartment building roof, documents relating to alleged repairs, and documents
related to the counterclaim. Christen claimed that Continental had failed to produce
any documents except for a few photos. Christen further claimed he had to postpone
depositions of Continental and Pearlman due to their delinquent written discovery
responses.
The court held another telephone conference on June 6, 2018.
Afterwards, the court extended the written discovery deadline to June 22, 2018, and
ordered that depositions be completed by August 3, 2018. The court postponed the
trial date to September 24, 2018.
Pearlman moved for summary judgment on May 30, 2018. The court
denied summary judgment on September 19, 2018, stating that “defendant filed the
motion out of rule.”
The court held a pretrial on July 12, 2018, at which the court ordered
Pearlman’s deposition to take place on July 27, 2018, at the courthouse. The court
also noted that it would hold Christen’s motion to compel in abeyance until after
Pearlman’s deposition.
On September 19, 2018, the trial was cancelled and the case was
referred to arbitration to occur on October 23, 2018. The arbitration panel found
for Christen on the complaint and counterclaim, but did not award attorney fees.
Afterwards, Christen’s counsel sent correspondence to Landlords’ counsel dated
November 16, 2018. The letter was a post-arbitration settlement demand that
requested the security deposit, statutory amount, and attorney fees incurred to date.
Christen’s November 2018 demand sought payment of $1,700 plus $13,862.20 in
attorney fees for a total of $15,562.20. Again, the record does not clarify whether
Landlords responded, but it is clear that the parties did not settle at that time. On
November 21, 2018, Christen appealed the arbitration on the grounds that the
arbitration panel failed to award attorney fees pursuant to R.C. 5321.16.
The court set trial for March 25, 2019. The parties failed to settle at
the final pretrial held on March 7, 2019. Both parties filed trial briefs. The bench
trial proceeded as scheduled between Christen and Continental after the court
granted Christen’s oral motion to dismiss Pearlman. The court heard testimony
from Christen and Pearlman and entered judgment for Christen on count one of the
complaint, the only count against Continental. The trial court also found for
Christen on Continental’s counterclaim.
The court awarded Christen the $925.00 security deposit, less the
$75.00 cost of the garage door opener that he failed to return. The court also
awarded Christen damages in the amount of $850.00 pursuant to R.C. 5321.16(C)
for the amount of the security deposit wrongfully withheld. In total, the court
awarded Christen $1,700.00 and reasonable attorney fees pursuant to the same
statute. Continental did not appeal from this judgment.
A separate hearing on attorney fees proceeded on May 29, 2019.
Christen testified at the hearing. He stated that he had engaged counsel at a rate of
$250 per hour on April 21, 2017, and that he had received three invoices from
counsel: (1) an invoice dated May 2017 in the amount of $2,031.95; (2) an invoice
dated June 27, 2017, in the amount of $550; and (3) an invoice dated April 24, 2019,
in the amount of $20,180.25. The invoices included amounts for attorney fees and
expenses. He also testified that counsel informed him that Christen was responsible
for the expert witness’s fees in the amount of $1,720. On cross-examination,
Christen testified that he had paid in full the amounts in the first two invoices.
Christen presented Douglas Whipple (“Whipple”), a litigation
attorney with nearly forty years’ experience, as an expert witness. Whipple testified
that he reviewed Christen’s case file, including the engagement letter; pleadings;
statutes, rules, and case law related to attorney fees; motions; journal entries; trial
briefs; the final judgment entry; and all three invoices for attorney fees and
expenses. He also testified that he reviewed Christen’s counsel’s background and
civil litigation experience.
Whipple offered opinions to a reasonable degree of professional
certainty. He acknowledged that the attorney fees far exceeded the amount of the
security deposit Christen sought to recover, but considered the fees reasonable
because it was Landlords that caused the attorney fees to be so much higher than
the security deposit. He specifically referenced that Continental refused to return
the security deposit at any time before trial and brought a counterclaim. Both of
those actions, in his opinion, rendered the attorney fees reasonable even though they
exceeded the amount of the security deposit. He also opined Christen’s counsel had
to file a protective order, a motion to compel, and had the additional burden of
conducting Pearlman’s deposition in the trial court’s jury room because it had to be
held under the court’s supervision. Further, according to Whipple’s testimony,
Continental and Pearlman had been civil defendants on seventeen prior occasions.
