Kellard v. Cincinnati

[Cite as Kellard v. Cincinnati, 2021-Ohio-1420.]

IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

TIMOTHY KELLARD, : APPEAL NOS. C-200024
C-200029
Plaintiff-Appellee/Cross- : TRIAL NO. A-1903829
Appellant,
:
vs.
: O P I N I O N.
CITY OF CINCINNATI,
:
Defendant-Appellant/Cross-
Appellee. :

Civil Appeals From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed in Part and Affirmed in Part as Modified

Date of Judgment Entry on Appeal: April 23, 2021

Phillips Law Firm, John H. Phillips and Kyle E. Hackett, and Robb S. Stokar for
Plaintiff-Appellee/Cross-Appellant,

Andrew W. Garth, Interim City Solicitor, and Emily Smart Woerner, Deputy City
Solicitor, for Defendant-Appellant/Cross-Appellee.
 OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Judge.

{¶1} For two years after the Ohio General Assembly passed legislation

invalidating its gun-related employment policies, the city of Cincinnati dragged its

feet, failing to implement the necessary revisions. Frustrated by this delay, a

disgruntled employee sued, which spurred the cogs of local government into motion.

Within four days, and before the trial court ever convened a hearing in this case, the

city’s policies complied with the relevant statute. Yet the employee remained

unsatisfied, and he convinced the trial court that only injunctive relief could prevent

the city’s future defiance of Ohio law.

{¶2} The trial court awarded a litany of remedies in this case, including a

permanent injunction, declaratory judgment, costs, attorneys’ fees, and damages.

The parties, in turn, present us with a variety of issues on appeal and cross-appeal.

We conclude that, although the employee is entitled to some attorneys’ fees, the trial

court exceeded the bounds of its subject matter jurisdiction by awarding declaratory

and injunctive relief for a purely speculative future harm. We sustain the city’s two

assignments of error in part, overrule the employee’s two cross-assignments of error,

and modify the trial court’s attorney fee award.

I.

{¶3} The origins of this case stretch back to 2017, when the Ohio General

Assembly enacted the current form of R.C. 2923.1210. The statute reads, in

pertinent part:

(A) A business entity, property owner, or public or private

employer may not establish, maintain, or enforce a policy or rule that

prohibits or has the effect of prohibiting a person who has been issued

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a valid concealed handgun license from transporting or storing a

firearm or ammunition when both of the following conditions are met:

(1) Each firearm and all of the ammunition remains inside

the person’s privately owned motor vehicle while the person is

physically present inside the motor vehicle, or each firearm and

all of the ammunition is locked within the trunk, glove box, or

other enclosed compartment or container within or on the

person’s privately owned motor vehicle;

(2) The vehicle is in a location where it is otherwise

permitted to be.

Under former (and current) R.C. 9.68, R.C. 2923.1210 preempts all contradictory

local regulation of concealed handgun license-carriers. If a party “prevails in a

challenge to an ordinance, rule, or regulation as being in conflict” with R.C.

2923.1210 (and by extension, R.C. 9.68(A)), then the court “shall award costs and

reasonable attorney fees.” (Emphasis added.) Former R.C. 9.68(B).

{¶4} At the time of R.C. 2923.1210’s promulgation, two of the city’s

policies—Human Resources Policy and Procedure 5.1 (“H.R. 5.1”) and Administrative

Regulation 49 (“Admin. Reg. 49”)—ran afoul of the new statute. The city recognized

the issue and began discussing the need to revise the policies, shortly in the

aftermath of the legislative change. But for unknown reasons, these efforts stalled,

and the offending provisions remained on the books.

{¶5} Fast forward two years to the present conflict. On August 15, 2019,

Timothy Kellard—a city of Cincinnati employee—filed a complaint and motion for a

temporary restraining order (“TRO”) and preliminary injunction against the city. As

a valid CCW license-holder, Mr. Kellard complained that he desired “to lawfully store

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his handgun in his privately-owned vehicle in a city parking lot,” but had “never done

so because he reasonably fear[ed] discipline, up to and including termination.” He

alleged that the city was in active violation of R.C. 2923.1210, that it was enforcing its

illegal policies, and that those policies created a “chilling effect on other City

employees” with concealed-carry licenses. As remedies for the city’s violation of R.C.

2923.1210, Mr. Kellard sought declaratory judgment, injunctive relief, costs and

attorneys’ fees, and compensatory and punitive damages.

{¶6} The timeline of this case proves critical to its outcome, but the parties

disagree on a few key facts. The city maintains that it stopped enforcing H.R. 5.1 and

Admin. Reg. 49 after the enactment of R.C. 2923.1210 in 2017, and Mr. Kellard

remained free to store his gun in his car on city property notwithstanding the policies

in question. It points to draft policy revisions and internal correspondence as proof

that formal changes were forthcoming—just delayed a bit. Mr. Kellard, for his part,

insists that the policies were being enforced, he “feared discipline and/or retaliation

for highlighting the City’s non-compliance with Ohio law,” and he therefore did not

feel comfortable asking a supervisor, human resources professional, or any other city

representative about the policies. The parties agreed that Mr. Kellard never inquired

about the policies or communicated his desire to store his firearm in his vehicle. But

the city also conceded that in the two years that passed between enactment of R.C.

