United Assn. of Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry v. Jack's Heating, Air Conditioning & Plumbing, Inc.United Assn. of Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry v. Jack's Heating, Air Conditioning & Plumbing, Inc.
O P I N I O N
APPEARANCES:
Joseph M. D‘Angelo for Appellant
William E. Clark for Appellee
{¶1} Plaintiff-Appellant, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry, Local Union Number 776 (“Local 776“), appeals the judgment of the Hardin County Court of Common Pleas denying its request for attorney fees and court costs. On appeal, Local 776 argues that its introduction of an itemized billing statement, two Ohio State Bar Association (“OSBA“) publications regarding attorney billing practices, and the testimony of its counsel should have led the trial court to grant its request for attorney fees and court costs. For the reasons that follow, we affirm in part and reverse in part the trial court‘s judgment.
{¶2} In May 2008, Local 776 filed a complaint against Defendant-Appellee, Jack‘s Heating, Air Conditioning and Plumbing, Inc. (“Jack‘s“), alleging that Jack‘s violated Ohio‘s prevailing wage law. On July 9, 2010, the trial court granted Local 776‘s summary judgment on its claims that Jack‘s violated the prevailing wage law. In its judgment entry, the trial court stated that Local 776 was entitled to attorney fees, but it failed to actuаlly order that Jack‘s pay such attorney fees.
{¶3} Both parties appealed to this court. On January 18, 2011, we affirmed the trial court‘s grant of summary judgment in Local 776‘s favor. But, we also reversed the trial court on the basis that it failed to order that Jack‘s pay Local
{¶4} On remand, the trial court conducted a hearing on May 3, 2011 to determine the issue of attorney fees. Local 776‘s attorney throughout the course of these proceedings was Joseph D‘Angelo. During the presentation of evidence, D‘Angelo introduced the following exhibits: (1) an itemized bill from his law firm for its services on behalf of Local 776 in this matter (the “Bill“); (2) an OSBA publication entitled “The Economics of Law Practice in Ohio in 2010” (the “2010 Survey“); and (3) another OSBA publication called “The Economics of Law Practice in Ohio in 2007” (the “2007 Survey“).
{¶5} The Bill details the work that D‘Angelo and other members of his law firm purportedly performed during the course of this action from May 21, 2008 until November 30, 2010. Each time entry describes the task performed and includes the initials of the firm employee who performed it. However, the Bill does not include a key that matches the initials with the name and position of the
{¶6} The OSBA publications provide the results of online surveys distributed to Ohiо law firms regarding their billing practices. Both publications provide the median and average billing rate for all Ohio law firms that responded. They also break down the median and average billing rate based on the size, location, and practice area of the responding law firms. Further, the publications list the median and average billing rate for partners and associates based on firm size.
{¶7} The 2010 Survey covers the billing practices of Ohio law firms in 2009 while the 2007 Survey covers 2006 trends. A review of the 2010 Survey reveals the following relevant information regarding billing practices in 2009:
Median Hourly Rate (all firms): $200;
Median Hourly Rate (firms with 3-6 attorneys): $198;
Median Hourly Rate (firms in Northwest region): $175;
Median Hourly Rate (firms in Toledo): $185;
Median Hourly Rate (general practice firms): $160;
Median Hourly Rate (partners in firms with 2-7 partners): $200;
Median Hourly Rate (associates in firms with 2-7 partners): $175.
(Exhibit 2, p. 23-24).
Meanwhile, the 2007 survey provides the 2006 median hourly rate for each of these categories. When introducing the publications, D‘Angelo offered no testimony indicating which median hourly rate was appropriate to consider when assessing the reasonableness of his request for attorney fees.
{¶8} After introducing these exhibits into evidence, D‘Angelo rested on behalf of Local 776. Jack‘s then called D‘Angelo as though on cross-examination. At that time, the trial court placed D‘Angelo under oath. His testimony revealed that his office is located in Toledo and that he is a partner in a law firm with five attorneys. When asked the nature of his practice, D‘Angelo indicated that he does work on behalf of labor unions and that his firm is “full service.” Id. at p. 9.
{¶9} In regard to the Bill, D‘Angelo testified that he reviewed it and “eliminated any time entries that appeared in my opinion to be duplicative of other entries that werе already there.” Id. at p. 10. He also stated that a variety of associates and law clerks performed work on the case to keep fees to a minimum. Further, D‘Angelo conceded that several of the time entries in the Bill were for work on pleadings that were never filed with the trial court. Finally, he admitted that Local 776 was requesting $65,000 in attorney fees for his firm‘s efforts in obtaining a judgment of approximately $5,000 against Jack‘s.