Whipple also considered that arbitration and trial would not have
been necessary had Landlords returned the security deposit in the first instance or
agreed to return the deposit and pay statutory damages and attorney fees at some
earlier date. He specifically referenced the letters from Christen’s counsel to
Pearlman dated April 25, 2017, and November 16, 2018, in which Christen requested
payment of the security deposit, damages, and legal fees to that date.
Whipple further pointed out that Christen’s counsel was unable to
work on other cases for other clients while working on Christen’s case. He testified
that $250 per hour plus expenses was a reasonable fee. He stated that he would have
expected a reasonable fee to range between $225 to $280 per hour and noted that
he would not have taken the case for less than $250 per hour.
Regarding the invoices, Whipple testified that he reviewed each
invoice line by line and that each invoice was reasonable and the charges necessary.
He did not find any instance in which the hours were unreasonable for the task. He
noted that Christen’s counsel charged a lot of hours to depose Pearlman, but opined
that the hours were reasonable because Landlords did not cooperate toward the
completion of the deposition. Continental cross-examined Christen, Whipple, and
Christen’s counsel at the fee hearing; Continental did not offer any of its own
witnesses.
On June 7, 2019, the court stated that it had considered all exhibits,
Whipples’ expert report, case law, and witness testimony and entered judgment in
Christen’s favor. The court found that $23,500.00 in attorney fees reasonable under
R.C. 5321.16(C). The June 7, 2019 judgment entry stated:
Hearing held on 5/29/2019 regarding attorney’s fees for plaintiff’s
counsel. Counsel for plaintiff present. Plaintiff John Christen present.
Counsel for defendant present. Defendant Alan Pearlman present.
Court reporter present. The court has considered all exhibits, plaintiff’s
expert report, case law referenced and testimony including that from
plaintiff’s expert. The court finds attorney’s fees reasonable in the
amount of $23,500.00. It is so ordered. Court cost assessed to the
defendant(s). Notice issued
On June 10, 2019, the court provided another judgment entry
directing Continental to pay the $23,500.00 “to plaintiff’s counsel.” The June 10,
2019 judgment entry states:
This entry is to further clarify the courts 6/7/2019 entry. The court
finds plaintiff’s attorney’s fees are reasonable in the amount of
$23,500.00 the court further directs defendant [C]ontinental
[E]nterprises [L]td[.], et al[.] to pay this amount to plaintiff’s counsel.
Notice issued.
It is from the award of attorney fees that Continental now appeals.
Continental assigned three assignments of error:
Assignment of Error One
The trial court erred when it determined that the Plaintiff was entitled
to $23,000.00 in attorney fees pursuant to R.C. § 5321.16(C), based on
a claim to recover a $850.00 security deposit. This award included
attorney fees attributable to all claims that were litigated in the case.
However, R.C. § 5321.16(C) only entitled the Plaintiff to attorney fees
that were solely attributable to the Plaintiff’s security deposit claim.
Assignment of Error Two
The trial court’s award of $23,500.00 in attorney fees was an abuse of
discretion because the award was disproportionate and unreasonable
compared to the $850.00 security deposit that the Plaintiff sought to
recover.
Assignment of Error Three
The trial court’s clarification entry of 6/10/2019 is an abuse of
discretion as Plaintiff’s counsel is not a party to this action.
For the reasons that follow, we affirm the trial court.
III. STANDARD OF REVIEW
“Determination of the amount to be awarded for reasonable attorneys
[sic] fees under § 5321.16 lies within the sound discretion of the trial judge.”
