State ex rel. Stafford v. Carpenter

2022 Ohio 3848

• Court: Ohio Court of Appeals
• Decided: October 28, 2022
• Docket: 2022-CA-13
• Status: Published

Opinion

[Cite as State ex rel. Stafford v. Carpenter, 2022-Ohio-3848.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

STATE ex rel., JOHN M. STAFFORD : : Relator-Appellant : Appellate Case No. 2022-CA-13 : v. : Trial Court Case No. 2019-CV-605 : DAVID J. CARPENTER, et al. : (Civil Appeal from : Common Pleas Court) Respondents-Appellees : :

...........

OPINION

Rendered on the 28th day of October, 2022.

JEREMY M. TOMB, Atty. Reg. No. 0079554 and HILLARY JAQUA, Atty. Reg. No. 0097633, 124 West Main Street, Troy, Ohio 45373 Attorneys for Relator-Appellant

NICHOLAS E. SUBASHI, Atty. Reg. No. 0033953 and TABITHA JUSTICE, Atty. Reg. No. 0075440, 50 Chestnut Street, Suite 230, Dayton, Ohio 45440 Attorneys for Respondents-Appellees

.............

TUCKER, P.J. -2-

{¶ 1} John M. Stafford appeals from the trial court’s judgment entry sustaining in

part and overruling in part his objections to a magistrate’s decision and awarding him

attorney fees of $48,562.50 plus court costs.

{¶ 2} Stafford contends the trial court erred in (1) reducing one of his attorney’s

hourly rate from $325 to $200 without supporting evidence, (2) reducing the hours for

which he was entitled to an attorney-fee award by 30 percent without any justification, (3)

denying attorney fees associated with a fee application, (4) failing to identify which fees

were rejected, which were accepted, and why, (5) denying expert fees as costs, and (6)

excluding two pages of billing summaries.

{¶ 3} Although most of Stafford’s arguments lack merit, we agree that the trial court

abused its discretion in reducing one attorney’s hourly fee rate from $325 to $200. The

largest reduction the record reasonably supported was a reduction to $250 per hour.

Accordingly, the trial court’s judgment will be reversed, and the case will be remanded for

recalculation of the fee award.

I. Factual and Procedural Background

{¶ 4} The present appeal stems from Stafford’s September 2019 complaint

alleging that the appellee-respondent Bellbrook-Sugarcreek School Board and its

members had committed a number of violations of R.C. 121.22, the Open Meetings Act

(OMA). The 33-page complaint contained 180 numbered paragraphs and 132 pages of

exhibits. In their answer, the respondents admitted three of the alleged violations but

denied several others.

{¶ 5} In December 2019, the respondents moved for a protective order, which the -3-

trial court granted in part. The trial court prohibited Stafford from disseminating on social

media any information or documents obtained solely through the discovery process. The

trial court denied the respondents’ request to prohibit Stafford from commenting about the

case on social media.

{¶ 6} In June 2020, the respondents moved for judgment on the pleadings. That

same month, Stafford filed a cross-motion for judgment on the pleadings. Upon review of

the competing motions, the trial court found that the respondents had violated the OMA

by engaging in email discussions about a school-levy post card and by entering into

executive sessions for unauthorized reasons. The trial court issued a permanent

injunction, assessed six $500 civil forfeitures, and set the matter for an attorney-fee

hearing.

{¶ 7} Prior to the hearing, Stafford made an attorney-fee request of $224,506.72.

A magistrate heard four days of testimony about attorney fees in January and February

2021. Stafford presented testimony from three of his attorneys, Jeremy Tomb, John Corey

Colombo, and Derek Clinger. Finally, Stafford presented testimony from Erin Sussman, a

fee expert employed by consulting and advisory firm Sterling Analytics. For their part, the

respondents called Stafford to testify as on cross-examination. The respondents also

presented testimony from attorney Bernard Wharton regarding the reasonableness of

Stafford’s fee request. Based on the testimony presented, the magistrate awarded

Stafford attorney fees of $60,822.50 and court costs.

{¶ 8} Stafford objected to the magistrate’s decision. He argued that the magistrate

had erred in (1) finding 269.7 hours of fees recoverable rather than the total of 475.8 -4-

hours submitted, (2) improperly reducing attorney Clinger’s hourly rate from $325 to $200,

and (3) excluding Sussman’s expert witness fee of $13,276.81. The respondents also

objected to the magistrate’s decision, arguing (1) that Stafford should not have been

allowed to introduce summaries of billing entries and (2) that Stafford was not entitled to

attorney fees to litigate discovery motions.