2923.1210 and Mr. Kellard’s lawsuit, it never formally revised its policies—nor did it

notify employees of its intent not to enforce them.

{¶7} By the time of the trial court’s initial hearing on Mr. Kellard’s

requested TRO, one thing was clear: the offending portions of H.R. 5.1 and Admin.

Reg. 49 were no longer on the books. Between August 15 (when Mr. Kellard filed

suit) and August 19 (when the trial court issued its first order in this case), the city

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formally amended both policies to bring them in line with Ohio law. Although Mr.

Kellard did not contest that the amended policies satisfied R.C. 2923.1210, he

nevertheless continued his quest for injunctive relief against the city, arguing that

without a permanent injunction, the city remained free to return to (and presumably

enforce) its erstwhile policies.

{¶8} From the outset of the August 19 TRO hearing in this case, the city

maintained that any justiciable controversy evaporated with its successful overhaul

of H.R. 5.1 and Admin. Reg. 49. Unswayed by the challenge to its subject matter

jurisdiction, the trial court granted Mr. Kellard’s motion for a TRO. Following a

September 11 hearing on injunctive relief, the trial court explicitly found Mr.

Kellard’s suit justiciable for both declaratory judgment and injunctive relief. It also

held that the city changed its policies “in response to the lawsuit filed by Timothy

Kellard,” which—in the trial court’s view—rendered him a “prevailing party” entitled

to attorneys’ fees under former R.C. 9.68(B). The trial court entered a permanent

injunction against the city, prohibiting it:

directly and indirectly, from changing any aspect of its Human

Resources Policies and Procedures of its Administrative Regulations to

prohibit or have the effect of prohibiting City employees who are valid

CCW License holders from transporting and storing their firearms in

their private vehicles so long as the employees follow the statutory

requirements set forth in R.C. 2923.1210 and R.C. 9.68.

A few weeks later, the trial court convened an additional hearing on attorneys’ fees

and damages. It awarded approximately $47,000 in attorneys’ fees to Mr. Kellard’s

counsel and $702.96 in damages to Mr. Kellard for “time and gas spent retrieving his

firearm after work every day.” The city of Cincinnati now appeals the trial court’s

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grant of injunctive and declaratory relief, as well as its award of fees and damages.1

Mr. Kellard cross-appeals the trial court’s award of attorneys’ fees and damages.

II.

{¶9} In the first issue framed by its first assignment of error, the city

challenges the trial court’s exercise of jurisdiction to enter injunctive and declaratory

relief. We review a trial court’s determination on the issue of justiciability for abuse

of discretion. Fulton RR. Co. v. City of Cincinnati, 1st Dist. Hamilton No. C-150373,

2016-Ohio-3520, ¶ 7, citing Arnott v. Arnott, 132 Ohio St.3d 401, 2012-Ohio-3208,

972 N.E.2d 586, ¶ 13. Reversal is “warranted only if the court’s decision regarding

justiciability was unreasonable, arbitrary, or unconscionable.” Id.

{¶10} “The Ohio Constitution mandates that the subject-matter jurisdiction

of the common pleas courts is limited to ‘justiciable matters.’ ” Waldman v. Pitcher,

2016-Ohio-5909, 70 N.E.3d 1025, ¶ 20 (1st Dist.), quoting the Ohio Constitution,

Article IV, Section 4(B). A justiciable matter is “more than a disagreement; the

parties must have adverse legal interests.” Kincaid v. Erie Ins. Co., 128 Ohio St.3d

322, 2010-Ohio-6036, 944 N.E.2d 207, ¶ 10. A party seeking a declaratory judgment

“need not have sustained a cognizable loss, [but] he or she must face a set of

circumstances that exhibits the imminent threat of loss * * * .” Pitcher at ¶ 23, citing

MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127, 127 S.Ct. 764, 166 L.Ed.2d

604 (2007). This “danger or dilemma of the plaintiff must be present, and it must

not be contingent on the happening of a hypothetical future event.” Fulton at ¶ 9,

1
Although the city contests Mr. Kellard’s entitlement to damages, it never challenges the
calculation or amount of the $702.96 awarded. In light of our conclusion that Mr. Kellard
prevailed in his action, therefore, we have no occasion to scrutinize this damage award in the
absence of any developed argument by the city.

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citing Mid-Am. Fire & Cas. Co. v. Heasley, 113 Ohio St.3d 133, 2007-Ohio-1248, 863

N.E.2d 142, ¶ 9.

{¶11} Two Ohio appellate courts have squarely addressed the issue before us

of justiciability and former R.C. 9.68. First, in 2007, the Tenth District confronted a

challenge to two Columbus ordinances regulating assault weapons. Smolak v.

Columbus, 10th Dist. Franklin No. 07AP-373, 2007-Ohio-4671, ¶ 2. The plaintiff

sought a declaratory judgment that the ordinances violated R.C. 9.68. Id. The city

countered with a motion to dismiss, challenging justiciability because the Columbus

police were no longer enforcing the ordinances (a fact that the Smolak plaintiff did

not dispute). Id. at ¶ 4, 5, 14. On appeal, the Tenth District agreed that the city’s

nonenforcement of the ordinances rendered the suit non-justiciable. It reasoned

that, despite the fact that the ordinances remained on the books, the city’s

“accept[ance of] the preemptions of the regulation of assault weapons * * * as a result

of the enactment of R.C. 9.68 is not open to serious dispute.” Id. at ¶ 14. It also

found the “suggestion that the City of Columbus might some day decide it can

disregard the clear requirements of the Ohio Revised Code and choose to attempt to

enforce the preempted city ordinances” to be “speculative at best,” and therefore

insufficient to generate a present controversy between the parties. Id.

