State ex rel. Stafford v. Carpenter

[Cite as State ex rel. Stafford v. Carpenter, 2022-Ohio-3848.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE ex rel., JOHN M. STAFFORD :
:
Relator-Appellant : Appellate Case No. 2022-CA-13
:
v. : Trial Court Case No. 2019-CV-605
:
DAVID J. CARPENTER, et al. : (Civil Appeal from
: Common Pleas Court)
Respondents-Appellees :
:
...........
OPINION
Rendered on the 28th day of October, 2022.
...........
JEREMY M. TOMB, Atty. Reg. No. 0079554 and HILLARY JAQUA, Atty. Reg. No.
0097633, 124 West Main Street, Troy, Ohio 45373
Attorneys for Relator-Appellant
NICHOLAS E. SUBASHI, Atty. Reg. No. 0033953 and TABITHA JUSTICE, Atty. Reg. No.
0075440, 50 Chestnut Street, Suite 230, Dayton, Ohio 45440
Attorneys for Respondents-Appellees
.............
TUCKER, P.J.
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{¶ 1} John M. Stafford appeals from the trial court’s judgment entry sustaining in
part and overruling in part his objections to a magistrate’s decision and awarding him
attorney fees of $48,562.50 plus court costs.
{¶ 2} Stafford contends the trial court erred in (1) reducing one of his attorney’s
hourly rate from $325 to $200 without supporting evidence, (2) reducing the hours for
which he was entitled to an attorney-fee award by 30 percent without any justification, (3)
denying attorney fees associated with a fee application, (4) failing to identify which fees
were rejected, which were accepted, and why, (5) denying expert fees as costs, and (6)
excluding two pages of billing summaries.
{¶ 3} Although most of Stafford’s arguments lack merit, we agree that the trial court
abused its discretion in reducing one attorney’s hourly fee rate from $325 to $200. The
largest reduction the record reasonably supported was a reduction to $250 per hour.
Accordingly, the trial court’s judgment will be reversed, and the case will be remanded for
recalculation of the fee award.
I. Factual and Procedural Background
{¶ 4} The present appeal stems from Stafford’s September 2019 complaint
alleging that the appellee-respondent Bellbrook-Sugarcreek School Board and its
members had committed a number of violations of R.C. 121.22, the Open Meetings Act
(OMA). The 33-page complaint contained 180 numbered paragraphs and 132 pages of
exhibits. In their answer, the respondents admitted three of the alleged violations but
denied several others.
{¶ 5} In December 2019, the respondents moved for a protective order, which the
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trial court granted in part. The trial court prohibited Stafford from disseminating on social
media any information or documents obtained solely through the discovery process. The
trial court denied the respondents’ request to prohibit Stafford from commenting about the
case on social media.
{¶ 6} In June 2020, the respondents moved for judgment on the pleadings. That
same month, Stafford filed a cross-motion for judgment on the pleadings. Upon review of
the competing motions, the trial court found that the respondents had violated the OMA
by engaging in email discussions about a school-levy post card and by entering into
executive sessions for unauthorized reasons. The trial court issued a permanent
injunction, assessed six $500 civil forfeitures, and set the matter for an attorney-fee
hearing.
{¶ 7} Prior to the hearing, Stafford made an attorney-fee request of $224,506.72.
A magistrate heard four days of testimony about attorney fees in January and February
2021. Stafford presented testimony from three of his attorneys, Jeremy Tomb, John Corey
Colombo, and Derek Clinger. Finally, Stafford presented testimony from Erin Sussman, a
fee expert employed by consulting and advisory firm Sterling Analytics. For their part, the
respondents called Stafford to testify as on cross-examination. The respondents also
presented testimony from attorney Bernard Wharton regarding the reasonableness of
Stafford’s fee request. Based on the testimony presented, the magistrate awarded
Stafford attorney fees of $60,822.50 and court costs.
{¶ 8} Stafford objected to the magistrate’s decision. He argued that the magistrate
had erred in (1) finding 269.7 hours of fees recoverable rather than the total of 475.8
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hours submitted, (2) improperly reducing attorney Clinger’s hourly rate from $325 to $200,
and (3) excluding Sussman’s expert witness fee of $13,276.81. The respondents also
objected to the magistrate’s decision, arguing (1) that Stafford should not have been
allowed to introduce summaries of billing entries and (2) that Stafford was not entitled to
attorney fees to litigate discovery motions.
{¶ 9} The trial court resolved the competing objections in a January 19, 2022
Decision and Judgment Entry. The trial court’s ruling included the following detailed
factual findings, which are supported by the fee-hearing testimony:
Stafford was represented in this case by two law firms—McTigue &
Colombo and Waite, Tomb & Eberly. In addition, Stafford was or is
represented by these law firms in multiple additional matters.
In June, 2019, McTigue & Colombo was retained by Stafford to “look
into two broad issues” as it related to the Bellbrook Sugarcreek School
District; the first being potential misuse of public resources to promote a
levy campaign and the second was a series of concerns about potential
Open Meetings Act violations. (TR Vol II p. 235). McTigue & Colombo is
located in Columbus, Ohio and has primary areas of specialty in matters
related to election and campaign finance law, public records and open
meetings. (TR Vol I p. 198). Stafford entered into a fee agreement with
McTigue & Colombo wherein he agreed to pay a rate of $325 per hour for
attorney time. (TR Vol I p. 200, 207). According to Cory Colombo, that is
consistent with the rates charged by other firms in Columbus. (TR Vol I p.
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207).
Attorney Derek Clinger submitted several public records requests to
the school district over the summer of 2019 as an initial fact investigation
into the two issues raised by Stafford. (TR Vol II p. 236). Among the
responsive documents received in response to his public records requests,
Clinger received a series of emails in which members of the school board
were deliberating and discussing the contents of a postcard about the levy
election; these emails formed the basis for one of the violations alleged (and
prevailed upon) by Stafford and were attached to the complaint. (Id.).
