[Cite as Fagan v. Boggs, 2011-Ohio-5884.]


                     IN THE COURT OF APPEALS OF OHIO
                        FOURTH APPELLATE DISTRICT
                           WASHINGTON COUNTY

LINDA FAGAN, et al.,             :
                                 :
     Plaintiffs-Appellees,       :   Case No. 10CA17
                                 :
     vs.                         :   RELEASED: 10/21/2011
                                 :
ROBERT J. BOGGS, DIRECTOR :          DECISION AND
OHIO DEPARTMENT of               :   JUDGMENT ENTRY
AGRICULTURE,                     :
                                 :
     Defendant-Appellant.        :
_____________________________________________________________
                           APPEARANCES:

Mike DeWine, Ohio Attorney General, and James R. Patterson, Ohio
Assistant Attorney General, Reynoldsburg, Ohio, for the Appellant.

David G. Cox, Columbus, Ohio, for the Appellees.
_____________________________________________________________

McFarland, J.:

        {¶1} Appellant, Robert J. Boggs, Director, Ohio Department of

Agriculture, appeals the decision of the Washington County Court of

Common Pleas, which issued a declaratory judgment and injunction in favor

of Appellees, Linda Fagan and Donna Betts, with regard to a stop

sale/withdrawal from distribution order issued in connection with Appellees’

manufacture and distribution of pet food. Appellant also appeals the trial

court’s award of attorneys fees to Appellees. On appeal, Appellant contends
Washington App. No. 10CA17                                                      2


that the trial court 1) erred and abused its discretion in holding that

Appellant denied Appellees due process and the equal protection of the laws

in applying R.C. 923.52; 2) erred and abused its discretion in awarding

Appellees attorney fees; 3) erred and abused its discretion in issuing an

injunction against future enforcement by Appellant of Ohio’s feed label laws

against Appellees' feed product labels; and 4) erred and abused its discretion

in holding that Appellant engaged in illegal rulemaking.

      {¶2} Based upon our conclusion that Appellees did not avail

themselves of the administrative process available to them in the form of a

condemnation hearing, we conclude that the trial court erred in finding

Appellant’s issuance of a stop sale order resulted in a deprivation of due

process. Additionally, as Appellees have not demonstrated that they were a

member of a suspect class, that they were subjected to an arbitrary exercise

of power, or that they were treated differently than other persons under like

circumstances, we conclude that the trial court erred in finding an equal

protection violation. As such, Appellant’s first assignment of error is

sustained. Based upon our conclusion that the trial court abused its

discretion in awarding attorney fees to Appellees, Appellant’s second

assignment of error is sustained and the issue of attorney fees is remanded

for further proceedings consistent with this opinion.
Washington App. No. 10CA17                                                      3


      {¶3} Further, based upon our conclusion that the trial court erred in

granting injunctive relief beyond what was reasonable and necessary,

Appellant’s third assignment of error is sustained, in part. Specifically, we

uphold the injunction, but only to the limited extent that it enjoins Appellant

from issuing stop sale orders or revoking Appellees feed registrations based

upon the inclusion of raw milk as an ingredient. Finally, in light of our

conclusion that Appellant engaged in illegal rulemaking in violation of R.C.

Chapter 119 when it implemented a de facto rule prohibiting the use of milk,

or raw milk, as an ingredient in pet food, Appellant’s fourth assignment of

error is overruled.

                                   FACTS

      {¶4} Appellees, Linda Fagan and Donna Betts, are manufacturers of

pet food, the primary ingredient of which is milk, or raw milk, and have

been in this business since 2001 and 2002, respectively. Appellees were

previously issued commercial feed registrations by the Ohio Department of

Agriculture, “ODA,” and sold their products at local farmers markets. On

February 14, 2006, Appellees were issued “Stop Sale/Withdraw from

Distribution” orders from the Ohio Department of Agriculture, pursuant to

R.C. 923.52. The basis for the orders, according to the language contained

in the orders themselves, was that Appellees were “[s]elling pet food
Washington App. No. 10CA17                                                                               4


products made from milk. Milk is not recognized as a feed ingredient under

the definition of AAFCO (Association of American Feed Control

Officials).” Appellees complied with the orders. Having no feed on hand at

the time the orders were issued1, Appellees ceased further production of

their pet food.

    {¶5} Subsequently, by letters dated April 24, 2006, the ODA notified

Appellees of their intent to revoke Appellees’ commercial feed registrations

pursuant to R.C. 923.42. In the letters, the ODA also notified Appellees of

their right to administrative hearings under R.C. 119. Both Appellees

obtained counsel in order to prepare for their requested hearings, which were

scheduled on July 12, 2006. However, having apparently determined that

Appellees were no longer marketing their commercial feed, the ODA

withrew its proposed revocations and the scheduled hearings were cancelled.

At that point, the situation essentially came to a standstill, with Appellees

having never commenced their production and the ODA having never

pursued the revocation of Appellees’ commercial feed registrations.

    {¶6} On July 31, 2006, Appellees filed a complaint for declaratory

judgment and injunctive and other relief against the ODA. Then on

September 24, 2007, Appellees filed an amended complaint. In their

1
 This is true, with the exception of Appellee Fagan, who did have butter on hand. Upon issuance of the
order, the butter was released to Appellee Fagan for her own personal use.
Washington App. No. 10CA17                                                                        5


amended complaint, Appellees alleged that 1) R.C. 923.52 is

unconstitutional on its face and as applied to them; 2) neither the director of

the ODA nor his staff can withdraw a proposed action under R.C. 119 once

an adjudication hearing is requested; 3) that a person who requests an

adjudication hearing once an agency issues a proposed action becomes a

prevailing party if the agency chooses to withdraw the proposed action prior

to the hearing; and 4) ODA engaged in illegal rulemaking. Further, as part

of their prayer for relief, Appellees specifically requested that the court

declare them to be “prevailing parties” under R.C. 119.092 and award them

attorney’s fees and costs pursuant to that statute, as well as R.C. 2335.39 and

2721.11.2 The ODA responded by filing an amended answer on October 9,

2007, and the matter proceeded with discovery.

     {¶7} ODA filed a motion for summary judgment on November 16, 2007.

In support of their motion for summary judgment, Appellant attached an

affidavit by David Simmons, averring that in addition to containing the

prohibited ingredient of milk, Appellees’ labels also failed to contain a

guaranteed analysis,3 disclosures of minimum and maximum percentages of

crude protein, crude fat, crude fiber and moisture, intended animal species

for the pet foods, or statement of nutritional adequacy and purpose of the
2
  R.C. 2721.11 provides that a court may award court costs in any action or proceeding in which
declaratory relief is sought.
3
  Appellees’ labels provide for a “laboratory analysis” rather than a “guaranteed analysis.”
Washington App. No. 10CA17                                                      6


product. Although Appellees opposed the motion for summary judgment,

they did not address Appellant’s claims regarding the additional deficiencies

in their product labels. The trial court ultimately denied the motion for

summary judgment, without addressing the additional alleged labeling

deficiencies.

