Fagan v. Boggs

[Cite as Fagan v. Boggs, 2011-Ohio-5884.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
LINDA FAGAN, et al., :
:
Plaintiffs-Appellees, : Case No. 10CA17
:
vs. : RELEASED: 10/21/2011
:
ROBERT J. BOGGS, DIRECTOR : DECISION AND
OHIO DEPARTMENT of : JUDGMENT ENTRY
AGRICULTURE, :
:
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Mike DeWine, Ohio Attorney General, and James R. Patterson, Ohio
Assistant Attorney General, Reynoldsburg, Ohio, for the Appellant.
David G. Cox, Columbus, Ohio, for the Appellees.
_____________________________________________________________
McFarland, J.:
{¶1} Appellant, Robert J. Boggs, Director, Ohio Department of
Agriculture, appeals the decision of the Washington County Court of
Common Pleas, which issued a declaratory judgment and injunction in favor
of Appellees, Linda Fagan and Donna Betts, with regard to a stop
sale/withdrawal from distribution order issued in connection with Appellees’
manufacture and distribution of pet food. Appellant also appeals the trial
court’s award of attorneys fees to Appellees. On appeal, Appellant contends
Washington App. No. 10CA17 2
that the trial court 1) erred and abused its discretion in holding that
Appellant denied Appellees due process and the equal protection of the laws
in applying R.C. 923.52; 2) erred and abused its discretion in awarding
Appellees attorney fees; 3) erred and abused its discretion in issuing an
injunction against future enforcement by Appellant of Ohio’s feed label laws
against Appellees' feed product labels; and 4) erred and abused its discretion
in holding that Appellant engaged in illegal rulemaking.
{¶2} Based upon our conclusion that Appellees did not avail
themselves of the administrative process available to them in the form of a
condemnation hearing, we conclude that the trial court erred in finding
Appellant’s issuance of a stop sale order resulted in a deprivation of due
process. Additionally, as Appellees have not demonstrated that they were a
member of a suspect class, that they were subjected to an arbitrary exercise
of power, or that they were treated differently than other persons under like
circumstances, we conclude that the trial court erred in finding an equal
protection violation. As such, Appellant’s first assignment of error is
sustained. Based upon our conclusion that the trial court abused its
discretion in awarding attorney fees to Appellees, Appellant’s second
assignment of error is sustained and the issue of attorney fees is remanded
for further proceedings consistent with this opinion.
Washington App. No. 10CA17 3
{¶3} Further, based upon our conclusion that the trial court erred in
granting injunctive relief beyond what was reasonable and necessary,
Appellant’s third assignment of error is sustained, in part. Specifically, we
uphold the injunction, but only to the limited extent that it enjoins Appellant
from issuing stop sale orders or revoking Appellees feed registrations based
upon the inclusion of raw milk as an ingredient. Finally, in light of our
conclusion that Appellant engaged in illegal rulemaking in violation of R.C.
Chapter 119 when it implemented a de facto rule prohibiting the use of milk,
or raw milk, as an ingredient in pet food, Appellant’s fourth assignment of
error is overruled.
FACTS
{¶4} Appellees, Linda Fagan and Donna Betts, are manufacturers of
pet food, the primary ingredient of which is milk, or raw milk, and have
been in this business since 2001 and 2002, respectively. Appellees were
previously issued commercial feed registrations by the Ohio Department of
Agriculture, “ODA,” and sold their products at local farmers markets. On
February 14, 2006, Appellees were issued “Stop Sale/Withdraw from
Distribution” orders from the Ohio Department of Agriculture, pursuant to
R.C. 923.52. The basis for the orders, according to the language contained
in the orders themselves, was that Appellees were “[s]elling pet food
Washington App. No. 10CA17 4
products made from milk. Milk is not recognized as a feed ingredient under
the definition of AAFCO (Association of American Feed Control
Officials).” Appellees complied with the orders. Having no feed on hand at
the time the orders were issued1, Appellees ceased further production of
their pet food.
{¶5} Subsequently, by letters dated April 24, 2006, the ODA notified
Appellees of their intent to revoke Appellees’ commercial feed registrations
pursuant to R.C. 923.42. In the letters, the ODA also notified Appellees of
their right to administrative hearings under R.C. 119. Both Appellees
obtained counsel in order to prepare for their requested hearings, which were
scheduled on July 12, 2006. However, having apparently determined that
Appellees were no longer marketing their commercial feed, the ODA
withrew its proposed revocations and the scheduled hearings were cancelled.
At that point, the situation essentially came to a standstill, with Appellees
having never commenced their production and the ODA having never
pursued the revocation of Appellees’ commercial feed registrations.
{¶6} On July 31, 2006, Appellees filed a complaint for declaratory
judgment and injunctive and other relief against the ODA. Then on
September 24, 2007, Appellees filed an amended complaint. In their
1
This is true, with the exception of Appellee Fagan, who did have butter on hand. Upon issuance of the
order, the butter was released to Appellee Fagan for her own personal use.
Washington App. No. 10CA17 5
amended complaint, Appellees alleged that 1) R.C. 923.52 is
unconstitutional on its face and as applied to them; 2) neither the director of
the ODA nor his staff can withdraw a proposed action under R.C. 119 once
an adjudication hearing is requested; 3) that a person who requests an
adjudication hearing once an agency issues a proposed action becomes a
prevailing party if the agency chooses to withdraw the proposed action prior
to the hearing; and 4) ODA engaged in illegal rulemaking. Further, as part
of their prayer for relief, Appellees specifically requested that the court
declare them to be “prevailing parties” under R.C. 119.092 and award them
attorney’s fees and costs pursuant to that statute, as well as R.C. 2335.39 and
2721.11.2 The ODA responded by filing an amended answer on October 9,
2007, and the matter proceeded with discovery.
{¶7} ODA filed a motion for summary judgment on November 16, 2007.
In support of their motion for summary judgment, Appellant attached an
affidavit by David Simmons, averring that in addition to containing the
prohibited ingredient of milk, Appellees’ labels also failed to contain a
guaranteed analysis,3 disclosures of minimum and maximum percentages of
crude protein, crude fat, crude fiber and moisture, intended animal species
for the pet foods, or statement of nutritional adequacy and purpose of the
2
R.C. 2721.11 provides that a court may award court costs in any action or proceeding in which
declaratory relief is sought.
3
Appellees’ labels provide for a “laboratory analysis” rather than a “guaranteed analysis.”
