Roesel v. DQ Dream Properties, L.L.C.

2026 Ohio 608

• Court: Ohio Court of Appeals
• Decided: February 23, 2026
• Docket: CA2024-10-121
• Status: Published

Opinion

[Cite as Roesel v. DQ Dream Properties, L.L.C., 2026-Ohio-608.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

KENNETH ROESEL, : CASE NO. CA2024-10-121 Appellant and Cross-Appellee, : OPINION AND vs. : JUDGMENT ENTRY 2/23/2025 DQ DREAM PROPERTIES, LLC, et al., :

Appellees and Cross-Appellants. :

:

CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV 2021 05 0614

Stephen C. Lane, for appellant and cross-appellee.

David B. Brewer and Fred Miller, for appellee and cross-appellant, DQ Dream Properties, LLC.

Nicholas J. Ziepfel, for appellee and cross-appellant, Lakota Tomahawks Youth Football Assoc., Inc.

Stephen S. Schmidt, for appellee, Tanya Roesel.

____________ OPINION

SIEBERT, J. Butler CA2024-10-121

{¶ 1} This case is a five-year epic involving a property sale, a lease breached as

a result of that property sale, and what turned out to be a $150,000 equipment shed. The

people and entities involved include Kenneth Roesel, Kenneth's ex-wife, Tanya Roesel,

their company Roesel Enterprises, DQ Dream Properties, LLC, DQ's co-owners—Qiao

"Winnie" and Derick Hunt, and the Lakota Tomahawks Youth Football Association, Inc.1

{¶ 2} Upon review of the parties' various assignments of error, we agree the

Tomahawks possessed a valid lease on the property DQ purchased from Roesel

Enterprises. However, we conclude that genuine material issues of fact precluded

summary judgment on DQ's fraud claims against Kenneth and in favor of Tanya. We find

no issue with the jury's valuation of the damages sustained by the Tomahawks arising

from the breach of its lease. Finally, we conclude the trial court abused its discretion by

summarily excluding all "block-billed" fees from the Tomahawks attorney fees award and

by reducing the fee award by a blanket percentage prior to summary judgment. Following

summary judgment, we conclude the Tomahawks are only entitled to the fees directly

related to the portion of the trial related to the jury's determination the Tomahawks should

be awarded attorney fees.

{¶ 3} We affirm the trial court in part, reverse the trial court in part, and remand

to the trial court for further proceedings consistent with this opinion.

What Happened—The Basics

{¶ 4} This action stems from the June 2020 sale of commercial real property in

Butler County (the "Property") from Roesel Enterprises, LLC to DQ. Kenneth and Tanya

were the two sole members of Roesel Enterprises.2 Approximately five years prior to the

1. Kenneth, DQ, and the Tomahawks all raise issues on appeal. Tanya raises no issues on appeal but is a cross-appellee to issues raised by DQ.

2. DQ never named Roesel Enterprises as a defendant in this action, choosing to pursue their claims against Kenneth and Tanya individually. -2- Butler CA2024-10-121

sale of the Property, Tanya, acting as manager for Roesel Enterprises, signed a lease

agreement with KER Entertainment Inc., a company owned by Kenneth (the "KER

Lease"). By its stated terms, the KER Lease expired on May 31, 2020, with three options

to renew for five years each. Neither Roesel Enterprises nor KER Entertainment renewed

the KER Lease before the initial term expired.

{¶ 5} On February 15, 2017, Roesel Enterprises executed a 20-year lease for a

portion of the Property with the Tomahawks for $250 per year (the "Tomahawks Lease").

Kenneth is a longtime supporter of the Tomahawks and signed this lease on behalf of

Roesel Enterprises. Consistent with the Tomahawks Lease, the Tomahawks then built a

960 square foot shed on their leased portion of the Property to store its football equipment.

The Tomahawks Lease stated it, "shall run with the land." Neither Roesel Enterprises nor

the Tomahawks recorded the Tomahawks Lease with the county recorder's office.

{¶ 6} Kenneth and Tanya later divorced, and they decided to sell the Property.

Roesel Enterprises listed the Property for sale late in 2019. DQ 3 made an offer to

purchase the Property on December 6, 2019 (the "2019 Offer"), which later fell through.

Winnie signed the 2019 Offer, which included the following language:

POSSESSION: Possession shall be given, subject to tenants' rights, upon Closing. Tenants' rights in the [Property] are: Upon acceptance of this contract current owner shall provide notice of lease termination to existing tenant and tenant shall vacate the premises within 60 days of closing unless otherwise agreed in writing by tenant and DQ . . . Buyer will be granted occupancy of vacant portion of building at closing. (Emphasis added.) The language italicized above was added to the 2019 Offer's

boilerplate language.

{¶ 7} Months later on April 23, 2020, DQ and Roesel Enterprises entered into a

3. DQ Dream Homes, LLC, a related company to DQ Dream Properties, LLC, made the offer. Winnie and Derick Hunt are principals of both companies, no party raised any distinction between them, and any distinction between the entities is irrelevant to our analysis. -3- Butler CA2024-10-121

"Purchase Agreement" for the purchase and sale of the Property which read, in relevant

part, "[p]ossession shall be given, subject to tenants' rights, upon Closing. Tenants' rights

in the Real Estate are: No tenant rights apply. Property to be vacant and empty at closing.

Buyer to take occupancy immediately following closing."4 (Emphasis added.) Winnie and

Kenneth signed the Purchase Agreement.

{¶ 8} DQ conducted an inspection of the Property before closing which identified

the Tomahawks' use of the shed. Derick testified via deposition that DQ's "response to

that" information was to have an addendum written which stated, "that when [DQ] take[s]

possession, everybody is to be out." Indeed, DQ prepared an "Addendum" to the

Purchase Agreement, which stated, "[the Tomahawks], who [are] currently utilizing a

detached garage in the rear of the Property, will be vacated after closing at Buyer's

discretion." Only Tanya signed the Addendum on May 30, 2020, and Kenneth claimed he

was unaware of it. Various other discussions purportedly occurred between DQ, the

Roesels, and the Tomahawks regarding use of the shed. Those will be discussed in

further detail later in this opinion.

{¶ 9} DQ and Roesel Enterprises closed on the Property's sale on June 5, 2020.

After closing, the Tomahawks did not vacate the Property, and DQ took no immediate

steps to evict them. Derick stated in his deposition that at closing, DQ was "still making a

decision [of whether] to let [the Tomahawks] stay for the season" because DQ had not

moved into the building, "and [the Tomahawks] weren't hurting anything at that moment."

However, when the Tomahawks sent a check to DQ in April of 2021 for that year's rent—

almost one year after the sale of the Property—DQ rejected the payment, built a locked

fence around the shed, prevented the Tomahawks from entering the Property, and filed

4. This language was also added to the Purchase Agreement's boilerplate language. -4- Butler CA2024-10-121

the instant lawsuit.

{¶ 10} DQ's amended complaint stated claims for declaratory judgment, quiet title,

and slander of title against the Tomahawks, asserting the Tomahawks Lease was "null

and void" and otherwise unenforceable. DQ also asserted an unjust enrichment claim

against the Tomahawks, claiming that if valid, the Tomahawks Lease's below market rent

resulted in a massive windfall for the Tomahawks. Finally, DQ alleged Kenneth and Tanya

individually committed fraud for their purportedly false representations in the Purchase

Agreement and the Addendum. The Tomahawks filed counterclaims against DQ for

breach of contract, breach of covenant of quiet enjoyment, and promissory estoppel as

an alternative claim to breach of contract.

{¶ 11} After the parties filed various motions for summary judgment, the trial court

made several rulings relevant to this appeal: (1) the Tomahawks Lease was valid, and

DQ was liable for breaching it;5 (2) Kenneth committed fraud against DQ by not disclosing

the existence of the Tomahawks Lease; and (3) Tanya did not commit fraud against DQ.

