Estate of Shury v. Cusato ( 2024 )

[Cite as Estate of Shury v. Cusato, 2024-Ohio-2066.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
ESTATE OF DONALD SHURY, :
GREGORY W. KLUCHER AND
ELIZABETH KLUCHER REYNOLDS, No. 112960
ADMINISTRATORS :
Plaintiffs-Appellees, :
v. :
PAUL CUSATO, ET AL., :
Defendants-Appellants. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: May 30, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-19-918245
Appearances:
Nicola, Gudbrandson & Cooper, LLC, and Nicholas J.
Dertouzos, for appellees.
Kehoe & Associates, LLC, Robert D. Kehoe, and Kevin P.
Shannon, for appellants.
EMANUELLA D. GROVES, J.:
Defendants-appellants, Paul Cusato (“Cusato”) and Growler
Restoration, Inc. (“Growler”) (collectively “Appellants”), appeal the amount of
attorney fees awarded to them by the trial court. For the following reasons, we
affirm the decision of the trial court but remand for the trial court to amend its
journal entry.
Facts and Procedural History
This is the parties’ second appeal before us. See Shury v. Cusato, 2022-
Ohio-4401, 203 N.E.3d 175 (8th Dist.) (“Shury I”). For ease of analysis, we will only
review the facts that are relevant to this case. Detailed facts of the case can be found
in Shury I. This case was originated by plaintiff-appellee Donald Shury1
(“Appellee”) filing a replevin and conversion action against Appellants for a vintage
1963 Jaguar XKE. Both parties asserted numerous claims against the other.
Ultimately, the jury decided in favor of (1) Appellants and against
Appellee on Appellee’s Consumer Sales Practices Act (“CSPA”) claim in Count 1 of
the complaint; (2) Appellants and against Appellee on the breach of contract and
quantum meruit claims in Counts 2 and 3 of appellants’ counterclaim; and (3)
Appellee on Appellants’ defamation and commercial disparagement claims in
Counts 4 and 5 of Appellants’ counterclaim. Appellee’s second claim in Count 2 of
the complaint and all of Appellants’ other counterclaims were dismissed.
Appellants, as the prevailing party on the CSPA claim, sought attorney fees, which
1 A suggested notice of death was filed for Donald Shury in the trial court.
Appellants moved to substitute the Estate of Donald Shury and Administrators Gregory
W. Klucher and Elizabeth Klucher Reynolds as plaintiffs-appellees, which this court
granted on January 11, 2024.
the trial court denied. Appellants appealed the trial court’s decision denying
attorney fees among other decisions.
On appeal, this court found that the trial court erred and abused its
discretion in denying an award of attorney fees to the Appellants under the CSPA
when the evidence supported that the claim was brought and maintained in bad
faith. The issue of attorney fees was remanded to the trial court.
Upon remand, on December 15, 2022, the trial court declared by
journal entry its intent to satisfy this court’s mandate by using the evidence from a
December 8, 2021 attorney-fee hearing. On May 12, 2023, Appellee filed a motion
that requested an additional evidentiary hearing. Appellants agreed in their
response to the journal entry and requested a hearing as well. The trial court elected
not to hold additional hearings, and on June 12, 2023, the trial court filed the
following journal entry that reads in part:
Having considered all of the evidence produced at the attorney’s fees
hearing held on December 8, 2021, and cognizant of the relevant case
authority on the assessment of attorney’s fees attributable to an OCSPA
claim where legal work was also done on different causes of action and
some of the fees sought are for work not exclusively related to the
OCSPA claim, judgment for the recovery of attorney fee’s under R.C.
1345.09(F) is hereby entered in favor of plaintiff Paul [sic] Shury and
against defendants/counterclaimants Paul Cusato and Growler
Restorations, Inc., jointly and severally, in the amount of $42,820.67.
This amount includes no fees incurred before the OCSPA claim was
asserted on December 24, 2019, and for fees incurred after that date
includes a deduction for the amount of legal work reasonably estimated
to have been performed on matters not connected to the defense of the
OCSPA claim.
Journal entry dated June 12, 2023.
Subsequently, Appellants filed a motion to alter or amend judgment to
reflect that the award of attorney fees was to Appellants and for findings of fact and
conclusions of law that was denied. Appellants filed an appeal and raise the
following assignments of error.
Assignment of Error No. 1
The trial court failed to follow the mandate of this court on remand and
abused its discretion by awarding 16 percent of the fee application
submitted by the prevailing party in the lower court pursuant to R.C.
1345.09(F). (JE dated June 12, 2023).
Assignment of Error No. 2
The trial court erred in denying Appellant’s request for findings of fact
and conclusions of law that are mandated by Civ.R 52 and failing to
state the basis of its decision so this court can conduct meaningful
review. (JE dated July 10, 2023).
Law and Analysis
A supplier may recover attorney fees from a consumer who files and
maintains a groundless action and continues the action in bad faith. R.C.
1345.09(F)(1). It is well established that a trial court judge empowered to award
attorney fees by statute may determine an amount within its sound discretion.
Brooks v. Hurst Buick-Pontiac-Olds-GMC, Inc., 23 Ohio App.3d 85, 91, 491 N.E.2d
345 (12th Dist.1985). An abuse of discretion implies that the court’s attitude is
unreasonable, arbitrary, or unconscionable. Blue v. Bureau of Workers’ Comp., 8th
Dist. Cuyahoga No. 112652, 2023-Ohio-3481, ¶ 10, citing Blakemore v. Blakemore,
5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). An appellate court will not interfere
with an award of attorney fees unless the amount is so low or so high as to shock the
conscience. Brooks at 91.
Here, Appellants allege that the trial court abused its discretion because
it awarded 16 percent of the requested amount of $262,875.75, i.e., $42,820.67.
However, R.C. 1345.09(F) limits the award to work reasonably
performed on the CSPA claim. Bittner v. Tri-County Toyota, Inc., 58 Ohio St.3d
143, 145, 569 N.E.2d 464 (1991), citing Hensley v. Eckerhart, 461 U.S. 424, 433, 103
S.Ct. 1933, 76 L.Ed.2d 40 (1983). A determination of attorney fees starts with
establishing ‘““the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly fee.””’ Phoenix Lighting Grp., L.L.C., v. Genlyte
Thompson Group., L.L.C., 160 Ohio St.3d 32, 2020-Ohio-1056, 153 N.E.3d 30, ¶ 10,
quoting Bittner at 145, quoting Hensley at 433. This number is often referred to as
the “lodestar.” Id. However, this calculation does not end the fee analysis. Id. at
¶ 12, citing Hensley at 434. The fee is subject to an adjustment upward or downward
once other considerations are made by the trial court, including the important factor
of the results obtained. Id. However, enhancements upward should be granted
rarely and only under specific circumstances. See Phoenix Lighting, paragraph one
of the syllabus. (“Enhancements to the lodestar should be granted rarely and are
appropriate when an attorney produces objective and specific evidence that an
enhancement of the lodestar is necessary to account for a factor not already
subsumed in the lodestar, calculation.”).
The trial court may modify that calculation by application of the
factors listed in DR 2-106(B) (now Prof.Cond.R.1.5(a)). Id. These factors assist in
determining a reasonable fee and include:
1. The time and labor required, the novelty and difficulty of the
questions involved, and the skills requisite to perform the legal service
properly;
2. The likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment by the lawyer;
3. The fee customarily charged in the locality for similar legal services;
4. The amount involved and the results obtained;
5. The time limitations imposed by the client or by the circumstances;
6. The nature and length of the professional relationship with the
client;
7. The experience, reputation, and ability of the lawyer or lawyers
performing the services;
8. Whether the fee is fixed or contingent.
Ohio Prof.Cond. Rule 1.5(a)(1)-(8).
Every factor may not exist in every case, and the determination and
manner of the application for each factor that will affect the initial calculation is
within the discretion of the trial court. Bittner at 146.
Additionally, this court has held that “fees may be awarded for claims
related to the violation of the Consumer Sales Practices Act, when they are not easily
separated.” Shury I at ¶ 72, citing Gonzalez v. Spofford, 8th Dist. Cuyahoga
No. 85231, 2005-Ohio-3415, ¶ 39, citing Fit ‘N’ Fun Pools, Inc. v. Shelly, 9th Dist.
