Bigelow v. Am. Fam. Ins.

[Cite as Bigelow v. Am. Fam. Ins., 2014-Ohio-2945.]

COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
DEBORAH BIGELOW : Hon. William B. Hoffman, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 2013CA0024
AMERICAN FAMILY INSURANCE :
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Coshocton County
Municipal Court, Case No. CVE 1200287

JUDGMENT: Affirmed in part; reversed in part

DATE OF JUDGMENT ENTRY: June 30, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JAMES SKELTON MARK MADDOX
309 Main Street 987 South High Street
Coshocton, OH 43812 Columbus, OH 43206-2527
[Cite as Bigelow v. Am. Fam. Ins., 2014-Ohio-2945.]

Gwin, P.J.

{¶1} Appellant appeals the following judgment entries of the Coshocton

Municipal Court: the November 19, 2012 judgment entry granting appellee’s partial

motion for summary judgment, the January 29, 2013 judgment entry awarding appellee

damages including treble damages and attorney fees; and the February 20, 2013

awarding appellee additional damages for attorney fees and expert witness fees.

Facts & Procedural History

{¶2} In May of 2012, appellee Deborah Bigelow was in an auto accident in her

2007 Chevrolet Malibu. At the time of the accident, appellee was covered by an

insurance policy of appellant American Family Insurance. Appellee contacted

Coshocton Collision Center to repair the damage and requested the use of only original

equipment manufacturer (“OEM”) parts to repair the vehicle. Appellant subsequently

paid a portion of the repair bill to Coshocton Collision, but a balance of $161.19 remains

for the difference between the price of used or recycled parts authorized by appellant

and OEM parts actually utilized in the repair.

{¶3} Gary Board (“Board”) was the field physical damage inspector and

adjuster assigned to appellee’s case. Board evaluates damages, writes estimates, and

issue payments for appellant. After Board inspected appellee’s 2007 Chevrolet Malibu,

he created a repair estimate for the vehicle which included OEM and non-OEM parts.

The repair estimate included a paragraph regarding aftermarket parts and provides as

follows:

This estimate has been prepared based on the use of one or

more aftermarket crash parts supplied by a source other
Coshocton County, Case No. 2013CA0024 3

than the manufacturer of your motor vehicle. Warranties

applicable to these aftermarket crash parts are provided by

the parts manufacturer or distributor rather than by your own

motor vehicle manufacturer.

{¶4} Board did not obtain appellee’s signature on the repair estimate

acknowledging receipt of the estimate or approving the estimate as the line entitled

“Signature” is blank. Board stated when he issued the repair estimate, he knew it called

for the use of aftermarket or non-OEM parts and he knew he did not have appellee’s

signature on the estimate. Board attempted to contact appellee to discuss the use of

the aftermarket parts, used parts, and OEM parts, but she did not return his call.

{¶5} The insurance policy appellee had with appellant provides as follows:

The amount necessary to repair or replace the property is

determined by one of the following: * * *

c. an estimate based upon prevailing prices and the

prices charged by a statistically significant number of repair

facilities in the area where your insured car it to be repaired,

as determined by us. Upon your request, we will identify

facilities that will perform the repairs for the prevailing

competitive price.

{¶6} The policy further states that “if a repair or replacement results in a

betterment of the part, we will not pay for the amount of the betterment.”

{¶7} Appellee filed a complaint on June 11, 2012 against appellant alleging

common law causes of action and alleging violations of the Ohio Consumer Sales
Coshocton County, Case No. 2013CA0024 4

Practice Act. Appellee filed a partial motion for summary judgment on October 1, 2012,

seeking summary judgment on Count IV, violation of R.C. 1345.81 of the Ohio

Consumers Sales Practices Act (“CSPA”) for failure to obtain appellee’s signature on

the bottom of its estimate approving the use of non-OEM parts. Attached to appellee’s

motion for summary judgment was an affidavit of appellee, stating that after she

contacted appellant to repair her vehicle, appellant’s adjuster issued a written repair

estimate requiring the use of non-OEM parts and that the adjuster issued her the written

estimate without giving her the opportunity or choice to receive a written estimate,

verbal estimate, or no estimate at all. Appellee stated appellant did not obtain her

signature on the estimate to repair her vehicle approving the use of non-OEM parts and

acknowledging receipt of the estimate as required by R.C. 1345.81.