As a result of these rulings, the trial court dismissed all of DQ's claims against the

Tomahawks except its unjust enrichment claim. The trial court reserved the issue of the

parties' damages for trial, and a jury awarded the Tomahawks $150,000 against DQ for

its breach of the Tomahawks Lease. The jury also awarded the Tomahawks attorney fees

against DQ, which the trial court later determined totaled $7,901.50. The jury awarded

DQ $0 for its unjust enrichment against the Tomahawks but awarded DQ $150,000 in

damages against Kenneth for fraud.

{¶ 12} We will discuss trial court rulings and other relevant matters within the

parties' assignments of error in more detail below. We will also address the parties'

5. We note that DQ did not appeal the conclusion it would be liable to the Tomahawks for its breach if we affirmed the validity of the Tomahawks Lease. -5- Butler CA2024-10-121

assignments of error out of order and group them together where necessary to streamline

the legal issues presented on appeal.

Legal Issue #1 – Validity of the Tomahawks Lease

DQ's First Assignment of Error – The Trial Court Erred in Finding the Lease Valid

Relevant Facts and Ruling by the Trial Court

{¶ 13} The Tomahawks moved for summary judgment on DQ's claims challenging

the validity of the Tomahawks Lease. Among other arguments, DQ asserted the

Tomahawks Lease was invalid and unenforceable because Roesel Enterprises could not

lease the same property to the Tomahawks after previously leasing it to KER

Entertainment. But the trial court granted the Tomahawks' motion for summary judgment

and found the Tomahawks Lease valid because Kenneth "was a principal" for and

controlled both Roesel Enterprises and KER Entertainment. Moreover, the trial court

concluded the Tomahawks "believed it was contracting the holder of title" for the Property

and therefore "could rightly presume the contract valid."

Trial and Appellate Summary Judgment Standards

{¶ 14} "An appellate court reviews a trial court's decision on a motion for summary

judgment de novo, independently and without deference to the decision of the trial court."

Total Quality Logistics, L.L.C. v. JK & R Express, L.L.C., 2022-Ohio-3969, ¶ 17 (12th

Dist.).

{¶ 15} A trial court may grant summary judgment when, "there is no genuine issue

of material fact remaining for trial, the moving party is entitled to judgment as a matter of

law, and reasonable minds can only come to a conclusion adverse to the nonmoving

party, construing the evidence most strongly in that party's favor." Id. See also Civ.R. 56.

Trial courts should "award summary judgment with caution," by resolving doubts and

construing evidence in favor of the nonmoving party. Welco Indus., Inc. v. Applied Cos.,

-6- Butler CA2024-10-121

67 Ohio St.3d 344, 346 (1993), citing Murphy v. Reynoldsburg, 65 Ohio St.3d 356 (1992).

{¶ 16} The unsupported assertion by the moving party that the nonmoving party

has no evidence to prove its case is not sufficient ground for the trial court to grant

summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107 (1996).

However, if the moving party fulfills its burden and the nonmoving party presents no

evidence to support the merits of their case, summary judgment is proper. Welco Indus.

at 346, citing Wing v. Anchor Media, Ltd. of Texas, 59 Ohio St.3d. 108, paragraph three

of the syllabus (1991). "Mere speculation is insufficient to create a genuine issue of

material fact to avoid summary judgment." Fontain v. H&R Cincy Properties, LLC, 2022-

Ohio-1000, ¶ 67 (12th Dist.).

{¶ 17} "But determining whether issues of disputed fact exist is different from

making findings of facts. " Smathers v. Glass, 2022-Ohio-4595, ¶ 32. Generally, the trial

court is in the "best position to determine the weight of the evidence and the credibility of

witnesses when acting as a trier of fact." But at summary judgment, the trial court should

just review the evidence, not weigh it. Id. And, again, any inferences drawn from the

underlying facts must be viewed in the light most favorable to the nonmoving party.

Analysis

{¶ 18} DQ argues the trial court erred in finding the Tomahawks Lease valid

because Roesel Enterprises had no legal authority to enter into the Tomahawks Lease

after entering into the KER Lease. DQ characterizes these leases as being "contradictory"

and contends they "hopelessly muddled the legal status" of the Property. DQ further

insists that because of this, questions remained regarding "what [the Tomahawks] knew

and what they should have done" before entering into its own lease on the Property.

Ultimately, DQ argues the Tomahawks Lease should be deemed void and unenforceable

-7- Butler CA2024-10-121

from the beginning.6

{¶ 19} We find DQ's arguments unconvincing for two reasons. The first is that no

conflict ever arose between these two purportedly contradictory leases by the time DQ

purchased the Property. It is undisputed that Roesel Enterprises held the legal title to the

Property when leasing parts of it to KER Entertainment and the Tomahawks. It is also

undisputed that the KER Lease ended four days before DQ closed on the Property. During

the time both leases existed, no legal conflict between Roesel Enterprises, KER

Entertainment, and the Tomahawks ever arose. The harmonious sharing of the leased

property essentially validated the lease. See generally Alford v. Arbors at Gallipolis, 2018-

Ohio-4653, (4th Dist.) (finding ratification of contract may occur when "the person

performing the act, even though not an agent, must at that time purported to have acted

as an agent for the party subsequently adopting the act as its own.").

{¶ 20} DQ asserts that "[i]t was not until the Roesels sold the property and

misrepresented the lack of a lease that the 'harmonious sharing' [between KER

Entertainment and the Tomahawks] was disrupted." But the KER Lease, by its own terms,

lapsed before the sale of the Property to DQ and eliminated any alleged need for KER

Entertainment to continue to harmoniously share the Property with the Tomahawks. On

the date DQ closed on the Property, the only lease that existed was the Tomahawks

Lease, and Roesel Enterprises was unquestionably the rightful, original lessor. Ultimately,

the only conflict that the Roesels' purported misrepresentations created in this case was

not between two leaseholders (KER Entertainment and the Tomahawks), but between

DQ (the new lessor by virtue of its purchase of the Property) and the Tomahawks (the

6. The parties and other courts sometimes use the legal term of art "void ab initio," which is a Latin phrase that literally means "void from the beginning." This court finds it important that everyone reading its opinions can understand them, so it generally avoids the use of Latin phrases, especially when they impact a substantive or critical question before the court. -8- Butler CA2024-10-121

only lessee remaining on the Property). This conflict did not manifest itself until the

Tomahawks sought to pay their rent nearly a year after closing.

{¶ 21} The second reason we conclude the Tomahawks Lease is valid is that DQ

offers no authority demonstrating the Tomahawks Lease should be deemed void from the

beginning as opposed to merely voidable (or even reformable). See generally Haven

House Manor, Ltd. v. Gabel, 2002-Ohio-6750, ¶ 15 (6th Dist.) (finding "the mere fact that

a mistake was made in an instrument does not bar the right of reformation of a contract");

Crout v. D.E.R. Bldg. Co., 2001 WL 1402734, *4 (12th Dist. Nov. 13, 2001) (holding "[a]

trial court may reform a contract where there is proof that the parties made a mutual

mistake of fact and both parties understood the contract as the complaint alleges it ought

to have been"). In law, the distinction between void and voidable is often dispositive

because if a court deems a contract or agreement void, it "is of no legal effect, so that

there is really no contract in existence at all." CONTRACT, Black's Law Dictionary (12th

ed. 2024). But if a contract is merely "voidable," it still has legal effect and can be

enforceable, depending on other factors and findings relevant to the circumstances. See

id.

{¶ 22} Therefore, even if Roesel Enterprises did not have the legal authority to

enter into the Tomahawks Lease because of the KER Lease (and the KER Lease still

existed when DQ took ownership of the Property), the legal remedy would not be to deem

the Tomahawks Lease void or nonexistent—it would be to reform the Tomahawks Lease

to be consistent with the KER Lease (assuming a conflict actually developed). See Crout,

at * 4. Alternatively, the Tomahawks could have pursued an action for breach of quiet

enjoyment against Roesel Enterprises, since it allegedly leased a portion of the Property

to two different lessees (KER Entertainment and the Tomahawks). See Ott v. Marion

Plaza, Inc., 1987 WL 16265, *8 (3rd Dist. Aug. 31, 1987).

-9- Butler CA2024-10-121

{¶ 23} Ultimately, we conclude DQ presents no valid legal grounds to deem the

Tomahawks Lease void from the beginning, regardless of whether, as the trial court

determined, the Tomahawks "believed [it] was contracting [with] the holder of title" for the

Property or "could rightly presume the contract valid." At the time DQ purchased the

Property, the Tomahawks Lease was valid as a matter of law. DQ presented no genuine

issue of material fact to show Roesel Enterprises was not the valid lessor on the date DQ

purchased the Property, or that the Tomahawks Lease should have been deemed void

prior to that date. The trial court did not err when it granted the Tomahawks motion for

summary judgment on DQ's declaratory judgment claim.7

{¶ 24} DQ's first assignment of error is overruled.

Legal Issue # 2 – DQ's Fraud Claims

Kenneth's First Assignment of Error and DQ's Third Assignment of Error – Propriety of Summary Judgment Against Kenneth but not Tanya

{¶ 25} Kenneth argues the trial court erred when it granted DQ's motion for

summary judgment and found Kenneth made a fraudulent misrepresentation to DQ when

he stated in the Purchase Agreement that no tenants had rights in the Property. Kenneth

asserts that there are genuine issues of material fact in dispute regarding whether DQ

justifiably relied on that representation. We agree.

{¶ 26} Similarly, DQ argues the trial court erred when it granted summary judgment

in favor of Tanya as to DQ's fraud claim against her because there is a genuine issue of

material fact regarding whether Tanya signed the Addendum with knowledge of its falsity

(or utter disregard for its truth or falsity) and whether she intended to mislead DQ with the

Addendum. We agree.

7. As a result of the foregoing, we need not address DQ's procedural challenge to the trial court's finding that DQ did not provide the entire KER Lease for review. Further, DQ's asserted errors regarding party presentment have no merit because the Tomahawks previously raised legal defenses similar to this court's reasoning here. - 10 - Butler CA2024-10-121

Relevant Facts

{¶ 27} In December of 2019, DQ made an offer on the Property. Derick and Aaron

Fry, the general manager of DQ, subsequently conducted several walk throughs of the

Property and observed the Tomahawks' shed. DQ's 2019 Offer included a clause

requiring Roesel Enterprises to "provide lease termination to existing tenant" and that the

tenant would vacate within 60 days of closing. The 2019 Offer was never fully executed,

but Winnie signed it. However, the Purchase Agreement executed months later by Winnie

and Kenneth stated "No Tenant rights apply" to the Property and that it would be vacant

before closing. Yet the "Inspection Report" DQ received before closing noted that the

Property included "a free standing metal pole barn structure to the rear of the main

building" that was "a storage facility for [the Tomahawks]" who had "current occupancy."

{¶ 28} Despite these documented references to a tenant on the property, Derick

maintained that no one at DQ saw or knew about the Tomahawks Lease until litigation

began. Kenneth disputed this, stating that he (1) provided DQ with a "box" of documents

relating to the Property which purportedly included a copy of the Tomahawks Lease; (2)

had spoken with DQ and its representatives about the Tomahawks presence on the

Property and they "were willing to let [the Tomahawks] stay"; and (3) believed the

representation that "No Tenant rights apply" in the Purchase Agreement concerned only

the main commercial building on the Property and not the shed utilized by the

Tomahawks.

{¶ 29} Tanya stated via deposition that Derick and Kenneth told her that DQ and

the Tomahawks "were in communication working on an agreement" to let the Tomahawks

stay at the Property. She claimed she did not know about the Tomahawks Lease because

Kenneth handled their businesses' operations.

{¶ 30} Jeff Sprague, the former Treasurer of the Tomahawks, testified via

- 11 - Butler CA2024-10-121

deposition that during a conversation with Derick following DQ's closing on the property,

"[Derick] seemed to be well aware, based on the nature of the conversation, of the

existence of the [Tomahawks] lease" and the rental payment of $250 a year. According

to Sprague, Derick was not worried about collecting the miniscule rent money. Instead,

they discussed how the Tomahawks' continued presence on the Property could benefit

both parties—with the Tomahawks having a place to store their equipment and with DQ

receiving advertising and recognition for supporting a well-known local organization.8

Sprague also asserted that he spoke with Aaron multiple times prior to closing about the

Tomahawks' continued use of the shed. Finally, Sprague testified that on or before the

day of closing, Tanya asked him if the Tomahawks had a lease, and when he affirmed to

her they did, she asked him to provide a copy of it to her.

Ruling by the Trial Court

{¶ 31} DQ moved for summary judgment against Kenneth for fraud, and Tanya

moved for summary judgment as to DQ's fraud claim against her. DQ argued that it relied

on Kenneth and Tanya's representation in the Purchase Agreement and Addendum that

no tenant rights existed on the Property and that DQ was never provided with a copy of

the Tomahawks Lease or notified of its existence.

{¶ 32} The trial court granted DQ's motion for summary judgment against Kenneth,

noting that "had [DQ] conducted due diligence, it could have easily discovered the

encumbrance of the Tomahawks rental agreement." Nonetheless, the trial court found

Kenneth committed fraud because Kenneth's "self-serving deposition testimony" about

"delivering 'boxes' of documents and diaphanous oral agreements[ ] does not create

8. Sprague further stated that Derick told him Winnie was struggling to understand the benefits of supporting a community organization with this type of deal, but that the Roesels explained that the Tomahawks were a large organization in the local community and that DQ would benefit from supporting it. - 12 - Butler CA2024-10-121

material issues of fact for a jury, particularly in light of his longtime support for, and

participation in, the Lakota organization." The trial court concluded, without further

analysis, that DQ justifiably relied on the statements made in the Purchase Agreement.

{¶ 33} While the trial court found Kenneth liable for fraud, the trial court granted

Tanya summary judgment as to DQ's fraud claim against her. The trial court's order stated

in relevant part that "Tanya's testimony indicates she left business operations to Kenneth.

Additionally, the proffered affidavits of her former attorney and real estate agent as

proffered by [DQ], do nothing to rebut her lack of knowledge as to the rental agreement."

As a result, the trial court concluded Tanya could not be found to have made a false

statement with the intent of misleading DQ when she signed the Addendum.

Fraud

{¶ 34} As a reminder, this court reviews the trial court's decision on summary

judgment de novo, giving no deference to its decision. Total Quality Logistics, L.L.C.,

2022-Ohio-3969, at ¶ 17. To successfully prove fraud, a plaintiff must demonstrate the

existence of:

a representation or, where there is a duty to disclose, concealment of a fact, (2) which is material to the transaction, (3) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to its truth or falsity that knowledge may be inferred, (4) with the intent of misleading another to rely on it, (5) justifiable reliance upon the representation or concealment, and (6) a resulting injury proximately caused by the reliance.

Shannon v. Fischer, 2020-Ohio-5567, ¶ 15 (12th Dist.). "All of these elements must be

present if actionable fraud is to be found. The absence of one element is fatal to recovery."

(Cleaned up.) Westfield Ins. Co. v. HULS Am., Inc., 128 Ohio App.3d 270, 296 (10th Dist.

1998).

