IN THE COURT OF APPEALS
TENTH APPELLATE DISTRICT

NANCY RIDENOUR, :
Plaintiff-Appellee, :
v. :
VELVA DUNN, :
No. 03APG-06-611
Defendant-Appellant. :
(REGULAR CALENDAR)

APPEAL FROM THE FRANKLIN COUNTY MUNICIPAL COURT
APPEAL BRIEF FOR APPELLEE RIDENOUR

ANDREW J. RUZICHO II (0064024)
611 East Weber Road, Suite 102
Columbus, Ohio 43211
Telephone: (614) 447-2365
Fax: (614) 750-2163
Attorney for Appellee Ridenour

James C. Becker (0024203)
4380 Braunton Road
Columbus, Ohio 43220-4304
(614) 457-7863
(614) 457-7705 (Fax)
Attorney for Appellant Velva Dunn

III. ASSIGNMENT OF ERROR

1. Whether the trial court failed to give adequate reasoning for awarding $1000.00 in attorney fees.

2. Whether settlement offers are of any relevance to awards of attorney fees pursuant to the Ohio Landlord Tenant Act.

3. Whether what the plaintiff is obligated to pay her attorney has any relevance to an award of attorney fees pursuant to the Ohio Landlord Tenant Act.

IV. STATEMENT OF ISSUES PRESENTED FOR REVIEW

1. Whether adequate reasoning and evidence existed in the record to support the attorney fees award. (Assignment of Error #1)

VII. ARGUMENT

A. Whether the trial court failed to give adequate reasoning for awarding $1000.00 in attorney fees.

Any error in a determination of attorney fees is analyzed under an abuse of discretion standard of review. Smith v. Padgett (1987), 32 Ohio St.3d 344.

The trial court shall determine the amount of such fees based upon the evidence presented, and such determination shall not be reversed except upon an abuse of discretion. Smith v. Padgett (1987), 32 Ohio St.3d 344, paragraph four of the syllabus. Abuse of discretion connotes more than a mere error of law or judgment, it implies an attitude by the trial court which is arbitrary, unreasonable, or unconscionable. Ruwe v. Bd. of Springfield Twp. Trustees (1987), 29 Ohio St.3d 59, 61. "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, quoting Brooks v. Hurst Buick-Pontiac-Olds-GMC, Inc. (1985), 23 Ohio App.3d 85, 91. (Emphasis added)

To be successful on appeal, appellant Velva Dunn must demonstrate that the amount of fees determined is so high as to shock the conscience. Bittner v. Tri-County Toyota, Inc. (1991), 58 Ohio St.3d 143, 146, quoting Brooks v. Hurst Buick-Pontiac-Olds-GMC, Inc. (1985), 23 Ohio App.3d 85, 91. The magistrate's award of $1,000.00 in attorney fees does not shock the conscience because the magistrate was presented with evidence of the appellee's attorney's hourly rate, time expended on the matter, and evidence relating to the Bittner factors. Furthermore, the magistrate carefully considered the time spent on all claims at trial and separated the security deposit claim from all the other claims.

Prior to and at the hearing on attorney's fees, the magistrate was presented with evidence of the plaintiff-appellee's hourly rate ($150.00), total time expended on the matter (36.92 hours), total time spent on the security deposit matter (28.11 hours), and the amount requested in attorney fees by plaintiff-appellee ($4,216.40) (R.20). Appellant Velva Dunn, in her appeal brief, did not cite to the record concerning any evidence she presented indicating that a lower hourly rate was more appropriate, any evidence contradicting the time spent on the security deposit matter, nor did she cite to any evidence in the record that she presented that related to the Bittner factors. To successfully argue that the magistrate did not provide adequate reasoning for awarding $1,000.00 in attorney fees, appellant Dunn must demonstrate that she presented evidence to the lower court opposing the evidence provided by appellee Ridenour.

In the third paragraph of his opinion, the magistrate explained how he considered all of the claims when determining attorney fees under O.R.C. section5321.16:

The plaintiff in the current action alleged an unauthorized entry by the landlord, Velva Dunn, and a pattern of harassment that gave the tenant the right to terminate the tenancy early. That series of allegations formed the majority of plaintiff's claim, and the security deposit issue was secondary and subordinate to the tenant's primary claim. The magistrate found against plaintiff on the unauthorized entry and the harassment claims. The majority of the trial time was devoted to plaintiff's primary unauthorized entry and harassment claims and to the landlord's counterclaim in response, which dealt with an alleged unauthorized occupant and the corresponding argument that the rental value of the apartment should have been higher because of the presence of more than one tenant. Thus, although the plaintiff prevailed, she recovered only a portion of the security deposit. (R.31)

Appellant Velva Dunn's argument that the magistrate failed to consider the time spent on other claims does not account for this paragraph of the opinion. Contrary to appellant Velva Dunn's claim, this part of the opinion demonstrates that the magistrate did evaluate what work was reasonable and necessary. The magistrate also considered the factors set out in DR2-106 when making the attorney fee award (R.31).

The magistrate stated that approximately 25 per cent of the trial time was devoted to security deposit issues (R.18). Trial time in this matter was approximately 12.58 hours (R.20). The magistrate awarded fees for 3.145 hours of trial time. At $150.00 per hour (the requested rate), fees for trial time related to the security deposit were $471.75.

In addition, appellee requested $4,216.50 in attorney fees for 28.11 hours of work on the case (12.58 of which were for trial time). Although, when making this request, appellee had already eliminated hours unrelated to the security deposit issues, the magistrate chose to further reduce this award. The magistrate determined that 25 per cent of the total time was similarly spent on security deposit issues and awarded approximately that percentage of the $4,216.40 requested.

Appellant Velva Dunn contends that the award in the instant case far exceeds awards in other Ohio cases and that the magistrate should have either addressed or distinguished the cases of Albreqt v. Chen (1983), 17 Ohio App.3d 79 and Parks v. Kanani (March 21, 2002), Franklin App. No. 01AP-905, unreported. A determination of attorney fees is a factual matter that may significantly differ from case to case. Appellant Velva Dunn has failed to provide specific facts concerning the amount of time spent on those cases, the hourly rates of the attorneys involved, as well as any facts or circumstances relating to the factors set out in Bittner v. Tri-County Toyota, Inc. 1991), 58 Ohio St.3d 143. Without such information, no comparison can be made between the cases and the instant one.

B. Whether settlement offers are of any relevance to awards of attorney fees pursuant to the Ohio Landlord Tenant Act.

Appellant Velva Dunn attempts to argue that its settlement offers coupled with the award of $255.00 operate to defeat or limit the claim for attorney fees. In her argument, appellant Velva Dunn makes several mistakes. Velva Dunn does not cite any authority supporting her claim that settlement offers are to be considered by the trial court when awarding attorney fees. The court actually awarded $510.00 plus interest on the security deposit claim and not $255.00 (R.31). Appellant Velva Dunn assumes that appellee's attorney made all decisions concerning accepting and rejecting settlement offers. Plaintiff-appellee had final say on all such matters and not her attorney.

In Bitner v. Tri-County Toyota, Inc., 58 Ohio St.3d 143 (1991), the Ohio Supreme Court has set forth a list of several factors that a court must consider when awarding attorney fees to plaintiffs successful under a statute providing for the payment of reasonable attorney fees by the defendant. The first factor is the time and labor involved in maintaining the litigation. The second factor concerns the novelty and difficulty of the questions involved. The professional skill required to perform the necessary legal services is the third factor elaborated by the Bittner Court. The Court must also consider the attorney¹s inability to accept other cases. Another consideration is the amount involved and the results obtained. Any necessary time limitations and the experience, reputation and ability of the attorney are the final factors to be considered. The Ohio Supreme Court did not list settlement offers of the defendant as a factor to be considered when awarding attorney fees. The appellant has been unable to cite any case law to the contrary. Appellant Dunn's argument is without merit and insupportable. Plaintiff-appellee Ridenour was awarded $510.00 plus interest on her security deposit claim. The trial court later awarded $1,000.00 in attorneys fees. The total amount of $1,510.00 awarded was substantially greater than the $850.00 offered by appellant to resolve the matter. If plaintiff-appellee is successful on appeal, she will be seeking her attorney fees for time spent on the appeal of this security deposit matter. The final award may still be substantially greater.

Appellant Velva Dunn argues that the award of $1,000.00 is unconscionable in light of the $510.00 plus interest awarded in damages. For support, Velva Dunn relies upon McGregor v. Armani (Nov. 20, 1990), Franklin App. No. 89AP-1500, unreported, in which the court reversed an attorney fee award of $5,809.76 when the underlying judgment was $403.00. Although $5,809.76 is over 14 times greater than $403.00, appellant still attempts to compare this award with that of the instant case. Her attempt is insufficient to demonstrate that the award of $1,000.00 in the instant case is unconscionable. Appellant neglected to mention that an issue concerning whether there was a tenant in the McGregor case (since it was unclear whether there was a lease or merely a contract to make a lease) also precipitated the reversal of the attorney fees award because if there was a lease, it still had to be determined who was the tenant who might be entitled to receive attorney fees.

C. Whether what the plaintiff is obligated to pay her attorney has any relevance to an award of attorney fees pursuant to the Ohio Landlord Tenant Act.

Appellant Velva Dunn relies upon several Ohio Supreme Court cases for the proposition that a statutory award of attorney fees may only be paid in relation to what the plaintiff actually pays or is obligated to pay his/her attorney. A review of State ex rel. Russell v. Thomas (1999), 85 Ohio St.3d 1488 reveals that that case's holding is much more limited than defendant has suggested to this Court. Russell concerned an award of attorney fees pursuant to R.C. 149.43. Such an award is intended to reimburse a party for the successful prosecution of a mandamus action necessary to obtain the disclosure of a public record. The Ohio Supreme Court has held that an award of attorney fees pursuant to R.C. 149.43 is punitive in nature. State ex rel. Multimedia, Inc. v. Whalen (1990), 51 Ohio St. 3d 99, 100, 554 N.E.2d 1321, 1322. Consequently, the party against whom an award of fees is assessed should be responsible for those fees incurred only as a direct result of that party's failure to produce the public record. State ex rel. Gannett Satellite Info. Network, Inc. v. Petro (1998), 81 Ohio St. 3d 1234, 690 N.E.2d 11 (emphasis added). The ruling in Gannett explains the Court's request in Russell for an employment contract specifying the attorney fees and hourly rates relators actually paid or are obligated to pay their attorneys for that mandamus action. In Gannett, attorney fees had been sought for work not directly related to the other party¹s failure to produce public records. It appears the Court, following the lesson of Gannett, would only award fees for work directly related to the other party's failure to produce public records. Russell did not involve the award of attorney fees pursuant to R.C. section 5321.16(C), and its holding is inapplicable to such a case.

State ex rel. Kim v. Wachenschwanz University (2001), 93 Ohio St.3d 586 and State ex rel. Besser v. Ohio State University (2000), 87 Ohio St.3d 535 are two cases of the ilk of Russell and thus have no bearing upon the attorney fees issue in the landlord tenant context.

As to the appellant Velva Dunn's argument, it has already been addressed in Chaney v. Breton Builder Co., Ltd. (1998), 130 Ohio App.3d 602: As to whether appellee is not entitled to attorney fees of more than $5, we note that the language of R.C. 5321.16 does not restrict the trial court's ability to award attorney fees in cases where tenants have obtained legal representation at little or no cost. Such a limitation would allow landlords to arbitrarily benefit from the "fortuitous circumstance" of a tenant's inability to afford a private attorney. The Eighth Appellate District has held that a pre-existing contingent fee agreement does not impose a ceiling on nor bar an award of reasonable attorney's fees permitted by statute. Bynum v. Huffman (Dec. 20, 1990), Cuyahoga Appellate No. 57730, unreported, citing Blanchard v. Bergerson (1989), 109 S.Ct. 939. Attorney fee awards are not limited by the amount of the security deposit either. Congdon v. Senters (1998), Richland Appellate No. 98-CA-55, unreported.

VIII. CONCLUSION

Appellant Velva Dunn's reasoning for denying or limiting attorney fee awards is faulty and without support. Settlement offers and the amount the tenant is obligated to pay to her attorney are not factors to be considered when determining attorney fee awards. In the instant case, the magistrate specifically found that 25 per cent of the litigation was spent on security deposit issues and awarded fees accordingly. For these reasons, appellee respectfully requests that this Court AFFIRM the lower court's award of attorney fees.

Respectfully submitted,

ANDREW J. RUZICHO II (0064024)
611 East Weber Road Suite 102
Columbus, Ohio 43211
614/447-2365
Attorney for Appellee