Jones v. Natural Essentials, Inc.

[Cite as Jones v. Natural Essentials, Inc., 2018-Ohio-5071.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
TERESA JONES, et al., : OPINION
Plaintiffs-Appellants, :
CASE NO. 2018-P-0010
- vs - :
NATURAL ESSENTIALS, INC., :
Defendant-Appellee. :
Civil Appeal from the Portage County Court of Common Pleas, Case No. 2014 CV
00215.
Judgment: Affirmed.
Natalie F. Grubb and Mark E. Owens, Grubb & Associates, L.P.A., 437 West Lafayette
Road, Suite 260-A, Medina, OH 44256 (For Plaintiffs-Appellants).
Todd H. Lebowitz and Kyle T. Cutts, Baker & Hostetler, LLP, Key Tower, 127 Public
Square, Suite 2000, Cleveland, OH 44114 (For Defendant-Appellee).
DIANE V. GRENDELL, J.
{¶1} Plaintiffs-appellants, Teresa Jones, Kevin Jones, and Robert Lovejoy,
appeal from the judgment of the Portage County Court of Common Pleas, ordering the
payment of attorney’s fees and other sanctions to defendant-appellee, Natural
Essentials, Inc. The issues to be determined by this court are whether leaving a
deposition because the notice did not state solely that it would be videotaped rather
than stenographically recorded is sanctionable; whether an affidavit of attorney’s fees is
sufficient to support such an award as a frivolous conduct sanction; whether an affidavit
stating payment of a court reporter’s invoice had been made is sufficient to award the
reporter’s fees as a discovery sanction; and whether multiple failures to provide
discovery, both in response to the defendant’s requests and court orders, is
sanctionable conduct under R.C. 2323.51 and Civ.R. 11. For the following reasons, we
affirm the judgment of the lower court.
{¶2} On March 14, 2014, the appellants filed a Complaint in the Portage
County Court of Common Pleas against Natural Essentials, alleging wrongful
termination in relation to a workers’ compensation matter. Natural Essentials filed an
Answer on May 27, 2014.
{¶3} Natural Essentials filed a Motion to Compel Lovejoy and Kevin Jones to
respond to written discovery requests on September 23, 2014. Pursuant to the Motion,
Natural Essentials had served requests for interrogatories, production of documents,
and admissions on July 14, 2014, following up with multiple letters to opposing counsel.
An e-mail response received on September 12, 2014, which “purport[ed] to attach
responses” to discovery requests, contained only documents from an unrelated case.
{¶4} On September 23, 2014, appellants filed a request for leave to file
untimely responses to the Requests for Admissions, stating that a response had been
submitted on or about September 10 and asserting that the delay in responding resulted
from lead counsel’s departure from the firm. Appellants also filed a Memorandum in
Opposition to the Motion to Compel, arguing that discovery had been sent via e-mail to
Natural Essentials on September 25, 2014. Natural Essentials responded that it had
received only inadequate responses from Lovejoy and none were received in relation to
Kevin Jones.
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{¶5} A December 1, 2014 Magistrate’s Order granted the Motion to Compel in
part and set forth certain items appellants must provide to Natural Essentials within 30
days.
{¶6} On December 4, 2014, appellants filed a Motion for Protective Order,
arguing that they appeared for scheduled depositions but declined to participate
because they had not been provided notice that the depositions were to be videotaped.
{¶7} Natural Essentials filed a Motion to Compel Plaintiffs to Testify and Motion
for Sanctions on December 9, 2014, and a Brief in Opposition to the Motion for
Protective Order on December 10, 2014. These filings contended that the notices
informed the appellants there would be a video deposition, but the appellants “walked
out” of the depositions rather than be taped. The transcript of the “attempted
deposition” included appellants’ counsel’s objection to the notice, which she deemed
inadequate, as well as her statement that appellants would provide testimony in front of
the stenographer or submit to a videotaped deposition the following day “provided that
defendant modify [its] notice,” which Natural Essentials refused. Natural Essentials
attached a copy of an invoice from the court reporter/videographer, David Tackla, for
fees in the amount of $1,701.40.
