Case Information
*1
[Cite as
United Assn. of Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry v. Jack's
Heating, Air Conditioning & Plumbing, Inc.
,
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HARDIN COUNTY
UNITED ASSOCIATION OF
JOURNEYMAN AND
APPRENTICES OF THE PLUMBING
AND PIPE FITTING INDUSTRY,
LOCAL UNION NO. 776,
CASE NO. 6-12-06 PLAINTIFF-APPELLANT,
v.
JACK’S HEATING, AIR
CONDITIONING & PLUMBING, INC., O P I N I O N DEFENDANT-APPELLEE.
Appeal from Hardin County Common Pleas Court
Trial Court No. CV 20081164
Judgment Affirmed in Part, Reversed in Part and Cause Remanded Date of Decision: January 22, 2013
APPEARANCES:
Joseph M. D’Angelo for Appellant
William E. Clark for Appellee
ROGERS, J.
{¶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. 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 actually order that Jack’s pay such attorney fees. Both рarties 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
776’s attorney fees and court costs. The matter was then remanded to the trial
court.
See United Assn. of Journeymen & Apprentices of the Plumbing & Pipe
Fitting Industry, Local Union No. 776 v. Jack’s Heating, Air Conditioning &
Plumbing, Inc.
, 3d Dist. No. 6-10-11,
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”). 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 firm employees who performed the described work. [1] In total, the Bill lists approximately 400 hours of work performed and $65,537.55 in fees and costs. When D’Angelo offered the Bill into evidence, he was not under oath. At that time, he stated that he thought “$65,000 [was] a reasonable allotment of time and expense for the undertaking.” May 3, 2011 Hearing Transcript, p. 5. The OSBA publications provide the results of online surveys
distributed to Ohio law firms regarding their billing practices. Both publicatiоns 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. 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 (labor law firms representing unions): $150; 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. 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. In regard to the Bill, D’Angelo testified that he reviewed it and “eliminated any time entries that appeared in my oрinion to be duplicative of other entries that were 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.
{¶10} After Jack’s counsel finished his questioning, the parties presented closing arguments. In his closing, D’Angelo indicated that he has 16 years of legal experience. D’Angelo also supplemented the evidence and argument presented at the hearing by filing a brief that summarized Local 776’s legal position on its request for attorney fees. No evidentiary material was attached to the brief. 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 .). Local 776 objected to the magistrate’s deсision. After each 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).
{¶13} It is from this judgment that Local 776 filed this timely appeal, presenting the following assignment of error for our review.
Assignment of Error No. I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT REFUSED TO AWARD COSTS AND ATTORNEYS’ FEES TO THE PLAINTIFF/APPELLANT. 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 agreе in part and disagree in part.
Standard of Review We review a trial court’s attorney fees award for abuse of discretion.
Bittner v. Tri-Cty. Toyota, Inc.
,
The American Rule and R.C. 4115.16(D) 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.
,
4115.16(D) apply. The statute provides that when a trial court finds that a party
violated the prevailing wage law, it “
shall
award attorney fees and court costs to
the prevailing party.” (Emphasis added.) R.C. 4115.16(D). Due to the statute’s
plain language, we have interpreted R.C. 4115.16(D) as requiring that trial courts
award attorney fees and court costs whenever they find violations of the prevailing
wage law.
Jack’s I
,
Bittner
Framework for the Reasonableness of Attorney Fee Awards
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 . Although
Bittner
was handed down in the context of the
Ohio Consumer Sales Practices Act, courts have applied it to 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 аttorney fees under R.C. 2323.51
for bad faith conduct during litigation), including in prevailing wage enforcement
actions,
e.g.
,
Village of W. Unity ex rel. Beltz v. Merillat
, 169 Ohio App.3d 71,
hours reasonably expended on the cases [and multiply it] by an hourly fee * * *.”
, 58 Ohio St.3d at 145. The product of this calculation is called the
“lodestar” figure.
Unick
,
(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 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.
,
Local 776’s Evidence for its Attorney Fee Request Local 776 presented three exhibits and offered D’Angelо’s testimony
on cross-examination by Jack’s counsel in its attempt to carry its burden under . 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. 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
,
that the amount of hours charged was reasonable. The Bill itself cannot show that the amount of hours сharged 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. 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 a witness is рlaced
under oath, R.C. 2317.30; Evid.R. 603, and the failure to place a witness under
oath precludes the consideration of a witness’s statement as evidence,
Arcaro
Bros. Builders, Inc. v. Zoning Bd. of Appeals, City of N. College Hill
, 7 Ohio St.2d
32, 33 (1966). As a result, D’Angelo’s statement about the reasonableness of the
Bill was non-testimonial, and we only consider D’Angelo’s statements after he
was placed under oath as evidence in support of Local 776’s attorney fee request.