{¶ 35} "Generally, in arm's-length business transactions, each party is presumed

- 13 - Butler CA2024-10-121

to have the opportunity to ascertain relevant facts, and therefore, neither party has a duty

to disclose material information to the other." Levy v. Seiber, 2016-Ohio-68, ¶ 31 (12th

Dist.). However, a duty to disclose in business dealings arises when full disclosure is

necessary to "dispel misleading impressions that are or might have been created by

partial revelation of the facts." (Emphasis in original.) Id. "'A fact is material if it is likely,

under the circumstances, to affect the conduct of a reasonable person with reference to

the transaction.'" Aztec Internatl. Foods, Inc. v. Duenas, 2013-Ohio-450, ¶ 36 (12th Dist.),

quoting Leal v. Holtyogt, 123 Ohio App.3d 51, 76 (2d Dist. 1998). The intent to mislead

another into relying on a misrepresentation generally must be inferred from a totality of

the circumstances. Id. at ¶ 42.

{¶ 36} Within the context of fraud, the limits of the buyer's responsibility to discover

problems are found in the "justifiable reliance" prong. Id. at ¶ 47. "Reliance is justified if

the representation does not appear unreasonable on its face and if, under the

circumstances, there is no apparent reason to doubt the veracity of the representation."

Id., quoting Crown Property Dev., Inc. v. Omega Oil Co., 113 Ohio App.3d 647, 657 (12th

Dist. 1996). Thus, justifiable reliance is a fact specific inquiry where the factors the court

"should consider include the nature of the transaction, the materiality of the representation

or fact concealed, the parties' relationship, and their respective intelligence, experience,

age, mental and physical condition, knowledge, and means of knowledge" Id., quoting

Fairbanks Mobile Wash, Inc. v. Hubbell, 2009-Ohio-558, ¶ 26 (12th Dist.).

Summary Judgment Against Kenneth

{¶ 37} We take no issue with the trial court's conclusion that (1) Kenneth had a

duty to disclose the Tomahawks Lease, (2) the existence of the Tomahawks Lease was

material to Roesel Enterprises and DQ's transaction, (3) Kenneth knew his representation

- 14 - Butler CA2024-10-121

in the Purchase Agreement that no tenants' rights applied to the Property was false, (4)

Kenneth intended for DQ to rely on this false representation, and (5) DQ was injured by

its reliance.9 However, upon our de novo review of the facts and circumstances of this

case, we cannot say whether or not DQ justifiably relied on Kenneth's statement in the

Purchase Agreement. Stated differently, we conclude a genuine issue of material fact

exists as to whether DQ had reason to doubt Kenneth's representation.

{¶ 38} The trial court's finding of fraud essentially rested on its conclusion that

Kenneth, by virtue of his longstanding relationship with the Tomahawks, was in the best

position to make the Tomahawks Lease expressly known to DQ. While perhaps true, the

trial court gave very little, if any, consideration of the other factors relevant to the

"justifiable reliance" prong of fraud (i.e. the nature of the transaction, the form and

materiality of the representation, the relationship of the parties, their respective means

and knowledge, as well as other circumstances applicable here). The relationship

between DQ and Roesel Enterprises is the relevant relationship to analyze, not the

relationship between Kenneth and the Tomahawks. Regardless of Kenneth's relationship

with the Tomahawks, both DQ and Roesel Enterprises were sophisticated actors

conducting an arms-length business transaction with the assistance of real estate and

legal professionals. As the trial court acknowledged before placing ultimate blame on

Kenneth, DQ "could have easily discovered the encumbrance of the Tomahawks rental

agreement" if it conducted its own due diligence.

9. Kenneth argues that the trial court erred when it found he made a false representation with the intent to mislead DQ. However, in construing the evidence in a light most favorable to Kenneth (the nonmoving party), we hold the trial court did not err in these findings. Kenneth provided no evidence other than his self- serving testimony to support his arguments, which is insufficient for this court to find genuine issues of material fact remain in dispute regarding these elements of fraud. Camara v. Gill Dairy, LLC, 2023-Ohio- 2339, ¶ 34 (12th Dist.); Barich v. Scheidler Med. Group, L.L.C., 2015-Ohio-4446, ¶ 13 (12th Dist.) (holding “a non-movant's own self-serving assertions, whether made in an affidavit, deposition or interrogatory responses, cannot defeat a well-supported summary judgment when not corroborated by any outside evidence.”).

- 15 - Butler CA2024-10-121

{¶ 39} In addition, the court determined there was no evidence that DQ knew of

the Tomahawks Lease outside of Kenneth's self-serving testimony that he spoke with DQ

about the Tomahawks Lease and provided a "box of documents" which included the

lease. Not so. For example, the 2019 Offer, signed by Winnie, acknowledged the Property

had "an existing tenant" that would vacate the Property within 60 days of closing. Though

DQ and Roesel Enterprises did not fully execute the 2019 Offer, DQ cannot disclaim

knowledge of this provision.10 Moreover, the Inspection Report DQ received prior to

closing specifically noted the Tomahawks' occupancy and the shed. Derick and Aaron

also personally observed the shed during walk throughs of the Property.

{¶ 40} The deposition testimony of Kenneth, Tanya, and Sprague also call DQ's

justifiable reliance into question. As discussed above, both Kenneth and Tanya testified

that they were told by DQ that DQ was in discussions with the Tomahawks regarding their

continued use of the Property after closing. In addition to their (self-serving) testimony,

Sprague testified that he had phone conversations with Aaron in the month before DQ

closed on the Property in which Aaron assured Sprague the Tomahawks would be able

to continue using the shed and that DQ and the Tomahawks needed to meet to discuss

this use. Sprague also testified he attended a meeting with Derick and others from the

Tomahawks just a couple of months after closing where Derick acknowledged the

Tomahawks' yearly rent and sought to better understand how allowing the Tomahawks—

a large organization in the community—to stay on the Property could mutually benefit

both parties. Sprague's testimony that Derick expressed no surprise regarding—and in

10. The Purchase Agreement contained a merger clause, making it the sole contract between the parties, so none of the terms contained in the 2019 Offer would control as a matter of contract interpretation. But the terms of the Purchase Agreement are not in dispute, and DQ's prior knowledge regarding a tenant is not a contract term. Therefore, the merger clause in the Purchase Agreement does not negate the possibility DQ knew of a tenant by virtue of the 2019 Offer.

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fact acknowledged—the rent shortly after closing, provides substantiating evidence that

it was, at the very least, disputed as to whether DQ knew about the Tomahawks Lease

prior to purchasing the Property.

{¶ 41} DQ argues that while it knew of the Tomahawks' "presence in the shed," it

"had no reason to believe" that the Tomahawks Lease allowed them to remain on the

Property.11 On the record, this court finds it difficult to reconcile DQ's assertion that it knew

only of the Tomahawks' presence but not their tenancy. We conclude that the trial court

erred in finding that no material facts called into question whether DQ justifiably relied

upon Kenneth's representation. In other words, we find the trial court erred in definitively

finding on a motion for summary judgment that DQ had no reason to doubt Kenneth's

representation. The record shows a genuine dispute about whether DQ did not just have

a "reason to doubt" Kenneth's representation in the Purchase Agreement, but whether

they actually expressed such doubt when DQ requested the Addendum prior to closing.

{¶ 42} Given the evidence of (1) DQ's prior explicit knowledge of an "existing

tenant"; (2) DQ's undisputed knowledge of the Tomahawks continued occupancy prior to

closing; (3) DQ's request for the Addendum; and (4) other communications DQ's

representative purportedly had with Kenneth, Tanya, and the Tomahawks prior to and

soon after closing, we conclude genuine issue of material fact exist regarding whether

DQ justifiably relied upon Kenneth's representation. On remand, DQ must resolve, before

a trier of fact, such facts in its favor to justify its reliance on Kenneth's Purchase

Agreement representation. Otherwise, DQ's fraud claim against Kenneth must fail.

Summary Judgment Favoring Tanya

{¶ 43} For many of the same reasons, summary judgment favoring Tanya was

11. While DQ raises this argument in its challenge to the trial court's grant of summary judgment in favor of Tanya, the argument is relevant to DQ's claim against Kenneth. - 17 - Butler CA2024-10-121

improper. The trial court's decision relied upon the conclusion that Kenneth handled all

the business decisions for both Roesel Enterprises and KER Entertainment. Kenneth also

attested that Tanya had no knowledge of, and had not seen, the Tomahawks Lease.

Nonetheless, Tanya signed the Addendum before closing, and this Addendum

affirmatively stated the Tomahawks would leave the Property upon DQ's demand. In

addition, Sprague testified that on or prior to the day of closing, Tanya asked him for a

copy of the Tomahawks Lease.12 This court finds it difficult to see how Tanya can have

her cake and eat it too. If Tanya knew nothing about her and Kenneth's businesses or the

Tomahawks Lease, we find her affirmative statement in the Addendum and her purported

request to Sprague to see the Tomahawks Lease close to the day of closing to be in direct

contrast with her alleged lack of knowledge.

{¶ 44} A "positive assertion" of a fact is, by plain implication, an assertion of

knowledge concerning the fact." (Cleaned up.) Curran v. Vincent, 2007-Ohio-3680, ¶ 22

(1st Dist.). After all, DQ asserts it required this Addendum to go through with the closing.

At the very least, DQ's request for the Addendum, combined with Tanya's professed

ignorance regarding the business, raises a legitimate question as to whether Tanya acted

recklessly by signing the Addendum without first confirming with Kenneth if the

Tomahawks had a lease. If a person makes an untrue statement recklessly (i.e., without

knowledge or information on the subject) and that statement is found to be calculated to

induce reliance, that person can be found liable for fraud. Id. Such considerations inform

whether Tanya made a false statement, with knowledge of its falsity or with such utter

disregard and recklessness as to its truth or falsity that knowledge may be inferred (the

12. Moreover, while Kenneth testified Tanya had not previously seen the Tomahawks Lease, he also testified he was not at closing. He would not have first-hand knowledge of the alleged conversation between Sprague and Tanya, and Kenneth could not provide direct evidence regarding whether Tanya acquired knowledge of the Tomahawks Lease from Sprague.

- 18 - Butler CA2024-10-121

third element of fraud). Shannon v. Fischer, 2020-Ohio-5567 at ¶ 15. Of course, DQ still

has to prove all the required elements of fraud for its claims against Tanya—including

whether it justifiably relied upon the Addendum for "additional assurance" given the

disputed facts analyzed in Kenneth's first assignment of error.13

{¶ 45} But ultimately, the trial court erred in ruling in Tanya's favor on DQ's fraud

claim by relying on Tanya's testimony while disregarding contradicting evidence. This

amounts to an improper weighing of evidence at summary judgment, rather than just a

review of the evidence to determine if a genuine issue of material fact exists. Smathers,

2022-Ohio-4595, at ¶ 32.

{¶ 46} We sustain Kenneth's first assignment of error and DQ's third assignment

of error.

Kenneth's Third Assignment of Error – Relevancy of the Addendum

{¶ 47} Kenneth asserts the trial court erred in permitting the Addendum to be

admitted as an exhibit at trial because it was signed only by Tanya and therefore could

not be relevant to DQ's fraud claim against him. Because we found summary judgment

against Kenneth for fraud to be improper, we find this assignment of error moot.

Kenneth's Second and Fourth Assignment of Error – Denial of Directed Verdict and Judgment Notwithstanding the Verdict as to DQ's Fraud Claim

{¶ 48} In his last two assignments of error, Kenneth argues DQ failed to

13. DQ argues on appeal that the Addendum "provided DQ additional reassurance that [the Tomahawks] did not have a lease and that [they] could be removed . . . at DQ's discretion." (Emphasis added.) DQ further asserts the Addendum "counter[s] any argument that DQ was at fault in not pursuing [the] issue of whether the Property was burdened by a lease." We note that on remand, such arguments could raise multiple questions, including but not limited to (1) why did DQ feel it was necessary to have additional assurances that a lease did not exist given the language of the Purchase Agreement, (2) did DQ believe at any time prior to closing—as a result of the 2019 Offer, the Inspection Report, conversations with Kenneth, Tanya, and Sprague, or any other factors—that the Tomahawks had a legal interest in the Property that potentially conflicted with DQ's purchase of the Property, and (3) if DQ did believe the Tomahawks potentially had a conflicting interest in the Property, could DQ justifiably rely on mere execution of the Addendum—signed only by Tanya who purportedly had no knowledge of her and Kenneth's business operations—to assess the Tomahawks' legal interest the Property? Such considerations again demonstrate the existence of genuine issues of material fact regarding DQ's justifiable reliance that should have been resolved by a jury. - 19 - Butler CA2024-10-121

demonstrate at trial that it was proximately or directly damaged by his representations in

the Purchase Agreement. As a result, he asserts the trial court should have granted him

a directed verdict or a judgment notwithstanding the jury's verdict. Ohio law permits the

trial court to "enter a directed verdict in favor of a party or a judgment notwithstanding the

verdict if 'reasonable minds' can only come to one conclusion after considering the

evidence of the case and the elements of a party's claims." Batsche v. Batsche, 2024-

Ohio-1234, ¶ 27 (12th Dist.), quoting Civ. R. 50. Because we found summary judgment

against Kenneth for fraud to be improper, we find both of these assignments of error moot.

Legal Issue # 3 – Liability for Damages

DQ's Second Assignment of Error – Lakota's Damages Award of $150,000 Against DQ

{¶ 49} At trial, the Tomahawks' current treasurer testified that the organization

experienced approximately $50,000 in damages related to the relocation of its equipment

from the shed on the Property. In addition, the Tomahawks rented space for $1,750 per

month and later $3,000 per month, versus the $250 per year under the Tomahawks

Lease. The Tomahawks also retained a realtor as an expert witness who testified at trial

that the Tomahawks would experience $570,000 in additional expenses over the course

of the remaining term of the Tomahawks Lease. However, the jury only awarded Lakota

$150,000.

Applicable Law

{¶ 50} Ohio courts have long acknowledged that in lease disputes, damages are

"the difference between the fair market rental of the property proposed to be leased and

the agreed rental to be paid in the proposed lease, such sum discounted to present value,

together with any special damages arising from the breach." F. Enterprises, Inc. v.

Kentucky Fried Chicken Corp., 47 Ohio St.2d 154, 158 (1976); see also Neyer Holding II,

- 20 - Butler CA2024-10-121

Inc. v. Huang, 2025-Ohio-1776, ¶ 62 (12th Dist.).

{¶ 51} Generally, contractual damages must be proven with "'reasonable

certainty.'" Woehler v. Brandenburg, 2012-Ohio-5355, ¶ 35 (12th Dist.), quoting Textron

Fin. Corp. v. Nationwide Mut. Ins. Co., 115 Ohio App.3d 137, 144 (9th Dist. 1996).

"[D]amages are not uncertain merely because they cannot be calculated with absolute

exactness; it is sufficient if the evidence affords a reasonable basis for computing

damages, even if the result is only an approximation." Id. In addition to being reasonable,

damages must be "'foreseeable as a probable, as distinguished from a necessary, result

of [the breaching party's] breach.'" Neyer at ¶ 78 (12th Dist.), quoting 1 Restatement of

the Law 2d, Contracts, § 351 (1981), Comment a.

Standard of Review

{¶ 52} On appeal, we review an award of damages under a manifest weight of the

evidence standard. Henry v. Richardson, 2011-Ohio-2098, ¶ 11 (12th Dist.). Under this

standard, "a reviewing court weighs the evidence and all reasonable inferences,

considers the credibility of witnesses and determines whether in resolving conflicts in the

evidence, the finder of fact clearly lost its way and created a manifest miscarriage of

justice warranting reversal." Chasteen v. Dix Rd. Property Mgt. LLC, 2021-Ohio-463, ¶

43 (12th Dist.). While still independently reviewing the evidence before the trial court, this

court affords deference to the trier of fact's judgment, particularly on closely contested

issues of fact. See Eastley v. Volkman, 2012-Ohio-2179, ¶ 21. That is, if the evidence

presented to the trial court is "'susceptible of more than one construction,'" this court must

make a "'reasonable presumption'" in favor of the judgment below. Id. at ¶ 21, quoting

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984), fn. 3.

{¶ 53} The Tomahawks do not raise any issues on appeal regarding the damages

- 21 - Butler CA2024-10-121

award. However, DQ argues the jury's award of $150,000 was against the manifest weight

of the evidence. First, DQ argues the damages were not foreseeable because rent for

$250 per year was far below market value and totaled just $5,000 over the course of the

20-year lease. DQ further asserts "there was no evidence . . . [as to] what [Kenneth and

the Tomahawks] felt the damages would be in the event of breach" meaning the

Tomahawks could not demonstrate any foreseeability as to its damages. Finally, DQ

argues the Tomahawks' evidence of damages, "even though not completely accepted by

the jury, was well beyond reason . . ." because the "shed was bare-bones, with little in the

way of amenities" and Lakota's expert did not use appropriate comparable properties

when calculating damages.

{¶ 54} DQ's emphasis on what value the contracting parties believed the

Tomahawks Lease had or what they "felt" damages would be in the event of a breach are

simply not relevant because—as DQ recognizes—the goal of contract damages is to put

the parties in the place they would have been if there had been no breach. Through the

testimony of the Tomahawks' treasurer and expert witness (as well as associated

exhibits), the Tomahawks presented various data points for the jury to consider when

evaluating the Tomahawks' damages. While the jury did not provide reasoning on how it

arrived at its determination of damages, it is reasonable based upon the record to

conclude that the jury agreed with DQ that the Tomahawks' purported damages of

$570,000 was far too much to award under these circumstances. But it is also reasonable

to conclude the jury picked a significantly lower number to try to at least make the

Tomahawks reasonably whole, given DQ's breach and the Tomahawks' subsequent need

to secure much more expensive facilities. We see no reason to conclude the jury's award

was against the manifest weight of the evidence or resulted in a manifest miscarriage of

justice.

- 22 - Butler CA2024-10-121

{¶ 55} We overrule DQ's second assignment of error.

Legal Issue #4 – Attorney Fees

The Tomahawks' First and Second Assignments of Error – Denial of Fees After Summary Judgment, Denial of Block Billed Attorney fees, and the Court's Blanket Reduction in Fees

{¶ 56} The trial court found the Tomahawks Lease to be valid, granted the

Tomahawks' motion for summary judgment as to DQ's declaratory judgment claim, and

found DQ's quiet title and slander of title claims moot. The Tomahawks had requested

attorney fees as part of its counterclaim, asserting the fees for defending the validity of

the Tomahawks Lease were recoverable because they, as a grantee under the

Tomahawks Lease, were compelled to defend the title conveyed by Roesel Enterprises.

After granting the Tomahawks summary judgment on the lease validity question, the trial

court did not render a decision on the question of the Tomahawks' entitlement to fees for

that claim—instead sending that question to the jury at trial.

{¶ 57} At trial, DQ argued its unjust enrichment claim—its only remaining claim

against the Tomahawks, concerned only "the value of the rental agreement" which was

$5,000, representing 20 years of rent at $250 per year. In closing arguments, the

Tomahawks acknowledged DQ was "entitled to that setoff" of $5,000 after first

considering the Tomahawks additional costs after vacating the Property.14

{¶ 58} The jury awarded DQ $0 for unjust enrichment, $150,000 to DQ against

Kenneth for fraud, and $150,000 to the Tomahawks against DQ for breach of contract. In

addition, the jury found the Tomahawks were entitled to attorney fees, in an amount to be

14.The Tomahawks moved (twice) to bifurcate the trial between the issues related to the damages it sustained by DQ's breach (after accounting for the setoff for unjust enrichment) and the issue related to DQ's damages for its fraud claim against Kenneth. The trial court denied both motions to bifurcate.

- 23 - Butler CA2024-10-121

determined by the court.

{¶ 59} After trial, the Tomahawks moved the trial court to order DQ to pay the

Tomahawks' $204,658 in attorney fees, and the trial court held an evidentiary hearing on

this issue. The Tomahawks and DQ presented expert testimony to the trial court regarding

attorney fees. The Tomahawks' expert testified that the fees the Tomahawks sought were

reasonable because the case contained intertwined legal issues that could not be

separated. DQ's expert opined that the work for the unjust enrichment claim and breach

damages could be separated but that the Tomahawks' attorneys should be compensated

for their trial work.

{¶ 60} The trial court determined that the Tomahawks were entitled to attorney

fees only for work which was "related to defending the validity" of the Tomahawks Lease

and awarded the Tomahawks $7,901.50 in attorneys' fees. In doing so, the trial court

found the hourly rate of the Tomahawks attorney fees of $350 reasonable. However, the

court noted it was "not able to determine the precise amount of time . . . that [the

Tomahawks] expended defending the validity of the Rental Agreement, not because the

claims involved a common core of fact or related legal theories, but because [the

Tomahawks] attorneys used block billing when invoicing." In addition, the court found that

"the other claims and counterclaims [of the parties] are not so intertwined where DQ

should be responsible for all of the fees billed from the commencement of suit until

summary judgment (May 6, 2021, through August 9, 2022)." Based on these two

conclusions, the trial court "divid[ed] the total amount billed for the applicable time period

by the total number of claims [eight], leaving The Tomahawks entitled to one-eighth of the

fees" billed prior to summary judgment. The trial court denied the Tomahawks any

attorney fees following summary judgment.

- 24 - Butler CA2024-10-121

{¶ 61} We review the trial court's reward of attorney fees, including block billing,

for an abuse of discretion. State ex rel. Hicks v. Clermont Cnty. Bd. of Commrs., 2021-

Ohio-998, ¶ 61-62. (12th Dist.), overruled on other grounds, State ex rel. Hicks v.

Clermont Cnty. Bd. of Commrs., 2022-Ohio-4237. Once again, the trial court abuses its

discretion if its "decision was unreasonable, arbitrary, or unconscionable." Ostigny v.

Brubaker, 2024-Ohio-384, ¶ 20 (12th Dist.). When making a fee determination, "the trial

court shall make the necessary findings to enable this court to conduct a meaningful

review should that decision again be appealed." Nationwide Agribusiness Ins. Co. v.

Heidler, 2019-Ohio-4311, ¶ 35 (12th Dist.). Unless the amount awarded "is so high or so

low as to shock the conscience" a trial court's award of attorney fees should be upheld.

Bittner v. Tri-Cnty. Toyota, Inc., 58 Ohio St.3d 143, 146 (1991). See also Total Quality

Logistics, LLC v. Integrity Express Logistics, LLC, 2021-Ohio-4242, ¶ 50 (12th Dist.).

{¶ 62} Ohio follows the "American Rule" for attorneys' fees, and litigants are

generally not entitled to recover them unless (1) a statute provides for their recovery; (2)

a contract provides for their recovery; or (3) the losing party is found to have acted in bad

faith. Burdick v. Burd Bros., Inc., 2019-Ohio-1593, ¶ 18 (12th Dist.). "However, where the

claims can be separated into a claim for which fees are recoverable and a claim for which

no fees are recoverable, the trial court must award fees only for the amount of time spent

pursuing the claim for which fees may be awarded." Kinder v. Smith, 2013-Ohio-2157, ¶

20 (12th Dist.).

{¶ 63} After answering whether attorneys' fees are recoverable, the court's

determination of reasonable attorney fees is a two-part process. Courts first perform a

"lodestar" calculation by multiplying an attorney's reasonable hours expended by a

- 25 - Butler CA2024-10-121

reasonable hourly rate. Hicks, 2021-Ohio-998 at ¶ 51. Second, the court may adjust the

lodestar amount by considering factors such as the skills, experience, and knowledge

required for the legal work. Id., citing Prof.Cond.R. 1.5.15

{¶ 64} A common issue in evaluating reasonable attorney fees is the use of "block

billing" which "involves the practice of listing multiple tasks in a single paragraph followed

by the total amount of time spent on all tasks." Hicks at ¶ 58. We have previously noted

that "block billing is disfavored by both clients and courts, as it makes it difficult, if not

impossible, to determine the reasonableness of a fee request." Id.16 Nonetheless, "[w]e

also recognize that experienced trial judges who are familiar with attorney billing and

litigation practice may determine that the tasks described in block-billed entries and the

total time expended on all tasks was reasonable." Id. at ¶ 60. When block billed attorney

fees are awarded, the trial court "should articulate the factors upon which the fees were

determined to be reasonable despite having been block-billed." Id.

{¶ 65} The Tomahawks assert the trial court improperly awarded fees only up to

the date on which it granted their motion for partial summary judgment as to DQ's

declaratory judgment action. The Tomahawks contend the legal issues presented in the

declaratory judgment action are "inextricably linked" with DQ's and the Tomahawks' other

15. "The factors to be considered in determining the reasonableness of a fee include the following: (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." Prof.Cond.R. 1.5.

16. Such concerns led Ohio's Supreme Court to categorically deny block billing on cases appealed to it. See generally State ex rel. Harris v. Rubino, 2018-Ohio-5109. This court, however, has not entirely banned block billing. Hicks, at ¶ 60.

- 26 - Butler CA2024-10-121

causes of action, meaning more fees should have been granted because the Tomahawks

still had to defend itself against DQ's unjust enrichment claim through trial.17 In addition,

the Tomahawks argue the trial court arbitrarily excluded all "block billed" entries when

calculating its attorney fees and applied an incorrect blanket reduction to their fees based

upon the court's conclusion they only "succeeded" on one out of eight claims.

Inextricably Linked Claims and Counterclaims Prior to Summary Judgment

{¶ 66} As far as what attorney fees the Tomahawks were entitled to, the

Tomahawks focus on the intertwining of DQ's claims and their counterclaims to argue

they should have been awarded fees for their trial work. We address that below but

examine the trial court's reasoning in context for abuse of discretion. Within that context,

the trial court's conclusion that the parties' claims and counterclaims were not

"intertwined" prior to summary judgment was unreasonable and arbitrary. While the trial

court analyzed why the Tomahawks could recover fees for the issues surrounding the

validity of the Tomahawks Lease, it blamed the Tomahawks' block billing, instead of a

"common core of fact or related legal theories," for its inability to determine the time

devoted to the lease validity question. The trial court's conclusion, without support or

analysis beyond block billing, that "the other claims and counterclaims are not so

intertwined" as to make DQ responsible for all the fees billed prior to summary judgment

do not demonstrate a reasoned approach to fees.18

{¶ 67} As the trial court correctly noted, when multiple claims are "rooted in the

17. We note that DQ does not contest whether the Tomahawks were entitled to attorney fees in the first place. DQ only asserts the trial court did not abuse its discretion when calculating the award.

18. In addition, the trial court's attorney's fee award to the attorneys representing the Tomahawks totals just 3% of the fees they requested. Awarding 3% to attorneys whose success in the face of extensive and aggressive litigation led directly to a six-figure award of damages for their client is unreasonable and unconscionable on its face. While an award of fees is not always possible under Ohio law, when it is, a trial court should not lower the award to a facially unreasonable amount. In the same way anyone deserves fair compensation for a job well done, so do attorneys (despite lawyer jokes, which are funnier when one has no need for an attorney). - 27 - Butler CA2024-10-121

same allegations, facts, discovery, and legal arguments, a trial court does not abuse its

discretion in awarding attorney fees for the time spent on the claims." Edlong. Corp. v.

Nadathur, 2013-Ohio-1283, ¶ 16 (1st Dist.). Even a cursory review of the record supports

a reasoned conclusion that DQ's claims against the Tomahawks and the Tomahawks'

counterclaims against DQ were factually and legally intertwined prior to summary

judgment. Virtually all of the relevant facts, discovery, and evidence focused on the

validity of the Tomahawks Lease prior to summary judgment. For instance, a quick glance

at the motions for summary judgment for the relevant claims and counterclaims shows

that the vast majority of the briefing focused only on the question of the validity of the

Tomahawks Lease (e.g., the Tomahawks only devoted four short paragraphs to other

issues in its motion for summary judgment). It is obvious why this is so—if DQ's efforts to

invalidate the lease were successful, the Tomahawks' counterclaims would all fail, while

if the Tomahawks prevailed on that issue, they were virtually assured of success on one

of their breach claims. In fact, the Tomahawks presented uncontroverted evidence (in

one short paragraph) on summary judgment supporting DQ's breach if the court found

the Tomahawks Lease valid.

{¶ 68} The trial court also correctly noted it can only award fees for "the amount of

time spent pursuing the claim for which fees may be awarded," but that is only so where

it is possible to separate claims in such a manner." Bittner, 58 Ohio St.3d at 145.

(Emphasis added.) If, as is the case here, the claims for relief involved "a common core

of facts or [were] based on related legal theories," then dividing the hours on a claim-by-

claim basis is difficult. Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). It logically follows

that if the court must award fees—as the jury's verdict requires here—and if it is virtually

impossible to separate claims—the court must award fees for all work deemed

reasonable under the Lodestar method.

- 28 - Butler CA2024-10-121

{¶ 69} There is simply very little evidence that either DQ or the Tomahawks spent

much time at all prior to summary judgment on any question other than the validity of the

Tomahawks Lease. Therefore, we find that, prior to summary judgment, DQ's claims

against the Tomahawks and the Tomahawks' counterclaims against DQ were

"inextricably linked" and the Tomahawks should be awarded all fees deemed reasonable

under the Lodestar method. Next, the trial court's conclusions regarding the Tomahawks'

block billing must be addressed within the context of these inextricably linked claims.

Block Billing

{¶ 70} The trial court found that it could not determine the "precise amount of time

devoted that [the Tomahawks] expended defending the validity of the Rental Agreement,

not because the claims involved a common core of fact or related legal theories, but

because [their] attorneys used block billing when invoicing." The trial court's conclusion

regarding block billing was premised on the unreasonable conclusion that it would be

possible to separate the work done for just the lease validity question prior to summary

judgment.

{¶ 71} The trial court further abused its discretion by making no attempt to

determine whether the tasks described and time spent for those tasks in the block billed

entries submitted by the Tomahawks were reasonable. As a result, we are unable to

conduct any meaningful review in this regard. But again, even a cursory review of the

billing records submitted to the trial court show that most of the block-billed entries contain

(1) several tasks that are closely related to one another (e.g. multiple emails to the same

person, research and conferences related to the same issue); and/or (2) billing for

relatively small increments of time (e.g., 0.2 hours, 0.9 hours, etc.). The trial court is

experienced with attorney billing and litigation practice and can therefore make a

reasoned determination if the "tasks described in the block-billed entries and the total

- 29 - Butler CA2024-10-121

time expended on all tasks was reasonable." Hicks, 2021-Ohio-998, at ¶ 60. Upon

remand, we hold the trial court must review the block-billed entries to determine if the total

amount of time billed for the multiple tasks is reasonable (i.e., whether sending two emails

justifies billing 0.2 hours). If so, those fees prior to summary judgment are compensable.