Hoerner v. Gms Mgt. Co., 8th Dist. Cuyahoga No. 46736, 1983 Ohio App. LEXIS
14501, 5-6 (Dec. 15, 1983). “We review a trial court’s award of attorney fees for abuse
of discretion.” Davis v. Wesolowski, 8th Dist. Cuyahoga No. 108606, 2020-Ohio-
677, ¶ 27. A trial court abuses its discretion where its decision is unreasonable,
arbitrary or unconscionable. Bales v. Forest River, Inc., 8th Dist. Cuyahoga No.
107896, 2019-Ohio-4160, ¶ 21, citing Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983).
“A decision is unreasonable if there is no sound reasoning process
that would support that decision.” Id., quoting AAAA Ents. Inc. v. River Place
Community Urban Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
“A trial court also acts unreasonably and abuses its discretion when ‘the amount of
fees determined is so high or so low as to shock the conscience.’” Id., quoting Bittner
v. Tri-County Toyota, Inc., 58 Ohio St.3d 143, 146, 569 N.E.2d 464 (1991).
“[E]vidence of reasonableness ‘may take the form of testimony,
affidavits, answers or other forms of sworn evidence. As long as sufficient evidence
is presented to allow the trial court to arrive at a reasonable attorney fee award, the
amount of the award will not be disturbed absent an abuse of discretion.’” Cleveland
v. CapitalSource Bank, 8th Dist. Cuyahoga No. 103231, 2016-Ohio-3172, ¶ 13,
quoting R.C.H. Co. v. 3-J Machining Serv., 8th Dist. Cuyahoga No. 82671, 2004-
Ohio-57, ¶ 25.
IV. LAW AND ANALYSIS
As an initial matter, we note that the trial court did not set forth the
exact reasons for only awarding $23,500 rather than the claimed $24,482.20.
However, the court did hold a separate hearing on attorney fees and stated that it
reviewed all the evidence and relevant case law. In particular, the court heard expert
testimony from Whipple, who opined that the fees were reasonable in light of the
factors set forth in Prof.Cond.R. 1.5(a). We find that the record is sufficient for us to
address Continental’s assignments of error and make the determination that the
trial court did not abuse its discretion. See Hoerner v. Gms Mgt. Co., 8th Dist.
Cuyahoga No. 46736, 1983 Ohio App. LEXIS 14501, 7-8 (Dec. 15, 1983) (affirming
attorney fee award where the trial court heard expert testimony at a fee hearing and
mentioned code provisions relevant to fee awards in the judgment opinion.);
Blisswood Village Home Owners Assn. v. Cleveland Community Reinvestment,
LLC, 8th Dist. Cuyahoga No. 105450, 2018-Ohio-2299, ¶ 23 (affirming award of
attorney fees as discovery sanction and under R.C. 5311.18(A)(1)(b) where nothing
in the record indicated the award was unreasonable, arbitrary, or unconscionable
and the trial court relied on an affidavit attesting to the award’s reasonableness).
A. Assignment of Error One
In its first assignment of error, Continental argues that the attorney
fee award is unreasonable because it exceeds the amount of the security deposit
wrongfully withheld. Continental contends that the fee award must relate solely to
the fees attributable to Christen’s security deposit claim under R.C. 5321.16 against
Continental and not to any fees incurred in pursuing the security deposit claim
against Pearlman, who was dismissed before trial. In particular, Continental claims
that R.C. 5321.16 does not allow Christen to recover fees incurred in pursuing the
security claim against Pearlman because the claim against Pearlman involved
separate elements and separate facts apart from Christen’s claim against
Continental. We find no merit to Continental’s first assignment of error.
R.C. 5321.16(B) and (C) provides:
(B) Upon termination of the rental agreement any property or money
held by the landlord as a security deposit may be applied to the
payment of past due rent and to the payment of the amount of damages
that the landlord has suffered by reason of the tenant's noncompliance
with section 5321.05 of the Revised Code or the rental agreement. Any
deduction from the security deposit shall be itemized and identified by
the landlord in a written notice delivered to the tenant together with
the amount due, within thirty days after termination of the rental
agreement and delivery of possession. The tenant shall provide the
landlord in writing with a forwarding address or new address to which
the written notice and amount due from the landlord may be sent. If
the tenant fails to provide the landlord with the forwarding or new
address as required, the tenant shall not be entitled to damages or
attorneys fees under division (C) of this section.