Additional documents received in the summer of 2019 in response to public
records requests were also attached to the Complaint. At the time McTigue
& Colombo was retained, Stafford already had the meeting minutes which
formed the basis of violations pertaining to improper executive sessions.
(TR Vol II p. 311-312).
Due to many moving parts and collateral issues, Waite, Tomb &
Eberly, a law firm based in Troy, Ohio, was retained to join in representing
Stafford in this case in or around September, 2019. Stafford has been a
client of Attorney Wayne Waite’s [sic] and later of Waite, Tomb & Eberly for
more than ten years. During this time period, Waite, Tomb & Eberly was
handling other general civil litigation for Stafford. (TR Vol I p. 49). Jeremy
Tomb had prior experience litigating cases involving the Open Meetings Act
and testified he has far more knowledge and experience in litigating Open
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Meetings Act cases than the average practitioner. (TR Vol I p. 27). Stafford
executed a fee agreement with Waite, Tomb & Eberly wherein he agreed to
pay $250 per hour for attorney time and $125 per hour for paralegal time.
(TR Vol I p. 29, Relator’s Exhibit 1). While Waite, Tomb & Eberly had some
work on the Complaint, McTigue & Colombo had primary responsibility for
drafting the Complaint. (TR Vol I p. 35).
According to Tomb, Stafford had “about seven open billing entries”
at the time of the attorney fee hearing for various matters (TR Vol I p. 59).
The billing entries submitted by Waite, Tomb & Eberly include multiple
entries for time spent on matters outside the scope of the Open Meetings
Act litigation. By way of example, there are billing entries related to
Stafford’s pursuit of a civil protection order against Matthew Yoxtheimer. It
is Stafford’s position that the hours expended in pursuit of the civil protection
order are part of this case because Respondents’ counsel filed a motion to
intervene and asked the Domestic Relations court to issue a protective
order on discovery in the civil protection order case. (TR Vol I p. 60).
After the Complaint was filed on September 19, 2019, Clinger
continued to make public records requests to the school district and to third
party public entities. (TR Vol II p. 237). These third party public entities
included the City of Bellbrook, Sugarcreek Township, a park district, Greene
County Educational Services Center, and the Greene County Sheriff’s
Office. (TR Vol II p. 237-238). During his investigation, Clinger learned that
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the Superintendent of the school district was sending emails related to the
levy election to a group of 20-30 people, some of whom worked for these
public entities. (Id.). The third party requests uncovered additional
communications about the levy election. It was also discovered that one
school board member was included in these email chains. (Id.). The email
chains provided information about what people were hearing in the
community about the levy as to its popularity or lack thereof. (Id.).
While this case was pending, Clinger represented Stafford in a
pending action with the Ohio Elections Commission against a political action
committee that was formed to support the school district’s levy and against
the school district superintendent “in his role as the effective campaign
manager for that” political action committee. (TR Vol II p. 241). The
attorneys who represent the Respondents herein also represent the
superintendent in the Ohio Elections Commission matter. (Id.). Nearly
identical motions for protective order were filed both in this case and the
Ohio Elections Commission at roughly the same time. (Id.). In his billing
entries, Clinger included references to the Ohio Elections Commission
matter because both cases were “responding to the same arguments, same
facts,” and the same evidence. (Id.) Clinger testified there were some
references to “try to make sure that our arguments in both forums are
…consistent with each other, at least.” (Id.)
Both law firms prepared a spreadsheet in support of the attorney fee
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application filed herein. As McTigue & Colombo were hired to look into two
separate issues—potential misuse of public resources to promote the
passage of a school levy and violations of the Open Meetings Act—the law
firm had multiple matters open in their law firm management software. (TR
Vol II p. 258). Among the open billing matters was a completely separate
matter for public records requests. (TR Vol II p. 276-277). Clinger testified
that if a public records request had produced a document that it later turned
out could be used to refute an argument made by Respondents during the
pendency of this case, he would move the billing entry for that public records
request into the billing statement for this case. (TR Vol II p. 296). According
to Clinger, billing entries that the attorneys thought were relevant to this
case were exported to an Excel spreadsheet and if the original description
of work performed contained privileged attorney/client communications, the
description was modified to protect those communication. (TR Vol II p. 259-
260). Clinger provided the spreadsheets to Colombo for review and made
any changes requested. (TR Vol II p. 261). ·
Waite, Tomb & Eberly maintained billing statements on a couple
different software platforms. (TR Vol I p. 32). Tomb testified that billing
entries “... that were relevant to the matters that were in the motion and to
the statute and that fell within the structures [or] guidelines of previous
cases” were entered for consideration in the fee application. (TR Vol I p.
33). Billing entries were entered sequentially “for the matters that made
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sense” to be in the fee application. (Id.). Tomb also noted there were
numerous individuals affiliated with the school board and friends of people
affiliated with the school board that were “constantly peppering Mr. Stafford
with collateral attacks, things that we had to deal with constantly, and then
Mr. Stafford was billed for.” (Id.). Tomb removed those items from the billing
entries that weren’t directly related to this case or that the attorneys didn’t
feel that the school made directly related to this case. (Id.). The
spreadsheets from both law firms were then sent to Erin Sussman with
Sterling Analytics for her review.
Sterling Analytics is a national/international consulting and advisory
legal firm that reviews and validates legal invoices. (TR Vol II p. 322). Erin
Sussman, a licensed attorney in the State of New York, had worked for
Sterling Analytics for nearly nine years and was the Global Services
Manager at the time of the hearing. (TR Vol II p. 323, 326). Sussman has
co-written and teaches continuing legal education on the topic of ethical
billing, drafted law review articles, and has spoken on panels on ethical and
transparent billing. (TR Vol II p. 327). Sussman is not licensed in Ohio and
had never testified as an expert in any case involving the Ohio Open
Meetings Act. (TR Vol II p. 366).