{¶8} After appellant failed to respond to requests for admissions, the

admissions that were deemed admitted pursuant to Civil Rule 36 provided that appellant

prepared a written estimate for the repair of appellee’s vehicle without giving appellee

an opportunity to request the type of estimate and that the estimate called for the use of

non-OEM parts, appellant did not get the signature of appellee, the person requesting

the repair, on said estimate and appellant knew they did not obtain the signature on said

estimate. The trial court granted partial summary judgment to appellee on November

19, 2012 as to Count IV only and scheduled a damages hearing. Appellee initially

dismissed Counts I, II, III, V, VI, and VII without prejudice on December 4, 2012, but

subsequently dismissed Counts I, II, III, V, VI, and VII of her complaint with prejudice.

{¶9} The trial court held a damages hearing on December 11, 2012. At the

hearing, appellee testified the balance owed for the use of the OEM parts was $161.19.
Coshocton County, Case No. 2013CA0024 5

Appellee also testified that Exhibit A was the bill for her attorney’s services in the case,

stated she reviewed the bill, and requested the trial court order appellant to pay the bill

for her attorney fees associated with the instant case. David Grudier, Rick Little, and

Herb Graham testified as to the difference between OEM and non-OEM parts. Erica

Eversman, Esq. (“Eversman”) testified on behalf of appellee in regards to attorney fees.

The trial court found her to be an expert without objection from appellant. Eversman is

an attorney whose primary area of practice is collision repair-related issues along with

insurance and consumer protection. Eversman testified that the particular section of the

CSPA in Count IV is a complicated area of law that only a few attorneys in the state

handle. Though she agreed it would take less time to handle one of these cases since

counsel for appellee had previously handled similar cases, Eversman testified these

lesser amounts are already reflected in the bill submitted as Exhibit A. Further, that she

had reviewed the bill submitted by counsel for appellee and the charges were

reasonable. Eversman testified that $400 per hour was a reasonable hourly rate for

counsel for appellee.

{¶10} James Skelton, Esq. (“Skelton”), attorney for appellee, testified that he

created the bill marked as Exhibit A. Skelton stated most R.C. 1345.81 cases are not

carbon copies of each other and, in this case, he had to spend higher amounts of time

to set up depositions and conduct discovery because appellant’s original attorney would

not respond to his requests.

{¶11} Cari Evans, Esq. (“Evans”) testified on behalf of appellant. Evans’ primary

practice consists of approximately 90% insurance defense work. Evans testified that

$400 is in excess of what is a reasonable or standard hourly fee in the area. Further,
Coshocton County, Case No. 2013CA0024 6

that the issues in the case are not complex, the research hours were inflated, and

previous pleadings were re-used in this case. On cross-examination, Evans stated she

had no experience with this particular statute and had not researched the statute.

Evans was not qualified as an expert.

{¶12} At the conclusion of the hearing, the trial court instructed the parties to file

post-hearing briefs with any closing arguments and instructed appellant to specifically

indicate which portions of Exhibit A, Skelton’s bill, they objected to based upon the

testimony at the hearing. In his post-hearing brief, Skelton included an updated billing

statement that added billing for December of 2012, including the damages hearing.

Skelton also submitted a request for expert witness fees for Eversman, Rick Little, and

Herb Graham’s appearance and testimony at the December 2012 damages hearing.