Washington App. No. 10CA17 6
product. Although Appellees opposed the motion for summary judgment,
they did not address Appellant’s claims regarding the additional deficiencies
in their product labels. The trial court ultimately denied the motion for
summary judgment, without addressing the additional alleged labeling
deficiencies.
{¶8} The matter proceeded to a trial on the merits to the court on August
25, 2008. After hearing the evidence presented by both parties, the trial
court ordered closing arguments, as well as findings of fact and conclusions
of law to be submitted by the parties. The trial court then adopted, almost
verbatim, Appellees proposed findings of fact and conclusions of law, and
issued its order and decision on October 29, 2008.
{¶9} In its order and decision, the trial court found that R.C. 923.52 was
constitutional on its face, but was unconstitutional as applied by the ODA to
Appellees. As a result, the trial court found Appellees’ complaint for
injunctive relief to be well taken and vacated the ODA’s stop orders. The
trial court further found that Appellees’ pet food labels complied with ODA
regulations and that because Appellees had not been afforded a hearing on
the validity of their labels, the court deemed the labels to be in compliance
with Ohio law and enjoined the ODA from further action to prohibit
Appellees’ use of their commercial feed licenses for the manufacture of pet
Washington App. No. 10CA17 7
food, on the basis that their labels did not comply with Ohio law. Further,
the trial court determined Appellees to be “prevailing parties” under Ohio
law and ordered that Appellee Fagan recover attorney fees in the amount of
$9,647.46, and Appellee Betts recover attorney fees in the amount of
$9,773.43.
{¶10} Additionally, the trial court reserved the right to impose additional
fees upon the application of Appellees for fees and costs incurred during the
hearing and the post-hearing period. The trial court further granted
Appellees’ motion to voluntarily dismiss counts two and three of their
amended complaint. The trial court’s order and decision did not contain
language indicating that it was a final, appealable order.
{¶11} Subsequently, and as essentially invited to do by the trial
court’s order, Appellees filed a post-trial motion for attorney’s fees and costs
on November 4, 2008. In their motion, Appellees requested additional fees
be awarded to them for the period from June of 2008 to the date the motion
was filed. Appellant, ODA, filed a memorandum contra to the motion on
November 18, 2008, to which Appellees filed a reply on November 19,
2008. All of these pleadings remained pending at the time ODA filed its
first appeal in this matter on November 26, 2008. As such, this Court
dismissed the prior appeal for lack of a final, appealable order.
Washington App. No. 10CA17 8
{¶12} After the dismissal, on May 25, 2010, the trial court held a hearing
on the issue of attorney fees and ultimately awarded Appellee Fagan an
additional $3,576.25 in fees and costs, and awarded Appellee Betts an
additional $3,559.75 in fees and costs. It is from this decision and entry that
Appellant now brings its timely appeal, assigning the following errors for
our review.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
HOLDING THAT APPELLANT DENIED APPELLEES DUE
PROCESS AND THE EQUAL PROTECTION OF THE LAWS IN
APPLYING R.C. 923.52.
II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
AWARDING APPELLEES ATTORNEY FEES.
III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
ISSUING AN INJUNCTION AGAINST FUTURE ENFORCEMENT
BY APPELLANT OF OHIO’S FEED LABEL LAWS AGAINST
APPELLEES’ FEED PRODUCT LABELS.
IV. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
HOLDING THAT APPELLANT ENGAGED IN ILLEGAL RULE
MAKING.”
STANDARD OF REVIEW
{¶13} Both parties agree that our standard of review on appeal is
abuse of discretion. In doing so, however, Appellant relies on cases
involving appeals from administrative hearings. The procedural history of
this case indicates that there was no administrative hearing held, and that
Washington App. No. 10CA17 9
instead the case originated with the filing of a complaint for declaratory
judgment at the common pleas court level. After a trial to the bench on the
merits, Appellant now appeals to this Court for a review of the trial court’s
decision.
{¶14} A declaratory judgment is a civil action and provides a remedy
in addition to other legal and equitable remedies available. Aust v. Ohio
State Dental Bd. (2000), 136 Ohio App.3d 677, 681, 737 N.E.2d 605; see,
also, In re Arnott, -- Ohio App.3d --, 2010-Ohio-5392, 942 N.E.2d 1124 at ¶
17. In Arnott, this Court further noted as follows:
“In Mid-American Fire & Cas. Co. v. Heasley, 113 Ohio St.3d 133, 2007-
Ohio-1248, 863 N.E.2d 142, the Supreme Court of Ohio reaffirmed that
[t]he granting or denying of declaratory relief is a matter for judicial
discretion, and where a court determines that a controversy is so contingent
that declaratory relief does not lie, this court will not reverse unless the
lower courts determination is clearly unreasonable. Id. at ¶ 12, quoting
Bilyeu v. Motorists Mut. Ins. Co. (1973), 36 Ohio St.2d 35, 65 O.O.2d 179,
303 N.E.2d 871, at syllabus. See also Englefield v. Corcoran, Ross App. No.
06CA2906, 2007-Ohio-1807, 2007 WL 1162162, at ¶ 11. Accordingly, we
will not reverse the trial court's decision to render declaratory relief unless
the trial court abused its discretion. ‘Abuse of discretion’ connotes more
than an error of judgment; it implies that the court's action was
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983),
5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140.” Arnott at ¶ 19.
However, as further noted in Arnott, “[a] trial court's determination of purely
legal issues is never one of degree or discretion. Regardless of whether the
action is styled as one for declaratory relief, the trial court must correctly
apply the law.” Arnott at ¶ 42; see, also, Washington County Home v. Ohio
Washington App. No. 10CA17 10
Dept. of Health, 178 Ohio App.3d 78, 2008-Ohio-4342, 896 N.E.2d 1011 at
¶ 27 (“we conduct a de novo review of a trial court’s judgment interpreting a
statute and afford no deference to the trial court’s interpretation of a
statute.”). Thus, we review the trial court's determinations on questions of
law de novo.
{¶15} For ease of analysis, we address Appellant’s assignments out of
order.
ASSIGNMENT OF ERROR I
{¶16} In its first assignment of error, Appellant contends that the trial
court erred and abused its discretion in holding that Appellant denied
Appellees due process and the equal protection of the laws in applying R.C.
923.52. A review of the record reveals that the trial court determined that
R.C. 923.52 was constitutional on its face but unconstitutional as applied to
Appellees.