Sterling Analytics was contacted in late August, 2020 and asked to
review the legal invoices for the matter from McTigue & Colombo and Waite,
Tomb & Eberly. (TR Vol II p. 329). Sterling Analytics did a line-by-line
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analysis of the time slips for both law firms, immediately organized them,
and looked at what the law films had already removed. (Id.). Sussman
received the work product, major pleadings, and the motions filed in this
case. She then worked through each of the invoices separately, going
through each line and made notes where she saw things such as block
billing, vague time entries, inconsistencies, clerical tasks, and attendance
of multiple attorneys. (TR Vol II p. 329-330). Sussman testified that it was a
collaborative process with both law firms and there were several rounds of
revision to the billing entries. (TR Vol II p. 330). Sussman also compared
the work of both law firms against each other and looked for meetings where
attorneys from both law firms attended, work that was being performed, or
emails that both law firms were on. In many of those instances,
redundancies were removed. If two timekeepers billed for the same work or
the same call, Sussman tried to make sure there was tangible work product
and value brought to that task. (Id.). On Sussman’s recommendation,
Clinger’s hourly rate was reduced to that of a paralegal for hours expended
on doing public records requests and clerical tasks were completely
removed from the billing. (TR Vol II p. 331-332). Additionally, billing entries
related to travel were reduced to 50% of the timekeeper’s hourly rate. (TR
Vol II p. 341). Billing entries that revealed multiple attendance were
evaluated individually to determine reasonableness of attendance. (TR Vol
II p. 332). The vast majority of the time, only one timekeeper’s billing entry
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remained. (Id.). Sussman testified that there was an exercise in billing
judgment made regarding every entry that billed for interoffice
communications and communications between law firms; if the
communication was strategic in nature and valuable or the result of a legal
or factual development it was left in the invoice. (TR Vol II p. 358-360). After
her review, Sussman identified multiple entries and recommended their
removal, representing nearly 100 hours of billing and totaling 12% of the
fees originally submitted. (TR Vol II p. 394, 449).
To familiarize herself with legal billing rates in Ohio, Sussman
reviewed an annual Real Rate Report, which contains data across different
benchmarks, such as years of experience, geographic area, types of
litigation, and practice area, (TR Vol II p. 328). The Real Rate Report
surveys attorney billing rates by different cities. In conducting her review,
Sussman reviewed the rates billed in Columbus and Cincinnati; in the
hearing, Sussman quoted the billing rates from Columbus and later testified
those rates were consistent with rates that are charged in Dayton. (TR Vol
II p. 374, 447). In her review, there was no instance where $250 per hour
was an unreasonable hourly rate. (TR Vol II p. 374). When questioned how
she reconciled the hourly rate of Wayne Waite, who is a very experienced
local attorney with that of Derek Clinger, who had been licensed for just
under 5 years at the time the complaint was filed, Sussman stated that was
based on McTigue & Colombo being an "election law firm” which allowed
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them to command higher rates for the niche practice area. (Id.). Sussman
also pointed out Stafford’s long relationship with Wayne Waite and her
understanding that the hourly rate has always been $250 per hour, but that
didn’t mean that Wayne Waite wasn’t entitled to a higher hourly rate, just
that he charged much less than he could have given his experience. (TR
Vol II p. 374-375).
Bernard Wharton is a licensed attorney in Ohio who was admitted to
practice in 1994. (TR Vol II p. 588-589). Wharton is a shareholder with
McCaslin, Imbus & McCaslin in Cincinnati, Ohio who has been practicing
municipal, government, and school law since 1996 or 1997. While Wharton
has represented various public bodies, public employees, and public
agencies, he primarily represents school boards in litigation, (TR Vol III p.
590-591). Wharton also testified that he has “quite a lot” of experience in
both seeking attorney fees and defending against claims for attorney fees.
(TR Vol Ill p. 592). Wharton was retained by Respondents to review
Stafford’s request for attorney fees, (TR Vol III p. 595-596). To arrive at his
ultimate opinion, Wharton spoke with Respondents’ counsel, reviewed
several of the pleadings filed in this case, conducted research into attorney
fee awards and the Open Meetings Act, and reviewed the application for
attorney fees with the attached billing summaries. (TR Vol III p. 597-598).
In Wharton’s view, this was an open and shut Open Meetings Act case
given that Respondents had admitted some of the violations alleged in their
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Answer. (TR Vol III p. 601). Wharton believed the next step after the Answer
was filed was either an agreed injunction with an agreement to resolve the
issue of forfeiture and attorney fees, or if an agreement couldn’t be reached,
filing a Motion for Judgment on the Pleadings by the Relator. (Id.). After
reviewing the billing summaries and noting that the parties were more than
a year into litigation without resolution, Wharton testified “there was a lot
more going on than just an Open Meetings Act case.” (Id.). Wharton went
on to explain:
“ ...it was…such a cut-and-dried case based on the Answer
admitting violations, the fact that it took—I think by my count,
it was seven months before [Stafford] even filed a Motion for
Judgment on the Pleadings, plus all the extraneous issues
that are clearly visible in the billing statement summaries
provided by [Stafford] in their fee application tells me there
was a lot of personal animus involved in this litigation between
the parties, that there really is no good explanation under the
law why all of this should have mushroomed to the size that it
is when you had a fairly simple Open Meetings Act case that
the Respondents admitted to in their Answer, and at that point,
file your Motion for Judgment on the Pleadings, pocket the win
and go home. There’s no need to draw it out unless there are,
you know, non-legal reasons for drawing it out.” (TR Vol III p.
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601-602).
Wharton also reviewed Erin Sussman’s affidavit and, in his opinion,
the affidavit did not address whether the hours billed were actually
necessary to prosecuting Stafford’s Open Meetings Act claim. (TR Vol III p.
604-605). In Wharton’s opinion, there are five areas of legal work that are
necessary to prosecute a case. First is pre-lawsuit investigation, which
includes interviewing the client, gathering information that helps the
attorney identify legal claims the client may have, and gathering what is
need[ed] to draft a Complaint or what the attorney may need to refer to in a
Complaint. Second is drafting the Complaint and reviewing any responsive
pleadings. Third is engaging in the discovery process. Fourth is dispositive
motion practice, if applicable. The fifth and final area is a trial on the merits.
(TR Vol III p. 608-609). Wharton opined that 20 hours was a reasonable
amount of time to spend on pre-lawsuit investigation, 25 hours was a
reasonable amount of time to draft the Complaint and review the Answer,
and 40 hours was a reasonable amount of time to expend on dispositive
motions in this case. (TR Vol III p. 610-614). Wharton additionally testified
that $250 per hour was a reasonable rate, but $330 per hour was too high
for Greene County. (TR Vol III p. 606-607, 629). In sum, Wharton opined
that a total of 85 hours at a rate of $250 per hour for a total attorney fee
award of $21,250.00 was reasonable in this case. (TR Vol III p. 614).
Wharton specifically opined that there was no reasonable basis for
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six attorneys and two paralegals to spend a total of 121.1 hours on the
motion for protective order that was filed in this case. (TR Vol III p. 615-
616). In fact, Wharton did not believe that any hours billed for the motion for
protective order were reasonably related to the Open Meetings Act claims.
(TR Vol III p. 619). Similarly, Wharton opined that hours billed in the civil
stalking protection order case filed in the Greene County Domestic
Relations Court were not reasonable and necessary to this case and that
he would not consider litigation occurring outside the Open Meetings Act
case as connected to the necessary resolution of the Open Meetings Act
case. (TR Vol III p. 671-672).
(Footnotes omitted.) January 19, 2022 Decision and Judgment Entry at pg. 4-11.
{¶ 10} After making the foregoing findings, the trial court resolved several
challenges by Stafford to the magistrate’s reduction of recoverable attorney-fee hours.
The trial court rejected most of Stafford’s arguments. The trial court also rejected his
challenge to the magistrate’s reducing Clinger’s hourly rate from $325 to $200. Finally,
the trial court rejected Stafford’s argument about recovering the expense of hiring fee-
expert Sussman. The trial court held that the OMA did not permit recovery of this litigation
expense. As for the respondents’ objections, the trial court found no error in the
magistrate’s allowing Stafford to introduce billing summaries. The trial court also found
no error in the magistrate’s decision with regard to the recovery of fees related to the
litigation of discovery motions.
{¶ 11} The trial court then conducted an independent review of the record and
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concluded as follows:
This Court has thoroughly reviewed the record in this case, including
the testimony adduced at the attorney fee hearing and the billing summaries
submitted by counsel. As the parties are aware, this Court is tasked with
determining the number of hours reasonably expended on this litigation and
must multiply that by an attorney’s reasonab[le] hourly rate. This Court
cannot conclude that it is reasonable and necessary to expend 475.8 hours
litigating a case that was entirely resolved with cross-motions for judgment
on the pleadings, especially in light of the fact that Respondents filed an
Answer wherein they admitted some of the violations alleged in the
Complaint. The Court has calculated at least 87.2 hours where counsel
were performing similar work to each other or were communicating or
reviewing drafts unnecessarily. Moreover, the Court has identified 93.1
hours of work that was not reasonable or necessary to the instant litigation.
Therefore, the Court finds that 180.3 hours should not be awarded as they
represent hours incurred unnecessarily. Given the expertise and
experience of each law firm, this Court questions the need for the
participation of both firms in this case. Indeed, rather than this case
benefiting from a divide and conquer approach, it is apparent the case was
overstaffed. A comparison of the billing entries shows that for every
significant stage of the litigation, there are a minimum of three and
sometimes as many as six attorneys billing for time related to a particular
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litigation task. It was not uncommon for multiple attorneys to bill for
reviewing the same document. Of particular concern is the fact that six
attorneys and two paralegals billed a total of 121.1 hours for work performed
on the protective order requested by Respondents. Due to the fact that this
case could have been resolved shortly after the Respondents’ Answer was
filed and before many of these hours were incurred, the Court finds that a
reduction of 30% of the remaining 295.5 hours is appropriate. * * *
(Footnotes omitted.) January 19, 2022 Decision and Judgment Entry at pg. 22-23.
{¶ 12} The trial court proceeded to identify the reasonable hourly rate for each of
Stafford’s attorneys and paralegals and the reasonable number of hours of work
performed by each. The trial court multiplied the reasonable hourly rates by the
reasonable number of hours and arrived at a total fee award of $48,562.50. Id. at 23.
Finally, the trial court found that “the relevant Prof. Cond.R. 1.5(a) factors” were
subsumed within its calculation and declined to make any additional adjustment based
on those factors. This appeal by Stafford followed.
II. Analysis
{¶ 13} The attorney-fee issue is governed by R.C. 121.22(I)(2), which provides that
“[i]f the court of common pleas issues an injunction pursuant to division (I)(1) of this
section, the court shall order the public body that it enjoins to pay * * * reasonable
attorney’s fees.” We review the trial court’s attorney-fee award under R.C. 121.22(I) for
an abuse of discretion. Specht v. Finnegan, 149 Ohio App.3d 201, 2002-Ohio-4660, 776
N.E.2d 564, ¶ 42 (6th Dist.) (“Both the Ohio Public Records Act and the Open Meeting
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Act permit a trial court, in its discretion, to award a prevailing plaintiff attorney fees. * * *
Matters within a court’s discretion will not be disturbed on appeal absent an abuse of that
discretion.”). “Abuse of discretion” has been defined as an attitude that is unreasonable,
arbitrary or unconscionable. AAAA Ents., Inc. v. River Place Community Urban
Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). Most instances of abuse
of discretion will result in decisions that are simply unreasonable, rather than decisions
that are unconscionable or arbitrary. Id. A decision is unreasonable if there is no sound
reasoning process that would support it. Id.A. Reduction in Attorney Derek Clinger’s Hourly Rate
{¶ 14} In the first of his six assignments of error, Stafford contends the trial court
abused its discretion in reducing attorney Clinger’s hourly rate from $325 to $200.
{¶ 15} Stafford claims the record contains no evidence to support the trial court’s
reduction. The respondents argue that Stafford failed to prove the reasonableness of
Clinger’s $325 per hour rate and that the record supported the trial court’s reduction.