On January 29, 2013, the trial court issued a judgment entry awarding appellee actual

damages of $161.19, treble damages of $483.57, and expenses of $326.44. The trial

court further stated it found the amount of $5,700 billed for research to be too high and

reduced the amount allowed for research to $1,200. The trial court stated that the

billings of May 24, 2012, August 22, 2012, September 21, 2012, and September 27,

2012 are high as these are standard motions filed in these types of cases and Skelton’s

expertise should enable him to shorten the period of time necessary to perform the

functions. The trial court reduced these entries to a total of 2 hours or $800. At the

December 2012 hearing, appellee requested $18,966.44 in attorney fees and the trial

court found the reasonable amount of attorney fees to be $12,140. In its entry, the trial

court also noted that Skelton submitted a bill for expert witness fees as well as

additional bill for legal services rendered in December of 2012, primarily related to the
Coshocton County, Case No. 2013CA0024 7

December 11, 2012 damages hearing. The trial court found appellant should have the

ability to challenge and dispute these additional fees prior to the granting of a final

judgment.

{¶13} A hearing was held on Skelton’s request for expert witness fees and

additional attorney fees on February 8, 2013. Skelton testified that he bills in a monthly

cycle and the additional fees requested were incurred in December of 2012 and were

primarily charges he could not have presented at the first hearing because they were

fees for the attendance at the hearing, review of appellant’s post-hearing brief, and

research and writing of appellee’s post-hearing brief. Skelton requested an additional

$5,500 in attorney fees. Skelton also requested expert witness fees of $4,865.90 for the

testimony of Eversman, Graham, and Little at the December 11, 2012 hearing.

{¶14} On February 20, 2013, the trial court issued a final judgment entry. The

trial court stated the February 8th hearing was necessary because Skelton submitted

additional bills for his time and expenses as the result of the hearing held in December

of 2012. The trial court stated it applied R.C. 1345 and Bittner v. Tri-County Toyota, 58

Ohio St.3d 143, 569 N.E.2d 464 (1991), to this case and found the time spent in

litigation as well as the hourly rate was reasonable. Accordingly, the trial court awarded

appellee: actual damages of $161.19, treble damages of $483.57, expenses of

$326.44, expert witness fees of $4,272.15, and total attorney fees of $17,640 ($12,140

as detailed in the January 2013 judgment entry and the additional $5,550 requested by

Skelton for December 2012 fees).
Coshocton County, Case No. 2013CA0024 8

{¶15} Appellant appeals the November 19, 2012, January 29, 2013, and

February 20, 2013 judgment entries of the Coshocton Municipal Court, assigning the

following as error:

{¶16} “I. THE TRIAL COURT ERRED IN GRANTING PLAINTIFF’S MOTION

FOR PARTIAL SUMMARY JUDGMENT.

{¶17} "II. THE TRIAL COURT ERRED IN AWARDING ATTORNEY FEES TO

THE PLAINTIFFS, AS WELL AS IN DETERMINING THE AMOUNT OF ATTORNEY

FEES.

{¶18} "III. THE TRIAL COURT ERRED IN AWARDING APPELLEE ACTUAL

AND TREBLE DAMAGES.”

I.

Summary Judgment Standard

{¶19} Civ.R. 56 states, in pertinent part:

Summary judgment shall be rendered forthwith if the

pleadings, depositions, answers to interrogatories, written

admissions, affidavits, transcripts of evidence, and written

stipulations of fact, if any, timely filed in the action, show that

there is no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law. No

evidence or stipulation may be considered except as stated

in this rule. A summary judgment shall not be rendered

unless it appears from the evidence or stipulation, and only

from the evidence or stipulation, that reasonable minds can
Coshocton County, Case No. 2013CA0024 9

come to but one conclusion and that conclusion is adverse

to the party against whom the motion for summary judgment

is made, that party being entitled to have the evidence or

stipulation construed mostly strongly in the party’s favor. A

summary judgment, interlocutory in character, may be

rendered on the issue of liability alone although there is a

genuine issue as to the amount of damages.

