O'Neill v. Tanoukhi ( 2011 )

[Cite as O'Neill v. Tanoukhi, 2011-Ohio-2626.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
SELINA O’NEILL, )
)
PLAINTIFF-APPELLANT, )
)
VS. ) CASE NO. 10-MA-45
)
MICHAEL TANOUKHI dba 4 WHEELS, ) OPINION
)
DEFENDANT-APPELLEE. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 06CV907
JUDGMENT: Reversed and Remanded
APPEARANCES:
For Plaintiff-Appellant Atty. Ronald L. Burdge
Atty. Elizabeth A. Wells
2299 Miamisburg-Centerville Road
Dayton, Ohio 45459-3817
For Defendant-Appellee Atty. Kristen E. Campbell
8040 Cleveland Avenue NW, Suite 400
North Canton, Ohio 44720
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: May 26, 2011
[Cite as O'Neill v. Tanoukhi, 2011-Ohio-2626.]
DONOFRIO, J.
{¶1} Plaintiff-appellant, Selina O’Neill, appeals from a Mahoning County
Common Pleas Court judgment awarding her attorney fees in the amount of $5,000
stemming from her lawsuit against defendant-appellee, Michael Tanoukhi, dba, 4
Wheels.
{¶2} Appellant filed a lawsuit against appellee in March 2006, alleging
appellee committed unfair and deceptive acts in selling her a used car. The trial
court bifurcated the attorney fees issue from the trial on the merits. The parties
subsequently settled the merits of the case. Under the terms of the settlement,
appellant was the prevailing party and was granted a vehicle free and clear of debt
and encumbrances.
{¶3} Appellant next filed her motion for attorney fees and costs. To the
motion she attached affidavits from her attorneys and various documents in support.
Appellee filed a response, attaching one affidavit. Appellant later filed an amended
request stating that her fees totaled $28,045 and her costs totaled $1,947.29. The
parties agreed to have the court decide the issue without a hearing. The trial court
awarded appellant $5,000 in attorney fees.
{¶4} Appellant filed a timely notice of appeal on March 11, 2010.
{¶5} Appellant raises a single assignment of error, which states:
{¶6} “THE TRIAL COURT ABUSED ITS DISCRETION IN DECIDING
PLAINTIFF-APPELLANT’S MOTION FOR ATTORNEY FEES AND COSTS.”
{¶7} Appellant breaks her assignment of error down into three sub-issues, all
of which allege that the trial court abused its discretion in determining the amount of
attorney fees she was entitled to.
{¶8} The standard of review on the issue of attorney fees is abuse of
discretion. Motorists Mut. Ins. Co. v. Brandenburg (1995), 72 Ohio St.3d 157, 160.
Abuse of discretion connotes more than an error of law; it implies that the trial court’s
attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore
(1983), 5 Ohio St.3d 217, 219. “‘Unless the amount of [attorney] fees determined is
so high or so low as to shock the conscience, an appellate court will not interfere.
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The trial judge which participated not only in the trial but also in many of the
preliminary proceedings leading up to the trial has an infinitely better opportunity to
determine the value of services rendered by lawyers who have tried a case before
him than does an appellate court.’” Bittner v. Tri-County Toyota (1991), 58 Ohio St.
3d 143, 146, quoting Brooks v. Hurst Buick-Pontiac-Olds-GMC, Inc. (1985), 23 Ohio
App.3d 85, 91.
{¶9} The Consumer Sales Practices Act (CSPA) provides for the award of
reasonable attorney fees, limited to the work reasonably performed, if the supplier
has knowingly committed an act or practice that violates the CSPA. R.C.
1345.09(F)(2). “Pursuant to R.C. 1345.09(F)(2), a trial court may award a consumer
reasonable attorney fees when the supplier in a consumer transaction intentionally
committed an act or practice which is deceptive, unfair or unconscionable.” Einhorn
v. Ford Motor Co. (1990), 48 Ohio St.3d 27, at the syllabus.
{¶10} First, appellant argues that the trial court abused its discretion in failing
to give an explanation for its decision. Appellant relies on the guidelines for
calculating attorney fees set out in Bittner, 58 Ohio St. 3d 143.
{¶11} According to Bittner, “[w]hen awarding reasonable attorney fees
pursuant to R.C. 1345.09(F)(2), the trial court should first calculate the number of
hours reasonably expended on the case times an hourly fee, and then may modify
that calculation by application of the factors listed in DR 2-106(B).” Id. at the
syllabus.
{¶12} Since Bittner was decided, the Rules of Professional Conduct have
replaced the Code of Professional Responsibility in Ohio. So now the factors set out
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in Prof.Cond.R. 1.5(a) apply as they are based on former DR 2-106(B).1 Unick v.
Pro-Cision, Inc., 7th Dist. No. 09-MA-171, 2011-Ohio-1342, at ¶30.
{¶13} Appellant points out that the trial court never stated how many hours it
determined were reasonable, what it determined to be a reasonable hourly rate, or
what, if any, of the Prof.Cond.R. 1.5(a) factors applied. Appellant claims that this lack
of explanation was in error and leaves this court of appeals with no way to conduct a
meaningful review. Therefore, she contends that we must reverse and remand the
trial court’s judgment so that the trial court can apply the Bittner guidelines.
{¶14} In its judgment entry, the trial court stated: “Upon the consideration of
the briefs and exhibits submitted by the parties, and applying the appropriate
standards set forth by the Ohio Supreme Court and the Rules of Professional
Conduct 1.5, the Court hereby awards the Plaintiff her reasonable attorney fees in
the amount of $5000.00 on her claim of violation of the consumer sales practices
act.”