   {¶8} The matter proceeded to a trial on the merits to the court on August

25, 2008. After hearing the evidence presented by both parties, the trial

court ordered closing arguments, as well as findings of fact and conclusions

of law to be submitted by the parties. The trial court then adopted, almost

verbatim, Appellees proposed findings of fact and conclusions of law, and

issued its order and decision on October 29, 2008.

   {¶9} In its order and decision, the trial court found that R.C. 923.52 was

constitutional on its face, but was unconstitutional as applied by the ODA to

Appellees. As a result, the trial court found Appellees’ complaint for

injunctive relief to be well taken and vacated the ODA’s stop orders. The

trial court further found that Appellees’ pet food labels complied with ODA

regulations and that because Appellees had not been afforded a hearing on

the validity of their labels, the court deemed the labels to be in compliance

with Ohio law and enjoined the ODA from further action to prohibit

Appellees’ use of their commercial feed licenses for the manufacture of pet
Washington App. No. 10CA17                                                    7


food, on the basis that their labels did not comply with Ohio law. Further,

the trial court determined Appellees to be “prevailing parties” under Ohio

law and ordered that Appellee Fagan recover attorney fees in the amount of

$9,647.46, and Appellee Betts recover attorney fees in the amount of

$9,773.43.

   {¶10} Additionally, the trial court reserved the right to impose additional

fees upon the application of Appellees for fees and costs incurred during the

hearing and the post-hearing period. The trial court further granted

Appellees’ motion to voluntarily dismiss counts two and three of their

amended complaint. The trial court’s order and decision did not contain

language indicating that it was a final, appealable order.

      {¶11} Subsequently, and as essentially invited to do by the trial

court’s order, Appellees filed a post-trial motion for attorney’s fees and costs

on November 4, 2008. In their motion, Appellees requested additional fees

be awarded to them for the period from June of 2008 to the date the motion

was filed. Appellant, ODA, filed a memorandum contra to the motion on

November 18, 2008, to which Appellees filed a reply on November 19,

2008. All of these pleadings remained pending at the time ODA filed its

first appeal in this matter on November 26, 2008. As such, this Court

dismissed the prior appeal for lack of a final, appealable order.
Washington App. No. 10CA17                                                      8


       {¶12} After the dismissal, on May 25, 2010, the trial court held a hearing

on the issue of attorney fees and ultimately awarded Appellee Fagan an

additional $3,576.25 in fees and costs, and awarded Appellee Betts an

additional $3,559.75 in fees and costs. It is from this decision and entry that

Appellant now brings its timely appeal, assigning the following errors for

our review.

                           ASSIGNMENTS OF ERROR

“I.       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
          HOLDING THAT APPELLANT DENIED APPELLEES DUE
          PROCESS AND THE EQUAL PROTECTION OF THE LAWS IN
          APPLYING R.C. 923.52.

II.       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
          AWARDING APPELLEES ATTORNEY FEES.

III.      THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
          ISSUING AN INJUNCTION AGAINST FUTURE ENFORCEMENT
          BY APPELLANT OF OHIO’S FEED LABEL LAWS AGAINST
          APPELLEES’ FEED PRODUCT LABELS.

IV.       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
          HOLDING THAT APPELLANT ENGAGED IN ILLEGAL RULE
          MAKING.”

                            STANDARD OF REVIEW

          {¶13} Both parties agree that our standard of review on appeal is

abuse of discretion. In doing so, however, Appellant relies on cases

involving appeals from administrative hearings. The procedural history of

this case indicates that there was no administrative hearing held, and that
Washington App. No. 10CA17                                                       9


instead the case originated with the filing of a complaint for declaratory

judgment at the common pleas court level. After a trial to the bench on the

merits, Appellant now appeals to this Court for a review of the trial court’s

decision.

      {¶14} A declaratory judgment is a civil action and provides a remedy

in addition to other legal and equitable remedies available. Aust v. Ohio

State Dental Bd. (2000), 136 Ohio App.3d 677, 681, 737 N.E.2d 605; see,

also, In re Arnott, -- Ohio App.3d --, 2010-Ohio-5392, 942 N.E.2d 1124 at ¶

17. In Arnott, this Court further noted as follows:

“In Mid-American Fire & Cas. Co. v. Heasley, 113 Ohio St.3d 133, 2007-
Ohio-1248, 863 N.E.2d 142, the Supreme Court of Ohio reaffirmed that
[t]he granting or denying of declaratory relief is a matter for judicial
discretion, and where a court determines that a controversy is so contingent
that declaratory relief does not lie, this court will not reverse unless the
lower courts determination is clearly unreasonable. Id. at ¶ 12, quoting
Bilyeu v. Motorists Mut. Ins. Co. (1973), 36 Ohio St.2d 35, 65 O.O.2d 179,
303 N.E.2d 871, at syllabus. See also Englefield v. Corcoran, Ross App. No.
06CA2906, 2007-Ohio-1807, 2007 WL 1162162, at ¶ 11. Accordingly, we
will not reverse the trial court's decision to render declaratory relief unless
the trial court abused its discretion. ‘Abuse of discretion’ connotes more
than an error of judgment; it implies that the court's action was
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983),
5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140.” Arnott at ¶ 19.

However, as further noted in Arnott, “[a] trial court's determination of purely

legal issues is never one of degree or discretion. Regardless of whether the

action is styled as one for declaratory relief, the trial court must correctly

apply the law.” Arnott at ¶ 42; see, also, Washington County Home v. Ohio
Washington App. No. 10CA17                                                      10


Dept. of Health, 178 Ohio App.3d 78, 2008-Ohio-4342, 896 N.E.2d 1011 at

¶ 27 (“we conduct a de novo review of a trial court’s judgment interpreting a

statute and afford no deference to the trial court’s interpretation of a

statute.”). Thus, we review the trial court's determinations on questions of

law de novo.

         {¶15} For ease of analysis, we address Appellant’s assignments out of

order.

                          ASSIGNMENT OF ERROR I

         {¶16} In its first assignment of error, Appellant contends that the trial

court erred and abused its discretion in holding that Appellant denied

Appellees due process and the equal protection of the laws in applying R.C.

923.52. A review of the record reveals that the trial court determined that

R.C. 923.52 was constitutional on its face but unconstitutional as applied to

Appellees.