{¶20} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311

(1981). The court may not resolve any ambiguities in the evidence presented. Inland

Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474

N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the

applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301,

733 N.E.2d 1186 (6th Dist. 1999).

{¶21} When reviewing a trial court’s decision to grant summary judgment, an

appellate court applies the same standard used by the trial court. Smiddy v. The

Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review

the matter de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d

1243.

{¶22} The party moving for summary judgment bears the initial burden of

informing the trial court of the basis of the motion and identifying the portions of the
Coshocton County, Case No. 2013CA0024 10

record which demonstrates absence of a genuine issue of fact on a material element of

the non-moving party’s claim. Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264

(1996). Once the moving party meets its initial burden, the burden shifts to the non-

moving party to set forth specific facts demonstrating a genuine issue of material fact

does exist. Id. The non-moving party may not rest upon the allegations and denials in

the pleadings, but instead must submit some evidentiary materials showing a genuine

dispute over material facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791

(12th Dist. 1991).

Count IV – CSPA Claim

{¶23} Appellant argues the trial court erred in granting appellee’s partial motion

for summary judgment because the CSPA does not apply to claims made by an insured

under a policy of insurance. Appellant contends that insurance companies are not

“suppliers” pursuant to R.C. 1345.02(A) and that consumer transactions do not include

transactions between persons defined in R.C. 5725.01, including insurance companies.

{¶24} In Dillon v. Farmers Ins. of Columbus, Inc., 5th Dist. Coshocton No.

2013CA0014, 2014-Ohio-431, this Court found that, due to the well-settled rules of

statutory construction, the specific code section R.C. 1345.81 prevails over the general

code sections of R.C. 1345.01 and R.C. 1345.02. Further, as noted in Dillon, the cases

cited by appellant in support of its position that R.C. 1345.81 does not apply to insurers

are distinguishable from this case as they do not deal with the specific section of the

CSPA at issue in this case, R.C. 1345.81. In addition, the Johnson case was decided

on August 31, 1990, prior to the enactment of R.C. 1345.81 on October 16, 1990.

Johnson v. Lincoln Nat’l Ins. Co., 69 Ohio App.3d 249, 590 N.E.2d 761 (2nd Dist. 1990).
Coshocton County, Case No. 2013CA0024 11

{¶25} In this case, Board meets the definition of “insurer” in R.C. 1345.81 as he

is the individual serving as the agent or authorized representative of the insurance

company involved with the coverage for repair of the motor vehicle in question. Board

provided a written estimate for the repair of appellee’s vehicle which included non-OEM

parts. While the use of non-OEM parts is permissible under the insurance policy,

pursuant to R.C. 1345.81, appellant must have appellee sign the written estimate to

acknowledge she received the estimate that included the notification regarding the non-

OEM parts. Board admitted he failed to obtain appellee’s signature on the bottom of the

repair estimate that included the notice about the non-OEM parts. This is evidenced by

the repair estimate, attached as an exhibit to appellee’s motion for summary judgment,

in which the line entitled “Signature” is blank, the deemed admission that appellant did

not get the signature of appellee, the person requesting the repair, on said estimate, the

deemed admission that appellant knew they did not obtain the signature on said

estimate, and appellee’s affidavit that appellant did not obtain her signature on the

estimate to repair her vehicle approving the use of non-OEM parts and acknowledging

receipt of the estimate as required by R.C. 1345.81. Based upon the reasoning in

Dillon, we find that appellant’s arguments that the CSPA does not apply to claims made

by an insured under a policy of insurance, that insurance companies are not “suppliers”

pursuant to R.C. 1345.02(A), and that consumer transactions do not include

transactions between persons defined in R.C. 5725.01, fail.

{¶26} Appellant additionally argues there is no evidence that appellee requested

or otherwise chose to receive a written estimate and thus R.C. 1345.81 does not apply.

