[Cite as Dillon v. Farmers Ins. of Columbus, Inc., 2014-Ohio-431.]


                                       COURT OF APPEALS
                                   COSHOCTON COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                              JUDGES:
JERRY DILLON AND NANCY                                :       Hon. W. Scott Gwin, P.J.
DILLON                                                :       Hon. Sheila G. Farmer, J.
                                                      :       Hon. John W. Wise, J.
                      Plaintiffs-Appellees            :
                                                      :
-vs-                                                  :       Case No. 2013CA0014
                                                      :
FARMERS INSURANCE OF                                  :
COLUMBUS, INC.                                        :       OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                                  Civil appeal from the Coshocton County
                                                          Municipal Court, Case No. CVE-1100847

JUDGMENT:                                                 Affirmed in Part and Reversed in Part




DATE OF JUDGMENT ENTRY:                                   February 6, 2014

APPEARANCES:

For Plaintiffs-Appellees                                  For Defendant-Appellant

JAMES SKELTON                                             THOMAS GLASSMAN
611 Court Street                                          SMITH, ROLFES & SKAVDAHL CO., LPA
Coshocton, OH 43812                                       600 Vine Street, Suite 2600
                                                          Cincinnati, OH 45202
[Cite as Dillon v. Farmers Ins. of Columbus, Inc., 2014-Ohio-431.]


Gwin, P.J.

        {¶1}     Appellant appeals the following judgment entries of the Coshocton

Municipal Court: the March 22, 2012 judgment entry denying appellant’s motion for

judgment on the pleadings and motion for summary judgment, the April 27, 2012

judgment entry granting appellees’ partial motion for summary judgment, the June 25,

2012 judgment entry awarding appellees damages including treble damages and

attorney fees, and the nunc pro tunc judgment entry of July 17, 2012 correcting the total

amount of damages to include the amount of actual damages stipulated to by the

parties.

                                          Facts & Procedural History

        {¶2}     In October of 2011, a deer struck the 2009 Mercury Milan of appellees

Jerry and Nancy Dillon. The vehicle was damaged and could not be driven. At the time

of the accident, appellees were covered by an insurance policy of appellant Farmers

Insurance of Columbus, Inc.               Appellees contacted Mission Auto Connection, Inc.

(“Mission Auto”) to tow the vehicle and provide appellees with a rental car. Appellant

subsequently paid the towing charge and rental car expenses of appellees pursuant to

the insurance policy.

        {¶3}     Mark Babb (“Babb”) was the claims adjuster assigned to appellees’ case.

Babb contacted Jerry Dillon prior to inspecting the vehicle. At that time, Jerry Dillon did

not inform Babb that he wanted original equipment manufacturer (“OEM”) parts used to

repair his vehicle. After Babb inspected appellees’ 2009 Mercury Milan, he created a

proposed repair estimate for the vehicle which included OEM and non-OEM parts.

Babb presented Mission Auto with the proposed repair estimate. Babb did not obtain
Coshocton County, Case No. 2013CA0014                                                     3


Jerry or Nancy Dillon’s signature on the proposed repair estimate acknowledging receipt

of the estimate and approving the estimate as the line entitled “Estimate Received By” is

blank. Jerry Dillon spoke with Babb after Babb inspected the vehicle and informed

Babb he did not want non-OEM parts utilized to repair his vehicle. Babb told Jerry

Dillon his insurance policy stated that appellant was permitted to utilized OEM and non-

OEM parts for vehicle repairs. Babb knew he did not obtain Jerry or Nancy Dillon’s

signature on the proposed repair estimate, but stated he verbally explained to Jerry

Dillon that the insurance policy specifically permitted appellant to utilize non-OEM parts.

       {¶4}   An endorsement to Part IV of the insurance policy appellees had with

appellant provides that when repairing damage to the insured’s car, the amount covered

is the “amount necessary to repair or replace the property or parts with other of like kind

and quality.” “Property of like kind and quality includes * * * parts from other sources

such as rebuilt parts, quality recycled (used) parts and parties supplied by non-original

equipment manufacturers.”

       {¶5}   After speaking with Babb, Jerry Dillon instructed Mission Auto to repair his

vehicle using only OEM parts.      Mission Auto repaired the vehicle.       Appellant paid

Mission Auto $8,462.25 to repair appellees’ vehicle and an additional $1,000 for

subsequent repair work related to the accident, but did not pay the balance of the bill for

the use of the OEM parts.