         {¶17} R.C. 923.52 is entitled “Withdrawal from distribution orders”

and provides as follows:

“The director of agriculture may issue and enforce a written withdrawal
from distribution order to the manufacturer or distributor of any lot of
commercial feed requiring it to be held at a designated place when the
director has reasonable cause to believe that the commercial feed is offered
or exposed for distribution or distributed in violation of any of the provisions
of sections 923.41 to 923.55 of the Revised Code or any rule adopted under
those sections. The commercial feed shall be held until a release in writing is
issued by the director. A release shall not be issued until sections 923.41 to
Washington App. No. 10CA17                                                   11


923.55 of the Revised Code and the rules adopted under those sections are
complied with and until all costs and expenses incurred in connection with
the violation have been paid by the manufacturer or distributor. If
compliance is not obtained within thirty days of receipt of the withdrawal
from distribution order, the director may begin, and shall begin upon
request by the manufacturer or distributor, proceedings for condemnation
under section 923.53 of the Revised Code.” (Emphasis added).

      {¶18} R.C. 923.53 is entitled “Seizure and condemnation of feed” and

provides as follows:

“Any lot of commercial feed not in compliance with sections 923.41 to
923.55 of the Revised Code or any rule adopted under those sections is
subject to seizure on complaint of the director of agriculture to a court of
competent jurisdiction in the county in which the commercial feed is
located. The court, upon a finding that the commercial feed is in violation of
sections 923.41 to 923.55 of the Revised Code or any rule adopted under
those sections, shall order the condemnation of the commercial feed and it
shall be disposed of in a manner consistent with the quality of the feed and
the laws of this state. The court shall not order the condemnation of the
commercial feed without first giving the manufacturer or distributor an
opportunity to reprocess or relabel the feed to bring it into compliance with
sections 923.41 to 923.55 of the Revised Code and the rules adopted under
those sections.” (Emphasis added).

      {¶19} Further, O.A.C. 901.5-7-20(B) is entitled “Ingredients for pet

foods” and provides, in pertinent part, as follows:

“(B) * * * Any ingredient for which the association of American feed
control officials has established a name and definition shall be identified by
the name so established. Any ingredient for which no name and definition
has been so established shall be identified by the common or usual name of
the ingredient. Brand or trade names shall not be used in the ingredient
statement.”

Read together, these sections provide that the ODA may issue a stop sale

order, without a prior hearing. The manufacturer or distributor is then given
Washington App. No. 10CA17                                                       12


thirty days to bring the feed into compliance. After that time has passed

ODA has the option of instituting a condemnation proceeding, as does the

manufacturer or distributor. Based upon a plain reading of the statute, such

a proceeding would have determined whether the feed was in violation of

sections 923.41 to 923.55 of the Revised Code. Further, a manufacturer or

distributor must be given an opportunity to reprocess or relabel the feed to

bring it into compliance before a court can order condemnation. Thus, a

manufacturer is given two chances to come into compliance during this

procedure.

      {¶20} Appellant contends that R.C. 923.52 specifically provides for a

judicial review of a stop-sale order in the form of a condemnation

proceeding, but that Appellees failed to request such a hearing. Appellant

argues that had Appellees requested a condemnation hearing, it would have

“brought the entire issue of correctness of the stop sale orders before a fair

tribunal in a prompt fashion.” Appellant also argues that the trial court

confused the issues of whether Appellant allegedly interpreted a feed rule

correctly with whether it applied the statute in violation of Appellees’

constitutional rights to due process and equal protection.

      {¶21} Appellees’ position is that they have a property interest in

making a living and that they were not afforded due process and were denied
Washington App. No. 10CA17                                                      13


equal protection of the laws when Appellant, ODA, relied on R.C. 923.52

and O.A.C. 901.5-7-20(B) to stop them from manufacturing pet food that

contained raw milk as an ingredient. Appellees specifically contend that

those particular code sections do not prevent them from using raw milk as an

ingredient in a pet food product, and, as such, Appellant’s basis for issuing

the stop orders were illegal, and an unconstitutional application of the

pertinent statutes.

      {¶22} An individual may challenge a statute as being unconstitutional

on its face and/or unconstitutional as applied to a particular set of facts.

Ruble v. Ream, Washington App. No. 03CA14, 2003-Ohio-5969, at ¶ 17,

citing Belden v. Union Cent. Life Ins. Co. (1944), 143 Ohio St. 329, 55

N.E.2d 629, at paragraph four of the syllabus. “If a statute is unconstitutional

as applied, the State may continue to enforce the statute in different

circumstances where it is not unconstitutional, but if a statute is

unconstitutional on its face, the State may not enforce the statute under any

circumstances.” Ruble at ¶ 17; citing Women's Med. Professional Corp. v.

Voinovich (C.A.6, 1997), 130 F.3d 187, 193. (Emphasis added).

      {¶23} “A statute may be unconstitutional as applied if the government

selectively enforces it in violation of equal protection rights.” State v.

Sturbois, Athens App. No. 09CA12-13, 2010-Ohio-2492 at ¶ 23. In Yick Wo
Washington App. No. 10CA17                                                    14


v. Hopkins (1886), 118 U.S. 356, 373-374, 6 S .Ct. 1064, the Supreme Court

explained: “[t]hough the law itself be fair on its face, and impartial in

appearance, yet, if it is applied and administered by public authority with an

evil eye and an unequal hand, so as practically to make unjust and illegal

discriminations between persons in similar circumstances, material to their

rights, the denial of equal justice is still within the prohibition of the

constitution.” Sturbois at ¶ 23.

      {¶24} The Fourteenth Amendment to the United States Constitution

provides that a state shall not deny any person the equal protection of the

law. In other words, a state may not treat people differently under its laws on

an arbitrary basis. Harper v. Virginia State Bd. of Elections (1966), 383 U.S.

663, 86 S.Ct. 1079. Unless a suspect class or a fundamental right is

involved, a legislative distinction must bear a rational relationship to a

legitimate state interest to comply with the Equal Protection Clause.

Clements v. Fashing (1982), 457 U.S. 957, 963, 102 S.Ct. 2836. State laws

must be applicable to all persons under like circumstances and not subject

people to an arbitrary exercise of power. Conley v. Shearer (1992), 64 Ohio

St.3d 284, 288, 1992-Ohio-133, 595 N.E.2d 862. The equal protection

guarantee of Section 2, Article I, of the Ohio Constitution essentially is

identical to that afforded by the Equal Protection Clause of the Fourteenth
Washington App. No. 10CA17                                                    15


Amendment. Kinney v. Kaiser Aluminum & Chem. Corp. (1975), 41 Ohio

St.2d 120, 123, 322 N.E.2d 880.

      {¶25} Although the trial court found that R.C. 923.52 was

constitutional on its face it determined that ODA’s interpretation of the

ordinance, and its subsequent application of that interpretation, or stated

another way, policy of selective enforcement, rose to the level of an equal

protection violation. As will be discussed more fully in our analysis of

Appellant’s fourth assignment of error related to illegal rulemaking, we

agree with trial court’s determination that Appellant mistakenly interpreted

the relevant statutes and rules to prohibit raw milk as a feed ingredient.

However, for the following reasons, we cannot conclude that Appellant’s

stop sale order, issued in accordance with the process set forth in R.C.

923.52, deprived Appellant’s of their rights to due process and equal

protection of the laws.

      {¶26} As properly argued by Appellant, Appellees did not request a

condemnation hearing. Thus, they did not avail themselves of the

administrative remedies available to them to promptly determine whether the

basis of the stop sale orders were appropriate. Appellees contend that the

stop sale orders were illegally issued because they had no “lots” of

commercial feed on hand at the time of their issuance. We find this fact to
Washington App. No. 10CA17                                                   16


be irrelevant as both manufacturers had been actively engaged in the

manufacture and distribution of the pet food at issue at the time the stop sale

orders were implemented. Thus, we find the fact that they had no feed on

hand on the day the orders were issued to be inconsequential.

      {¶27} Appellees contended at trial that the underlying basis for the

stop sale order, that the pet food contained raw milk which was an allegedly

prohibited ingredient, was based upon an erroneous interpretation of the

rules by ODA. As indicated above, we agree with Appellees’ argument that

the underlying basis for the issuance of the order was flawed. However, in

our view, ODA’s attempt to enforce an unwritten, or de facto, prohibition of

raw milk does not rise to the level of creating a deprivation of due process or

equal protection, especially considering Appellees did not request a

condemnation hearing.

      {¶28} In reaching its decision on the merits below, the trial court

made several findings related to the issuance of the stop sale order and

Appellee’s lack of options to challenge the order. For instance, the trial

court concluded 1) the manner in which the stop order was issued prevented

Appellees from challenging the basis of the stop order; 2) because Appellees

complied with the stop order, there was no mechanism by which they could

have appealed the stop order; and 3) the only means by which Appellees
Washington App. No. 10CA17                                                       17


could have challenged the stop orders without willfully violating the orders,

was by initiating a declaratory judgment action. Based upon the following,

we disagree with the legal conclusions reached by the trial court.

      {¶29} The stop sale order was issued in accordance with the process

set forth in R.C. 923.52, a statute which the trial court found to be valid on

its face and which none of the parties challenge on appeal. Appellees did

not avail themselves of the due process protections in place, in the form a

condemnation proceeding. Had they done so, they could have promptly

argued their differing interpretation of the feed ingredient definitions.

Conceivably, the parties’ differing interpretations of the feed ingredient

definitions pertaining to raw milk could have been resolved had such a

hearing been held, Appellees could have been brought into compliance, and

the stop order could have been lifted. However, Appellant did not initiate

and Appellees did not request proceedings for condemnation. Thus,

Appellees were not deprived of their right to a hearing, they simply did not

exercise that right.

      {¶30} Further, Appellees have not demonstrated that they are part of

any suspect class, that they were subjected to an arbitrary exercise of power,

or that they were treated differently than other persons under like

circumstances. In fact, the testimony offered at trial suggests that Appellees
Washington App. No. 10CA17                                                       18


may be the only pet food manufacturers in the state of Ohio that use raw

milk as an ingredient in their pet food products. As a result, we cannot

conclude that Appellees were deprived of their constitutional rights to due

process or equal protection by the issuance of the stop sale orders. As such,

Appellant’s first assignment of error is well taken. Accordingly, the

decision of the trial court, to the extent that it determined that R.C. 923.52

was unconstitutionally applied to Appellees, resulting in a deprivation of due

process and equal protection, is reversed.

                         ASSIGNMENT OF ERROR IV

      {¶31} In its fourth assignment of error, Appellant contends that the

trial court erred and abused its discretion in holding that Appellant engaged

in illegal rulemaking. Appellant essentially contends that the trial court

improperly equated disagreement with Appellant’s interpretation and

enforcement of the pertinent rules with illegal rulemaking. Appellant further

argues that just because a court may ultimately determine that an agency is

incorrect in a given interpretation, it does not mean that the agency engaged

in illegal rulemaking.

      {¶32} Appellees allege that Appellant “engaged in illegal rulemaking

by interpreting O.A.C. 901.5-7-20(B) in such a manner that it included a

prohibition on the use of raw milk as an ingredient in a pet food product that
Washington App. No. 10CA17                                                       19


does not exist in the rule.” The trial court agreed with this argument,

ultimately concluding that Appellant had engaged in illegal rulemaking. For

the following reasons, we agree with the trial court’s conclusion.

      {¶33} As set forth above, the interpretation of a statute involves a

purely legal question. Thus, we conduct a de novo review of a trial court's

judgment interpreting a statute and afford no deference to the trial court's

interpretation of a statute. See, e.g., Oliver v. Johnson, Jackson App. No.

06CA16, 2007-Ohio-5880 at ¶ 5.

      {¶34} In construing a statute, a court's paramount concern is the

legislature's intent in enacting it. See, e.g., State ex rel. Cincinnati Enquirer

v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, at ¶

17; State ex rel. Russell v. Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858,

856 N.E.2d 966, ¶ 11. “ ‘The court must look to the statute itself to

determine legislative intent, and if such intent is clearly expressed therein,

the statute may not be restricted, constricted, qualified, narrowed, enlarged

or abridged; significance and effect should, if possible, be accorded to every

word, phrase, sentence and part of an act * * *.’ ” State ex rel. McGraw v.

Gorman (1985), 17 Ohio St.3d 147, 149, 478 N.E.2d 770, quoting

Wachendorf v. Shaver (1948), 149 Ohio St. 231, 78 N.E.2d 370, paragraph

five of the syllabus. To determine legislative intent, a court must “ ‘read
Washington App. No. 10CA17                                                     20


words and phrases in context and construe them in accordance with rules of

grammar and common usage.’ ” Id., quoting State ex rel. Russell v.

Thornton, supra, at ¶ 11. “In construing the terms of a particular statute,

words must be given their usual, normal, and/or customary meanings.”

Proctor v. Kardassilaris, 115 Ohio St.3d 71, 2007-Ohio-4838, 873 N.E.2d

872, ¶ 12.

