In re Guardianship of Spagnola

Diane V. Grendell, Judge,

concurring.

{¶ 23} I agree with the majority’s conclusion that the trial court failed to provide an explanation of the factors it considered in arriving at the amount of attorney fees awarded and that this case must be remanded to the trial court for a discussion of the necessary factors. I write separately to address the trial court’s failure to rule on each of the appellant’s three motions for attorney fees and to point out that motions not ruled upon by a trial court are deemed overruled.

{¶ 24} The majority notes that the trial court failed to rule on each motion separately and that upon remand, the trial court must specifically identify each motion being addressed. Although the trial court did not explicitly rule on each of the three motions for attorney fees, the motions not ruled upon were implicitly overruled. A “motion not expressly decided by a trial court when the case is concluded is ordinarily presumed to have been overruled.” Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, at ¶ 13; State ex rel. Fontanella v. Kontos, 11th Dist. No. 2007-T-0055, 2007-Ohio-5213, 2007 WL 2822601, at ¶ 9 (when a court issues a final judgment on an issue, it must be presumed that the court intended to dispose of all other pending motions); Hager v. Norfolk & W. Ry. Co., 8th Dist. No. 87553, 2006-Ohio-6580, 2006 WL 3634373, at ¶ 54, fn. 33 (“ordinarily, any pending motions the trial court does not expressly rule on when it renders final judgment are deemed implicitly overruled”). This principle has been applied in situations similar to the present case, in which a trial court has failed to rule on a motion for attorney fees. See Tate v. Adena Regional Med. Ctr., 155 Ohio App.3d 524, 2003-Ohio-7042, 801 N.E.2d 930, at ¶ 16-18 (the trial court implicitly overruled a motion for attorney fees when it did not rule on the motion).

*724{¶ 25} Even though the motions not ruled upon should be deemed overruled, it is necessary to remand for the trial court to weigh the factors with respect to its reduced award and explain its justification for awarding a lesser amount of attorney fees. See In re Testamentary Trust of Hamm, 11th Dist. No. 2003-G-2532, 2004-Ohio-6348, 2004 WL 2698214, at ¶ 20 (the trial court abuses its discretion when it awards attorney fees “in less than the amount sought without setting forth the factors it considered and the reasons for the reduction”). Therefore, I concur in the decision to remand for the trial court to explain the factors used in reaching its award.