Kapadia v. Kapadia , 2014 Ohio 5554 ( 2014 )

[Cite as Kapadia v. Kapadia, 2014-Ohio-5554.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 101460
DARSHAN DILRANJAN KAPADIA
PLAINTIFF-APPELLEE
vs.
SALLY SAAD KAPADIA
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED AND
REMANDED IN PART
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-05-306907
BEFORE: E.T. Gallagher, J., Kilbane, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: December 18, 2014
-i-
ATTORNEY FOR APPELLANT
L. Bryan Carr
1392 SOM Center Rd.
Mayfield Heights, Ohio 44124
ATTORNEY FOR APPELLEE
Joseph G. Stafford
Stafford & Stafford Co., L.P.A.
55 Erieview Plaza, 5th Floor
Cleveland, Ohio 44114
EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant Sally Saad Kapadia appeals from the trial court’s order to pay
attorney fees and expenses totaling $24,284.79 to plaintiff-appellee Darshan Dilranjan Kapadia.
For the following reasons, we affirm in part, and reverse and remand in part, the trial court’s final
judgment.
{¶2} This is the fourth time this case has come before this court on appeal. In the last
appeal, we set forth the background of the case as follows:
The Divorce Decree and First Appeal
The procedural history leading to the instant appeal is rather involved. In
2009, the marriage of the Kapadias was terminated by a divorce decree after a
23-day trial. The litigation centered around property division. Ms. Kapadia was a
part owner of Charley’s Grilled Subs in several malls, and her part ownership of
these stores was valued at more than one million dollars.
Pertinent to the instant appeal are the payments the trial court ordered Ms.
Kapadia to pay her ex-husband as a part of the property division. Under the
divorce decree, Ms. Kapadia is to pay $819.960.50 to Mr. Kapadia, payable in
four annual installments of $204,990.13. These four installments were to be paid
on March 1 of 2010, 2011, 2012, and 2013.
Ms. Kapadia appealed the judgment of the trial court, and this court
affirmed, on May 12, 2011. Kapadia v. Kapadia, 8th Dist. Cuyahoga No. 94456,
2011-Ohio-2255 (hereafter “First Appeal”).
First Contempt Motion and Second Appeal
When the first installment was due on March 1, 2010, Ms. Kapadia failed
to pay fully as ordered. Mr. Kapadia filed a motion to show cause. The contempt
matter proceeded to a hearing before a magistrate, which began on October 28,
2010, and concluded on January 21, 2011. The issues to be resolved at the hearing
was whether Ms. Kapadia should be found in contempt and whether the court
should grant Mr. Kapadia’s request of attorney fees of $25,181.35.
The magistrate issued a decision on April 4, 2011, and the court
subsequently adopted the decision. Finding Ms. Kapadia’s claim of inability to
pay not credible, the trial court sentenced Ms. Kapadia to 30 days in jail, but
permitted her to purge her contempt by paying the remaining balance on the first
installment ($39,990.13). The court also determined that Mr. Kapadia was entitled
to an award of attorney fees for prosecuting the motion for contempt. The court,
however, determined Mr. Kapadia was not entitled to an award of all attorney fees
and expenses incurred since the divorce was finalized. Based upon a review of his
attorneys’ fee bill, the trial court determined Mr. Kapadia was entitled to $8,700
in attorney fees.
On June 9, 2011, Ms. Kapadia appealed from the trial court’s judgment.
On March 1, 2012, this court affirmed the trial court’s decision, in Kapadia v.
Kapadia, 8th Dist. Cuyahoga No. 96910, 2012-Ohio-808 (hereafter “Second
Appeal”).
Second Contempt Motion and the Instant (Third) Appeal
While the parties litigated over Ms. Kapadia’s failure to pay the first
installment, the second installment became due on March 1, 2011. Again, Ms.
Kapadia failed to pay. This prompted Mr. Kapadia to file yet another motion for
contempt and for attorney fees, on March 11, 2011.