      {¶35} When the language of a statute is plain and unambiguous and

conveys a clear and definite meaning, there is no need to apply rules of

statutory construction. Id.; see also Cline v. Ohio Bur. of Motor Vehicles

(1991), 61 Ohio St.3d 93, 96, 573 N.E.2d 77; Sears v. Weimer (1944), 143

Ohio St. 312, 55 N.E.2d 413, paragraph five of the syllabus. However, when

a statute is subject to various interpretations, a court may invoke rules of

statutory construction to arrive at legislative intent. R.C. 1.49; Cline, supra;

Carter v. Youngstown (1946), 146 Ohio St. 203, 65 N.E.2d 63, paragraph

one of the syllabus.

      {¶36} Additionally, “ ‘An Ohio Administrative Code section is a

further arm, extension, or explanation of statutory intent implementing a

statute passed by the General Assembly.’ ” Washington County Home v.

Ohio Dept. of Health, 178 Ohio App.3d 78, 2008-Ohio-4342, 896 N.E.2d

1011; quoting Belinky v. Drake Center, 117 Ohio App.3d 497, 505-506, 690
Washington App. No. 10CA17                                                     21


N.E.2d 1302. Thus, when reasonably possible, courts must harmonize,

reconcile, and construe statutes and administrative regulations together. See

State ex rel. Cuyahoga Cty. Hosp. v. Ohio Bur. of Workers' Comp. (1986),

27 Ohio St.3d 25, 27, 500 N.E.2d 1370, citing State ex rel. McGraw v.

Gorman (1985), 17 Ohio St.3d 147, 478 N.E.2d 770, and Wooster

Republican Printing Co. v. Wooster (1978), 56 Ohio St.2d 126, 383 N.E.2d

124. Moreover, a rule implemented as an extension of a statute has the full

force and effect of a statute, unless it is unreasonable or conflicts with a

statute covering the same subject matter. See State ex rel. Celebrezze v. Natl.

Lime & Stone Co. (1994), 68 Ohio St.3d 377, 382, 627 N.E.2d 538; Belinky,

supra, at 505. R.C. 923.50, which is entitled “Rulemaking powers; adoption

of definitions” provides, in pertinent part, as follows:

“(A) The director of agriculture shall adopt, and may amend or rescind,
     rules in accordance with Chapter 119. of the Revised Code as
     necessary to carry out the purposes of this chapter.

(B)   The director, by reference, may adopt:

(1)   The official definitions of feed ingredients and official feed terms
      adopted and published by the association of American feed control
      officials;”

      {¶37} O.A.C. 901:5-7-01, which is entitled “Definition and terms”

provides, in pertinent part, as follows:
Washington App. No. 10CA17                                                     22


“(A) Except for those terms specifically defined in this chapter, the
     department of agriculture hereby adopts, by reference, the following
     from the association of American feed control officials (AAFCO):

(1)   The official definitions of the feed ingredients, the official feed terms,
      and the process and procedures as contained in the 2005 edition of the
      Official Publication; and

(2)   The May 1, 2000, AAFCO feed inspectors manual.” (prior version
      with eff. date 09-22-2005)

      {¶38} Further, O.A.C. 901:5-7-20, entitled “Ingredients for pet

foods,” provides, in pertinent part, as follows:

“(B) Each ingredient of the pet food shall be listed in the ingredient
     statement, and names of all ingredients in the ingredient statement
     must be shown in letters or type of the same size. The failure to list
     the ingredients of a pet food in descending order by their
     predominance by weight in non-quantitative terms may be misleading.
     Any ingredient for which the association of American feed control
     officials has established a name and definition shall be identified by
     the name so established. Any ingredient for which no name and
     definition has been so established shall be identified by the common
     or usual name of the ingredient. Brand or trade names shall not be
     used in the ingredient statement.” (Emphasis added).

      {¶39} Finally, R.C. 119.03, entitled “Procedure for adoption,

amendment, or rescission of rules; fiscal analysis,” in (A) and (B) provides

that in adopting, amending or rescinding any rule, the agency shall file

electronic copies of the proposed rule or changes with the secretary of state

and with the director of the legislative service commission, thereby putting

the public on notice, and a public hearing must be held.
Washington App. No. 10CA17                                                                               23


         {¶40} Thus, based upon a plain reading of the statutes, and in attempt

to harmonize the statutes and the above rules, it appears that the legislature

authorized the director of agriculture to adopt rules in accordance with R.C.

119.03, and also to adopt feed terms and feed ingredient definitions as set

forth by the American Association of Feed Control Official’s (AAFCO’s)

official publication. Further, it appears that the director exercised such

authority by virtue of the existence of O.A.C. 901:5-7-01, which adopted

and incorporated by reference the official definitions of the feed ingredients,

the official feed terms, and the process and procedures as set forth in the

AAFCO’s Official Publication, 2005 Ed.

         {¶41} The parties herein manufacture pet food containing raw milk

and goat milk. Appellee Fagan’s products contain raw cow’s milk while

Appellee Betts’ products contain goat’s milk. Appellant contends that raw

milk is a prohibited pet food ingredient because it is not listed as an

approved ingredient in the AAFCO’s list of approved ingredients, and

because it is not exempted from being listed as an ingredient in O.A.C.

901:5-7-01.4 Appellees argue, to the contrary, that AAFCO does have a




4
  This version of the rule in effect at the time the stop sale ordered was issued exempted raw meat, hay,
straw, stover, silage, cobs, husks and hulls from the definitions of commercial feed. Of importance herein,
the current version of the rule, which became effective July 7, 2008, also exempts goat milk (as used by
Appellee Betts in her pet food products).
Washington App. No. 10CA17                                                                                  24


definition for milk5, and also argues in the alternative that even if AAFCO

did not have a definition for milk, milk is a common name that requires no

definition. In support of their alternative argument, Appellees rely on the

following language contained in the introduction of the Feed Ingredients

Definition section of the 2005 Official Publication:

“Occasionally, an item may be suggested as an ingredient in a mixed feed
that is not listed in this publication. When this happens, the appropriate
investigator should be contacted, a term developed, and the product defined.
Some ingredients, e.g. sugar, are so common there is no need to define
them.” (Emphasis added).

         {¶42} Appellees argue that the Ohio Revised Code, the Ohio

Administrative Code, and the AAFCO do not prohibit raw milk as an

ingredient in pet food. Appellees further argue there have been no changes

in the statutes, rules or referenced definitions since Appellees were first

licensed to sell pet food containing raw milk, and that the only change has

been the director of the Ohio Department of Agriculture’s Feed, Fertilizer

and Seed Section from William Goodman to David Simmons. We agree

with Appellees that the Ohio Revised and Administrative Codes to do not

expressly prohibit milk or raw milk as a pet food ingredient. Further, based

upon the testimony introduced at trial related to AAFCO’s position on milk

as an ingredient, and in light of the fact that the Administrative Code
5
 The AAFCO’s Official Publication, 2005 Ed., includes “raw” and “milk” as feed terms. Raw is a term
defined as “[f]ood in its natural or crude state not having been subjected to heat in the course of preparation
as a food.” Milk is a term defined as “[t]otal lacteal secretion from the mammary gland.”
Washington App. No. 10CA17                                                                             25


indicates that the director of agriculture has adopted AAFCO’s feed

definitions and incorporated them by reference into the Code, we agree with

Appellees’ that raw milk is not a prohibited feed ingredient.

        {¶43} For instance, at trial, William Goodman, former director of

Feed, Fertilizer and Seed, and twenty-nine year ODA employee, testified as

follows:

“Q.     And what’s your understanding of why we’re here today?

A.      My understanding is that the interpretation of the Ohio Feed Law is
        that raw milk or goat milk is not a pet food.

Q.      And is that a change in interpretation from when you used to be head
        of the section?

A.      Yes.

Q.      So ODA has changed their position then; is that correct?

A.      That’s correct.”

        {¶44} Dennis Fravel, a grain, feed, and seed inspector with twenty

years experience with ODA, also testified at trial as follows:

“Q.     This is the 2005 official publication, right?

A.      Yes.

Q.      On page 244, one of the feed terms that’s listed is milk.6

A.      Milk, total lacteal secretion from the mammary glands.

6
 On cross examination, counsel for Appellant drew a distinction between milk being listed as a feed term
versus as a feed ingredient.
Washington App. No. 10CA17                                                    26



Q.    From the mammary glands?

A.    Yes.

***

Q.    Mr. Fravel, this is is [sic] the regulation 5-7-20, Paragraph B. Can
      you read the last two sentences of Paragraph B into the record, please?

A.    ‘Any ingredient for which the Association of American Feed Control
      Officials has established a name and definition shall be identified by
      the names so established. Any ingredient for which no name and
      definition has been so established shall be identified by the common
      or usual name of the ingredient.’

Q.    Okay. So here this regulation is referring to AAFCO, isn’t it?

A.    Yes, sir.

Q.    And it says, basically, if a name has been identified, you shall name
      that name on the label, right?

A.    Yes, sir.

Q.    And we just read in the 2005 AAFCO handbook, milk is one of the
      names, right?

A.    It gives the definition of it, yes.

***

Q.    So as an employee of ODA, they’re not in violation of 5-7-20 B, are
      they?

***

A.    It would be a common name.

Q.    Milk would be a common name.
Washington App. No. 10CA17                                                  27



A.    Yes.”

      {¶45} David Simmons, William Goodman’s successor at ODA, also

testified at trial. Although much of Simmons’ testimony is pertinent, we do

not include all of it due to the volume; however, Simmons essentially

testified that he interpreted the Ohio rules and statutes, as well as the

AAFCO definitions to prohibit the use of milk or raw milk as an ingredient

in pet food. The following excerpt highlights the gist of Simmons’ position

with regard to raw milk:

“Q.   Where does it say in the law, in the Ohio Administrative Code or in
      the Ohio Revised Code, that you can’t use milk?

A.    The Ohio Revised Code adopts AAFCO’s official feed definitions.
      Milk is not in the feed definitions as an approved ingredient. It is not
      in GRAS – it’s not recognized as safe under GRAS by CVM. It is not
      exempted in our law as a whole commodity. And so it’s left for that
      one area if raw milk is determined to be common – so common that it
      does not need defined.

Q.    Where does the Ohio Administrative Code refer to GRAS? Which is
      G-R-A-S, Generally Recognized as Safe, correct?

A.    Correct, yes.

Q.    Where does the Ohio Administrative Code or Ohio Revised Code
      refer to GRAS:

A.    AAFCO, within the feed terms.

***

A.    AAFCO adopts GRAS terms in the back of the book.
Washington App. No. 10CA17                                                   28



Q.    It does? You’ve got the 2005 edition, right?

A.    Yeah.

Q.    Where is milk excluded or prohibited?

A.    It’s not approved.

Q.    It’s not approved? By who?

A.    It’s not approved by AAFCO. It’s not approved by CVM.

Q.    Well, then your testimony is different than Dr. Rodney Noel’s, isn’t
      it?

A.    If you say so.”

      {¶46} Dr. Rodney Noel, former president and current secretary

treasurer of AAFCO and member of the pet food committee, was deposed in

this matter and his deposition was introduced at trial. In his deposition, Mr.

Noel testified as follows:

“Q.   * * * So what about milk, is milk a feed term?

A.    I don’t think so.

Q.    You don’t think so?

A.    I, let me make sure. Yes it is.

Q.    Okay, something other than just milk would have to be the ingredient.

A.    Yes.

Q.    Like whole milk, skim milk, fat something like that.
Washington App. No. 10CA17                                                     29


A.    Right.

Q.    Okay, well, let me cut to the chase then, in terms of AFFCO’s [sic]
      position, does AFFCO [sic] take a position on whether or not raw
      milk can be used as an ingredient in a pet food?

A.    We haven’t at this time, no.

***

Q.    Okay. And has AFFCO [sic] established the name and definition for
      milk?

A.    Just the feed term.

Q.    Okay, the feed term, okay.

A.    Right.

Q.    Would you consider milk a common name or usual name?

A.    Yes.

***

Q.    Okay. If milk’s not adulterated, or if there’s no evidence that is [sic]
      adulterated, would there be any AFFCO [sic] prohibition against using
      that raw milk as a pet food ingredient?

A.    Not at this time.”

      {¶47} Thus, based upon our review of the relevant statutes and

administrative rules, and in light of the foregoing testimony, we conclude

that raw milk is not a prohibited pet food ingredient. We further conclude

that by prohibiting raw milk as an ingredient in pet food and enforcing that

prohibition through the use of stop sale order, Appellant, ODA, has engaged
Washington App. No. 10CA17                                                      30


in illegal rulemaking in violation of R.C. 119. Appellant correctly points out

that it must follow a specific procedure in adopting administrative rules, but

argues that it has merely interpreted the rules in such a way that prohibits

raw milk. We conclude, however, the fact that there is no formal, written or

adopted rule prohibiting raw milk to be the essence of the problem. ODA is,

in effect, establishing and enforcing a de facto rule, or agency policy, that

has affected Appellees’ private rights, has no basis in the law and which the

public, and specifically, Appellees were not provided notice.

      {¶48} As argued by Appellees and as set forth above, R.C. 119.03 sets

forth certain procedures that must be followed when adopting rules. None of

these procedures were followed with regard to ODA’s unwritten policy of

prohibiting raw milk as a pet food ingredient. There was nowhere Appellees

could have looked which would have put them on notice of this policy. The

fact that ODA had previously approved Appellees’ products and labels,

which specifically disclosed the allegedly prohibited ingredients, further

illustrates the fact that Appellees, and the general public were not put on

notice of this agency policy, which in effect, was enforced as if it were a

properly promulgated rule.