We disagree. Board testified it is standard procedure to provide a written repair
Coshocton County, Case No. 2013CA0024 12

estimate whether the vehicle owner requests it or not. Appellee’s affidavit provides that

appellant issued her the written estimate without giving her the opportunity or choice to

receive a written estimate, verbal estimate, or no estimate at all. The deemed

admissions provide that appellant prepared a written estimate for the repair of

appellee’s vehicle without giving appellee an opportunity to request the type of estimate

and that the estimate called for the use of non-OEM parts. Appellant cannot avoid the

penalty of failing to comply with R.C. 1345.81 by simply issuing a written estimate

before appellee had the opportunity to request it. Further, in this case, appellee

requested appellant pay for the repairs to her vehicle which, according to Board’s

testimony, is synonymous to requesting the issuance of the estimate. R.C. 1345.81

provides that, “receipt and approval of the written estimate shall be acknowledged by

the signature of the person requesting the repair at the bottom of the written estimate.”

Here, appellee requested the repair and her signature was not obtained at the bottom of

the written estimate.

{¶27} Appellant’s first assignment of error is overruled.

II.

{¶28} Appellant argues that since the CSPA does not apply to claims between

an insurer and an insured, any award of attorney fees by the trial court is improper.

Further, that the trial court abused its discretion in awarding the amount of attorney fees

and expert witness fees.

Attorney Fees

{¶29} An award of attorney fees is within the sound discretion of the trial court.

Rand v. Rand, 18 Ohio St.3d 356, 369, 481 N.E.2d 609 (1985). In order to find an
Coshocton County, Case No. 2013CA0024 13

abuse of discretion, we must determine that the trial court’s decision was unreasonable,

arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

{¶30} As discussed above and in Dillon, R.C. 1345.81, included in the CSPA,

applies to any insurer who provides an estimate for the repair of a motor vehicle. R.C.

1345.09(F)(2) provides, in relevant part, that a trial court may award reasonable

attorney fees to the prevailing party if “[t]he supplier has knowingly committed an act or

practice that violates this chapter [the Consumer Sales Practices Act].” A supplier does

not have to know this is conduct violates the CSPA for the court to grant reasonable

attorney fees. Snider v. Conley’s Service, 5th Dist. No. 1999CA00153, 2000 WL

873780 (June 12, 2000) citing Einhorn v. Ford Motor Co., 48 Ohio St.3d 27, 30, 548

N.E.2d 933 (1990). The supplier must intentionally commit the act, but need not know

the act violates Ohio law. Smith v. Hall, 5th Dist. Stark No. 2005-CA-00124, 2005-Ohio-

5789, citing Einhorn, 48 Ohio St.3d at 30. In this case, Board knew the estimate

contained non-OEM parts and testified he knew he did not obtain appellee’s signature

on the written repair estimate that included the non-OEM parts. Further, the deemed

admissions establish that appellant knew they did not obtain the signature on said

estimate. Accordingly, appellee is entitled to reasonable attorney fees pursuant to R.C.

1345.09(F)(2).

{¶31} Appellant next contends the amount of attorney fees awarded by the trial

court was not reasonable because the amount of attorney fees is grossly

disproportionate to the limited dollar amount of damages in this case. However, as we

discussed in Dillon, this contention was rejected by the Ohio Supreme Court in Bittner v.
Coshocton County, Case No. 2013CA0024 14

Tri-County Toyota, 58 Ohio St.3d 143, 569 N.E.2d 464 (1991). The Ohio Supreme

Court held that rather than forcing a direct relationship between the attorney fees and

the amount the consumer recovers, the starting point for the determination of a

reasonable amount of fees is the number of hours spent by the attorney multiplied by a

reasonable hourly rate. Id. “This calculation provides an objective basis on which to

make an initial estimate of the value of a lawyer’s services.” Hensley v. Eckerhart, 461

U.S. 424, 433, 103 S.Ct. 1933, 1939 (1983).

