[Cite as Canton v. Irwin, 2012-Ohio-344.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CITY OF CANTON
Plaintiff-Appellant
-vs-
ELAINE R. IRWIN, et al.,
Defendants-Appellees
: JUDGES:
: William B. Hoffman, P.J.
: Sheila G. Farmer, J.
: Julie A. Edwards, J.
:
: Case No. 2011CA00029
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil Appeal from Stark County
Court of Common Pleas, Probate
Division, Case No. 206416
JUDGMENT: Affirmed In Part and Reversed
and Remanded In Part
DATE OF JUDGMENT ENTRY: January 30, 2012
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
KEVIN R. L’HOMMEDIEU WARNER MENDENHALL
THOMAS A. BURNS 190 North Union Street, Suite 201
Canton Law Department Akron, Ohio 44304
218 Cleveland Avenue
Canton, Ohio 44701-4218
Edwards, J.
{¶1} Appellant, the City of Canton, appeals a judgment of the Stark County
Common Pleas Court, Probate Division, awarding appellee Elaine Irwin $29,055.00 in
attorney fees, costs and expenses incurred in defending appellant’s complaint for
appropriation of appellee’s property.
STATEMENT OF FACTS AND CASE
{¶2} Appellant filed the instant action on June 18, 2009, seeking a perpetual
easement in property owned by appellee for the purpose of constructing a twenty-foot
wide public drainage right of way. Following a hearing in the Probate Court on October
21, 2009, to determine the necessity of the easement, the court found that there was no
public necessity for the appropriation by judgment entry filed January 27, 2010.
{¶3} On February 22, 2010, appellee filed an application for fees and costs.
She requested a total of $25,812.50 in attorney fees payable to Attorneys Mendenhall
and Corgan, which each billed for their services at a rate of $250 per hour. She also
requested expert witness fees of $7,250.00, a transcript fee of $255.00 and fees for
Attorney Mendenhall’s assistant of $135.00.
{¶4} The court held a hearing at which both parties called local attorneys to
testify regarding the reasonable legal fee rates in Stark County. Appellee’s expert,
Dimitrious Pousolides, testified that the hours expended were reasonable, as was a fee
of $250.00 an hour for Attorneys Mendenhall and Corgan based on the difficulty of the
case and their particular experience with eminent domain cases. He also testified that it
was reasonable to hire an expert early in this type of case.
{¶5} Appellant’s expert, Craig Conley, testified that $175.00 per hour for
Attorney Mendenhall and $150.00 per hour for Attorney Corgan were reasonable fees.
He testified that the time spent on the case was unreasonable. He also testified that
hiring an expert early in this case was not necessary, and he always tells his clients and
the court that he “knows everything.” Tr. 50.
{¶6} The court found that a rate of $250.00 per hour was reasonable for the
attorneys in this case, but found that not all of the hours expended were reasonable.
Accordingly, the court awarded attorney fees in the amount of $21,550.00. The court
found that Robert Smith, the expert employed by appellee, assisted with engineering
issues in the case and awarded fees of $7250.00 as a reasonable expense of the case.
The court also awarded the transcript fee of $255.00, for a total award for costs, fees
and expenses pursuant to R.C. 163.09(G) of $29,055.00. Appellant assigns three errors
on appeal:
{¶7} “I. BECAUSE THERE WAS ALMOST NO EVIDENCE REGARDING HER
SKILL, EXPERIENCE, AND REPUTATION, THE TRIAL COURT’S DECISION TO
AWARD ATTORNEY FEES AT A RATE OF $250 PER HOUR FOR CORGAN’S WORK
WAS ARBITRARY AND UNREASONABLE.
{¶8} “II. THE TRIAL COURT ERRED IN INTERPRETING R.C. 163.09(G) BY
EXPANDING “EXPENSES AND COSTS” TO INCLUDE EXPERT FEES WITHOUT
THE SPECIFIC STATUTORY AUTHORIZATION TO DO SO.