{¶ 16} In support of its decision, the trial court noted that Clinger had less than five
years of experience as an attorney. Although fee expert Erin Sussman opined that
Clinger’s rate was reasonable, the trial court found that she had based her opinion on her
identification of his firm, McTigue & Colombo, as an “election law firm,” a niche practice
that commanded higher rates, whereas the present lawsuit did not involve election law.
The trial court also cited the respondent’s expert, Bernard Wharton, who opined that $250
per hour was a reasonable rate charged by Waite, Tomb & Eberly, which was the other
law firm representing Stafford in this matter. Finally, the trial court compared the attorneys’
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rates and years of experience and determined that $200 per hour was a reasonable rate
for Clinger’s services.
{¶ 17} Upon review, we conclude that the record reasonably supported a reduction
in Clinger’s $325 hourly rate. But the trial court’s reduction to $200 per hour was
unsupported by the record and was unreasonable. At the fee hearing, Clinger testified
that McTigue & Colombo practices “election law, political law, [and] state and local
government law.” Through his work with the firm, Clinger possessed special expertise
and competence in OMA cases. Tr. Vol. II at 233-234. Clinger testified that he and the
two partners involved in this case, Don McTigue and Corey Colombo, all billed Stafford
at a rate of $325 per hour, which was well below the rate attorneys McTigue and Colombo
normally charged. Id. at 282.
{¶ 18} Fee expert Sussman did refer to McTigue and Colombo at one point as a
niche “election law firm.” Id. at 374. Elsewhere in her testimony, however, Sussman
recognized that the law firm had “extensive experience” in “government-type litigation,”
which “has higher rates.” Id. at 348. Sussman testified that she had researched and
collected information regarding customary hourly rates. She obtained much of this
information from an industry publication known as the “Real Rate Report.” Id. at 373. The
report did not provide rates by county, so Sussman looked at rates for Cincinnati and
Columbus. The Real Rate Report also provided her with data based on attorney
experience. Id. In Sussman’s opinion, “in no instance was $250 per hour an unreasonable
hourly rate.” Id. at 374. When questioned about experienced attorney Wayne Waite billing
only $250 per hour for his work in this case, Sussman noted that he had a longstanding
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relationship with Stafford and always had billed that rate as a courtesy. In Sussman’s
opinion, Waite reasonably could have charged more. Id. at 374-375. Sussman testified
that the average rates for partners in Columbus were between $375 and $516 per hour,
and the average rates for associates were between $235 and $370 per hour. Id. at 348.
She opined that the rates for “government litigation” in particular were even higher. Id. at
348-349. She believed that the rates charged by both of Stafford’s law firms in this case
were “very reasonable,” on the “low end,” and consistent with rates charged in Dayton,
Ohio. Id. at 347-349, 447-448.
{¶ 19} Attorney Tomb also testified at the fee hearing. He expressed familiarity
with legal rates in southwest Ohio, including Dayton and Columbus. In Tomb’s opinion,
the $250 per hour charged to Stafford was “in the bottom third” of accepted attorney-fee
rates. Tr. Vol. I at 65. He explained that this rate was based on Stafford’s being a long-
time client and what he traditionally had charged. Id. at 67. Tomb believed the $325 per
hour rate McTigue & Colombo charged Stafford also was reasonable. Id. at 89.
{¶ 20} Attorney Colombo also testified about the fee issue. He explained that his
firm specializes in “anything pertaining to elections and campaign finance” but also
advertises “public records and open meetings” as a primary area of specialty. Id. at 198.
His firm advises public and private clients on OMA issues. Id. at 198-199. Colombo opined
that his firm’s $325 per hour rate in this case was on the “low end” of what other Columbus
firms would charge. Id. at 207. Colombo testified that his normal rate was $450 per hour
but that he gave Stafford a reduced rate for various reasons. Id. at 207-208. Colombo
testified that his partner, Don McTigue, typically charged $600 per hour. Id. at 208. With
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regard to attorney Clinger’s $325 rate in this case, Colombo testified that the firm usually
bills Clinger at a rate of $375 per hour. Id. For someone right out of law school, Colombo
stated that a rate in the “mid-200s is not uncommon.” Id. at 209.
{¶ 21} Finally, attorney Bernard Wharton testified for the respondents about
attorney-fee rates. Wharton, a partner at a law firm in Cincinnati, testified that his practice
included defense work in OMA cases. He charged $275 per hour to review the fee issues
in this case. His rate generally was between $250 and $350 per hour when contracting
with a defense client. Tr. Vol. III at 597. When asked to identify a reasonable hourly rate
for Stafford’s “attorneys in this case,” Wharton responded, “I think $250 an hour is a very
reasonable rate for here in Greene County.” Id. at 606-607. Wharton never opined
specifically about a reasonable rate for attorney Clinger. His opinions about a reasonable
rate were based solely on his experience as a practicing attorney. Id. at 633.
{¶ 22} In our view, it is impossible to review the foregoing testimony and
reasonably conclude that a fair rate for Clinger’s work in this case was $200 per hour.
Although we cannot say that any reduction in Clinger’s $325 per hour rate would be an
abuse of discretion, not one witness provided testimony to support reducing his rate to
$200 per hour. Clinger testified that the partners in his firm usually charged well above
his $325 per hour rate. Fee expert Sussman testified that she could not identify any
instance where $250 per hour would be unreasonable. Attorney Tomb testified that his
firm’s $250 rate for Stafford was low and was based on the firm’s long-term relationship
with him. Tomb believed McTigue & Columbo’s $325 per hour rate was reasonable.
Attorney Colombo testified that he normally billed Clinger out at a rate of $375 per hour.
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Wharton, the respondents’ own witness, testified broadly and without differentiation that
$250 per hour was “very reasonable” for Greene County. This statement implied that a
higher rate would be reasonable.1
{¶ 23} Based on the record before us, we hold that the trial court acted
unreasonably, and thereby abused its discretion, in reducing Clinger’s hourly rate from
$325 to $200. In our view, the largest reduction the record reasonably supported was a
reduction to $250 per hour. Accordingly, we sustain Stafford’s first assignment of error
insofar as the trial court erred in reducing Clinger’s rate below $250 per hour.