       {¶6}   Appellees filed a complaint on December 27, 2011 against appellant

alleging common law causes of action and alleging violations of the Ohio Consumer

Sales Practice Act. Appellant filed a motion for judgment on the pleadings which the

trial court denied on March 22, 2012.       Appellant then filed a motion for summary
Coshocton County, Case No. 2013CA0014                                                        4


judgment on all counts and appellees filed a partial motion for summary judgment,

seeking summary judgment on Count IV, violation of R.C. 1345.81 of the Ohio

Consumer Sales Practices Act (“CSPA”) for failure to obtain appellees’ signature on the

bottom of its estimate approving the use of non-OEM parts. On March 22, 2012, the

trial court denied appellant’s motion for summary judgment. The trial court granted

partial summary judgment to appellees on April 27, 2012 as to Count IV only and

scheduled a damages hearing. On May 1, 2012, appellees filed a notice of voluntary

dismissal of Counts I, II, III, V, VI, VII, and VIII.

       {¶7}    On May 29, 2012, the parties filed a joint stipulation stating that if

appellant is found to have violated the CSPA, the parties stipulate the amount of

appellees’ actual economic damages is $1,521.07. The trial court held a hearing on

proof of damages as to Count IV on June 12, 2012. At the hearing, the parties again

stipulated to the $1,521.07 amount of actual damages.                   Erica Eversman, Esq.

(“Eversman”) testified on behalf of appellees in regards to attorney fees. She testified

that the particular section of the CSPA in Count IV is a complicated area of the law that

only a few attorneys in the state handle.               Further, that she had reviewed the bill

submitted by counsel for appellees and the charges were reasonable.                  Eversman

testified that $400 per hour was a reasonable hourly rate for counsel for appellees given

the nature of the case.        Appellant did not present any evidence or testimony with

regards to attorney fees. Counsel for appellant argued the bill submitted by appellees’

counsel was excessive because it was more than four times the amount of appellees’

possible recovery. Counsel for appellant further contended that counsel for appellees

billed excessively for tasks such as research.
Coshocton County, Case No. 2013CA0014                                                 5


        {¶8}   The trial court entered a judgment on June 25, 2012, finding appellees

were entitled to treble damages of $4,563.21, attorney fees of $20,540.00 and

expenses of $3,989.38. The trial court also stated that the parties stipulated to actual

damages of $1,521.07. However, the trial court failed to include the amount of actual

damages in the overall award of $29,092.59.       The trial court specifically found the

amount of time spent by counsel for appellees was reasonable based on the nature and

complexity of the case and that $400 per hour was a reasonable hourly rate based upon

the evidence and testimony submitted by appellees. After appellees filed a motion for

reconsideration, the trial court filed a nunc pro tunc judgment entry on July 17, 2012.

The trial court corrected the total amount of damages to $30,613.66, which included

$1,521.07, the amount of actual damages stipulated to by the parties.

        {¶9}   Appellant appeals the March 22, 2012, April 27, 2012, June 25, 2012, and

July 17, 2012 judgment entries of the Coshocton Municipal Court, assigning the

following as error:

        {¶10} “I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT’S

MOTION FOR JUDGMENT ON THE PLEADINGS AND THE DEFENDANT’S MOTION

FOR SUMMARY JUDGMENT, AND IN GRANTING THE PLAINTIFFS’ MOTION FOR

PARTIAL SUMMARY JUDGMENT.

        {¶11} “II. THE TRIAL COURT ERRED IN AWARDING ATTORNEY FEES TO

THE PLAINTIFFS, AS WELL AS IN DETERMINING THE AMOUNT OF ATTORNEY

FEES.
Coshocton County, Case No. 2013CA0014                                                   6


      {¶12} “III. THE TRIAL COURT ERRED IN AWARDING PLAINTIFFS TREBLE

DAMAGES, AND EVEN IF AN AWARD OF TREBLE DAMAGES WAS WARRANTED,

THERE WAS ERROR IN CALCULATING THE AMOUNT OF TREBLE DAMAGES.”

                                                I.

