TCF Natl. Bank v. DanielsTCF Natl. Bank v. Daniels
For Plaintiff-Appellant:
MARK A. SCHWARTZ
DAVID T. BRADY
KIRK W. LIEDERBACH
PATRICK J. RYLL
JOHN S. PUCIN
Schwartz & Associates, LLP
27 N. Wacker Drive, #503
Chicago, IL 60606
For Defendants-Appellees:
No Appearance
O P I N I O N
{¶1} This case comes for review on the trial court‘s ruling upon the unopposed Motion for Attorney Fees for Appellant TCF National Bank, FBO Aeon Financial, LLC (hereinafter, “Appellant“).
{¶2} Appellant purchased a tax lien certificate from the Stark County Treasurer on a property located in Stark County, Ohio. Subsequently, Appellant filed a Complaint for Foreclosure, pursuant to
{¶3} In its Order and Decree for Foreclosure filed on April 20, 2009, the trial court awarded $1,237.07 in principal on Certificate No. 0208016-07 plus interest at 12.75% per year from 10/27/2007 through 10/27/2008, plus interest at 18% from 10/28/2008, and costs; $389.59 in additional principal plus interest at 18% per year from 11/03/2008, and costs; fees and costs incurred in this proceeding including the sum of $395.00 for title costs; and $172.26 for court costs; and attorney fees of six hundred dollars ($600.00).
{¶4} Appellant now appeals from the judgment awarding attorney fees, arguing the following assignment of error:
{¶5} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN REDUCING AEON‘S STATUTORILY RECOVERABLE ATTORNEY FEES, BELOW THE $2,500 IT INCURRED AND REQUESTED, BECAUSE THE COURT FAILED TO ACCORD AEON THE BENEFIT OF THE STATUTORY PRESUMPTION OF REASONABLENESS
I.
{¶6} Appellant has appealed only the trial court’s determination of the amount of attorney fees. Specifically, Appellant argues that the statutory scheme presented by
{¶7} For the reasons that follow, we disagree; however, we reverse and remand the case because it is not possible to determine what factors the trial court considered or the weight, if any, it placed on those factors. When making a fee award pursuant to
{¶8} At the heart of this litigation is the question of whether Ohio law gives a trial court discretion to determine the reasonableness of attorney fees in its judgment of
{¶9} In Alyeska Pipeline Service Co. v. Wilderness Society(1975), 421 U.S. 240, 95 S.Ct. 1612, the Court reaffirmed the “American Rule” that each party in a lawsuit ordinarily shall bear its own attorney fees unless there is express statutory authorization to the contrary. Of relevance to the case at bar, the Ohio Legislature has provided for the recovery of attorney fees for prosecuting tax certificate foreclosures.
{¶10} “(A) In its judgment of foreclosure rendered in actions filed pursuant to section 5721.37 of the Revised Code, the court or board of revision shall enter a finding that includes all of the following with respect to the certificate parcel:
{¶11} ” * * *
{¶12} “(5) Fees and costs incurred in the foreclosure proceeding instituted against the parcel, including, without limitation, the fees and costs of the prosecuting attorney represented by the fee paid under division (B)(3) of section 5721.37 of the Revised Code, plus interest as provided in division (D)(2)(d) of this section, or the fees and costs of the private attorney representing the certificate holder, and charges paid or incurred in procuring title searches and abstracting services relative to the subject premises.” (Emphasis added.)
{¶13}
{¶14} “Private attorney‘s fees payable with respect to an action under sections
{¶15} “(A) The fees must be reasonable.
{¶16} “(B) Fees exceeding two thousand five hundred dollars shall be paid only if authorized by a court order.
{¶17} “(C) The terms of a sale negotiated under section
5721.33 of the Revised Code may include the amount to be paid in private attorney‘s fees, subject to division (B) of this section.”
{¶18} In the case at bar, Appellant argues, in essence, because fee applications in the amount of $2,500 or less do not require a court order, thus, in both practice and effect, the Ohio Legislature has determined that attorney fees of up to $2,500 are presumptively reasonable for a tax certificate foreclosure matter; and, absent challenge by an opposing party, are entitled to deference by the court. Curiously, this seems to contradict the requirement in
{¶19} We find nothing within the statutes that set a presumptive amount for recoverable attorney fees, nor anything that obviates the trial court’s discretion in making the award. Surely, without an order from the trial court, attorney fees could not be assessed or recovered. The Supreme Court of Ohio has held:
{¶20} “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.” Bittner v. Tri-County Toyota, Inc. (1991), 58 Ohio St.3d 143, 146, 569 N.E.2d 464, quoting Brooks v. Hurst Buick-Pontiac-Olds-GMC, Inc. (1985), 23 Ohio App.3d 85, 91, 491 N.E.2d 345. “There are over 100 separate statutes providing for the award of attorney‘s fees; and although these provisions cover a wide variety of contexts and causes of action, the benchmark for the awards under nearly all of these statutes is that the attorney‘s fee must be ‘reasonable’.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air (1986), 478 U.S. 546, 562, 106 S.Ct. 3088, 3096.
{¶21} “A request for attorney‘s fees should not result in a second major litigation. Ideally, of course, litigants will settle the amount of a fee. Where settlement is not possible, the fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates. The applicant should exercise ‘billing judgment’ with respect to hours worked, see supra, at 1939-1940, and should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims”. Hensley v. Eckerhart (1983) 461 U.S. 424, 437, 103 S.Ct. 1933, 1941. [Footnotes omitted].
{¶22} “The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer‘s services.” Hensley v. Eckerhart (1983), 461 U.S. 424, 433, 103 S.Ct. 1933, 1939. See, also Bittner v. Tri-County Toyota, Inc., supra, 58 Ohio St.3d at 145; 569 N.E.2d at 466.
{¶23} To establish the number of hours reasonably expended, the party requesting the award of attorney fees “should submit evidence supporting the hours worked ....” Hensley, 461 U.S. at 433, 103 S.Ct. at 1939. The number of hours should
{¶24} The party requesting an award of attorney fees bears the burden “to produce satisfactory evidence--in addition to the attorney‘s own affidavit--that the requested rate [is] in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum v. Stenson, supra 465 U.S. at 895 n. 11, 104 S.Ct. at 1547 n. 11.
{¶25} Once the trial court calculates the “Lodestar figure,” it could modify the calculation by applying the factors listed in DR 2-106(B)1, Landmark Disposal Ltd. v. Byler Flea Market, Stark App. No.2005CA00294, 2006-Ohio-3935, paragraph 14, citing Bittner v. Tri-County Toyota, Inc. (1991), 58 Ohio St.3d 143, 145, 569 N.E.2d 464. [Hereinafter “Landmark Disposal I”].
{¶26} To enable an appellate court to conduct a meaningful review, “the trial court must state the basis for the fee determination.” Bittner, 58 Ohio St.3d at 146. In Bittner, the court held:
{¶27} ” * * * the trial court should first calculate the number of hours reasonably expended on the case times an hourly fee, and then may modify that calculation by application of the factors listed in DR 2-106(B). These factors are: the time and labor
{¶28} In this case, as in Bittner, the trial court did not award Appellants the full amount of attorney fees requested and did not state what factors it took into consideration. Without such a statement from the trial court, it is not possible for an appellate court to conduct a meaningful review. Accordingly, we find that the matter must be remanded to the trial court.
{¶29} The trial court must specify which factors contained in
By: Delaney, J.
Gwin, P.J. and
Hoffman, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Stark County Court of Common Pleas is reversed and this case is remanded for proceedings in accordance with our opinion and the law. Costs waived.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN