Scipio v. Used Car Connection, Inc.

[Cite as Scipio v. Used Car Connection, Inc., 2012-Ohio-891.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
SHOFFON SCIPIO, )
)
PLAINTIFF-APPELLANT, )
)
VS. ) CASE NO. 10-MA-186
)
USED CAR CONNECTION, INC. ) OPINION
)
DEFENDANT-APPELLEE. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 08CV3269
JUDGMENT: Reversed and Remanded
APPEARANCES:
For Plaintiff-Appellant Atty. Cherie H. Howard
11 Central Square, Suite 800
Youngstown, Ohio 44503
For Defendant-Appellee Atty. Diane S. A. Vettori
60 Westchester Drive, Suite 1
Austintown, Ohio 44515
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: February 29, 2012
[Cite as Scipio v. Used Car Connection, Inc., 2012-Ohio-891.]
DONOFRIO, J.
{¶1} Plaintiff-appellant, Shoffon Scipio, appeals from a Mahoning County
Common Pleas Court judgment finding that her counsel was entitled to attorney’s
fees of $3,500.
{¶2} On August 13, 2008, appellant filed a complaint against defendant-
appellee, Used Car Connection, Inc., alleging violations of the Retail Installment
Sales Act and the Consumer Sales Practices Act. She later filed a supplemental
complaint asserting improper disposition of collateral. Appellee filed a counterclaim
alleging appellant failed to make timely payments or to pay a mechanic’s bill.
{¶3} On October 22, 2009, appellant filed a motion for summary judgment.
A magistrate sustained appellant’s motion in part, finding that she was entitled to
statutory damages of $600, entitled to judgment on appellee’s counterclaim, and,
entitled to an award of reasonable attorney’s fees to be determined at a later hearing.
Neither party filed objections. The trial court subsequently adopted the magistrate’s
decision and entered judgment accordingly.
{¶4} Next, appellant filed a motion for attorney’s fees in the amount of
$10,000. She later filed a supplemental motion for attorney’s fees in the amount of
an additional $4,000 and $300 in costs, which she stated her attorney incurred in
establishing her entitlement to a fees award. The magistrate held a hearing on
appellant’s motion where he heard testimony from appellant’s attorney and an expert
witness on each side.
{¶5} The magistrate sustained both appellant’s motion and supplemental
motion. He awarded a total of $10,158 in attorney’s fees against appellee.
{¶6} Appellee filed objections to the magistrate’s decision arguing that the
fee award was excessive. The trial court held a hearing on the objections. The court
found that in light of the fact that appellant was absent from the court’s jurisdiction for
an extensive period of time during the course of the case, the case could not be
settled and the efficient administration of justice was frustrated. It modified the
magistrate’s award to $3,500.
{¶7} Appellant filed a timely notice of appeal on December 15, 2010.
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{¶8} Appellant raises three assignments of error. All of her assignments of
error assert that the court abused its discretion in making its award of attorney’s fees.
{¶9} The standard of review on the issue of attorney fees is abuse of
discretion. Motorists Mut. Ins. Co. v. Brandenburg, 72 Ohio St.3d 157, 160, 648
N.E.2d 488 (1995). 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, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). “‘Unless
the amount of [attorney] fees determined is so high or so low as to shock the
conscience, an appellate court will not interfere. 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, 58 Ohio St.3d 143, 146, 569 N.E.2d 464 (1991), quoting Brooks v.
Hurst Buick-Pontiac-Olds-GMC, Inc., 23 Ohio App.3d 85, 91, 491 N.E.2d 345 (1985).
{¶10} 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., 48 Ohio St.3d 27, 548 N.E.2d 933 (1990), syllabus.
{¶11} Appellant’s first and third assignments of error are very similar.
Consequently, we will address them together. They state:
{¶12} “THE TRIAL COURT ABUSED ITS DISCRETION IN DECIDING
APPELLANT’S MOTION FOR ATTORNEY’S FEES.”
{¶13} “THE TRIAL COURT’S EXPLANATION FOR HOW IT ARRIVED AT
ITS FEE DECISION IS ARBITRARY, UNREASONABLE AND UNSUPPORTED BY
THE FACTS.”
{¶14} Here appellant argues that the trial court failed to engage in a lodestar
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calculation or analysis in order to determine the appropriate amount of attorney’s
fees. She argues that the lodestar amount is presumed to be reasonable. Appellant
contends that the court was then to explain how it deviated from the lodestar amount.
She contends the court was required to identify specific hours of work that it found to
be unnecessary or excessive.
{¶15} Attorney Matt Giannini was appellee’s expert witness. Atty. Giannini
testified that the amount of time necessary to litigate this matter “would probably be
somewhere between 15 and 20 hours.” (Tr. 73).
