{¶ 3} The Ohio Department of Commerce ("Commerce") investigated the complaint and contacted Salyers multiple times in order to obtain information regarding wages and any fringe benefits paid to the employees. As deadlines came and passed, Salyers failed to provide Commerce with any documentation. In December 2005, Commerce issued an initial determination which ordered Salyers to pay $368,266.34 in back wages and $368,266.34 in penalties. Commerce notified Monarch of the result by sending it a copy of the determination which served as Monarch's first notice of the investigation.
{¶ 4} Plaintiffs, consisting of the employees who decided not to assign their claim to Commerce for collection, filed suit on February 21, 2006 based on the authority of R.C.
{¶ 5} Having received notice for the first time in the form of Commerce's December 2005 determination, Monarch began collecting documentation regarding fringe benefits paid to the employees and supplied the pertinent documentation to Commerce. After receiving *3 this information for the first time, Commerce agreed to rework its determination and reduced the back pay owed by giving credit for benefits Salyers had paid the employees such as vacation, insurance, disability, and 410K contribution. This new amount was introduced, over objection, at trial and the court adopted the redetermination as it applied to Plaintiffs.
{¶ 6} At trial, Monarch also introduced evidence that Miami failed to provide timely notice of an increase in the prevailing wage rate so that Miami was responsible for part of the back pay owed. The court agreed, and held that out of the total amount owed to Plaintiffs, Monarch's liability was limited to $88,013.53. The court also denied Plaintiffs' request to penalize Monarch an additional 25 percent of the back wages it owed, as set forth in R.C.
{¶ 7} Also within its judgment, the court ordered Monarch to pay court costs and "reasonable attorney fees necessary to collect the amount of judgment." Plaintiffs submitted an application for attorney fees and costs in the amount of $127,853.42 but later corrected that amount to $91,054.42 when Monarch pointed out a $37,170 typographical error included in the original calculation. Monarch countered by asserting that the reasonable fees were, at most, $46,423.92 and that based on the unsuccessful nature of Plaintiffs' case, that amount should be decreased by half. In its decision specific to the fee award, the trial court agreed with Monarch's arguments and limited Plaintiffs' award for attorney fees and court costs to $23,211.96. It is from these two decisions that Plaintiffs now appeal, raising four assignments of error. *4
{¶ 9} However, the Ohio Supreme Court has provided some guidance in regard to the purpose of the statute and how a court is to construe the more challenging sections. In Harris, the court began its analysis of the wage law statute by stating that "Chapter 4115 provides a comprehensive statutory procedure for effecting compliance with the prevailing wage law through administrative and civil proceedings."
{¶ 10} The court later clarified Ohio legislators' purpose in enacting the wage statute. Harris,
{¶ 11} Should employees not receive wages equal to, or more than, the minimum required by statute, they are directed by R.C.
{¶ 12} It is with this challenging ambiguity and limited guidance that we turn to the four issues raised in this appeal. However, we are also mindful of R.C.
{¶ 14} "THE TRIAL COURT ERRED WHEN IT DISTURBED THE BUREAU'S DECEMBER 2005 DETERMINATION."
{¶ 15} In their first assignment of error, Plaintiffs argue that the statute of limitations prohibited the court from reviewing Commerce's recalculation, that the court erred by not requiring Monarch to post a bond, and that the court should have deferred to Commerce's initial decision to not credit Monarch with fringe benefit payments because the Ohio Administrative Code is a reasonable regulation. These arguments lack merit.
