[Cite as Gale v. Pattie Group, Inc., 2016-Ohio-5233.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                  Nos. 103336 and 103368



                                  BRIAN GALE, ET AL.
                                                              PLAINTIFFS-APPELLANTS/
                                                              CROSS-APPELLEES

                                                        vs.


                                  PATTIE GROUP, INC.
                                                              DEFENDANT-APPELLEE/
                                                              CROSS-APPELLANT



                               JUDGMENT:
                   AFFIRMED IN PART, REVERSED IN PART,
                             AND REMANDED


                                      Civil Appeals from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CV-14-824827

        BEFORE:            Boyle, J., Jones, A.J., and Kilbane, J.

        RELEASED AND JOURNALIZED:                             August 4, 2016
ATTORNEY FOR APPELLANTS/CROSS-APPELLEES

David Lavey
8748 Brecksville Road
Suite 218
Brecksville, Ohio 44141


ATTORNEY FOR APPELLEE/CROSS-APPELLANT

Kimberlee J. Kmetz
Kmetz Law, L.L.C.
3855 Starr Centre Drive
Suite A
Canfield, Ohio 44406

David M. King
Schraff & King Co., L.P.A.
2802 S.O.M. Center Road
Suite 200
Willoughby, Ohio 44094
MARY J. BOYLE, J.:

       {¶1} In this consolidated appeal, Brian and Kelly Gale (collectively the “Gales”)

appeal the trial court’s judgment denying their motion for attorney fees and statutory

damages under R.C. 1345.09(B) and (F) after a jury found in their favor on two of their

claims against a landscaping company, Pattie Group, Inc. (“Pattie Group”).    They raise

two assignments of error for our review:

       1. The trial court erred when it denied [the Gales’] motion for attorney
       fees under R.C. 1345.09(F) without conducting a hearing, indeed, before
       [the Gales’] even filed their brief setting forth the law and facts.

       2. The trial court erred when it failed to award [the Gales] damages
       mandated by R.C. 1345.09(B) without conducting a hearing, indeed, before
       [the Gales] even filed their brief setting forth the law and facts.

       {¶2} Pattie Group appeals the trial court’s judgment denying its motion for

judgment notwithstanding the verdict. It raises one assignment of error for our review:

       The trial court erred in denying [Pattie Group’s] motion for judgment
       notwithstanding the verdict on all claims brought by [the Gales] or on the
       claims of invalid lien in violation of the Consumer Sales Practices Act
       because [the Gales] lacked standing to bring those claims since they were
       not the owners of real property at issue.

       {¶3} After review, we find merit to the Gales’ second assignment of error, and

agree that the trial court should have awarded them $200 in statutory damages under R.C.

1345.09(B).    We find no merit, however, to the Gales’ argument regarding attorney fees

or to Pattie Group’s argument that the Gales lacked standing.   Therefore, we affirm in

part and reverse in part.

I. Procedural History and Factual Background
       {¶4} In April 2013, the Gales contracted Pattie Group to construct an outdoor

fireplace on their patio, to make certain repairs to their patio and their outdoor pond, and

for “grading, lawn installation, drainage, irrigation, and landscaping.”

       {¶5} In September 2013, Pattie Group filed a mechanic’s lien against the Gales’

home in the amount of $15,103.

       {¶6} In April 2014, the Gales filed a complaint against Pattie Group for breach

of contract, slander of title, quiet title (requesting an invalid lien be removed and money

damages), and violations of the Consumer Sales Practices Act (“CSPA”) for filing the

invalid lien. The Gales alleged that Pattie Group failed to complete all of the work

under the contract, and that the work Pattie Group did complete was faulty and not

completed on time.    The Gales further alleged that the mechanic’s lien was fraudulent

because they did not owe Pattie Group the amount of the lien, and because the lien was

untimely.

       {¶7} Pattie    Group     answered    the   Gales’   complaint       and   filed   several

counterclaims, including breach of contract and unjust enrichment, asserting that it

performed all work under the contract and that the Gales failed to pay Pattie Group what

they owed under the contract.     Pattie Group further sought a declaratory judgment that

the lien was valid.