      {¶49} Our reasoning is further supported by the Supreme Court of

Ohio’s decision in State ex rel. Celebrezze v. National Lime & Stone Co.,
Washington App. No. 10CA17                                                      31


supra, which involved the interpretation of certain administrative rules

promulgated by the Director of the Ohio Environmental Protection Agency.

Although the Court noted “the long accepted principle that considerable

deference should be accorded to an agency’s interpretation of the rules the

agency is required to administer[,]” the Court determined that the

interpretation of the Attorney General was unreasonable. Id. at 382. After

reaching this conclusion, the Court reasoned that “to allow appellee to

broadly interpret a rule that the OEPA has tacitly admitted is less than all-

inclusive would be tantamount to unannounced rulemaking in violation of

R.C. Chapter 119.” Id. at 383. In further discussion, the Court stated as

follows: “Excessive regulation can disrupt vital functions of a business,

threatening the company’s very existence. Similarly, exposing a business to

regulations not explicitly covered by statute or rule could have an equally

detrimental impact.” Id at 384.

      {¶50} Here, we find Appellant’s unreasonable interpretation of the

relevant rules, statutes and definitions, and subsequent enforcement was

tantamount to illegal rulemaking in violation of R.C. Chapter 119. As such,

Appellant’s fourth assignment of error is overruled and decision of the trial

court is affirmed with respect to this issue.
Washington App. No. 10CA17                                                      32


                        ASSIGNMENT OF ERROR III

      {¶51} In its third assignment of error, Appellant contends that the trial

court erred and abused its discretion in issuing an injunction against future

enforcement by Appellant of Ohio’s feed label laws against Appellees’ feed

product labels. The standard of review regarding the granting of an

injunction by a trial court is whether the trial court abused its discretion. City

of Canton v. Campbell, Stark App. No. 2001CA00205, 2002-Ohio-1856

citing Mechanical Contractors Association of Cincinnati, Inc. v. University

of Cincinnati (2001), 141 Ohio App.3d 333, 338, 750 N.E.2d 1217. The

terms abuse of discretion connotes more than an error of law or judgment. It

suggests that the court's attitude is unreasonable, arbitrary or

unconscionable. Id .

      {¶52} Appellant initially contends that Appellees’ should not have

been able to pursue an injunction, arguing there was no claim for injunctive

relief to be found anywhere in the amended complaint. To the contrary,

Appellant’s amended complaint was titled “Amended Complaint for

Declaratory Judgment and Injunctive And Other Relief.” Further, in the

“Prayer for Relief” Appellees’ requested that the trial court “[d]eclare that

ODA is estopped from revoking Linda’s and Donna’s commercial feed

registrations now and in the future.”
Washington App. No. 10CA17                                                        33


      {¶53} Civ.R. 8 governs “General rules of pleading” and provides in

(A) “Claims for relief” that

“A pleading that sets forth a claim for relief, whether an original claim,
counterclaim, cross-claim, or third-party claim, shall contain (1) a short and
plain statement of the claim showing that the party is entitled to relief, and
(2) a demand for judgment for the relief to which the party claims to be
entitled.”

In Ogle v. Ohio Power Co., 180 Ohio App.3d 44, 2008-Ohio-7042, 903

N.E.2d 1284 at ¶ 5, we noted that “Civ.R. 8(A) requires only a short and

plain statement of the claim that gives the defendant fair notice of the

plaintiff's claim and the grounds upon which it is based[,] * * * Thus, a

plaintiff is not required to plead the legal theory of the case at the pleading

stage and need only give reasonable notice of the claim.” Citations omitted.

As such, we cannot conclude that that trial court erred or abused its

discretion in considering Appellees’ request for an injunction.

      {¶54} Appellant further contends that “the injunction as stated goes

far beyond any reasonable or necessary remedial measure[,]” arguing that

the trial court has essentially granted Appellees “a lifetime ‘immunity card’

from the requirements of lawful public protection law.” In support of this

argument Appellant points out that aside from the issue of whether milk is

an acceptable ingredient, the labels do not contain other mandatory terms

related to a guaranteed analysis, disclosures of crude protein, fat, fiber and
Washington App. No. 10CA17                                                    34


moisture, disclosure of the intended animal species and adequate feeding

instructions. The trial court summarily dismissed this argument below,

reasoning that “ODA cannot now use other reasons for issuing the stop

orders to the Plaintiffs, including such reasons as their labels do not contain

instructions for use, they do not specify the species of animal for which the

products should be used, or they do not contain moisture content or

minimum or maximum percentages.”

      {¶55} Contrary to the findings of the trial court, Appellant made this

argument as early as the summary judgment phase, well before the trial on

the merits. As set forth above, David Simmons affidavit in support of

Appellant’s motion for summary judgment alleged these labeling

deficiencies and Appellees have not disputed them. Thus, we agree with

Appellant’s argument that the injunction granted goes beyond any necessary

remedial measure. To affirm the injunction as it is would permit Appellees’

noncompliance with these other labeling requirements.

      {¶56} However, in light of our determination under Appellant’s fourth

assignment of error that Appellant engaged in illegal rulemaking by

enforcing a prohibition against raw milk, we uphold the injunction to the

limited extent that it enjoins Appellant from issuing stop sale orders or

revoking Appellees feed registrations based upon the inclusion of raw milk
Washington App. No. 10CA17                                                    35


as an ingredient. That is, unless and until Appellant, ODA, properly

promulgates a rule which specifically prohibits the use of raw milk.

      {¶57} As such, we conclude that the trial court abused its discretion in

granting injunctive relief, to the extent that the relief exceeds enjoining

Appellant from enforcing a prohibition on raw milk. Accordingly,

Appellant’s third assignment of error is sustained in part and the injunction

is vacated in part.

                        ASSIGNMENT OF ERROR II

      {¶58} In its second assignment of error, Appellant contends that the

trial court erred and abused its discretion in awarding Appellees attorney

fees. Specifically, Appellant argues that the trial court awarded all of

Appellees attorney fees from the beginning of their dealings with ODA

without regard to whether such fees pertain to the legal issues upon which

they prevailed. Appellants argue that some of the legal fees pertain to the

dismissed counts relating to the ODA administrative matter. Appellant also

argues that it was substantially justified in initiating the matter in

controversy and as such attorney fees should have been denied. Appellant

further challenges the trial court’s decision to allow an hourly rate of

$165.00, instead of the statutory rate of $75.00 per hour.
Washington App. No. 10CA17                                                       36


      {¶59} We initially note that the trial court appears to have granted

attorney fees under R.C. 2335.39 rather than R.C. 119.092 as Appellees did

not go through the administrative hearing process. In reviewing the action

of the court of common pleas, we may modify the court’s order only if we

find that the grant of an award, or the calculation of the amount of the award,

involved an abuse of discretion. R.C. 2335.39. The terms abuse of

discretion connotes more than an error of law or judgment. It suggests that

the court's attitude is unreasonable, arbitrary or unconscionable. Mechanical

Contractors Association of Cincinnati, Inc, supra.

