TIMOTHY KELLARD, Plaintiff-Appellee/Cross-Appellant, vs. CITY OF CINCINNATI, Defendant-Appellant/Cross-Appellee.
APPEAL NOS. C-200024 C-200029 TRIAL NO. A-1903829
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
April 23, 2021
[Cite as Kellard v. Cincinnati, 2021-Ohio-1420.]
BERGERON, Judge.
Civil Appeals From: Hamilton County Court of Common Pleas; Judgment Appealed From Is: Reversed in Part and Affirmed in Part as Modified
Phillips Law Firm, John H. Phillips and Kyle E. Hackett, and Robb S. Stokar for Plaintiff-Appellee/Cross-Appellant,
Andrew W. Garth, Interim City Solicitor, and Emily Smart Woerner, Deputy City Solicitor, for Defendant-Appellant/Cross-Appellee.
O P I N I O N.
{¶1} For two years after the Ohio General Assembly passed legislation invalidating its gun-related employment policies, the city of Cincinnati dragged its feet, failing to implement the necessary revisions. Frustrated by this delay, a disgruntled employee sued, which spurred the cogs of local government into motion. Within four days, and before the trial court ever convened a hearing in this case, the city‘s policies complied with the relevant statute. Yet the employee remained
{¶2} The trial court awarded a litany of remedies in this case, including a permanent injunction, declaratory judgment, costs, attorneys’ fees, and damages. The parties, in turn, present us with a variety of issues on appeal and cross-appeal. We conclude that, although the employee is entitled to some attorneys’ fees, the trial court exceeded the bounds of its subject matter jurisdiction by awarding declaratory and injunctive relief for a purely speculative future harm. We sustain the city‘s two assignments of error in part, overrule the employee‘s two cross-assignments of error, and modify the trial court‘s attorney fee award.
I.
{¶3} The origins of this case stretch back to 2017, when the Ohio General Assembly enacted the current form of
(A) A business entity, property owner, or public or private employer may not establish, maintain, or enforce a policy or rule that prohibits or has the effect of prohibiting a person who has been issued a valid concealed handgun license from transporting or storing a firearm or ammunition when both of the following conditions are met:
(1) Each firearm and all of the ammunition remains inside the person‘s privately owned motor vehicle while the person is physically present inside the motor vehicle, or each firearm and all of the ammunition is locked within the trunk, glove box, or other enclosed compartment or container within or on the person‘s privately owned motor vehicle;
(2) The vehicle is in a location where it is otherwise permitted to be.
Under former (and current)
{¶4} At the time of
{¶5} Fast forward two years to the present conflict. On August 15, 2019, Timothy Kellard—a city of Cincinnati employee—filed a complaint and motion for a temporary restraining order (“TRO“) and preliminary injunction against the city. As a valid CCW license-holder, Mr. Kellard complained that he desired “to lawfully store his handgun in his privately-owned vehicle in a city parking lot,” but had “never done so because he reasonably fear[ed] discipline, up to and including termination.” He alleged that the city was in active violation of
{¶7} By the time of the trial court‘s initial hearing on Mr. Kellard‘s requested TRO, one thing was clear: the offending portions of H.R. 5.1 and Admin. Reg. 49 were no longer on the books. Between August 15 (when Mr. Kellard filed suit) and August 19 (when the trial court issued its first order in this case), the city formally amended both policies to bring them in line with Ohio law. Although Mr. Kellard did not contest that the amended policies satisfied
{¶8} From the outset of the August 19 TRO hearing in this case, the city maintained that any justiciable controversy evaporated with its successful overhaul of H.R. 5.1 and Admin. Reg. 49. Unswayed by the challenge to its subject matter jurisdiction, the trial court granted Mr. Kellard‘s motion for a TRO. Following a September 11 hearing on injunctive relief, the trial court explicitly found Mr. Kellard‘s suit justiciable for both declaratory judgment and injunctive relief. It also held that the city changed its policies “in response to the lawsuit filed by Timothy Kellard,” which—in the trial court‘s view—rendered him a “prevailing party” entitled to attorneys’ fees under former
directly and indirectly, from changing any aspect of its Human Resources Policies and Procedures of its Administrative Regulations to prohibit or have the effect of prohibiting City employees who are valid CCW License holders from transporting and storing their firearms in their private vehicles so long as the employees follow the statutory requirements set forth in
R.C. 2923.1210 andR.C. 9.68 .
A few weeks later, the trial court convened an additional hearing on attorneys’ fees and damages. It awarded approximately $47,000 in attorneys’ fees to Mr. Kellard‘s counsel and $702.96 in damages to Mr. Kellard for “time and gas spent retrieving his firearm after work every day.” The city of Cincinnati now appeals the trial court‘s grant of injunctive and declaratory relief, as well as its award of fees and damages.1
II.
{¶9} In the first issue framed by its first assignment of error, the city challenges the trial court‘s exercise of jurisdiction to enter injunctive and declaratory relief. We review a trial court‘s determination on the issue of justiciability for abuse of discretion. Fulton RR. Co. v. City of Cincinnati, 1st Dist. Hamilton No. C-150373, 2016-Ohio-3520, ¶ 7, citing Arnott v. Arnott, 132 Ohio St.3d 401, 2012-Ohio-3208, 972 N.E.2d 586, ¶ 13. Reversal is “warranted only if the court‘s decision regarding justiciability was unreasonable, arbitrary, or unconscionable.” Id.
{¶10} “The Ohio Constitution mandates that the subject-matter jurisdiction of the common pleas courts is limited to ‘justiciable matters.‘” Waldman v. Pitcher, 2016-Ohio-5909, 70 N.E.3d 1025, ¶ 20 (1st Dist.), quoting the
{¶11} Two Ohio appellate courts have squarely addressed the issue before us of justiciability and former
{¶12} Similarly, in Ohioans for Concealed Carry, Inc. v. Oberlin, the Ninth District addressed a 2017 challenge to a city ordinance prohibiting possession of firearms in public parks. Ohioans for Concealed Carry, Inc. v. Oberlin, 2017-Ohio-36, 72 N.E.3d 676 (9th Dist.). Like Mr. Kellard, the Oberlin plaintiff sought a declaratory judgment, injunctive relief, and attorneys’ fees. Id. at ¶ 3. Before the trial court entered judgment—but after the city filed its answer to the complaint—the Oberlin city council repealed the offending
{¶13} Here, by the time that the trial court reached its August 19, 2019 hearing on Mr. Kellard‘s motion for a temporary restraining order, all parties agree that the city‘s policies complied with
{¶14} But the trial court‘s conclusion on these grounds contravenes the caselaw requiring a concrete controversy. As in Oberlin, Mr. Kellard‘s “assertion that [the city] might at some time in the future enact or reenact ordinances that violate
{¶15} Accordingly, we hold that the trial court abused its discretion when it determined that a justiciable controversy existed as to the lawfulness of the city‘s former policies. We therefore sustain the city‘s first assignment of error in part, and reverse the trial court‘s grant of a permanent injunction and its declaratory judgment that the city‘s former policies violated former
III.
{¶16} In another issue raised by its first assignment of error, the city challenges the trial court‘s determination that Mr. Kellard constituted a “prevailing party” entitled to attorneys’ fees under former
A.
{¶17} First, the city insists that if we reverse the trial court‘s grant of declaratory
{¶18} The previous version of
(A) The individual right to keep and bear arms, being a fundamental individual right that predates the United States Constitution and Ohio Constitution, and being a constitutionally protected right in every part of Ohio, the general assembly finds the need to provide uniform laws throughout the state regulating the ownership, possession, purchase, other acquisition, transport, storage, carrying, sale, or other transfer of firearms, their components, and their ammunition. Except as specifically provided by the United States Constitution, Ohio Constitution, state law, or federal law, a person, without further license, permission, restriction, delay, or process, may own, possess, purchase, sell, transfer, transport, store, or keep any firearm, part of a firearm, its components, and its ammunition.
(B) In addition to any other relief provided, the court shall award costs and reasonable attorney fees to any person, group, or entity that prevails in a challenge to an ordinance, rule, or regulation as being in conflict with this section.
Under former
{¶19} We find the Oberlin court‘s reasoning on the independent justiciability of a former
{¶20} In conclusion, although we hold that the trial court lacked subject matter jurisdiction over Mr. Kellard‘s claim for injunctive and declaratory relief on the propriety of the city‘s former policies after the city revised the policies, we find the trial court enjoyed subject matter jurisdiction to adjudicate Mr. Kellard‘s status as one who “prevails in a [
B.