{¶ 9} The trial court resolved the competing objections in a January 19, 2022

Decision and Judgment Entry. The trial court’s ruling included the following detailed

factual findings, which are supported by the fee-hearing testimony:

Stafford was represented in this case by two law firms—McTigue &

Colombo and Waite, Tomb & Eberly. In addition, Stafford was or is

represented by these law firms in multiple additional matters.

In June, 2019, McTigue & Colombo was retained by Stafford to “look

into two broad issues” as it related to the Bellbrook Sugarcreek School

District; the first being potential misuse of public resources to promote a

levy campaign and the second was a series of concerns about potential

Open Meetings Act violations. (TR Vol II p. 235). McTigue & Colombo is

located in Columbus, Ohio and has primary areas of specialty in matters

related to election and campaign finance law, public records and open

meetings. (TR Vol I p. 198). Stafford entered into a fee agreement with

McTigue & Colombo wherein he agreed to pay a rate of $325 per hour for

attorney time. (TR Vol I p. 200, 207). According to Cory Colombo, that is

consistent with the rates charged by other firms in Columbus. (TR Vol I p. -5-

207).

Attorney Derek Clinger submitted several public records requests to

the school district over the summer of 2019 as an initial fact investigation

into the two issues raised by Stafford. (TR Vol II p. 236). Among the

responsive documents received in response to his public records requests,

Clinger received a series of emails in which members of the school board

were deliberating and discussing the contents of a postcard about the levy

election; these emails formed the basis for one of the violations alleged (and

prevailed upon) by Stafford and were attached to the complaint. (Id.).

Additional documents received in the summer of 2019 in response to public

records requests were also attached to the Complaint. At the time McTigue

& Colombo was retained, Stafford already had the meeting minutes which

formed the basis of violations pertaining to improper executive sessions.

(TR Vol II p. 311-312).

Due to many moving parts and collateral issues, Waite, Tomb &

Eberly, a law firm based in Troy, Ohio, was retained to join in representing

Stafford in this case in or around September, 2019. Stafford has been a

client of Attorney Wayne Waite’s [sic] and later of Waite, Tomb & Eberly for

more than ten years. During this time period, Waite, Tomb & Eberly was

handling other general civil litigation for Stafford. (TR Vol I p. 49). Jeremy

Tomb had prior experience litigating cases involving the Open Meetings Act

and testified he has far more knowledge and experience in litigating Open -6-

Meetings Act cases than the average practitioner. (TR Vol I p. 27). Stafford

executed a fee agreement with Waite, Tomb & Eberly wherein he agreed to

pay $250 per hour for attorney time and $125 per hour for paralegal time.

(TR Vol I p. 29, Relator’s Exhibit 1). While Waite, Tomb & Eberly had some

work on the Complaint, McTigue & Colombo had primary responsibility for

drafting the Complaint. (TR Vol I p. 35).

According to Tomb, Stafford had “about seven open billing entries”

at the time of the attorney fee hearing for various matters (TR Vol I p. 59).

The billing entries submitted by Waite, Tomb & Eberly include multiple

entries for time spent on matters outside the scope of the Open Meetings

Act litigation. By way of example, there are billing entries related to

Stafford’s pursuit of a civil protection order against Matthew Yoxtheimer. It

is Stafford’s position that the hours expended in pursuit of the civil protection

order are part of this case because Respondents’ counsel filed a motion to

intervene and asked the Domestic Relations court to issue a protective

order on discovery in the civil protection order case. (TR Vol I p. 60).

After the Complaint was filed on September 19, 2019, Clinger

continued to make public records requests to the school district and to third

party public entities. (TR Vol II p. 237). These third party public entities

included the City of Bellbrook, Sugarcreek Township, a park district, Greene

County Educational Services Center, and the Greene County Sheriff’s

Office. (TR Vol II p. 237-238). During his investigation, Clinger learned that -7-

the Superintendent of the school district was sending emails related to the

levy election to a group of 20-30 people, some of whom worked for these

public entities. (Id.). The third party requests uncovered additional

communications about the levy election. It was also discovered that one

school board member was included in these email chains. (Id.). The email

chains provided information about what people were hearing in the

community about the levy as to its popularity or lack thereof. (Id.).

While this case was pending, Clinger represented Stafford in a

pending action with the Ohio Elections Commission against a political action

committee that was formed to support the school district’s levy and against

the school district superintendent “in his role as the effective campaign

manager for that” political action committee. (TR Vol II p. 241). The

attorneys who represent the Respondents herein also represent the

superintendent in the Ohio Elections Commission matter. (Id.). Nearly

identical motions for protective order were filed both in this case and the

Ohio Elections Commission at roughly the same time. (Id.). In his billing

entries, Clinger included references to the Ohio Elections Commission

matter because both cases were “responding to the same arguments, same

facts,” and the same evidence. (Id.) Clinger testified there were some

references to “try to make sure that our arguments in both forums are

…consistent with each other, at least.” (Id.)