{¶15} In Bittner, the Court was faced with examining the reasonableness of
the trial court’s award of attorney fees. The trial court had not given its reasons for
how it arrived at the award that it did. The Court stated:
{¶16} “In making the fee award determination, the trial judge did not award
either of Bittner's attorneys the fee amount requested. Thus, in making its final
determination, the trial court apparently took into consideration other factors.
Presumably, sufficient evidence was presented to support the award made by the
1 {a} Prof.Cond.R. 1.5(a) prohibits excessive fees:
{b} “(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an
unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee
include the following:
{c} “(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill
requisite to perform the legal service properly;
{d} “(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will
preclude other employment by the lawyer;
{e} “(3) the fee customarily charged in the locality for similar legal services;
{f} “(4) the amount involved and the results obtained;
{g} “(5) the time limitations imposed by the client or by the circumstances;
{h} “(6) the nature and length of the professional relationship with the client;
{i} “(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
{j} “(8) whether the fee is fixed or contingent.”
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trial judge. However, it is not possible to determine what factors the court considered
or the weight, if any, it placed on those factors. When making a fee award pursuant to
R.C. 1345.09(F)(2), the trial court must state the basis for the fee determination.
Absent such a statement, it is not possible for an appellate court to conduct a
meaningful review.” Bittner, 58 Ohio St.3d at 146.
{¶17} Appellee contends, however, that this court has held that such a
statement by the trial court is not required. Appellee relies on Buist v. Columbiana
Buick Olds Cadillac Inc. (Feb. 1, 2001) 7th Dist. No. 99-CA-183. In Buist, the trial
court denied the appellant’s request for attorney fees. The issue was whether the
appellee knowingly committed a consumer sales practice violation, which would have
entitled the appellant to attorney fees. On appeal, we stated:
{¶18} “The trial court, by Judgment Entry, entered a general denial of
Appellant's motion seeking attorney's fees. Appellant did not request a hearing on his
motion, leaving this Court with no hearing transcript to review. Appellant did not
request findings of fact and conclusions of law once his motion was denied. Civ.R. 52
provides a means to obtain separate findings of fact and conclusions of law on which
a reviewing court can examine the trial court's judgment. Where a party does not
request findings of fact and conclusions of law, a reviewing court will presume that
the trial court considered all of the relevant factors in making its decision.” Id.
{¶19} While this case does have some similarities to Buist, i.e. appellant did
not request finding of fact and conclusions of law and the parties agreed to submit
the matter on their briefs and exhibits, it is nonetheless distinguishable. In this case,
the parties agreed that appellant was entitled to attorney fees and the issue was only
as to the amount. The trial court here was not faced with determining whether
appellee had knowingly committed a consumer sales practice violation. Instead, the
court was ready to apply the Bittner test. However, the court failed to explain how it
applied the test in reaching its award.
{¶20} Furthermore, in more recent cases, this court has applied Bittner’s rule
requiring a trial court to state the basis for its fee determination in order for an
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appellate court to conduct a meaningful review. On at least two occasions, we have
reversed and remanded the trial court’s fee award because the trial court did not
provide the basis for its fee determination. See Harper v. Dog Town, Inc., 7th Dist.
No. 08-NO-348, 2008-Ohio-6921, at ¶31 (“In this case, the trial court appears to have
made the same type of error described in Braglin. The trial court did not explain how
the amount of attorney fees it awarded satisfied the factors to be used when
determining an appropriate amount of attorney fees.”); Braglin v. Crock, 7th Dist. No.
04-NO-0318, 2005-Ohio-6935, at ¶¶18, 19 (“In this case, the trial court failed to state
any clear basis for its determination in order to conduct any kind of significant or
proper review of the issues argued by appellants. * * * Therefore, we have no
alternative but to remand the matter back to the trial court for it to provide its
reasoning for determining that an award of attorney fees is justified.”) And in neither
case is there any mention of the parties requesting findings of fact and conclusions of
law. Other courts have also reversed and remanded fee awards because the trial
court did not provide the basis for its fee determination. See Grieselding v. Krischak,
6th Dist. No. L-06-1010, 2007-Ohio-2668; Santoscoy v. Ganley Nissan, Inc. (Sept. 2,
1999), 8th Dist. No. 75957.
{¶21} Thus, the trial court erred in failing to set out its reasons for selecting
the attorney fee award that it did.
{¶22} Appellant secondly argues that the trial court abused its discretion by
failing to award her any costs for litigation expenses despite her evidence of
reasonable costs.
{¶23} Once the trial court gives a detailed explanation of its award, it will likely
explain why it chose not to make an award for costs.
{¶24} Finally, appellant argues that the trial court abused its discretion when,
without explanation, it rejected eight affidavits on the reasonableness of the hourly
rates for her counsel and two affidavits on the reasonable number of hours to litigate
this case.
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{¶25} Once again, when the trial court explains its award of fees, it will
necessarily go into a discussion of the evidence.
{¶26} Accordingly, appellant’s sole assignment of error has merit.
{¶27} For the reasons stated above, the trial court’s judgment is hereby
reversed and the matter is remanded. On remand, the trial court should set forth its
methodology in determining the amount of attorney fees with sufficient specificity so
as to satisfy the criteria contemplated by Bittner.
Vukovich, J., concurs.
DeGenaro, J., concurs.