B. Thirty-Percent Reduction in Attorney-Fee Award
{¶ 24} In his second assignment of error, Stafford contends the trial court abused
its discretion in making a 30-percent reduction to the number of hours for which he would
be entitled to attorney fees.
{¶ 25} The essence of Stafford’s argument is that the trial court engaged in
impermissible “double counting of deductions” by (1) determining that 180.3 of the 475.8
billed hours were incurred unnecessarily and/or were unrelated to this case and then (2)
applying an across-the-board 30 percent reduction to the remaining 295.5 hours. Stafford
maintains that this type of double deduction is contrary to Calypso Asset Mgt., LLC v. 180
Industrial, LLC, 2021-Ohio-1171, 171 N.E.3d 790 (10th Dist.).
{¶ 26} Upon review, we find Stafford’s argument to be without merit. “[T]here is a
1 In State ex rel. Harris v. Rubino, 156 Ohio St.3d 296, 2018-Ohio-5109, 126 N.E.3d
1068, the Ohio Supreme Court approved a $250 per hour fee for attorney Clinger.
Although the trial court attempted to distinguish Harris on the basis that it was “more
complex,” was expedited, and was in Columbus, that case also took place in 2018 when
Clinger was even less experienced. Although our decision herein is not based on Harris,
we do find it worth noting the approval of his $250 rate.
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strong presumption that the reasonable hourly rate multiplied by the number of hours
worked, which is sometimes referred to as the ‘lodestar,’ is the proper amount for an
attorney-fee award.” Phoenix Lighting Group, LLC v. Genlyte Thomas Group, LLC, 160
Ohio St.3d 32, 2020-Ohio-1056, 153 N.E.3d 30, ¶ 19. Changes to the lodestar should be
made only when a party proves that modification is warranted based on some factor not
already subsumed within the lodestar calculation. Id. at ¶ 19.
{¶ 27} Courts traditionally modified the lodestar by considering things such as “the
time and labor required, the novelty and difficulty of the questions involved, the skill
needed to perform the legal service properly, the likelihood that the acceptance of the
particular employment precluded other employment, the time limitations imposed by the
client or by the circumstances, and the experience, reputation, and ability of the lawyer.”
Id. at ¶ 27. In Phoenix Lighting, the Ohio Supreme Court recognized, however, that such
considerations typically are subsumed in the lodestar analysis itself. Therefore, they
ordinarily provide no justification for departing from the lodestar figure. Id. at ¶ 17-20.
{¶ 28} In the present case, Stafford argues that the trial court improperly deducted
180.3 hours from his attorneys’ bill and then made another 30-percent reduction to the
remaining hours “for basically the same reasons” and without any justification for a further
reduction after the lodestar calculation. See, e.g., Appellant’s Reply Brief at 4, 6.
{¶ 29} Having examined the record, we see no improper “double counting of
deductions.” The magistrate and the trial court appear to have rejected billing for time
involving a municipal-court criminal case and a Greene County domestic-relations case.
They also rejected billing for what they reasonably found to be excessive communication
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between attorneys, attorneys reviewing each other’s work, and reviewing social-media
posts and other things unrelated to the OMA claims. When conducting its independent
analysis to determine a lodestar figure, the trial court found that 180.3 hours should be
excluded for excessive attorney communication/review and for other hours worked
unnecessarily.
{¶ 30} As part of its lodestar analysis, the trial court also expressed concern that
the case was overstaffed and that it lingered too long. The trial court noted that the case
ultimately was decided on cross-motions for judgment on the pleadings, meaning that
everything necessary to decide the case could be found in the complaint and the answer.
The trial court expressed particular concern that Stafford’s attorneys billed 121.1 hours
for work on a protective order sought by the respondents. The trial court deemed an
additional 30-percent reduction warranted based on the fact that much of the work
performed—although it may have related in some way to the claims in this case—could
have been avoided if Stafford had sought judgment on the pleading sooner before
incurring additional hours.
{¶ 31} We cannot say the trial court abused its discretion in making the additional
30-percent reduction. That reduction did not appear to involve the same considerations
that led the trial court to reduce the hours billed by 180.3. The trial court essentially found
that Stafford unnecessarily prolonged the case and that certain hours billed, although
perhaps related to the case, could have been avoided if Stafford had sought to end the
case sooner. In this regard, we note that Stafford filed his complaint in September 2019,
and the respondents filed their answer in November 2019. The parties then litigated a
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motion for a protective order. In the end, the trial court refused to stop Stafford from
making disparaging remarks about the respondents and their counsel on social media,
but it prohibited him from disclosing information or documents obtained solely through
discovery in this case. After the protective-order issue was resolved, the parties filed
cross-motions for judgment on the pleadings in June 2020, nine months after Stafford
filed his complaint and seven months after the respondents filed their answer. The trial
court resolved the case on those cross-motions, issuing six $500 forfeitures and a
permanent injunction against the respondents.
{¶ 32} Having reviewed the record, we conclude that the trial court did not act
unreasonably in applying a 30-percent reduction to Stafford’s attorneys’ hours. Although
the parties’ dispute the extent to which Stafford was entitled to share information and
make disparaging remarks on social media occurred in the context of this case, it had
little if anything to do with the merits of his OMA claims and did nothing to advance the
resolution of those claims. The parties certainly were entitled to ligate Stafford’s right to
express himself on social media as extensively as they desired, but the trial court acted
within its discretion in refusing to order the respondents to pay for all 121.1 hours of legal
work on a tangential issue that resulted in what fairly may be characterized as a split
decision.
{¶ 33} In short, we are unconvinced that the trial court impermissibly double-
counted deductions when it reduced Stafford’s attorneys’ hours billed for various reasons
and then applied a further 30-percent reduction for a different reason. The record
supported a finding that the case was over-litigated based on the presence of extraneous
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or tangential issues arising from personal animus. Tr. Vol. III at 602, 621-623.