{¶8} On December 12, 2014,1 the court issued an Order granting the Motion to
Compel, finding that there had been proper notice of the video depositions and the
appellants’ actions “were unreasonable and obstructionist, constitute sanctionable
discovery misconduct, and warrant appropriate relief under Rule 37(D).” Appellants and
1. For the sake of clarifying the record, an Order that is identical with the exception of the date and
signature was also filed on December 17, 2014, for reasons that are not evident.
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counsel were ordered to pay $1,701.40 in deposition-related fees, as well as defense
counsel’s preparation costs and costs for filing related motions and responses.
{¶9} On January 7, 2015, Natural Essentials filed a Motion to Dismiss Due to
Plaintiffs’ Continuing Discovery Misconduct, contending that the appellants had failed to
comply with orders to provide discovery and pay the Tackla invoice. On January 20,
2015, the appellants filed a Notice of Dismissal without Prejudice, dismissing all claims.
{¶10} Natural Essentials filed a February 12, 2015 Motion to Enforce the
December 12, 2014 sanctions. On the same date, it filed a Motion to Impose Sanctions
for Frivolous Conduct and Other Litigation Misconduct. Appellants filed a brief in
opposition.
{¶11} A hearing was held on the foregoing motions on July 30-31, 2015. The
following pertinent testimony and exhibits were presented:
{¶12} Following his opening argument, Natural Essentials’ attorney, Todd
Lebowitz, presented a Summary of Fees and an attached affidavit for fees arising from
the alleged frivolous conduct, and affirmed that the affidavit was accurate. The fees
totaled $49,637.66 after a 10 percent discount. The court admitted this as an exhibit.
{¶13} All three plaintiffs, Teresa Jones, Kevin Jones, and Robert Lovejoy,
testified that they had not been advised by counsel that the depositions would be
videotaped, although they would have gone forward with a stenographic deposition.
Kevin Jones and Lovejoy both testified that they answered the interrogatories and
requests for documents to the best of their ability and submitted them to counsel.
{¶14} Monique George, the office manager at Grubb and Associates, counsel for
appellants, testified that the attorney who had been handling the present matter left the
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firm around the time the request for discovery was made in July 2014, which resulted in
a failure to review the requests until August 2014. George admitted she mistakenly e-
mailed documents from another case to opposing counsel rather than the answers to
the request for admissions. The correct documents were never provided since Lebowitz
sent an e-mail stating it was unnecessary to respond as the matters had already been
deemed admitted.
{¶15} Jessica Bartolozzi, an attorney at Grubb and Associates, testified that she
attempted to e-mail the interrogatories and requested documents from Kevin Jones and
Lovejoy to opposing counsel on September 25, 2014, but mistakenly failed to add
opposing counsel’s e-mail address for Jones’ documents, resending the e-mail on
October 10. After the Magistrate’s Order requiring discovery, she provided the
necessary documents to the court but failed to realize they also must be provided to
defense counsel. After she was alerted to the error, the documents still were not sent to
opposing counsel.
{¶16} Patricia Lowery, who practices law in her firm in Medina, opined that the
hourly rate of $455 to $475 charged by Natural Essentials’ counsel was not a
reasonable hourly rate. She also believed the time expended drafting the motions at
issue was unreasonable.
{¶17} Jon Jastromb, a videographer in Northeast Ohio, testified that he typically
does not charge for videography work that is scheduled but not completed, with the
exception of his set-up fee.
{¶18} In an August 31, 2015 decision, the magistrate found “a course of
unprofessional conduct,” which “unreasonably and substantially impaired Natural
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Essentials’ ability to defend itself in this litigation.” It found the December 12, 2014
order should be enforced and ordered appellants and attorney Grubb to pay $10,000 in
attorney’s fees pursuant to R.C. 2323.51 and Civ.R. 11. On the same date, the court
adopted the decision.
{¶19} Appellants subsequently filed Objections to Magistrate’s Decision, which
were overruled, and a Motion for Findings of Fact and Conclusions of Law. On January
4, 2018, the magistrate issued Findings of Fact and Conclusions of Law, finding that
“the record in this case is rife with examples of actions (or inactions) on the part of
Plaintiffs’ counsel which amount to refusal to cooperate with Defendant’s efforts to
conduct discovery in the case,” including the failure to go forward with the depositions
and failure to provide all discovery that was ordered by the court. Subsequent
objections filed by appellants were overruled.
{¶20} On appeal, appellants raise the following assignments of error:
{¶21} “[1.] The trial court abused its discretion in finding that appellants ‘walked
out’ of their depositions.
{¶22} “[2.] The trial court erred as a matter of law in failing to find that appellants
have a good faith basis under existing Ohio law for requiring proper notice of video
depositions.
{¶23} “[3.] The trial court erred as a matter of law by relying on evidence
submitted outside of the sanctions hearing and in awarding $10,000 in legal fees
without admissible evidence.
{¶24} “[4.] The trial court abused its discretion by awarding Tackla’s purported
fees for the cancelled depositions.
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{¶25} “[5.] The trial court abused its discretion in finding that appellants’ counsel
made knowingly false representations to the trial court or engaged in frivolous conduct
under R.C. 2323.51.
{¶26} “[6.] The trial court erred in awarding Rule 11 sanctions against
appellants.”
{¶27} The first and second assignments of error will be addressed jointly, as
they relate to appellants’ contention that they properly refused to participate in the
depositions since the notice was not sufficient to permit videotaping.
{¶28} Pursuant to Civ.R. 37(D)(1)(a)(i) “a court may, on motion, order sanctions
if * * * [a] party or party’s officer, director, or a managing agent or a person designated
under Civ.R. 30(B)(5) or Civ.R. 31(A) fails, after being served with a proper notice, to
appear for that person’s deposition.” This court has held that “[a] trial court has
considerable latitude in imposing sanctions for discovery violations and a trial court’s
decision on a discovery violation will not be reversed absent a showing of
an abuse of discretion.” (Citations omitted.) Bd. of Trumbull Twp. Trustees v. Rickard,
2017-Ohio-8143, 98 N.E.3d 800, ¶ 55 (11th Dist.).
{¶29} There is no question that the appellants failed to participate in videotaped
depositions sought by Natural Essentials, pursuant to the direction of counsel.
Appellants fail to cite authority for the proposition that their refusal to participate is not
the equivalent of failure to appear, as it had the same consequence of not attending the
deposition in the first instance. See E.I. DuPont de Nemours & Co., Inc. v. Thompson,
29 Ohio App.3d 272, 276, 504 N.E.2d 1195 (8th Dist.1986) (“[a]s a practical matter,
failing to appear at a deposition, and appearing but refusing to answer are equivalent”).
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Although the appellants take issue with the characterization of their conduct as “walking
out,” the wording used is of little relevance. The court accurately described the facts
surrounding this incident in finding this conduct sanctionable under Civ.R. 37(D)(1)(a)(i).
{¶30} In relation to the appellants’ contention that they were excused from
participation due to lack of notice that the deposition would be videotaped, Civ.R.
30(B)(3) requires: “If a party taking a deposition wishes to have the testimony recorded
by other than stenographic means, the notice shall specify the manner of recording,
preserving, and filing the deposition.”
{¶31} Here, notices were provided to the appellants that the depositions would
be recorded “stenographically and/or on video.” Although the appellants contend that
the notices were “ambiguous and unclear as to whether video was the chosen method
of recording,” there was no reason for the appellants or their counsel to be unaware that
a videotaped deposition may take place given the word “video” was included in the
notice.