{¶11} On December 23, 2011, the magistrate denied Local 776‘s request for attorney fees. The basis for the denial was that Local 776 “failed to present sufficient evidence to support its request * * *.” (Docket No. 51, p. 4). While the magistrate noted that the Bill was “detailed and comprehensive,” Local 776 failed to present “disinterested third-party evidence that the number of billable hours was either reasonable or necessary to the action.” (Id.). Further, the magistrate found little value in the 2010 Survey because although it “indicated the range of fees charged by lawyers in the Toledo area,” Local 776 did not provide “evidence as to the skill, reputation, experience or ability of the lawyer(s) involved, or the complexity of the issues * * *.” (Id.).
{¶12} Local 776 objected to the magistrate‘s decision. After еach party filed its respective briefs, the trial court affirmed the magistrate‘s decision on the basis that Local 776 “has failed to meet its evidentiary burden in supporting its request for attorney‘s fees.” (Docket No. 59).
Assignment of Error No. I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT REFUSED TO AWARD COSTS AND ATTORNEYS’ FEES TO THE PLAINTIFF/APPELLANT.
{¶14} In its sole assignment of error, Local 776 contends that since it presented sufficient evidence for the trial court to award attorney fees and court costs, the trial court erred in failing to grant such an award. We agrеe in part and disagree in part.
Standard of Review
{¶15} We review a trial court‘s attorney fees award for abuse of discretion. Bittner v. Tri-Cty. Toyota, Inc., 58 Ohio St.3d 143, 146 (1991). A trial court will be found to have abused its discretion when its decision is contrary to law, unreasonable, not supported by the evidence, or grossly unsound. See State v. Boles, 2d Dist. No. 23037, 2010-Ohio-278, ¶17-18, citing Black‘s Law Dictionary 11 (8th Ed.2004). Under the abuse of discretion standard, a reviewing court may not simply substitute its judgment for that of the trial court. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). In applying abuse of discretion review to attorney fee awards, we only reverse a trial court‘s order upon a showing that
{¶16} Local 776 concedes that the abuse of discretion standard generally applies to appellate review of attorney fee awards. However, it also argues that because the trial court based its order on Local 776‘s failure to meet its evidentiary burden, this appeal presents a question of law that should be reviewed de novo. This argument fails to account for the numerous cases in which the court of appeals has apрlied abuse of discretion review where the trial court entirely denied an award of attorney fees due to the failure of the requesting party to establish the reasonableness of its request. E.g., Unick v. Pro-Cision, Inc., 7th Dist. No. 09MA171, 2011-Ohio-1342, ¶ 26. Based on this case law, we reject Local 776‘s contention that de novo review applies to this matter.
The American Rule and R.C. 4115.16(D)
{¶17} Ohio follows the American Rule, which requires that each party bear its own attorney fees and costs during the course of litigation. Sorin v. Bd. of Edn. of Warrensville Hts. School Dist., 46 Ohio St.2d 177, 179 (1976). However, there are a number of exceptions to this general rule. Specifically, “attorney fees may be awarded when a statute * * * provides for the losing party to pay the prevailing party‘s attorney fees.” Wilborn v. Bank One Corp., 121 Ohio St.3d 546, 2009-Ohio-306, ¶ 7.
Bittner Framework for the Reasonableness of Attorney Fee Awards
{¶19} When an exception to the American Rule allows for an award of attorney fees, trial courts are generally instructed to follow the two-part test enunciated in Bittner. Although Bittner was handed down in the context of the Ohio Consumer Sales Practices Act, courts have applied it tо fee awards in a variety of other contexts, e.g., Jefferson v. Creveling, 9th Dist. No. 24206, 2009-Ohio-1214, ¶ 33 (applying Bittner to request for attorney fees under
{¶20} Under Bittner, “[t]he trial court should first calculate the number of hours reasonably expended on the cases [and multiply it] by an hourly fee * * *.” Bittner, 58 Ohio St.3d at 145. The product of this calculation is called the “lodestar” figure. Unick, 2011-Ohio-1342, at ¶ 27. To satisfactorily prove the lodestar, the requesting party must show that the hours billed are “necessary to the action and [do] not include ‘hours that are excessive [or] redundant.‘” Id. at ¶ 28, quoting Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1903 (1983); Jacobs v. Holston, 70 Ohio App.2d 55, 60 (6th Dist. 1980) (stating that to establish reasonableness of attorney fee request, the lawyer must establish the reasonableness of the hourly rate and the amount of time expended on the case). The requesting party must also establish the reasonableness of the hourly rate. In doing so, the requesting party must “‘produce satisfactory evidence – in addition to the attorney‘s own affidavits – that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Unick at ¶ 27, quoting Blum v. Stenson, 465 U.S. 886, 895-96, 104 S.Ct. 1541 (1984); see also Southeast Land Dev., Ltd. v. Primrose Mgt. L.L.C., 193 Ohio App.3d 465, 2011-Ohio-2341, ¶ 15 (3d Dist.) (outlining same requirements in determining the lodestar figure).
