[Cite as PHH Mtge. Corp. v. Messersmith, 2019-Ohio-594.]



                                   IN THE COURT OF APPEALS

                          TWELFTH APPELLATE DISTRICT OF OHIO

                                         WARREN COUNTY




PHH MORTGAGE CORPORATION                             :
FKA CENDANT MORTGAGE
CORPORATION DBA COLDWELL BANK                        :     CASE NO. CA2018-05-057
MORTGAGE CORPORATION,
                                                     :          OPINION
        Appellee,                                                2/19/2019
                                                     :
    - vs -
                                                     :
MELISSA A. MESSERSMITH, et al.,
                                                     :
        Appellants.
                                                     :



         CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                             Case No.15CV87913



Amy Schott Ferguson, 10655 Springfield Pike, Cincinnati, Ohio 45215, for appellee, Bay
Point at Kings Mill Homeowner's Association, Inc.

Paul Croushore, P.O. Box 75170, Cincinnati, Ohio 45275, for appellant, Melissa A.
Messersmith



        HENDRICKSON, P.J.

        {¶ 1} Appellant, Melissa A. Messersmith, appeals from a decision of the Warren

County Court of Common Pleas granting summary judgment to appellee, Bay Pointe at Kings

Mill Homeowners' Association, Inc. (hereafter "the Association" or "HOA"), and ordering her

to pay the Association's attorney fees in an action brought to recover unpaid assessments
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and to foreclose on a lien filed for the unpaid assessments. For the reasons set forth below,

we reverse the trial court's judgment only as it relates to the award of attorney fees and

remand the matter for further proceedings.

       {¶ 2} Messersmith is the owner of a condominium unit within the Bay Pointe

Development of Kings Mill in Warren County, Ohio. Bay Pointe is subject to a Declaration of

Covenants, Conditions, and Restrictions (hereafter, "Declaration"), which was recorded in the

Warren County Recorder's Office. The Declaration requires all owners of units in Bay Pointe

pay assessments to the Association and provides for the imposition of late fees if

assessments are not paid when due.

       {¶ 3} In December 2013, there was a fire in one of the units at Bay Pointe. The fire

originated in the condominium of Michael Ramminger, whose unit adjoined Messersmith's

unit. The fire resulted in Ramminger's death and property damage to Messersmith's unit.

       {¶ 4} After the fire and through March 2, 2015, the assessments Messersmith owed

the Association were paid by insurance. The Association waived Messersmith's late fees for

these assessments. As of March 2, 2015, Messersmith had a credit on her assessment

account in the amount of $11.00. Messersmith did not pay any assessments to the

Association after March 2, 2015, claiming that she was "escrowing" her assessments

because she was unsatisfied with how the Association and its insurance company were

handling repairs to her unit. On September 1, 2015, the Association recorded a certificate of

lien upon Messersmith's unit for the unpaid assessments, late fees, and other expenses.

       {¶ 5} In March 2015, in Warren County Court of Common Pleas Case No.

15CV87000, Messersmith filed suit against the estate of Ramminger, alleging he was

negligent in causing the fire. In March 2016, Messersmith moved to add the Association and

its insurer, Traveler's Insurance, as defendants. The trial court granted Messersmith's motion

to join those parties, and in April 2016, Messersmith filed an amended complaint reasserting

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her negligence claim against Ramminger's estate and asserting new claims against the

Association for breach of contract and indemnity. Messersmith alleged that the Declaration

required the Association to maintain hazard insurance on all units and the Association had

failed to fully compensate her for the fire damage her unit sustained.

      {¶ 6} The Association moved to dismiss Messersmith's claims against it for failure to

state a claim upon which relief may be granted. Its motion was denied. Thereafter, the

Association filed an answer to Messersmith's complaint, in which it generally denied the

allegations and set forth the affirmative defenses of estoppel and laches.

      {¶ 7} In November 2015, while Messersmith's case against Ramminger's estate, the

Association, and Traveler's Insurance was pending, PHH Mortgage Corporation f.k.a.

