Defendant Woods of Northland's Post-Hearing Brief

I. Introduction

Now comes the defendant, by and through counsel, and submits its post-hearing brief on the issue of the reasonableness of plaintiffs request for attorney fees. Defendant contends that plaintiffs request for nearly $1,000.00 in attorney fees is unreasonable given results obtained on behalf of the plaintiff by her attorney ($41.50); the small amount of time and labor involved in maintaining the litigation; the lack of novelty and difficulty of the questions involved; the lack of professional skill required to perform the necessary legal services; the lack of any evidence presented on the part of the plaintiff of the plaintiffs attorneys inability to accept other cases; the fee customarily charged ($0.00 in the present case); the lack of any evidence presented on the part of the plaintiff as to any necessary time limitations; the short length of the attorney/client relationship; and the lack of any testimony regarding the experience, reputation and ability of the plaintiffs attorney. Each of these factors weighs in favor of the defendant and when taken into consideration dictates a reasonable fee much lower than that requested by the plaintiff.

II. Argument

A. Reasonable hourly rate and reasonable amount of time

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. In that case, the Court indicated that a trial court must determine the amount of a reasonable fee by calculating the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. Plaintiff contends that her attorney spent approximately 5.2 hours pursuing the claim for which the fees may be awarded and approximately 1.5 hours at the attorney fees hearing. Plaintiffs attorney indicated that he also charged for the time spent waiting at the courthouse because of interruptions to the trial and to the attorney fees hearing. Defendants expert witness, Eric E. Willison, being familiar with the frequent delays associated with a busy courtroom, testified that he often brings other work to do during these breaks. It is unreasonable for plaintiffs attorney to attempt to charge for time spent waiting at the courthouse which included at least one half hour during the attorney fees hearing when he was doing nothing in pursuit of his clients claim but waiting for the trial/hearing to continue and when he could have been performing other work.

Plaintiff also seeks payment for approximately 20 minutes for an initial phone call to her attorney that, according to her attorneys records, consisted of nothing more than setting up an initial appointment. Twenty minutes to set up an appointment to discuss her case seems excessive, and plaintiff has not offered any testimony that her attorney normally charges for such phone calls. This charge is also unreasonable given that the attorney client relationship had not even been formed at this point. Mr. Kaufman had simply agreed to set up an appointment to discuss the possibility of taking plaintiffs case. It seems unlikely that an attorney would start the clock on a caller who was not even his client.

Plaintiff attempts to charge for time spent attempting to resolve the matter. Correspondence of May 25 (in which plaintiffs attorney admits that he has only spent 3.5 hours on the claim) and May 29 reflect some of the charges for attempting to resolve the matter and are attached hereto as exhibits 1 and 2. The May 29 letter does nothing to further negotiations but merely is a refusal to provide an itemization of attorney fees, an attorney client agreement and any court order awarding plaintiffs attorney $185.00 per hour for similar matters. Plaintiff did not provide any of these documents until the attorney fees hearing had begun and the original request was made on May 25, 2001. Any charges relating to the May 29 correspondence are unreasonable because the May 29 correspondence was unnecessary, spiteful, and actually hindered resolution of the matter (May 25 correspondence requesting such documents attached hereto as exhibit 3).

At least two hours of the charges requested are unreasonable because they were unnecessarily incurred, would not have been charged to a client in the normal course of business (and, in this case, would not have been charged to the client at all if plaintiff had not prevailed according to the plaintiffs testimony), or was for time spent waiting at the courthouse, a fact of life all attorneys who practice at municipal court must put up with. Plaintiff offered the testimony of James Schottenstein with regard to the reasonableness of her request for attorney fees. Mr. Schottenstein admitted to practicing in several areas of the law including landlord tenant law and employment law. Despite having only four years experience in employment law and having several more years experience in the landlord tenant arena, he charges $225.00 per hour to his employment law clients as well as $225.00 an hour to his landlord tenant clients. Mr. Schottenstein testified to the reasonableness of the nearly $1,000.00 in attorney fees requested by plaintiff. He also testified that he had never been awarded $185.00 or more per hour from a court while representing a tenant and that he had represented very few tenants during his several decades of practice as a landlord tenant attorney. When asked about the reasonableness of the requested fees upon cross examination given certain factors such as the results obtained and the settlement offered prior to trial, Mr. Schottenstein was unable to form an opinion given his lack of familiarity with the facts of this particular case. By his own admission, Mr. Schottenstein was unable to testify concerning the reasonableness of the plaintiffs request for attorney fees.

Defendant presented the expert testimony of Eric Willison. Mr. Willison testified that he had approximately five to six years experience in the landlord tenant field, had written a publication on landlord tenant law entitled Ohio Renters Rights: Taking on your Landlord, maintains a web site at http://www.ohiolandlordtenant.com upon the subject of renters rights and upon which he offers his book for sale to the general public, represents primarily tenants, has been awarded $100 to $125 an hour in such cases by the Franklin County Municipal Court, and had other qualifications. Mr. Willison testified that $100 to $125 an hour was a reasonable rate and that $185 an hour was unreasonable given various factors set forth in the Bitner decision.

The only testimony elicited at the hearing concerning Mr. Kaufmans experience in the field was through Mr. Willison. Upon cross examination, Mr. Willison admitted that he was aware that Mr. Kaufman had litigated at least one other landlord tenant case in which he had been opposing counsel. Defendant does not believe that any other testimony exists in the record concerning Mr. Kaufmans experience and reputation other than Mr. Kaufmans claim of 18-19 years experience in the introduction of some questions posed to Mr. Willison which, of course, is not permissible testimony.

Defendant contends that a reasonable amount of time spent on this matter would have been two hours. Given the lack of any testimony or evidence regarding Mr. Kaufmans experience and reputation, plaintiffs request for $185.00 an hour is unreasonable. Based upon the testimony elicited at trial by the plaintiff (as it was the plaintiffs burden), a reasonable hourly rate for his work would be $100 an hour.

B. Bitner factors applied to reasonable fees of $200.00

1. Time and labor involved in maintaining the litigation

The Ohio Supreme Court set forth several factors that a trial court must consider to modify the reasonable hourly rate multiplied by the number of hours reasonably expended on the case or lodestar amount. The first factor is the time and labor involved in maintaining the litigation. Defendant contends that little time and labor was spent on the part of the plaintiff in maintaining the litigation. Mr. Kaufman appeared at trial unprepared to go forward. He failed to bring the pleadings, several exhibits and other material to trial. In fact, Mr. Kaufman came over to defendants trial table and began going through defendants pleadings, exhibits and other documents without permission. Mr. Kaufman also attempted to take Barbara Chrappahs file from her while she was on the stand in order to use her documents. At the attorney fees hearing, Mr. Kaufman admitted to charging for time spent waiting at the courthouse while other matters were attended to by the trial court. This time spent waiting is not time and labor involved in maintaining the litigation. This first factor cuts in favor of a modification of the $200 figure to a lower amount.

2. Novelty and difficulty of the questions involved

Defendants expert, Mr. Willison, testified that the issue involved, whether an illegal lockout had occurred, was not a novel or difficult issue in the landlord tenant arena. In fact, he had encountered this issue on several occasions in his own practice. When informed that the landlord had not contested that a lockout had occurred, Mr. Willison opined that there was no novelty or difficulty to the issue. He also opined that a lay-person could have maintained the action without counsel and indicated that he would have recommended this given the small amount of money involved. Plaintiff testified that she had drafted the complaint and had only sought an attorney when she discovered that the defendant was represented and not because of the novelty or difficulty of the issue involved. Plaintiff offered no evidence or testimony as to the novelty of difficulty of the issue involved. Given this lack of proof, the second factor cuts in favor of a modification of the $200 figure to a lower amount.

3. The professional skill required to perform the necessary legal services

Defendants expert opined that a lay-person could have maintained the action without counsel and indicated that he would have recommended this given the small amount of money involved. Plaintiff testified that she had drafted the complaint and had only sought an attorney when she discovered that the defendant was represented and not because of the lack of any professional skill on her part to maintain the action. Plaintiff offered no evidence or testimony as to the professional skill required to perform the necessary legal services. Given this lack of proof, the third factor cuts in favor of a modification of the $200 figure to a lower amount.

4. The attorneys inability to accept other cases

Plaintiff offered no evidence or testimony as to her attorneys inability to accept other cases. Given this lack of proof, the fourth factor cuts in favor of a modification of the $200 figure to a lower amount.

5. The amount involved and the results obtained

Plaintiff sought $1,189.00 in her complaint but only obtained $41.50 or a factor of 28.7 or a success rate of approximately three per cent. Defendant offered plaintiff approximately $40 prior to trial to resolve the claim. Plaintiff refused. A proper and efficient evaluation of the case at that point prior to any attorney fees being incurred would have been to accept the offer. This was not done. Given the poor results obtained, this fifth factor cuts in favor of a modification of the $200 figure downward. 6. Any necessary time limitations Plaintiff offered no evidence or testimony as to any necessary time limitations. Given this lack of proof, the sixth factor cuts in favor of a modification of the $200 figure to a lower amount. 7. The experience, reputation and ability of the attorney

Plaintiff offered no evidence or testimony as to the experience, reputation and ability of her attorney. The only testimony to this effect was Mr. Willisons admission that he was aware that Mr. Kaufman had handled one other landlord tenant matter. Given this lack of proof, the seventh factor cuts in favor of a modification of the $200 figure to a lower amount.

III. Conclusion

A reasonable lodestar in this matter is $200.00. This amount must be modified given that almost all the factors to be considered cut against the plaintiff. Each of these factors weighs in favor of the defendant and when taken into consideration dictates a fee of $120.00.

Respectfully submitted,

__________________________________________

ANDREW J. RUZICHO II (0064024) 3040 Riverside Drive, Suite 120 Columbus, Ohio 43221-2551 614/486-0407 Trial Attorney for Defendant

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing Trial brief has been served on the party listed below by hand delivery this 19th day of June, 2001

Philip B. Kaufman, Esq. 341 South Third Street Suite 300 Columbus, Ohio 43215

__________________________________________

ANDREW J. RUZICHO II (0064024)

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