{¶ 16} Because the arguments in this assignment call for this court to answer questions of law, the standard of review will be de novo.Ohio Bell Tel. Co. v. Pub. Util. Comm. (1992),
{¶ 18} Although the statute is ambiguous regarding the ways in which a party can challenge Commerce's determination if the violation was not specifically found to be intentional, the Harris decision does provide a starting point in the analysis necessary to remove Commerce's determination from the auspices of R.C. Chapter
{¶ 19} In Harris, Howard Electric Co. ("Howard") underpaid several employees and received a determination letter from Commerce which advised the company that an investigation had revealed the violation and that the company had to remit payment within 30 days. The affected employees received letters advising them of the underpayment and stating that according to R.C. Chapter
{¶ 20} Instead, the supreme court held that the determination, sent in conjunction with the letters to the affected employees, was notice of the outcome of the investigation and that employees had a right to sue, as well as a means to elicit a settlement of the back wages owed. The court compared the determination letter to right-to-sue letters sent by the Federal Equal Opportunity Commission under the Civil Rights Act which are prepared as mere preparation for further proceedings. "If and when the EEOC or the charging party files suit in the district court, the issue of discrimination will come to life, and the plaintiff will have the opportunity to refute the charges." Harris at 201.
{¶ 21} For this reason, the court found "that the department's function in this case is an investigatory one, comparable to that of the EEOC, for the reason that the `determination' of the department is notenforceable unless an appropriate court proceeding is filed." Id. at 202. (Emphasis added.) To further cement this holding, the court referenced R.C.
{¶ 22} In the case at bar, the undisputed facts demonstrate that Commerce sent its initial determination to Salyers at the same time they sent the employees their "right-to-sue" letter. In the letter, Commerce explained that it had recently performed an investigation into the wages paid on the Miami University Housing Project and that it "appears from this investigation that you were paid less than required by Ohio's Prevailing Wage Law." The *8
letter then stated that Salyers had been informed and that any payment it made to Commerce would be forwarded to the employees after processing. The letter also set forth the employees' right to sue under R.C.
{¶ 23} While Plaintiffs admit that the determination was not an adjudication under R.C.
{¶ 24} Initially, we note that when the court decided Harris in 1985, it did not apply R.C. Chapter
{¶ 25} Although Plaintiffs point out that R.C.
{¶ 26} As it currently reads, R.C.
{¶ 27} R.C.
{¶ 28} Plaintiffs correctly assert that R.C.
{¶ 29} We also note that even if R.C. Chapter
{¶ 30} According to traditional notions of due process inherent in the
{¶ 31} While R.C.
{¶ 32} Here, it is undisputed that Monarch did not receive notice that Commerce was investigating a possible violation of the wage statute or that it had the right to submit fringe benefit documentation to offset back wages owed. The court heard testimony that Monarch was told on multiple occasions by Miami and Salyers that the correct wage was being paid and that they were in full compliance with the statute. Commerce directed all of its correspondence to Salyers and its requests for fringe benefit documentation went unheeded time after time. Not until Commerce sent Monarch a copy of its initial determination did Monarch receive notice of the ongoing investigation and proposed amount of back wages *11 owed to the employees.
{¶ 33} Once it received the notice, however, Monarch supplied Commerce the documentation regarding fringe benefits, at which time Commerce credited Monarch for benefits paid to the employees. Requiring Monarch to pay based on a determination for which they had no notice or a chance to respond, would be a due process violation unanticipated by either R.C. Chapters
{¶ 34} The trial court, which was charged with determining what amount was owed to Plaintiffs, determined that enforcing the initial determination would have been a violation of Monarch's due process rights. We find no error in this conclusion.
{¶ 35} Having found that R.C. Chapter
{¶ 37} Initially, we note that Plaintiffs did not raise this issue in the trial court. Plaintiffs assert that the issue was raised in a summary judgment motion they filed in August 2006. In their motion, Plaintiffs argued that summary judgment was appropriate given the fact that Monarch did not comply with R.C. Chapter
{¶ 38} Plaintiffs' mere mention of the bond requirement, or the fact that Monarch had not posted such a bond, was insufficient to raise the issue for consideration. Instead, in Plaintiffs' conclusion to their motion for summary judgment, they prayed that the court find that they were entitled to back pay, penalties, and court costs/attorney fees. This prayer for relief remained consistent through the pendency of the case, matching Plaintiffs' original complaint which called for reimbursement for back pay, penalties, and court costs/attorney fees.
