Kellard v. Cincinnati, 171 N.E.3d 868

Background

In 2017 Ohio enacted R.C. 2923.1210 (preempting local restrictions on storing/conveying firearms in privately owned vehicles) and former R.C. 9.68(B) provided that a person who “prevails in a challenge” to a conflicting ordinance/rule is entitled to costs and reasonable attorney fees.
Cincinnati’s H.R. 5.1 and Admin. Reg. 49 contained provisions inconsistent with R.C. 2923.1210; the city discussed revisions but did not formally amend the policies for two years.
On August 15, 2019 Timothy Kellard (a CCW holder and city employee) sued seeking declaratory and injunctive relief, attorneys’ fees, costs, and damages; he alleged fear of discipline kept him from storing a firearm in his car at work.
Before the trial court hearing (by August 19, 2019) the city formally amended the policies to comply with R.C. 2923.1210; Kellard nevertheless sought permanent injunctive/declaratory relief and fees.
The trial court granted declaratory judgment, a permanent injunction, damages ($702.96), and about $47,000 in attorneys’ fees. On appeal the court reversed the injunction/declaratory judgment as non-justiciable, held Kellard could still be a prevailing party for fee purposes, but reduced the fee award and affirmed the damages.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Justiciability of declaratory/injunctive relief	Kellard argued ongoing risk that city could reinstate/enforce unlawful policies warranted relief	City argued its August 19 policy revisions mooted claim and removed any live controversy	Reversed: permanent injunction and declaratory judgment vacated as speculative/non-justiciable once city adopted compliant policies
Whether Kellard “prevails in a challenge” under former R.C. 9.68(B)	Kellard argued the suit caused the city to change policies, so he obtained the relief sought and thus prevailed	City argued it already was moving toward revision and Kellard did not truly prevail	Affirmed: court adopts causal/but‑for approach — Kellard prevailed because the record supported causation between the suit and the policy changes
Reasonableness of attorneys’ fees (rates and hours)	Kellard sought high hourly rates (benchmarked to Laffey Matrix and prior federal awards) and full billed hours	City challenged both rates and hours, arguing many hours were unreasonable after the policy change mooted injunctive claim	Modified fees: trial court’s hourly rates ($335 for court appearances, $270 out-of-court) upheld; hours reduced to exclude time spent pursuing non‑justiciable injunction after Aug. 19; final awards: Phillips $5,713; Hackett $12,060.50; Stokar $10,336
Damages / class-representative fee request	Kellard sought an additional $5,000 as a class-representative-style award for risks and public-spiritedness	City opposed; no class was certified and no legal basis for a representative fee	Denied: no legal authority or class-certification support; $702.96 damages affirmed

Key Cases Cited

MedImmune, Inc. v. Genentech, 549 U.S. 118 (U.S. 2007) (declaratory-judgment claim requires an actual controversy—threat of enforcement must be imminent)
Kincaid v. Erie Ins. Co., 128 Ohio St.3d 322 (Ohio 2010) (a justiciable matter requires adverse legal interests; more than disagreement)
Oberlin (Ohioans for Concealed Carry, Inc. v. Oberlin), 72 N.E.3d 676 (9th Dist. 2017) (repeal of an ordinance can moot injunctive/declaratory claims; plaintiff may still pursue fees; causation inquiry required)
Phoenix Lighting Group, LLC v. Genlyte Thomas Group, LLC, 160 Ohio St.3d 32 (Ohio 2020) (lodestar: reasonable hours × reasonable hourly rate; benchmark rates to local market and complexity)
Bittner v. Tri-County Toyota, Inc., 58 Ohio St.3d 143 (Ohio 1991) (adopts lodestar method in Ohio)
Hensley v. Eckerhart, 461 U.S. 424 (U.S. 1983) (hours that are excessive, redundant, or unnecessary should be excluded when computing fees)
Waldman v. Pitcher, 70 N.E.3d 1025 (1st Dist. 2016) (Ohio constitutional limit on subject-matter jurisdiction to justiciable matters)