(C) If the landlord fails to comply with division (B) of this section, the
tenant may recover the property and money due him, together with
damages in an amount equal to the amount wrongfully withheld, and
reasonable attorneys fees.
“It is well settled that attorney fees are mandatory when a security
deposit is wrongfully withheld.” Davis v. Wesolowski, 8th Dist. Cuyahoga No.
108606, 2020-Ohio-677, ¶ 30, quoting Smith v. Padgett, 32 Ohio St.3d 344, 513
N.E.2d 737 (1987), paragraph three of the syllabus; see also Jensen v. Blvd. Invest.
Ltd., 8th Dist. Cuyahoga No. 103658, 2016-Ohio-532. “[T]he award of attorney fees
must relate solely to the fees attributable to the tenant’s security deposit claim under
R.C. 5321.16, and not to any additional claims.” Smith v. Padgett at 349. A “tenant
may not use R.C. 5321.16(C) to recover attorney fees attributable to the additional
claims.” Id. at 349-350. See also Lloyd v. Roosevelt Properties, 8th Dist. Cuyahoga
No. 105721, 2018-Ohio-3163, ¶ 42, citing Padgett at 349. However, “courts have
awarded attorney fees that relate to both the security deposit claim and to defending
against a landlord’s counterclaim for alleged damages and/or unpaid rent when
such claims are virtually indivisible.” Lloyd at ¶ 41, citing Lacare v. Dearing, 73
Ohio App.3d 238, 241-242, 596 N.E.2d 1097 (11th Dist.1991); Buck v. Georgian
Manor Invests., 8th Dist. Cuyahoga No. 67170, 1995 Ohio App. LEXIS 1254 (Mar.
30, 1995).
Continental primarily relies on Lloyd v. Roosevelt Properties, Ltd. for
its argument, but its reliance is misplaced. In Lloyd, the tenant filed a complaint
asserting negligence, wanton misconduct, breach of warranty of habitability,
constructive eviction, breach of contract, and return of security deposit under R.C.
5321.16. The landlord filed a counterclaim for unpaid rental payments. The trial
court awarded the tenant attorney fees. On appeal, the court held that the trial
court’s award of attorney fees was too broad because it included fees incurred in
connection with all the other claims that were distinguishable from the tenant’s
security deposit claim. Id. at ¶ 44-48. Lloyd reasoned that the other claims were
distinguishable from the security deposit claim because, unless there was property
damage, the tenant was entitled to the security deposit; no property damage was
alleged. Id. at ¶ 46-47.
Continental argues that Christen’s claim against Pearlman involved
separate elements and facts that prohibit Christen from recovering fees in pursuit of
that claim. Continental contends that this assertion is supported by the fact that
Christen served separate discovery requests to Christen and Pearlman. We find that,
unlike in Lloyd, all of Christen’s attorney fees were incurred to recover his security
deposit under R.C. 5321.16. Although the discovery requests to Continental and
Pearlman were not identical, they were substantially similar and it is unlikely that
Christen’s fees would have been significantly different had he only prepared one set
of discovery. More importantly, serving separate discovery requests does not
change the fact that Christen conducted all discovery in this case to pursue his
security deposit claim.2
Similarly, that Christen’s claim against Pearlman was voluntarily
dismissed before trial also does not change that all Christen’s fees were incurred in
pursuit of his security deposit claim. Christen represented that he raised the claim
against Pearlman because it was unclear whether Pearlman had maintained the
appropriate formalities as managing member of Continental to avoid personal
liability for the security deposit claim. Regardless of Pearlman’s personal liability
and, even if he had not been a named defendant in the complaint, Christen certainly
would have deposed Pearlman as managing member of Continental.
There is no support in the record or relevant case law that would allow
us to conclude that Christen cannot recover attorney fees for his security deposit
claim against Pearlman. Accordingly, we find that the trial court did not abuse its
discretion in awarding fees related to Christen’s pursuit of his security deposit claim
against Pearlman. Continental’s first assignment of error is overruled.
