[Cite as Wrinch v. Miller, 2011-Ohio-5891.]


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

CHARITY WRINCH                                        C.A. No.       25562

        Appellant

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
DAVID MILLER, et al.                                  COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellees                                     CASE No.   CV 2006-03-1521

                                 DECISION AND JOURNAL ENTRY

Dated: November 16, 2011



        BELFANCE, Presiding Judge.

        {¶1}    Appellant Charity Wrinch and her counsel Brian Williams (collectively

“Appellants”) appeal the judgment of the Summit County Court of Common Pleas. For the

reasons set forth below, we affirm.

                                                 I.

        {¶2}    The facts of the instant matter have been previously summarized by this Court in

a prior appeal, and their complete restatement here is unnecessary for the resolution of this

matter. See Wrinch v. Miller, 183 Ohio App.3d 445, 2009-Ohio-3862, at ¶¶2-14.

        {¶3}    In the prior appeal, this Court reversed a portion of the trial court’s judgment and

remanded the “matter to the trial court to determine the reasonableness of the fees requested [by

Appellees David and Keville Miller] pursuant to Prof.Cond.R. 1.5(a) and to determine the

appropriate award of attorney fees” expended defending [Ms.] Wrinch’s frivolous claim for
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return of the security deposit. Id. at ¶61. Upon remand, the trial court awarded Mr. and Ms.

Miller $8950.00 in attorney fees pursuant to R.C. 2323.51.

          {¶4}   Also, in the prior appeal, this Court determined that “[t]he trial court erred in

failing to grant the directed verdict on [Mr. and Ms. Miller’s malicious prosecution

counter]claim.” Id. at ¶22. Upon remand to the trial court, Appellants filed a motion for

attorney fees pursuant to R.C. 2323.51, asserting that Mr. and Ms. Miller’s malicious prosecution

counterclaim was frivolous. The trial court concluded that the counterclaim was frivolous and

awarded Appellants $2101.00 in attorney fees.           Appellants have appealed, raising two

assignments of error for our review; both concern the award of attorney fees.

                                                 II.

                 AWARD OF ATTORNEY FEES PURSUANT TO R.C. 2323.51

          {¶5}   The Ohio Supreme Court recently discussed R.C. 2323.51 in State ex rel. Striker

v. Cline, Slip Opinion No. 2011-Ohio-5350. “‘R.C. 2323.51 provides for an award of attorney

fees to a party harmed by “frivolous conduct” in a civil action.’” Id. at ¶10, quoting Moss v.

Bush, 105 Ohio St.3d 458, 2005-Ohio-2419, fn. 3. “The General Assembly vests the decision

whether to award sanctions, including an award of reasonable attorney fees, in the court.” Id.

Thus, “[w]e will not reverse a lower court’s decision on whether to award sanctions under R.C.

2323.51 absent an abuse of discretion.” Id. at ¶11. To demonstrate an abuse of discretion,

Appellants must establish that the trial court’s award was “unreasonable, arbitrary, or

unconscionable.” Id. “The burden of establishing that a party incurred reasonable attorney fees

because of the opposing party’s frivolous conduct falls upon the moving party.” (Internal

quotations and citation omitted.) Jefferson v. Creveling, 9th Dist. No. 24206, 2009-Ohio-1214,

at ¶33.
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{¶6}   Pursuant to R.C. 2323.51(B):

“(1) The court may assess and make an award to any party to the civil action or
appeal who was adversely affected by frivolous conduct, as provided in division
(B)(4) of this section.

“(2) An award may be made pursuant to division (B)(1) of this section upon the
motion of a party to a civil action or an appeal of the type described in that
division or on the court’s own initiative, but only after the court does all of the
following:

“(a) Sets a date for a hearing to be conducted in accordance with division
(B)(2)(c) of this section, to determine whether particular conduct was frivolous, to
determine, if the conduct was frivolous, whether any party was adversely affected
by it, and to determine, if an award is to be made, the amount of that award;

“(b) Gives notice of the date of the hearing described in division (B)(2)(a) of this
section to each party or counsel of record who allegedly engaged in frivolous
conduct and to each party who allegedly was adversely affected by frivolous
conduct;

“(c) Conducts the hearing described in division (B)(2)(a) of this section in
accordance with this division, allows the parties and counsel of record involved to
present any relevant evidence at the hearing, including evidence of the type
described in division (B)(5) of this section, determines that the conduct involved
was frivolous and that a party was adversely affected by it, and then determines
the amount of the award to be made. * * *

“(3) The amount of an award made pursuant to division (B)(1) of this section that
represents reasonable attorney’s fees shall not exceed, and may be equal to or less
than, whichever of the following is applicable:

“(a) If the party is being represented on a contingent fee basis, an amount that
corresponds to reasonable fees that would have been charged for legal services
had the party been represented on an hourly fee basis or another basis other than a
contingent fee basis;

“(b) In all situations other than that described in division (B)(3)(a) of this section,
the attorney’s fees that were reasonably incurred by a party.

“(4) An award made pursuant to division (B)(1) of this section may be made
against a party, the party’s counsel of record, or both.”
                                                4


       {¶7}   In determining the reasonableness of the attorney fees, the factors contained in the

Ohio Rules of Professional Conduct should be considered. Jefferson at ¶33. These factors

include:

       “(1) the time and labor required, the novelty and difficulty of the questions
       involved, and the skill requisite to perform the legal service properly; (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.” Ohio Rules
       of Professional Conduct 1.5.

Thus, the court is charged with awarding fees that are reasonable in amount and that were

incurred as a result of the frivolous conduct. See Cline at ¶25 (“[B]ecause the reasonable

attorney fees incurred as a result of Striker’s frivolous assertions were $3,503, the court of

appeals did not abuse its discretion in awarding the clerk that amount under R.C.

2323.51(B)(1).”).

                                 ASSIGNMENT OF ERROR I

       “The trial court’s award of attorney fees in the amount of [$]8950 to Appellees’
       counsel was erroneous, [prejudicial], and lacking a sufficient evidentiary
       predicate.”

       {¶8}   Appellants assert in their first assignment of error that the trial court erred in

awarding $8950.00, the amount the Millers requested, in attorney fees pursuant to R.C. 2323.51

for defending against Ms. Wrinch’s frivolous security deposit claim.

       {¶9}   First, Appellants argue that there was no evidence adduced at the hearing that the

Millers were adversely affected by the frivolous conduct, as required by R.C.

2323.51(B)(2)(a)/(c). While the statute does provide that the trial court should conduct the

hearing and make such a determination, R.C. 2323.51(B)(2)(a)/(c), during the prior appeal, this
                                                5


Court remanded the R.C. 2323.51 issue to the trial court solely for the determination of an

“appropriate award of attorney fees[.]” Wrinch at ¶61. Thus, it is clear this Court already

concluded that the conduct was frivolous and the Millers had been adversely affected by it. R.C.

2323.51(B)(2)(a)/(c).

       {¶10} Next, Appellants contend that the Millers failed to establish at the hearing that the

fee they requested, and received, was reasonable. Essentially, Appellants assert that the 44.75

hours Appellees claim they spent were not “reasonable or necessary to defend just the [frivolous]

security deposit claim.”

       {¶11} The hearing on attorney fees was a combined hearing concerning fees sought by

Appellees in connection with the frivolous security deposit claim and fees sought by Appellants

in connection with the frivolous malicious prosecution counterclaim. Neither Mr. Williams, nor

Mr. Turowski, the Millers’ counsel, testified at the hearing. In support of Appellees’ motion for

attorney fees, Appellees presented a detailed exhibit describing the time Appellees’ counsel

spent on the case. One column listed the total hours spent on a particular service and the second

column listed the portion of time spent defending the frivolous security deposit claim with

respect to the particular service. In addition, Appellees presented the testimony of an expert

witness who is a practicing attorney with over fifteen years of experience. The expert testified

that he had reviewed the entire file, the exhibit, this Court’s prior opinion, and had discussions

with Appellees’ counsel, Mr. Turowski about how the time was apportioned for each itemized

service.   It was clear from the testimony that the expert relied upon Mr. Turowski’s

representation as to the amount of time he attributed to defending the security deposit claim and

the expert did not independently attempt to determine what portion of each service was

attributable to the defense of the frivolous claim. In so doing, the expert concluded that 44.75
                                                  6


hours were spent in defending the frivolous claim. In addition, the expert testified that Mr.

Turowski’s hourly rate of $200 per hour was a reasonable to low rate.             Ultimately, after

considering all of the above, along with the factors found in the Ohio Rules of Professional

Conduct, the expert determined that $8950.00 (amounting to 44.75 hours of work at $200 per

hour) was a reasonable fee which was incurred as a result of the frivolous conduct.

       {¶12} After independently reviewing the evidence, this Court cannot say that the trial

court’s award of $8950 was arbitrary, unreasonable, or unconscionable.            Accordingly, we

overrule Appellants’ first assignment of error.

                                 ASSIGNMENT OF ERROR II

       “A clear abuse of discretion and misapplication of the standard for awarding
       attorney fees was committed by the trial court in its award of attorney fees to
       Appellant’s counsel.”1

       {¶13} Appellants essentially assert in their second assignment of error that they should

have been awarded the amount of attorney fees pursuant to R.C. 2323.51 that they requested in

their motion, namely $21,926.74.

       {¶14} The trial court concluded that Appellants met their initial burden to establish that

Appellees’ counterclaim for malicious prosecution was frivolous. This finding has not been

challenged on appeal. However, the trial court also found that Appellants failed to meet their

burden to establish that they were entitled to $21,926.74 in attorney fees. While the trial court

agreed that Mr. Williams’ hourly fee of $220 was reasonable, a finding supported by the record,




       1
          Despite Appellants’ assertion that the trial court applied the wrong standard in assessing
the award of attorney fees pursuant to R.C. 2323.51, the trial court complied with this Court’s
specific remand; our determinations in the prior appeal were not appealed by either side. We are
thus not persuaded by Appellants’ argument.
                                                7


the trial court was not persuaded that Appellants’ evidence established that 99.667 hours were

spent defending the frivolous counterclaim.

         {¶15} In support of their motion for attorney fees, Appellants submitted Mr. Williams’

affidavit averring that he attributed 50% of the time spent on pretrial and trial matters, 100% of

the time spent on the motion for judgment notwithstanding the verdict and the motion for

sanctions, and two-thirds of the time spent on the appeal defending against the frivolous

counterclaim. Attached to his affidavit was a summary statement listing what he had done and

the amount of time he attributed to defending the frivolous counterclaim. At the hearing, an

expert with thirty years of experience as a practicing attorney and Ms. Wrinch testified for the

Appellants. The Appellants’ expert conducted a review of Mr. Williams’ file and prior appeal

and described a process very similar to that employed by Appellees’ expert in assessing the

reasonableness of the fees. Similarly, neither expert had personal knowledge of the attorneys’

actual allocation of time and instead relied upon the attorneys’ representation as to how much

time was spent on their respective frivolous conduct matters. Appellants also submitted a billing

statement as an exhibit that contains a general summary of work performed defending against the

frivolous counterclaim from April 24, 2006, to October 2, 2009, which amounted to $21,926.74

(99.667 hours at $220 per hour). Finally, following the conclusion of the first part of the

hearing, Mr. Williams submitted a supplemental affidavit which attempted to explain his

apportionment. In his supplemental affidavit, Mr. Williams averred that he based his allocation

of time the way he did because the claim at issue was “the most serious and involved the most

work.”

         {¶16} Whereas Mr. Turowski examined each billable service item and delineated the

portion attributable to the frivolous conduct matter, Mr. Williams broadly concluded that 50% of
                                                 8


the pretrial and trial work, all of the time associated with the motion for judgment

notwithstanding the verdict and the motion for sanctions, and two-thirds of the time connected

with the appeal was attributable to defending the frivolous counterclaim. In the end, the expert

testified that, based upon the information received from Mr. Williams, almost 100 hours out of a

total of 150 hours were expended in defending against a single frivolous counterclaim, despite

the fact that the case involved multiple claims and multiple counterclaims. Overall, it is clear

that the trial court was not persuaded that Appellants’ evidence established an entitlement to the

amount of fees Appellants sought. Part of that determination appears to have been based upon

the trial court’s assessment of credibility and its concern with the manner in which Mr. Williams

apportioned his time. Although the trial court certainly had discretion to award a greater amount

of fees, after independently reviewing the record, we cannot say that the trial court acted

unreasonably.

       {¶17} As the trial court was not satisfied with the apportionment of Mr. Williams’ time

as presented by the expert, the time sheets, and the affidavits, the trial court was faced with

having to determine a reasonable award in light of what it believed was inadequate evidence.

Thus, the trial court attempted to award Appellants the amount of fees which were incurred as a

result of the pursuit of sanctions related to the frivolous counterclaim: $2101.00. While it is true

that such an award represents only a fraction of the amount that Appellants’ requested, in light of

the evidence presented, we cannot say that the award was unreasonable, arbitrary, or

unconscionable. Accordingly, we overrule Appellants’ second assignment of error.

                                                III.

       {¶18} In light of the foregoing, we affirm the judgment of the Summit County Court of

Common Pleas.
                                                 9


                                                                             Judgment affirmed.




       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 Summit, 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(E). 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.

       Costs taxed to Appellant.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT



WHITMORE, J.
MOORE, J.
CONCUR

APPEARANCES:

BRIAN J. WILLIAMS, Attorney at Law, for Appellant.

KENNETH L. TUROWSKI, Attorney at Law, for Appellees.