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
,
fee request or in-depth testimony from either D’Angelo or another witness regarding the nature of this matter, the trial court would have to speculate as to the reasonable amount of time necessary for the successful prosecution of this matter. Such rank speculation is contrary to the guidance of Bittner and its progeny and the trial court aрpropriately declined from engaging in it. Further, without the necessary evidence to show the reasonableness of the amount of time charged in the Bill, the trial court was unable to properly calculate the lodestar figure. Consequently, we find that the trial court did not abuse its discretion in finding that Local 776’s evidence did not satisfy its burden under Bittner to prove the reasonableness of its fee request. 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
hourly rates charged by labor law firms.
[4]
Third, Local 776 failed to offer any
evidence of D’Angelo’s reputation, experience, and ability, which is fatal to its
ability to prove the reasonableness of the hourly rates charged in the Bill.
[5]
City of
Canton v. Irwin
, 5th Dist. No. 2011CA00029,
and the OSBA surveys are sufficient to carry its burden under . 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-rеquesting party’s attorney; and (3)
the trial court failed to award fees incurred during the preparation of the fee
request.
Merillat
,
{¶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
,
Local 776 failed tо present sufficient evidence to establish the reasonableness of its fee request.
Consequences for Failure to Satisfy Bittner We now turn to determining the appropriate consequence for Local
776’s failure to carry its burden under . We can find no case explicitly indicating the consequences that result from a party’s failure to prove the reasonableness of its request for statutorily-mandated attorney fees. As such, we must resort to analysis by analogy to guide our review. 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
,
inconsistent with R.C. 4115.16(D)’s compulsory language. But, other cases
involving statutorily-mandated fee awards have implicitly recognized that trial
courts are empowered to deny all attorney fees if the requesting party fails to carry
its burden. In
Szczotka
, the court of appeals addressed the awarding of statutorily-
mandated attorney fees under R.C. 2107.75. There, the court reversed the trial
court’s denial of attorney fees, but only because it failed to enumerate its
reasoning for the denial.
Szczotka
,
{¶36} Based on the foregoing, the trial court in this matter was empowered to entirely deny Local 776’s awarding of attorney fees provided that Local 776 failed to carry its burden under . Consequently, the trial court did not abuse its discretion in doing so.
Court Costs R.C. 4115.16(D) also mandates that a nоn-prevailing party reimburse
the prevailing party for the court costs it incurred in prosecuting the action. Unlike requests for attorney fees, there is no burden on the prevailing party to prove the reasonableness of its court cost request. Here, the trial court did not order that Jack’s pay the court costs incurred by Local 776. This failure contravenes the requirements of R.C. 4115.16(D) and constitutes reversible error. Accordingly, we reverse the trial court’s order insofar as it fails to award court costs to Local 776. 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. Accordingly, we overrule in part and sustain in part Local 776’s sole
assignment of error. 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.
/jlr
[1] We note that D’Angelo filed a brief with the trial court that identifies the names and positions of the employees who are shown as billing time. These identifications, however, are merely listed in the argument section of the brief and not included in evidentiary material, such as an affidavit. Furthеr, there was no testimony during the hearing as to these identifications. Consequently, there is no evidence in the record identifying the names and positions of the employees whose initials are included in the itemized bill.
[2] The Ohio Rules of Professional Conduct became effective on February 1, 2007 and superseded the Ohio Code of Professional Responsibility. Since Bittner was decided in 1991, the court cited the factors listed in DR 2-106(B) as those trial courts should consider in awarding attorney fees. Since this matter implicates attorney fees incurred after February 1, 2007, we сonsider the factors included in the Rules of Professional Conduct as controlling our review. See O’Neill v. Tanoukhi , 7th Dist. No. 10-MA-45,2011-Ohio-2626 , ¶ 12 (applying factors in Prof.Cond.R. 1.5 to Bittner analysis since matter post-dated the effective date of the Rules of Professional Conduct). Regardless, we note that the factors in DR 2-106(B) are substantially similar to the factors in Prof.Cond.R. 1.5(a).
Notes
[3] D’Angelo’s testimony also suffers from other deficiencies. Most notably, he conceded that several of the time entries in the Bill are for work on pleadings that were never filed.
[4] There are other portions of D’Angelo’s testimony that confuse the analysis of the hourly rates’ reasonableness. He testified that his law firm has five attorneys and is located in Toledo. It is questionable based on this testimony whether the trial court should have considered the typical rates for law firms of the same size, or whether it should have considered the typical rates for Toledo law firms or Northwestern Ohio law firms.
[5] In his closing argument on behalf of Local 776, D’Angelo stated that he had 16 years of experience. However, this statement was not made while D’Angelo was under oath, which, as noted above, precludes it from being considered as evidence.