B. Assignment of Error Two
Continental argues in its second assignment of error that the trial
court’s fee award of $23,500 was an abuse of discretion because the award is
2 We also note that Christen is entitled to recover fees spent defending against the
counterclaim. Unlike in Lloyd, the counterclaim did not include a claim for unpaid rents
and the determination of Christen’s security deposit claim was indivisible from
Continental’s counterclaim. In order to prevail on his security deposit claim and against
Continental’s counterclaim, Christen had to show that he was not responsible for the
property damage alleged in Continental’s counterclaim.
disproportionate to the $925 security deposit Christen sought to recover, of which
the court awarded $850. Continental identifies four grounds for its contention that
the fee award is unreasonable: (1) the invoices of Christen’s counsel include four
entries that include block-billing; (2) counsel submitted duplicate bills; (3) the
invoices included charges for 42 emails over the course of the litigation that
amounted to $2,100.00; and (4) the invoices included charges for nonrecoverable
items like expert witness reports and expenses related to the issue of attorney fees
that were not related to recovering the security deposit. None of Continental’s
arguments reveal an abuse of discretion.
Continental first claims that it was an abuse of discretion to award
fees based on block-billed time entries in violation of State ex rel. Harris v. Rubino,
156 Ohio St.3d 296, 2018-Ohio-5109, 126 N.E.3d 1068. We find that Rubino does
not preclude an award of fees based on block-billed entries in this case.
In Rubino, the Ohio Supreme Court clarified that it “will no longer
grant attorney-fee applications that include block-billed time entries.” Rubino at
¶ 7. The court explained that block billing makes it difficult to determine whether
time spent on a particular task was reasonable. Id. at ¶ 6. While we note that the
best practice is to submit bills with separate time entries for each task, any block-
billing that occurred in this case would not have prevented the trial court from
determining that the time spent in pursuit of the security deposit claim was
reasonable. See Rubino at ¶ 6. As discussed, all the claims and counterclaims in this
case involved issues solely related to Christen’s security deposit claim under R.C.
5321.16 and reasonable fees were to be awarded in pursuit of that claim. Thus, the
award of block-billed fees cannot constitute an abuse of discretion under these
circumstances.
Second, Continental argues that the fee award was unreasonable
because the invoices reflect duplicate charges for the same tasks. Continental
identified one such duplication for a task completed on October 17, 2017. The
duplication amounted to $75. Our review of the invoices reveals two other duplicate
charges, one on May 30, 2018, for $50 and another on October 20, 2018, for $50.
Christen presented evidence and sought a fee award of $24,482.20, but the trial
court awarded $23,500 in fees. The record demonstrates that the trial court reduced
the award by more than the duplicative amount of $175. The mere existence of a few
duplicative charges on the bill does not demonstrate that the award was
unreasonably, arbitrarily, or unconscionably high where, as here, the record
supports that the trial court deducted enough from the award to account for the
duplicative amounts.
Third, we find no basis to find that awarding fees for email
communications between counsel and his client was an abuse of discretion. We first
note that counsel was required to maintain reasonable contact with Christen
throughout the case pursuant to Prof.Cond.R. 1.4(a). In addition, Whipple testified
at the fee hearing that the charges for the email correspondence were reasonable
given the length and complexity of the case. Christen engaged counsel on April 21,
2017. The bench trial occurred nearly two years later on March 25, 2019, after an
arbitration on October 23, 2018. Considering Whipple’s testimony, the length of the
case, and the necessity that attorneys communicate with their clients, the trial court
did not abuse its discretion to the extent it awarded fees based on email
correspondence between Christen and his counsel.
Finally, we find no abuse of discretion regarding costs and expenses
incurred to recover attorney fees, such as obtaining Whipple’s expert report. The
Ohio Supreme Court has held a “commonly accepted view of the purpose underlying
this statute [R.C. 5321.16] is that attorney fees are provided for in order to ensure
the return of wrongfully withheld security deposits at no cost to tenants.” Christe v.