{¶12} Similarly, in Ohioans for Concealed Carry, Inc. v. Oberlin, the Ninth

District addressed a 2017 challenge to a city ordinance prohibiting possession of

firearms in public parks. Ohioans for Concealed Carry, Inc. v. Oberlin, 2017-Ohio-

36, 72 N.E.3d 676 (9th Dist.). Like Mr. Kellard, the Oberlin plaintiff sought a

declaratory judgment, injunctive relief, and attorneys’ fees. Id. at ¶ 3. Before the

trial court entered judgment—but after the city filed its answer to the complaint—the

Oberlin city council repealed the offending ordinances. Id. at ¶ 4, 5. The parties

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cross-moved for summary judgment, with the city alleging that repeal of the

ordinances rendered the suit non-justiciable. Id. at ¶ 5. The Ninth District agreed

that, in the wake of this repeal, “no justiciable controversy remain[ed]” as to the

lawfulness of the ordinances. Id. at ¶ 24.

{¶13} Here, by the time that the trial court reached its August 19, 2019

hearing on Mr. Kellard’s motion for a temporary restraining order, all parties agree

that the city’s policies complied with R.C. 2923.1210. The trial court nevertheless

held that the case presented a justiciable controversy because the city “has the ability

to change its policies back to the pre-lawsuit versions.”

{¶14} But the trial court’s conclusion on these grounds contravenes the

caselaw requiring a concrete controversy. As in Oberlin, Mr. Kellard’s “assertion that

[the city] might at some time in the future enact or reenact ordinances that violate

R.C. 9.68 is too speculative to constitute a present dispute.” (Emphasis in original.)

See Oberlin at ¶ 24. Mr. Kellard essentially complains that, without a permanent

injunction, the city will be free to flout R.C. 9.68 and 2923.1210 in the future. But

“[n]o reason exists to have a court order which merely restates the mandates of the

Ohio Revised Code.” Smolak, 10th Dist. Franklin No. 07AP-373, 2007-Ohio-4671, at

¶ 14. The argument for a present controversy in this case is even more speculative

than in Smolak, where the offending ordinances were still on the books (and simply

unenforced). Like all municipalities—and all individuals, for that matter—the city

has a basic duty to follow the laws of this state. It is not the proper role of the courts

to permanently enjoin a purely hypothetical future transgression of the Ohio Revised

Code. See Colosseo USA, Inc. v. University of Cincinnati, 1st Dist. Hamilton No. C-

180223, 2019-Ohio-2026, ¶ 18 (“To be justiciable * * * [t]he controversy must be ripe

for judicial review, so it ‘cannot be dependent on the occurrence or nonoccurrence of

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future events.’ ”), quoting William Powell Co. v. Onebeacon Ins. Co., 2016-Ohio-

8124, 75 N.E.3d 909, ¶ 47 (1st Dist.); Riddick v. MLS Homes, LLC, 1st Dist. Hamilton

No. C-190258, 2020-Ohio-897, ¶ 11 (“To be justiciable, the danger or dilemma faced

by the plaintiff must be present, and not merely possible, remote, or contingent on

the happening of future acts.”).

{¶15} Accordingly, we hold that the trial court abused its discretion when it

determined that a justiciable controversy existed as to the lawfulness of the city’s

former policies. We therefore sustain the city’s first assignment of error in part, and

reverse the trial court’s grant of a permanent injunction and its declaratory judgment

that the city’s former policies violated former R.C. 9.68 and 2923.1210. This holding

does not dispose of the city’s full appeal, however, because we must still determine

Mr. Kellard’s entitlement to attorneys’ fees under former R.C. 9.68(B).

III.

{¶16} In another issue raised by its first assignment of error, the city

challenges the trial court’s determination that Mr. Kellard constituted a “prevailing

party” entitled to attorneys’ fees under former R.C. 9.68(B). It contests both the

power of the court to award fees (in light of the justiciability problems delineated

above) and the merits of the trial court’s determination that Mr. Kellard “prevailed.”

We address the two arguments in turn and find this portion of the city’s first

assignment of error unavailing.

A.

{¶17} First, the city insists that if we reverse the trial court’s grant of

declaratory and injunctive relief on the grounds that Mr. Kellard did not present a

justiciable controversy (as we just have), we must also revoke his prevailing party

status—and likewise, any entitlement to attorneys’ fees. But this conclusion does not

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automatically follow: we must still inquire whether an independent, justiciable

controversy existed on the issue of whether Mr. Kellard “prevail[ed] in [his]

challenge” to H.R. 5.1 and Admin. Reg. 49. See former R.C. 9.68(B).