{¶ 39} Although not specifically pled, "when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." Jones v. Alvarez, Butler App. No. CA2006-10-257,
{¶ 40} The record also indicates that the court was not made aware that Monarch not paying a bond was at issue during the case. During the two-day bench trial, no mention was made of the bond, and the parties did not make any mention of it in the post-trial briefs which served as closing arguments. The court made no mention of the bond issue in its decision on the amount of back pay owed to Plaintiffs or in the decision granting attorney fees and *13 court costs.
{¶ 41} Having determined that the issue was not raised at trial, we are mindful of the well-established rule that appellate courts do not ordinarily consider questions not presented to the court whose judgment it is reviewing. State ex rel. Quarto Mining Co. v. Foreman,
{¶ 42} Even so, the statute is clear that a bond is required only in the instances where the violating party brings the suit. R.C.
{¶ 43} In this case, however, Commerce has not found the violation to be intentional. Moreover, Plaintiffs, not Monarch or Salyers, initiated the suit. The language is unambiguous in requiring a bond in the limited instance of an appeal from the decision of the director *14 brought by the contractor or subcontractor.
{¶ 44} R.C. Chapter
{¶ 46} Plaintiffs begin by citing Chevron, U.S.A., Inc. v. NaturalRes. Def. Council (1984),
{¶ 47} In Chevron, the Supreme Court stated, "`the power of an administrative agency to administer a congressionally created * * * program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.' If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency."
{¶ 48} Plaintiffs ask this court to find that the trial court erred by not granting deference to Commerce's original determination which did not consider the fringe benefits paid to the employees. While we agree with Plaintiffs that the court should have shown deference to Commerce's interpretation of its rights and duties under R.C. Chapter
{¶ 49} Again, Plaintiffs begin this argument by stating that the court should have considered only the original determination in which the fringe benefits were not accounted. Plaintiffs then apply theChevron standard to support their assertion that the court erred by considering the fringe benefit set-off in Commerce's recalculation. Specifically, Plaintiffs argue that Commerce reasonably interpreted R.C. Chapter
{¶ 50} The court heard testimony regarding the way Commerce views its implementation authority under R.C. Chapter
{¶ 51} During his testimony, Kennedy also explained that Commerce will discount the amount of back wages owed by giving the contractor or subcontractor credit for any fringe benefits they have paid. However, if the violating party does not supply the requested documentation, Commerce will not discount the difference between the statutory minimum wage and that actually paid by the violating party.
{¶ 52} During the second day of the bench trial, the court heard testimony from Shari Hettesheimer, an investigator for Commerce, who investigated the employees' claim against Monarch and Salyers. During her testimony, Hettesheimer explained that after Monarch received her original determination that it owed $368,266.34 in back wages and $368,266.34 in penalties, representatives from Monarch called and stated that they had not known about the violations and wished to provide fringe benefit documentation. Hettesheimer testified that she told Monarch if it provided the necessary documentation, she would perform a recalculation, and that "we do that all the time." She also testified that as information comes into her office, she often performs recalculations multiple times on the way to a settlement of the claim. When Plaintiffs' counsel asked Hettesheimer what her duties were, she responded, "I do the audit. When I get the information, I do the audit. Sometimes I have to do redeterminations three or four times, depending on the information that I get and when I get it." She concluded her testimony by explaining that she would continue to recalculate a determination until her superiors told her that any further recalculation was unwarranted.
{¶ 53} Specifically, R.C. Chapter
{¶ 54} After hearing the testimony, the court concluded that Commerce's policy was to consider additional documentation and to adapt its initial determination based on any new information received. The court properly granted deference to Commerce and its decision to construe its duties and rights to include recalculation of an initial determination. Based on a reading of R.C. Chapter
{¶ 55} To not allow Commerce to take into consideration documentation of these fringe benefits would produce an unreasonable result in that the violating party would not receive any credit for benefits they have already paid the employees, while the employees would receive much more than they contracted for or is required by the statute. It is also unreasonable to expect Commerce to speculate at what credit should be given to the contractors and subcontractors in the absence of proper documentation. Instead, Commerce has reasonably interpreted R.C. Chapter
{¶ 56} We agree with Plaintiffs that the court should have deferred to Commerce's *18
interpretation of R.C. Chapter
{¶ 57} Having found that R.C. Chapter
{¶ 59} "THE TRIAL COURT ERRED WHEN IT PERMITTED DEFENDANT A DISCOUNT."
