[Cite as Ohio Civ. Rights Comm. v. Lyons, 2016-Ohio-7174.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               LOGAN COUNTY




OHIO CIVIL RIGHTS COMMISSION,

        PLAINTIFF-APPELLEE,                                  CASE NO. 8-16-05

        v.

DORIS LYONS, ET AL.,

        DEFENDANTS-APPELLEES.                                OPINION

[LATASHA HANNAH - INTERVENING
PLAINTIFF - APPELLANT]




                 Appeal from Logan County Common Pleas Court
                          Trial Court No. CV 14 07 0220

                                     Judgment Affirmed

                           Date of Decision: October 3, 2016




APPEARANCES:

        Brian J. Williams for Appellant, Latasha Hannah

        Steven R. Fansler for Appellees
Case No. 8-16-05



SHAW, P.J.

       {¶1} Plaintiff-appellant, Latasha Hannah (“Hannah”), brings this appeal

from the January 19, 2016, judgment of the Logan County Common Pleas Court

denying her request for attorney’s fees following a settlement on a claim that

defendants-landlords-appellees, Doris Lyons and Charles Lyons (collectively

referred to as appellees), engaged in discriminatory housing practices.

                      Relevant Facts and Procedural History

       {¶2} Appellees are the owners of three residential properties on the same

street in Bellefontaine, Ohio. The appellees lived in one of the properties and rented

out the other two residences.

       {¶3} In November of 2012, Hannah was seeking a residence for herself and

her daughter. She allegedly found the appellees’ property at 441 East Spring Street

on a list of prospective Section 8 rentals through the Logan County Metropolitan

Housing Authority. Hannah contacted the appellees and spoke with Doris Lyons

on the phone.

       {¶4} According to Doris’s deposition, the phone conversation was roughly

five minutes and Doris informed Hannah that the property was currently rented for

another month and then would need repairs, thus making the property not

immediately available.     Doris testified that she took Hannah’s information,



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including her employment information, and would get back to her when the property

became available.

       {¶5} According to Hannah’s deposition, the conversation between her and

Doris lasted approximately 15-20 minutes. Hannah testified that she discussed

Section 8 with Doris, that she discussed the rent amount with Doris, and that Doris

informed her that the property would be available for rent after the current tenants

moved out and repairs were made to the house. Hannah testified that Doris then

took Hannah’s references.

       {¶6} It is undisputed that Doris Lyons called Hannah’s employer, Logan

Acres, to verify Hannah’s employment status. Doris spoke to a woman named Kim

Miller, an administrative assistant at Logan acres. During the call, Doris asked if

Hannah was “white or colored.” (Kim Miller Depo. Tr. at 10). Kim asked Doris to

repeat the question and asked why Doris wanted to know. Kim testified that Doris

indicated she had some rental properties Hannah had inquired about. Kim testified

that she told Doris that Doris’s question was discriminatory and that Doris

responded by saying she had not done anything yet but she could tell by Kim’s tone

that Hannah “must be colored.” (Id. at 11).

       {¶7} Doris admitted in her deposition that she made a mistake when she

asked whether Hannah was “colored” when she called Logan Acres. Doris testified

she was just curious because Hannah’s name was unusual. Doris contended that she


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had rented to African-Americans before. Doris testified that she never spoke with

Hannah again because the property was not ready for several months and she had

misplaced Hannah’s number by the time it was available.

       {¶8} Hannah testified that she actually received two phone calls from the

appellees after she spoke with Doris the first time but she did not answer them.

Hannah testified that she called the appellees back twice, the first time leaving a

message. Hannah testified that on her second call, she spoke very briefly with David

Lyons. Hannah testified that after she identified herself on the phone call, David

told her that her services would not be needed and then he hung up the phone.

Hannah testified that the conversation lasted five seconds or less.

       {¶9} In his deposition, David denied ever speaking to Hannah on the phone.

Doris also denied ever attempting to get in contact with Hannah again, because the

rental property was not ready to be rented for approximately six months and by that

time there was a couple from her church she knew that wanted to rent the property.