{¶16} Appellee contends that the trial court took Atty. Giannini’s testimony
and the $200 hourly rate found to be reasonable by the magistrate to come up with
the $3,500 award (17.5 hours x $200 per hour = $3,500).
{¶17} While appellee’s assertion of how the trial court reached its fee award is
certainly possible, we have no way of knowing for sure whether this was the way the
court reached its fee award.
{¶18} 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.
{¶19} Since Bittner was decided, the Rules of Professional Conduct have
replaced the Code of Professional Responsibility in Ohio. So now the factors set out
in Prof.Cond.R. 1.5(a) apply as they are based on former DR 2-106(B). Unick v. Pro-
Cision, Inc., 7th Dist. No. 09-MA-171, 2011-Ohio-1342, ¶30.
{¶20} Prof.Cond.R. 1.5(a) prohibits excessive fees:
{¶21} “(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:
{¶22} “(1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal service properly;
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{¶23} “(2) the likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment by the lawyer;
{¶24} “(3) the fee customarily charged in the locality for similar legal services;
{¶25} “(4) the amount involved and the results obtained;
{¶26} “(5) the time limitations imposed by the client or by the circumstances;
{¶27} “(6) the nature and length of the professional relationship with the client;
{¶28} “(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and
{¶29} “(8) whether the fee is fixed or contingent.”
{¶30} Here the trial court found that a modification of the magistrate’s
attorney’s fees award was reasonable because (1) appellant was absent from the
court’s jurisdiction for an extended period of time and her counsel was unable to
locate her; (2) settlement discussions were had but could not be communicated to
appellant due to her unavailability causing an excessive delay; (3) had appellant
been available, appellant’s counsel would have advised her that a recovery would
likely be minimal and that fees would exceed the amount that could be obtained by
judgment thereby making settlement offers more attractive; and (4) because of her
deliberate absence, the case could not be settled and the “prompt, efficient
administration of justice was frustrated.”
{¶31} In this case, despite its explanation regarding appellant’s absence and
thwarted settlement negotiations, the trial court never stated how many hours it
determined were reasonable, what it determined to be a reasonable hourly rate, or
which, if any, of the Prof.Cond.R. 1.5(a) factors applied. The lack of explanation was
in error and leaves this court of appeals with no way to conduct a meaningful review.
The trial court does state that it considered Bittner and the DR 2-106(B) factors, but it
does not elaborate any further.
{¶32} On several occasions, this court has reversed and remanded attorney’s
fees cases so that the trial court could properly apply Bittner. See O’Neill v.
Tanoukhi, 7th Dist. No. 10-MA-45, 2011-Ohio-2626; Harper v. Dog Town, Inc., 7th
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Dist. No. 08-NO-348, 2008-Ohio-6921; Braglin v. Crock, 7th Dist. No. 04-NO-0318,
2005-Ohio-6935.
{¶33} Until the trial court provides a detailed judgment entry employing the
Bittner methodology, we cannot review whether its award of attorney’s fees was
reasonable.
{¶34} Accordingly, appellant’s first and third assignments of error have merit.
{¶35} Appellant’s second assignment of error states:
{¶36} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT HELD
THAT APPELLANT’S ABSENCE DURING THE PENDENCY OF THE CASE
FRUSTRATED A SETTLEMENT, IMPEDED THE PROMPT, EFFICIENT
ADMINISTRATION OF JUSTICE, AND DRAMATICALLY INCREASED THE
ATTORNEY FEES SOUGHT BY APPELLANT’S LAWYER.”
{¶37} Appellant argues that the factual findings made by the trial court lack
any support in the record.
{¶38} Since the trial court failed to properly set out how it reached its fee
award, the issue presented here is not ripe for determination.
{¶39} We must also mention that appellee raises an “assignment of error.” It
asserts that because appellant’s counsel works for North East Ohio Legal Services
(NEOLS), she was not entitled to any fee award. It argues that NEOLS failed to
demonstrate that it is entitled to accept fee generating cases.
{¶40} Pursuant to App.R. 3(C), a party “who intends to defend a judgment * *
* and who also seeks to change the judgment * * * shall file a notice of cross appeal
within the time allowed by App.R. 4.” Appellee did not file a notice of cross appeal in
this case. Consequently, appellee may not make any arguments in this appeal that
would change the trial court’s judgment. See, Harper, 2008-Ohio-6921, ¶51.
{¶41} For the reasons stated above, the trial court's judgment is hereby
reversed and 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.
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Waite, P.J., concurs.
DeGenaro, J., concurs.