                                 Summary Judgment Standard

      {¶13} Civ.R. 56 states, in pertinent part:

              “Summary judgment shall be rendered forthwith if the pleadings,

      depositions, answers to interrogatories, written admissions, affidavits,

      transcripts of evidence, and written stipulations of fact, if any, timely filed

      in the action, show that there is no genuine issue of material fact and that

      the moving party is entitled to judgment as a matter of law. No evidence or

      stipulation may be considered except as stated in this rule. A summary

      judgment shall not be rendered unless it appears from the evidence or

      stipulation, and only from the evidence or stipulation, that reasonable

      minds can come to but one conclusion and that conclusion is adverse to

      the party against whom the motion for summary judgment is made, that

      party being entitled to have the evidence or stipulation construed mostly

      strongly in the party’s favor. A summary judgment, interlocutory in

      character, may be rendered on the issue of liability alone although there is

      a genuine issue as to the amount of damages.”

      {¶14} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the
Coshocton County, Case No. 2013CA0014                                                   7

undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311

(1981). The court may not resolve any ambiguities in the evidence presented. Inland

Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474

N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the

applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301,

733 N.E.2d 1186 (6th Dist. 1999).

        {¶15} When reviewing a trial court’s decision to grant summary judgment, an

appellate court applies the same standard used by the trial court. Smiddy v. The

Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review

the matter de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d

1243.

                        Motion for Judgment on the Pleadings Standard

        {¶16} A motion for judgment on the pleadings presents only questions of law.

Luthy v. Dover, 5th Dist. No. 2011AP030011, 2011-Ohio-4604, citing Dearth v. Stanley,

2nd Dist. No. 22180, 2008-Ohio-487.        In ruling on a motion for judgment on the

pleadings, the trial court must construe the material allegations in the complaint and any

reasonable inferences drawn therefrom in favor of the plaintiff. If it finds plaintiff can

prove no set of facts entitling plaintiff to relief, the court must sustain a motion for

judgment on the pleadings. Boske v. Massillon City School Dist., 5th Dist. No. 2010-

CA-00120, 2011-Ohio-580, citing Hester v. Dwivedi, 89 Ohio St.3d 575, 2000-Ohio-230,

733 N.E.2d 1161. However, the complaint must allege sufficient facts to support any

conclusions, and unsupported conclusions are not presumed to be true. Id.
Coshocton County, Case No. 2013CA0014                                                      8


       {¶17} Judgment on the pleadings may be granted where no material factual

issue exists. However, it is axiomatic that a motion for judgment on the pleadings is

restricted solely to the allegations contained in those pleadings. Giesberger v. Alliance

Police Dept., 5th Dist. No. 2011 CA 00070, 2011-Ohio-5940, citing Flanagan v.

Williams, 87 Ohio App.3d 768, 623 N.E.2d 185 (4th Dist. 1993).

       {¶18} Our review of the trial court’s decision on a judgment on the pleadings is

de novo. See State v. Sunfronko, 105 Ohio App.3d 504, 644 N.E.2d 596 (4th Dist.

1995). When reviewing a matter de novo, this Court does not give deference to the trial

court’s decision. Eagle v. Fred Martin Motor Co., 157 Ohio App.3d 150, 809 N.E.2d

1161, 2004-Ohio-829. “Under Civ.R. 12(C), dismissal is appropriate where a court (1)

construes the material allegations in the complaint, with all reasonable inferences to be

drawn therefrom, in favor of the nonmoving party as true, and (2) finds beyond doubt,

that the plaintiff could prove no set of facts in support of his claim that would entitle him

to relief.” State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570, 664

N.E.2d 931 (1996).

                                     Count IV – CSPA Claim

       {¶19} Appellant argues the trial court erred in granting appellees’ partial motion

for summary judgment and denying appellant’s motion for judgment on the pleadings

and motion for summary judgment because the CSPA does not apply to claims made

by an insured under a policy of insurance.            Appellant contends that insurance

companies are not “suppliers” pursuant to R.C. 1345.02(A) and that consumer

transactions do not include transactions between persons defined in R.C. 5725.01,

including insurance companies.
Coshocton County, Case No. 2013CA0014                                                  9


      {¶20} R.C. 1345.02 provides that “no supplier shall commit an unfair or

deceptive act or practice in connection with a consumer transaction. Such an unfair or

deceptive act or practice by a supplier violates this section whether it occurs before,

during, or after the transaction.” R.C. 1345.02(A). The phrase “consumer transaction”

expressly excludes transactions between persons defined in R.C. 5725.01, including

“insurance companies,” defined as “every corporation, association, and society engaged

in the business of insurance of any character, or engaged in the business of entering

into contracts substantially amounting to insurance of any character.” R.C. 5725.01(C).