{¶17} R.C. 923.52 is entitled “Withdrawal from distribution orders”
and provides as follows:
“The director of agriculture may issue and enforce a written withdrawal
from distribution order to the manufacturer or distributor of any lot of
commercial feed requiring it to be held at a designated place when the
director has reasonable cause to believe that the commercial feed is offered
or exposed for distribution or distributed in violation of any of the provisions
of sections 923.41 to 923.55 of the Revised Code or any rule adopted under
those sections. The commercial feed shall be held until a release in writing is
issued by the director. A release shall not be issued until sections 923.41 to
Washington App. No. 10CA17 11
923.55 of the Revised Code and the rules adopted under those sections are
complied with and until all costs and expenses incurred in connection with
the violation have been paid by the manufacturer or distributor. If
compliance is not obtained within thirty days of receipt of the withdrawal
from distribution order, the director may begin, and shall begin upon
request by the manufacturer or distributor, proceedings for condemnation
under section 923.53 of the Revised Code.” (Emphasis added).
{¶18} R.C. 923.53 is entitled “Seizure and condemnation of feed” and
provides as follows:
“Any lot of commercial feed not in compliance with sections 923.41 to
923.55 of the Revised Code or any rule adopted under those sections is
subject to seizure on complaint of the director of agriculture to a court of
competent jurisdiction in the county in which the commercial feed is
located. The court, upon a finding that the commercial feed is in violation of
sections 923.41 to 923.55 of the Revised Code or any rule adopted under
those sections, shall order the condemnation of the commercial feed and it
shall be disposed of in a manner consistent with the quality of the feed and
the laws of this state. The court shall not order the condemnation of the
commercial feed without first giving the manufacturer or distributor an
opportunity to reprocess or relabel the feed to bring it into compliance with
sections 923.41 to 923.55 of the Revised Code and the rules adopted under
those sections.” (Emphasis added).
{¶19} Further, O.A.C. 901.5-7-20(B) is entitled “Ingredients for pet
foods” and provides, in pertinent part, as follows:
“(B) * * * Any ingredient for which the association of American feed
control officials has established a name and definition shall be identified by
the name so established. Any ingredient for which no name and definition
has been so established shall be identified by the common or usual name of
the ingredient. Brand or trade names shall not be used in the ingredient
statement.”
Read together, these sections provide that the ODA may issue a stop sale
order, without a prior hearing. The manufacturer or distributor is then given
Washington App. No. 10CA17 12
thirty days to bring the feed into compliance. After that time has passed
ODA has the option of instituting a condemnation proceeding, as does the
manufacturer or distributor. Based upon a plain reading of the statute, such
a proceeding would have determined whether the feed was in violation of
sections 923.41 to 923.55 of the Revised Code. Further, a manufacturer or
distributor must be given an opportunity to reprocess or relabel the feed to
bring it into compliance before a court can order condemnation. Thus, a
manufacturer is given two chances to come into compliance during this
procedure.
{¶20} Appellant contends that R.C. 923.52 specifically provides for a
judicial review of a stop-sale order in the form of a condemnation
proceeding, but that Appellees failed to request such a hearing. Appellant
argues that had Appellees requested a condemnation hearing, it would have
“brought the entire issue of correctness of the stop sale orders before a fair
tribunal in a prompt fashion.” Appellant also argues that the trial court
confused the issues of whether Appellant allegedly interpreted a feed rule
correctly with whether it applied the statute in violation of Appellees’
constitutional rights to due process and equal protection.
{¶21} Appellees’ position is that they have a property interest in
making a living and that they were not afforded due process and were denied
Washington App. No. 10CA17 13
equal protection of the laws when Appellant, ODA, relied on R.C. 923.52
and O.A.C. 901.5-7-20(B) to stop them from manufacturing pet food that
contained raw milk as an ingredient. Appellees specifically contend that
those particular code sections do not prevent them from using raw milk as an
ingredient in a pet food product, and, as such, Appellant’s basis for issuing
the stop orders were illegal, and an unconstitutional application of the
pertinent statutes.
{¶22} An individual may challenge a statute as being unconstitutional
on its face and/or unconstitutional as applied to a particular set of facts.
Ruble v. Ream, Washington App. No. 03CA14, 2003-Ohio-5969, at ¶ 17,
citing Belden v. Union Cent. Life Ins. Co. (1944), 143 Ohio St. 329, 55
N.E.2d 629, at paragraph four of the syllabus. “If a statute is unconstitutional
as applied, the State may continue to enforce the statute in different
circumstances where it is not unconstitutional, but if a statute is
unconstitutional on its face, the State may not enforce the statute under any
circumstances.” Ruble at ¶ 17; citing Women's Med. Professional Corp. v.
Voinovich (C.A.6, 1997), 130 F.3d 187, 193. (Emphasis added).
{¶23} “A statute may be unconstitutional as applied if the government
selectively enforces it in violation of equal protection rights.” State v.
Sturbois, Athens App. No. 09CA12-13, 2010-Ohio-2492 at ¶ 23. In Yick Wo
Washington App. No. 10CA17 14
v. Hopkins (1886), 118 U.S. 356, 373-374, 6 S .Ct. 1064, the Supreme Court
explained: “[t]hough the law itself be fair on its face, and impartial in
appearance, yet, if it is applied and administered by public authority with an
evil eye and an unequal hand, so as practically to make unjust and illegal
discriminations between persons in similar circumstances, material to their
rights, the denial of equal justice is still within the prohibition of the
constitution.” Sturbois at ¶ 23.
{¶24} The Fourteenth Amendment to the United States Constitution
provides that a state shall not deny any person the equal protection of the
law. In other words, a state may not treat people differently under its laws on
an arbitrary basis. Harper v. Virginia State Bd. of Elections (1966), 383 U.S.
663, 86 S.Ct. 1079. Unless a suspect class or a fundamental right is
involved, a legislative distinction must bear a rational relationship to a
legitimate state interest to comply with the Equal Protection Clause.
Clements v. Fashing (1982), 457 U.S. 957, 963, 102 S.Ct. 2836. State laws
must be applicable to all persons under like circumstances and not subject
people to an arbitrary exercise of power. Conley v. Shearer (1992), 64 Ohio
St.3d 284, 288, 1992-Ohio-133, 595 N.E.2d 862. The equal protection
guarantee of Section 2, Article I, of the Ohio Constitution essentially is
identical to that afforded by the Equal Protection Clause of the Fourteenth
Washington App. No. 10CA17 15
Amendment. Kinney v. Kaiser Aluminum & Chem. Corp. (1975), 41 Ohio
St.2d 120, 123, 322 N.E.2d 880.
