[Cite as Goomi v. H&E Ent., L.L.C., 2023-Ohio-3901.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
NIV GOOMAI, : APPEAL NO. C-230099 TRIAL NO. A-1902101 and : O P I N I O N. BAR HAJBI, :
Plaintiffs-Appellants, :
vs. :
H&E ENTERPRISE, LLC, :
and :
AVI OHAD, :
Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: October 27, 2023
Manley Burke, LPA, Ilana L. Linder and Emily Cooney Couch, for Plaintiffs- Appellants,
Gary F. Franke Co., LPA, Michael D. O’Neill and Gary F. Franke, for Defendants- Appellees. OHIO FIRST DISTRICT COURT OF APPEALS
KINSLEY, Judge.
{¶1} This case calls upon us to clarify the meaning of the term “prevailing
party” in a section of the Ohio Deceptive Trade Practices Act (“DTPA”) that permits
awards of attorney fees. For the reasons we describe in this opinion, we hold that a
party prevails on a DTPA claim when the finder of fact determines the statute has been
violated, regardless of whether a damages amount is awarded to remedy the violation.
{¶2} This question arises because a jury found in favor of plaintiffs-
appellants Niv Goomai and Bar Hajbi (collectively “Goomai”) on their claim that
defendants-appellees H&E Enterprise, LLC, and Avi Ohad (collectively “H&E”)
violated the DTPA, but the trial court denied statutorily-available attorney fees on the
basis that Goomai did not prevail on the claim. At trial, the jury considered three
claims against H&E: (1) breach of contract, (2) fraudulent misrepresentation, and (3)
a DTPA violation. The jury found in Goomai’s favor on the breach of contract and
DTPA claims, but only awarded damages on the breach of contract claim. Since there
were no damages awarded on the DTPA claim, the trial court held Goomai did not
prevail and denied attorney fees as a result.
{¶3} In a single assignment of error, Goomai argues that the trial court erred
by failing to properly interpret and apply the DTPA attorney fees provision found in
R.C. 4165.03(B). We agree with Goomai, reverse the decision of the trial court, and
remand the matter to the trial court to determine the amount of attorney fees Goomai
is owed.
I. Factual and Procedural Background
{¶4} In October 2017, with the help of Ohad, Goomai purchased a property
in the Camp Washington neighborhood of Cincinnati. The two entered into an
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agreement that Ohad and H&E would renovate the Camp Washington property for
$50,000. The project was to be completed by January 2018. But numerous problems
prohibited Ohad and H&E from delivering on their promises. Ohad initially failed to
disclose that he had not obtained the necessary license to conduct the renovation.
Ohad also failed to obtain the proper work permits from the city before the renovation
work began, and this caused further delay to the project.
{¶5} In January 2019, approximately a year after the renovation should have
been completed, Ohad told Goomai that he had only now obtained the necessary
permits and that the renovation could continue. But this was untrue. Ultimately, the
renovation project never materialized, and H&E did not deliver on the promised
property upgrades.
{¶6} In May 2019, Goomai sold the property for $50,000 at a loss on his
investment. He then sued H&E.
{¶7} Goomai initially raised nine claims against H&E, but by the time of trial,
his claims had been reduced to three: breach of contract, fraudulent
misrepresentation, and violation of the DTPA. H&E also counterclaimed against
Goomai for breach of contract. Only the DTPA claim permitted the recovery of
statutory attorney fees if Goomai prevailed. See R.C. 4165.03(B). But the jury received
no instructions about the applicability of the attorney fees provision, nor the
implications of its allocation of damages should it award no damage on the DTPA
claim.
{¶8} Following trial, the jury found that H&E breached its contract with
Goomai and that H&E violated the DTPA. It found against Goomai on his fraudulent
misrepresentation claim and against H&E on its counterclaim. It awarded
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$30,604.09 in damages on the breach of contract claim and no damages on the DTPA
{¶9} Goomai then moved for an award of attorney fees under R.C.
4165.03(B), the DTPA’s fee-shifting provision. The trial court held an evidentiary
hearing on the motion, at which both sides put forth expert testimony regarding the
reasonableness of Goomai’s requested fees. Following the hearing, the trial court
denied the motion for attorney fees in its entirety on the basis that Goomai was not a
prevailing party within the meaning of the DTPA, because the jury did not award
damages on that claim.
{¶10} Goomai timely appealed.
II. DTPA Attorney Fees
{¶11} In a single assignment of error, Goomai challenges the trial court’s
denial of his motion for attorney fees under R.C. 4165.03(B). He argues that he was a
prevailing party under the DTPA by virtue of the jury’s verdict finding that H&E
violated the DTPA. Consistent with the trial court’s determination, H&E argues that,
to be a prevailing party under R.C. 4165.03(B), a party must obtain not only a
judgment in its favor, but also a remedy. This is a question of first impression in Ohio
courts.
A. Standard of Review
{¶12} To begin, we resolve a dispute between the parties about the standard
of review. Goomai argues that the trial court’s application of the prevailing party
standard in R.C. 4165.03(B) presents a question of statutory construction that we
review de novo. See, e.g., State ex rel. Herman v. Klopfleisch, 72 Ohio St.3d 581, 584,
651 N.E.2d 995 (1995). H&E argues that decisions regarding attorney fees are within
4 OHIO FIRST DISTRICT COURT OF APPEALS
the discretion of the trial court and that our review is limited to whether the court
below abused its discretion. See, e.g., Bittner v. Tri Cty. Toyota, Inc., 58 Ohio St.3d
143, 146, 569 N.E.2d 464 (1991).
{¶13} We agree with Goomai. The question presented in this case does not
concern the amount of attorney fees imposed by the trial court, but rather the
applicability of a statutory fee-shifting provision. Were the former at issue, we would
defer to the trial court and review its decision only for an abuse of discretion. But given
the need to interpret whether the statute applies at all, and if so why, we believe this
case triggers the more robust investigation of a statute’s intent that de novo review
requires. See, e.g., Elliot v. Durrani, 171 Ohio St.3d 213, 2022-Ohio-4190, ___ N.E.3d
___, ¶ 8. We therefore apply de novo review in answering the question of whether
Goomai is a prevailing party under R.C. 4165.03(B).
B. Prevailing Party Status under R.C. 4165.03(B)
{¶14} The DTPA, codified at R.C. 4165.03(B), contains the following attorney
fees provision:
The court may award in accordance with this division reasonable
attorney’s fees to the prevailing party in either type of civil action
authorized by division (A) of this section. An award of attorney’s fees
may be assessed against a plaintiff if the court finds that the plaintiff
knew the action to be groundless. An award of attorney’s fees may be
assessed against a defendant if the court finds that the defendant has
willfully engaged in a trade practice listed in division (A) of section
4165.02 of the Revised Code knowing it to be deceptive.
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{¶15} Under this provision, a plaintiff who loses a DTPA claim can be forced
to pay attorney fees if the party knowingly pursued a groundless DTPA claim against
the defendant. Conversely, a defendant can be forced to pay attorney fees if the
defendant willfully engaged in a defined trade practice knowing that it was deceptive.
In either scenario, fees can be awarded for DTPA claims for injunctive or monetary
relief brought under R.C. 4165.03(A). The linchpin of whether a party may receive
attorney fees under the DTPA is therefore not party identity or claim type, but whether
the party seeking fees prevailed.
{¶16} What does it mean to be a “prevailing party” under R.C. 4165.03(B)? No
court to date has answered that specific question. But we do not approach it on a clean
slate. We use ordinary principles of statutory interpretation to guide our resolution of
this important issue.
{¶17} According to those principles, the primary goal when courts interpret
statutes is to give effect to the intent of the General Assembly. Ayers v. City of
Cleveland, 160 Ohio St.3d 288, 2020-Ohio-1047, 156 N.E.3d 848, ¶ 17. To accomplish
this objective, courts look first to the plain meaning of terms in a statute, construing
words and phrases according to their common usage. See Hubbell v. Xenia, 115 Ohio
St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 11; Knollman-Wade Holdings, LLC v.
Platinum Ridge Properties, LLC, 10th Dist. Franklin No. 14AP-595, 2015-Ohio-1619,
¶ 14. In assessing the plain meaning of undefined terms in a statute, courts frequently
look to the dictionary and other sources of the ordinary understanding of language to
determine exactly what is meant by specific words and phrases. See, e.g., State v.
Bertram, Slip Opinion No. 2023-Ohio-1456, ¶ 13 (using the Merriam-Webster
Dictionary to define the term “stealth” in a criminal statute that did not otherwise
define its meaning).
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{¶18} Turning to R.C. 4165.03(B), the term “prevailing party” is not defined
by the statute. Thus, we seek guidance from common sources as to its ordinary
meaning and usage. The Merriam-Webster Dictionary defines the term “prevail” as
“to gain ascendancy through strength or superiority: triumph.” See Merriam-
Webster.com Dictionary, https://www.merriam-webster.com/dictionary/
prevail#:~:text=1,or%20become%20effective%20or%20effectual (last accessed Oct.
23, 2023). Similarly, Webster’s Dictionary defines “prevail” as “to overcome; to gain
the victory or superiority; to gain the advantage.” See Webster’s Dictionary 1828,
https://webstersdictionary1828.com/Dictionary/prevail (last accessed Oct. 23,
2023). These understandings of the term focus on the position of one side to the
other, with one being superior or in a winning posture and the other being inferior or
in a losing posture. They imply that the prevailing party is the one that has come out
on top.
{¶19} While these resources give us deeper insight on what it means for a party
to prevail, they fail to resolve the ambiguity that Goomai’s case presents. Is a jury
verdict in a party’s favor sufficiently prevailing to trigger the statue, or does the party
have to win something in order to have prevailed? There are degrees of winning a legal
dispute, and the dictionary definitions of “prevail” do not distinguish between them.
We therefore require additional inputs to ascertain the legislature’s intent in utilizing
the term “prevailing party” to define eligibility for attorney fees in R.C. 4165.03(B).
{¶20} Black’s Law Dictionary, another source of meaning for common legal
terms, helps us distinguish between types of “prevailing.” As the United Supreme
Court noted in Buckhannon Bd. & Care Home v. West Virginia Dept. of Health &
Human Serv., 532 U.S. 598, 603, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2002), citing Black’s
7 OHIO FIRST DISTRICT COURT OF APPEALS
Law Dictionary 1145 (7th Ed.1999),1 Black’s Law Dictionary defines “prevailing
party” as “[a] party in whose favor a judgment is rendered, regardless of the amount
of damages awarded.” Under this definition, the relief obtained is immaterial to a
party’s status; what matters is whether the party obtained judgment in its favor.
{¶21} Our review of R.C. 4165.03 supports this conclusion. In construing
statutory terms, courts read statutes as a whole and do not dissociate words and
phrases from their context. See Electronic Classroom of Tomorrow v. Ohio Dept. of
Edn., 154 Ohio St.3d 584, 2018-Ohio-3126, 118 N.E.3d 907, ¶ 11. Looking at the
language of R.C. 4165.03 as a whole, we are persuaded that “prevailing” in the context
of the DTPA means that the party obtained a judgment in its favor, regardless of
whether the party obtained a remedy in furtherance of that judgment. Several features
of the statute compel this result.
{¶22} For one, the DTPA permits recovery of attorney fees from a plaintiff who
knowingly pursues a groundless DTPA claim. In such circumstances, a prevailing
defendant would obtain no relief other than a judgment in its favor, but that defendant
would still be entitled to attorney fees from the plaintiff under R.C. 4165.03(B). If we
were to read the statute as requiring a party to obtain a remedy in order to prevail, we
would effectively eliminate the ability of prevailing defendants to obtain attorney fees
and undermine the intent of the legislature in the process. And courts do not read
language out of statutes. D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio
St.3d 250, 2002-Ohio-4172, 773 N.E.2d 536, ¶ 26.
{¶23} For another, R.C. 4165.03(B) allows the recovery of attorney fees in
DTPA suits for either monetary or injunctive relief. This underscores that a finding of
1 Black’s Law Dictionary has now released its 11th Edition. The definition of “prevailing party” remains unchanged.
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money damages is not a necessary prerequisite for the transfer of attorney fees to the
prevailing party. But there is an even broader point embodied in the statutory
language. Subsection (B), which provides for attorney fees, makes specific reference
to subsection (A), which outlines the types of suits that can be filed in the event of
alleged deceptive trade practices. It specifies that: “The court may award in
accordance with this division reasonable attorney’s fees to the prevailing party in
either type of civil action authorized by division (A) of this section.” (Emphasis
added.) R.C. 4165.03(B). This clear statutory language defines attorney fees eligibility
by the type of action, not by the type of remedy. If the legislature intended to make
prevailing party status dependent upon obtaining one of the remedies outlined in R.C.
4165.03(A), it could easily have said so. Its decision not to do so is indicative of its
intent to untangle attorney fees from any other type of remedy recovered in a DTPA
case.
{¶24} The plain meaning of the term “prevailing party” in R.C. 4165.03(B)
therefore supports the conclusion that obtaining a judgment, even one without an
award of damages, entitles a party to seek attorney fees.
{¶25} But, to the extent there is any confusion on the matter, our case law has
also interpreted the term “prevailing party” consistent with this meaning in other
contexts. See, e.g., Keal v. Day, 164 Ohio App.3d 21, 2005-Ohio-5551, 840 N.E.2d
1139, ¶ 8 (1st Dist.) (interpreting the phrase “prevailing party” in contract to mean the
party in whose favor the verdict is rendered). Divorced from its usage in the DTPA,
the phrase “prevailing party” has been commonly understood to mean obtaining a
favorable verdict, absent any focus on what in particular the party has won.
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{¶26} This reading of R.C. 4165.03(B) also squares with our understanding of
the DTPA’s history and purpose. The DTPA targets false advertising, unfair
competition, and other deceptive commercial practices that create an unbalanced
competitive commercial marketplace. See Dawson v. Blockbuster, Inc., 8th Dist.
Cuyahoga No. 86451, 2006-Ohio-1240, ¶ 23. Its purpose is exclusively to protect the
interests of a purely commercial class, rather than individual consumers, against
unscrupulous commercial conduct. Id. at ¶ 24. Permitting an award of attorney fees
upon a finding that the DTPA was knowingly violated furthers these purposes by
discouraging anticompetitive trade practices.
{¶27} Case law construing the DTPA solidifies this outcome even more.
Because the DTPA operates to protect a fair competitive marketplace, economic
damages for deceptive trade practices may be hard to quantify. See, e.g., Heartland
of Urbana OH, LLC v. McHugh Fuller Law Group, PLLC, 2d Dist. Champaign No.
2016-CA-3, 2016-Ohio-6959, ¶ 44. And requests for injunctive relief may become
moot when an offending party merely removes the allegedly deceptive advertising.
See, e.g., id. at ¶ 40. As a result, at least one Ohio court has held that a claim for
attorney fees under the DTPA survives even after a plaintiff’s DTPA lawsuit is mooted
by the cessation of the offending deceptive trade practice. See id. at ¶ 48-49 (holding
that a claim for attorney fees under R.C. 4165.03(B) based on previous willful violation
of the DTPA survived moot request for injunctive relief and that “it was not necessary
for [the plaintiff] to establish actual damages in order to recover attorney fees”).
Under this view of the statute, awarding attorney fees to the prevailing party becomes
the remedy for the action filed under R.C. 4165.03(A). Id. So long as an allegation
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persists that a defendant knowingly violated the DTPA, a claim for attorney fees under
R.C. 4165.03(B) survives.
{¶28} Heartland of Urbana is one of the few cases in Ohio to construe the
contours of the DTPA’s fee-shifting provision. Perhaps owing to this lack of judicial
opinions addressing the DTPA, both parties cite to the Ohio Consumer Sales Practices
Act (“CSPA”) and case law construing it to support their respective interpretations of
the statute at issue here. We initially note a difference in the class of persons who are
protected by each statute that precludes our reliance upon the CSPA as a point of
comparison for the DTPA. The CSPA protects individual consumers, whereas the
DTPA protects the commercial class. See R.C. 1345.01(A); Dawson, 8th Dist.
Cuyahoga No. 86451, 2006-Ohio-1240, at ¶ 23. This difference in purpose is enough
for us to question the usefulness of comparing the two statutes’ fee-shifting provisions.
But even if we found the CSPA analogy compelling, there is no authority that either
requires a remedy in CSPA cases for the prevailing party to collect attorney fees or
permits attorney fees in those cases based upon a mere judgment alone. And so the
CSPA simply does not answer the question posed in this case.
{¶29} For his part, Goomai argues that Einhorn v. Ford Motor Co., 48 Ohio
St.3d 27, 548 N.E.2d 943 (1990), requires us to interpret the DTPA to permit an award
of attorney fees based solely upon a favorable verdict. In Einhorn, the Ohio Supreme
Court resolved a dispute as to the level of knowledge required for an offending party
to be liable for attorney fees under the CSPA. Id. at 29. Under the CSPA, a prevailing
party may be awarded attorney fees when a supplier knowingly commits an act or
practice that violates the law. Id. at 29, fn.5. The Einhorn court determined that the
supplier must merely commit the act or practice knowingly, but need not have the
11 OHIO FIRST DISTRICT COURT OF APPEALS
additional knowledge that the act violated the CSPA at the time it was committed. Id.
at 30. This holding did not resolve the question of what level of prevailing is required
to trigger prevailing party status under the CSPA, much less the DTPA, which is an
entirely different statute. Thus, Einhorn is of little utility here, and we decline
Goomai’s invitation to rely on it in construing the meaning of the term “prevailing
party” in R.C. 4165.03(B).
{¶30} Also analogizing to the CSPA, H&E calls our attention to Parker v. I&F
Insulation Co., 89 Ohio St.3d 261, 730 N.E.2d 972 (2000), also a CSPA case,
claiming that it adopted a definition of “prevailing party” that requires either
rescission of the transaction or damages in order for a party to prevail for attorney fees
purposes. But Parker held no such thing. To be fair, Parker cites Brenner Marine v.
Goudreau, 6th Dist. Lucas No. L-93-077, 1995 Ohio App. LEXIS 62 (Jan. 13, 1995),
which held that a party is prevailing under the CSPA if it obtains either of the two
statutory remedies available in the statute and that monetary damages were not a
prerequisite to obtaining attorney fees. See Parker at 265. But Brenner did not
answer the question before us–whether a party prevails if it obtains only a judgment
and no remedy at all–and Parker did not adopt the holding set forth in Brenner,
expressly noting that Brenner focused on trial-level requests for attorney fees, not the
appeal-level request that was at issue in Parker. See id.; Brenner at 12-13. We
therefore read both Parker and Brenner as having little to do with the dispute before
us.
{¶31} As such, no authority–not Parker, not Brenner, not Einhorn–explicitly
compels the result H&E seeks that a party must obtain a remedy in order to seek
12 OHIO FIRST DISTRICT COURT OF APPEALS
attorney fees under the CSPA, much less the DTPA. And no authority prohibits the
conclusion we reach here.
{¶32} We accordingly base our decision solely on the plain meaning of the
term “prevailing party” as it is used in R.C. 4165.03(B). We are aided in understanding
that meaning by looking to commonly-used dictionaries and Black’s Law Dictionary
and by reading the statute in its full context. We consider the history, purpose, and
policy behind the DTPA only to the extent that doing so confirms our interpretation of
the statute and reveals no unanticipated ambiguity or confusion.
{¶33} The plain meaning of the term “prevailing party” in R.C. 4165.03(B) is
the party that obtains a judgment, verdict, or decision in its favor, without regard to
the existence or nature of any remedy awarded pursuant to the judgment, verdict, or
decision.
{¶34} Goomai’s assignment of error is accordingly sustained. This matter is
remanded to the trial court to consider the amount of attorney fees to which Goomai
is entitled under R.C. 4165.03(B).
Judgment reversed and cause remanded.
WINKLER, P.J., and BOCK, J., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.