{¶32} The appellants also argue that the notices lacked compliance with the
Rules of Superintendence. Pursuant to Sup.R. 13(A)(2), “[n]otice is sufficient if it
specifies that the videotape deposition is to be taken pursuant to the provisions of
this rule.” The Rule’s commentary provides that it “is necessary in the notice to merely
make reference to Rule 13 to satisfy the requirements of Civ.R. 30(B)(3).” While the
notices did not include such reference, noncompliance with the Rules of
Superintendence does not warrant reversal, since they “are not the equivalent of rules
of procedure[,] * * * have no force equivalent to a statute,” and “create no rights in
individual defendants.” Habo v. Khattab, 11th Dist. Portage No. 2012-P-0117, 2013-
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Ohio-5809, ¶ 84, citing State v. Gettys, 49 Ohio App.2d 241, 243, 360 N.E.2d 735 (3d
Dist.1976).
{¶33} Finally, the appellants contend that a one-day delay in taking the
depositions, since they offered to complete video depositions the next day if given what
they deemed to be proper written notice, should not constitute sanctionable discovery
misconduct. However, sanctions are specifically permitted for the failure to appear for a
deposition under Civ.R. 37(D)(1)(a)(i) and it is evident from the record that costs were
expended in relation to the decision not to participate.
{¶34} The first and second assignments of error are without merit.
{¶35} We will consider the remaining assignments of error out of order for ease
of discussion. In their fourth assignment of error, the appellants argue that the trial
court abused its discretion by awarding the videographer/court reporter, David Tackla,
fees for the aforementioned depositions since his invoice was not authenticated by any
witness, nor did any witness appear at the sanctions hearing to do so.
{¶36} It is evident from the record that the initial award of Tackla’s fees was
made on December 12, 2014, without a hearing, based upon Natural Essentials’ motion
and an attached invoice from Tackla. This court dismissed an appeal from that order as
non-final. Jones v. Natural Essentials, Inc., 11th Dist. Portage No. 2015-P-0005, 2015-
Ohio-1073. Natural Essentials subsequently filed its motions requesting sanctions for
frivolous conduct, as well as to enforce the prior judgment ordering Tackla’s fees, which
gave rise to the sanctions hearing. At that hearing, the court accepted additional
evidence as to Tackla’s deposition fees, allowing the appellants to contest their
reasonableness including testimony for the appellants in relation to whether it was
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reasonable to bill for a deposition that did not go forward. Following the hearing, the
court again ordered payment of the deposition fees, although it gave 30 days to pay
rather than the seven days previously ordered.
{¶37} Typically, as described above, an abuse of discretion applies in reviewing
discovery sanctions. Rickard, 2017-Ohio-8143, at ¶ 55. Natural Essentials contends
that appellants did not contest the authenticity of the invoice upon the initial award of
sanctions, which is accurate. Appellants did object following the sanctions hearing, at
which the matter had again been presented to the court for review. In any event, even
presuming there was not an adequate initial objection, the issue of authenticity can still
be raised before this court, although evaluated under a plain error standard. Midland
Funding LLC v. Farrell, 1st Dist. Hamilton No. C-120674, 2013-Ohio-5509, ¶ 9; Mentor
Economic Assistance Corp. v. Eichels, 2016-Ohio-1162, 61 N.E.3d 670, ¶ 24 (11th
Dist.).
{¶38} We note that there was no initial affidavit submitted regarding the
authenticity of Tackla’s invoice. However, at the hearing on sanctions, wherein the
amount of these fees was disputed, the defendant’s attorney’s affidavit attested that
Tackla had billed the amount of $1,701.40 and that this amount had been paid by
Natural Essentials. To the extent that the appellants contest authenticity, that is refuted
by the affidavit asserting these fees were in fact billed and paid. While this was not
initially presented, it appears that both sides were permitted by the court to present
additional evidence on this particular discovery sanction at the frivolous conduct/motion
to enforce hearing and, as such, we find it acceptable to support the court’s award of
deposition fees. See E.I. DuPont, 29 Ohio App.3d at 277, 504 N.E.2d 1195 (finding
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fees pursuant to a motion for discovery sanctions were appropriate when an affidavit
supported the award).
