[Cite as Baaron, Inc. v. Davidson, 2017-Ohio-7783.]


STATE OF OHIO                    )                         IN THE COURT OF APPEALS
                                 )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                  )

BAARON, INC., dba TDP                                      C.A. No.       16AP0052
CONTRACTING

        Appellant
                                                           APPEAL FROM JUDGMENT
        v.                                                 ENTERED IN THE
                                                           COURT OF COMMON PLEAS
NORMA DAVIDSON                                             COUNTY OF WAYNE, OHIO
                                                           CASE No.   11-CV-0460
        Appellee

                                 DECISION AND JOURNAL ENTRY

Dated: September 25, 2017



        HENSAL, Presiding Judge.

        {¶1}    Baaron, Inc., doing business as TDP contracting, appeals a judgment entry of the

Wayne County Court of Common Pleas that awarded attorney fees to Norma Davidson. For the

following reasons, this Court reverses.

                                                      I.

        {¶2}    The facts of this case were set out in Baaron Inc. v. Davidson, 9th Dist. Wayne

No. 13CA0050, 2015-Ohio-4217. Relevant to this appeal, in Davidson this Court reversed the

trial court’s award of attorney fees because it “did not state its basis for awarding the fees, which

differed from the amount requested by Ms. Davidson.” Id. at ¶ 34. We remanded the case for

the trial court “to set forth its basis for the fee determination.” Id.

        {¶3}    On remand, the parties agreed that the trial court should decide the attorney fee

issue based on the evidence that was presented at a hearing on attorney fees in September 2013.

After reviewing the evidence submitted by Ms. Davidson, it ordered Baaron, Inc. to pay her
                                                2


$9,662.50 in attorney fees. Baaron, Inc. has appealed, assigning as error that the trial court

incorrectly awarded Ms. Davidson attorney fees and treble damages.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN AWARDING ATTORNEY’S FEES AND
       TREBLE DAMAGES IN FAVOR OF DAVIDSON.

       {¶4}    Baaron, Inc. argues that the trial court’s award of attorney fees was arbitrary

because Ms. Davidson did not submit any evidence that established their reasonableness. As we

noted in our previous decision, a trial court’s determination on an award of attorney's fees should

not be reversed unless it abused its discretion. Id. at ¶ 32, citing Bittner v. Tri–County Toyota,

Inc., 58 Ohio St.3d 143, 146 (1991). An abuse of discretion “implies that the court’s attitude is

unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983). An appellate court may not substitute its judgment for that of the trial court when

applying the abuse-of-discretion standard. Berk v. Matthews, 53 Ohio St.3d 161, 169 (1990).

       {¶5}    “[T]he most useful starting point for determining the amount of a reasonable fee

is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly

rate. This calculation provides an objective basis on which to make an initial estimate of the

value of a lawyer’s services.” Bittner at 145, quoting Hensley v. Eckerhart, 461 U.S. 424, 433

(1983). “‘What is reasonable,’ for purposes of calculating attorney fees, ‘is a question of fact[,

and t]he trial court must have evidence before it probative of that issue in order to make the

finding.’” (Alterations in original.) Mann v. Mendez, 9th Dist. Lorain No. 04CA008562, 2005-

Ohio-3114, ¶ 22, quoting Kimball v. Austin, 9th Dist. Lorain No. 01CA007760, 2001 WL

866260, *2 (Aug. 1, 2001). “The party seeking an award of attorney fees bears the burden of

proving their reasonableness.” Zimmerman v. U.S. Diamond & Gold Jewelers, Inc., 2d Dist.

Montgomery No. 14680, 1995 WL 100820, *9 (Mar. 8, 1995).
                                                3


       {¶6}    At the hearing on attorney fees, Ms. Davidson presented a copy of a bill for

$3,049.04 that she received from her original attorney in the action. There was no detail about

the number of hours the attorney worked on Ms. Davidson’s case or the services he provided, but

Ms. Davidson testified that she thought the fees he had charged were fair and reasonable. Ms.

Davidson also presented a copy of the fee agreement she had entered into with her second

attorney, which indicated that his hourly rate was $125. Ms. Davidson testified that she thought

the rate was fair and reasonable. Ms. Davidson also submitted an itemized hours report that

detailed all of the hours her second attorney had spent on her case. Ms. Davidson testified that

she believed the hours incurred by her second attorney were fair and reasonable.

       {¶7}    In its decision, the trial court noted that Ms. Davidson’s original attorney had

withdrawn on the eve of trial because he had accepted a magistrate position. It noted that

consumer sales practices are challenging and that Ms. Davidson had difficulty finding new

counsel. It found that, despite the challenge, Ms. Davidson’s second attorney had picked up the

file in her case and “came to [her] rescue.” It concluded that his “hourly rate is more than

reasonable given the time crunch he was under and circumstances surrounding his late entry into

the case.” It, therefore, multiplied the 77.3 hours Ms. Davidson’s second attorney had worked on

the case by his hourly rate and awarded her $9662.50 in attorney fees. It did not award her

anything for her original attorney’s work on the action.

       {¶8}    Although the trial court determined that the second attorney’s hourly rate was

reasonable, it did not determine “the number of hours reasonably expended on the litigation[.]”

Bittner, 58 Ohio St.3d 143, 145. Accordingly, we cannot say that the trial court complied with

Bittner when it analyzed whether to award attorney fees to Ms. Davidson. Furthermore, even

assuming that a finding of reasonableness is implicit in the trial court’s decision, there was
                                                 4


insufficient evidence in the record to support such a finding.         This Court has previously

determined that lay testimony alone cannot establish the reasonableness of the time an attorney

spent on a case. Willett v. Willett, 9th Dist. Summit No. 22167, 2005-Ohio-342, ¶ 11, 15

(concluding that trial court abused its discretion when it awarded attorney fees when the only

evidence regarding the reasonableness of the fees was client’s testimony).        We, therefore,

conclude that the trial court abused its discretion when it awarded $9,662.00 in attorney fees to

Ms. Davidson. Baaron, Inc.’s assignment of error is sustained.

                                                III.

       {¶9}    Baaron, Inc.’s assignment of error is sustained. The judgment of the Wayne

County Court of Common Pleas is reversed, and this matter is remanded for further proceedings

consistent with this decision.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                         5


      Costs taxed to Appellee.




                                             JENNIFER HENSAL
                                             FOR THE COURT



SCHAFER, J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

TIMOTHY B. PETTORINI, Attorney at Law, for Appellant.

MATTHEW J. MALONE, Attorney at Law, for Appellee.