{¶25} Although the trial court found that R.C. 923.52 was
constitutional on its face it determined that ODA’s interpretation of the
ordinance, and its subsequent application of that interpretation, or stated
another way, policy of selective enforcement, rose to the level of an equal
protection violation. As will be discussed more fully in our analysis of
Appellant’s fourth assignment of error related to illegal rulemaking, we
agree with trial court’s determination that Appellant mistakenly interpreted
the relevant statutes and rules to prohibit raw milk as a feed ingredient.
However, for the following reasons, we cannot conclude that Appellant’s
stop sale order, issued in accordance with the process set forth in R.C.
923.52, deprived Appellant’s of their rights to due process and equal
protection of the laws.
{¶26} As properly argued by Appellant, Appellees did not request a
condemnation hearing. Thus, they did not avail themselves of the
administrative remedies available to them to promptly determine whether the
basis of the stop sale orders were appropriate. Appellees contend that the
stop sale orders were illegally issued because they had no “lots” of
commercial feed on hand at the time of their issuance. We find this fact to
Washington App. No. 10CA17 16
be irrelevant as both manufacturers had been actively engaged in the
manufacture and distribution of the pet food at issue at the time the stop sale
orders were implemented. Thus, we find the fact that they had no feed on
hand on the day the orders were issued to be inconsequential.
{¶27} Appellees contended at trial that the underlying basis for the
stop sale order, that the pet food contained raw milk which was an allegedly
prohibited ingredient, was based upon an erroneous interpretation of the
rules by ODA. As indicated above, we agree with Appellees’ argument that
the underlying basis for the issuance of the order was flawed. However, in
our view, ODA’s attempt to enforce an unwritten, or de facto, prohibition of
raw milk does not rise to the level of creating a deprivation of due process or
equal protection, especially considering Appellees did not request a
condemnation hearing.
{¶28} In reaching its decision on the merits below, the trial court
made several findings related to the issuance of the stop sale order and
Appellee’s lack of options to challenge the order. For instance, the trial
court concluded 1) the manner in which the stop order was issued prevented
Appellees from challenging the basis of the stop order; 2) because Appellees
complied with the stop order, there was no mechanism by which they could
have appealed the stop order; and 3) the only means by which Appellees
Washington App. No. 10CA17 17
could have challenged the stop orders without willfully violating the orders,
was by initiating a declaratory judgment action. Based upon the following,
we disagree with the legal conclusions reached by the trial court.
{¶29} The stop sale order was issued in accordance with the process
set forth in R.C. 923.52, a statute which the trial court found to be valid on
its face and which none of the parties challenge on appeal. Appellees did
not avail themselves of the due process protections in place, in the form a
condemnation proceeding. Had they done so, they could have promptly
argued their differing interpretation of the feed ingredient definitions.
Conceivably, the parties’ differing interpretations of the feed ingredient
definitions pertaining to raw milk could have been resolved had such a
hearing been held, Appellees could have been brought into compliance, and
the stop order could have been lifted. However, Appellant did not initiate
and Appellees did not request proceedings for condemnation. Thus,
Appellees were not deprived of their right to a hearing, they simply did not
exercise that right.
{¶30} Further, Appellees have not demonstrated that they are part of
any suspect class, that they were subjected to an arbitrary exercise of power,
or that they were treated differently than other persons under like
circumstances. In fact, the testimony offered at trial suggests that Appellees
Washington App. No. 10CA17 18
may be the only pet food manufacturers in the state of Ohio that use raw
milk as an ingredient in their pet food products. As a result, we cannot
conclude that Appellees were deprived of their constitutional rights to due
process or equal protection by the issuance of the stop sale orders. As such,
Appellant’s first assignment of error is well taken. Accordingly, the
decision of the trial court, to the extent that it determined that R.C. 923.52
was unconstitutionally applied to Appellees, resulting in a deprivation of due
process and equal protection, is reversed.
ASSIGNMENT OF ERROR IV
{¶31} In its fourth assignment of error, Appellant contends that the
trial court erred and abused its discretion in holding that Appellant engaged
in illegal rulemaking. Appellant essentially contends that the trial court
improperly equated disagreement with Appellant’s interpretation and
enforcement of the pertinent rules with illegal rulemaking. Appellant further
argues that just because a court may ultimately determine that an agency is
incorrect in a given interpretation, it does not mean that the agency engaged
in illegal rulemaking.
{¶32} Appellees allege that Appellant “engaged in illegal rulemaking
by interpreting O.A.C. 901.5-7-20(B) in such a manner that it included a
prohibition on the use of raw milk as an ingredient in a pet food product that
Washington App. No. 10CA17 19
does not exist in the rule.” The trial court agreed with this argument,
ultimately concluding that Appellant had engaged in illegal rulemaking. For
the following reasons, we agree with the trial court’s conclusion.
{¶33} As set forth above, the interpretation of a statute involves a
purely legal question. Thus, we conduct a de novo review of a trial court's
judgment interpreting a statute and afford no deference to the trial court's
interpretation of a statute. See, e.g., Oliver v. Johnson, Jackson App. No.
06CA16, 2007-Ohio-5880 at ¶ 5.
{¶34} In construing a statute, a court's paramount concern is the
legislature's intent in enacting it. See, e.g., State ex rel. Cincinnati Enquirer
v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, at ¶
17; State ex rel. Russell v. Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858,
856 N.E.2d 966, ¶ 11. “ ‘The court must look to the statute itself to
determine legislative intent, and if such intent is clearly expressed therein,
the statute may not be restricted, constricted, qualified, narrowed, enlarged
or abridged; significance and effect should, if possible, be accorded to every
word, phrase, sentence and part of an act * * *.’ ” State ex rel. McGraw v.
Gorman (1985), 17 Ohio St.3d 147, 149, 478 N.E.2d 770, quoting
Wachendorf v. Shaver (1948), 149 Ohio St. 231, 78 N.E.2d 370, paragraph
five of the syllabus. To determine legislative intent, a court must “ ‘read
Washington App. No. 10CA17 20
words and phrases in context and construe them in accordance with rules of
grammar and common usage.’ ” Id., quoting State ex rel. Russell v.
Thornton, supra, at ¶ 11. “In construing the terms of a particular statute,
words must be given their usual, normal, and/or customary meanings.”
Proctor v. Kardassilaris, 115 Ohio St.3d 71, 2007-Ohio-4838, 873 N.E.2d
872, ¶ 12.