Further, Ohio courts have held that an insured cannot make a CSPA claim against an

insurer for a violation under the policy of insurance. Johnson v. Lincoln Nat’l Ins. Co.,

69 Ohio App.3d 249, 590 N.E.2d 761 (2nd Dist. 1990); Bernard v. Nat’l Union Fire Ins.

Co. of Pittsburgh, PA, N.D. Ohio No. 5:09 CV 1523, 2009 WL 2413922 (August 5,

2009); Chestnut v. Progressive Cas. Ins. Co., 116 Ohio App.3d 299, 2006-Ohio-2080,

850 N.E.2d 751; Miller v. Geico Indemnity Co., 8th Dist. Cuyahoga No. 89603, 2008-

Ohio-791.

      {¶21} However, in this case, both appellant and appellees agree that the

insurance policy, in an endorsement to Part IV, specifically allows for non-OEM parts to

be used in repairing damage to the covered vehicle.           Thus, despite appellant’s

argument to the contrary, the issue in this case is not whether non-OEM parts are

permitted under the insurance policy. Rather, the case focuses on a violation of a

specific section of the CSPA, R.C. 1345.81. R.C. 1345.81(B) provides as follows:

             Any insurer who provides an estimate for repair of a motor

      vehicle based in whole or in part upon the use of any non-OEM
Coshocton County, Case No. 2013CA0014                                               10


       aftermarket crash part in the repair of the motor vehicle and any

       repair facility or installer who intends to use a non-OEM aftermarket

       crash part in the repair of a motor vehicle shall comply with the

       following provisions, as applicable:

               (1) If the person requesting the repair chooses to receive a

       written estimate, the insurer, repair facility, or installer providing the

       estimate shall identify, clearly in the written estimate, each non-

       OEM aftermarket crash part and shall contain a written notice with

       the following language in ten-point or larger type: “This estimate

       has been prepared based upon the use of one or more aftermarket

       crash parts supplied by a source other than the manufacturer* * *.”

       Receipt and approval of the written estimate shall be acknowledged

       by the signature of the person requesting the repair at the bottom of

       the written estimate.

R.C. 1345.81(B)(1). R.C. 1345.81(A) provides that, as used in Section 1345.81, insurer

“means any individual serving as an agent or authorized representative of an insurance

company, involved with the coverage for repair of the motor vehicle in question.” R.C.

1345.81(A)(5). Appellant first argues R.C. 1345.81 only applies to the repair or body

shop completing the repairs. However, the statute specifically applies to “the insurer,

repair facility, or installer providing the estimate.”

       {¶22} Appellant also contends that R.C. 1345.81 refers to R.C. 1345.01 and

since insurance companies are specifically excluded from the definition of “consumer

transaction,” and are not “suppliers,” insurance companies are not liable under R.C.
Coshocton County, Case No. 2013CA0014                                                      11


1345.81. R.C. 1345.81(E) provides that, “any violation of this section in connection with

a consumer transaction as defined in section 1345.01 of the Revised Code is an unfair

and deceptive act or practice as defined by section 1345.02 of the Revised Code.”

Thus, while R.C. 1345.81 specifically defines and includes “insurer” in its provisions, the

statute simultaneously makes reference to R.C. 1345.01, which excludes insurance

companies from the definition of “consumer transaction.”

       {¶23} “It is a well-settled rule of statutory interpretation that statutory provisions

be construed together and the Revised Code be read as an interrelated body of law.”

Summerville v. City of Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d

522 (2010). Pursuant to R.C. 1.51, “[i]f a general provision conflicts with a special or

local provision, they shall be construed, if possible, so that effect is given to both. If the

conflict between the provisions is irreconcilable, the special or local provision prevails as

an exception to the general provision, unless the general provision is the later adoption

and the manifest intent is to that the general provision prevail.” R.C. 1.51. R.C. 1.52(A)

provides, “if statutes enacted at the same time or different sessions of the legislature

are irreconcilable, the statute latest in date of enactment prevails.” R.C. 1.52(A).

       {¶24} R.C. 1345.01 and R.C. 1345.02 conflict with R.C. 1345.81 with respect to

their application to insurers and cannot be applied so as to give effect to all of the

provisions. Accordingly, we must resort to statutory interpretation and “construe the

statutes so as to give effect to the legislature’s intent.” Summerville, 128 Ohio St.3d at

226. A specific statute will prevail unless the general statute can be shown to be the

later adoption of the two and the intent of the General Assembly was to have the

general provision control. Id. at 228.    R.C. 1345.01 and R.C. 1345.02 are part of the
Coshocton County, Case No. 2013CA0014                                                    12


general laws that form the CSPA, while R.C. 1345.81 is a specific provision enacted at

a later time as an amendment to the CSPA. R.C. 1345.81 is both the more recent and

the more specific statutory provision and thus, any irreconcilable conflict in the wording

of the general provisions and R.C. 1345.81 must be resolved in favor of R.C. 1345.81.

See Id. at 228; see also Burdge v. Kerasotes Showplace Theatres, LLC, 12th Dist. No.

CA2006-02-023, 2006 WL 2535762 (finding the more specific and later-enacted statute

R.C. 1345.18 prevails over the general provisions of R.C. 1345.01 and 1345.09). This

statutory interpretation is consistent with the holding by the Ohio Supreme Court that

the CSPA “has a remedial purpose and must accordingly be liberally construed in favor

of consumers.” Einhorn v. Ford Motor Co., 48 Ohio St.3d 27, 548 N.E.2d 933 (1990).

         {¶25} We further note that the cases cited by appellant in support of its position

that R.C. 1345.81 does not apply to insurers are distinguishable from this case as they

do not deal with the specific section of the CSPA at issue in this case, R.C. 1345.81. In

addition, the Johnson case cited by appellant and cited to by the other courts in

dismissing CSPA claims against insurers, is not determinative of the issue in this case

because the Johnson case was decided on August 31, 1990, prior to the enactment of

R.C. 1345.81 on October 16, 1990. Johnson v. Lincoln Nat’l Ins. Co., 69 Ohio App.3d

249, 590 N.E.2d 761 (2nd Dist. 1990).

         {¶26} In this case, Babb meets the definition of “insurer” in R.C. 1345.81 as he is

the individual serving as the agent or authorized representative of the insurance

company involved with the coverage for repair of the motor vehicle in question. Babb

provided a written estimate for the repair of appellees’ vehicle which included non-OEM

parts.    While the use of non-OEM parts is permissible under the insurance policy,
Coshocton County, Case No. 2013CA0014                                                    13


pursuant to R.C. 1345.81, appellant must have appellees sign the written estimate to

acknowledge they received the estimate that included the notification regarding the non-

OEM parts. Babb admitted he failed to obtain appellees’ signature on the bottom of the

repair estimate that included the notice about the non-OEM parts. This is evidenced by

the repair estimate, attached as an exhibit to appellees’ complaint and motion for

summary judgment, in which the line entitled “Estimate Received By” is blank.

Accordingly, the trial court did not err in granting appellees’ motion for partial summary

judgment, denying appellant’s motion for summary judgment, and denying appellant’s

motion for judgment on the pleadings. Appellant’s first assignment of error is overruled.

                                                II.

       {¶27} Appellant argues that since the CSPA does not apply to claims between

an insurer and an insured, any award of attorney fees by the trial court is improper.

Further, that the trial court abused its discretion in awarding fees far greater than the

damages recovered. We disagree.

       {¶28} An award of attorney fees is within the sound discretion of the trial court.

Rand v. Rand, 18 Ohio St.3d 356, 369, 481 N.E.2d 609 (1985). In order to find an

abuse of discretion, we must determine that the trial court’s decision was unreasonable,

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

       {¶29} As discussed above, R.C. 1345.81, included in the CSPA, applies to any

insurer who provides an estimate for the repair of a motor vehicle. R.C. 1345.09(F)(2)

provides, in relevant part, that a trial court may award reasonable attorney fees to the

prevailing party if “[t]he supplier has knowingly committed an act or practice that violates
Coshocton County, Case No. 2013CA0014                                                 14


this chapter [the Consumer Sales Practices Act].” A supplier does not have to know

that his conduct violates the CSPA for the court to grant reasonable attorney fees.

Snider v. Conley’s Service, 5th Dist. No. 1999CA00153, 2000 WL 873780 (June 12,

2000), citing Einhorn v. Ford Motor Co., 48 Ohio St.3d 27, 30, 548 N.E.2d 933 (1990).

The supplier must intentionally commit the act, but need not know the act violates Ohio

law. Smith v. Hall, 5th Dist. Stark No. 2005-CA-00124, 2005-Ohio-5789, citing Einhorn,

48 Ohio St.3d at 30. In this case, Babb knew the estimate contained non-OEM parts

and stated he knew he did not obtain appellees’ signature on the written repair estimate

that included non-OEM parts. Accordingly, appellees are entitled to reasonable attorney

fees pursuant to R.C. 1345.09(F)(2).

      {¶30} Appellant next contends the amount of attorney fees awarded by the trial

court was not reasonable because the amount of attorney fees is grossly

disproportionate to the limited dollar amount of damages in this case. However, this

contention was rejected by the Ohio Supreme Court in Bittner v. Tri-County Toyota, 58

Ohio St.3d 143, 569 N.E.2d 464 (1991). The Ohio Supreme Court held that rather than

forcing a direct relationship between the attorney fees and the amount the consumer

recovers, the starting point for the determination of a reasonable amount of fees is the

number of hours spent by the attorney multiplied by a reasonably hourly rate. Id. “This

calculation provides an objective basis on which to make an initial estimate of the value

of a lawyer’s services.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939

(1983).

      {¶31} The fee applicant bears the burden of establishing entitlement to an award

and documenting the appropriate hours expended and hourly rates. Canton v. Irwin,
Coshocton County, Case No. 2013CA0014                                                        15


5th Dist. No. 2011CA00029, 2012-Ohio-344.              To establish the number of hours

reasonably expended, the party requesting the fees should submit evidence to support

the hours worked. Hensley, 461 U.S. at 433. A reasonable hourly rate is “the prevailing

market rate in the relevant community.” Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct.

1541, 79 L.Ed. 2d 891 (1984). Once the trial court calculates the “lodestar figure,” it can

modify the calculation by applying the factors listed in Rule 1.5 of the Ohio Rules of

Professional Conduct (formerly DR 2-106(B)). Landmark Disposal Ltd. v. Byler Flea

Market, 5th Dist. Stark No. 2005CA00294, 2006-Ohio-3935. These factors are: the

time and labor involved in maintaining the litigation; the novelty and difficulty of the

questions involved; the professional skill required to perform the necessary legal

services; the attorney’s inability to accept other cases; the fee customarily charged; the

amount involved and the results obtained; any necessary time limitations; the nature

and length of the attorney/client relationship; the experience, reputation, and ability of

the attorney; and whether the fee is fixed or contingent. Canton v. Irwin, 5th Dist. No.

2011CA00029, 2012-Ohio-344. “All factors may not be applicable in all cases and the

trial court has the discretion to determine which factors to apply, and in what manner

that application will affect the initial calculation.” Id., citing Bittner v. Tri-County Toyota,

58 Ohio St.3d 143, 569 N.E.2d 464 (1991).

       {¶32} In this case, at the evidentiary hearing on attorney fees, appellees

submitted Exhibit A, a copy of the fee contract between Jerry Dillon and his attorney,

and Exhibit B, a statement of appellees’ attorney fees. Eversman testified that the

particular section of the CSPA in Count IV is a complicated area of the law that only a

few attorneys in the state handle. Further, that she reviewed Exhibit B and the charges
Coshocton County, Case No. 2013CA0014                                                 16


were reasonable. Eversman stated $400 per hour was a reasonable hourly rate for

counsel for appellees given the nature of the case and that she charges $350 per hour

for similar types of cases. Appellant failed to present any evidence or testimony to

refute Eversman’s testimony. The trial court found the amount of time spent by counsel

was reasonable based on the nature and complexity of the case and that $400 per hour

was a reasonable hourly rate based upon the evidence and testimony submitted by

appellees. We agree. The evidence and testimony submitted by appellees supported

the hours worked and the reasonable hourly rate requested. Appellant did not furnish

the trial court with any evidence or testimony to contradict the evidence presented by

appellees regarding the number of hours worked or the reasonable hourly rate.