Wayne No. 99CA0048, 2001 Ohio App. LEXIS 3 (Jan. 3, 2001); Bryant v. Walt
Sweeney Auto., 1st Dist. Hamilton Nos. C-010395 and C-010404, 2002-Ohio-2577;
Parker v. I&F Insulation Co., 1st Dist. Hamilton No. C-960602, 1998 Ohio App.
LEXIS 1187 (Mar. 27, 1998); Budner v. Lake Erie Homes, 11 Dist. Portage No. 2000-
P-0108, 2001-Ohio-4288; Luft v. Perry Cty. Lumber & Supply Co., 10th Dist.
Franklin No. 02AP-559, 2003-Ohio-2305.
Here, Appellants allege that the trial court abused its discretion
because the trial court awarded 16 percent of its requested amount. Appellants
challenge the attorney-fee award alleging the trial court did not appropriately
calculate damages by multiplying the hours by a reasonable rate nor adjust upon
application of the factors listed in Prof.Cond.R. 1.5. Additionally, Appellants claim
that the trial court’s decision to exclude fees before the CSPA claim was filed and
fees after that date for non-CSPA work was improper because the decision was (1)
not supported by the record, (2) inconsistent with this court’s order, and (3) contrary
to the law of the case. We find the Appellants’ challenges lack merit.
First, there is no evidence that the trial court failed to appropriately
calculate attorney fees. The mere fact the trial court rejected Appellants’ requested
amount does not mean the trial court erred. The calculation for attorney fees
requires a determination of both a reasonable hourly rate and reasonable hours
expended. Next these numbers are multiplied. As previously stated, the lodestar is
just the initial calculation subject to other considerations of the court, including the
factors listed in the Code of Professional Conduct.
The trial court stated that its determination was based upon its
consideration of “all the evidence presented at the attorney fees hearing and
cognizant of the relevant case authority on the assessment of attorney fees
attributable to an OCSPA claim where legal work was also done on different causes
of action.” June 13, 2023 journal entry. Other than the fact that the trial court did
not grant Appellants’ entire request, they have not cited to any uncontroverted
evidence that the trial court did not appropriately assess attorney fees. In Shury I,
this court reiterated Bittner, which states when the trial court makes a fee award
pursuant to R.C. 1345.09(F) the basis for the fee determination must be stated.
Shury I at 62, citing Bittner, 58 Ohio St.3d 143 at 146, 569 N.E.2d 464. Here, the
trial court did state its basis for the award. Further, it adjusted the amount
downward in consideration of work prior to the CSPA claim and non-CSPA work.
This court finds that basis sufficient.
As previously stated, the trial court has sound discretion to award
attorney fees. Brooks, 23 Ohio App.3d at 91. Accordingly, the trial court had the
discretion to declare no reimbursement for hours extended before the amended
complaint invoking a CSPA claim was raised. The exclusion of CSPA work prior to
the claim being made is not unreasonable. Additionally, the trial court’s rejection of
work on overlapping claims is not unreasonable, given the numerous non-CSPA
claims. At the attorney award hearing, invoices were introduced for services
rendered from 2019 through 2021 to Cusato. Attorney Robert Kehoe (“Attorney
Kehoe”) testified at the attorney award hearing that there was overlap with the CSPA
and the defamation and commercial disparagement claims. Tr. 577. Further,
“there’s no breakdown of how much time was committed to one claim versus the
other.” Id. Additionally, Attorney Kehoe acknowledged that the total attorney-fee
invoice included work on the drafting and filing of counterclaims and amended
counterclaims; counterclaims for breach-of-contract, defamation, quantum meruit
and bad faith; research for and drafting of a motion for summary judgment on the
breach-of-contract claim; research and drafting of a brief in opposition to appellee’s
motion for summary judgment on defamation, commercial disparagement, and
breach-of-contract. Id. at 582-584. Therefore, the record supports the decision to
exclude the non-CSPA work from the attorney fee award.
Appellants’ claim that the award is inconsistent with Shury I is without
merit. Shury I found that no award was an abuse of discretion. Id at 72. This court
rejected the trial court’s explanation that no attorney fees would be awarded because
Appellants failed to allocate the billing for the CSPA claim, despite finding that it
was not impossible to do so. Subsequently, the trial court has determined an
allocation of $42,820.67 to be a reasonable amount for services rendered on the
CSPA defense.