{¶32} The fee applicant bears the burden of establishing entitlement to an award

and documenting the appropriate hours expended and hourly rates. Canton v. Irwin,

5th Dist. No. 2011CA00029, 2012-Ohio-344. To establish the number of hours

reasonably expended, the party requesting the fees should submit evidence to support

the hours worked. Hensley, 461 U.S. at 433. A reasonable hourly rate is “the prevailing

market rate in the relevant community.” Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct.

1541, 79 L.Ed. 2d 891 (1984). Once the trial court calculates the “lodestar figure,” it can

modify the calculation by applying the factors listed in Rule 1.5 of the Ohio Rules of

Professional Conduct (formerly DR 2-106(B)). Landmark Disposal Ltd. v. Byler Flea

Market, 5th Dist. Stark No. 2005CA00294, 2006-Ohio-3935. These factors are: 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. Canton v. Irwin, 5th Dist. No.
Coshocton County, Case No. 2013CA0024 15

2011CA00029, 2012-Ohio-344. “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.” Id., citing Bittner v. Tri-County Toyota,

58 Ohio St.3d 143, 569 N.E.2d 464 (1991). The “trial court maintains discretion to make

the determination as to what [attorney] fee award is reasonable in light of all the facts

and circumstances of the case.” Mauger v. Inner Circle Condominium Owners Assn.,

9th Dist. No. 10CA0046-M, 2011-Ohio-1533.

{¶33} While appellant contends Exhibit A, Skelton’s detailed billing statement,

was not properly admitted as an exhibit, we disagree. Unlike in the cases cited by

appellant, Fay Gardens Mobile Home Park v. Newman, 14 Ohio App.3d 144, 470

N.E.2d 164 (12th Dist. 1983) and Frey v. Trenor Motor Co., 2nd Dist. Clark No. 94-CA-

69, 1995 WL 502254 (Aug. 25, 1995), appellee testified she reviewed Exhibit A, her

legal bill, and sought to have it paid. Further, Eversman testified she reviewed the bill

and all the motions and pleadings and found the work necessary for the resolution of

the case and the statement accurately reflected the worked performed. Thus,

Eversman actually reviewed the work itself and not simply the bill like the expert in Frey.

Finally, Skelton testified to and detailed the information in the bill and the work

performed in the initial and revised bill at the first and second hearings. Counsel for

appellant had the opportunity to cross-examine Skelton at both hearings as to the

number of hours expended and the need for the amount of time alleged to have been

devoted to the case. Further, Skelton had personal and first-hand knowledge that the

billing statement accurately reflected the work reasonably performed by him. The

testimony presented establishes Exhibit A was a billing statement that accurately
Coshocton County, Case No. 2013CA0024 16

reflected the work reasonably performed by Skelton. Accordingly, the trial court did not

err in admitting Exhibit A.

{¶34} Having reviewed the record in this case, we find the court did not abuse its

discretion in determining the attorney fees award. Appellee submitted evidence to

support the hours worked and a reasonable hourly rate. Eversman, an attorney whose

primary area of practice is collision repair-related issues and insurance and consumer

protection, testified that the particular section of the CSPA in Count IV is complicated

area of law that only a few attorneys in the state handle. Further, that she reviewed

Exhibit A and all the pleadings and motions in the case and that the charges in Exhibit A

were reasonable. Eversman stated $400 per hour was a reasonable hourly rate for

Skelton given the nature of the case and that she charges $350 per hour for similar

types of cases. Though she agreed it would take less time to handle one of these

cases since Skelton previously handled similar cases, Eversman testified these lesser

amounts were already reflected in Exhibit A. Skelton stated that since most R.C.

1345.81 cases are not carbon copies of each other and, in this case, he had to spend

higher amounts of time to set up depositions and conduct discovery because appellant’s

original attorney was slow to respond to his requests. Though Evans testified that $400

was in excess of what a reasonable or standard hourly rate in the area, Evans stated

she had no experience with this particular statute and had not researched this particular

statute. The trial judge who presided over all of the proceedings below was in the best

position to review and assess the value of the attorney’s services. Bittner v. Tri-County

Toyota, 58 Ohio St.3d 143, 569 N.E.2d 464 (1991). The underlying rationale for this

deference to the trial court is that “the trial judge is best able to view the witnesses and
Coshocton County, Case No. 2013CA0024 17

observe their demeanor, gestures and voice inflections, and use these observations in

weighing the credibility of the proffered testimony.” Seasons Coal Co. v. Cleveland, 10

Ohio St.3d 77, 81, 461 N.E.2d 1273 (1984).

