[Cite as Alexander v. LJF Management, Inc., 2011-Ohio-2532.]



                         IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                          HAMILTON COUNTY, OHIO



ADAM ALEXANDER,                                    :           APPEAL NO. C-100618
                                                               TRIAL NO. 08CV-21953
              Plaintiff-Appellant,                 :

        vs.                                        :
                                                                  D E C I S I O N.
LJF MANAGEMENT, INC.,                              :

        and                                        :

MHL, LTD.,                                         :

              Defendants-Appellees.                :




Civil Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed in Part and Cause Remanded

Date of Judgment Entry on Appeal: May 27, 2011



The Blessing Law Firm and David S. Blessing, for Plaintiff-Appellant,

McIntosh & McIntosh, PLLC, and Brian McIntosh, for Defendants-Appellees.




Please note: This case has been removed from the accelerated calendar.
                        OHIO FIRST DISTRICT COURT OF APPEALS



FISCHER, Judge.

          {¶1}    Plaintiff-appellant Adam Alexander appeals the Hamilton County

Municipal Court’s award of $875 in attorney fees, pursuant to R.C. 5321.16, on

Alexander’s claim against defendants-appellees MHL, Ltd., and LJF Management,

Inc. (“MHL”), for recovery of his security and pet deposit. Because we determine

that the trial court acted unreasonably by failing to consider the time expended by

Alexander’s attorney in securing Alexander’s judgment post-trial, we reverse the trial

court’s judgment and remand this case for further proceedings consistent with this

decision.

                                          Procedural History

          {¶2}    We will not delve into the facts underlying this landlord-tenant dispute

except to say that Alexander filed this action against his former landlord, MHL,

pursuant to R.C. 5321.16 for recovery of a $600 security deposit. This is the second

appeal that Alexander has filed in this case. In our disposition of Alexander’s first

appeal, Alexander v. LJF Management, Inc. (“Alexander I”),1 we laid out the

following procedural history:

          {¶3}    “The case was referred to a magistrate for a bench trial. On October 1,

2008, the magistrate issued a decision recommending judgment for Alexander on his

claim and on MHL’s counterclaim in the amount of $1,144, plus a lump-sum award

of $1,000 in attorney fees.         MHL filed objections.   Alexander, who had sought

$2,516.75 in attorney fees, also filed an objection, claiming that the magistrate had




1   1st Dist. No. C-090091, 2010-Ohio-2763.

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awarded fees without considering the factors identified by the Ohio Supreme Court

in Bittner v. Tri-County Toyota, Inc.2

           {¶4}    “On November 20, 2008, the trial court granted Alexander’s objection

in part. In its judgment entry, the court adopted the magistrate’s $1,144 damage

award but overruled the attorney-fee award. The court referred the matter back to

the magistrate for application of the Bittner analysis.”3

           {¶5}     Alexander then submitted to the magistrate an amended application

for attorney fees, requesting an award of $4,117.50.                    Alexander calculated this

amount by combining the 17.5 hours spent by one attorney at a rate of $175 per hour,

the six and one-half hours spent by another attorney at a rate of $150 per hour, and

one hour of paralegal time at a rate of $80 per hour. Notably, Alexander’s amended

application requested fees for time expended post-trial, including, but not limited to,

reviewing the magistrate’s decision, drafting an application for attorney fees, drafting

an emergency motion for an extension of time, and responding to MHL’s objections

to the magistrate’s decision.

           {¶6}     In a December 12, 2008, decision, the magistrate reduced his

attorney-fee recommendation to $875.                    Alexander filed an objection to this

recommendation, which the trial court overruled on January 9, 2009. On the same

date, the trial court journalized two separate entries. One entry was identical to the

October 1, 2008, magistrate’s decision, which had recommended the $1,000 fee

award that the trial court had subsequently rejected. The other entry was identical to




2   Id. at ¶3, citing (1991), 58 Ohio St.3d 143, 145, 569 N.E.2d 464.
3   Id. at ¶4.

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the December 12, 2008, magistrate’s decision, which had recommended the $875 fee

award.

           {¶7}      Alexander then appealed the award of attorney fees to this court in

Alexander I, and we determined that no final, appealable order existed. We reached

this conclusion because the trial court had failed to determine all the claims for relief

in the action, in part, because the trial court had journalized inconsistent entries on

the same day—one entry had awarded Alexander $1,000 in attorney fees and one

had awarded Alexander $875 in attorney fees. Therefore, we dismissed Alexander’s

appeal.4

           {¶8}      After this court’s decision in Alexander I, the trial court issued another

judgment entry on August 11, 2010. The trial court’s entry awarded judgment for

Alexander in the amount of $1,144, plus $875 for attorney fees. The trial court also

found in favor of Alexander on MHL’s counterclaim and assessed costs against MHL.

In its calculation of attorney fees, the court essentially restated the magistrate’s

December 12, 2008, recommendation. After considering the Bittner factors, the

court found that Alexander’s matter could have been handled by an attorney in five

hours—four hours of presentation and one hour of trial at a rate of $175 per hour. In

the magistrate’s December 12, 2008, recommendation, the magistrate had

determined that the matter could have been handled in five hours, which included

four hours of “preparation” and one hour of trial, at a rate of $175 per hour.

           {¶9}      Alexander now appeals the trial court’s August 11, 2010, entry

awarding him $875 in attorney fees.



4   Id. at ¶15-16.

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                  Award of Attorney Fees Pursuant to R.C. 5321.16

        {¶10} In Alexander’s sole assignment of error, he argues that the trial court

erred in failing to award litigation expenses and attorney fees for the time necessary

to secure and maintain Alexander’s judgment pursuant to R.C. 5321.16.               R.C.

5321.16(C) allows a tenant to recover reasonable attorney fees from a landlord when

that landlord fails to comply with the required procedure for returning a security

deposit. In Smith v. Padgett,5 the Ohio Supreme Court held that “[a] landlord who

wrongfully withholds a portion of a tenant’s security deposit is liable for damages

equal to twice the amount wrongfully withheld and for reasonable attorney fees.

Such liability is mandatory * * * .”6

        {¶11} A trial court’s determination as to the amount of attorney fees awarded

under R.C. 5321.16(C) will not be reversed except where such determination

constitutes an abuse of discretion.7         Furthermore, “[u]nless the amount of fees

determined is so high or so low as to shock the conscience, an appellate court will not

interfere. The trial judge which participated not only in the trial but in many of the

preliminary proceedings leading up to the trial has an infinitely better opportunity to

determine the value of services rendered by lawyers who have tried a case before him

than does an appellate court.”8

        {¶12} When calculating reasonable attorney-fee awards, a trial court should

first calculate the number of hours reasonably expended on the case and multiply

that figure by a reasonable hourly rate.9           The trial court may then modify that


5 (1987), 32 Ohio St.3d 344, 349, 513 N.E.2d 737.
6 Id.
7 Id. at paragraph four of the syllabus.
8 Bittner, supra, at fn. 2.
9 Id. at 145-146.



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amount upward or downward based upon numerous factors, including “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.”10

        {¶13} With regard to an award of attorney fees pursuant to R.C. 5321.16, we

have held that “[t]here should be some rational relationship between the attorney

fees, the amount of the security deposit, and the amount wrongfully withheld

therefrom.”11

        {¶14} Alexander argues on appeal that the trial court abused its discretion in

failing to award litigation expenses, such as filing fees, service fees, and expenses for

photocopying. Alexander offers no authority for this proposition. Moreover, as

recognized by the Ohio Supreme Court, a court must not tax litigation expenses as

costs unless expressly permitted to do so by statute.12                Therefore, we overrule

Alexander’s assignment of error to the extent that he argues that the trial court erred

by excluding Alexander’s litigation expenses in its attorney-fee award.

        {¶15} Alexander also argues that the trial court acted unreasonably in

calculating his attorney-fee award because the trial court ignored the actual time his

counsel had expended in handling the case.                Specifically, Alexander argues his

counsel spent five hours in court alone, and, therefore, the trial court erred in finding

10 Id.
11 Nolan v. Sutton (1994), 97 Ohio App.3d 616, 620, 647 N.E.2d 218.
12 Centennial Ins. Co. v. Liberty Mut. Ins. Co. (1982), 69 Ohio St.2d 50, 51, 430 N.E.2d 925.



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that Alexander’s matter could have been handled in five hours total. Alexander

further argues that the trial court failed to consider the time Alexander’s counsel

spent defending the magistrate’s decision post-trial.

        {¶16} When calculating the number of hours reasonably expended in

handling a matter for purposes of an attorney-fee award, “hours that are excessive,

redundant, or otherwise unnecessary” should be excluded from the calculation.13

Thus, we cannot say that the trial court abused its discretion in determining that

Alexander’s matter could have been handled in five hours up to and including trial, at

a rate of $175 per hour. Moreover, Alexander overlooks the fact that some of the

hours expended at or before trial were performed by an attorney who billed at a rate

of $150 per hour.

        {¶17} The trial court, however, clearly failed to consider time expended by

Alexander’s counsel post-trial.         In Klein v. Moutz,14 the Ohio Supreme Court

considered whether a trial court had the authority, pursuant to R.C. 5321.16, to

award attorney fees that were incurred at the appellate level. The court ultimately

concluded that a prevailing party could petition either the trial court or the appellate

court to recover attorney fees incurred defending a judgment on appeal.15            In

reaching its decision, the court noted that “R.C. 5321.16 is a remedial statute

intended to compensate the tenant for a wrongfully withheld deposit at no expense

to the tenant.”16




13 Hensley v. Eckerhart (1983), 461 U.S. 424, 434, 103 S.Ct. 1933.
14 (2008), 118 Ohio St.3d 256, 888 N.E.2d 404.
15 Id. at 259.
16 Id. at 258.



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       {¶18} Applying the court’s reasoning in Klein, we determine that an award of

attorney fees pursuant to R.C. 5321.16 must take into consideration the time a tenant

spends defending a magistrate’s decision after objections have been filed by the

landlord. Our determination is consistent with the purpose of R.C. 5321.16, which is

“[t]o ensure that the tenant incurs no expense when seeking return of the deposit

wrongfully withheld.”17

       {¶19} But we hold that a trial court calculating a fee award pursuant to R.C.

5321.16 is not required to consider the time a tenant spends drafting an application

for attorney fees. In Bryant v. Walt Sweeney Automotive, Inc.,18 we held that the

trial court did not err in denying an attorney-fee award in a Consumer Sales

Practices Act case for time expended by counsel in preparation for the contested

attorney-fee hearing because the time spent in pursuit of attorney fees was not spent

in “direct pursuit” of the claim.19 The “direct pursuit” concept applied in Bryant has

equal force in cases under R.C. 5321.16 because, as the Ohio Supreme Court has

stated, “[t]he award of attorney fees must relate solely to the fees attributable to the

tenant’s security deposit claim under R.C. 5321.16, and not to any additional

claims.”20

       {¶20} In this case, although it remains in the trial court’s discretion whether

to award fees for post-trial activity, the trial court should have considered the time

Alexander’s counsel spent post-trial, including, but not limited to, drafting an

emergency motion for an extension of time and responding to objections made by



17 Id. at 259.
18 1st Dist. Nos. C-010395 and C-010404, 2002-Ohio-2577, ¶41.
19 Id.
20 Smith, supra, at 349.



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the defendant to the magistrate’s decision before reaching a final determination. But

the trial court was not required to consider time Alexander’s counsel expended in

drafting applications for attorney fees. The trial court’s entry clearly demonstrates

that the trial court did not take into account the time expended by Alexander’s

counsel post-trial in calculating its attorney-fee award. The trial court explicitly

stated in its entry that it arrived at the $875 award by multiplying an hourly rate of

$175 times five hours, which included four hours of presentation and one hour of

trial.   The trial court essentially adopted the magistrate’s fee recommendation,

except that the trial court used the word “presentation” instead of “preparation.”

         {¶21} We hold that the trial court acted unreasonably, and thus abused its

discretion, when it calculated the number of hours reasonably expended in handling

the matter by explicitly disregarding the time expended by Alexander’s counsel

defending the magistrate’s decision post-trial. Thus, we must sustain Alexander’s

assignment of error to that limited extent.

         {¶22} Therefore, we reverse the trial court’s judgment awarding Alexander

$875 in attorney fees, and we remand this case to the trial court to calculate attorney

fees in a manner consistent with this decision.

                                          Judgment reversed in part and cause remanded.

HILDEBRANDT, P.J., and CUNNINGHAM, J., concur.


Please Note:
         The court has recorded its own entry on the date of the release of this opinion.




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