{¶18} The previous version of R.C. 9.68, in effect when Mr. Kellard filed his

suit, provided in relevant part:

(A) The individual right to keep and bear arms, being a fundamental

individual right that predates the United States Constitution and Ohio

Constitution, and being a constitutionally protected right in every part

of Ohio, the general assembly finds the need to provide uniform laws

throughout the state regulating the ownership, possession, purchase,

other acquisition, transport, storage, carrying, sale, or other transfer of

firearms, their components, and their ammunition. Except as

specifically provided by the United States Constitution, Ohio

Constitution, state law, or federal law, a person, without further

license, permission, restriction, delay, or process, may own, possess,

purchase, sell, transfer, transport, store, or keep any firearm, part of a

firearm, its components, and its ammunition.

(B) In addition to any other relief provided, the court shall award costs

and reasonable attorney fees to any person, group, or entity that

prevails in a challenge to an ordinance, rule, or regulation as being in

conflict with this section.

Under former R.C. 9.68(B), a party who “prevails in a challenge” to a policy

conflicting with R.C. 9.68(A) “shall” be awarded “costs and reasonable attorney fees.”

Neither “prevails” nor “challenge” is defined by the statute, which means that we

must accord each word “its plain and ordinary meaning.” Anderson v. Barclay’s

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Capital Real Estate, Inc., 136 Ohio St.3d 31, 2013-Ohio-1933, 989 N.E.2d 997, ¶ 16.

In Oberlin, the Ninth District turned to Black’s Law Dictionary to define “prevail” as

“[t]o obtain the relief sought in an action; to win a lawsuit[.]” Oberlin, 2017-Ohio-

36, 72 N.E.3d 676, at ¶ 28. It likewise defined “challenge” as “[a]n act or instance of

formally questioning the legality or legal qualifications of a person, action or thing[.]”

Id. It then held that, even where the plaintiff did not present a justiciable

controversy on the lawfulness of the underlying ordinances, the plaintiff might still

be entitled to attorneys’ fees by virtue of having achieved the “relief sought” (i.e., the

repeal of the ordinances). Id. at ¶ 33. It considered the issue of attorneys’ fees to be

independently justiciable, and remanded the case for fact-finding on causation. Id.

{¶19} We find the Oberlin court’s reasoning on the independent justiciability

of a former R.C. 9.68 claim for attorneys’ fees persuasive. Mr. Kellard certainly

engaged in an act “formally questioning” the legality of the city’s policies when he

filed his complaint, and a controversy existed as to his resulting entitlement to

attorneys’ fees. Moreover, Mr. Kellard alleged that he suffered past damages as a

result of the city’s unlawful policies sufficient to trigger monetary relief, creating

“adverse legal interests” between the parties (particularly when the city agreed in its

answer that he had suffered some damages). See Kincaid, 128 Ohio St.3d 322, 2010-

Ohio-6036, 944 N.E.2d 207, at ¶ 10. The fact that declaratory and injunctive relief

may be unavailable for a particular plaintiff does not strip justiciability of “an action

where a person has been injured and seeks damages.” (Emphasis added.)

Heartland of Urbana OH, LLC v. McHugh Fuller Law Group, PLLC, 2016-Ohio-

6959, 72 N.E.3d 23, ¶ 49 (2d Dist.).

{¶20} In conclusion, although we hold that the trial court lacked subject

matter jurisdiction over Mr. Kellard’s claim for injunctive and declaratory relief on

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the propriety of the city’s former policies after the city revised the policies, we find

the trial court enjoyed subject matter jurisdiction to adjudicate Mr. Kellard’s status

as one who “prevails in a [R.C. 9.68] challenge” and is therefore entitled to attorneys’

fees. See former R.C. 9.68(B). We must next consider the merits of the trial court’s

decision that Mr. Kellard did, in fact, “prevail in [his] challenge.”

B.

{¶21} The trial court held that the city changed its policies “in response to

the lawsuit filed by Timothy Kellard,” rendering Mr. Kellard a “prevailing party”

entitled to attorneys’ fees. We need not defer to this finding on appeal, since “the

determination of a plaintiff as the prevailing party is subject to a de novo standard.”

Thomas v. Cleveland. 176 Ohio App.3d 401, 2008-Ohio-1720, 892 N.E.2d 454, ¶ 23

(8th Dist.); see Simbo Properties, Inc. v. M8 Realty, LLC, 2019-Ohio-4361, 149

N.E.3d 941, ¶ 36 (8th Dist.) (“Although the award of attorney fees is subject to review

under an abuse of discretion standard, the determination of a plaintiff as the

‘prevailing party’ is subject to review under a de novo standard.”). But before we

debate issues of causation, we must first address a novel issue in the First District:

how to properly define a party who “prevails in a challenge” under former R.C.

9.68(B).

{¶22} In drafting former R.C. 9.68, the General Assembly chose precise

language that is—so far as we can tell—unique in the Ohio Revised Code. It awarded

“costs and reasonable attorney fees” not to the “prevailing party” (a commonly-used

phrase in other Ohio and federal statutes), but instead to any party who “prevails in a

challenge” under former R.C. 9.68(A). See former R.C. 9.68(B); contrast R.C.