{¶35} When the language of a statute is plain and unambiguous and
conveys a clear and definite meaning, there is no need to apply rules of
statutory construction. Id.; see also Cline v. Ohio Bur. of Motor Vehicles
(1991), 61 Ohio St.3d 93, 96, 573 N.E.2d 77; Sears v. Weimer (1944), 143
Ohio St. 312, 55 N.E.2d 413, paragraph five of the syllabus. However, when
a statute is subject to various interpretations, a court may invoke rules of
statutory construction to arrive at legislative intent. R.C. 1.49; Cline, supra;
Carter v. Youngstown (1946), 146 Ohio St. 203, 65 N.E.2d 63, paragraph
one of the syllabus.
{¶36} Additionally, “ ‘An Ohio Administrative Code section is a
further arm, extension, or explanation of statutory intent implementing a
statute passed by the General Assembly.’ ” Washington County Home v.
Ohio Dept. of Health, 178 Ohio App.3d 78, 2008-Ohio-4342, 896 N.E.2d
1011; quoting Belinky v. Drake Center, 117 Ohio App.3d 497, 505-506, 690
Washington App. No. 10CA17 21
N.E.2d 1302. Thus, when reasonably possible, courts must harmonize,
reconcile, and construe statutes and administrative regulations together. See
State ex rel. Cuyahoga Cty. Hosp. v. Ohio Bur. of Workers' Comp. (1986),
27 Ohio St.3d 25, 27, 500 N.E.2d 1370, citing State ex rel. McGraw v.
Gorman (1985), 17 Ohio St.3d 147, 478 N.E.2d 770, and Wooster
Republican Printing Co. v. Wooster (1978), 56 Ohio St.2d 126, 383 N.E.2d
124. Moreover, a rule implemented as an extension of a statute has the full
force and effect of a statute, unless it is unreasonable or conflicts with a
statute covering the same subject matter. See State ex rel. Celebrezze v. Natl.
Lime & Stone Co. (1994), 68 Ohio St.3d 377, 382, 627 N.E.2d 538; Belinky,
supra, at 505. R.C. 923.50, which is entitled “Rulemaking powers; adoption
of definitions” provides, in pertinent part, as follows:
“(A) The director of agriculture shall adopt, and may amend or rescind,
rules in accordance with Chapter 119. of the Revised Code as
necessary to carry out the purposes of this chapter.
(B) The director, by reference, may adopt:
(1) The official definitions of feed ingredients and official feed terms
adopted and published by the association of American feed control
officials;”
{¶37} O.A.C. 901:5-7-01, which is entitled “Definition and terms”
provides, in pertinent part, as follows:
Washington App. No. 10CA17 22
“(A) Except for those terms specifically defined in this chapter, the
department of agriculture hereby adopts, by reference, the following
from the association of American feed control officials (AAFCO):
(1) The official definitions of the feed ingredients, the official feed terms,
and the process and procedures as contained in the 2005 edition of the
Official Publication; and
(2) The May 1, 2000, AAFCO feed inspectors manual.” (prior version
with eff. date 09-22-2005)
{¶38} Further, O.A.C. 901:5-7-20, entitled “Ingredients for pet
foods,” provides, in pertinent part, as follows:
“(B) Each ingredient of the pet food shall be listed in the ingredient
statement, and names of all ingredients in the ingredient statement
must be shown in letters or type of the same size. The failure to list
the ingredients of a pet food in descending order by their
predominance by weight in non-quantitative terms may be misleading.
Any ingredient for which the association of American feed control
officials has established a name and definition shall be identified by
the name so established. Any ingredient for which no name and
definition has been so established shall be identified by the common
or usual name of the ingredient. Brand or trade names shall not be
used in the ingredient statement.” (Emphasis added).
{¶39} Finally, R.C. 119.03, entitled “Procedure for adoption,
amendment, or rescission of rules; fiscal analysis,” in (A) and (B) provides
that in adopting, amending or rescinding any rule, the agency shall file
electronic copies of the proposed rule or changes with the secretary of state
and with the director of the legislative service commission, thereby putting
the public on notice, and a public hearing must be held.
Washington App. No. 10CA17 23
{¶40} Thus, based upon a plain reading of the statutes, and in attempt
to harmonize the statutes and the above rules, it appears that the legislature
authorized the director of agriculture to adopt rules in accordance with R.C.
119.03, and also to adopt feed terms and feed ingredient definitions as set
forth by the American Association of Feed Control Official’s (AAFCO’s)
official publication. Further, it appears that the director exercised such
authority by virtue of the existence of O.A.C. 901:5-7-01, which adopted
and incorporated by reference the official definitions of the feed ingredients,
the official feed terms, and the process and procedures as set forth in the
AAFCO’s Official Publication, 2005 Ed.
{¶41} The parties herein manufacture pet food containing raw milk
and goat milk. Appellee Fagan’s products contain raw cow’s milk while
Appellee Betts’ products contain goat’s milk. Appellant contends that raw
milk is a prohibited pet food ingredient because it is not listed as an
approved ingredient in the AAFCO’s list of approved ingredients, and
because it is not exempted from being listed as an ingredient in O.A.C.
901:5-7-01.4 Appellees argue, to the contrary, that AAFCO does have a
4
This version of the rule in effect at the time the stop sale ordered was issued exempted raw meat, hay,
straw, stover, silage, cobs, husks and hulls from the definitions of commercial feed. Of importance herein,
the current version of the rule, which became effective July 7, 2008, also exempts goat milk (as used by
Appellee Betts in her pet food products).
Washington App. No. 10CA17 24
definition for milk5, and also argues in the alternative that even if AAFCO
did not have a definition for milk, milk is a common name that requires no
definition. In support of their alternative argument, Appellees rely on the
following language contained in the introduction of the Feed Ingredients
Definition section of the 2005 Official Publication:
“Occasionally, an item may be suggested as an ingredient in a mixed feed
that is not listed in this publication. When this happens, the appropriate
investigator should be contacted, a term developed, and the product defined.
Some ingredients, e.g. sugar, are so common there is no need to define
them.” (Emphasis added).
{¶42} Appellees argue that the Ohio Revised Code, the Ohio
Administrative Code, and the AAFCO do not prohibit raw milk as an
ingredient in pet food. Appellees further argue there have been no changes
in the statutes, rules or referenced definitions since Appellees were first
licensed to sell pet food containing raw milk, and that the only change has
been the director of the Ohio Department of Agriculture’s Feed, Fertilizer
and Seed Section from William Goodman to David Simmons. We agree
with Appellees that the Ohio Revised and Administrative Codes to do not
expressly prohibit milk or raw milk as a pet food ingredient. Further, based
upon the testimony introduced at trial related to AAFCO’s position on milk
as an ingredient, and in light of the fact that the Administrative Code
5
The AAFCO’s Official Publication, 2005 Ed., includes “raw” and “milk” as feed terms. Raw is a term
defined as “[f]ood in its natural or crude state not having been subjected to heat in the course of preparation
as a food.” Milk is a term defined as “[t]otal lacteal secretion from the mammary gland.”