For the reasons already stated, we find the amount of attorney fees
awarded by the trial court is not contrary to this court’s order. Although Appellants
are not satisfied with the trial court’s award, we find the decision is not contrary to
our decision. The trial court awarded reasonable attorney fees for the CSPA defense
only and excluded the amount of attorney fees for services performed on other
claims. Under these circumstances, the trial court’s award is reasonable and not an
abuse of discretion.
Finally, Appellants argue that the law of the case established in Shury I
called for the trial court to recognize the intertwined nature of the claims and
reimburse them for all their work. However, the Shury I Court found that the
decision not to award attorney fees under the circumstances of the case was
unreasonable. Moreover, a trial “court may award attorney’s fees for all time
reasonably spent” on claims when the claims are so intertwined they may not be
separated. (Emphasis added.) Shury I at ¶ 69, citing Bryant, 2002-Ohio-2577, at
¶ 35. However, here the non-CSPA claims are not so intertwined.
Therefore, given the foregoing analysis, the trial court’s award is not
contrary to the law of this case. Furthermore, the law of this case is Appellant is
entitled to reasonable attorney fees under CSPA. Appellants’ claim that the trial
court abused its discretion in awarding $42,820.67 in attorney fees is overruled.
Next, Appellants claim they are entitled to findings of facts and
conclusions of law from the trial court, pursuant to Civ.R. 52. We find the trial
court’s June 13, 2023 journal entry substantially complies with Civ.R. 52.
When questions of fact are tried by the court without a jury, judgment
may be general for the prevailing party unless one of the parties in
writing requests otherwise * * *.
***
An opinion or memorandum of decision filed in the action prior to
judgment entry and containing findings of fact and conclusions of law
stated separately shall be sufficient to satisfy the requirements of this
rule and Civ.R. 41(B)(2).
Civ.R. 52.
Findings of fact and conclusions of law allow the reviewing court to
evaluate an assignment of error. If the trial court’s ruling, coupled with other parts
of the trial court’s record, provides adequate basis for review, the trial court has
substantially complied with Civ.R. 52. Brandon/Wiant Co. v. Teamor, 135 Ohio
App.3d 417, 423, 734 N.E.2d 425 (8th Dist.1999), citing Abney v. W. Res. Mut. Cas.
Co., 76 Ohio App.3d 424, 602 N.E.2d 348 (12th Dist.1991).
Here, the trial court substantially complied with Civ.R. 52. The trial
court’s explanation for the award, coupled with the extensive record in this case, was
sufficient for this court to review its determination. This court was able to conduct
its review to determine the trial court’s award of $42,820.67 in attorney fees for the
CPSA defense was reasonable. Consequently, Appellants’ second assignment of
error is overruled.
Finally, in its journal entry awarding attorney fees, the trial court
stated:
[J]udgment for the recovery of attorney’s fees under R.C. 1345.09(F) is
hereby entered in favor of Paul [sic] Shury and against
defendants/counterclaimants Paul Cusato and Growler Restorations,
Inc., jointly and severally, in the amount of $42,820.67.
As the record reflects that the purpose of the December 8, 2021
hearing and the trial court’s subsequent journal entry was to determine the amount
of attorney fees owed to the Appellants, the language of the entry that purports to be
in favor of a nonexistent party, i.e., Paul Shury is a typographical error. A trial court
may enter a nunc pro tunc order to “‘reflect its true actions so that the record speaks
the truth.’” McGowan v. Giles, 8th Dist. Cuyahoga No. 76332, 2000 Ohio App.
LEXIS 1006, ¶ 11 (Mar. 16, 2000), quoting Associated Estates Corp. v. Cleveland,
8th Cuyahoga No. 75958, 1999 Ohio App. LEXIS 3597, 2-3 (Aug. 5, 1999).
Judgment affirmed; case remanded for the trial court to issue a nunc
pro tunc order reflecting the award of attorney fees to appellants Cusato and Growler
from appellees the estate of Donald Shury and its administrators.
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 issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_________________________
EMANUELLA D. GROVES, JUDGE
MICHELLE J. SHEEHAN, P.J., and
EILEEN T. GALLAGHER, J., CONCUR