3127.42(A) (“A court shall award the prevailing party in an action to enforce a child

custody determination * * * necessary and reasonable expenses * * * ); R.C. 1925.15

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(“The actual disbursements of the prevailing party for filing fees, execution fees, and

other court fees may be allowed as costs.”); R.C. 2335.39(B)(1) (awarding fees to

“prevailing eligible party”); R.C. 119.092(B)(1) (same). When interpreting and

applying a fee-shifting statute, “we must give effect to the wording of the statute."

Bergman Group v. OSI Dev., LTD, 12th Dist. Butler No. CA2009-12-080, 2010-

Ohio-3259, ¶ 72. To interpret former R.C. 9.68, then, we must specifically inquire

what it means for a plaintiff (including one whose underlying claim is moot) to

“prevail in a challenge” under former R.C. 9.68(A).

{¶23} Once again, we turn to Oberlin for guidance. There, the Ninth District

held that a party prevails in a former R.C. 9.68 challenge when evidence suggests

that “but for this lawsuit, the [unlawful and repealed] ordinances might well still be

in effect.” Oberlin, 2017-Ohio-36, 72 N.E.3d 676 at ¶ 33. The Oberlin court rejected

the proposition that a party must receive a formal court order in order to “prevail” in

its R.C. 9.68 “challenge.” Id. Instead, it considered the key question to be “whether

[the plaintiff] ‘obtained the relief sought’ by virtue of filing the lawsuit,” including

repeal of the offending policies or ordinances “as [a] direct result of the lawsuit.” Id.

The Oberlin court justified its broad interpretation of a party who “prevails in a

challenge” on the grounds of the legislative intent “to deter municipalities from

maintaining ordinances that conflict with, or impose additional requirements on the

aspects of gun ownership enumerated in subsection (A).” Oberlin at ¶ 30. “If

municipalities could simply avoid any exposure for fees under the statute by

repealing the ordinance at issue after suit was filed but prior to judgment,” the court

reasoned, “a person or entity challenging the ordinance would always lose.” Id.

After finding that the Oberlin plaintiff tendered “some evidence * * * that, but for this

lawsuit, the ordinances might well still be in effect,” the Ninth District overruled the

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trial court’s grant of summary judgment against the plaintiff and remanded the case

for additional fact-finding on causation. Id. at ¶ 33.

{¶24} We are persuaded that Oberlin’s causal approach to the question of

whether a party “prevails in a challenge” under former R.C. 9.68(B) offers the correct

reading of the statute. A plaintiff who filed a former R.C. 9.68 suit, then found her

claim for declaratory and injunctive relief mooted by the defendant’s voluntary

action, could still “prevail in [her] challenge” if she could show that her lawsuit

represented the but-for cause of the change. Such an individual would then be

entitled to “costs and reasonable attorney fees.” See former R.C. 9.68(B).

{¶25} We pause to note that this reading of former R.C. 9.68 is rendered

largely obsolete by the General Assembly’s latest amendments to the statute,

pursuant to which “the court shall award reasonable expenses” if the offending

“ordinance, rule, regulation, resolution, practice, or action or the manner of its

enforcement is repealed or rescinded after the civil action was filed but prior to a

final court determination of the action.” See R.C. 9.68(B), (B)(2). The new R.C. 9.68

essentially eliminates the need for a plaintiff in Mr. Kellard’s situation to show

causation—but it did not come into effect until after his suit was filed.

{¶26} Here, the city argues that its evidence of progress toward revision of

H.R. 5.1 and Admin. Reg. 49 prior to Mr. Kellard’s lawsuit forecloses a finding of but-

for causation under former R.C. 9.68, and the trial court therefore erred in its

decision to award fees. The city submitted records of previous drafts of the policies

and emails stretching back to 2017, which discussed the need for revisions and

proposed changes that would have aligned the policies with R.C. 2923.1210.

{¶27} But the city’s inching towards compliance with Ohio law is not the

same as actual compliance with Ohio law—particularly when that progress took

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place behind closed doors. The city never notified its employees of its intent not to

enforce H.R. 5.1 and Admin. Reg. 49. Nor did it offer an explanation for the two-year

delay between passage of R.C. 2923.1210 and its revision of the offending policies.

Mr. Kellard’s case for but-for causation would certainly be stronger if he had notified

his employer of his concerns prior to filing suit, and the city had rebuffed his request.

However, R.C. 2923.1210 and R.C. 9.68 place the onus on the city—and not its

employees—to ensure compliance with Ohio law. We can of course imagine evidence

that the city could have marshalled to defeat the causation claim, but it simply

doesn’t appear in this record. Therefore, we agree with Mr. Kellard that two years

represents an unreasonable amount of time for the city to neglect the necessary

revisions, and that the city’s prompt action to amend the policies in the aftermath of

his suit weighs heavily in favor of a finding of causation.

{¶28} In conclusion, we find that Mr. Kellard satisfies the standard for a

party who “prevails in a challenge” under former R.C. 9.68(B), and the trial court

correctly found Mr. Kellard to be entitled to “costs and reasonable attorney fees.” We

overrule the portion of the city’s first assignment of error challenging Mr. Kellard’s

overarching entitlement to costs and fees.

IV.