On June 5, 2012, the magistrate held a hearing over the second contempt
motion and attorney fees. Mr. Kapadia submitted a fee bill that itemized fees from
April 10, 2009, to March 6, 2012, for a total of $125,877.50 (393 hours), which
included work on the First and Second Appeal.
Because the second installment had been paid in full (on August 31, 2011)
by the time a hearing over the motion for contempt was held, the magistrate found
the motion moot. However, because Mr. Kapadia had to yet again engage his
counsel to file a motion for contempt for the payment of the second installment,
the magistrate awarded Mr. Kapadia attorney fees of $36,607.00 and expenses of
$1,974.79.1.1
Ms. Kapadia filed objections to the magistrate’s decision. The trial court
found the objections well taken in part, because it found the amount of time billed
for certain services excessive. The trial court awarded fees related to the
prosecution of the second motion for contempt filed on March 11, 2011
($15,085), and fees in connection with the Second Appeal ($10,660). Including
the expenses of $1,974.79, the trial court awarded $27,719.79 in fees and
expenses.
Kapadia v. Kapadia, 8th Dist. Cuyahoga No. 99797, 2013-Ohio-5588, ¶ 2-11 (hereafter “Third
Appeal”).
{¶3} In the Third Appeal, we determined that the trial court did not abuse its discretion in
awarding attorney fees, but we remanded for a recalculation of fees in connection with the
Second Appeal and in connection with the prosecution of the second motion for contempt. On
remand, the trial court awarded $8,700 in attorney fees in connection with the Second Appeal
and $13,610 in attorney fees in connection with the prosecution of the second motion for
1
Mr. Kapadia has two attorneys. The magistrate stated that the amount awarded was based on
his first counsel’s hourly fee of $400 before 2012 and $450 beginning in 2012, and the second
counsel’s hourly fee of $250.
contempt. The $1,974.79 in expenses remained undisturbed. In total, Ms. Kapadia was
ordered to pay $24,284.79. Ms. Kapadia now appeals, asserting two assignments of error for
our review:
I. Ignoring this court’s remand for recalculation, the trial court erred in awarding
attorney fees in the amount of $8,700 for defense of the Second Appeal.
II. Ignoring this court’s remand for recalculation, the trial court erred in awarding
attorney fees in the amount of $13,610 for the prosecution of the second motion
for contempt.
The first assignment of error is sustained, and the second assignment of error is overruled.
{¶4} We review a domestic relations court’s decision to grant attorney fees for abuse of
discretion. Dureiko v. Dureiko, 8th Dist. Cuyahoga No. 94393, 2010-Ohio-5599, ¶ 26. Under
R.C. 3105.73(A), a court may award all or part of reasonable attorney fees and litigation
expenses to either party if the court finds the award equitable. In determining whether such an
award is equitable, “the court may consider the parties’ marital assets and income, any award of
temporary spousal support, the conduct of the parties, and any other relevant factors the court
deems appropriate.” R.C. 3105.73(B).
{¶5} In her first assignment of error, Ms. Kapadia argues that the trial court erred in
awarding Mr. Kapadia $8,700 in attorney fees for defense of the Second Appeal. We agree.
{¶6} The Second Appeal involved the first contempt motion. In the Third Appeal, we
explained that “in light of the determination that the attorney fees regarding the first motion for
contempt was $8,700, an award of attorney fees of $10,660 to defend that award appears
excessive and unreasonable.” Kapadia, 8th Dist. Cuyahoga No. 99797, 2013-Ohio-5588, at ¶
20. We further concluded that it was “unclear as to how the trial court arrived at the amount of
$10,660, in the absence of an itemization of the specific services relating to the appeal.” Id. at ¶
21.
{¶7} On remand, the trial court stated that it reviewed the itemized fee bill originally
submitted by Mr. Kapadia and that it found that the total amount of fees billed by Mr. Kapadia’s
counsel in connection with the second appeal exceeded $8,700. The trial court then concluded
that, pursuant to our remand, “an award of $8,700 for attorney fees incurred by [Mr. Kapadia] is
appropriate.”
