Ritzler v. Arcadia

[Cite as Ritzler v. Arcadia, 2020-Ohio-4416.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
ROBERT A. RITZLER, ET AL.,
PLAINTIFFS-APPELLANTS, CASE NO. 5-20-16
v.
VILLAGE OF ARCADIA, OPINION
DEFENDANT-APPELLEE.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2017 CV 00463
Judgment Affirmed
Date of Decision: September 14, 2020
APPEARANCES:
John T. Barga for Appellants
John C. Filkins for Appellee
Case No. 5-20-16
SHAW, P.J.
{¶1} Plaintiffs-appellants, Robert Ritzler and Charity Ritzler (“the
Ritzlers”), bring this appeal from the February 18, 2020 judgment of the Hancock
County Common Pleas Court denying their request that defendant-appellee, Village
of Arcadia (“Arcadia”), pay the Ritzlers’ attorney’s fees pursuant to R.C. 2323.51
and Civ.R. 11. On appeal, the Ritzlers argue that they had proven Arcadia had
engaged in frivolous conduct in this matter and that the Ritzlers had sufficiently
established their attorney’s fees.
Background
{¶2} After repeatedly receiving high water bills, the Ritzlers began to suspect
they were being overcharged for water by Arcadia. The Ritzlers compared their
water bills and their water usage to neighbors and similarly-sized families in the
area and they felt that their bills were significantly higher. They contacted Arcadia
and Arcadia came out to check for leaks on the premises but none were discovered.
Arcadia then analyzed the water meter, and after testing it was discovered that the
meter was reading at approximately 2.35 times higher than the actual amount used
by the Ritzlers.
{¶3} On December 17, 2018, the Ritzlers filed a complaint against Arcadia
alleging that Arcadia had breached its contractual obligation to provide water at the
usual, customary, and reasonable rate. The Ritzlers alleged that they had been
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paying their water bills and that Arcadia had overcharged them for water in the
amount of $6,488.97 plus interest. The Ritzlers claimed that they had been
overcharged on their monthly bills from 2010 to when the meter was replaced by
Arcadia in 2018. The Ritzlers also requested costs and attorney’s fees.
{¶4} On January 18, 2019, Arcadia filed a “Special and Limited
Appearance” to present a motion to dismiss based on sovereign immunity. The
Ritzlers opposed the motion, emphasizing that there was a clear exception to
sovereign immunity for breach of contract claims. See R.C. 2744.09(A) (“This
chapter does not apply to * * * [c]ivil actions that seek to recover damages from a
political subdivision or any of its employees for contractual liability[.]”). The trial
court denied Arcadia’s motion to dismiss, reasoning that “there exists factual
disputes, which preclude the Court’s consideration of the motion to dismiss.
[Arcadia]’s own motion suggests the possibility of an exception to sovereign
immunity protection.” (Doc. No. 19). The trial court added that the matter should
be converted to a motion for summary judgment, and directed the parties to file their
respective motions.
{¶5} On March 25, 2019, Arcadia filed a motion for summary judgment
again asserting sovereign immunity, claiming that despite the styling and wording
of the claim, the Ritzlers were actually asserting a tort claim, not a breach of contract
claim. In the motion, Arcadia acknowledged that the Ritzlers’ water meter was not
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reading correctly; however, Arcadia argued that it was impossible to discern exactly
when the water meter stopped reading correctly.
{¶6} On April 4, 2019, the Ritzlers filed their own motion for summary
judgment and a response to Arcadia’s motion for summary judgment. The Ritzlers
argued that Arcadia had admitted that the meter was not reading correctly, thus it
had been established that they were being overcharged. The Ritzlers again
emphasized that sovereign immunity was not proper in a breach of contract claim.
They attached evidence and affidavits supporting their claim.
{¶7} On April 18, 2019, the trial court filed its decision on the parties’
summary judgment motions. The trial court granted the Ritzlers’ motion for
summary judgment, in part, finding that sovereign immunity protection did not
cover a breach of contract action. The trial court also determined that Arcadia had
acknowledged that the Ritzlers’ water meter was not reading correctly. However,
the trial court determined that two issues of fact remained to be litigated: 1) when
the Ritzlers’ water meter began malfunctioning; and 2) what the appropriate amount
of damages were for the over-billing.
{¶8} The issues of fact were set for trial, but shortly before the trial
commenced the parties settled the matter with Arcadia paying the amount requested
by the Ritzlers in their complaint. Subsequently, on July 24, 2019, the Ritzlers filed
a Civil Rule 41(A)(1)(a) notice of dismissal of their case.
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{¶9} On August 22, 2019, the Ritzlers filed a motion for attorney’s fees and
sanctions pursuant to R.C. 2323.51 and Civ.R. 11. The Ritzlers alleged that Arcadia
and its attorney had engaged in frivolous conduct in this action by filing motions
that were not supported by the law or the facts.
{¶10} The matter proceeded to a hearing on October 31, 2019. At the
inception of the hearing the trial court stated that based upon its research it believed
the Ritzlers still had standing to request attorney’s fees for frivolous conduct and
sanctions even though the underlying action had been dismissed. The trial court
then addressed some of the potential evidence and testimony that was going to be
presented. The Ritzlers’ attorney stated that he intended to introduce the affidavit
of another attorney who was not involved in this case into evidence without offering
the attorney’s testimony. The affidavit would claim that the hourly fee rate of $250
charged in this matter by the Ritzlers’ attorney was reasonable. The trial court
inquired as to why the attorney would not be present at the hearing to testify and be
subject to cross-examination, and the Ritzlers’ attorney responded that it was a
matter of timing and expense. The trial court refused to admit the affidavit as
hearsay, reasoning that the rules of evidence still applied at the hearing.
{¶11} The hearing then commenced with the Ritzlers’ attorney calling
Arcadia’s attorney to testify. Arcadia’s attorney testified that he charged $175 per
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hour and that in the Hancock County area he had seen a range of fees between $150-
200 per hour. He acknowledged that he had seen higher rates elsewhere though.
{¶12} Arcadia’s attorney also testified that he prepared the motions in this
case, including those based on sovereign immunity. Arcadia’s attorney testified that
prior to the trial court’s ruling on the matter he did not believe that there was a
contract that had been breached by Arcadia because Arcadia had not overtly done
something wrong. In addition, Arcadia’s attorney testified that at the time he filed
the motions based on sovereign immunity he believed that any existing “contract”
for water was between Arcadia and the water supply entity, not between Arcadia
and the Ritzlers.
{¶13} The Ritzlers each testified individually at the hearing, stating that they
had issues for years with the water prices, that Arcadia had done multiple dye tests
to check for leaks, and that the water meter was ultimately replaced. Robert Ritzler
testified that he did the calculations to determine how much he thought Arcadia
owed for overpayments. He testified that he assumed in his calculations that the
water meter had been reading incorrectly since April 21, 2010.
{¶14} The administrator for Arcadia also testified at the hearing. He
indicated that he was satisfied in April of 2018 that the Ritzlers’ meter was not
reading correctly and that they were being overcharged for water. However, he
testified that he was uncertain as to when the meter began malfunctioning. The
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administrator testified that the meter could have gone bad slowly and that the
Ritzlers went from having no children in the house to having multiple children in
the house, increasing water usage. The administrator testified that based on his
inspection he could not determine when the meter started reading incorrectly.
{¶15} The Ritzlers’ attorney also testified regarding his fees and his bills in
this matter. A copy of his “bill” was also introduced into evidence. Arcadia’s
attorney challenged the Ritzlers’ attorney on the fact that some of the attorney’s fees
clearly predated the filing of the breach of contract action. Arcadia’s attorney also
pointed out that it was not possible to discern from the bills what work had been
done in relation to supposed frivolous conduct. The parties submitted written
closing arguments and the matter was submitted to the trial court for determination.
{¶16} On February 18, 2020, the trial court filed its entry analyzing the
attorney’s fees and sanctions issues. The trial court reasoned as follows.
[The Ritzlers] first argue, as a contract dispute, [Arcadia] had no
basis in law to defend this action based on sovereign immunity.
[The Ritzlers] contend that a simple reading of the sovereign
immunity statutes would have revealed this. On this point, the
Court agrees. (See Exhibit 93; R.C. § 2744.09). However, other
aspects of the Village’s defense were not frivolous. Whether
privity existed between the parties was, at the initial stages of this
litigation, a worthy question. Questioning the amount of
reimbursement sought by [the Ritzlers] was also a fair point
because questions existed about when the malfunction began and
the Village was permitted to access the property to replace it.
Another important issue to examine is the timing of the
settlement. Even after the Village learned that the water meter
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had been malfunctioning, its failure to resolve the dispute well
prior to trial was never explained. (See Exhibit 1). Based upon
information known to the Village as far back as March of 2019
(and likely much earlier), this matter could have been settled
without the necessity of protracted legal proceedings. For these
reasons, there is compelling evidence to find that the Village and
its counsel unnecessarily delayed resolution of this case.
However, this finding does not apply to the Plaintiffs’ Rule
11 claim. There is insufficient evidence to establish that Filkins
and the Village acted willfully or intentionally. * * * Having
found the existence of some frivolous conduct, Plaintiffs may be
entitled to attorney’s fees.
(Doc. No. 56).
{¶17} The trial court then analyzed the Ritzlers’ claims for attorney’s fees,
noting that the preferred method to establish an award of attorney’s fees is to offer
disinterested opinions on the reasonableness of the hours spent and the
reasonableness of the hourly rate. The trial court stated that the Ritzlers did not
secure the appearance of an expert, rather, the Ritzlers’ counsel submitted his own
affidavit suggesting the reasonableness of his hourly rate and the time spent on the
matter. The trial court also noted that the testimony and the bills from the Ritzlers’
attorney did not “delineate those portions of his fees dealing with the various
disputed issues.” (Id.)
{¶18} Ultimately, the trial court found two “serious” problems existed with
regard to the Ritzlers’ claim for attorney’s fees, the first being that there was no
expert testimony that the time spent on this case was reasonable. The trial court
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stated that, “An opinion from counsel that his own services were reasonable cannot
be considered totally objective. The benefit of having another learned set of eyes
and ears review the file would have provided the Court with the opportunity to
objectively evaluate the request, especially given that it was a matter in contention.”
(Doc. No. 56).
{¶19} The second major issue was that the trial court found that only some
of Arcadia’s conduct was frivolous and the time spent responding specifically to
“frivolous” matters was not self-evident from the billing statements. “It is
impossible for the Court to separate the work done to defend against the frivolous
action of the Village versus efforts expended to assert legitimate defenses.” (Id.)
Thus the trial court reasoned that without the necessary information, it could not
award attorney’s fees in this case. It is from this judgment that the Ritzlers appeal,
asserting the following assignment of error for our review.
Assignment of Error
The trial court committed reversible error when it failed to
acknowledge, accept and use the facts produced during the
October 31, 2019 hearing, the documents in the record and the
appropriate legal standard that support an award of attorney fees
to plaintiffs.
{¶20} The Ritzlers make various claims in their assignment of error
contending that the trial court erred by denying their request for attorney’s fees in
this matter. They argue, inter alia, that the trial court incorrectly stated that expert
testimony was necessary to establish that the hours spent on this case were
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reasonable, and that there was sufficient evidence to support their motion for
attorney’s fees.
Standard of Review
{¶21} Generally, we review a trial court’s decision regarding an award of
attorneys’ fees for an abuse of discretion. United Assn. of Journeyman and
Apprentices of the Plumbing and Pipe Fitting Industry v. Jack's Heating, Air
Condition & Plumbing, Inc., 3d Dist. No. 6–12–06, 2013–Ohio–144, ¶ 15,
citing Bittner v. Tri–Cty. Toyota, Inc., 58 Ohio St. 3d 143, 146, 569 N.E.2d 464
(1991). An abuse of discretion suggests the trial court’s decision is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219
(1983).
Discussion
{¶22} The Ritzlers argue that they are entitled to attorney’s fees and
sanctions pursuant to R.C. 2323.51 and Civ.R. 11. The party requesting the
attorney’s fees has the burden of providing evidence that the hours worked were
necessary to the action and that the amount of the fees is reasonable. Southeast
Land Dev., Ltd. v. Primrose Mgt., L.L.C., 3d Dist. Hancock Nos. 5–10–04, 5–10–
11, 2011–Ohio–2341, ¶ 15.
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{¶23} In this case, the trial court determined that there was some frivolous
conduct committed by Arcadia and its attorney. Arcadia did not file a cross-appeal
challenging this issue so we will accept the trial court’s finding on this matter.
{¶24} Nevertheless, the trial court determined that it could not award
attorney’s fees here because no evidence was presented that the hours spent on this
case were reasonable beyond the self-serving affidavit of the Ritzlers’ attorney and
because there was no differentiation through testimony or exhibits between work
that was spent responding to frivolous conduct and work that was spent responding
to legitimate factual or legal issues. In other words, the trial court found that the
Ritzlers did not adequately establish the amount of attorney’s fees that they were
actually entitled to receive for responding to frivolous matters.
{¶25} The Ritzlers challenge the trial court’s determination on appeal,
arguing that expert testimony is not actually required to establish attorney’s fees.
However, this argument misconstrues the trial court’s reasoning, which was that
absent evidence from a disinterested attorney, the trial court was left with the
Ritzlers’ attorney’s own statement that his fees and hourly rate were reasonable.
The trial court simply did not find that affidavit sufficient to objectively establish
the matter in this particular set of circumstances. Under other circumstances with
self-serving testimony we have found that a request for attorney’s fees was not
properly established. See United Assn. of Journeymen & Apprentices of the
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Plumbing & Pipe Fitting Industry v. Jack's Heating, Air Conditioning & Plumbing,
Inc., 3rd Dist. Hardin No. 6-12-06, 2013-Ohio-144, ¶¶ 23-32. Nevertheless, we
have also stated that “we have not gone so far as to hold that [disinterested/expert]
testimony is a threshold requirement [to establish attorney’s fees] in all
circumstances.” Grove v. Gamma Ctr., Inc, 3d Dist. Marion No. 9-12-41, 2013-
Ohio-1734, ¶ 31, citing Natl. City Bank v. Semco, Inc., 3d Dist. Marion No. 9-10-
42, 2011-Ohio-172, and Jack’s Heating, supra. Regardless, the trial court here
simply found that the Ritzlers did not meet their burden in this matter.
{¶26} Notwithstanding this point, the trial court found a second deficiency
with the Ritzlers’ request for attorney’s fees. The trial court found that it was unable
to determine from the bills and testimony presented what work had been conducted
on frivolous conduct versus what work had been spent on legitimate defenses by
Arcadia.
{¶27} The total billing appears to request $13,006.15 for work completed
prior to the hearing on the attorney’s fees motion, and an additional $2,500 for
preparation and attendance at the hearing on sanctions/frivolous conduct. As an
illustration of how it is difficult to discern the attribution of work contained in the
bill, one page of the bill submitted contains such lines as “1/22/2019 Review
Motion/ legal research” and “2/4/2019 Work on Brief.” However, no amount of
time is listed next to these tasks. Rather, at the bottom of fifteen listed tasks over
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the course of nearly a month is a summary that 12.2 hours had been worked totaling
a fee of $3,050 (not including costs and expenses). There is no breakdown
whatsoever as to how much time was spent on each task on a given day. Based on
the dates, this would seem to be around the time that the Ritzlers’ attorney would
have been dealing with the motion to dismiss. There is a slightly more detailed
billing statement beginning February 27, 2019, that shows the hours spent on
individual tasks on individual dates, but some of the “descriptions” are still vague.
{¶28} Moreover, as was stressed during cross-examination, there was even a
fair amount of work in the bills that was performed by the Ritzlers’ attorney before
the lawsuit was even filed. Based on these issues, we cannot find that the trial court
abused its discretion in determining that the Ritzlers’ evidence did not establish the
amount of time specifically spent in dealing with the “frivolous conduct.” See
Weaver v. Pillar, 5th Dist. Tuscarawas No. 2012-CA-32, 2013-Ohio-1052, ¶ 40
(“We find the record lacks evidence that Pillar was adversely affected by having to
defend allegedly frivolous claims, as distinguished from the need to defend the
lawsuit in general[.]”)
{¶29} In sum, the trial court found that there was some frivolous conduct
here, but it explicitly did not find willful or intentional misconduct that would satisfy
Civ.R. 11 sanctions. The trial court also did not find that the overwhelming nature
of the defense presented by Arcadia was dedicated to frivolous matters. This is
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important because when the trial court analyzed the attorney’s fees requested, the
Ritzlers did not present a detailed billing. Similarly, the Ritzlers did not supply any
disinterested testimony, which the trial court felt, in this particular case, would have
been necessary to help the Ritzlers’ establish their fees. Under the facts and
circumstances of this case we cannot find that the trial court abused its discretion by
denying the Ritzlers’ motion for attorney’s fees. Therefore their assignment of error
is overruled.
Conclusion
{¶30} For the foregoing reasons the Ritzlers’ assignment of error is overruled
and the judgment of the Hancock County Common Pleas Court is affirmed.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
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