{¶39} The appellants also argue that the testimony from another stenographer,
Jastromb, demonstrated that it is common practice within the industry to charge only for
set up and time actually expended taking a deposition. However, Jastromb testified
only as to what his practice was, was not qualified as an expert, and conceded that
other videography firms charge different amounts. Thus, we find no error in the court’s
determination that it was reasonable for Tackla to charge for the entirety of time the
video deposition had been scheduled.
{¶40} The fourth assignment of error is without merit.
{¶41} We will next consider the fifth and sixth assignments of error. In their fifth
assignment, the appellants argue that the trial court abused its discretion in finding there
was frivolous conduct or knowingly false representations made to the court, pursuant to
R.C. 2323.51 and Civ.R. 11, as all discovery issues occurred due to clerical errors. In
their sixth assignment, they assert that there was no evidence of “subjective bad faith”
necessary to prevail under Civ.R. 11.
{¶42} When evaluating a claim of frivolous conduct under R.C. 2323.51, the
court must consider whether there is a factual or a legal issue. To the extent that the
issue is a factual determination, “e.g. whether a party engages in conduct to harass or
maliciously injure another party,” we accord “substantial deference” to the trial court’s
findings of fact and review them under an abuse of discretion standard. All legal
questions are reviewed de novo. Curtis v. Hard Knox Energy, Inc., 11th Dist. Lake No.
2005-L-023, 2005-Ohio-6421, ¶ 15. The same standard applies to Civ.R. 11 cases.
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Fast Property Solutions, Inc. v. Jurczenko, 11th Dist. Lake Nos. 2012-L-015 and 2012-
L-016, 2013-Ohio-60, ¶ 57.
{¶43} R.C. 2323.51(B)(1) provides that “any party adversely affected by frivolous
conduct may file a motion for an award of court costs, reasonable attorney’s fees, and
other reasonable expenses incurred in connection with the civil action * * *.” Frivolous
conduct includes conduct by a party that “obviously serves merely to harass or
maliciously injure another party to the civil action or appeal or is for another improper
purpose, including, but not limited to, causing unnecessary delay or a needless increase
in the cost of litigation.” R.C. 2323.51(A)(2)(a)(i).
{¶44} Civ.R. 11 provides that an attorney’s signature on a pleading, motion, or
document constitutes a certificate that the attorney has “read the document; that to the
best of the attorney’s * * * knowledge, information, and belief there is good ground to
support it; and that it is not interposed for delay.” In determining whether there is a
violation of Civ.R. 11, the courts apply a “subjective bad-faith standard” which is met
when a violation is found to be “willful.” Fast Property at ¶ 53. In contrast, R.C. 2323.51
does not require a showing of willfulness. Chapman v. Chapman, 11th Dist. Lake No.
2015-L-039, 2015-Ohio-4833, ¶ 48.
{¶45} Here, the trial court found sanctions to be warranted under both R.C.
2323.51 and Civ.R. 11. There were several grounds provided in the record and
described in the court’s judgments to support a finding of, at the very least, frivolous
conduct. During the discovery process, there were multiple occasions of unnecessary
delay caused by the actions of the appellants, including their failure to provide discovery
for two months, failure to exercise any care in attaching the correct discovery
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documents to e-mails and to send them to appropriate parties, and failure to ensure
communications requesting discovery were reviewed and complied with in a timely
manner. The appellants also refused to participate in a deposition for which they had
appropriate notice. Perhaps most significantly, the appellants failed to comply with
multiple court orders to pay sanctions and to provide specific items of discovery by the
set deadline. At the time the appellants chose to voluntarily dismiss their claims, they
had complied with neither of the court’s discovery orders.