Washington App. No. 10CA17 25
indicates that the director of agriculture has adopted AAFCO’s feed
definitions and incorporated them by reference into the Code, we agree with
Appellees’ that raw milk is not a prohibited feed ingredient.
{¶43} For instance, at trial, William Goodman, former director of
Feed, Fertilizer and Seed, and twenty-nine year ODA employee, testified as
follows:
“Q. And what’s your understanding of why we’re here today?
A. My understanding is that the interpretation of the Ohio Feed Law is
that raw milk or goat milk is not a pet food.
Q. And is that a change in interpretation from when you used to be head
of the section?
A. Yes.
Q. So ODA has changed their position then; is that correct?
A. That’s correct.”
{¶44} Dennis Fravel, a grain, feed, and seed inspector with twenty
years experience with ODA, also testified at trial as follows:
“Q. This is the 2005 official publication, right?
A. Yes.
Q. On page 244, one of the feed terms that’s listed is milk.6
A. Milk, total lacteal secretion from the mammary glands.
6
On cross examination, counsel for Appellant drew a distinction between milk being listed as a feed term
versus as a feed ingredient.
Washington App. No. 10CA17 26
Q. From the mammary glands?
A. Yes.
***
Q. Mr. Fravel, this is is [sic] the regulation 5-7-20, Paragraph B. Can
you read the last two sentences of Paragraph B into the record, please?
A. ‘Any ingredient for which the Association of American Feed Control
Officials has established a name and definition shall be identified by
the names so established. Any ingredient for which no name and
definition has been so established shall be identified by the common
or usual name of the ingredient.’
Q. Okay. So here this regulation is referring to AAFCO, isn’t it?
A. Yes, sir.
Q. And it says, basically, if a name has been identified, you shall name
that name on the label, right?
A. Yes, sir.
Q. And we just read in the 2005 AAFCO handbook, milk is one of the
names, right?
A. It gives the definition of it, yes.
***
Q. So as an employee of ODA, they’re not in violation of 5-7-20 B, are
they?
***
A. It would be a common name.
Q. Milk would be a common name.
Washington App. No. 10CA17 27
A. Yes.”
{¶45} David Simmons, William Goodman’s successor at ODA, also
testified at trial. Although much of Simmons’ testimony is pertinent, we do
not include all of it due to the volume; however, Simmons essentially
testified that he interpreted the Ohio rules and statutes, as well as the
AAFCO definitions to prohibit the use of milk or raw milk as an ingredient
in pet food. The following excerpt highlights the gist of Simmons’ position
with regard to raw milk:
“Q. Where does it say in the law, in the Ohio Administrative Code or in
the Ohio Revised Code, that you can’t use milk?
A. The Ohio Revised Code adopts AAFCO’s official feed definitions.
Milk is not in the feed definitions as an approved ingredient. It is not
in GRAS – it’s not recognized as safe under GRAS by CVM. It is not
exempted in our law as a whole commodity. And so it’s left for that
one area if raw milk is determined to be common – so common that it
does not need defined.
Q. Where does the Ohio Administrative Code refer to GRAS? Which is
G-R-A-S, Generally Recognized as Safe, correct?
A. Correct, yes.
Q. Where does the Ohio Administrative Code or Ohio Revised Code
refer to GRAS:
A. AAFCO, within the feed terms.
***
A. AAFCO adopts GRAS terms in the back of the book.
Washington App. No. 10CA17 28
Q. It does? You’ve got the 2005 edition, right?
A. Yeah.
Q. Where is milk excluded or prohibited?
A. It’s not approved.
Q. It’s not approved? By who?
A. It’s not approved by AAFCO. It’s not approved by CVM.
Q. Well, then your testimony is different than Dr. Rodney Noel’s, isn’t
it?
A. If you say so.”
{¶46} Dr. Rodney Noel, former president and current secretary
treasurer of AAFCO and member of the pet food committee, was deposed in
this matter and his deposition was introduced at trial. In his deposition, Mr.
Noel testified as follows:
“Q. * * * So what about milk, is milk a feed term?
A. I don’t think so.
Q. You don’t think so?
A. I, let me make sure. Yes it is.
Q. Okay, something other than just milk would have to be the ingredient.
A. Yes.
Q. Like whole milk, skim milk, fat something like that.
Washington App. No. 10CA17 29
A. Right.
Q. Okay, well, let me cut to the chase then, in terms of AFFCO’s [sic]
position, does AFFCO [sic] take a position on whether or not raw
milk can be used as an ingredient in a pet food?
A. We haven’t at this time, no.
***
Q. Okay. And has AFFCO [sic] established the name and definition for
milk?
A. Just the feed term.
Q. Okay, the feed term, okay.
A. Right.
Q. Would you consider milk a common name or usual name?
A. Yes.
***
Q. Okay. If milk’s not adulterated, or if there’s no evidence that is [sic]
adulterated, would there be any AFFCO [sic] prohibition against using
that raw milk as a pet food ingredient?
A. Not at this time.”
{¶47} Thus, based upon our review of the relevant statutes and
administrative rules, and in light of the foregoing testimony, we conclude
that raw milk is not a prohibited pet food ingredient. We further conclude
that by prohibiting raw milk as an ingredient in pet food and enforcing that
prohibition through the use of stop sale order, Appellant, ODA, has engaged
Washington App. No. 10CA17 30
in illegal rulemaking in violation of R.C. 119. Appellant correctly points out
that it must follow a specific procedure in adopting administrative rules, but
argues that it has merely interpreted the rules in such a way that prohibits
raw milk. We conclude, however, the fact that there is no formal, written or
adopted rule prohibiting raw milk to be the essence of the problem. ODA is,
in effect, establishing and enforcing a de facto rule, or agency policy, that
has affected Appellees’ private rights, has no basis in the law and which the
public, and specifically, Appellees were not provided notice.
{¶48} As argued by Appellees and as set forth above, R.C. 119.03 sets
forth certain procedures that must be followed when adopting rules. None of
these procedures were followed with regard to ODA’s unwritten policy of
prohibiting raw milk as a pet food ingredient. There was nowhere Appellees
could have looked which would have put them on notice of this policy. The
fact that ODA had previously approved Appellees’ products and labels,
which specifically disclosed the allegedly prohibited ingredients, further
illustrates the fact that Appellees, and the general public were not put on
notice of this agency policy, which in effect, was enforced as if it were a
properly promulgated rule.