{¶35} In the January 2013 entry, the trial court agreed with appellant that

Skelton’s research hours were inflated and reduced the amount for research from

$5,700 (14.25 hours) to $1,200 (3 hours). The trial court also agreed with appellant that

certain billings were too high given that the motions filed were standard motions in the

case and Skelton should be able to complete them in a shorter period of time due to his

expertise. Accordingly, the trial court properly calculated the lodestar figure and

properly utilized the factors as listed above to award appellee a reduced amount of

$12,140 in attorney fees when the initial request was for $18,966.44. At the February

2013 hearing on attorney fees, Skelton testified that he incurred additional fees as a

result of attending the first hearing, reviewing appellant’s post-hearing brief, and

researching and writing appellee’s post-hearing brief. In its February 20, 2013 entry,

the trial court stated it applied R.C. 1345 and Bittner v. Tri-County Toyota, 58 Ohio St.3d

143, 569 N.E.2d 464 (1991), to this case and found the time spent in litigation and the

hourly rate was reasonable. Accordingly, the trial court utilized the proper procedure to

determine the additional $5,500 in attorney fees were reasonable. Appellant’s second

assignment of error is overruled as it pertains to attorney fees.

Expert Witness Fees

{¶36} Appellant argues a trial court may not award expert witness fees as

attorney fees and the trial court erred by considering the unauthenticated expert witness

bills. We find the second portion of appellant’s argument to be dispositive.
Coshocton County, Case No. 2013CA0024 18

{¶37} A condition precedent to the admissibility of documents is that documents

must be authenticated or identified. St. Paul Fire & Marine Ins. Co. v. Ohio Fast Freight,

Inc., 8 Ohio App.3d 155, 157, 456 N.E.2d 551 (10th Dist. 1982). “Generally,

authentication or identification is satisfied by evidence sufficient to support a finding that

the matter in question is what its proponent claims.” Id.; Evid.R. 901(A). “The common

manner of identifying a document is through testimony of a witness with knowledge.” Id.

{¶38} In this case, unlike Skelton, appellee, and Eversman’s testimony about

Skelton’s legal bill (Exhibit A), no witnesses were able to identify or authenticate the

documents purporting to be the bills of the expert witnesses that were attached to

appellant’s post-hearing brief. When Skelton testified at the hearing, he could not verify

that the time the experts spent on this case was the actual amount of time they spent

completing the tasks as listed in their bills. Skelton could not testify to what time Little

included on his non-itemized bill and could not testify to how long Eversman actually

spent reviewing documents and completing other tasks listed on her bill. Therefore,

upon review of the record, we find the documents were not properly introduced,

indentified, or authenticated by any person with knowledge that the billing statements

accurately reflected the work performed.

{¶39} Accordingly, we find the trial court abused its discretion in considering the

billing statements of the experts as evidence of the amount of fees incurred. Appellee

presented no other evidence of the expert fees and thus, upon review of the record, we

find there was insufficient evidence to support the award of expert fees and the trial

court abused its discretion when it awarded expert fees in the amount of $4,272.15.
Coshocton County, Case No. 2013CA0024 19

The portion of appellant’s assignment of error II regarding expert witness fees is

sustained.

III.

{¶42} Appellant argues the trial court erred in awarding appellee actual damage

and treble damages, or, in the alternative, erred in awarding appellee actual damages in

addition to treble damages. We disagree in part and agree in part.

{¶43} We first find the trial court properly calculated the amount of actual

damages at $161.19, as the difference between the used parts paid for by appellant and

the new parts used was $161.19.