{¶46} All of this conduct delayed discovery and resulted in Natural Essentials
having to expend excessive time sending requests and reminders to opposing counsel
and filing motions with the court seeking compliance. We do not find an abuse of
discretion in the court’s determination that the appellants’ actions amounted to frivolous
conduct. Chapman at ¶ 38 (“[b]ecause the trial judge has observed the proceedings
and is most familiar with the parties, their counsel and the basis for their actions, that
court’s finding of frivolous conduct is entitled to ‘substantial deference upon review’”)
(citation omitted). Awards of sanctions for frivolous conduct under R.C. 2323.51 have
been upheld in similar circumstances. See Giles v. Cent. Ohio Technical College, 5th
Dist. Licking No. 07CA69, 2008-Ohio-3428, ¶ 64 (failure to comply with discovery
requests and provide documents pursuant to an agreed order, as well as giving
inconsistent answers regarding existing documents, caused unnecessary delay that
warranted sanctions); also Bowling v. Stafford & Stafford Co., L.P.A., 1st Dist. Hamilton
No. C-090565, 2010-Ohio-2769, ¶ 15 (where the documents requested were not
produced despite the court granting a motion to compel, the parties cancelled multiple
depositions, and counsel failed to serve documents on the opposing party, this
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constituted sanctionable conduct).
{¶47} To the extent that the appellants argue the conduct was not sanctionable
under Civ.R. 11, since there was no evidence of “subjective bad faith,” we emphasize
that false or inaccurate statements appear to have been made in documents filed by the
appellants regarding whether discovery was provided, and that court orders were
disobeyed, both of which could be construed as bad faith actions. Regardless, we note
that the court found sanctions were appropriate under both Civ.R. 11 and R.C. 2323.51.
Even presuming no bad faith existed, there were still grounds for sanctions under R.C.
2323.51 for all of the conduct at issue here, which led to the filing of multiple motions to
compel and enforce court orders, justifying the award against the appellants. See
Chapman at ¶ 48 (where an award made pursuant to R.C. 2323.51 and Civ.R. 11 was
challenged, the appellate court upheld the award as justified under R.C. 2323.51).
{¶48} The fifth and sixth assignments of error are without merit.
{¶49} Finally, in their third assignment of error, the appellants argue that the
lower court erred by awarding attorney’s fees for the foregoing conduct by relying on
evidence submitted outside of the sanctions hearing.
{¶50} “[W]here a trial court has determined a party has engaged
in frivolous conduct, the decision to assess a penalty lies within the sound discretion of
the trial court.” Lozada v. Lozada, 11th Dist. Geauga No. 2012-G-3100, 2014-Ohio-
5700, ¶ 14.
{¶51} The appellants argue that since there was no testimony given by defense
counsel or any other defense witness regarding attorney’s fees, the court had to rely on
records attached to sanctions motions to determine the amount awarded, which is
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improper under Pisanick-Miller v. Roulette-Pontiac Cadillac GMC, Inc., 62 Ohio App.3d
757, 761, 577 N.E.2d 446 (11th Dist.1991). In reviewing the evidence presented in this
matter, we disagree.
{¶52} “[A] hearing is required by R.C. 2323.51(B)(2) before a court can grant an
award of attorney fees.” (Emphasis omitted.) Dennison v. Lake Cty. Commrs.,
11th Dist. Lake No. 2013-L-097, 2014-Ohio-4295, ¶ 15. Here, there is no question that
a hearing was held. At that hearing, defendant’s counsel referenced prior filings relating
to his fees which had been attached to the Motion to Impose Sanctions, presented into
evidence a Summary of Fees and Expenses and accompanying affidavit attesting to the
accuracy of the fees charged, stated that he affirmed those were his fees, and
volunteered to be cross-examined as to the fees (which did not occur). Following the
hearing, a supplement with additional fees was provided. The court accepted the
Summary of Fees and Expenses into the record as an exhibit.
{¶53} While it is accurate that Attorney Lebowitz did not testify at the hearing, we
find the detailed records of the fees submitted to be sufficient to support the court’s
award of sanctions. This court has found that, while generally submitting an attorney’s
bill is insufficient to establish the reasonableness of fees, when the statement “included
itemized notations of the activities for which he was billing, all of which related to the
defense of the” specific matter for which fees were sought, the detailed fee statement
was sufficient to permit the court “to render an informed opinion regarding the
reasonableness of the fees.” Lozada, 2014-Ohio-5700, ¶ 60-61. Similarly, this court
has held that an award of attorney’s fees supported by a fee statement submitted into
evidence at a hearing on a motion for sanctions provided “competent, credible evidence
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that supports the award of attorney fees made by the trial court.” Kucharski v.