Appellant’s second assignment of error is overruled.

                                              III.

      {¶33} Appellant argues the trial court erred in awarding appellees treble

damages, or, in the alternative, erred in awarding appellees actual damages in addition

to treble damages. We disagree in part and agree in part.

      {¶34} Appellant contends the trial court erred in awarding treble damages

because the practice was not declared to be deceptive or unconscionable by a

regulation promulgated by the Attorney General or previously determined by an Ohio

court to violated R.C. 1345.02 whose decision was available for public inspection as

required by R.C. 1345.09(B). However, pursuant to R.C. 1345.81, the failure to obtain

the signature and acknowledgment of the person requesting the repair in a repair

estimate that includes non-OEM parts is a deceptive act, as R.C. 1345.81(E) provides

that “any violation of this section in connection with a consumer transaction * * * is an
Coshocton County, Case No. 2013CA0014                                                  17


unfair and deceptive act or practice as defined by section 1345.02 of the Revised

Code.” Because this definite language is included in R.C. 1345.81(E), the statute is

analogous to the ten actions or practices contained in R.C. 1345.02 that are specifically

found to be unfair or deceptive acts.     R.C. 1345.02(B)(1) – (10).      See Mason v.

Mercedes-Benz USA, LLC, 8th Dist. No. 85031, 2005-Ohio-4296.

      {¶35} In this case, the statute itself declares that the specific act at issue is an

unfair or deceptive practice under R.C. 1345.02. The statute was established prior to

the time appellant committed the act. Therefore, because the specific act at issue in

this case has previously been declared a deceptive act, the trial court did not err in

awarding treble damages in this case.

      {¶36} Appellant finally asserts the trial court erred in the amount of damages

awarded to appellees because appellees cannot recover actual damages in addition to

treble damages. We agree. As stated by the Sixth District in The Estate of Lamont

Cattano v. High Touch Homes, Inc., 6th Dist. Erie No. E-01-022, 2002-Ohio-2631, R.C.

1349.09(A) and R.C. 1349.09(B) are mutually exclusive and:

             a consumer can elect between the remedies of rescission or

             damages and, if the consumer can prove that the supplier

             should have known that his actions constituted a violation of

             the Act, the consumer can elect between rescission and

             damages equal to three times his actual damages up to

             $200.   This holding is supported by the dicta in Stultz v.

             Artistic Polls, Inc. (Oct. 10, 2001), Summit App. No. 20189,

             at 8, citing Armstrong v. Kittinger (Sept. 21, 1994), Summit
Coshocton County, Case No. 2013CA0014                                                18


              App. No. 16124 and 16378, at 26-27, where the court stated

              that R.C. 1345.09 provides that the consumer, who proves

              that a supplier has violated the Act and meets the

              prerequisites for treble damages under R.C. 1345.09(B), can

              elect either rescission of the contract of treble damages, not

              actual damages versus treble damages.         See, also, Mid-

              American Acceptance Co. v. Lightle (1989), 63 Ohio App.3d

              590, 597, 579 N.E.2d 721. Therefore, we conclude that the

              court may not award a party actual damages and treble

              damages.

Id. Accordingly, pursuant to R.C. 1345.09(B), the proper award for damages would be

to calculate the actual damages multiplied by three, or $4,563.21, because the parties

stipulated to the $1,521.07 amount of actual damages. Accordingly, appellant’s third

assignment of error is overruled in part and sustained in part.

       {¶37} Based on the foregoing, we overrule appellant’s assignments of errors I

and II. We partially overrule and partially sustain appellant’s assignment of error III.

The March 22, 2012, April 27, 2012, and June 25, 2012 judgment entries of the

Coshocton Municipal Court are affirmed. The July 17, 2012 judgment entry of the

Coshocton Municipal Court is reversed in part and affirmed in part.
Coshocton County, Case No. 2013CA0014                                               19


      {¶38} Pursuant to App.R. 12(B) we hereby modify the judgment entered by the

Coshocton Municipal Court and enter judgment in favor of appellees for treble damages

of $4,563.21, attorney fees of $20,540.00 and expenses of $3,989.38, for a total amount

of $29,092.59.

By Gwin, P.J.,

Farmer, J., and

Wise, J., concur