Gms Mgt. Co., 88 Ohio St.3d 376, 378, 2000-Ohio-351, 726 N.E.2d 497. See also
Bales v. Forest River, Inc., 8th Dist. Cuyahoga No. 107896, 2019-Ohio-4160, ¶ 43
(awarding portion of fees and costs incurred in seeking recovery of attorney fees,
including fees related to expert costs).
Further, preparing for and attending the fee hearing, including
obtaining Whipple’s expert report, relate to Christen’s recovery of reasonable
attorney fees under R.C. 5321.16 in connection with his security deposit claim. “It is
well established that the time spent in establishing entitlement to an amount of
attorney fees is compensable. Counsel is also entitled to fees for his representation
during the appellate process.” (Citations omitted.) Turner v. Progressive Corp.,
140 Ohio App.3d 112, 117-118, 746 N.E.2d 702 (8th Dist.2000). To deny Christen
recovery for such fees would violate the purpose of the statute and require Christen,
an out-of-state plaintiff who twice prevailed on the merits of his security deposit
claim, to bear the costs of recovering his security deposit from Continental.
In sum, based on our review of the record, we do not find that the trial
court abused its discretion in awarding $23,500 in attorney fees. Christen presented
three invoices that totaled $22,762.20 and also sought recovery of expert fees in the
amount of $1,720, which brought his total fee request to $24,482.20. The trial court,
upon reviewing the testimony, expert testimony, and exhibits presented at the fee
hearing, determined that a fee award of $23,500 was reasonable. Nothing in the
record indicates the award was unreasonable, arbitrary, or unconscionable.
Christen’s expert, Whipple testified to a reasonable degree of
certainty that Christen’s counsel’s rate and hours were reasonable and necessary.
Further, Continental vigorously defended Christen’s action and prosecuted a
counterclaim up to and including trial. As Whipple testified, the fees in this case are
largely the result of Continental’s contentious behavior throughout the proceedings.
From the start, Christen only sought the return of his $925 security deposit,
statutory double damages, and reasonable fees. The parties apparently could not
reach a reasonable settlement before Christen filed suit or anytime thereafter,
including after the arbitration panel found in Christen’s favor on the merits of the
complaint and counterclaim. During discovery, Christen had to file a motion for
protective order and to compel written discovery from Christen and Pearlman. In
addition, Pearlman’s deposition had to be conducted at the courthouse under the
court’s supervision, due to Pearlman’s lack of cooperation in the discovery process.
There is also evidence in the record to support some deduction in the
amount of the award from what Christen claimed. As discussed, there were four
instances of double-billing that amounted to $175 and the trial court’s deduction is
sufficient to cover that amount. Therefore, the award does not constitute an abuse
of discretion and we will not disturb the award.
Accordingly, we overrule Continental’s second assignment of error.
C. Assignment of Error Three
In its third assignment of error, Continental argues that the trial
court’s June 10, 2019 judgment entry is an abuse of discretion because it orders
Continental to pay the fee award to Christen’s counsel rather than to Christen. We
find that this assignment of error lacks merit. “When a tenant has actually incurred
no out-of-pocket attorney fees, the amount of fees determined to be proper should
be awarded directly to the attorney or organization that provided the legal services.”
Gaitawe v. Mays, 2d Dist. Montgomery No. 25083, 2012-Ohio-4749, ¶ 10, citing
Lewis v. Romans, 70 Ohio App.2d 7, 10, 433 N.E.2d 622 (8th Dist.1980) (awarding
fees directly to Legal Aid Society where tenant it represented did not incur any legal
expenses). Christen testified that he has only paid a portion of his counsel’s legal
fees. Accordingly, we do not find an abuse of discretion in the trial court ordering
Continental to pay the fee award to Christen’s counsel directly.
Continental’s third assignment of error is overruled.
Judgment affirmed and remanded for a final determination of the
amount owed.
It is ordered that appellee recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
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MARY EILEEN KILBANE, JUDGE
MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR