[Cite as Scipio v. Used Car Connection, Inc., 2013-Ohio-4325.]
                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

SHOFFON SCIPIO,                                        )
                                                       )
        PLAINTIFF-APPELLANT,                           )
                                                       )             CASE NO. 12 MA 89
V.                                                     )
                                                       )                  OPINION
USED CAR CONNECTION, INC., ET AL.,                     )
                                                       )
        DEFENDANTS-APPELLEES.                          )

CHARACTER OF PROCEEDINGS:                              Civil Appeal from Court of Common
                                                       Pleas of Mahoning County, Ohio
                                                       Case No. 08CV3269

JUDGMENT:                                              Affirmed

APPEARANCES:
For Plaintiff-Appellant                                Attorney Cherie H. Howard
                                                       P.O. Box 357
                                                       Youngstown, Ohio 44501

For Defendant-Appellee                                 Attorney Diane S. A. Vettori
                                                       60 Westchester Drive, Suite 1
                                                       Austintown, Ohio 44514




JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                       Dated: September 24, 2013
[Cite as Scipio v. Used Car Connection, Inc., 2013-Ohio-4325.]
DONOFRIO, J.

        {¶1}     Plaintiff-appellant, Shoffon Scipio, appeals from a Mahoning County
Common Pleas Court judgment awarding her attorney fees of $3,500.
        {¶2}     On August 13, 2008, appellant filed a complaint against defendant-
appellee, Used Car Connection, Inc., alleging violations of the Retail Installment
Sales Act and the Consumer Sales Practices Act. She later filed a supplemental
complaint asserting improper disposition of collateral. Appellee filed a counterclaim
alleging appellant failed to make timely payments or to pay a mechanic's bill.
        {¶3}     On October 22, 2009, appellant filed a motion for summary judgment.
A magistrate sustained appellant's motion in part, finding that she was entitled to
statutory damages of $600, entitled to judgment on appellee's counterclaim, and
entitled to an award of reasonable attorney's fees to be determined at a later hearing.
Neither party filed objections. The trial court subsequently adopted the magistrate's
decision and entered judgment accordingly.
        {¶4}     Next, appellant filed a motion for attorney's fees in the amount of
$10,000. She later filed a supplemental motion for attorney's fees in the amount of
an additional $4,000 and $300 in costs, which she stated her attorney incurred in
establishing her entitlement to a fees award.                    The magistrate held a hearing on
appellant's motion where he heard testimony from appellant's attorney and an expert
witness on each side.
        {¶5}     The magistrate sustained both appellant's motion and supplemental
motion. He awarded a total of $10,158 in attorney's fees against appellee.
        {¶6}     Appellee filed objections to the magistrate's decision arguing that the
fee award was excessive. The trial court held a hearing on the objections. The court
found that in light of the fact that appellant was absent from the court's jurisdiction for
an extensive period of time during the course of the case, the case could not be
settled and the efficient administration of justice was frustrated.                It modified the
magistrate's award to $3,500. Appellant appealed from that judgment.
        {¶7}     On appeal, this court found that the trial court had failed to apply the
methodology set out in Bittner v. Tri-County Toyota, 58 Ohio St.3d 143, 146, 569
                                                                                 -2-


N.E.2d 464 (1991), for determining reasonable attorney fees. Scipio v. Used Car
Connection, Inc., 7th Dist. No. 10-MA-186, 2012-Ohio-891. Therefore, we reversed
the judgment and remanded the matter to the trial court with instructions to set forth
its methodology in determining the amount of attorney fees with sufficient specificity
so as to satisfy the criteria contemplated by Bittner.
       {¶8}   On remand, the trial court once again awarded appellant $3,500 in
attorney fees. This time the court gave a detailed explanation of its award by
analyzing each of the Bittner considerations.
       {¶9}   Appellant filed a timely notice of appeal on May 14, 2012.
       {¶10} Appellant raises four assignments of error. All of her assignments of
error assert the court abused its discretion in making its award of attorney's fees.
       {¶11} The standard of review on the issue of attorney fees is abuse of
discretion. Motorists Mut. Ins. Co. v. Brandenburg, 72 Ohio St.3d 157, 160, 648
N.E.2d 488 (1995). Abuse of discretion connotes more than an error of law; it implies
that the trial court's attitude was unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

              Unless the amount of [attorney] fees determined is so high or so
       low as to shock the conscience, an appellate court will not interfere.
       The trial judge which participated not only in the trial but also in many of
       the preliminary proceedings leading up to the trial has an infinitely
       better opportunity to determine the value of services rendered by
       lawyers who have tried a case before him than does an appellate court.

Bittner v. Tri-County Toyota, 58 Ohio St.3d 143, 146, 569 N.E.2d 464 (1991), quoting
Brooks v. Hurst Buick-Pontiac-Olds-GMC, Inc., 23 Ohio App.3d 85, 91, 491 N.E.2d
345 (12th Dist.1985).
       {¶12} The Consumer Sales Practices Act (CSPA) provides for the award of
reasonable attorney fees, limited to the work reasonably performed, if the supplier
has knowingly committed an act or practice that violates the CSPA.                     R.C.
                                                                            -3-


1345.09(F)(2). When the supplier in a consumer transaction intentionally committed
an act or practice which is deceptive, unfair, or unconscionable, the trial court may
award a consumer reasonable attorney fees. Einhorn v. Ford Motor Co., 48 Ohio
St.3d 27, 548 N.E.2d 933 (1990), syllabus; R.C. 1345.09(F)(2).
       {¶13} Appellant’s first assignment of error states:

              THE TRIAL COURT ABUSED ITS DISCRETION WHEN, IN
       AWARDING ATTORNEY FEES PURSUANT TO THE CSPA, IT
       FAILED TO PROPERLY APPLY THE LODESTAR CALCULATION TO
       OBJECTIVELY DETERMINE THE ATTORNEY FEES THAT SHOULD
       BE AWARDED.

       {¶14} Appellant argues, citing federal case law for support, that the lodestar
figure is presumed reasonable and modifications to the lodestar should be rare. She
points out the magistrate noted in his decision that he “scrutinized” her attorney’s
time records “line by line” before arriving at his conclusion that $10,158 was a
reasonable fee in this case. Appellant points out there is no indication by the trial
court that it engaged in a similar, comprehensive analysis before reducing the fee
award to $3,500. By failing to engage in such a reasoned analysis, appellant argues,
the trial court abused its discretion.
       {¶15} According to Bittner, “[w]hen awarding reasonable attorney fees
pursuant to R.C. 1345.09(F)(2), the trial court should first calculate the number of
hours reasonably expended on the case times an hourly fee, and then may modify
that calculation by application of the factors listed in DR 2-106(B).”     Id. at the
syllabus.
       {¶16} Since Bittner was decided, the Rules of Professional Conduct have
replaced the Code of Professional Responsibility in Ohio. So now the factors set out
in Prof.Cond.R. 1 .5(a) apply as they are based on former DR 2-106(B). Unick v.
ProCision, Inc., 7th Dist. No. 09-MA-171, 2011-Ohio-1342, ¶30.
       {¶17} Prof.Cond.R. 1.5(a) prohibits excessive fees:
                                                                                    -4-


                 (a) A lawyer shall not make an agreement for, charge, or collect
       an unreasonable fee or an unreasonable amount for expenses. The
       factors to be considered in determining the reasonableness of a fee
       include the following:
                 (1) the time and labor required, the novelty and difficulty of the
       questions involved, and the skill requisite to perform the legal service
       properly;
                 (2) the likelihood, if apparent to the client, that the acceptance of
       the particular employment will preclude other employment by the
       lawyer;
                 (3) the fee customarily charged in the locality for similar legal
       services;
                 (4) the amount involved and the results obtained;
                 (5) the time limitations imposed by the client or by the
       circumstances;
                 (6) the nature and length of the professional relationship with the
       client;
                 (7) the experience, reputation, and ability of the lawyer or
       lawyers performing the services; and
                 (8) whether the fee is fixed or contingent.

       {¶18} In reaching its determination as to reasonable attorney fees in this case
the trial court followed the Bittner analysis. The court first found that 17.5 to 35 hours
was a reasonable amount of time under the circumstances to properly investigate,
prepare, and litigate this case.       The court then found that $100 an hour was a
reasonable rate considering the nature of the case, the experience of counsel, and
the result achieved.
       {¶19} The court took into consideration the Prof.Cond.R. 1.5(a) factors. The
court found that the time and labor required, the novelty and difficulty of the issues
involved, and the skill necessary to properly perform the legal services did not justify
                                                                                   -5-


the fee sought by appellant’s counsel. Citing, Prof.Cond.R. 1.5(a)(1). It found the
acceptance of this case did not preclude other employment. Citing, Prof.Cond.R.
1.5(a)(2). The court noted the fee charged in this locality for similar services, the
amount involved, and the results obtained did not justify the amount awarded by the
magistrate. Citing, Prof.Cond.R. 1.5(a)(3) and (4). The court further opined the fees
it was awarding were “generous.” It found the time limitations imposed by appellant
and the circumstances “speak strongly against” counsel’s application for fees since
appellant “was the cause of extraordinary delay and frustration of prompt justice.”
Citing, Prof.Cond.R. 1.5(a)(5). Because appellant sought free services from Legal
Aid, the nature and length of any professional relationship with the client was of
minimal consideration. Citing, Prof.Cond.R. 1.5(a)(6). The experience, reputation,
and ability of the lawyer performing the services for appellant did not justify an hourly
fee in excess of that which is customary in this locality.           Citing, Prof.Cond.R.
1.5(a)(7). The court noted a customary fee for a $600 recovery is a percentage of
the recovery, not a substantial multiple of what the plaintiff recovers. It further noted
that the hourly rate for a capital murder case is $70. And the court assumed the fee
in this case was to be hourly; however, there was no contract presented. Citing,
Prof.Cond.R. 1.5(a)(8).
       {¶20} The court went on to find the fee requested by appellant’s counsel was
excessive. It found that $100 per hour was the highest proper legal fee allowable for
the services rendered and 35 hours was the “absolute maximum time any competent
lawyer could ever possibly devote to this case.” Thus, the court entered a fee award
of $3,500.
       {¶21} Appellant essentially asserts here that the trial court failed to give a
detailed analysis as to why it awarded only $3,500 in fees. However, as indicated by
the trial court’s findings, it analyzed each of the Bittner factors in relation to the facts
of this case. It made a specific finding as to each factor and entered a two-and-a-half
page judgment entry detailing its findings. Thus, the court did engage in the analysis
contemplated by Bittner.
                                                                              -6-


       {¶22} Appellant also implies that the court failed to properly first compute the
lodestar amount and then apply any deviation.
       {¶23} But the two inquires of Bittner, the lodestar calculation and the
application of the Prof.Cond.R. 1.5(a) factors, may overlap “because several of the
reasonableness factors are often subsumed within the initial lodestar calculation and
normally will not provide an independent basis for adjusting the fee award.” Miller v.
Grimsley, 197 Ohio App.3d 167, 2011-Ohio-6049, 966 N.E.2d 932, ¶14 (10th Dist.).
In calculating the lodestar amount, the court must necessarily exclude hours that
were redundant, unnecessary, or excessive in relation to the work done. Id. And in
determining whether hours were unreasonably expended, the court necessarily
considers the first three reasonableness factors. Patrick v. Hilock Auto Sales, 10th
Dist. No. 4076, 2012-Ohio-4076, ¶18.
       {¶24} Here, the trial court awarded attorney fees of $100 per hour, though
appellant’s attorney requested $200 per hour and the testimony was that $175 to
$250 was customary. In doing so, the court gave a detailed application of Bittner’s
factors. The court relied on the Professional Rules of Conduct factors to reduce the
hourly rate and the hours expended. Thus, we cannot find that the trial court abused
its discretion in the manner it applied the Bittner analysis.
       {¶25} There was also evidence presented at the fee hearing to support the
court’s findings.
       {¶26} Appellant’s counsel testified that she spent 77.65 hours on this case.
(Tr. 23). And she arbitrarily reduced the number of hours for which she was seeking
fees due to “self-monitoring” and spending time on typing, proofreading, and copying.
(Tr. 24). Thus, counsel stated that she was seeking fees for 50 hours of work. (Tr.
24). She stated that she was seeking an hourly rate of $200. (Tr. 24). She arrived
at this hourly rate by talking to other attorneys in the area, her years of experience,
and the nature of the work. (Tr. 25).
       {¶27} Appellant’s counsel called Attorney Alan Matavich as an expert witness.
Atty. Matavich testified that he considered the number of hours spent on the case to
                                                                                -7-


be reasonable. (Tr. 57). He opined that in this locality a reasonable hourly rate for
an attorney concentrating on consumer law was $175 to $200. (Tr. 59).
       {¶28} Appellee called Attorney Matthew Giannini as an expert witness. Atty.
Giannini opined that the amount of hours appellant’s counsel spent on the case to
take it to summary judgment was not appropriate. (Tr. 73). He opined that a case of
this nature would probably take 15 to 20 hours. (Tr. 73). He further stated that his
hourly rate on a viable consumer case would be $250. (Tr. 86).
       {¶29} A complaining party bears the initial burden of proving the number of
hours the attorney spent on the case, the hourly rate charged, and the
reasonableness of that hourly rate, after which point the trial court may exercise its
discretion to modify the amount pursuant to the factors described in Prof.Cond.R. 1.5.
Unick v. Pro-Cision, 7th Dist. No. 09-MA-171, 2011-Ohio-1342, ¶33.
       {¶30} In this case, the court determined that 35 hours at the hourly rate of
$100 was reasonable. While the witnesses testified that $175 to $250 an hour was
a reasonable hourly rate, the trial court reduced this rate based on the Prof.Cond.R.
1.5(a) factors. As stated above, the trial court analyzed each of the eight factors and
concluded that they warranted a lesser fee than what appellant’s counsel requested.
The trial court did not act arbitrarily, unconscionably, or unreasonably in doing so.
       {¶31} Accordingly, appellant’s first assignment of error is without merit.
       {¶32} Appellant’s second assignment of error states:

              THE    TRIAL     COURT      ABUSED       ITS   DISCRETION        BY
       FACTORING INTO ITS BITTNER ANALYSIS THE FACT THAT
       APPELLANT RECEIVED FREE LEGAL REPRESENTATION.

       {¶33} Here appellant contends the trial court should not have considered the
fact that she received free legal aid in this case.      She points out that courts in
numerous landlord-tenant cases have found attorneys who provide clients services
for free or at a minimal cost may recover fees to the same extent as other attorneys
under a fee-shifting provision.    To hold otherwise, appellant argues, would allow
                                                                                -8-


landlords or in this case consumer suppliers, to benefit from the poor financial
circumstances of the plaintiff.    Furthermore, appellant points out that nowhere in
Bittner or Prof.Cond.R. 1.5(a) does it state the court should consider whether legal
services received by the prevailing party were paid for or free. She asserts that had
the trial court applied the Bittner factors properly, it would have avoided a comparison
to appointed counsel in capital murder cases. She notes that appointed attorneys in
criminal cases are paid through scarce public funding but that attorney fees in CSPA
cases are paid by private business entities and are intended to deter violations of the
CSPA.
        {¶34} Appellant is taking the court’s reference to her free legal services out of
context. The only mention the trial court made to appellant’s free legal services from
Legal Aid was in the context of examining Prof.Cond.R. 1.5(a)(6). Pursuant to this
factor, the court was to consider the nature and length of any professional
relationship between appellant and her counsel.         The court found that because
appellant sought free services from Legal Aid, the nature and length of any
professional relationship with the client was of minimal consideration. The court did
not find, as appellant seems to suggest, that because appellant received free legal
services, the fee award should automatically be decreased. Thus, the trial court did
not abuse its discretion in mentioning the fact that appellant’s legal services were
free.
        {¶35} Accordingly, appellant’s second assignment of error is without merit.
        {¶36} Appellant’s third assignment of error states:

              THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
        REDUCED THE ATTORNEY FEE AWARD ON THE ERRONEOUS
        FINDING THAT APPELLANT HAD IMPEDED A SETTLEMENT OF
        THE CASE AND THEREBY INCREASED THE FEES SOUGHT BY
        APPELLANT’S LAWYER.

        {¶37} In this assignment of error, appellant contends the trial court abused its
                                                                                -9-


discretion in reducing the fee award based on its finding that appellant was the cause
of extraordinary delay in this case. She claims this finding lacks any evidentiary
basis.     At best, appellant states the evidence shows an insignificant gap in
communication for about six weeks between her and her counsel following her
relocation to Indianapolis. Instead, appellant claims any delays in this case should
be attributable to appellee because it prolonged settlement negotiations and
requested numerous continuances.
         {¶38} The complaint in this case was filed August 13, 2008.          Numerous
continuances were requested by both parties and granted by the court.                 On
September 1, 2009, appellant’s counsel requested an additional 14 days to file a
summary judgment motion because counsel had not been able to obtain appellant’s
signature on an affidavit. On October 22, 2009, appellant’s counsel filed a motion for
leave to file the summary judgment motion instanter. The basis for the motion was
that counsel had lost communication with appellant because appellant moved to
Indiana and had not notified her counsel of her new address. Thus, appellant caused
an approximate two-month delay by moving and not staying in touch with her
counsel.
         {¶39} Additionally, on cross examination, appellant’s counsel seemed to
acquiesce to the fact that she may not have relayed settlement offers to appellant in
a timely manner. (Tr. 32-36). When asked about communicating one settlement offer
to appellant, counsel indicated that appellant moved to Indianapolis, did not have a
phone, and only communicated with her by way of e-mail at the public library. (Tr.
32-33). And when asked about communicating a second settlement offer, appellant’s
counsel could not seem to recall it. (Tr. 33).
         {¶40} Whether the delay caused by appellant and/or her counsel was
“extraordinary” as found by the trial court is debatable. However, appellant and/or
her counsel clearly caused some delay in this case. And it seems logical that the
longer the case continued on, the more unnecessary hours counsel would have
spent on it. Thus, we cannot find that the trial court’s use of appellant’s delay in this
                                                                               - 10 -


case as one consideration in reducing the fee was arbitrary, unreasonable, or
unconscionable.
       {¶41} Accordingly, appellant’s third assignment of error is without merit.
       {¶42} Appellant’s fourth assignment of error states:

              THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
       CONCLUDED THAT $100 PER HOUR WAS THE PREVAILING FEE
       FOR CONSUMER CASES IN THE LOCALITY.

       {¶43} Appellant contends the evidence presented was that the prevailing
wage in consumer cases in this locality is between $175 and $250 per hour. Thus,
she asserts the court’s hourly rate of $100 per hour was unreasonable.
       {¶44} The trial court specifically found $100 to be a reasonable hourly rate
“taking into account the nature of the case, the experience of counsel and the result
achieved.” While we may not have awarded the same hourly rate in this case, that is
not our standard of review nor does it render the trial court’s award unreasonable,
arbitrary, or unconscionable. Abuse of discretion has been said to exist in the rare
instance where a decision is grossly violative of fact and logic so that it demonstrates
perversity of will, defiance of judgment, undue passion, or extreme bias. Brooks v.
Wilson, 98 Ohio App.3d 301, 304, 648 N.E.2d 352 (1994), citing Huffman v. Hair
Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985). As stated above, the
court used the factors set out in the Professional Conduct Rules to reduce the hourly
rate and hours worked. Thus, we cannot conclude that the trial court abused its
discretion in using an hourly rate that was less than what the expert witnesses
testified was customary in this locality. The court adjusted the rate based on the
facts and nature of this particular case.
       {¶45} Accordingly, appellant’s fourth assignment of error is without merit.
                                                                      - 11 -


      {¶46} For the reasons stated above, the trial court’s judgment is hereby
affirmed.

Waite, J., concurs.

DeGenaro, P.J., concurs.