{¶49} Our reasoning is further supported by the Supreme Court of
Ohio’s decision in State ex rel. Celebrezze v. National Lime & Stone Co.,
Washington App. No. 10CA17 31
supra, which involved the interpretation of certain administrative rules
promulgated by the Director of the Ohio Environmental Protection Agency.
Although the Court noted “the long accepted principle that considerable
deference should be accorded to an agency’s interpretation of the rules the
agency is required to administer[,]” the Court determined that the
interpretation of the Attorney General was unreasonable. Id. at 382. After
reaching this conclusion, the Court reasoned that “to allow appellee to
broadly interpret a rule that the OEPA has tacitly admitted is less than all-
inclusive would be tantamount to unannounced rulemaking in violation of
R.C. Chapter 119.” Id. at 383. In further discussion, the Court stated as
follows: “Excessive regulation can disrupt vital functions of a business,
threatening the company’s very existence. Similarly, exposing a business to
regulations not explicitly covered by statute or rule could have an equally
detrimental impact.” Id at 384.
{¶50} Here, we find Appellant’s unreasonable interpretation of the
relevant rules, statutes and definitions, and subsequent enforcement was
tantamount to illegal rulemaking in violation of R.C. Chapter 119. As such,
Appellant’s fourth assignment of error is overruled and decision of the trial
court is affirmed with respect to this issue.
Washington App. No. 10CA17 32
ASSIGNMENT OF ERROR III
{¶51} In its third assignment of error, Appellant contends that the trial
court erred and abused its discretion in issuing an injunction against future
enforcement by Appellant of Ohio’s feed label laws against Appellees’ feed
product labels. The standard of review regarding the granting of an
injunction by a trial court is whether the trial court abused its discretion. City
of Canton v. Campbell, Stark App. No. 2001CA00205, 2002-Ohio-1856citing Mechanical Contractors Association of Cincinnati, Inc. v. University
of Cincinnati (2001), 141 Ohio App.3d 333, 338, 750 N.E.2d 1217. The
terms abuse of discretion connotes more than an error of law or judgment. It
suggests that the court's attitude is unreasonable, arbitrary or
unconscionable. Id .
{¶52} Appellant initially contends that Appellees’ should not have
been able to pursue an injunction, arguing there was no claim for injunctive
relief to be found anywhere in the amended complaint. To the contrary,
Appellant’s amended complaint was titled “Amended Complaint for
Declaratory Judgment and Injunctive And Other Relief.” Further, in the
“Prayer for Relief” Appellees’ requested that the trial court “[d]eclare that
ODA is estopped from revoking Linda’s and Donna’s commercial feed
registrations now and in the future.”
Washington App. No. 10CA17 33
{¶53} Civ.R. 8 governs “General rules of pleading” and provides in
(A) “Claims for relief” that
“A pleading that sets forth a claim for relief, whether an original claim,
counterclaim, cross-claim, or third-party claim, shall contain (1) a short and
plain statement of the claim showing that the party is entitled to relief, and
(2) a demand for judgment for the relief to which the party claims to be
entitled.”
In Ogle v. Ohio Power Co., 180 Ohio App.3d 44, 2008-Ohio-7042, 903
N.E.2d 1284 at ¶ 5, we noted that “Civ.R. 8(A) requires only a short and
plain statement of the claim that gives the defendant fair notice of the
plaintiff's claim and the grounds upon which it is based[,] * * * Thus, a
plaintiff is not required to plead the legal theory of the case at the pleading
stage and need only give reasonable notice of the claim.” Citations omitted.
As such, we cannot conclude that that trial court erred or abused its
discretion in considering Appellees’ request for an injunction.
{¶54} Appellant further contends that “the injunction as stated goes
far beyond any reasonable or necessary remedial measure[,]” arguing that
the trial court has essentially granted Appellees “a lifetime ‘immunity card’
from the requirements of lawful public protection law.” In support of this
argument Appellant points out that aside from the issue of whether milk is
an acceptable ingredient, the labels do not contain other mandatory terms
related to a guaranteed analysis, disclosures of crude protein, fat, fiber and
Washington App. No. 10CA17 34
moisture, disclosure of the intended animal species and adequate feeding
instructions. The trial court summarily dismissed this argument below,
reasoning that “ODA cannot now use other reasons for issuing the stop
orders to the Plaintiffs, including such reasons as their labels do not contain
instructions for use, they do not specify the species of animal for which the
products should be used, or they do not contain moisture content or
minimum or maximum percentages.”
{¶55} Contrary to the findings of the trial court, Appellant made this
argument as early as the summary judgment phase, well before the trial on
the merits. As set forth above, David Simmons affidavit in support of
Appellant’s motion for summary judgment alleged these labeling
deficiencies and Appellees have not disputed them. Thus, we agree with
Appellant’s argument that the injunction granted goes beyond any necessary
remedial measure. To affirm the injunction as it is would permit Appellees’
noncompliance with these other labeling requirements.
{¶56} However, in light of our determination under Appellant’s fourth
assignment of error that Appellant engaged in illegal rulemaking by
enforcing a prohibition against raw milk, we uphold the injunction to the
limited extent that it enjoins Appellant from issuing stop sale orders or
revoking Appellees feed registrations based upon the inclusion of raw milk
Washington App. No. 10CA17 35
as an ingredient. That is, unless and until Appellant, ODA, properly
promulgates a rule which specifically prohibits the use of raw milk.
{¶57} As such, we conclude that the trial court abused its discretion in
granting injunctive relief, to the extent that the relief exceeds enjoining
Appellant from enforcing a prohibition on raw milk. Accordingly,
Appellant’s third assignment of error is sustained in part and the injunction
is vacated in part.
ASSIGNMENT OF ERROR II
{¶58} In its second assignment of error, Appellant contends that the
trial court erred and abused its discretion in awarding Appellees attorney
fees. Specifically, Appellant argues that the trial court awarded all of
Appellees attorney fees from the beginning of their dealings with ODA
without regard to whether such fees pertain to the legal issues upon which
they prevailed. Appellants argue that some of the legal fees pertain to the
dismissed counts relating to the ODA administrative matter. Appellant also
argues that it was substantially justified in initiating the matter in
controversy and as such attorney fees should have been denied. Appellant
further challenges the trial court’s decision to allow an hourly rate of
$165.00, instead of the statutory rate of $75.00 per hour.