{¶8} Ms. Kapadia argues that the trial court’s order did not comply with our instructions
on remand to recalculate the attorney fee award. We agree. The invoice that the trial court
stated that it reviewed was an all-encompassing invoice exceeding $125,000 spanning from April
10, 2009 through March 6, 2012. In its order on remand, the trial court conducted no
calculation of any kind. Rather, the trial court noted that the attorney fees for the first contempt
motion was $8,700, and then it proceeded to award Mr. Kapadia that exact same amount for
attorney fees in connection with the appeal to defend that award.
{¶9} We noted in the Third Appeal that Mr. Kapadia retained two attorneys who billed at
different hourly rates. On remand, the trial court failed to articulate which services it was
awarding, and which hourly rates it was utilizing. Once again, “in the absence of an itemization
of the specific services relating to the appeal,” we must remand this matter to the trial court for
recalculation. Id. at ¶ 21. The first assignment of error is sustained.
{¶10} In her second assignment of error, Ms. Kapadia argues that the trial court erred in
awarding attorney fees in the amount of $13,610 for the prosecution of the second motion of
contempt. We overrule the assignment of error.
{¶11} In the Third Appeal we noted that the second motion for contempt related to Ms.
Kapadia’s failure to timely make the second installment payment on March 1, 2011.
Accordingly, with respect to prosecuting the second motion of contempt, we concluded that “Mr.
Kapadia is only entitled to fees incurred after March 1, 2011. Upon remand, the trial court
should deduct any fees billed between January 21, 2011 and March 1, 2011.” Kapadia, 8th
Dist. Cuyahoga No. 99797, 2013-Ohio-5588, at ¶ 22.
{¶12} On remand, the trial court stated that it conducted a new review of the itemized fee
statement that had originally been submitted by Mr. Kapadia’s counsel. The trial court then
stated that “it is appropriate to award attorney fees to [Mr. Kapadia] in the amount of $13,610.”
According to the trial court, “[t]his amount represents all of the fees incurred by [Mr. Kapadia]
that were clearly marked as relating to the prosecution of his second motion to show cause on
[Mr. Kapadia’s] counsel’s submitted bill.” The final figure also included deductions for
charges that were billed for twice for the same work by both of Mr. Kapadia’s attorneys.
{¶13} On appeal, Ms. Kapadia does not argue that the trial court failed to deduct fees that
were billed between January 21, 2011 and March 1, 2011. Rather, Ms. Kapadia argues that any
attorney fees that were incurred after August 31, 2011 were unreasonable, because by that date
she had fully paid the second installment. According to Ms. Kapadia, there was no need for Mr.
Kapadia’s counsel to continue to pursue the contempt charges once she paid the second
installment.
{¶14} We will not consider Ms. Kapadia’s argument because “[t]rial courts have no
authority to extend the scope of remand limited by a mandate of this court.” State v. Bronston,
8th Dist. Cuyahoga No. 97558, 2012-Ohio-2631, ¶ 4. In the Third Appeal, our instructions to
the trial court on remand were limited to deducting any fees that were billed between January 21,
2011 and March 1, 2011. It follows that our review in the current appeal is limited to ensuring
that the trial court complied with this instruction.
{¶15} Ms. Kapadia had briefed this same argument in the Third Appeal. We
acknowledge that our decision in the Third Appeal did not explicitly address this argument.
Ms. Kapadia could have filed a motion for reconsideration, asking this court to expressly rule
that the scope of the remand should have included attorney fees that were incurred by Mr.
Kapadia after August 31, 2011. Ms. Kapadia filed no such motion, and at this stage in the
litigation, she is foreclosed from reopening this line of argument. Because Ms. Kapadia does
not argue that the trial court failed to deduct any fees billed between January 21, 2011 and March
1, 2011, we overrule the second assignment of error.
{¶16} Judgment affirmed in part, and reversed and remanded in part.
It is ordered that appellant and appellee split the 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.
__________________________________________
EILEEN T. GALLAGHER, JUDGE
MARY EILEEN KILBANE, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR