Ritzler v. Arcadia

[Cite as Ritzler v. Arcadia, 2020-Ohio-4416.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

HANCOCK COUNTY

ROBERT A. RITZLER, ET AL.,

PLAINTIFFS-APPELLANTS, CASE NO. 5-20-16

v.

VILLAGE OF ARCADIA, OPINION

DEFENDANT-APPELLEE.

Appeal from Hancock County Common Pleas Court

Trial Court No. 2017 CV 00463

Judgment Affirmed

Date of Decision: September 14, 2020

APPEARANCES:

John T. Barga for Appellants

John C. Filkins for Appellee

Case No. 5-20-16

SHAW, P.J.

{¶1} Plaintiffs-appellants, Robert Ritzler and Charity Ritzler (“the

Ritzlers”), bring this appeal from the February 18, 2020 judgment of the Hancock

County Common Pleas Court denying their request that defendant-appellee, Village

of Arcadia (“Arcadia”), pay the Ritzlers’ attorney’s fees pursuant to R.C. 2323.51

and Civ.R. 11. On appeal, the Ritzlers argue that they had proven Arcadia had

engaged in frivolous conduct in this matter and that the Ritzlers had sufficiently

established their attorney’s fees.

Background

{¶2} After repeatedly receiving high water bills, the Ritzlers began to suspect

they were being overcharged for water by Arcadia. The Ritzlers compared their

water bills and their water usage to neighbors and similarly-sized families in the

area and they felt that their bills were significantly higher. They contacted Arcadia

and Arcadia came out to check for leaks on the premises but none were discovered.

Arcadia then analyzed the water meter, and after testing it was discovered that the

meter was reading at approximately 2.35 times higher than the actual amount used

by the Ritzlers.

{¶3} On December 17, 2018, the Ritzlers filed a complaint against Arcadia

alleging that Arcadia had breached its contractual obligation to provide water at the

usual, customary, and reasonable rate. The Ritzlers alleged that they had been

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paying their water bills and that Arcadia had overcharged them for water in the

amount of $6,488.97 plus interest. The Ritzlers claimed that they had been

overcharged on their monthly bills from 2010 to when the meter was replaced by

Arcadia in 2018. The Ritzlers also requested costs and attorney’s fees.

{¶4} On January 18, 2019, Arcadia filed a “Special and Limited

Appearance” to present a motion to dismiss based on sovereign immunity. The

Ritzlers opposed the motion, emphasizing that there was a clear exception to

sovereign immunity for breach of contract claims. See R.C. 2744.09(A) (“This

chapter does not apply to * * * [c]ivil actions that seek to recover damages from a

political subdivision or any of its employees for contractual liability[.]”). The trial

court denied Arcadia’s motion to dismiss, reasoning that “there exists factual

disputes, which preclude the Court’s consideration of the motion to dismiss.

[Arcadia]’s own motion suggests the possibility of an exception to sovereign

immunity protection.” (Doc. No. 19). The trial court added that the matter should

be converted to a motion for summary judgment, and directed the parties to file their

respective motions.

{¶5} On March 25, 2019, Arcadia filed a motion for summary judgment

again asserting sovereign immunity, claiming that despite the styling and wording

of the claim, the Ritzlers were actually asserting a tort claim, not a breach of contract

claim. In the motion, Arcadia acknowledged that the Ritzlers’ water meter was not

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reading correctly; however, Arcadia argued that it was impossible to discern exactly

when the water meter stopped reading correctly.

{¶6} On April 4, 2019, the Ritzlers filed their own motion for summary

judgment and a response to Arcadia’s motion for summary judgment. The Ritzlers

argued that Arcadia had admitted that the meter was not reading correctly, thus it

had been established that they were being overcharged. The Ritzlers again

emphasized that sovereign immunity was not proper in a breach of contract claim.

They attached evidence and affidavits supporting their claim.

{¶7} On April 18, 2019, the trial court filed its decision on the parties’

summary judgment motions. The trial court granted the Ritzlers’ motion for

summary judgment, in part, finding that sovereign immunity protection did not

cover a breach of contract action. The trial court also determined that Arcadia had

acknowledged that the Ritzlers’ water meter was not reading correctly. However,

the trial court determined that two issues of fact remained to be litigated: 1) when

the Ritzlers’ water meter began malfunctioning; and 2) what the appropriate amount

of damages were for the over-billing.

{¶8} The issues of fact were set for trial, but shortly before the trial

commenced the parties settled the matter with Arcadia paying the amount requested

by the Ritzlers in their complaint. Subsequently, on July 24, 2019, the Ritzlers filed

a Civil Rule 41(A)(1)(a) notice of dismissal of their case.

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{¶9} On August 22, 2019, the Ritzlers filed a motion for attorney’s fees and

sanctions pursuant to R.C. 2323.51 and Civ.R. 11. The Ritzlers alleged that Arcadia

and its attorney had engaged in frivolous conduct in this action by filing motions

that were not supported by the law or the facts.

{¶10} The matter proceeded to a hearing on October 31, 2019. At the

inception of the hearing the trial court stated that based upon its research it believed

the Ritzlers still had standing to request attorney’s fees for frivolous conduct and

sanctions even though the underlying action had been dismissed. The trial court

then addressed some of the potential evidence and testimony that was going to be

presented. The Ritzlers’ attorney stated that he intended to introduce the affidavit

of another attorney who was not involved in this case into evidence without offering

the attorney’s testimony. The affidavit would claim that the hourly fee rate of $250

charged in this matter by the Ritzlers’ attorney was reasonable. The trial court

inquired as to why the attorney would not be present at the hearing to testify and be

subject to cross-examination, and the Ritzlers’ attorney responded that it was a

matter of timing and expense. The trial court refused to admit the affidavit as

hearsay, reasoning that the rules of evidence still applied at the hearing.

{¶11} The hearing then commenced with the Ritzlers’ attorney calling

Arcadia’s attorney to testify. Arcadia’s attorney testified that he charged $175 per

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hour and that in the Hancock County area he had seen a range of fees between $150-

200 per hour. He acknowledged that he had seen higher rates elsewhere though.

{¶12} Arcadia’s attorney also testified that he prepared the motions in this

case, including those based on sovereign immunity. Arcadia’s attorney testified that

prior to the trial court’s ruling on the matter he did not believe that there was a

contract that had been breached by Arcadia because Arcadia had not overtly done

something wrong. In addition, Arcadia’s attorney testified that at the time he filed

the motions based on sovereign immunity he believed that any existing “contract”

for water was between Arcadia and the water supply entity, not between Arcadia

and the Ritzlers.

{¶13} The Ritzlers each testified individually at the hearing, stating that they

had issues for years with the water prices, that Arcadia had done multiple dye tests

to check for leaks, and that the water meter was ultimately replaced. Robert Ritzler

testified that he did the calculations to determine how much he thought Arcadia

owed for overpayments. He testified that he assumed in his calculations that the

water meter had been reading incorrectly since April 21, 2010.

{¶14} The administrator for Arcadia also testified at the hearing. He

indicated that he was satisfied in April of 2018 that the Ritzlers’ meter was not

reading correctly and that they were being overcharged for water. However, he

testified that he was uncertain as to when the meter began malfunctioning. The

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administrator testified that the meter could have gone bad slowly and that the

Ritzlers went from having no children in the house to having multiple children in

the house, increasing water usage. The administrator testified that based on his

inspection he could not determine when the meter started reading incorrectly.

{¶15} The Ritzlers’ attorney also testified regarding his fees and his bills in

this matter. A copy of his “bill” was also introduced into evidence. Arcadia’s

attorney challenged the Ritzlers’ attorney on the fact that some of the attorney’s fees

clearly predated the filing of the breach of contract action. Arcadia’s attorney also

pointed out that it was not possible to discern from the bills what work had been

done in relation to supposed frivolous conduct. The parties submitted written

closing arguments and the matter was submitted to the trial court for determination.

{¶16} On February 18, 2020, the trial court filed its entry analyzing the

attorney’s fees and sanctions issues. The trial court reasoned as follows.

[The Ritzlers] first argue, as a contract dispute, [Arcadia] had no

basis in law to defend this action based on sovereign immunity.

[The Ritzlers] contend that a simple reading of the sovereign

immunity statutes would have revealed this. On this point, the

Court agrees. (See Exhibit 93; R.C. § 2744.09). However, other

aspects of the Village’s defense were not frivolous. Whether

privity existed between the parties was, at the initial stages of this

litigation, a worthy question. Questioning the amount of

reimbursement sought by [the Ritzlers] was also a fair point

because questions existed about when the malfunction began and

the Village was permitted to access the property to replace it.

Another important issue to examine is the timing of the

settlement. Even after the Village learned that the water meter

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had been malfunctioning, its failure to resolve the dispute well

prior to trial was never explained. (See Exhibit 1). Based upon

information known to the Village as far back as March of 2019

(and likely much earlier), this matter could have been settled

without the necessity of protracted legal proceedings. For these

reasons, there is compelling evidence to find that the Village and

its counsel unnecessarily delayed resolution of this case.

However, this finding does not apply to the Plaintiffs’ Rule

11 claim. There is insufficient evidence to establish that Filkins

and the Village acted willfully or intentionally. * * * Having

found the existence of some frivolous conduct, Plaintiffs may be

entitled to attorney’s fees.

(Doc. No. 56).

{¶17} The trial court then analyzed the Ritzlers’ claims for attorney’s fees,

noting that the preferred method to establish an award of attorney’s fees is to offer

disinterested opinions on the reasonableness of the hours spent and the

reasonableness of the hourly rate. The trial court stated that the Ritzlers did not

secure the appearance of an expert, rather, the Ritzlers’ counsel submitted his own

affidavit suggesting the reasonableness of his hourly rate and the time spent on the

matter. The trial court also noted that the testimony and the bills from the Ritzlers’

attorney did not “delineate those portions of his fees dealing with the various

disputed issues.” (Id.)

{¶18} Ultimately, the trial court found two “serious” problems existed with

regard to the Ritzlers’ claim for attorney’s fees, the first being that there was no

expert testimony that the time spent on this case was reasonable. The trial court

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stated that, “An opinion from counsel that his own services were reasonable cannot

be considered totally objective. The benefit of having another learned set of eyes

and ears review the file would have provided the Court with the opportunity to

objectively evaluate the request, especially given that it was a matter in contention.”

(Doc. No. 56).

{¶19} The second major issue was that the trial court found that only some

of Arcadia’s conduct was frivolous and the time spent responding specifically to

“frivolous” matters was not self-evident from the billing statements. “It is

impossible for the Court to separate the work done to defend against the frivolous

action of the Village versus efforts expended to assert legitimate defenses.” (Id.)

Thus the trial court reasoned that without the necessary information, it could not

award attorney’s fees in this case. It is from this judgment that the Ritzlers appeal,

asserting the following assignment of error for our review.

Assignment of Error

The trial court committed reversible error when it failed to

acknowledge, accept and use the facts produced during the

October 31, 2019 hearing, the documents in the record and the

appropriate legal standard that support an award of attorney fees

to plaintiffs.

{¶20} The Ritzlers make various claims in their assignment of error

contending that the trial court erred by denying their request for attorney’s fees in

this matter. They argue, inter alia, that the trial court incorrectly stated that expert

testimony was necessary to establish that the hours spent on this case were

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reasonable, and that there was sufficient evidence to support their motion for

attorney’s fees.

Standard of Review

{¶21} Generally, we review a trial court’s decision regarding an award of

attorneys’ fees for an abuse of discretion. United Assn. of Journeyman and

Apprentices of the Plumbing and Pipe Fitting Industry v. Jack's Heating, Air

Condition & Plumbing, Inc., 3d Dist. No. 6–12–06, 2013–Ohio–144, ¶ 15,

citing Bittner v. Tri–Cty. Toyota, Inc., 58 Ohio St.3d 143, 146, 569 N.E.2d 464

(1991). An abuse of discretion suggests the trial court’s decision is unreasonable,

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

(1983).

Discussion

{¶22} The Ritzlers argue that they are entitled to attorney’s fees and

sanctions pursuant to R.C. 2323.51 and Civ.R. 11. The party requesting the

attorney’s fees has the burden of providing evidence that the hours worked were

necessary to the action and that the amount of the fees is reasonable. Southeast

Land Dev., Ltd. v. Primrose Mgt., L.L.C., 3d Dist. Hancock Nos. 5–10–04, 5–10–

11, 2011–Ohio–2341, ¶ 15.

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{¶23} In this case, the trial court determined that there was some frivolous

conduct committed by Arcadia and its attorney. Arcadia did not file a cross-appeal

challenging this issue so we will accept the trial court’s finding on this matter.

{¶24} Nevertheless, the trial court determined that it could not award

attorney’s fees here because no evidence was presented that the hours spent on this

case were reasonable beyond the self-serving affidavit of the Ritzlers’ attorney and

because there was no differentiation through testimony or exhibits between work

that was spent responding to frivolous conduct and work that was spent responding

to legitimate factual or legal issues. In other words, the trial court found that the

Ritzlers did not adequately establish the amount of attorney’s fees that they were

actually entitled to receive for responding to frivolous matters.

{¶25} The Ritzlers challenge the trial court’s determination on appeal,

arguing that expert testimony is not actually required to establish attorney’s fees.

However, this argument misconstrues the trial court’s reasoning, which was that

absent evidence from a disinterested attorney, the trial court was left with the

Ritzlers’ attorney’s own statement that his fees and hourly rate were reasonable.

The trial court simply did not find that affidavit sufficient to objectively establish

the matter in this particular set of circumstances. Under other circumstances with

self-serving testimony we have found that a request for attorney’s fees was not

properly established. See United Assn. of Journeymen & Apprentices of the

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Plumbing & Pipe Fitting Industry v. Jack's Heating, Air Conditioning & Plumbing,

Inc., 3rd Dist. Hardin No. 6-12-06, 2013-Ohio-144, ¶¶ 23-32. Nevertheless, we

have also stated that “we have not gone so far as to hold that [disinterested/expert]

testimony is a threshold requirement [to establish attorney’s fees] in all

circumstances.” Grove v. Gamma Ctr., Inc, 3d Dist. Marion No. 9-12-41, 2013-

Ohio-1734, ¶ 31, citing Natl. City Bank v. Semco, Inc., 3d Dist. Marion No. 9-10-

42, 2011-Ohio-172, and Jack’s Heating, supra. Regardless, the trial court here

simply found that the Ritzlers did not meet their burden in this matter.

{¶26} Notwithstanding this point, the trial court found a second deficiency

with the Ritzlers’ request for attorney’s fees. The trial court found that it was unable

to determine from the bills and testimony presented what work had been conducted

on frivolous conduct versus what work had been spent on legitimate defenses by

Arcadia.

{¶27} The total billing appears to request $13,006.15 for work completed

prior to the hearing on the attorney’s fees motion, and an additional $2,500 for

preparation and attendance at the hearing on sanctions/frivolous conduct. As an

illustration of how it is difficult to discern the attribution of work contained in the

bill, one page of the bill submitted contains such lines as “1/22/2019 Review

Motion/ legal research” and “2/4/2019 Work on Brief.” However, no amount of

time is listed next to these tasks. Rather, at the bottom of fifteen listed tasks over

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the course of nearly a month is a summary that 12.2 hours had been worked totaling

a fee of $3,050 (not including costs and expenses). There is no breakdown

whatsoever as to how much time was spent on each task on a given day. Based on

the dates, this would seem to be around the time that the Ritzlers’ attorney would

have been dealing with the motion to dismiss. There is a slightly more detailed

billing statement beginning February 27, 2019, that shows the hours spent on

individual tasks on individual dates, but some of the “descriptions” are still vague.

{¶28} Moreover, as was stressed during cross-examination, there was even a

fair amount of work in the bills that was performed by the Ritzlers’ attorney before

the lawsuit was even filed. Based on these issues, we cannot find that the trial court

abused its discretion in determining that the Ritzlers’ evidence did not establish the

amount of time specifically spent in dealing with the “frivolous conduct.” See

Weaver v. Pillar, 5th Dist. Tuscarawas No. 2012-CA-32, 2013-Ohio-1052, ¶ 40

(“We find the record lacks evidence that Pillar was adversely affected by having to

defend allegedly frivolous claims, as distinguished from the need to defend the

lawsuit in general[.]”)

{¶29} In sum, the trial court found that there was some frivolous conduct

here, but it explicitly did not find willful or intentional misconduct that would satisfy

Civ.R. 11 sanctions. The trial court also did not find that the overwhelming nature

of the defense presented by Arcadia was dedicated to frivolous matters. This is

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important because when the trial court analyzed the attorney’s fees requested, the

Ritzlers did not present a detailed billing. Similarly, the Ritzlers did not supply any

disinterested testimony, which the trial court felt, in this particular case, would have

been necessary to help the Ritzlers’ establish their fees. Under the facts and

circumstances of this case we cannot find that the trial court abused its discretion by

denying the Ritzlers’ motion for attorney’s fees. Therefore their assignment of error

is overruled.

Conclusion

{¶30} For the foregoing reasons the Ritzlers’ assignment of error is overruled

and the judgment of the Hancock County Common Pleas Court is affirmed.

Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr

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