{¶21} The trial court held that the city changed its policies “in response to the lawsuit filed by Timothy Kellard,” rendering Mr. Kellard a “prevailing party” entitled to attorneys’ fees. We need not defer to this finding on appeal, since “the determination of a plaintiff as the prevailing party is subject to a de novo standard.” Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720, 892 N.E.2d 454, ¶ 23 (8th Dist.); see Simbo Properties, Inc. v. M8 Realty, LLC, 2019-Ohio-4361, 149 N.E.3d 941, ¶ 36 (8th Dist.) (“Although the award of attorney fees is subject to review under an abuse of discretion standard, the determination of a plaintiff as the ‘prevailing party’ is subject to review under a de novo standard.“). But before we debate issues of causation, we must first address a novel issue in the First District: how to properly define a party who “prevails in a challenge” under former
{¶22} In drafting former
{¶23} Once again, we turn to Oberlin for guidance. There, the Ninth District held that a party prevails in a former
{¶24} We are persuaded that Oberlin‘s causal approach to the question of whether a party “prevails in a challenge” under former
{¶25} We pause to note that this reading of former
{¶26} Here, the city argues that its evidence of progress toward revision of H.R. 5.1 and Admin. Reg. 49 prior to Mr. Kellard‘s lawsuit forecloses a finding of but-for causation under former
{¶27} But the city‘s inching towards compliance with Ohio law is not the same as actual compliance with Ohio law—particularly when that progress took place behind closed doors. The city never notified its employees of its intent not to enforce H.R. 5.1 and Admin. Reg. 49. Nor did it offer an explanation for the two-year delay between passage of
{¶28} In conclusion, we find that Mr. Kellard satisfies the standard for a party who “prevails in a challenge” under former
IV.
{¶29} Having determined that Mr. Kellard “prevail[ed] in a challenge” under former
A.
{¶30} In his first assignment of error on cross-appeal, Mr. Kellard contends that the trial court abused its discretion by awarding less than his requested amount of attorneys’ fees, specifically targeting the court‘s downward adjustment from the hourly rates requested by counsel.
{¶31} The Ohio Supreme Court embraces a “lodestar” approach to attorney fee awards, under which “the starting point for determining attorney fees is * * * ’ “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” ’ ” Phoenix Lighting Group, LLC v. Genlyte Thomas Group, LLC, 160 Ohio St.3d 32, 2020-Ohio-1056, 153 N.E.3d 30, ¶ 10, quoting Bittner v. Tri-County Toyota, Inc., 58 Ohio St.3d 143, 145, 569 N.E.2d 464 (1991), quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). A reasonable hourly rate reflects the “prevailing market rate in the relevant community, given the complexity of the issues and the experiences of the attorney.” (Internal citation omitted.) Id. at ¶ 11, quoting State ex rel. Harris v. Rubino, 156 Ohio St.3d 296, 2018-Ohio-5109, 126 N.E.3d 1068, ¶ 4. A trial court may benchmark a reasonable rate “against rates recently approved for equally experienced attorneys in comparably complex cases.” Rubino at ¶ 4.
{¶32} Counsel for Mr. Kellard requested an hourly rate based on the Laffey Matrix (which benchmarks federal court rates in Washington, D.C.) and a previous Sixth Circuit case where counsel received fees. However, the trial court held that the requested attorneys’ fees exceeded the threshold of reasonableness, reducing the hourly rate based on “the per hour fee of a similar gun rights case that was handled by an attorney with expertise in the gun rights field.” Mr. Kellard complains that the trial court‘s analysis was too “thin” to support a downward departure from the requested rates, both because the trial court “did not indicate as to which case it was referring” and because—in Mr. Kellard‘s view—this “was not a ‘gun rights case.‘”
{¶33} Any confusion on Mr. Kellard‘s part seems a bit exaggerated given that the case referenced by the trial court was Buckeye Firearms Foundation v. City of Cincinnati, Hamilton C.P. No. A-1803098, 2019 WL 11731082 (February 11, 2019), a high-profile case which the trial court decided just two months before its hearing on fees for Mr. Kellard‘s claim. Indeed, the city argued below that Buckeye Firearms presented an appropriate (and arguably generous) benchmark for fees, because it was a local
{¶34} Moreover, Mr. Kellard‘s insistence on appeal that this is not a “gun rights case” strains credulity in light of comments made by counsel below. During the hearing on attorney fees, Mr. Kellard‘s counsel invited the court to enhance the fees given the controversial nature of this matter as a “gun rights case,” one that risked counsel‘s firms being labeled as “gun extremist[s]” and losing clients. It is hardly fair for Mr. Kellard‘s counsel to tell the trial court that heightened fees are justified in this “gun rights case,” then turn around on appeal and fault the trial court for treating the case as such.
{¶35} Under Phoenix, the trial court acted within its discretion in benchmarking a “reasonable attorney fee” in this case against another “fee customarily charged in the locality for similar legal services.” Phoenix, 160 Ohio St.3d 32, 2020-Ohio-1056, 153 N.E.3d 30, at ¶ 12, quoting Prof.Cond.R. 1.5(a). We see no reason to disallow the trial court‘s use of a two-month-old case, heard by the same court, involving nearly identical claims and more experienced counsel, as a benchmark. Therefore, we overrule Mr. Kellard‘s first cross-assignment of error and uphold the trial court‘s determination that the reasonable hourly wage in this case was $270 per hour for any work not involving a court visit and $335 per hour for work involving a court appearance.