{¶21} Once the lodestar is determined, the trial court should consider modifying it based on the factors listed in the Ohio Rules of Professional Conduct regarding the reasonableness of the fee. Bittner, 58 Ohio St.3d at 145.2 Rule 1.5(a) lists the following factors as relevant to determining the reasonableness of an attorney fee award:
(1) [T]he time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) [T]he likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) [T]he fee customarily charged in the locality for similar legal services;
(4) [T]he amount involved and the results obtained;
(5) [T]he time limitations imposed by the client and by the circumstances;
(6) [T]he nature and length of the professional relationship with the client;
(7) [T]he experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) [W]hether the fee is fixed of contingent.
Burden of Proof under Bittner
{¶22} We can find no case that specifically requires the prevailing party in a prevailing wage enforcement action to prove the reasonableness of its attorney fee request. But, under the Bittner framework, courts have generally required the requesting party to prove the reasonableness of its request. E.g., Southeast Land Dev., Ltd., 193 Ohio App.3d 465, 2011-Ohio-2341, at ¶ 15, quoting Unick, 2011-Ohio-1342, at ¶ 27. Further, other courts that have addressed matters implicating a statutorily-mandated attorney fee award have placed the burden of proof regarding the attorney fee request upon the requesting party. E.g., TCF Natl. Bank v. Smith, 5th Dist. No. 2009 CA 00101, 2010-Ohio-1336, ¶ 21-22 (requiring prevailing party to prove reasonableness of its fee request when seeking attorney fees under
Local 776‘s Evidence for its Attorney Fee Request
{¶23} Local 776 presented three exhibits and offered D‘Angelo‘s testimony on cross-examination by Jack‘s cоunsel in its attempt to carry its burden under Bittner. Since this evidence is insufficient to establish that the number of hours billed by D‘Angelo was reasonable, we find that Local 776 has not carried its burden to establish the reasonableness of its fee request.
{¶24} Courts have recognized that merely submitting an attorney‘s itemized bill is insufficient to establish the reasonableness of the amount of work billed. Whitaker v. Kear, 123 Ohio App.3d 413, 424 (4th Dist. 1997); Climaco, Seminatore, Delligatti & Hollenbaugh v. Carter, 100 Ohio App.3d 313, 324 (10th Dist. 1995). Often, parties offer expert testimony to establish that the hours charged was reasonable in light of the litigation‘s particular facts. E.g., Hawkins v. Miller, 11th Dist. No. 2011-L-036, 2011-Ohio-6005, ¶ 28 (affirming award of attorney fees where expert testified to the amount of time and hourly rate charged); Whitaker at 424-25 (affirming trial court‘s finding that evidence was sufficient to prove reasonableness of fee request where expert testified to the reasonableness of the time spent on the litigation). Meanwhile, in some matters, the requesting party refrains from offering expert testimony but instead offers
{¶25} Here, Local 776 offered the Bill and D‘Angelo‘s testimony to show that the amount of hours charged was reasonable. The Bill itself cannot show that the amount of hours chargеd was reasonable since there is no indication in the Bill itself that the work performed was necessary. As a result, D‘Angelo‘s testimony could serve as the only possible basis for establishing the necessity and reasonableness of the hours charged in the Bill.
{¶26} In considering D‘Angelo‘s testimony, we preliminarily note that D‘Angelo made his statement that the bill was reasonable for the amount of time he spent on behalf of Local 776 before the trial court placed him under oath. It is well-settled that a trial court may only receive testimony after а witness is placed
{¶27} D‘Angelo did testify that he removed duplicative entries from the Bill before offering it into evidence. But this self-serving testimony does not, by itself, prove that the amount of hours billed was reasonable and necessary for the prosecution of the action. It merely proves that the time removed before the Bill‘s introduction was unreasonable. Further, a review of D‘Angelo‘s testimony reveals that he offered no statements describing the complexity of the issues involved in this matter, the ultimate goals of Local 776, and the adversarial nature of the proceedings.3 Compare Reineke, 2011-Ohio-6201, at ¶ 26 (affirming award of attorney fees in collection suit where the rеquesting attorney testified “at length” regarding the complexity of the case, the aims of his client, and the adversarial nature of the action).