{¶ 60} In Plaintiffs' second assignment of error, they argue that the trial court erred by discounting the amount Monarch owed in back wages by the amount for which Miami was responsible. We disagree.
{¶ 61} According to R.C.
{¶ 62} Here, Miami failed to provide the correct information so that Monarch's liability was limited by Miami's liability for its error, or the difference in wages paid and what should have been paid for the amount of time Miami failed to provide Salyers and Monarch with the correct prevailing wage information.
{¶ 63} Plaintiffs now assert that the trial court's decision to discount damages by Miami's liability was in error because according to R.C. Chapter
{¶ 64} To support this assertion, Plaintiffs cite Ohio Asphalt Paving,Inc. v. Ohio Dept. of Indus. Relations et al. (1992),
{¶ 65} While the decision places a duty on contractors to comply with R.C. Chapter
{¶ 66} While Plaintiffs contend that Ohio Asphalt stands for the proposition that a contractor is always fully liable for its duty to pay the prevailing wage and the proper remedy is to seek contribution from the public authority, they ignore the court's specific mention of R.C.
{¶ 67} As referenced at the bench trial, Commerce was negotiating the amount that Monarch would pay those employees that chose to assign their rights to Commerce in lieu of participating in the suit against Monarch. Kennedy testified that Commerce was in the process of negotiating with Miami the amount it was responsible for paying the employees due to the liability imposed by R.C.
{¶ 68} Having found that R.C.
{¶ 70} "THE TRIAL COURT ERRED WHEN IT REFUSED TO ORDER PENALTIES."
{¶ 71} In their third assignment of error, Plaintiffs argue that the trial court erred by not ordering Monarch to pay penalties according to R.C.
{¶ 73} R.C.
{¶ 74} We note initially that the Ohio Supreme Court has found that this section is penal in nature and "it must therefore be strictly construed." Dean v. Seco Elec. Co. (1988),
{¶ 75} The court in Dorrian went on to explain, "the statutory use of the word `may' is generally construed to make the provision in which it is contained optional, permissive, or discretionary at least where there is nothing in the language or in the sense or policy of the provision to require an unusual interpretation. The word `shall' is usually interpreted to make the provision in which it is contained mandatory especially if frequently repeated. Ordinarily, *22 the words `shall' and `may,' when used in statutes, are not used interchangeably or synonymously. * * * However, in order to serve the basic aim of construction of a statute-to arrive at and give effect of the intent of the General Assembly-it is sometimes necessary to give to the words `may' and `shall' as used in a statute, meanings different from those given them in ordinary usage and one may be construed to have the meaning of the other. But when this construction is necessary, the intention of the General Assembly that they shall be so construed must clearly appear from a general view of the statute under consideration as where the manifest sense and intent of the statute require the one to be substituted for the other." Id. at 107-108 (internal citations omitted).
{¶ 76} Here, there does not seem to be any clear intent from the legislators that they intended their choice of the word "may" to actually mean "shall" or that the 25 percent penalty is anything but discretionary. In practice, Commerce views the 25 percent penalty as a bargaining tool, instead of a mandatory penalty it must enforce. When specifically asked if Commerce viewed the penalty as mandatory, Chief Robert Kennedy replied by referencing the fact that "the statute says `shall' on the 75 percent," but did not state that Commerce views the 25 percent penalty having the same mandatory nature. As discussed in Kennedy's testimony, Commerce negotiates with the violating party in order to settle the dispute before it reaches trial and takes into consideration any penalties that may be assessed, the reason a penalty will be assessed, and what amount will be required of the violating party.
{¶ 77} In settling the claims with the employees who did not choose to bring a suit, Commerce and Monarch agreed to a settlement that took into consideration any penalties that could have been assessed and those claims are now settled. The fact that Commerce has the power to negotiate with violating parties the amount of penalty that will be assessed, if any, demonstrates that the penalty is discretionary in nature.
{¶ 78} Additionally, the statute's language, and the way that the drafters worded the *23
various sections, demonstrates that the collection of the penalty is intended to be discretionary. Throughout R.C. Chapter
{¶ 79} While the legislators used "shall" on various occasions, they also used "may" to inform the employees, employers, or any enforcing agency that they have a choice of what actions to take. For example, R.C.
{¶ 80} The difference between "may" and "shall" is also demonstrated in R.C.
{¶ 81} Therefore, this vacillation between "shall" and "may" throughout R.C. Chapter
{¶ 82} To support their claim that the penalty is mandatory, Plaintiffs rely on Internatl. Bhd. of Electrical Workers, Local UnionNo. 8 v. Stollsteimer Elec., Inc.,
{¶ 83} The lower court found in favor of Stollsteimer, citing the "safe harbor" provision of R.C.
{¶ 84} The court then went on to conclude, "R.C.
{¶ 85} Although the court in Stollsteimer applied various methods of statutory interpretation in order to determine that any violating party, save the two exceptions in R.C.
{¶ 86} While this court agrees that R.C.
{¶ 87} A review of federal law and other states with similar prevailing wage statutes reveals that other courts look to the language of the statute and differentiate between penalties that "shall" and "may" be assessed. See Taylor v. Commtec/Pomeroy Computer Resources,Inc. (S.D.W.Va. 2006)
{¶ 88} Similar to these other examples of labor laws requiring prevailing wage rates, Ohio's legislators specifically chose to differentiate between the 25 percent penalty paid to the employees and the 75 percent penalty paid to Commerce. Mindful that strict construction is necessary given the penal nature of R.C.
{¶ 89} Based on a reading of the statute, the drafters had an obvious intent to punish intentional violations to a greater extent than they did unintentional violations. This is evidenced by R.C.
{¶ 90} The drafters define "intentional violation" as "a willful, knowing, or deliberate failure to comply with any provision of sections
{¶ 91} Based on a review of the record, we cannot say that requiring Monarch to pay a 25 percent penalty, for a violation of which they were unaware, was warranted. Neither the director of Commerce nor the trial court found Monarch's violation to be intentional, and there is nothing in the record to indicate that it was. Therefore, the trial court did not err by ordering that Monarch not be required to pay Plaintiffs a 25 percent penalty in addition to the back wages they were owed. *28
{¶ 93} As cited above, R.C.
{¶ 94} There is no need to address the trial court's decision to not impose the penalty on Monarch if Plaintiffs lacked standing to bring the claim on behalf of Commerce. Whether a party has standing to pursue a cause is a matter of law so that our standard of review is de novo.McFall v. Watson, Vinton App. No. 08CA666,
{¶ 95} "It is well established that before an Ohio court can consider the merits of a legal claim, the person seeking relief must establish standing to sue." State ex rel. Ohio Academy of Trial Lawyers v.Sheward,
{¶ 96} Specific to asserting the rights of third parties, a litigant must generally pursue its own claims, and lacks standing to assert the rights of another. City of N. Canton v. City of Canton,
{¶ 97} When considering the three-step test set forth in NorthCanton, even if we conceded the first two prongs, there is nothing in the record which indicates that Commerce was hindered from seeking relief on its own behalf.
{¶ 98} As previously referenced, the court heard testimony from Commerce that in its own view, the 75 percent penalty is mandatory but that it is primarily used as a bargaining tool to entice violating parties to settle claims without going to trial. When asked if the penalty is discretionary or mandatory, Kennedy stated "the statute says `shall' on the 75 percent. So, — but I can't think of one we actually have a case on here. We actually negotiate those prior to going to trial. So, we've only had one go to trial since I've been here."