{¶ 34} Stafford’s citation to the Tenth District’s decision in Calypso fails to
persuade us otherwise. In Calypso, 2021-Ohio-1171, 171 N.E.3d 790, the trial court
reduced the number of hours billed as part of its lodestar analysis, which involved
determining a reasonable hourly rate and multiplying that rate by the reasonable number
of hours worked. After determining the lodestar figure, the trial court applied a 65-percent
reduction to it based on essentially the same analysis and for the same reasons that led
to the lodestar figure. Not surprisingly, the Tenth District found impermissible double
counting of deductions. Id. at ¶ 39-43. Unlike Calypso, we conclude that different
considerations and concerns justified the trial court’s initial reduction in hours billed and
its additional 30-percent reduction, all as part of its lodestar calculation. The second
assignment of error is overruled.
C. Attorney Fees for Fee Application and Hearing
{¶ 35} In his third assignment of error, Stafford contends the trial court abused its
discretion in refusing to award him attorney fees for the time his attorneys spent in
connection with his fee application and hearing.
{¶ 36} The trial court declined to award such fees on the authority of State ex rel.
Plain Dealer Publishing Co. v. Cleveland, 76 Ohio St.3d 1218, 667 N.E.2d 1232 (1996).
In that case, the Ohio Supreme Court found the relator not entitled to attorney fees for
“fee application preparation.” The Plain Dealer case arose under a prior version of Ohio’s
Public Records Act, R.C. 149.43(C). Stafford contends it has no applicability to his fee
request under the OMA. He also argues that Plain Dealer is distinguishable insofar as
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attorney-fee awards were discretionary when it was decided, whereas attorney-fee
awards are mandatory under the OMA unless a statutory exception applies. In his reply
brief, Stafford also asserts that Plain Dealer did not “announce any sort of principle that
fees for fee application preparation are never recoverable under any circumstances.”
{¶ 37} Upon review, we find no error in the trial court’s denial of a fee award for the
time Stafford’s attorneys spent in connection with his fee application and hearing. The
version of R.C. 149.43(C) in effect when Plain Dealer was decided provided for a
judgment “that awards reasonable attorney’s fees” to a prevailing party under the Public
Records Act. The Plain Dealer court reviewed this language and held that attorney fees
for “fee application preparation” were “not within the ambit of R.C. 149.43(C).” Plain
Dealer at 1219. Contrary to Stafford’s argument on appeal, the Ohio Supreme Court did
not suggest that awarding attorney fees for fee application preparation was discretionary
under the Public Records Act. To the contrary, it effectively announced a principle that
such fees were never recoverable because they fell outside the ambit of R.C. 149.43(C).
{¶ 38} The following year, the Ohio Supreme Court extended Plain Dealer to a fee
request under the OMA. In White v. Clinton Cty. Bd. of Commrs., 77 Ohio St.3d 1267,
675 N.E.2d 471 (1997), the prevailing party sought attorney fees under both the OMA
(R.C. 121.22) and the Public Records Act (R.C. 149.43). The version of R.C. 121.22(I)(2)
in effect at the time provided for recovery of “all court costs and reasonable attorney’s
fees.” Similarly, R.C. 149.43 authorized an award of reasonable attorney’s fees. The Ohio
Supreme Court found the appellant entitled to certain costs and attorney fees, but it
denied recovery “for preparation of the fee application.” Id. at 1268. Although the White
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court cited Plain Dealer, which had involved a fee request under the Public Records Act,
we find it noteworthy that the appellant in While had sought the fees under both the OMA
and the Public Records Act.
{¶ 39} The Ohio Supreme Court’s refusal to award attorney fees in connection with
the fee applications in Plain Dealer and White supports the trial court’s decision in
Stafford’s case. As in those cases, the version of R.C. 121.22 in effect at the time of
Stafford’s case authorized an award of “reasonable attorney’s fees” to a prevailing party.
The Ohio Supreme Court held attorney fees for fee applications did not come within the
scope of the fee provisions of the Public Records Act or the OMA.2 Stafford points out
that an award of attorney fees was discretionary under the version of R.C. 149.43 in effect
at the time of Plain Dealer, whereas an attorney-fee award was mandatory in his OMA
case. Whether an award of any attorney fees was mandatory or discretionary, however,
does not alter the fact that fees for time spent in connection with Stafford’s fee application
and hearing fell outside the ambit of R.C. 121.22. Accordingly, the third assignment of
error is overruled.
D. Sufficiency of Trial Court’s Explanation
{¶ 40} In his fourth assignment of error, Stafford contends the trial court abused its
discretion in failing to state with sufficient particularity which claimed hours of attorney
work it was accepting, which it was rejecting, and why.
2 We note that the General Assembly subsequently amended the Public Records Act to
provide that reasonable attorney fees “shall include reasonable fees incurred to produce
proof of the reasonableness and amount of the fees and to otherwise litigate entitlement
to the fees.” R.C. 149.43(C) (effective September 29, 2007). No similar amendment has
been made to the language of the OMA.
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{¶ 41} Stafford argues that neither the magistrate nor the trial court provided a
reasonably specific explanation for the fee-award determination and the reductions that
were made. Although the magistrate did not individually address each of the hundreds of
billing entries, the magistrate did identify the types of entries that were excluded and
stated why. March 18, 2021 Magistrate’s Decision at 9-10. The trial court provided an
even more detailed review. In its 24-page ruling, the trial court addressed each of the
specific types of exclusions challenged by Stafford. January 19, 2022 Decision and
Judgment Entry at 13-18. The trial court went further and specifically examined roughly
250 individual billing entries and explained why they were included or excluded. Id. at 15-
17.
{¶ 42} In his assignment of error, Stafford disputes the trial court’s analysis of a
handful of these entries. He has not persuaded us, however, that the trial court failed to
state the basis for its decision with sufficient particularity. As the respondents note, this
court recently affirmed a much more succinct attorney-fee award in Alegre, Inc. v. Hyde
Component Sales, Inc., 2d Dist. Montgomery No. 29093, 2022-Ohio-542, ¶ 32 (finding no
abuse of discretion in the trial court’s summary determination to award 30 percent of the
requested fees, while noting that “the court below could have been more precise in its
explanation of how it reached $110,000”). The fourth assignment of error is overruled.