{¶28} Absent expert testimony regarding the reasonableness of Local 776‘s fee request or in-depth testimony from either D‘Angelo or another witness
{¶29} We also note that Local 776‘s evidence regarding the hourly rate charged by D‘Angelo and his law firm has three significant deficiencies. First, when offering the OSBA publications, D‘Angelo did not indicate which statistics in the publications were relevant to the reasonableness of the hourly rates. As a result, the trial court was left with no guidance from Local 776 as to how the statistics in the voluminous OSBA publications applied to the hourly rates charged by D‘Angelo. Second, D‘Angelo‘s testimony obfuscated the proper statistic to consider. For instance, he testified that his law firm was “full-service” but also that he handled many union matters. Based on this conflicting testimony, it is questionable whether the trial court should have compared the hourly rates in the Bill to the typical hourly rates charged by general practice firms or the typical
{¶30} Local 776 cites to Merillat in support of its contention that the Bill and the OSBA surveys are sufficient to carry its burden under Bittner. However, a review of Merillat reveals that it is inapposite to this matter. There, the requesting party appealed the trial court‘s award of attorney fees because it argued that the award was too low. The court of appeals reversed the award for the following reasons: (1) the trial court failed to account for fees incurred by law clerks/paralegals; (2) the trial court arbitrarily reduced the hourly rate and total fee award due to the billing practices of the non-requesting pаrty‘s attorney; and (3) the trial court failed to award fees incurred during the preparation of the fee request. Merillat, 2011-Ohio-6201, at ¶ 27-38. The court of appeals gave no
{¶31} Local 776 also argues that since trial court judges are lawyers, they are able to assess the reasonableness of fee requests without any corroborating evidence, besides bills and OSBA surveys, directing them. Although trial court judges may have experience and knowledge regarding the setting of fees, they “must base the fee determination upon evidence adduced and cannot substitute [their] own knowledge for evidence.” In re Wood‘s Estate, 55 Ohio App.2d 67, 75 (10th Dist. 1977). Accordingly, we reject Local 776‘s suggestion that trial court judges are able to determine reasonable attorney fees without the necessary evidence.
{¶32} In sum, the trial court did not abuse its discretion in finding that Local 776 failed to present sufficient evidenсe to establish the reasonableness of its fee request.
Consequences for Failure to Satisfy Bittner
{¶33} We now turn to determining the appropriate consequence for Local 776‘s failure to carry its burden under Bittner. We can find no case explicitly indicating the consequences that result from a party‘s failure to prove the
{¶34} The most analogous cases that we have found implicate contractual provisions that mandate the awarding of attorney fees to a prevailing party in breach of contract claims. For instance, in Unick, the parties entered into a contract that included the following provision: “[i]n the event of a default * * *, the defaulting party shall reimburse the nondefaulting party * * * for all costs and expenses reasonably incurred by the nondefaulting party * * * in connection with the default, including without limitation attorney‘s fees.” (Emphasis added.) Unick, 2011-Ohio-1342, at ¶ 6. The trial court entirely denied the attorney fee award even though the contract required such an award because the requesting party failed to carry its burden under Bittner. Id. at ¶ 21. The court of appeals affirmed the denial and found that “when a prevailing party does not present sufficient evidence to support a request for attorney‘s fees, the trial court has the discretion to deny the request in its entirety.” Id. at ¶ 33; see also Southeast Land Dev., Ltd., 193 Ohio App.3d 465, 2011-Ohio-2341, at ¶ 15 (“If all elements of the required proof are not provided, the trial court may deny the request for attorney fees in its entirety.“); Stonehenge Land Co. v. Beazer Homes Invests., L.L.C., 177 Ohio App.3d 7, 2008-Ohio-148, ¶ 47 (10th Dist.) (affirming denial of attorney fees where requesting party did not carry burden under Bittner even though the contract
{¶35} We acknowledge that an outright denial of attorney fees seems inconsistent with
Court Costs
{¶37}
{¶38} In sum, Local 776 had the burden of proving the reasonableness of its attorney fee request and it failed to prove that the amount of hours charged by its attorney were reasonable to the prosecution of this action. As a result, the trial court did not abuse its discretion in finding that Local 776 failed to carry its burden under Bittner and it appropriately exercised its discretion in denying Local 776‘s fee request in its entirety. However, the trial court did err in failing to award court costs to Local 776.
{¶40} Having found error prejudicial to Local 776, in the particulars assigned and argued in part in its sole assignment of error, we affirm in part and reverse in part the judgment of the trial court, and remand for further proceedings consistent with this opinion.
Judgment Affirmed in Part, Reversed in Part and, Cause Remanded
PRESTON, P.J. and WILLAMOWSKI, J., concur.
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