Cendant Mortgage Corporation d.b.a. Coldwell Bank Mortgage Corporation ("PHH

Mortgage"), filed a foreclosure action against Messersmith in Warren County Court of

Common Pleas Case No. 15CV87913. PHH Mortgage asserted Messersmith had defaulted

on the payment terms of a promissory note, which was secured by a mortgage on her unit.

      {¶ 8} The Association was named as a defendant in the foreclosure suit as it had

filed the certificate of lien against Messersmith's condominium unit for the unpaid

assessments. The Association filed an answer to PHH Mortgage's complaint and a cross-

claim against Messersmith, seeking damages for unpaid assessments, late fees, the costs

associated with filing the certificate of lien against the property, and attorney fees. The

Association also sought foreclosure of its lien on the property, asking the court for an

appraisal and order of sale for Messersmith's unit.

      {¶ 9} In October 2016, PHH Mortgage voluntarily dismissed its foreclosure complaint

against Messersmith. The Association's cross-claims for damages for unpaid assessments

and for foreclosure of its lien remained pending. In March 2017, the trial court consolidated

the foreclosure case with Messersmith's lawsuit for damages resulting from the fire at her

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neighbor's condominium unit. Shortly thereafter, Messersmith voluntarily dismissed her

claims against the Association that originated in the fire damages case. The dismissal did

not affect the claims made by the Association in the foreclosure case.

       {¶ 10} On April 6, 2017, the Association moved for summary judgment against

Messersmith on its cross-claim for foreclosure and for damages related to the unpaid

assessments. It argued Messersmith was in default of payment of assessments totaling

$6,180.62 through March 31, 2017, plus the sum of $210.00 per month beginning April 1,

2017 for continuing assessments, $20.00 per month for late fees on future assessments not

paid when due, and $310.00 for the filing of the certificate of lien on Messersmith's property.

It also sought attorney fees in the amount of $4,759.90 for attorney services related to its

cross-claim in the foreclosure proceeding. In support of its motion for summary judgment,

the Association attached the affidavits of Christopher Wiggins, the managing agent of the

Association, and Amy S. Ferguson, the attorney for the Association. The Association

subsequently filed an amended affidavit by Ferguson in July 2017, in which Ferguson stated

the Association had incurred attorney fees in the amount of $4,962.40 for services related to

its cross-claim.

       {¶ 11} Messersmith received leave to file a memorandum in opposition to the

Association's motion for summary judgment. In Messersmith's August 2017 memorandum in

opposition, she argued there were genuine issues of material fact that existed to warrant a

denial of the Association's motion. Specifically, Messersmith argued there were issues of

fact relating to the amount and type of damages the Association was entitled to receive for

unpaid assessments as she had made efforts to tender payment to resolve the

delinquencies, but her efforts had been rejected by the Association. Messersmith also

argued issues of fact existed as to whether she should be required to pay the Association's



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attorney fees. In support of her arguments, she attached her own affidavit, in which she

averred, in relevant part, as follows:

              6. While I agree that I am responsible for outstanding dues to
              [the Association], I dispute that my (sic) liability for [the
              Association's] attorney's [fees] and costs.

              7. As a preliminary matter, I dispute that such attorney's fees are
              reasonable, usual and customary fees, as I do not believe that
              Ms. Ferguson or attorneys representing [the Association] have
              acted in a reasonable, usual and customary fashion * * *.

              8. I have made several attempts to resolve the matter of the
              outstanding dues owed to [the Association], whether directly with
              [the Association] or through their legal counsel * * *.

              9. My efforts to tender payment to [the Association] for
              outstanding and delinquent dues were rebuffed, as I was advised
              to have no contact with them.

              10. I made several efforts to obtain a balance for outstanding
              and delinquent dues from [the Association's counsel], but [they]
              were unresponsive to me.

              11. The conduct of [the Association] and their agents created the
              circumstances under which I was unable to make payment of
              outstanding and delinquent dues; I should not be required to pay
              late charges as they failed to mitigate their damages.

              12. The conduct of [the Association] and their agents created the
              circumstances under which I was unable to make payment of
              outstanding and delinquent dues; I should not be required to pay
              late charges as they have not acted in good faith.

              ***

              14. The conduct of [the Association] and their agents created the
              circumstances under which I was unable to make payment of
              outstanding and delinquent dues; I should not be required to pay
              late charges as they are no less to blame and come to the Court
              seeking such fees and costs with unclean hands.

              15. I am asking the Court to determine the total outstanding and
              delinquent dues that I owe and to deny [the Association]
              attorney's fees and costs.




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      {¶ 12} The parties appeared before a magistrate on September 22, 2017. At this

hearing the parties agreed to brief a disputed legal question regarding whether the

Association would have had an obligation to accept payment of less than the full amount of

assessments, fees, and penalties asserted due if such payment had been offered by

Messersmith. The parties also agreed to submit stipulated facts to the court to assist in the

resolution of the disputed issues, including attorney fees. The parties were advised that if

they felt the issue of attorney fees could not be adequately decided upon their stipulations,

then an evidentiary hearing could be scheduled to further develop the record. However, no

such hearing was requested.

      {¶ 13} The parties' stipulated facts were filed with the court on October 18, 2017, and

provide as follows:

                           FACTS THAT ARE NOT IN DISPUTE

             1. Melissa Messersmith is the owner of [property] located in Bay
             Pointe Development at Kings Mills, Warren County, Ohio.

             2. Pursuant to the Declaration of Covenants, Conditions and
             Restrictions for Bay Pointe at Kings Mill, recorded with the
             Warren County Recorder's Office * * * all owners are required to
             pay assessments to the Association.

             3. Messersmith agrees she owes certain regular and special
             assessments to the Association, although Messersmith disputes
             that she owes late fees for failure to pay the assessments.

             4. The rate of the Association's attorney is reasonable and the
             work detailed in the amended Affidavit of Amy Ferguson, filed
             concurrently with the Association's brief which contains the final
             detail of fees claimed owed and the work performed, was in fact
             performed, although Messersmith disputes that she owes
             attorney fees to the Association.

             5. Messersmith had a casualty occur in her unit on December
             23, 2013.

             6. Messersmith's late fees after the fire were waived by the
             Association and her assessments were paid after the fire by


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              insurance such that on March 2, 2015, Messersmith had an
              $11.00 credit with the Association.

              7. Messersmith did not pay assessments to the Association after
              March 2, 201[5].

              8. Messersmith wanted to make a settlement offer to the
              Association for the amount of the assessments owed only (not
              including the late fees and attorney fees) at some point after the
              foreclosure had been filed, however, because she was not certain
              with whom to communicate this offer, Messersmith did not make
              said tender.

              9. For purposes of this Stipulation, the Association agrees that
              this Court may treat the facts as if Messersmith had offered to
              pay to the Association the assessments only, in an effort to settle
              this matter.

              10. Had Messersmith made said offer of tender, the Association
              would have declined the same and would not have taken less
              than the full amount owed, which included attorney fees and late
              fees.

       {¶ 14} Attached to the stipulated facts were a number of documents submitted by both

parties, including emails exchanged between Messersmith and the Association and the

Association and Messersmith's attorney, requests made by Messersmith or her attorney for

itemization of the asserted assessments and fees due to the Association, and the itemization

of the assessments and fees produced by the Association. The parties did not provide the

court with a full copy of the Declaration or even the portion of the Declaration that provided

for assessments, late fees, or attorney fees.

       {¶ 15} The parties then filed supplemental memoranda addressing the issues in

dispute. In Messersmith's memorandum, she indicated she was only "contest[ing] the late

fees and the attorney fees, not the assessments themselves." Messersmith argued that the

Declaration did not provide the Association with the ability to recover attorney fees and,

furthermore, when the trial court "fully consider[ed] all of the circumstances of the case," the

court could only reach the determination that the Association's claimed attorney fees were


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not fair, just, or reasonable. Furthermore, she argued the late fees on the assessments and

certain attorney fees should not be recoverable by the Association as the Association's

refusal to communicate with her directly, rather than through her attorneys, and its refusal to

accept less than the full amount it claimed it was owed prolonged the dispute and led to

additional late fees and attorney fees being incurred.

        {¶ 16} The Association argued in its memorandum that Messersmith was barred from

arguing the defense of failure to mitigate damages as Messersmith had not pled mitigation as

an affirmative defense. It further argued that it was not under an obligation to accept a partial

payment by Messersmith for the past-due assessments and late fees, as doing so would

have been construed as a waiver of its claims. Finally, it argued that it was entitled to collect

attorney fees pursuant to R.C. 5312.13 and that the fees it was seeking to recover were

reasonable, per the stipulations entered into by the parties. Attached to its memoranda was

a second amended affidavit by Ferguson, in which she asserted the Association had incurred

attorney fees in the amount of $13,361.50 for services related to its cross-claim for unpaid

assessments. Attached to Ferguson's affidavit was a "statement of account" detailing work

performed from February 9, 2015 through October 24, 2017 as well as the fees associated

with such work.

        {¶ 17} On January 5, 2018, after considering the parties' memoranda, affidavits,

stipulations, and the documents attached thereto, the magistrate rendered a decision in

which it granted the Association's motion for summary judgment.1                           The magistrate

determined Messersmith had violated the terms of the Declaration by failing to timely pay

assessments to the Association, the Association "was not obligated to accept an amount in

comprise, and was entitled to continue to seek the entire amount of assessments as well as


1. The magistrate's January 5, 2018 decision was improperly labeled a "Magistrate's Order." On January 10,
2018, the magistrate discovered its mistake and rendered its judgment in a "Magistrate's Decision." The parties
then filed objections to the magistrate's decision in accordance with Civ.R. 53(D)(3).
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claimed fees," and under R.C. 5312.13, the Association was entitled to recover "court costs

and reasonable attorney's fees." The magistrate ordered the Association be awarded the

sum of $6,180.62 for assessments and late fees through March 1, 2017, with additional

assessments accruing after that date, $310 for the cost of filing a lien against Messersmith's

property, and reasonable attorney fees in the amount of $12,265.50. In determining the

amount of attorney fees the Association was entitled to receive, the magistrate found "the

itemization of fees reasonable, with a few exceptions." The magistrate stated, in relevant

part, as follows:

              [O]n February 15, 2017, $18 is charged for "Review and process
              court cost refund." An evidentiary hearing on the issue of money
              damages was scheduled for September 22, 2017, but the issue
              was ultimately submitted on stipulations and briefs. The time
              spent preparing for this hearing looks reasonable. But on
              September 22, three items appear on the bill: $252 for
              "attendance of damages hearing;" $826 for "travel to and attend
              hearing on damages;" and again, "$973.50 is charged for
              "preparation for, travel to, from, and appear at hearing on
              damages." These charges appear to be duplicative. This
              Magistrate concludes the $18 court refund processing charge and
              the two charges on September 22, 2017 for $252 and $826
              should be deducted from the total.

       {¶ 18} Messersmith filed objections to the magistrate's decision. Messersmith did not

attack the magistrate's decision to award assessments and late fees to the Association, but

rather, challenged the award and amount of attorney fees ordered to be paid to the

Association. Messersmith argued the court erred in awarding attorney fees as neither the

pleadings nor the evidence presented to the magistrate demonstrated that the Declaration

contained a contract provision requiring a defaulting condominium owner pay the attorney

fees of a unit owners' association in an action to collect unpaid assessments. She further

argued the award was unreasonable and against the manifest weight of the evidence where

the Association's conduct and its attorney's conduct in refusing to communicate with her

about the assessments and late fees caused additional attorney fees to be incurred. Finally,

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although Messersmith "agree[d] that the rate of [the Association's] attorney is reasonable and

the work detail[ed] in the Amended Affidavit of Amy Ferguson was in fact performed,"

Messersmith nonetheless challenged the "sufficiency" of Ferguson's affidavit.

        {¶ 19} On April 3, 2018, the trial court overruled Messersmith's objections and adopted

the magistrate's order in full. In overruling Messersmith's objections, the court found that the

magistrate "correctly applied the applicable law regarding the payment of attorney's fees to a

homeowners' association under R.C. 5312.13" and the magistrate's decision awarding

attorney fees was not against the manifest weight of the evidence.

        {¶ 20} Subsequently, on May 2, 2018, the trial court issued its final judgment granting

summary judgment to the Association.                In its final judgment entry, the court ordered

Messersmith to pay the Association the same amount of damages for unpaid assessments,

late fees, and costs as ordered in the magistrate's opinion. However, the court then ordered

Messersmith to pay the sum of $13,361.50 in attorney fees to the association.2 The court

ordered that if Messersmith failed to pay the judgment together with the costs and any

necessary advances therein within three days of the filing of its entry, Messersmith's property

would be foreclosed and the property sold. Messersmith filed an appeal. She then moved to

stay the trial court's order and set a supersedeas bond, and her motion was granted.

        {¶ 21} Before us now is Messersmith's sole assignment of error, in which she alleges

the following:

        {¶ 22} THE TRIAL COURT ERRED IN AWARDING SUMMARY JUDGMENT TO BAY

POINTE CONDOMINIUM ASSOCIATION * * * WITHOUT ADDRESSING THE DETAILS OF

THE OBJECTION BY APPELLANT'S COUNSEL AND WITHOUT ADDRESSING THE



2. The trial court's May 2, 2018 entry granting summary judgment to the Association contains inconsistencies in
the attorney fee award. On page 3 of the entry, the court orders Messersmith to pay the Association "the sum of
$12,265.90 as reasonable attorney fees and costs." Later, on page 4 of the entry, the court orders Messersmith
to pay "the sum of $13,361.50 as reasonable attorney fees and costs."
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ISSUES OF THE SUFFICIENCY OF THE [ASSOCIATION'S] ATTORNEY'S AFFIDAVIT,

THE [ASSOCIATION'S] FAILURE TO COOPERATE, AND THE EQUITY OF MAKING SUCH

AN AWARD.

       {¶ 23} Within her sole assignment of error, Messersmith raises a number of issues

attacking the trial court's decision to grant summary judgment to the Association on the issue

of attorney fees. She contends the trial court erred in its determination that the Association

was entitled to recover attorney fees where the Declaration or "covenant on which the alleged

fees are made the responsibility of the owner of a condominium is not in the record." She

further contends that the court erred in awarding attorney fees to the Association without

considering the equities of holding her liable for the attorney fees when it was the

Association's own conduct, or the conduct of its attorneys, in refusing to communicate with

her directly that caused additional and unnecessary fees to be incurred.

       {¶ 24} Appellate review of a trial court's decision granting summary judgment is de

novo. Ludwigsen v. Lakeside Plaza, L.L.C., 12th Dist. Madison No. CA2014-03-008, 2014-

Ohio-5493, ¶ 8. Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is

no genuine issue of any material fact, (2) the moving party is entitled to judgment as a matter

of law, and (3) the evidence submitted can only lead reasonable minds to one conclusion and

that conclusion is adverse to the nonmoving party, who is entitled to have the evidence

construed most strongly in his favor. Bank of New York Mellon v. Putman, 12th Dist. Butler

No. CA2012-12-267, 2014-Ohio-1796, ¶ 18. "The party moving for summary judgment bears

the initial burden of demonstrating that no genuine issue of material fact exists." Fifth Third

Bank v. Bolera, 12th Dist. Butler No. CA2017-03-039, 2017-Ohio-9091, ¶ 25, citing Touhey v.

Ed's Tree & Turf, L.L.C., 194 Ohio App.3d 800, 2011-Ohio-3432, ¶ 7 (12th Dist.). Once this

initial burden is met, the nonmoving party "must then rebut the moving party's evidence with

specific facts showing the existence of a genuine triable issue; it may not rest on the mere

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allegations or denials in its pleadings." Deutsche Bank Natl. Trust Co. v. Sexton, 12th Dist.

Butler No. CA2009-11-288, 2010-Ohio-4802, ¶ 7, citing Civ.R. 56(E).

                     Statutory Authority for the Attorney Fee Award

       {¶ 25} In the present case, Messersmith argues there remain genuine issues of

material fact as to whether the Association is entitled to recover attorney fees incurred in its

pursuit to collect on the unpaid assessments. In support for her argument, Messersmith

relies on an opinion by the Ohio Supreme Court, in which the court held that

              [p]rovisions contained within a declaration of condominium
              ownership and/or condominium by-laws requiring that a defaulting
              unit owner be responsible for the payment of attorney fees
              incurred by the unit owners' association in either a collection
              action or a foreclosure action against the defaulting unit owner for
              unpaid common assessments are enforceable and not void as
              against public policy so long as the fees awarded are fair, just
              and reasonable as determined by the trial court upon full
              consideration of all of the circumstances of the case.

Nottingdale Homeowners' Assn. v. Darby, 33 Ohio St.3d 32 (1987), syllabus. Messersmith

maintains that because the Declaration was not made a part of the record on summary

judgment, the trial court could not have concluded that the Association was entitled to collect

attorney fees as a matter of law.

       {¶ 26} However, Messersmith's reliance on Darby is misplaced, as is her assertion that

the court relied on a contract provision in the Declaration as authority for its order that

Messersmith pay the Association's attorney fees. The trial court clearly relied upon R.C.

5312.13 in awarding attorney fees. R.C. 5312.13 provides that

              [t]he owners association and all owners, residents, tenants, and
              other persons lawfully in possession and control of any part of an
              ownership interest shall comply with any covenant, condition, and
              restriction set forth in any recorded document to which they are
              subject, and with the bylaws and the rules of the owners
              association, as lawfully amended. Any violation is grounds for
              the owners association or any owner to commence a civil action
              for damages, injunctive relief, or both, and an award of court
              costs and reasonable attorney’s fees in both types of action.

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(Emphasis added).

       {¶ 27} R.C. 5312.13 therefore imposes a liability for attorney fees incurred by an

owners association in seeking legal redress of a violation of "any covenant, condition, and

restriction set forth in any recorded document to which they are subject." In the present

case, Messersmith stipulated that the Declaration recorded in the Warren County Recorder's

Office required her to pay assessments to the Association and that she did not pay said

assessments after March 2, 2015. The Association also submitted an affidavit from Wiggins

attesting to these facts. As Messersmith is an owner subject to a covenant which she

violated, and her violation resulted in a civil suit by the Association to enforce compliance of

the covenant, Messersmith is subject to an order requiring her to pay attorney fees pursuant

to R.C. 5312.13. The stipulations entered into by Messersmith, in combination with the

statutory imposition of liability for attorney fees by an owner in violation of covenants,

eliminated any need to include the Declaration in the record as a prerequisite to an award of

attorney fees. We therefore find no error in the trial court's determination that, as a matter of

law, Messersmith was liable for reasonable attorney fees the Association incurred in pursuit

of its action to collect the unpaid assessments. We therefore overrule Messersmith's

assignment of error to this extent.

                 Determination of Reasonable and Necessary Attorney Fees

       {¶ 28} Turning to the issue of the amount of attorney fees awarded, we first note that

the record contains inconsistencies as to the amount of attorney fees Messersmith was

actually ordered to pay. The magistrate's decision ordered Messersmith to pay $12,265.50 in

attorney fees. Although the trial court "adopted in full" the magistrate's decision, the court's

May 2, 2018 final judgment entry granting summary judgment to the Association ordered

Messersmith to pay two different amounts in attorney fees. On page 3 of the court's entry,


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Messersmith is directed to pay the Association "the sum of $12,265.90 as reasonable

attorney fees and costs" and on page 4 of the entry, Messersmith is ordered to pay "the sum

of $13,361.50 as reasonable attorney fees and costs." This discrepancy results in reversible

error, as it is unclear from the record the reasonable attorney fees the Association was

actually entitled to receive.

       {¶ 29} Further, we find that reversal of the trial court's attorney fee award is

appropriate in this case as there remains an issue of fact as to whether the services

performed by the Association's attorney were necessary to resolve the disputed claims

between the parties. Where attorney fees are awarded pursuant to the authority of a statute,

the supreme court has outlined a two-step process for a trial court to follow when determining

the amount of reasonable attorney fees to award to a prevailing party. See Bittner at the

syllabus. See also Bergman Group v. OSI Dev., Ltd., 12th Dist. Clermont No. CA2009-12-

080, 2010-Ohio-3259, ¶ 68. First, the trial court must calculate the number of hours

reasonably expended on the case multiplied by a reasonable hourly rate. Id. at ¶ 69, citing

Bittner at the syllabus. The court should then exclude any hours which were unreasonably

expended. Id. "Unreasonably expended hours are generally categorized as those which are

excessive in relationship to the work done, are duplicative or redundant, or are simply

unnecessary." Gibney v. Toledo Bd. of Edn., 73 Ohio App.3d 99, 108 (6th Dist.1991). The

resulting figure provides the trial court with an objective, initial estimate of the value of the

attorney's services. Bergman Group at ¶ 69, citing Bittner at 145.

       {¶ 30} Second, the trial court may modify its initial calculation after contemplating the

factors set forth in Professional Conduct Rule 1.5, formerly DR2-106(B). Id. at ¶ 70, citing

Bittner at the syllabus. The factors in Professional Conduct Rule 1.5 include the following:

              (1) the time and labor required, the novelty and difficulty of the
              questions involved, and the skill requisite to perform the legal
              service properly;
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              (2) the likelihood, if apparent to the client, that the acceptance of
              the particular employment will preclude other employment by the
              lawyer;

              (3) the fee customarily charged in the locality for similar legal
              services;

              (4) the amount involved and the results obtained;

              (5) the time limitations imposed by the client or by the
              circumstances;

              (6) the nature and length of the professional relationship with the
              client;

              (7) the experience, reputation, and ability of the lawyer or
              lawyers performing the services;

              (8) whether the fee is fixed or contingent.

       {¶ 31} In the present case, the parties stipulated only that the "rate of the Association's

attorney was reasonable" and that the work detailed in the amended affidavit of the

Association's attorney "was in fact performed." There was not a stipulation as to whether the

work completed by the Association's attorney was actually necessary to resolve the

Association's cross-claim for the unpaid assessments. There remained disputed genuine

issues of material fact as to whether the Association's attorney expended hours on

unnecessary work and whether any unnecessary work was caused by the Association's or

the Association's attorney's failure to cooperate and communicate directly with Messersmith

to resolve the dispute over the unpaid assessments.

       {¶ 32} With respect to this latter issue, the information submitted by the parties

indicates that Messersmith was, at least initially, unrepresented in the foreclosure case, Case

No. 15CV87913, but was represented by counsel in her civil case to pursue damages

resulting from the fire, Case No. 15CV87000. Messersmith appeared in the foreclosure case

pro se when she filed a letter challenging PHH Mortgage's motion for default judgment and a


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letter challenging the Association's request to appoint a receiver. In an October 7, 2016 letter

filed with the foreclosure court, Messersmith indicated she had been personally working to

resolve the issue of unpaid assessments since November 12, 2015, but the Association and

the individuals that managed Bay Pointe would not deal directly with her. Messersmith's

letter stated, in relevant part, as follows:3

                On November 12, 2015, 23 months after the fire, I finally received
                a check in the amount of $15,543.51 from the Homeowners'
                Association at Bay Pointe. * * *

                The day that I received the check, I called the property
                management company in an attempt to settle the unpaid condo
                fees that I owed. I was told by someone in the accounting
                department that [I] was not allowed to contact the property
                management company at all. I was then told that a lien had been
                filed against my property. At a later date I was sent an email by
                the [Association's] attorney that stated I was not to contact the
                property management company directly, I was to go through my
                attorney, even though he is not representing me on this matter.

                Several days after finally receiving my reimbursement check, I
                received notification form the courts that a lien had been filed
                against my property at Bay Pointe. Since then, the attorney
                handling my civil case has attempted to contact them on my
                behalf, in an attempt to settle on the late condo fees. After
                months of being ignored by them I was told that lawyers are busy
                and I need to be patient. * * *

        {¶ 33} Documents attached to the parties' stipulations also indicated that prior to

December 15, 2015, Messersmith was having difficulty communicating with the Association

about the unpaid assessments and her efforts to obtain a statement had been rebuffed. In

an email sent on December 15, 2015 to her attorney in the fire damages case and to the

Association's counsel, Messersmith stated as follows:

                [The Association's attorney] is telling me I am not allowed to
                contact the HOA for any reason. I have spent numerous emails
                asking when and where the next HOA meeting is. [The property
                managers] refuse to speak to me or answer this pretty simple
                question. I also called to get a copy of my latest statement from

3. The October 7, 2016 letter was among those documents attached to the parties' stipulated facts.
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              the HOA; I was told by the new Accounts Receivable person that
              I am not allowed to speak to her.

              Neither of these questions have anything to do with the fire. Am
              I to understand that I am not allowed to contact the HOA at all
              about anything? I can understand not contacting them about the
              fire, but beyond that, I don’t see how the HOA can just choose to
              ignore me (as much as I wish I could just ignore them!)

              Also, if * * * I am not allowed to contact the HOA for any reason
              and all communications have to go thru their attorney, I expect
              the HOA to do the same. They should not be sending me any
              communications about anything without sending it to you first.
              They continue to send me letters and all sorts of
              communications via mail and email * * *. Why are they
              contacting me directly if I am not allowed to contact them
              directly?

       {¶ 34} A few minutes after sending this email, Messersmith sent a subsequent email to

the Association's attorney, informing the attorney he was "not meant to be copied" on the

foregoing email and he should "ignore it." The Association's attorney responded with an

email informing Messersmith that because she was represented by counsel, the

Association's attorney could not communicate directly with her. The Association's attorney

directed Messersmith to put all further communication in writing and mail it to his attention.

However, Messersmith continued to email the Association and its attorney directly, seeking

information about the unpaid assessments, late fees, and attorney fees associated with the

assessments.

       {¶ 35} Messersmith's attorney in the fire damages case also began emailing the

Association's attorney on her behalf to obtain information about the assessments and late

fees accruing on her condominium in the foreclosure case. On June 30, 2016, July 22, 2016,

and July 26, 2016, Messersmith's counsel emailed the association asking for an "updated

HOA statement" or "statement for the dues and the attorney fees in the Messersmith

foreclosure action." The Association, through its attorney, provided statements of account



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detailing assessments, late fees, and attorney fees as of July 31, 2016, and January 31,

2017.

        {¶ 36} Whether the Association or its counsel caused a delay in responding to

Messersmith's request for information to resolve the unpaid assessment issue – a request

that may have been made as early as November 12, 2015, whether such delay caused

additional and unnecessary legal expenses to be expended, and whether any of the

expenses listed in Ferguson's second amended affidavit in support of attorney fees were

unnecessary expenses are issues of fact that remain to be decided. The parties' limited

stipulations and the evidence submitted in support of their respective positions on the issue

of summary judgment do not resolve these issues. Therefore, based on upon the record

before us, we sustain Messersmith's assignment of error to the extent that it challenges the

amount of attorney fees awarded. We vacate the trial court's judgment as it relates to the

award of attorney fees and remand the matter to the trial court to conduct such proceedings

as are necessary to determine the issue of reasonable and necessary attorney fees.

        {¶ 37} Judgment reversed to the limited extent set forth above and remanded for

further proceedings.


        RINGLAND and M. POWELL, JJ., concur.




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