{¶44} Appellant also contends the trial court erred in awarding treble damages

because the practice was not declared to be deceptive or unconscionable by a

regulation promulgated by the Attorney General or previously determined by an Ohio

court to have violated R.C. 1345.02 and whose decision was available for public

inspection as required by R.C. 1345.09(B). However, pursuant to R.C. 1345.81, the

failure to obtain the signature and acknowledgment of the person requesting the repair

in a repair estimate that includes non-OEM parts is a deceptive act, as R.C. 1345.81(E)

provides that “any violation of this section in connection with a consumer transaction * *

* is an unfair and deceptive act or practice as defined by section 1345.02 of the Revised

Code.” Because this definite language is included in R.C. 1345.81(E), the statute is

analogous to the ten actions or practices contained in R.C. 1345.02 that are specifically

found to be unfair or deceptive acts. R.C. 1345.02(B)(1)-(10). See Mason v. Mercedes–

Benz USA, LLC, 8th Dist. No. 85031, 2005–Ohio–4296.
Coshocton County, Case No. 2013CA0024 20

{¶45} As we held in Dillon, the statute itself declares that the specific act at issue

is an unfair or deceptive practice under R.C. 1345.02. 5th Dist. Coshocton No.

2013CA0014, 2014-Ohio-431. The statute was established prior to the time appellant

committed the act. Therefore, because the specific act at issue in this case has

previously been declared a deceptive act, the trial court did not err in awarding treble

damages in this case.

{¶46} Appellant finally asserts the trial court erred in the amount of damages

awarded to appellee because appellee cannot recover actual damages in addition to

treble damages. We agree. As stated by the Sixth District in The Estate of Lamont

Cattano v. High Touch Homes, Inc., 6th Dist. Erie No. E–01–022, 2002–Ohio–2631,

R.C. 1349.09(A) and R.C. 1349.09(B) are mutually exclusive and:

a consumer can elect between the remedies of rescission or

damages and, if the consumer can prove that the supplier

should have known that his actions constituted a violation of

the Act, the consumer can elect between rescission and

damages equal to three times his actual damages up to

$200. This holding is supported by the dicta in Stultz v.

Artistic Polls, Inc. (Oct. 10, 2001), Summit App. No. 20189,

at 8, citing Armstrong v. Kittinger (Sept. 21, 1994), Summit

App. No. 16124 and 16378, at 26–27, where the court stated

that R.C. 1345.09 provides that the consumer, who proves

that a supplier has violated the Act and meets the

prerequisites for treble damages under R.C. 1345.09(B), can
Coshocton County, Case No. 2013CA0024 21

elect either rescission of the contract of treble damages, not

actual damages versus treble damages. See, also, Mid–

American Acceptance Co. v. Lightle (1989), 63 Ohio App.3d

590, 597, 579 N.E.2d 721. Therefore, we conclude that the

court may not award a party actual damages and treble

damages.

{¶47} Id. Accordingly, pursuant to R.C. 1345.09(B), the proper award for

damages would be to calculate the actual damages multiplied by three, or $483.57.

Accordingly, appellant's third assignment of error is overruled in part and sustained in

part.

{¶48} Based on the foregoing, we overrule appellant’s assignment of error I. We

partially overrule and partially sustain appellant’s assignments of error II and III. The

November 19, 2012 judgment entry of the Coshocton Municipal Court is affirmed. The

January 29, 2013 and February 20, 2013 judgment entries of the Coshocton Municipal

Court are reversed in part and affirmed in part.
Coshocton County, Case No. 2013CA0024 22

{¶49} Pursuant to App.R. 12(B), we hereby modify the judgment entered by the

Coshocton Municipal Court and enter judgment in favor of appellee for treble damages

of $483.57, expenses of $326.44, and attorney fees of $17,640.00 for a total amount of

$18,450.01.

By Gwin, P.J.,

Hoffman, J., and

Baldwin, J., concur