      {¶60} R.C. 2335.39(B) provides that an individual may recover

attorney fees if (1) he prevails, (2) he is financially eligible, and (3) the

state's position in initiating the matter in controversy was not substantially

justified. Further, when considering a motion for attorney fees, a trial court

may deny an award or reduce it if it finds that the state was substantially

justified in initiating the matter in controversy, or that the “prevailing

eligible party engaged in conduct during the course of the action or appeal

that unduly and unreasonably protracted the final resolution of the matter in

controversy.” R.C. 2335.39(B)(2)(a)-(b).
Washington App. No. 10CA17                                                                                      37


           {¶61} We first address the issue of whether Appellees were, in fact,

prevailing parties under R.C. 2335.39.7 The trial court found Appellees to

be prevailing parties and awarded them all of their attorney fees, without

reduction, at an hourly rate of $165.00. Appellant challenges this finding,

arguing Appellees cannot be prevailing parties on counts two and three of

their complaint, which were voluntarily dismissed.

           {¶62} R.C. 2335.39(A)(5) defines a “prevailing eligible party” as “an

eligible party that prevails in an action or appeal involving the state.” Here,

Appellees’ amended complaint included four counts and a request for an

injunction. Counts one and four dealt with the issuance of the stop sale

order under R.C. 923.52 and ODA’s illegal rulemaking, respectively and

were the subject of the present appeal. Counts two and three both dealt with

ODA’s failure to hold an administrative hearing after proposing to revoke

Appellees’ commercial feed registrations. Counts two and three were

voluntarily dismissed by Appellees at the trial court level and have not been

addressed on appeal.

           {¶63} “A party who appeals an order or judgment and prevails to the

extent that he obtains a new trial, or a modification of the judgment, is a

“prevailing party” within the contemplation of R.C. 2335.39. There is


7
    It is undisputed on appeal that Appellees are financially eligible parties, thus, we do not address this issue.
Washington App. No. 10CA17                                                      38


nothing in that section that requires a finding that a prevailing party on an

appeal is limited to one who succeeds in having a ‘complete victory,’ which

presumably means having the entire matter determined in his favor without a

remand to the tribunal from which the appeal is taken for further

proceedings.” Korn v. Ohio State Medical Board, 71 Ohio App.3d 483, 487,

594 N.E.2d 720. Although Korn prevailed in his appeal, he failed to achieve

a total victory. Id. In response to an argument that attorney fees could not

be awarded on a pro rata basis, the Tenth District Court of Appeals reasoned

that “the trial court must find the amount of attorney fees that were

reasonably expended with respect to the matters as to which Korn was

successful on appeal.” Id. at 489.

      {¶64} We find the reasoning in Korn to be persuasive and instructive

on how to handle the issue presently before us. Thus, like the trial court, we

find Appellees to be prevailing parties, despite their failure to achieve a

complete victory. However, we also find that the trial court should have

apportioned the award of attorney fees based upon the counts upon which

Appellees were successful and that its failure to do so was an abuse of

discretion. Thus, and in light of the determinations made in the within

appeal, Appellees were only successful on count four of their amended

complaint, as well as their request for an injunction. In so finding, we agree
Washington App. No. 10CA17                                                                                39


with Appellant that Appellees should not be awarded attorney fees for

counts two and three, which they voluntarily dismissed at the trial court

level.

         {¶65} We next address the issue of whether the trial court should have

denied or reduced the attorney fee award under R.C. 2335.39(B)(2)(a) or (b).

Here, in light of the fact that we determined Appellant engaged in illegal

rulemaking and initially issued a stop sale order pursuant to its illegal

rulemaking, we reject Appellant’s assertion that it was substantially justified

in initiating the matter in controversy.8 As such, the trial court did not abuse

its discretion in failing to deny or reduce the award under R.C.

2335.39(B)(2)(a). However, in light of our determination that Appellees

should have requested a condemnation hearing pursuant to R.C. 923.52, on

remand, the trial court would be justified in reducing the award accordingly.

         {¶66} Finally, Appellant challenges the trial court’s determination that

an hourly rate of $165.00 was reasonable. R.C. 2335.39(A)(3) provides that

“ ‘[f]ees’ means reasonable attorney’s fees, in an amount not to exceed

seventy-five dollars per hour or a higher hourly fee approved by the court.”

(Emphasis added). At the hearing on attorney fees, counsel for Appellees

testified that his usual hourly rate is $175.00 per hour but that he billed

8
 We agree with Appellees that ODA’s issuance of the stop sale order initiated the matter in controversy.
State ex rel. R.T.G. Inc., et al. v. State of Ohio, 98 Ohio St.3d 1, 2002-Ohio-6717, 780-N.E.2d 998 at ¶67.
Washington App. No. 10CA17                                                     40


Appellees $165.00. The trial court found this hourly rate to be acceptable

and in light of the language in the statute, we cannot find that the trial court

abused its discretion in approving that hourly rate.

      {¶67} Accordingly, based upon our conclusion that the trial court

abused its discretion in awarding attorney fees, Appellant’s second

assignment of error is sustained. The issue of attorney fees is remanded to

the trial court for reduction of the fees on a pro rata basis, taking into

consideration the issues upon which Appellees were successful, bearing in

mind the result of the current appeal. Further, on remand, the trial court

should consider whether and to what extent Appellees failure to request a

condemnation hearing unduly and unreasonably protracted the final

resolution of the matter in controversy, and shall reduce the amount of

attorney fees accordingly.

                                        JUDGMENT AFFIRMED IN PART,
                                         REVERSED IN PART, VACATED
                                            IN PART, AND REMANDED.
Washington App. No. 10CA17                                                     41


                             JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED IN PART,
REVERSED IN PART, VACATED IN PART, AND THE CAUSE
REMANDED and that the Appellees and the Appellant split the costs
herein taxed.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Washington County Common Pleas Court to carry this judgment into
execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Abele, J.: Concurs in Judgment and Opinion.
Harsha, P.J.: Concurs in Judgment Only.




                                       For the Court,


                                       BY: _________________________
                                           Matthew W. McFarland, Judge



                         NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
Washington App. No. 10CA17   42