Blanket Reduction for "Unsuccessful" Claims

{¶ 72} The Tomahawks also challenge the trial court's seven-eighths blanket

reduction to attorney fees accrued before its summary judgment decision based only on

the number of claims and counterclaims between the parties. We find this blanket

reduction was arbitrary. See Hicks, 2021-Ohio-998, ¶ 62 (12th Dist.) (rejecting appellant's

argument that the "entire fee application should be reduced by two-thirds based simply

upon the number of claims involved in the case, rather than the work attributable to each

claim.").

{¶ 73} First, the basic math is incorrect—only seven of the claims and

counterclaims related to the Tomahawks—DQ's fraud claim only related to Kenneth and

Tanya. If a theoretical blanket reduction was made, it should have been by six-sevenths.

But even that would be arbitrary under our precedent.

{¶ 74} Second, while the trial court attempted to focus on the Tomahawks' limited

"success" with this reduction, it failed to recognize there is a huge difference between

having a claim denied and having a claim be deemed moot because of the party's success

on an interrelated claim (mooting the other claims further supports how "intertwined" they

all were). Here, the Tomahawks succeeded on the lease validity question, making it

completely unnecessary for any decision to be made on DQ's claims for quiet title or

slander of title, or for the Tomahawks' promissory estoppel claim.19 The Tomahawks'

19. As to DQ's undismissed claim of unjust enrichment, the parties agreed at trial that DQ's unjust enrichment claim solely represented a $5,000 "setoff" of any damages awarded to the Tomahawks in their - 30 - Butler CA2024-10-121

success—not their failure—led directly to the mootness of the ancillary, intertwined claims

and counterclaims.

{¶ 75} Prior to summary judgment, the trial court erred in finding, without analysis,

that the claims were not "intertwined." Further, it erred by not attempting to determine if

the block-billed time was reasonable according to the Lodestar method. Finally, the trial

court erred by applying a blanket reduction to the fees accrued prior to summary

judgment. Upon remand, the trial court should award the Tomahawks all fees prior to

summary judgment it deems reasonable under the Lodestar method after a careful and

thorough review of the billing records. Next, we turn to the Tomahawks' assertion that the

trial court erred in not awarding fees for any work done at trial.

Fees for Trial

{¶ 76} The trial court denied the Tomahawks any recovery of attorney fees after

summary judgment, which the Tomahawks challenge on appeal. The Tomahawks assert

that the fees at trial are recoverable largely on the same "intertwining" of claims argument

they raised on fees prior to summary judgment.

{¶ 77} The jury determined the damages DQ owed to the Tomahawks for its

breach of the Tomahawks Lease. On the record before this court, it appears that, prior to

summary judgment, the Tomahawks billed for virtually no time related to the question of

damages they incurred due to DQ's breach. We find that the question of damages the

Tomahawks had to prove at trial is directly and solely related to its breach counterclaim

breach of contract claim. Such a setoff is inherent in any breach of contract suit, making an unjust enrichment claim moot, so this court is perplexed as to why the unjust enrichment claim proceeded to trial. See F. Enterprises, Inc., 47 Ohio St.2d at 158 (holding rental damages "is the difference between the fair market rental of the property proposed to be leased and the agreed rental to be paid in the proposed lease, such sum discounted to present value, together with any special damages arising from the breach"); see also Turner v. Langenbrunner, 2004-Ohio-2814, ¶ 38 (12th Dist.) (holding "[b]ecause there is a valid, enforceable contract in this case, the doctrine of unjust enrichment is not applicable."). Nonetheless, this court recognizes that question is not before it, nor is it consequential to the calculation of fees prior to summary judgment. - 31 - Butler CA2024-10-121

against DQ, and any fees solely related to that counterclaim are not recoverable. At trial,

the validity of the Tomahawks Lease was not intertwined at all with the question of the

damages the Tomahawks sustained, so it is not impossible to separate these fees from

work intertwined with the compensable lease validity issue prior to trial.

{¶ 78} The Tomahawks characterize the damages as "simply the flip side of the

lease validity question" and argue those fees should be recoverable. Not so. The

damages are an element of the Tomahawks' wholly separate counterclaim for breach of

contract and/or the covenant of quiet enjoyment. As discussed above, Ohio law does not

permit recovery of attorney fees for a breach claim when the fees are wholly separate

and easily delineated from fees related to another, compensable issue. 20 The

Tomahawks' work related to the lease validity was intertwined with all the other claims

and counterclaims prior to summary judgment. But following summary judgment, only the

question of damages on the breach claim (and the relatively straightforward setoff of

$5,000 for "unjust enrichment") remained. Therefore, the Tomahawks' work related to the

breach counterclaims was no longer inextricably linked to the lease validity work.

{¶ 79} But for the trial court to wholly exclude all fees related to the trial was

arbitrary because (1) the jury itself determined the Tomahawks were entitled to attorney

fees and (2) the Tomahawks were required to present evidence and argument to the jury

supporting its claim for fees. Upon remand, the trial court should carefully consider how

much time the Tomahawks billed at trial reasonably related to its fee request to the jury.

Those fees would be recoverable as they are unrelated to the question of damages and

are instead directly related to the question of fees.

{¶ 80} In summary, upon remand, the Tomahawks should be awarded all attorney

20. Of course, Ohio law permits fee recovery for a breach if a contract provides for that recovery. But that is not the case here. - 32 - Butler CA2024-10-121

fees which accrued prior to summary judgment that the trial court deems reasonable

under the Lodestar method after its careful and thorough examination of the billing

records, including block billed entries. Following summary judgment, the Tomahawks

would only be entitled to any fees it can demonstrate directly relate to its presentation and

argument to the jury for an award of attorney fees.

{¶ 81} These assignments of error are sustained in part and overruled in part.

Conclusion

{¶ 82} The trial court properly determined that the Tomahawks Lease was valid

and that DQ was liable to the Tomahawks for breaching that valid lease. Likewise, we

find no error in the jury's determination that the Tomahawks sustained $150,000 in

damages due to DQ's breach. However, the question of whether Kenneth and/or Tanya

committed fraud when selling the Property to DQ should have been presented to a jury—

only if a jury determines one, or both, is liable for fraud can DQ be awarded damages (not

to exceed $150,000).

{¶ 83} In addition to the foregoing, the trial court must reassess the Tomahawks

attorney's fee award from the period of May 6, 2021, through August 9, 2022, and

determine whether the tasks described in block billed entries and the total time expended

on all tasks during that period were reasonable. The Tomahawks are entitled to an award

of all reasonable fees up to August 9, 2022. In addition, the Tomahawks are entitled to

an award of all reasonable fees for their work at trial that is directly related to their request

to the jury for an award of fees.

{¶ 84} Judgment affirmed in part, reversed in part, and remanded for proceedings

consistent with this opinion.

HENDRICKSON, P.J., and BYRNE, J., concur.

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JUDGMENT ENTRY

The assignments of error properly before this court having been ruled upon, it is the order of this court that the judgment or final order appealed from be, and the same hereby is, affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

It is further ordered that a mandate be sent to the Butler County Court of Common Pleas for execution upon this judgment and that a certified copy of this Opinion and Judgment Entry shall constitute the mandate pursuant to App.R. 27.

Costs to be split equally among all parties (25%).

/s/ Robert A. Hendrickson, Presiding Judge

/s/ Matthew R. Byrne, Judge

/s/ Melena S. Siebert, Judge

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