B.
{¶36} Our assessment of attorneys’ fees in this case does not end with our decision to overrule Mr. Kellard‘s first cross-assignment of error, because the city raises its own challenge to the propriety of the trial court‘s award. Below, the city argued that the number of hours Mr. Kellard‘s counsel expended on this case was unreasonable, in part because he “received the relief he requested before any orders were issued.” It recycles this issue on appeal by contesting the trial court‘s fee award and asserting that Mr. Kellard did not properly “prevail” in his claims for injunctive and declaratory relief. Accordingly, we must review both components of the trial court‘s attorneys’ fees award: the “reasonable hourly rate” unsuccessfully contested by Mr. Kellard, and the “hours reasonably expended” piece that completes the lodestar calculation. See Phoenix Lighting Group at ¶ 10.
{¶37} “Ohio has long adhered to the ‘American rule’ with respect to recovery of attorney fees: a prevailing party in a civil action may not recover attorney fees as a part of the costs of litigation.” Wilborn v. Bank One Corp., 121 Ohio St.3d 546, 2009-Ohio-306, 906 N.E.2d 396, ¶ 7, citing Nottingdale Homeowners’ Assn., Inc. v. Darby, 33 Ohio St.3d 32, 33-34, 514 N.E.2d 702 (1987), and State ex rel. Beebe v. Cowley, 116 Ohio St. 377, 382, 156 N.E. 214 (1927). An exception to the rule exists for statutes that “specifically provid[e] for the losing party to pay the prevailing party‘s attorney fees.” Id. Former
{¶38} But
{¶39} We have already determined that once the city repealed its offending policies, the trial court lost subject matter jurisdiction to award injunctive or declaratory relief for Mr. Kellard‘s underlying claim. At that point, Mr. Kellard “prevail[ed]” in his former
{¶40} Accordingly, we hold that the trial court abused its discretion when it calculated attorneys’ fees based on an unreasonably high number of hours expended in pursuit of this particular former
{¶41} However, hours billed between August 20, 2019, and October 15, 2019—when the trial court entered its order declaring Mr. Kellard a “prevailing party” and setting the date for an attorney fee hearing—were unreasonable hours incurred in pursuit of a needless and non-justiciable
{¶42} We note that the city opposed Mr. Kellard‘s motion for attorney fees, which was filed in response to the trial court‘s October 15 order. Because the proper award of attorney fees presented a justiciable part of Mr. Kellard‘s
{¶43} In sum, we sustain the city‘s second assignment of error in part and modify the trial court‘s grant of attorneys’ fees. See Bergman, 12th Dist. Butler No. CA2009-12-080, 2010-Ohio-3259, at ¶ 82 (modifying the trial court‘s fee award on appeal based on counsel‘s “itemization of fees“). Mr. Phillips properly billed 20.1 total hours in this case: 18.4 before and on August 19, and 1.7 from October 16 and onward. 4.4 of these hours were spent on court appearances; the rest on other matters. Mr. Hackett properly billed 44.5 total hours in this case, all before and on August 19. Just 0.7 of these hours were spent on court appearances; the rest on other matters. Mr. Stoker properly billed 37.8 total hours in this case: 33.8 before and on August 19, and 4 from October 16 and onward. 2 of these hours were spent on court appearances; the rest on other matters. For the reasons explained above, we find that the trial court‘s calculation of the reasonable hourly rate at $335 for court appearances and $270 for out-of-court matters was proper, and we leave that portion of the attorney fee award undisturbed. Mr. Phillips is entitled to $5,713 total fees for this case; Mr. Hackett is entitled to $12,060.50; Mr. Stoker is entitled to $10,336.2
V.
{¶44} Finally, in his second cross-assignment of error, Mr. Kellard argues that the trial court abused its discretion by declining to award him $5,000 in damages “commensurate to a class representative fee.”
{¶45} Mr. Kellard cites no caselaw for his proposition that a class representative fee is appropriate in an
{¶46} As the trial court recognized below, there is simply no legal basis for Mr. Kellard‘s requested class representative fee—in a case that is not even brought pursuant to
VI.
{¶47} Having determined that the trial court exceeded its subject matter jurisdiction by granting injunctive and declaratory relief for a non-justiciable claim, we sustain the city‘s two assignments of error in part and overrule them in part, reverse the trial court‘s grant of a permanent injunction and declaratory judgment that the City‘s former policies were unlawful, and modify the trial court‘s fee award as indicated above. Mr. Phillips is entitled to $5,713 total fees for this case; Mr. Hackett is entitled to $12,060.50; Mr. Stoker is entitled to $10,336. Finally, we overrule Mr. Kellard‘s two cross-assignments of error.
Judgment accordingly.
MYERS, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.