{¶ 99} This testimony demonstrates that Commerce views its right to receive the statutory penalty as a tool with which it can seek enforcement of the prevailing wage statute. However, should Commerce decide to pursue its right to receive the penalty, it has sought imposition of the penalty on its own behalf. Nothing on the record indicates that Commerce was unable to pursue its own claim for the 75 percent penalty against Monarch or needed to rely on Plaintiffs to assert its rights in anyway. Further, Commerce could have initiated its own claim against Monarch for enforcement of the penalty, but instead chose to settle the *30 claims made by non-Plaintiff employees without going to trial.
{¶ 100} Commerce5 will have the right to pursue its claim to the 75 percent penalty for Monarch's underpayment to the seven Plaintiffs that did not assign their rights to Commerce, and instead remain in this appeal. It is otherwise improper for this court to consider Plaintiffs' claim that the trial court erred in not ordering Monarch to pay the penalty.
{¶ 101} Although Plaintiffs properly brought suit to move the court to award the 25 percent penalty on their own behalf, they do not have standing to challenge the decision to not award the 75 percent penalty to Commerce.
{¶ 102} Having found that the court did not err by not ordering Monarch to pay the 25 percent penalty and that Plaintiffs lack standing to pursue a claim that rightfully belongs to Commerce, Plaintiffs' third assignment of error is overruled.
{¶ 104} "THE TRIAL COURT ERRED WHEN IT REFUSED TO AWARD ATTORNEY FEES CONSISTENT WITH BITTNER."
{¶ 105} In their fourth assignment of error, Plaintiffs argue that the trial court erred in not ordering Monarch to pay Plaintiffs' attorney fees and court costs in their entirety. We disagree.
{¶ 106} According to R.C.
{¶ 107} First, the court is to establish what has commonly been referred to as a lodestar. The lodestar is determined by taking the "number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Id. at 145. Though the said calculation would result in a tangible figure, the "calculation provides an objectivebasis on which to make an initial estimate of the value of the lawyer's services." Id. (Emphasis added.) During this initial calculation, the court should exclude any hours which were unreasonably expended from inclusion in the lodestar. Gibney v. Toldeo Bd. Of Educ. (1991),
{¶ 108} Second, the court should then consider factors set forth in DR 2-106(B)6 which include: "the time and labor involved in maintaining the litigation; the novelty and difficulty of the questions involved; the professional skill required to perform the necessary legal services; the attorney's inability to accept other cases; the fee customarily charged; the amount involved and the results obtained; any necessary time limitations; the nature and length of the attorney/client relationship; the experience, reputation, and ability of the attorney; and whether the fee is fixed or contingent. All factors may not be applicable in all cases and the trial court has the discretion to determine which factors to apply, and in what manner that application will affect the initial calculation." Bittner at 145-146.
{¶ 109} The court also discussed the proper standard of review an appellate court should apply when reviewing the trial court's decision regarding attorney fees. Although *32 Plaintiffs assert that the review should be de novo because the case required the trial court to interpret the prevailing wage statute, 7Bittner is clear that an abuse of discretion standard is appropriate.
{¶ 110} "It is well settled that where a court is empowered to award attorney fees by statute, the amount of such fees is within the sound discretion of the trial court. Unless the amount of fees determined is so high or so low as to shock the conscience, an appellate court will not interfere. The trial judge who participated not only in the trial but also in many of the preliminary proceedings leading up to the trial had an infinitely better opportunity to determine the value of services rendered by lawyers who have tried a case before him than does an appellate court." Id.
{¶ 111} Plaintiffs submitted their application for attorney fees, complete with a breakdown of every unit of time expended on the case, as well as a computation based on the hourly rate of who performed each task. In total, Plaintiffs requested $91,054.42 for approximately 497 hours of work during the pendency of the case.