Weakland, 11th Dist. Portage No. 2001-P-0020, 2002-Ohio-5156, ¶ 23.
{¶54} The Summary of Fees lists each motion filed and the corresponding fees,
referencing (but not attaching) pertinent exhibits for each motion that had been
previously presented with the Motion to Impose Sanctions, which provided more
detailed breakdowns of the specific tasks performed, including research undertaken,
telephone conversations, time spent drafting each motion, and time spent reviewing and
proofreading motions. From the Summary and exhibits previously presented, it is
evident that the court was able to conduct a thorough review of all costs expended and
the amount of time spent on each relevant task.
{¶55} To the extent that Pisanick is cited by appellants for the proposition that
evidentiary materials submitted with motions cannot be considered, we emphasize that
the Summary of Fees and attached affidavit were submitted at trial and accepted into
the record. We note that in Pisanick, this court held that “a motion for attorney fees
under R.C. 2323.51 must be decided solely upon the evidence presented at the
hearing, not upon evidentiary materials submitted with the motion or otherwise.” Id. at
761. However, we do not believe Pisanick should preclude consideration of the exhibits
referenced in the Summary of Fees. The affidavit submitted at the hearing attests to the
fact that all submitted fee records were an accurate accounting of the work undertaken.
Further, Pisanick has been distinguished in situations where supporting documentation
was presented prior to the hearing on fees, since Pisanick’s reversal was based, at
least in part, on the fact that the opposing party had no opportunity to rebut documents
presented after the hearing. Reddy v. Singh, 3d Dist. Marion No. 9-14-29, 2015-Ohio-
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1180, ¶ 65 (“we cannot find that the trial court erred in using the evidence already
contained in the record [from motions for frivolous conduct] to make its decision on
frivolous conduct in this case”). Further, subsequent to Pisanick this court has stated
that courts “may not rely exclusively on what has or has not been submitted with the
motion itself.” (Emphasis added.) Cic v. Nozik, 11th Dist. Lake No. 2000-L-117, 2001
WL 822465, *2 (July 20, 2001). We find no reason why the totality of the information
included in the record in the present case could not be considered by the trial court in
light of the affidavit supporting the contention that the billing was true and accurate.
{¶56} Appellants also argue that, pursuant to Attorney Lowery’s testimony, the
rate charged and amount of time expended by Lebowitz were unreasonable. We do not
find this to warrant reversal. Defense counsel requested fees in the amount of
$49,637.66, but the court awarded only $10,000. When awarding attorney’s fees, the
trial court should calculate the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate, and then may modify the amount by applying
reasonableness factors, which include, inter alia, time required to perform the service
properly, the customary fee in the locality, and the experience of the lawyer. Lozada,
2014-Ohio-5700, at ¶ 54-55, citing Bittner v. Tri-County Toyota, Inc., 58 Ohio St.3d 143,
145, 569 N.E.2d 464 (1991). In reaching its ultimate award, the lower court clearly took
into account Lowery’s testimony and arrived at an award that was much lower than had
been requested. We do not find a ground for interfering with the court’s authority to
award attorney’s fees since the amount is not “so high or so low as to shock the
conscience.” Bittner at 146.
{¶57} The third assignment of error is without merit.
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{¶58} For the foregoing reasons, the judgment of the Portage County Court of
Common Pleas is affirmed. Costs to be taxed against appellants.
COLLEEN MARY O’TOOLE, J., concurs in judgment only,
THOMAS R. WRIGHT, P.J., concurs with a Concurring Opinion.
______________________________________
THOMAS R. WRIGHT, P.J., concurs with a Concurring Opinion.
Because appellants did not object to or oppose the admission of counsel’s
affidavit and fee summary, otherwise inadmissible via Evid.R. 802, Evid.R. 801(C), and
Evid.R. 901(A), I concur.
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