Being unable to agree fully with the majority's opinion, I respectfully dissent in part.
I am unable to concur in the majority's disposition of the seventh assignment of error. In that error, appellant does not challenge the amount of attorney fees the trial court awarded to appellees. Rather, appellant contends the trial court erred in awarding attorney fees at all under the standard set forth in the Supreme Court's opinion in MotoristsMut. Ins. Co. v. Brandenburg (1995), 72 Ohio St. 3d 157.
In Brandenburg, the Supreme Court noted the language of R.C. 2721.09, which states that "[w]henever necessary or proper, further relief based on a declaratory judgment or decree previously granted may be given." Interpreting that language to authorize trial courts to assess attorney fees in a declaratory judgment action, the Supreme Court in Brandenburg stated that the trial court's authority is limited only in that the relief must be necessary or proper. Given the broad authority the trial court possesses in determining whether attorney fees are necessary or proper, the trial court's determination will be set aside only on an abuse of discretion. Id.
Here, the trial court stated several reasons for awarding attorney fees, but in particular determined that appellees had no choice but to file a declaratory *Page 704 judgment action in Columbus in order to protect their NHL franchise and to ensure immediate commencement of the arena. Because that rationale and the facts in the record support an award of attorney fees in this case, I would overrule the assigned error.
According to the evidence presented at trial, on June 16, 1997, Lamar Hunt sent a letter to the NHL with copies to at least some of appellees. Hunt's letter noted the dispute between him and John McConnell, indicated Hunt's belief that McConnell's actions constituted a breach of contract and fiduciary duty, and reiterated Hunt's continuing interest in securing a franchise for CHL. Hunt requested that the NHL refrain from processing any competing application McConnell submitted until the dispute between McConnell and Hunt was resolved.
John Wolfe's testimony at the attorney fees hearing corroborated the dispute, stating that appellees filed the declaratory judgment action because Hunt had sent threatening letters which claimed appellees' actions in seeking a franchise were improper. Wolfe testified he was afraid the franchise award to Columbus was in jeopardy, rendering difficult the plans to proceed with construction of the arena. He noted that Hunt's June 16 letter clearly indicated appellant was going to try to block COLHOC from getting the franchise, and that Hunt had the potential of severely limiting the NHL's ability to grant the franchise to Columbus. As a result, appellees filed suit on June 17 in Columbus. On June 25, 1997, Columbus, Ohio was awarded a franchise through COLHOC.
In early July 1997, appellant filed suit in the state of New York against the NHL, Nationwide Mutual Insurance Company, John H. McConnell, John P. McConnell, Wolfe Enterprises, Inc., and Pizzuti Sports, Ltd. In that complaint, appellant and CHL alleged that CHL's application and fee, submitted in compliance with NHL terms and conditions, created a contract pursuant to which the NHL agreed to consider CHL's application; that an implicit term of that contract was the NHL's agreement not to accept applications submitted after the November 1, 1996 application deadline award and ultimately not to grant NHL expansion franchises to parties who had not submitted applications in compliance with the NHL's terms and conditions.
The New York lawsuit alleged that because neither McConnell nor COLHOC had submitted any such application, nor supplied the required $100,000 application fee before June 16, 1997, neither satisfied the NHL's terms and conditions; that by announcing its award to those interests, the NHL breached its contractual obligations with the CHL, causing CHL to suffer irreparable harm if appellees are allowed to maintain the franchise. Accordingly, in that litigation, appellant and CHL sought to enjoin the NHL from granting an NHL expansion franchise for Columbus, Ohio to appellees or allowing any person other than CHL *Page 705 to obtain and maintain such an NHL expansion franchise. By amended complaint, appellant and CHL also sought to impose a constructive trust for the benefit of appellant and CHL on the ownership, profits and proceeds to be derived from COLHOC's ownership and operation of an NHL franchise.
Despite the foregoing evidence, the majority finds the award of attorney fees not necessary or proper. Comparing the foregoing facts to those set forth in Brandenburg, the majority concludes that Brandenburg cannot support an award of fees. While I agree that the facts ofBrandenburg do not parallel those here, Brandenburg does not set forth the factual parameters for an award of attorney fees under the Declaratory Judgment Act; rather, it announces only the legal principle that fees may be awarded if the action is necessary or proper. Indeed, in a factual situation strikingly dissimilar from Brandenburg, this court affirmed the award of attorney fees. Culberson Transp. Serv., Inc. v.John Alden Life Ins. Co. (June 30, 1997), Franklin App. No. 96APE11-1501, unreported (1997 Opinions 2874), discretionary appeal not allowed (1997), 80 Ohio St. 3d 1437.
In Culberson, the plaintiff filed an action in declaratory judgment and to quiet title, seeking a declaration that the mortgage and joinder in mortgage, executed in favor of defendant, did not attach to the fee simple interest in the property at issue. The trial court awarded attorney fees to plaintiff; on appeal, defendant contested the award. In refusing to set aside the award, this court noted that "our latitude does not include substituting our judgment for that of the trial court. A trial court addressing a declaratory judgment action under R.C. 2721.09 has wide discretion in tailoring relief as `necessary and proper.' The trial court in this matter appears to have awarded fees largely on the basis that no other alternative was available to appellees in order to remove the cloud from title to their property. We find no abuse of discretion on the part of the trial court in awarding fees on this basis." Id. at 2884-2885.
The facts here may not present a "cloud on the title," as that term is used in real estate litigation, to appellees' rights in the NHL franchise. Nonetheless, the facts developed in the trial court reflect a "cloud," or potential impairment, on appellees' rights to the franchise: before the franchise was awarded, appellant through Hunt had made clear its intent to attempt to block the award, and subsequent to the award appellant instituted litigation in New York designed to prevent appellees from obtaining and maintaining ownership rights in the franchise. With the franchise in question, the propriety of proceeding with the arena likewise was in question; and if the arena was not built, the franchise was in jeopardy because the NHL would not award the franchise without an arena.
"[D]eclaratory judgment is a remedy in addition to other legal and equitable remedies and is to be granted where the court finds that speedy relief is necessary to the preservation of rights which might otherwise be impaired." *Page 706 Arbor Health Care Co. v. Jackson (1987), 39 Ohio App. 3d 183, citingHerrick v. Kosydar (1975), 44 Ohio St. 2d 128. The facts here present the need for speedy relief to determine that the awarded franchise would remain with appellees, and that the plans to immediately construct an arena would not be futile. Had appellees refrained from filing the present lawsuit, they would be litigating the very issues in New York, outside the context of declaratory judgment where speedy relief is a recognized priority.
In the final analysis, to ensure speedy relief, to finally settle appellees' rights to the NHL franchise, and to allow with the immediate construction of the necessary arena, the trial court properly could find on this record that appellees properly sought declaratory relief in Columbus. Unquestionably, appellees received also the benefit of litigating this action in a local forum. Nonetheless, that additional factor does not undermine the legal propriety of bringing the action under the Declaratory Judgment Act to remove the questions appellant had created in appellees' rights to the NHL franchise.
Because the trial court cited those very concerns in ascertaining appellees' rights to attorney fees, I am unable to find the trial court abused its discretion in awarding those fees. To hold otherwise substitutes our judgment for that of the trial court. Accordingly, I would overrule appellants' seventh assignment of error.