[Cite as Baaron, Inc. v. Davidson, 2017-Ohio-7783.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
BAARON, INC., dba TDP C.A. No. 16AP0052
CONTRACTING
Appellant
APPEAL FROM JUDGMENT
v. ENTERED IN THE
COURT OF COMMON PLEAS
NORMA DAVIDSON COUNTY OF WAYNE, OHIO
CASE No. 11-CV-0460
Appellee
DECISION AND JOURNAL ENTRY
Dated: September 25, 2017
HENSAL, Presiding Judge.
{¶1} Baaron, Inc., doing business as TDP contracting, appeals a judgment entry of the
Wayne County Court of Common Pleas that awarded attorney fees to Norma Davidson. For the
following reasons, this Court reverses.
I.
{¶2} The facts of this case were set out in Baaron Inc. v. Davidson, 9th Dist. Wayne
No. 13CA0050, 2015-Ohio-4217. Relevant to this appeal, in Davidson this Court reversed the
trial court’s award of attorney fees because it “did not state its basis for awarding the fees, which
differed from the amount requested by Ms. Davidson.” Id. at ¶ 34. We remanded the case for
the trial court “to set forth its basis for the fee determination.” Id.
{¶3} On remand, the parties agreed that the trial court should decide the attorney fee
issue based on the evidence that was presented at a hearing on attorney fees in September 2013.
After reviewing the evidence submitted by Ms. Davidson, it ordered Baaron, Inc. to pay her
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$9,662.50 in attorney fees. Baaron, Inc. has appealed, assigning as error that the trial court
incorrectly awarded Ms. Davidson attorney fees and treble damages.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN AWARDING ATTORNEY’S FEES AND
TREBLE DAMAGES IN FAVOR OF DAVIDSON.
{¶4} Baaron, Inc. argues that the trial court’s award of attorney fees was arbitrary
because Ms. Davidson did not submit any evidence that established their reasonableness. As we
noted in our previous decision, a trial court’s determination on an award of attorney's fees should
not be reversed unless it abused its discretion. Id. at ¶ 32, citing Bittner v. Tri–County Toyota,
Inc., 58 Ohio St.3d 143, 146 (1991). An abuse of discretion “implies that the court’s attitude is
unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983). An appellate court may not substitute its judgment for that of the trial court when
applying the abuse-of-discretion standard. Berk v. Matthews, 53 Ohio St.3d 161, 169 (1990).
{¶5} “[T]he 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.” Bittner at 145, quoting Hensley v. Eckerhart, 461 U.S. 424, 433
(1983). “‘What is reasonable,’ for purposes of calculating attorney fees, ‘is a question of fact[,
and t]he trial court must have evidence before it probative of that issue in order to make the
finding.’” (Alterations in original.) Mann v. Mendez, 9th Dist. Lorain No. 04CA008562, 2005-
Ohio-3114, ¶ 22, quoting Kimball v. Austin, 9th Dist. Lorain No. 01CA007760, 2001 WL
866260, *2 (Aug. 1, 2001). “The party seeking an award of attorney fees bears the burden of
proving their reasonableness.” Zimmerman v. U.S. Diamond & Gold Jewelers, Inc., 2d Dist.
Montgomery No. 14680, 1995 WL 100820, *9 (Mar. 8, 1995).
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{¶6} At the hearing on attorney fees, Ms. Davidson presented a copy of a bill for
$3,049.04 that she received from her original attorney in the action. There was no detail about
the number of hours the attorney worked on Ms. Davidson’s case or the services he provided, but
Ms. Davidson testified that she thought the fees he had charged were fair and reasonable. Ms.
Davidson also presented a copy of the fee agreement she had entered into with her second
attorney, which indicated that his hourly rate was $125. Ms. Davidson testified that she thought
the rate was fair and reasonable. Ms. Davidson also submitted an itemized hours report that
detailed all of the hours her second attorney had spent on her case. Ms. Davidson testified that
she believed the hours incurred by her second attorney were fair and reasonable.
{¶7} In its decision, the trial court noted that Ms. Davidson’s original attorney had
withdrawn on the eve of trial because he had accepted a magistrate position. It noted that
consumer sales practices are challenging and that Ms. Davidson had difficulty finding new
counsel. It found that, despite the challenge, Ms. Davidson’s second attorney had picked up the
file in her case and “came to [her] rescue.” It concluded that his “hourly rate is more than
reasonable given the time crunch he was under and circumstances surrounding his late entry into
the case.” It, therefore, multiplied the 77.3 hours Ms. Davidson’s second attorney had worked on
the case by his hourly rate and awarded her $9662.50 in attorney fees. It did not award her
anything for her original attorney’s work on the action.
{¶8} Although the trial court determined that the second attorney’s hourly rate was
reasonable, it did not determine “the number of hours reasonably expended on the litigation[.]”
Bittner, 58 Ohio St.3d 143, 145. Accordingly, we cannot say that the trial court complied with
Bittner when it analyzed whether to award attorney fees to Ms. Davidson. Furthermore, even
assuming that a finding of reasonableness is implicit in the trial court’s decision, there was
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insufficient evidence in the record to support such a finding. This Court has previously
determined that lay testimony alone cannot establish the reasonableness of the time an attorney
spent on a case. Willett v. Willett, 9th Dist. Summit No. 22167, 2005-Ohio-342, ¶ 11, 15
(concluding that trial court abused its discretion when it awarded attorney fees when the only
evidence regarding the reasonableness of the fees was client’s testimony). We, therefore,
conclude that the trial court abused its discretion when it awarded $9,662.00 in attorney fees to
Ms. Davidson. Baaron, Inc.’s assignment of error is sustained.
III.
{¶9} Baaron, Inc.’s assignment of error is sustained. The judgment of the Wayne
County Court of Common Pleas is reversed, and this matter is remanded for further proceedings
consistent with this decision.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed to Appellee.
JENNIFER HENSAL
FOR THE COURT
SCHAFER, J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
TIMOTHY B. PETTORINI, Attorney at Law, for Appellant.
MATTHEW J. MALONE, Attorney at Law, for Appellee.