{¶9} “III. EVEN IF R.C. 163.09 ALLOWED FOR AN AWARD OF EXPERT
FEES, THE TRIAL COURT’S DECISION TO AWARD $7,250 FOR IRWIN’S EXPERT
WAS NOT REASONABLE.”
I
{¶10} Appellant argues that the court erred in finding that Attorney Corgan’s rate
of $250 per hour was reasonable because there was no evidence presented concerning
her skill, experience, background, education and reputation.
{¶11} “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, 92 L.Ed.2d 439.
{¶12} “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, 76 L.Ed.2d 40. [Footnotes omitted].
{¶13} “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, 76 L.Ed.2d 40. See, also Bittner v. Tri-County
Toyota, Inc., supra, 58 Ohio St.3d at 145, 569 N.E.2d at 466.
{¶14} 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 be
reduced to exclude “hours that are excessive, redundant, or otherwise unnecessary” in
order to reflect the number of hours that would properly be billed to the client. Id. at 434,
103 S.Ct. at 1939-40. A reasonable hourly rate is defined as “the ‘prevailing market rate
in the relevant community.’” Blum v. Stenson (1984), 465 U.S. 886, 895, 104 S.Ct.
1541, 1547, 79 L.Ed.2d 891.
{¶15} 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,
{¶16} 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
1 Now Prof. Cond. Rule 1.5
Bittner v. Tri-County Toyota, Inc. (1991), 58 Ohio St.3d 143, 145, 569 N.E.2d 464.
[Hereinafter “Landmark Disposal I ”].
{¶17} 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, 569
N.E.2d 464. In Bittner, the Ohio Supreme Court held:
{¶18} “ * * * 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
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. 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.” Bittner, 58 Ohio St.3d at 145-146, 569
N.E.2d 464.
{¶19} In the instant case, appellee submitted a resume of Attorney Jacquenette
Corgan as an attachment to her post-trial memorandum. However, this resume is not
attested to or of affidavit quality, and therefore is not evidence. The fee statement as
submitted to the court does not delineate hours worked by Corgan and hours worked by
Mendenhall. Mendenhall testified that he could separate out the hours but it would take
some time, and it did not matter because they both billed at a rate of $250 per hour. Tr.
24.
{¶20} The only evidence presented concerning Attorney Corgan was that she
was admitted to the Ohio Bar in 2000, practiced as an associate in Mendenhall’s law
firm from 2005 through 2009, and has since continued to work with Mendenhall in an
independent capacity. Corgan withdrew from the case on September 8, 2009. The trial
court based its finding that the rate was reasonable on Attorney Mendenhall’s
experience:
{¶21} “The Court finds that the reasonable hourly rate for Attorney Mendenhall is
$250.00 per hour based upon the complex nature of the case, the successful results
obtained, the fee customarily charged by in the locality for similar legal specialization,
the recent changes in Ohio’s eminent domain statute, the novelty of the issues involved
in the case, and their experience and reputation in gaining successful outcomes in
eminent domain and appropriations cases.” Judgment Entry, January 14, 2011, page 5.
{¶22} The court erred in finding $250.00 per hour to be a reasonable rate
attributable to Attorney Corgan without any evidence before the court of her experience,
reputation and ability. The first assignment of error is sustained.
II
{¶23} Appellant argues that R.C. 163.09(G) does not contemplate an award of
expert witness fees as “expenses” and the court erred in awarding appellee $7,250.00
for Robert Smith.
{¶24} R.C. 163.09(G) provides:
{¶25} “(G) If the court determines the matter in the favor of the owner as to the
necessity of the appropriation or whether the use for which the agency seeks to
appropriate the property is a public use, in a final, unappealable order, the court shall
award the owner reasonable attorney's fees, expenses, and costs.”
{¶26} There is an absence of case law in Ohio interpreting the meaning of the
word “expenses” as used in this statute. Appellant argues that had the legislature
intended to include expert witness fees, such fees could have been expressly provided
for as they are in other place in the Ohio Revised Code.
{¶27} In 1953, the Court of Common Pleas for Franklin County determined that
under a prior version of the statute, Gen. Code 3697, reasonable fees paid to expert
witnesses could be recovered as an expense. City of Columbus v. Rugg (1953), 126
N.E.2d 613, 69 Ohio Law Abs. 573. The court noted that statutes implementing the
power of eminent domain must be strictly construed. Id., citing City of Cincinnati v.
Vester, 281 U.S. 439, 50 S.Ct. 360, 74 L.Ed.2d 950; Farber v. City of Toldeo, 104 Ohio
St. 196, 135 N.E.533.
{¶28} In Fortner v. Ford Motor Company (February 9, 1998), Stark App. No.
1997CA00177, 1998 WL 172862, this Court considered an argument that litigation
expenses including acquisition of an expert witness incurred in conjunction with a
Lemon Law claim could be recovered. We based this conclusion on the fact that R.C.
Chapter 1345 was a remedial statute, enacted to protect consumers:
{¶29} “The intent of the statute clearly is to make the consumer whole, and to
restore the purchaser to a position he or she occupied before acquiring the lemon.” Id.
at page 1.
{¶30} Similarly, we find that R.C.163.09(G) is a statute intended to make the
landowner whole. In a case in which the court finds that the appropriation was not
necessary or that the use is not a public use, the landowner is entitled to recover the
costs, fees and expenses he or she had to incur in order to defend against the taking.
We find that because the issues often involve expertise beyond the knowledge of a
layperson, in a case that is beyond the knowledge of an average layperson where the
use of an expert is necessary to an understanding of the case, expert witness fees may
be recovered.
{¶31} The second assignment of error is overruled.
III
{¶32} Appellant argues there is no evidence to demonstrate that Smith was an
expert, that his services were necessary, or that his rate was reasonable.
{¶33} The trial court found:
{¶34} “Further, the Court finds the expert fees of $7,250.00 paid by Defendant to
Robert Smith to be a reasonable expense of the case. Attorney Mendenhall testified
that Mr. Smith is a real estate broker and expert on property evaluation who assisted
him with the engineering issues in the case.” Judgment Entry, January 14, 2011, p. 6-7.
{¶35} The services Smith provided to Attorney Mendenhall were in the nature of
consultation services to gain an understanding of the issues surrounding the
appropriation. Bills from Smith were attached to the application for an award of attorney
fees filed on February 22, 2010.
{¶36} Attorney Pousalides testified that Smith’s early involvement in the case
was reasonable and necessary. Tr. 7. He testified that Smith had qualified as an
expert in eminent domain cases in Summit County. Id.
{¶37} Attorney Conley admitted that the ability of appellee’s attorneys to
understand the engineering issues was paramount to defeating the appropriation.
Although Conley initially stated that it was probably not reasonable to hire an expert, he
later conceded that it was reasonable for an attorney to hire someone to help craft
arguments about engineering, platting and development. Tr. 48-50.
{¶38} The City mounted no real challenge to Smith’s bill, questioning solely the
necessity of hiring someone to assist counsel in understanding the issues in the case.
There is no evidence to suggest that Smith did not actually work the hours claimed in
the fee statement. We find it was not necessary to turn this into a “second mini
litigation” concerning the expertise of Smith. Counsel represented to the court that he
needed Smith’s assistance in preparing for the case. Tr. 57. The court did not err in
finding this expense to be reasonable.
{¶39} The third assignment of error is overruled.
{¶40} The judgment of the Stark County Common Pleas Court, Probate Division,
is affirmed in part and reversed in part. This cause is remanded to that court for further
proceedings according to law.
By: Edwards, J.
Hoffman, P.J. and
Farmer, J. concur
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CITY OF CANTON :
:
Plaintiff-Appellants :
:
:
-vs- : JUDGMENT ENTRY
:
ELAINE R. IRWIN, et al., :
:
Defendants-Appellees : CASE NO. 2011CA00029
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Stark County Court of Common Pleas, Probate Division, is affirmed in
part, and reversed and remanded in part. Costs assessed 67% to appellant and 33% to
appellees.
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JUDGES