       {¶8} After a week-long trial, the jury found in favor of the Gales on their invalid

lien claim and their claim alleging that Pattie Group violated the CSPA for filing an

invalid mechanic’s lien.   The jury found in favor of Pattie Group on the Gales’ breach of
contract and slander of title claims, and found in favor of Pattie Group on its breach of

contract claim.

        {¶9} The jury did not award the Gales any damages on their claims.           The jury

awarded Pattie Group $300 on its breach of contract claim.

        {¶10} On April 23, 2015 (one day after the trial ended), the Gales filed a motion

for “attorney fees and other costs and damages awardable under the Ohio [CSPA] based

upon the jury’s verdict finding in favor of the plaintiffs on their CSPA claim.” In their

motion, the Gales requested a hearing “at which they [would] present their evidence of

fees and costs.”    They further explained that they would fully brief the court with

“appropriate legal and evidentiary citations * * * after final billings on [the] case [had]

been prepared and received.”

        {¶11} The trial court journalized the jury’s verdict four days later, on April 27,

2015.    The trial court included the following order in its judgment: “Each party to bear

their own costs and attorney fees.     Court cost assessed as each their own.”

        {¶12} On April 30, 2015, the Gales filed their “brief in support of motion for fees,

costs, and other relief.”    The Gales requested attorney fees in the amount of $17,280, as

well as other litigation costs amounting to approximately $1,000. The Gales further

sought statutory damages under the CSPA, asserting that they were entitled to $200 in

mandatory statutory damages for proving that Pattie Group knowingly filed an invalid

lien under the CSPA.        The Gales requested an evidentiary hearing, or in the alternative,
stated that they would produce a brief with such evidence if the court preferred to hear the

matter on the briefs.

       {¶13} On May 15, 2015, Pattie Group moved for judgment notwithstanding the

verdict, asserting that the Gales lacked standing to bring the suit against Pattie Group

because the Kelly M. Gale Trust owned the property, not the Gales.            The trial court

denied Pattie Group’s motion on July 6, 2015.

       {¶14} On August 5, 2015, the trial court issued a judgment, upon the Gales’

request, for the clerk of courts to memorialize the jury’s verdict that the lien was invalid.

In the judgment, the trial court restated verbatim what it had journalized on April 27,

2015, and ordered that the Gales’ request to memorialize the jury’s verdict was moot.      It

then added the following language relevant to the Gales’ request for attorney fees:

       Prior to entry of judgment, plaintiffs requested an award of their fees and
       costs. Their request was denied by entry of judgment as inconsistent with
       the jury’s express determination, made at plaintiffs’ direction, that plaintiffs
       were not entitled to attorneys’ fees. After entry of judgment, defendant
       sought judgment notwithstanding the verdict, which was similarly denied.

       {¶15} The Gales filed a notice of appeal on August 5, 2015 (appealing the trial

court’s April 27, 2015, and August 5, 2015 judgments). Pattie Group appealed the trial

court’s judgment denying its motion notwithstanding the judgment.                  This court

subsequently remanded the case for clarification of the trial court’s judgments.

       {¶16} On remand, the trial court issued the following judgment:

       Order of clarification: As reflected in the docket, plaintiffs filed a motion
       for attorney fees on April 23, 2015. The court, having conducted all of the
       proceedings including settlement negotiations, having heard all of the
       evidence at trial, and having reviewed the motion received via electronic
       filing on April 23, 2015, entered judgment on April 27, 2015 consistent
       with the jury’s finding that plaintiffs were not entitled to recover their
       attorney’s fees.

II. Standing to Sue

       {¶17} In its sole assignment of error, Pattie Group argues that the Gales lacked

standing to bring the lawsuit against it because the Gales did not own the property on

which the lien was attached.       Pattie Group contends that because the Kelly M. Gale

Trust owned the property, the trust had standing. We will address this issue first because

if Pattie Group’s argument has merit, then the trial court would have erred when it denied

Pattie Group’s motion for judgment notwithstanding the verdict. But after review, we

find no error on the part of the trial court.