       {¶10} Hannah’s employer made her aware of the statements Doris had made

when calling Logan Acres. The Ohio Civil Rights Commission was then notified

and it investigated the matter.

       {¶11} On July 7, 2014, the Ohio Civil Rights Commission filed a complaint

against the appellees, alleging that the appellees violated R.C. 4112.02(H)(1) and

(H)(8) for engaging in discriminatory housing practices. (Doc. No. 1).


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       {¶12} On August 14, 2014, the appellees filed a motion to dismiss arguing,

inter alia, that the commission failed to file a claim in a timely manner. On

September 2, 2014, the commission filed a response.

       {¶13} On September 18, 2014, Hannah filed a motion to intervene as party

plaintiff. That motion was granted on September 23, 2014.

       {¶14} On October 2, 2014, the trial court filed an entry denying the

appellees’ motion to dismiss.

       {¶15} On October 3, 2014, Hannah filed her intervening complaint, alleging

that the appellees had violated Ohio’s fair housing laws.

       {¶16} On October 16, 2014, appellees filed their answer to the commission’s

complaint, denying any wrongdoing. On March 12, 2015, the appellees filed their

answer to Hannah’s intervening complaint, similarly denying any wrongdoing.

       {¶17} All parties then filed motions for summary judgment.

       {¶18} On March 18, 2015, the trial court filed an entry ordering the parties

to attend mediation. The parties did attend mediation, and a settlement was reached

on all issues other than whether Hannah would be awarded attorney’s fees.

Handwritten notes and agreements from the mediation were filed in the record,

containing the following terms.

       [The] Lyons will pay Hannah [$]9,000.

       [The] Lyons will re-imburse [sic] State of Ohio for actual costs.


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       Each will pay 1/3 of Mediation costs.

       OCRC will give training [to the Lyons].

       Case will be dismissed with prejudice, no record pending ESQ
       fees [sic]

       No admission and no finding of liability/guilt

       As to the remaining issue unresolved at mediation relating [to] the
       attorney fees of intervening Plaintiff’s attorney the parties agree

       1.)   Brian Williams [Hannah’s attorney] shall submit an
             application for fees

       2.)   Steve Fansler [appellees’ attorney] does not oppose
             submission of an application for fees

       3.)   Fansler acknowledges that the court has the right to award
             fees

       4.)   A fee award is not mandatory

(Doc. No. 110, Ex. 3). The mediation document was signed by the parties and their

attorneys.

       {¶19} On May 21, 2015, the trial court filed an entry dismissing the

commission’s complaint with prejudice due to the mediation agreement. The

commission took no further part in this case.

       {¶20} On November 24, 2015, Hannah filed an application for attorney’s

fees in the amount of $32,838. In her application, Hannah cited R.C. 4112.051(D),

which states,



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        (D) If the court or the jury in a civil action under this section finds
        that a violation of division (H) of section 4112.021 of the Revised
        Code has occurred, the court shall award to the plaintiff or to the
        complainant or aggrieved person on whose behalf the office of the
        attorney general commenced or maintained the civil action,
        whichever is applicable, actual damages, reasonable attorney’s
        fees, court costs incurred in the prosecution of the action, expert
        witness fees, and other litigation expenses, and may grant other
        relief that it considers appropriate, including a permanent or
        temporary injunction, a temporary restraining order, or other
        order and punitive damages.

        {¶21} Hannah argued that the matter resolved in mediation in her favor and

that she should be awarded her attorney’s fees since she prevailed. Hannah argued

that the statute stated that fees “shall” be awarded, requiring her to be awarded fees.

Hannah cited R.C. 4112.08, which states that R.C. Chapter 4112 “shall be construed

liberally for the accomplishment of its purposes[.]” Hannah also claimed that R.C.

Chapter 4112 encouraged private enforcement of the Fair Housing Act, allowing

individuals injured by discriminatory practices to vindicate their own rights, as well

as promote the public interest in eradicating housing discrimination.

        {¶22} On November 24, 2015, appellees filed a “renewed” motion to dismiss

based on the statute of limitations despite the fact that they had already settled the

underlying claim and had agreed that Hannah could argue for attorney’s fees to the

trial court. On December 22, 2015, Hannah filed a response.




1
  This refers to the statutory section on Unlawful Discriminatory Practices. Section 4112.02(H) deals
specifically with housing.

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           {¶23} On January 11, 2016, the trial court filed a decision on the matter of

attorney’s fees. In its decision the trial court ultimately denied Hannah’s request for

attorney’s fees, after conducting the following analysis.

           Intervening Plaintiff seeks an award for attorney fees pursuant to
           R.C. 4112.051 of the Ohio Revised Code and specifically
           paragraph D of that section[.] * * *

           [Trial Court quotes R.C. 4112.051(D)]

           ***

                 The lynchpin in this case * * * is the statute. Ohio follows the
           American Rule that each party bears its own litigation costs in
           attorney fees. Ohio Trial Practice, 2015 Ed. Section 34:2. To
           award attorney fees there must be a contract or law authorizing
           the same. In this instance the intervening Plaintiff relies on the
           above quoted statute. The threshold for awarding attorney fees
           is that the Court or jury must find a violation; that has not
           happened in this case. Plaintiff’s application argues that the
           statute should be interpreted liberally to achieve the purpose of
           this legislation. [FN omitted]. In effect the Court would have to
           rewrite the law which this Court declines to do. The Defendants
           have made it perfectly clear that they did not agree in the
           settlement that they had an obligation to pay attorney fees but
           instead would contest the same. The notes of the settlement bear
           that out. There is no contract to pay attorney fees, the statute does
           not authorize it. Accordingly, intervening Plaintiff’s application
           for attorney fees is denied.

(Doc. No. 119).2

           {¶24} On January 19, 2016, the trial court entered a final judgment denying

Hannah’s request for attorney’s fees and dismissing the matter with prejudice. It is



2
    The trial court did not address the appellees’ “renewed motion to dismiss.”

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from this judgment that Hannah appeals, asserting the following assignment of error

for our review.

                    ASSIGNMENT OF ERROR
       THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
       BY ITS DENIAL OF THE APPLICATION FOR ATTORNEY
       FEES.

       {¶25} In her assignment of error, Hannah argues that the trial court erred in

denying her application for attorney’s fees. Specifically Hannah contends that R.C.

4112.051(D) should be liberally interpreted, that she was the prevailing party under

the lawsuit, and that she expressly preserved her right to seek attorney’s fees in the

mediation.

       {¶26} At the outset, we note that the plain language of R.C. 4112.051(D)

explicitly states that, “[i]f the court or the jury in a civil action finds that a violation

of * * * * section 4112.02 * * * has occurred, the court shall award * * * reasonable

attorney fees * * * incurred in the prosecution of the action.” (Emphasis added).

The trial court interpreted R.C. 4112.051(D) to not apply in situations where there

was a settlement because there was no predicate finding of a violation by a court or

a jury. Facially the statute does not seem to contemplate an award of attorney’s fees

where a discrimination claim has settled and the parties have explicitly agreed in

that settlement agreement that there is “[n]o admission and no finding of

liability/guilt.”



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       {¶27} Despite the plain language of R.C. 4112.051(D), Hannah argues that

R.C. Chapter 4112 should be given a “liberal construction” based on R.C. 4112.08,

which reads, in pertinent part, “This chapter shall be construed liberally for the

accomplishment of its purposes, and any law inconsistent with any provision of this

chapter shall not apply.” (Emphasis added). Hannah contends that by liberally

interpreting R.C. 4112.051(D) to allow attorney’s fees in scenarios such as these we

would be furthering public policy of reducing discrimination.

       {¶28} However, even though R.C. Chapter 4112 is to be liberally interpreted,

Hannah cites no Ohio cases wherein attorney’s fees were awarded in a

discrimination action following a settlement where there was an express agreement

of no finding of guilt and where the parties agreed that fees were not mandatory.

Instead, Hannah relies on a number of federal cases interpreting similar federal

discrimination statutes wherein it has been determined that attorney’s fees may be

awarded to the “prevailing party” in a discrimination claim even if the claim was

settled. See Maher v. Gagne, 448 U.S. 122, 129-130 (1980) (determining that for

purposes of awarding attorney’s fees under 42 U.S.C. §1988 a party may be

considered to be a “prevailing party” in an action by vindicating their rights through

settlement).

       {¶29} Specifically, Hannah cites the Fair Housing Act codified in 42 U.S.C.

§3601 et seq., and Proceedings in Vindication of Civil Rights under 42 U.S.C.


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§1988.     These two federal statutes contain the following language related to

attorney’s fees.

         [42 U.S.C. §3612] (p) Attorney’s fees

         In any administrative proceeding brought under this section, or
         any court proceeding arising therefrom, or any civil action under
         this section, the administrative law judge or the court, as the case
         may be, in its discretion, may allow the prevailing party, other
         than the United States, a reasonable attorney’s fee and costs. The
         United States shall be liable for such fees and costs to the extent
         provided by section 504 of Title 5 or by section 2412 of Title 28.

         [42 U.S.C. § 1988] (b) Attorney’s fees

         In any action or proceeding to enforce a provision of sections
         1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of
         Public Law 92-318 [20 U.S.C.A. § 1681 et seq.], the Religious
         Freedom Restoration Act of 1993 [42 U.S.C.A. § 2000bb et seq.],
         the Religious Land Use and Institutionalized Persons Act of 2000
         [42 U.S.C.A. § 2000cc et seq.], title VI of the Civil Rights Act of
         1964 [42 U.S.C.A. § 2000d et seq.], or section 13981 of this title,
         the court, in its discretion, may allow the prevailing party, other
         than the United States, a reasonable attorney’s fee as part of the
         costs, except that in any action brought against a judicial officer
         for an act or omission taken in such officer’s judicial capacity
         such officer shall not be held liable for any costs, including
         attorney’s fees, unless such action was clearly in excess of such
         officer’s jurisdiction.

         {¶30} Notably, there are some immediate facial differences between the

federal statutes and the Ohio statute. First, the federal statutes have no qualifier

limiting them to situations where a violation was found by a court or a jury. Second,

both of the federal statutes allow attorney’s fees to be awarded to the “prevailing

party,” a designation that the United States Supreme Court has determined to

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include people who have vindicated their rights through settlement. No such

designation exists in Ohio’s statute. Further, the federal statutes do not mandate

that attorney’s fees be awarded to successful claimants; rather, they permit a trial

court to order attorney’s fees within the court’s discretion. Ohio’s statute is actually

stricter than the federal statutes in the event a violation is found by a court or a jury,

as it requires a trial court to order attorney’s fees in those scenarios.

       {¶31} The problem in this case arises because the Ohio statute appears to

limit recovery of attorney’s fees to situations where a violation has been found by a

court or a jury. Hannah argues that strictly limiting the Ohio statute to those express

situations actually discourages settlement and would force clients to proceed to trial

purely to get an award for attorney’s fees. However, R.C. 4112.051(D) has clear

and unambiguous language that applies only when there is a finding by a court or a

jury. We must presume that the legislature was aware of the language it chose when

drafting the statute and specifically elected not to use the broader language of the

federal statute.

       {¶32} Furthermore, while Hannah argues that Ohio’s statute discourages

settlement because attorneys would have to go to trial to get attorney’s fees, it

arguably encourages settlement because defendants would be aware that if they lost

at trial they would be mandated to pay the opposing attorney’s fees, incentivizing

them to settle at an earlier stage. Thus we cannot find that the trial court erred in


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applying the clear and unambiguous language of the Ohio statute in this case.

Accordingly, Hannah’s assignment of error is overruled.3

         {¶33} For the foregoing reasons Hannah’s assignment of error is overruled

and the judgment of the Logan County Common Pleas Court is affirmed.

                                                                                     Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




3
  We note that the appellees attempt to renew their argument on appeal that the case should be dismissed for
being untimely filed. Our disposition renders that argument moot. Nonetheless, we note that their argument
seems questionable, at best, in light of the fact that they had already settled the matter at the time they filed
their “renewed motion to dismiss,” and the fact that they agreed at mediation that Hannah could file for her
attorney’s fees.

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