E. Stafford’s Expert Witness’ Fees
{¶ 43} In his fifth assignment of error, Stafford contends the trial court abused its
discretion in failing to include an expert’s fee as part of the cost of this litigation. His
argument concerns the expense he incurred to have expert witness Erin Sussman review
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the fee application and testify at the fee hearing. Although the OMA is silent regarding
expert fees, Stafford argues that the statute must be construed liberally to allow recovery
of such fees as costs.
{¶ 44} Upon review, we see no error in the trial court’s refusal to include
Sussman’s fee in its award. As set forth above, R.C. 121.22(I) provides for the recovery
of “court costs” and “reasonable attorney’s fees.” The litigation expense Stafford incurred
to hire Sussman was not a court cost or an attorney fee. White at 1268, citing Plain Dealer
at 1219.
{¶ 45} In opposition to our conclusion, Stafford cites workers’ compensation cases.
See Moore v. Gen. Motors Corp., 18 Ohio St.3d 259, 480 N.E.2d 1101 (1985); Kilgore v.
Chrysler Corp., 92 Ohio St.3d 184, 749 N.E.2d 267 (2001). But the statutes at issue in
those cases were broader and by their own terms reasonably encompassed expert-
witness fees. In Moore, the Ohio Supreme Court explained:
The legislature pursuant to R.C. 4123.519 has demonstrated its
intent that a claimant’s recovery shall not be dissipated by reasonable
litigation expenses connected with the preparation and presentation of an
appeal pursuant to R.C. 4123.519. Therefore, we find that the legislature
intended as a matter of public policy to include as part of the “cost of any
legal proceedings authorized by this section” the witness fee paid to an
expert in the preparation and giving of a deposition for presentation and use
in an R.C. 4123.519 appeal. * * *
Moore at 262; see also Kilgore at 187 (observing that “the traditional dichotomy between
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‘costs’ and ‘expenses’ in civil cases * * * is not directly applicable in the workers’
compensation area”).
{¶ 46} In our view, the Plain Dealer and White cases are more applicable than
workers’ compensation cases involving different statutory language. Because the
litigation expense Stafford incurred to have Sussman review his fee application and testify
at the fee hearing does not qualify as a “court cost,” we overrule his fifth assignment of
error.
F. Exclusion of Portion of Billing Summary
{¶ 47} In his sixth assignment of error, Stafford contends the trial court abused its
discretion in excluding two pages from McTigue & Colombo’s billing summaries.
{¶ 48} The two pages at issue are pre-complaint time entries involving public-
record requests to the respondents and others, telephone calls and emails related to the
public-record requests, and review of materials obtained pursuant to the public-record
requests. The magistrate denied recovery for the pre-suit billing entries, finding it
“impossible to ascertain what the subject of the public records requests and discussions
with Stafford were.” March 18, 2021 Magistrate’s Decision at fn. 11. On review, the trial
court examined the disputed two pages in light of the hearing testimony and found as
follows:
This Court has reviewed the transcripts of testimony in this case and
notes that Clinger did identify eight public records requests that were issued
on July 12, 2019 as the requests that produced the email communications
that formed the basis of one of the Open Meetings Act violations in this
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case. Thus, the hours billed for those public records requests were
reasonable and necessary to the instant action. That said, the remaining
billing entries contained in the first two pages of the McTigue and Colombo
billing summary contain insufficient detail for this court to discern which
public records requests were sent and which discussions with Stafford and
among counsel were had in furtherance of this case as opposed to other
matters. While Clinger testified that the public records requests issued to
third-parties produced additional email communications about the levy
election, the testimony established that the only school officials who were
on the email chains were the Superintendent and a single Respondent
herein. Since the third-party email chains do not involve a majority of the
school board members, they cannot constitute violations of the Open
Meetings Act. Therefore, the hours billed for the third-party public records
requests were not reasonable and necessary to the instant litigation. In
addition, this Court finds that the billing entries related to what was referred
to as the “threatening letter” contained on page two of the McTigue and
Colombo billing summary reflect hours billed that were not reasonable and
necessary to this case, as the “threatening letter” is wholly separate from
this litigation.
Based on the foregoing, the Court modifies the Magistrate’s decision
to include 1.5 hours billed by Derek Clinger to finalize the eight public
records requests identified above and overrules the remainder of Stafford’s
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objection herein.
January 19, 2022 Decision and Judgment Entry at 18.
{¶ 49} On appeal, Stafford contends pre-lawsuit public-record requests were
necessary to investigate and uncover the OMA violations underlying his complaint against
the respondents. He explains that the first two pages of billing summaries reflect efforts
made to obtain information for the lawsuit. He insists that it was necessary to “cast a wide
net” to uncover information related to the claims in his complaint. The fact remains,
however, that the trial court found itself largely unable to determine which public-record
requests and subsequent actions actually involved the OMA violations at issue in this
case. Contrary to Stafford’s argument, we are unpersuaded that the trial court was
obligated to compel the respondents to pay attorney fees for all of his attempts to uncover
OMA violations, regardless of the success or failure of those efforts.
{¶ 50} The record reflects a reasoned analysis by the trial court of the first two
pages of McTigue & Colombo’s billing summaries. We see no abuse of discretion. The
sixth assignment of error is overruled.
III. Conclusion
{¶ 51} Having sustained Stafford’s first assignment of error, we reverse the trial
court’s January 19, 2022 judgment awarding him attorney fees in the amount of
$48,562.50 plus court costs. The case is remanded for the trial court to recalculate its
attorney-fee award applying a rate of $250 per hour for attorney Derek Clinger.
.............
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EPLEY, J. and LEWIS, J., concur.
Copies sent to:
Jeremy M. Tomb
Hillary Jaqua
Nicholas E. Subashi
Tabitha Justice
Hon. Adolfo A. Tornichio