       {¶18} Civ.R. 50 sets forth the standard for granting a motion for a directed verdict:

       When a motion for directed verdict has been properly made, and the trial
       court, after construing the evidence most strongly in favor of the party
       against whom the motion is directed, finds that upon any determinative
       issue reasonable minds could come to but one conclusion upon the evidence
       submitted and that conclusion is adverse to such party, the court shall
       sustain the motion and direct a verdict for the moving party as to that issue.

       {¶19} The standard of review for a motion for judgment notwithstanding the

verdict is the same as that for a directed verdict. Chem. Bank of N.Y. v. Neman, 52 Ohio

St.3d 204, 207, 556 N.E.2d 490 (1990). A motion for directed verdict or judgment

notwithstanding the verdict presents questions of law, not factual issues; thus, we employ

a de novo standard of review. Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm, 73

Ohio St.3d 107, 108, 652 N.E.2d 684 (1995).           Our test is whether the evidence,

construed most strongly in favor of the nonmoving party, is legally sufficient to sustain
the verdict. Environmental Network Corp. v. Goodman Weiss Miller, L.L.P., 119 Ohio

St.3d 209, 2008-Ohio-3833, 893 N.E.2d 173, ¶ 23.          Where substantial evidence is

presented such that reasonable minds could come to differing conclusions, the court

should deny the motion. Posin v. A.B.C. Motor Court Hotel, Inc., 45 Ohio St.2d 271,

275, 344 N.E.2d 334 (1976). Thus, we must determine if reasonable minds could come

to differing conclusions as to whether the Gales had standing.

      {¶20} In Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13,

2012-Ohio-5017, 979 N.E.2d 1214, the Ohio Supreme Court made it clear that a party

must have standing at the commencement of the suit to invoke the jurisdiction of the

common pleas court. Id. at ¶ 20-28.

      {¶21} The Ohio Constitution provides in Article IV, Section 4(B): “The courts of

common pleas and divisions thereof shall have such original jurisdiction over all

justiciable matters and such powers of review of proceedings of administrative officers

and agencies as may be provided by law.”    (Emphasis added.)

      Whether a party has a sufficient stake in an otherwise justiciable
      controversy to obtain judicial resolution of that controversy is what has
      traditionally been referred to as the question of standing to sue. Where the
      party does not rely on any specific statute authorizing invocation of the
      judicial process, the question of standing depends on whether the party has
      alleged * * * a “personal stake in the outcome of the controversy.”

Schwartzwald at ¶ 21, quoting Cleveland v. Shaker Hts., 30 Ohio St.3d 49, 51, 507

N.E.2d 323 (1987).

      {¶22} The Supreme Court further explained:
       “It is an elementary concept of law that a party lacks standing to invoke the
       jurisdiction of the court unless he has, in an individual or representative
       capacity, some real interest in the subject matter of the action.” (Emphasis
       [sic.]) See also New Boston Coke Corp. v. Tyler, 32 Ohio St.3d 216, 218,
       513 N.E.2d 302 (1987) (“the issue of standing, inasmuch as it is
       jurisdictional in nature, may be raised at any time during the pendency of
       the proceedings”); Steinglass & Scarselli, The Ohio State Constitution: A
       Reference Guide 180 (2004) (noting that the jurisdiction of the common
       pleas court is limited to justiciable matters).

Schwartzwald at ¶ 22, quoting State ex rel. Dallman v. Franklin Cty. Court of Common

Pleas, 35 Ohio St.2d 176, 179, 298 N.E.2d 515 (1973).

       {¶23} Pattie Group’s sole argument on appeal is that because the Gales did not

own the property (i.e., they were not the titled owners), they did not have standing to

bring the suit against Pattie Group “as a result of [an] alleged improper lien, or any other

claim of damage to that property.” Pattie Group maintains that only the Kelly M. Gale

Trust had standing. We disagree.

       {¶24} In this case, the Gales entered into a contract for landscaping services with

Pattie Group whereby the Gales agreed to pay Pattie Group a sum of money for

improvements made to the land surrounding the Gales’ residence (whether they owned

the property or not, it was their home).    Likewise, Pattie Group entered into a contract

with the Gales, not with the Kelly M. Gale Trust, agreeing to improve the land

surrounding the Gales’ residence for a sum of money. Notably, Pattie Group does not

contend that the contract was invalid. When Pattie Group did not complete the job to

the Gales’ liking and then filed the lien against the property, the Gales brought the present

action for breach of contract (and the other claims).        The Gales, as parties to the
contract, had a personal stake in the outcome of the controversy at the commencement of

the suit (it is irrelevant that the jury did not find in their favor on this claim).

       {¶25} The Gales also had standing to bring their remaining claims regarding the

mechanic’s lien (slander of title, removal of invalid lien, and violations of the CSPA

based on the invalid lien) because the lien was directly related to the contract between

Pattie Group and the Gales.       The lien specifically stated that “the lien claimant [Pattie

Group] furnished certain material or performed certain labor or work in furtherance of

improvements * * * pursuant to a certain contract with Brian D. Gale and Kelly M.

Gale[.]”

       {¶26} Under R.C. Chapter 1311, setting forth the law on mechanic’s liens, the lien

attaches to the contract, not the titled owner. See Romito Bros. Elec. Constr. Co. v.

Frank A. Flannery, Inc., 40 Ohio St.2d 79, 320 N.E.2d 294 (1974) (before one who

furnishes labor or material may enforce a mechanic’s lien, he or she must show that such

work was performed pursuant to a contract because the lien applies only to the interest of

the one with whom the contract was made); see also Summer & Co. v. DCR Corp., 47

Ohio St.2d 254, 351 N.E.2d 485 (1976) (“[T]he contractor’s mechanic’s lien extends only

to the leasehold interest of the party who ordered the work done.”).

       {¶27} In support of its argument that the Gales lacked standing because they were

not the titled owners, Pattie Group only cites to two cases: Lame v. E.G. Sys. Inc., 8th

Dist. Cuyahoga No. 101566, 2015-Ohio-686, and Adams v. Pitorak & Coenen Invests.,

Ltd., 11th Dist. Geauga No. 2011-G-3019, 2012-Ohio-3015. In both of these cases, the
plaintiffs sued an entity or entities who the plaintiffs alleged damaged their property, but

it was later discovered that the plaintiffs were not the titled owners of the property and,

thus, lacked standing. See Lame (plaintiff sued a landscaping company for trespassing

on land that plaintiff did not own); Adams (plaintiff sued a developer and excavating

company developing a neighboring uphill subdivision for loss of enjoyment of land,

trespass, nuisance, and interference with surface water regarding land that plaintiff did

not own). But notably, in Lame and Adams, unlike the present case, the plaintiffs had

not contracted with the entities they sued. Thus, Lame and Adams are distinguishable

and not applicable in this case.

       {¶28} Accordingly, Pattie Group’s sole assignment of error is overruled.

III.   Attorney Fees

       {¶29} In their first assignment of error, the Gales argue that the trial court abused

its discretion by denying their motion for attorney fees pursuant to R.C. 1345.09(F). The

Gales contend that the trial court denied their motion for attorney fees before it even read

their brief in support of their motion.      They further maintain that the trial court

erroneously applied the wrong legal standard because it relied on the jury’s answer to an

interrogatory rather than conducting its own analysis as to whether they were entitled to

attorney fees.

       {¶30} This court’s standard of review of a trial court’s determination regarding the

award of attorney fees is abuse of discretion. Einhorn v. Ford Motor Co., 48 Ohio St.3d

27, 29, 548 N.E.2d 933 (1990). “Abuse of discretion” has been defined as an attitude
that is unreasonable, arbitrary, or unconscionable. In re C.K., 2d Dist. Montgomery No.

25728, 2013-Ohio-4513, ¶ 13, citing Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83,

482 N.E.2d 1248 (1985).

        {¶31} R.C. 1345.09(F) provides for the award of attorney fees to the prevailing

party in an action brought under Ohio’s CSPA. This provision states in relevant part

that “[t]he court may award to the prevailing party a reasonable attorney’s fee limited to

the work reasonably performed, if * * * [t]he supplier has knowingly committed an act or

practice that violates this chapter.”

        {¶32} Thus, if a supplier knowingly commits an act that violates the CSPA, a trial

court has the discretion to award reasonable attorney fees to a party who prevails in a suit

against the supplier.       Warren v. Denes Concrete, Inc., 9th Dist. Lorain No.

10CA009877, 2011-Ohio-2988, ¶ 7, citing R.C. 1345.09(F)(2). But the Ohio Supreme

Court has reiterated that “R.C. Chapter 1345 does not mandate imposition of attorney

fees.   The trial court has the discretion to determine whether attorney fees are warranted

under the facts of each case.”      (Emphasis added.)   Charvat v. Ryan, 116 Ohio St.3d

394, 2007-Ohio-6833, 879 N.E.2d 765, ¶ 27.

        {¶33} In determining whether to award attorney fees under R.C. 1345.09(F), the

Ohio Supreme Court held:

               When awarding reasonable attorney fees pursuant to R.C.
        1345.09(F)(2), the trial court should first calculate the number of hours
        reasonably expended on the case times an hourly fee, and then may modify
        that calculation by application of the factors listed in DR 2-106(B). 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. All factors may not
       be applicable in all cases and the trial court has the discretion to determine
       which factors apply, and in what manner that application will affect the
       initial calculation.

Bittner v. Tri-County Toyota, Inc., 58 Ohio St.3d 143, 146, 569 N.E.2d 464 (1991).

       {¶34} In Bittner, the prevailing party on the CSPA claim requested attorney fees in

the amount that was billed to her.    The trial court held an evidentiary hearing, where the

prevailing party presented evidence of the amount of attorney fees that she had incurred,

which amounted to $12,711.54.        After the hearing, the trial court awarded the defendant

$10,000 without stating its reasons. The Ohio Supreme Court reversed because the trial

court failed to state its basis for not awarding the prevailing party what she had requested

and “had apparently [taken] into consideration other factors.” Id. The Supreme Court

noted that “[p]resumably, sufficient evidence was presented to support the award made by

the trial judge,” but that because the trial court did not state its basis for such an award, it

was “not possible to determine what factors the court considered or the weight, if any, it

placed on those factors.” Id. at 146.      Thus, the Supreme Court held: “When making a

fee award pursuant to R.C. 1345.09(F)(2), the trial court must state the basis for the fee

determination.    Absent such a statement, it is not possible for an appellate court to

conduct a meaningful review.” Id.

       {¶35} In this case, the trial court issued three judgments (on April 27, 2015,

August 5, 2015, and September 29, 2015, on remand from this court). In the first
judgment, the trial court denied the Gales’ motion for attorney fees three days before they

filed their brief in support of their motion — despite the fact that the Gales informed the

court that it would be submitting an evidentiary brief and despite the fact that the Gales

had requested an evidentiary hearing.     The trial court included the following order in its

judgment: “Each party to bear their own costs and attorney fees.       Court cost assessed as

each their own.”

        {¶36} On August 5, 2015, the trial court issued a judgment, upon the Gales’

request, for the clerk of courts to memorialize the jury’s verdict that the lien was invalid.

In the judgment, the trial court restated verbatim what it had journalized on April 27,

2015, and further stated that the Gales’ request to memorialize the jury’s verdict was

moot.    It then added the following language relevant to the Gales’ request for attorney

fees:

        Prior to entry of judgment, plaintiffs requested an award of their fees and
        costs. Their request was denied by entry of judgment as inconsistent with
        the jury’s express determination, made at plaintiffs’ direction, that plaintiffs
        were not entitled to attorneys’ fees. After entry of judgment, defendant
        sought judgment notwithstanding the verdict, which was similarly denied.

        {¶37} Upon remand from this court, the trial court issued the following judgment:

        Order of Clarification: As reflected in the docket, plaintiffs filed a motion
        for attorney’s fees on 4/23/2015. The court, having conducted all of the
        proceedings including settlement negotiations, having heard all of the
        evidence at trial, and having reviewed the motion received via electronic
        filing on 4/23/2015, entered judgment on 4/27/2015 consistent with the
        jury’s finding that plaintiffs were not entitled to recover their attorney’s
        fees.
       {¶38} In both of its later judgments, the trial court stated that denying the Gales’

motion for attorney fees was consistent with the jury’s finding that the Gales were not

entitled to recover their attorney fees and costs.

       {¶39} After review, we agree with the Gales that the trial court incorrectly relied

on the jury’s answer to the interrogatory — that the Gales were not entitled to an award of

attorney fees — to deny the Gales’ motion for attorney fees and costs.        As we explain

below, the jury interrogatory stating that the Gales were not entitled to attorney fees went

to their slander of title claim, not their CSPA claim.

       {¶40} Before the case went to the jury for deliberation, the trial court and the

parties reviewed the jury interrogatories and instructions. When discussing the jury

interrogatories involving the Gales’ slander of title claim, the trial court said that

interrogatory No. 6 stated:

       Did Pattie Group slander the title of the Gales’ property by filing a lien?
       Yes or No? Did Pattie Group act in bad faith when it filed the lien? Yes
       or No? If the answer to interrogatory no. 6 is yes, what amount of
       damages, excluding attorney fees and litigation costs do you award to Gales
       in compensation for Pattie Group’s slander of title?

       {¶41} The Gales’ counsel interrupted the court at that point and said, “Right there,

your Honor, I propose adding a new interrogatory that says, are the Gales entitled to

recover their attorney fees?   Yes, No.”    Subsequent to that discussion, the court and the

parties discussed the remaining interrogatories, which involved the Gales’ CSPA claim.

       {¶42} The jury instructions regarding the Gales’ slander of title claim further

support the fact that the interrogatory asking the jury if the Gales were entitled to attorney
fees went to that claim, and not the Gales’ CSPA claim. The jury instructions explained

the law on slander of title, and then stated:

               To prevail on their claim for slander of title, the Gales must prove by
       a preponderance of the evidence that they suffered damages as a result of
       the filing of the lien. In a slander of title case involving a lien, the
       plaintiffs may recover as damages: (A) the pecuniary loss that results
       directly and immediately from the false defamation of their title to the
       property resulting from the filing of the lien, and (B) the expense of
       measures reasonably necessary to remove the lien. The damages claimed
       by the Gales include the attorney fees and litigation costs incurred by the
       Gales in having the lien removed. If you find in favor of the Gales on the
       slander of title claim, and determine that they are entitled to recover these
       fees and costs, the court, not you, will determine the amount of such
       damages.

              At this post-trial hearing, the plaintiffs may be permitted to recover
       certain additional attorney fees and litigation costs if you find in plaintiffs’
       favor on the slander of title claim, and if you determine that plaintiffs have
       proven by a preponderance of the evidence that the defendant filed the lien
       in bad faith. An act is made in bad faith if it is done with a wrongful or
       dishonest purpose or with a motive of self-interest.

       {¶43} The jury answered “yes” that Pattie Group filed the lien in bad faith and

“no” that the Gales were not entitled to an award of attorney fees.     But because they did

not find for the Gales on the slander of title claim, they did not have to answer these two

interrogatories.   It would have been more clear if the interrogatories had prefaced the

questions with, “If the answer to Interrogatory No. 6 is ‘YES’” — that Pattie Group

slandered the title of the Gales’ property by filing the lien — and then posed the question.

 It is likely that the jury answered that the Gales were not entitled to an award of attorney

fees because the jury did not find in the Gales’ favor on the slander of title claim.
         {¶44} Reviewing the jury interrogatories and instructions regarding the Gales’

CSPA claim further support the fact that the interrogatory to the jury regarding whether

the Gales were entitled to attorney fees went to the slander of title claim, and not the

CSPA claim. Interrogatory No. 10 states, “Did Pattie Group violate the Consumer Sales

Practices Act?”     Interrogatory No. 11 states, “If the answer to Interrogatory No. 10 is

‘YES,’ did Pattie Group knowingly commit the act(s) that violated the Consumer Sales

Practices Act?”     Interrogatory No. 12 states, “If the answer to Interrogatory No. 10 is

‘YES,’ what amount of economic damages do you award to the Gales as compensation

for defendant’s violation of the Consumer Sales Practices Act claims?”       Interrogatory

No. 13 states, “If the answer to Interrogatory No. 10 is ‘YES,’ what amount of

non-economic damages do you award to the Gales as compensation for defendant’s

violation of the Consumer Sales Practices Act claims?”

         {¶45} The jury instructions regarding the Gales’ CSPA set forth the law on

violations of consumer sales practices, and then set forth the instructions on economic and

noneconomic damages under the CSPA. Regarding attorney fees, the jury instructions

state:

         Additional damages, including attorney fees, may be awarded by the court
         after the trial. You will not be asked to determine the amount of these
         damages. However, to aid the court in its determination, you will be asked
         whether you find, by a preponderance of the evidence, that the defendants
         knowingly committed an act that violates the [CSPA]. A defendant
         knowingly commits an act that violates the [CSPA] when it knowingly
         commits an act that constitutes the violation. The defendant does not have
         to know that the act is a violation of the law.
      {¶46} The instructions make clear that it would be the court that would determine

if the Gales were entitled to attorney fees, not the jury. Thus, the trial court abused its

discretion when it incorrectly relied on the jury’s answer to the interrogatory asking

whether the Gales were entitled to an award of attorney fees because that interrogatory

went to the Gales’ slander of title claim. The jury’s answer stating that the Gales were

not entitled to an award of attorney fees had nothing to do with the Gales’ CSPA claim.

      {¶47} Moreover, it is not clear from the trial court’s judgment what factors it

considered under Bittner, 58 Ohio St.3d 143, 569 N.E.2d 464, when it denied the Gales’

motion.   We further agree with the Gales that the trial court should hold an evidentiary

hearing to determine whether the Gales are entitled to attorney fees.         That does not

mean, however, that the trial court is mandated to award the Gales attorney fees after

hearing the evidence.   Further, if the trial court determines — in its discretion — that the

Gales are entitled to attorney fees, they would only be entitled to such fees that relate

directly to their CSPA claim. Id. at 145.

      {¶48} Accordingly, the Gales’ first assignment of error is sustained.

IV. Statutory Damages

      {¶49} In their second assignment of error, the Gales maintain that the trial court

erred by failing to award it “the statutory damages mandated under” R.C. 1345.09(B).

      {¶50} Here, the jury found that Pattie Group violated the CSPA by knowingly

filing an invalid lien against the Gales’ home. R.C. 1345.09(B) provides in relevant part

that when there is a deceptive violation of the CSPA, consumers may rescind the
transaction or “recover three times the amount of the consumer’s actual economic

damages or two hundred dollars, whichever is greater, plus an amount not exceeding five

thousand dollars in noneconomic damages[.]”         Thus, R.C. 1345.09 sets a statutory

minimum damage award for successful claims of $200.

      {¶51} Here, there were no “actual economic damages” because the jury awarded

the Gales $0 in economic damages.     Therefore, the court should have awarded the Gales

the minimum statutory award of $200.

      {¶52} The Gales’ second assignment of error is sustained.

      {¶53} Judgment affirmed in part and reversed in part. Judgment denying Pattie

Group’s motion for judgment notwithstanding the verdict is affirmed.             Judgment

denying the Gales’ motion for attorney fees and statutory damages is reversed.    The case

is remanded with instructions for the trial court to award the Gales $200 in statutory

damages under R.C. 1345.09(B) and to hold an evidentiary hearing on the Gales’ request

for attorney fees under R.C. 1345.09(F).

      It is ordered that appellee and appellants share costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE

LARRY A. JONES, SR., A.J., and
MARY EILEEN KILBANE, J., CONCUR