{¶ 112} After being served with the application for fees, Monarch made several arguments to the trial court and the court agreed with each of Monarch's assertions. First, the court referenced Bittner and recognized that it needed to perform the two-step determination of reasonable fees. In calculating the lodestar, the court took the Plaintiffs' suggested lodestar and subtracted the unreasonable fees charged for endeavors that were unnecessary or meritless to begin with. See State ex rel. OhioPatrolmen's Benevolent Assn. *33 v. Mentor,
{¶ 113} These charges related to unsuccessful motions for a restraining order, two motions for summary judgment, a motion to strike Monarch's trial exhibits, a motion for prejudgment interest, as well as an opposition to Miami's motion to be dismissed from the case. The court also subtracted fees Plaintiffs' counsel charged for litigating claims against defendants other than Monarch, 8 as well as hours billed for travel time. The court then subtracted hours billed for preparing witnesses who never appeared at the hearing and for preparation for closing arguments that were never given at the hearing.9 The court also noted that many hours were billed for trial attendance of attorneys who did not present arguments or otherwise participate in the trial. The other unreasonable hours subtracted from the lodestar included travel time to serve subpoenas for witnesses that did not even testify. While the court deemed these fees unnecessary and did not include them in the lodestar, it kept the reasonable fees in place for the work necessary to collect the amount of judgment as was ordered in the court's original decision.
{¶ 114} After all applicable subtractions, the court determined that the lodestar was $46,423.92. The second step of the Bittner process called for the court to analyze the factors set forth in DR 2-106(B). In addition to the factors set forth above, the court in Bittner spoke specifically to the "results obtained factor" by calling it an "important factor" and stating, "the results-obtained factor encompasses the degree of success enjoyed by the prevailing party."
{¶ 115} Here the Plaintiffs waged a very unsuccessful litigation given that no facts were *34
ever in dispute. At every phase of the suit, Plaintiffs were denied each motion they made and lost every contested issue at trial. Moreover, the amount finally awarded was the same amount Monarch agreed to pay before the trial began, and those employees who did not take part in the suit were paid through Commerce. Based on the lack of success, the court, in its discretion, ordered a 50 percent decrease in the lodestar so that Monarch, who had been forced to expend its own legal fees to defend itself against all of Plaintiffs' meritless actions, was ordered to pay $23,211.96 in attorney fees. See Wall v. Pizza Outlet, L.P., Stark App. No. 2002CA00400,
{¶ 116} While Plaintiffs argue that the trial court's decision essentially cut the fees twice for the same reason, the record indicates that the court followed the process set forth in Bittner. In its judgment entry awarding Plaintiffs back pay and attorney fees, the court stated that Plaintiffs were entitled to "reasonable attorney feesnecessary to collect the amount of judgment." (Emphasis added.) This first step of Bittner is objective and the trial court, by removing the fees specific to the meritless filings; including multiple motions for summary judgment, injunctive relief, and prejudgment interest, arrived at a lodestar comprised only of reasonable hours. The second step allows a court to consider various factors to further cut a lodestar comprised of reasonable hours. Here, the court considered the fact that Plaintiffs were awarded the same amount that Monarch agreed to pay before the trial began, and that employees who had not pursued litigation had long since been paid. Additionally, there were no issues of fact presented at trial. The overall success factor mentioned by the court would encompass these considerations, not just the hours expended on unsuccessful motions.
{¶ 117} We also note that case law requires the trial court to specifically delineate the reasons for deviating from the lodestar.Estate Planning Legal Services, P.C. v. Cox, Warren *35
App. Nos. CA2006-11-140, CA2006-12-141,
{¶ 118} While the trial court in this case laid out Monarch's arguments in sufficient detail, it simply stated "this Court agrees with Monarch's arguments" and then granted Plaintiffs' motion for fees in the amount of $23,211.96. While a remand to clarify the reasons for figuring the lodestar and later reduction of the lodestar based on DR 2-106 would have been warranted and helpful to this review, Plaintiffs failed to argue this point on appeal.
{¶ 119} Having found that the trial court did not abuse its discretion in awarding Plaintiffs' reasonable attorney fees and court costs pursuant to R.C.
{¶ 120} Judgment affirmed.
BRESSLER and POWELL, JJ., concur.