{¶29} Having determined that Mr. Kellard “prevail[ed] in a challenge” under

former R.C. 9.68, we must now consider whether the trial court erred in its

assessment of “reasonable attorney fees.” See former R.C. 9.68(B). Both parties to

this appeal contest the trial court’s award. In its second assignment of error, the city

asserts that the trial court “erred in granting damages, attorneys’ fees, and costs.” In

his two cross-assignments of error, Mr. Kellard counters that the trial court should

have awarded greater attorneys’ fees and damages. We review all three assignments

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for abuse of discretion. See Hensel v. Childress, 2019-Ohio-3934, 145 N.E.3d 1159,

¶ 15 (1st Dist.) (“An award of attorney fees is reviewed for an abuse of discretion.”).

A.

{¶30} In his first assignment of error on cross-appeal, Mr. Kellard contends

that the trial court abused its discretion by awarding less than his requested amount

of attorneys’ fees, specifically targeting the court’s downward adjustment from the

hourly rates requested by counsel.

{¶31} The Ohio Supreme Court embraces a “lodestar” approach to attorney

fee awards, under which “the starting point for determining attorney fees is * * *

‘ “the number of hours reasonably expended on the litigation multiplied by a

reasonable hourly rate.” ’ ” Phoenix Lighting Group, LLC v. Genlyte Thomas Group,

LLC, 160 Ohio St.3d 32, 2020-Ohio-1056, 153 N.E.3d 30, ¶ 10, quoting Bittner v.

Tri-County Toyota, Inc., 58 Ohio St.3d 143, 145, 569 N.E.2d 464 (1991), quoting

Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). A

reasonable hourly rate reflects the “prevailing market rate in the relevant

community, given the complexity of the issues and the experiences of the attorney.”

(Internal citation omitted.) Id. at ¶ 11, quoting State ex rel. Harris v. Rubino, 156

Ohio St.3d 296, 2018-Ohio-5109, 126 N.E.3d 1068, ¶ 4. A trial court may benchmark

a reasonable rate “against rates recently approved for equally experienced attorneys

in comparably complex cases.” Rubino at ¶ 4.

{¶32} Counsel for Mr. Kellard requested an hourly rate based on the Laffey

Matrix (which benchmarks federal court rates in Washington, D.C.) and a previous

Sixth Circuit case where counsel received fees. However, the trial court held that the

requested attorneys’ fees exceeded the threshold of reasonableness, reducing the

hourly rate based on “the per hour fee of a similar gun rights case that was handled

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by an attorney with expertise in the gun rights field.” Mr. Kellard complains that the

trial court’s analysis was too “thin” to support a downward departure from the

requested rates, both because the trial court “did not indicate as to which case it was

referring” and because—in Mr. Kellard’s view—this “was not a ‘gun rights case.’ ”

{¶33} Any confusion on Mr. Kellard’s part seems a bit exaggerated given that

the case referenced by the trial court was Buckeye Firearms Foundation v. City of

Cincinnati, Hamilton C.P. No. A-1803098, 2019 WL 11731082 (February 11, 2019), a

high-profile case which the trial court decided just two months before its hearing on

fees for Mr. Kellard’s claim. Indeed, the city argued below that Buckeye Firearms

presented an appropriate (and arguably generous) benchmark for fees, because it

was a local R.C. 9.68 case brought by experts in R.C. 9.68 litigation and decided by

the same judge. Counsel for Mr. Kellard did not object to this line of argument, and

even conceded that his office “didn’t have [everyday] experience” in R.C. 9.68

litigation prior to bringing this case.

{¶34} Moreover, Mr. Kellard’s insistence on appeal that this is not a “gun

rights case” strains credulity in light of comments made by counsel below. During

the hearing on attorney fees, Mr. Kellard’s counsel invited the court to enhance the

fees given the controversial nature of this matter as a “gun rights case,” one that

risked counsel’s firms being labeled as “gun extremist[s]” and losing clients. It is

hardly fair for Mr. Kellard’s counsel to tell the trial court that heightened fees are

justified in this “gun rights case,” then turn around on appeal and fault the trial court

for treating the case as such.

{¶35} Under Phoenix, the trial court acted within its discretion in

benchmarking a “reasonable attorney fee” in this case against another “fee

customarily charged in the locality for similar legal services.” Phoenix, 160 Ohio

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St.3d 32, 2020-Ohio-1056, 153 N.E.3d 30, at ¶ 12, quoting Prof.Cond.R. 1.5(a). We

see no reason to disallow the trial court’s use of a two-month-old case, heard by the

same court, involving nearly identical claims and more experienced counsel, as a

benchmark. Therefore, we overrule Mr. Kellard’s first cross-assignment of error and

uphold the trial court’s determination that the reasonable hourly wage in this case

was $270 per hour for any work not involving a court visit and $335 per hour for

work involving a court appearance.

B.

{¶36} Our assessment of attorneys’ fees in this case does not end with our

decision to overrule Mr. Kellard’s first cross-assignment of error, because the city

raises its own challenge to the propriety of the trial court’s award. Below, the city

argued that the number of hours Mr. Kellard’s counsel expended on this case was

unreasonable, in part because he “received the relief he requested before any orders

were issued.” It recycles this issue on appeal by contesting the trial court’s fee award

and asserting that Mr. Kellard did not properly “prevail” in his claims for injunctive

and declaratory relief. Accordingly, we must review both components of the trial

court’s attorneys’ fees award: the “reasonable hourly rate” unsuccessfully contested

by Mr. Kellard, and the “hours reasonably expended” piece that completes the

lodestar calculation. See Phoenix Lighting Group at ¶ 10.

{¶37} “Ohio has long adhered to the ‘American rule’ with respect to recovery

of attorney fees: a prevailing party in a civil action may not recover attorney fees as a

part of the costs of litigation.” Wilborn v. Bank One Corp., 121 Ohio St.3d 546,

2009-Ohio-306, 906 N.E.2d 396, ¶ 7, citing Nottingdale Homeowners’ Assn., Inc. v.

Darby, 33 Ohio St.3d 32, 33-34, 514 N.E.2d 702 (1987), and State ex rel. Beebe v.

Cowley, 116 Ohio St. 377, 382, 156 N.E. 214 (1927). An exception to the rule exists

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for statutes that “specifically provid[e] for the losing party to pay the prevailing

party’s attorney fees.” Id. Former R.C. 9.68 is one of these ‘fee-shifting’ statutes.

Yet as explained above, it employs unique language to describe its fee-shifting

function. The General Assembly’s use of the phrase “prevails in a challenge” (rather

than the more common “prevailing party” language) helps to justify Mr. Kellard’s

entitlement to attorneys’ fees in the first place. We agree with the Oberlin court that

the legislature intended the city to face some penalty for maintaining policies in

violation of former R.C. 9.68, and for Mr. Kellard to receive some reimbursement for

fees incurred in a challenge those the policies.

{¶38} But R.C. 9.68’s fee-shifting language is not boundless: it does not allow

a litigant to keep the billing meter running when the plaintiff’s underlying claim is

moot. Former R.C. 9.68(B) entitles a plaintiff who “prevails in a challenge” to

“reasonable attorney fees.” Interpreting this language in context of the American

rule’s presumption that parties to civil actions pay their own fees, we hold that

attorney fees are “reasonable” under former R.C. 9.68(B) only so far as they are

incurred in pursuit of a justiciable claim. To put it another way, after an R.C. 9.68

plaintiff “prevails in [his] challenge” and his underlying claim becomes moot, hours

billed in pursuit of additional, improper relief are not “reasonable.” See former R.C.

9.68(B); Bergman, 12th Dist. Butler No. CA2009-12-080, 2010-Ohio-3259, at ¶ 72

(when applying a fee-shifting statute, “we must give effect to the wording of the

statute."). These additional hours are not “hours reasonably expended” in pursuit of

an R.C. 9.68 claim, and must not be factored into a trial court’s lodestar calculation.

See Phoenix Lighting Group, 160 Ohio St.3d, 2020-Ohio-1056, 153 N.E.2d 30, at

¶ 10; Miller v. Grimsley, 197 Ohio App.3d 167, 2011-Ohio-6049, 966 N.E.2d 932, ¶ 14

(10th Dist.) (“Calculation of the lodestar necessarily requires the trial court to

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exclude any hours that were unreasonably expended, e.g., hours that were

redundant, unnecessary or excessive in relationship to the work done.”).

{¶39} We have already determined that once the city repealed its offending

policies, the trial court lost subject matter jurisdiction to award injunctive or

declaratory relief for Mr. Kellard’s underlying claim. At that point, Mr. Kellard

“prevail[ed]” in his former R.C. 9.68 “challenge,” and the only additional relief that

the trial court could provide was an award of damages, costs and attorneys’ fees. See

former R.C. 9.68(B). But beyond that point, Mr. Kellard’s decision to seek “a court

order which merely restates the mandates of the Ohio Revised Code” was made at his

own risk—and on his own dime. Smolak, 10th Dist. Franklin No. 07AP-373, 2007-

Ohio-4671, at ¶ 14. Hours billed in pursuit of Mr. Kellard’s non-justiciable

permanent injunction were “redundant, unnecessary [and] excessive” under these

circumstances, and must be excised from the trial court’s award. See Grimsley at

¶ 14; Rubino, 156 Ohio St.3d 296, 2018-Ohio-5109, 126 N.E.2d 1068, at ¶ 5 (“We * * *

exclude ‘hours that are excessive, redundant, or otherwise unnecessary.’ ”), quoting

Hensley, 461 U.S. at 434, 103 S.Ct. 1933, 76 L.Ed.2d 40.

{¶40} Accordingly, we hold that the trial court abused its discretion when it

calculated attorneys’ fees based on an unreasonably high number of hours expended

in pursuit of this particular former R.C. 9.68 claim. Mr. Kellard prevailed in his

challenge to the city’s policies on August 19, 2019, the date by which all parties agree

that the city’s policies complied with R.C. 2923.1210. All hours billed prior to and on

that date were reasonably expended on his claim. We have reviewed counsel’s filings

for attorney fees and calculate the number of hours expended prior to and on August

19 to be 18.4 for Mr. Phillips (14 out-of-court, 4.4 in court), 44.5 for Mr. Hackett

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(43.8 out-of-court, 0.7 in court), and 33.8 for Mr. Stoker (31.8 out-of-court, 2.0 in

court).

{¶41} However, hours billed between August 20, 2019, and October 15,

2019—when the trial court entered its order declaring Mr. Kellard a “prevailing

party” and setting the date for an attorney fee hearing—were unreasonable hours

incurred in pursuit of a needless and non-justiciable injunction. Hours billed

between August 20 and October 15 should not have been included in the trial court’s

lodestar calculation, and must be deducted from the trial court’s award.

{¶42} We note that the city opposed Mr. Kellard’s motion for attorney fees,

which was filed in response to the trial court’s October 15 order. Because the proper

award of attorney fees presented a justiciable part of Mr. Kellard’s R.C. 9.68 claim—

indeed, the only justiciable issue that survived repeal of the city’s policies on August

19, 2019—we hold that hours spent litigating the attorney fee award from October 16

and onward were reasonable. Counsel’s filings with the trial court indicate that, on

and after October 16, Mr. Phillips billed 1.7 out-of-court hours, Mr. Hackett billed no

hours, and Mr. Stoker billed 4 out-of-court hours.

{¶43} In sum, we sustain the city’s second assignment of error in part and

modify the trial court’s grant of attorneys’ fees. See Bergman, 12th Dist. Butler No.

CA2009-12-080, 2010-Ohio-3259, at ¶ 82 (modifying the trial court’s fee award on

appeal based on counsel’s “itemization of fees”). Mr. Phillips properly billed 20.1

total hours in this case: 18.4 before and on August 19, and 1.7 from October 16 and

onward. 4.4 of these hours were spent on court appearances; the rest on other

matters. Mr. Hackett properly billed 44.5 total hours in this case, all before and on

August 19. Just 0.7 of these hours were spent on court appearances; the rest on

other matters. Mr. Stoker properly billed 37.8 total hours in this case: 33.8 before

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and on August 19, and 4 from October 16 and onward. 2 of these hours were spent

on court appearances; the rest on other matters. For the reasons explained above,

we find that the trial court’s calculation of the reasonable hourly rate at $335 for

court appearances and $270 for out-of-court matters was proper, and we leave that

portion of the attorney fee award undisturbed. Mr. Phillips is entitled to $5,713 total

fees for this case; Mr. Hackett is entitled to $12,060.50; Mr. Stoker is entitled to

$10,336.2

V.

{¶44} Finally, in his second cross-assignment of error, Mr. Kellard argues

that the trial court abused its discretion by declining to award him $5,000 in

damages “commensurate to a class representative fee.”

{¶45} Mr. Kellard cites no caselaw for his proposition that a class

representative fee is appropriate in an R.C. 9.68 case, nor does he attempt to argue

that his claim meets the Civ.R. 23 requirements for a class action. See Safi v. Cent.

Parking Sys. of Ohio, Inc., 2015-Ohio-5274, 45 N.E.3d 249, ¶ 14 (1st Dist.) (“[T]he

party bringing the class action must affirmatively demonstrate that each requirement

of Civ.R. 23 has been satisfied.”). Instead, Mr. Kellard insists that because

“[f]irearms are a polarizing topic,” his decision to bring suit risked “additional

scrutiny from friends, co-workers and his supervisors,” and may have even “exposed

him[] to the enterprising criminal waiting for him to leave his car so as to break-in

with the hopes of discovering a firearm.” These “risks,” Mr. Kellard posits, “should

2
In the conclusion of his brief, Mr. Kellard questions the trial court’s denial of attorneys’ fees for
this appeal, but he fails to present any assignment of error on this score or develop this argument.
“Pursuant to App.R. 12(A)(1)(b), courts of appeal must ‘determine an appeal on its merits on the
assignments of error set forth in the briefs under App.R. 16.’ ” Timoneri v. NorthSteppe Realty,
Inc., 2016-Ohio-5901, 71 N.E.3d 630, ¶ 60 (10th Dist.), quoting App.R. 12(A)(1)(b). “Thus,
generally, courts of appeal will rule on assignments of error only, not mere arguments.” Id., citing
Thompson v. Thompson, 196 Ohio App.3d 764, 2011-Ohio-6286, 965 N.E.2d 377, ¶ 65 (10th
Dist.). Therefore, we decline to disturb the trial court’s decision not to award fees for this appeal.

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be rewarded” with a $5,000 fee—which he calculates as one dollar per every city

employee.

{¶46} As the trial court recognized below, there is simply no legal basis for

Mr. Kellard’s requested class representative fee—in a case that is not even brought

pursuant to Civ.R. 23. Even if the risks Mr. Kellard imagines were legally relevant to

a class action determination, he provided no substantiation in the record to take his

claims out of the realm of speculation. Accordingly, we overrule Mr. Kellard’s second

cross-assignment of error and affirm the trial court’s calculation of his damages at

$702.96.

VI.

{¶47} Having determined that the trial court exceeded its subject matter

jurisdiction by granting injunctive and declaratory relief for a non-justiciable claim,

we sustain the city’s two assignments of error in part and overrule them in part,

reverse the trial court’s grant of a permanent injunction and declaratory judgment

that the City’s former policies were unlawful, and modify the trial court’s fee award

as indicated above. Mr. Phillips is entitled to $5,713 total fees for this case; Mr.

Hackett is entitled to $12,060.50; Mr. Stoker is entitled to $10,336. Finally, we

overrule Mr. Kellard’s two cross-assignments of error.

Judgment accordingly.

MYERS, P.J., and WINKLER, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.

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