Washington App. No. 10CA17 36
{¶59} We initially note that the trial court appears to have granted
attorney fees under R.C. 2335.39 rather than R.C. 119.092 as Appellees did
not go through the administrative hearing process. In reviewing the action
of the court of common pleas, we may modify the court’s order only if we
find that the grant of an award, or the calculation of the amount of the award,
involved an abuse of discretion. R.C. 2335.39. The terms abuse of
discretion connotes more than an error of law or judgment. It suggests that
the court's attitude is unreasonable, arbitrary or unconscionable. Mechanical
Contractors Association of Cincinnati, Inc, supra.
{¶60} R.C. 2335.39(B) provides that an individual may recover
attorney fees if (1) he prevails, (2) he is financially eligible, and (3) the
state's position in initiating the matter in controversy was not substantially
justified. Further, when considering a motion for attorney fees, a trial court
may deny an award or reduce it if it finds that the state was substantially
justified in initiating the matter in controversy, or that the “prevailing
eligible party engaged in conduct during the course of the action or appeal
that unduly and unreasonably protracted the final resolution of the matter in
controversy.” R.C. 2335.39(B)(2)(a)-(b).
Washington App. No. 10CA17 37
{¶61} We first address the issue of whether Appellees were, in fact,
prevailing parties under R.C. 2335.39.7 The trial court found Appellees to
be prevailing parties and awarded them all of their attorney fees, without
reduction, at an hourly rate of $165.00. Appellant challenges this finding,
arguing Appellees cannot be prevailing parties on counts two and three of
their complaint, which were voluntarily dismissed.
{¶62} R.C. 2335.39(A)(5) defines a “prevailing eligible party” as “an
eligible party that prevails in an action or appeal involving the state.” Here,
Appellees’ amended complaint included four counts and a request for an
injunction. Counts one and four dealt with the issuance of the stop sale
order under R.C. 923.52 and ODA’s illegal rulemaking, respectively and
were the subject of the present appeal. Counts two and three both dealt with
ODA’s failure to hold an administrative hearing after proposing to revoke
Appellees’ commercial feed registrations. Counts two and three were
voluntarily dismissed by Appellees at the trial court level and have not been
addressed on appeal.
{¶63} “A party who appeals an order or judgment and prevails to the
extent that he obtains a new trial, or a modification of the judgment, is a
“prevailing party” within the contemplation of R.C. 2335.39. There is
7
It is undisputed on appeal that Appellees are financially eligible parties, thus, we do not address this issue.
Washington App. No. 10CA17 38
nothing in that section that requires a finding that a prevailing party on an
appeal is limited to one who succeeds in having a ‘complete victory,’ which
presumably means having the entire matter determined in his favor without a
remand to the tribunal from which the appeal is taken for further
proceedings.” Korn v. Ohio State Medical Board, 71 Ohio App.3d 483, 487,
594 N.E.2d 720. Although Korn prevailed in his appeal, he failed to achieve
a total victory. Id. In response to an argument that attorney fees could not
be awarded on a pro rata basis, the Tenth District Court of Appeals reasoned
that “the trial court must find the amount of attorney fees that were
reasonably expended with respect to the matters as to which Korn was
successful on appeal.” Id. at 489.
{¶64} We find the reasoning in Korn to be persuasive and instructive
on how to handle the issue presently before us. Thus, like the trial court, we
find Appellees to be prevailing parties, despite their failure to achieve a
complete victory. However, we also find that the trial court should have
apportioned the award of attorney fees based upon the counts upon which
Appellees were successful and that its failure to do so was an abuse of
discretion. Thus, and in light of the determinations made in the within
appeal, Appellees were only successful on count four of their amended
complaint, as well as their request for an injunction. In so finding, we agree
Washington App. No. 10CA17 39
with Appellant that Appellees should not be awarded attorney fees for
counts two and three, which they voluntarily dismissed at the trial court
level.
{¶65} We next address the issue of whether the trial court should have
denied or reduced the attorney fee award under R.C. 2335.39(B)(2)(a) or (b).
Here, in light of the fact that we determined Appellant engaged in illegal
rulemaking and initially issued a stop sale order pursuant to its illegal
rulemaking, we reject Appellant’s assertion that it was substantially justified
in initiating the matter in controversy.8 As such, the trial court did not abuse
its discretion in failing to deny or reduce the award under R.C.
2335.39(B)(2)(a). However, in light of our determination that Appellees
should have requested a condemnation hearing pursuant to R.C. 923.52, on
remand, the trial court would be justified in reducing the award accordingly.
{¶66} Finally, Appellant challenges the trial court’s determination that
an hourly rate of $165.00 was reasonable. R.C. 2335.39(A)(3) provides that
“ ‘[f]ees’ means reasonable attorney’s fees, in an amount not to exceed
seventy-five dollars per hour or a higher hourly fee approved by the court.”
(Emphasis added). At the hearing on attorney fees, counsel for Appellees
testified that his usual hourly rate is $175.00 per hour but that he billed
8
We agree with Appellees that ODA’s issuance of the stop sale order initiated the matter in controversy.
State ex rel. R.T.G. Inc., et al. v. State of Ohio, 98 Ohio St.3d 1, 2002-Ohio-6717, 780-N.E.2d 998 at ¶67.
Washington App. No. 10CA17 40
Appellees $165.00. The trial court found this hourly rate to be acceptable
and in light of the language in the statute, we cannot find that the trial court
abused its discretion in approving that hourly rate.
{¶67} Accordingly, based upon our conclusion that the trial court
abused its discretion in awarding attorney fees, Appellant’s second
assignment of error is sustained. The issue of attorney fees is remanded to
the trial court for reduction of the fees on a pro rata basis, taking into
consideration the issues upon which Appellees were successful, bearing in
mind the result of the current appeal. Further, on remand, the trial court
should consider whether and to what extent Appellees failure to request a
condemnation hearing unduly and unreasonably protracted the final
resolution of the matter in controversy, and shall reduce the amount of
attorney fees accordingly.
JUDGMENT AFFIRMED IN PART,
REVERSED IN PART, VACATED
IN PART, AND REMANDED.
Washington App. No. 10CA17 41
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED IN PART,
REVERSED IN PART, VACATED IN PART, AND THE CAUSE
REMANDED and that the Appellees and the Appellant split the 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 Washington County Common Pleas Court to carry this judgment into
execution.
Any stay previously granted by this Court is hereby terminated as of
the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Abele, J.: Concurs in Judgment and Opinion.
Harsha, P.J.: Concurs in Judgment Only.
For the Court,
BY: _________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
Washington App. No. 10CA17 42