Both law firms prepared a spreadsheet in support of the attorney fee -8-

application filed herein. As McTigue & Colombo were hired to look into two

separate issues—potential misuse of public resources to promote the

passage of a school levy and violations of the Open Meetings Act—the law

firm had multiple matters open in their law firm management software. (TR

Vol II p. 258). Among the open billing matters was a completely separate

matter for public records requests. (TR Vol II p. 276-277). Clinger testified

that if a public records request had produced a document that it later turned

out could be used to refute an argument made by Respondents during the

pendency of this case, he would move the billing entry for that public records

request into the billing statement for this case. (TR Vol II p. 296). According

to Clinger, billing entries that the attorneys thought were relevant to this

case were exported to an Excel spreadsheet and if the original description

of work performed contained privileged attorney/client communications, the

description was modified to protect those communication. (TR Vol II p. 259-

260). Clinger provided the spreadsheets to Colombo for review and made

any changes requested. (TR Vol II p. 261). ·

Waite, Tomb & Eberly maintained billing statements on a couple

different software platforms. (TR Vol I p. 32). Tomb testified that billing

entries “... that were relevant to the matters that were in the motion and to

the statute and that fell within the structures [or] guidelines of previous

cases” were entered for consideration in the fee application. (TR Vol I p.

33). Billing entries were entered sequentially “for the matters that made -9-

sense” to be in the fee application. (Id.). Tomb also noted there were

numerous individuals affiliated with the school board and friends of people

affiliated with the school board that were “constantly peppering Mr. Stafford

with collateral attacks, things that we had to deal with constantly, and then

Mr. Stafford was billed for.” (Id.). Tomb removed those items from the billing

entries that weren’t directly related to this case or that the attorneys didn’t

feel that the school made directly related to this case. (Id.). The

spreadsheets from both law firms were then sent to Erin Sussman with

Sterling Analytics for her review.

Sterling Analytics is a national/international consulting and advisory

legal firm that reviews and validates legal invoices. (TR Vol II p. 322). Erin

Sussman, a licensed attorney in the State of New York, had worked for

Sterling Analytics for nearly nine years and was the Global Services

Manager at the time of the hearing. (TR Vol II p. 323, 326). Sussman has

co-written and teaches continuing legal education on the topic of ethical

billing, drafted law review articles, and has spoken on panels on ethical and

transparent billing. (TR Vol II p. 327). Sussman is not licensed in Ohio and

had never testified as an expert in any case involving the Ohio Open

Meetings Act. (TR Vol II p. 366).

Sterling Analytics was contacted in late August, 2020 and asked to

review the legal invoices for the matter from McTigue & Colombo and Waite,

Tomb & Eberly. (TR Vol II p. 329). Sterling Analytics did a line-by-line -10-

analysis of the time slips for both law firms, immediately organized them,

and looked at what the law films had already removed. (Id.). Sussman

received the work product, major pleadings, and the motions filed in this

case. She then worked through each of the invoices separately, going

through each line and made notes where she saw things such as block

billing, vague time entries, inconsistencies, clerical tasks, and attendance

of multiple attorneys. (TR Vol II p. 329-330). Sussman testified that it was a

collaborative process with both law firms and there were several rounds of

revision to the billing entries. (TR Vol II p. 330). Sussman also compared

the work of both law firms against each other and looked for meetings where

attorneys from both law firms attended, work that was being performed, or

emails that both law firms were on. In many of those instances,

redundancies were removed. If two timekeepers billed for the same work or

the same call, Sussman tried to make sure there was tangible work product

and value brought to that task. (Id.). On Sussman’s recommendation,

Clinger’s hourly rate was reduced to that of a paralegal for hours expended

on doing public records requests and clerical tasks were completely

removed from the billing. (TR Vol II p. 331-332). Additionally, billing entries

related to travel were reduced to 50% of the timekeeper’s hourly rate. (TR

Vol II p. 341). Billing entries that revealed multiple attendance were

evaluated individually to determine reasonableness of attendance. (TR Vol

II p. 332). The vast majority of the time, only one timekeeper’s billing entry -11-

remained. (Id.). Sussman testified that there was an exercise in billing

judgment made regarding every entry that billed for interoffice

communications and communications between law firms; if the

communication was strategic in nature and valuable or the result of a legal

or factual development it was left in the invoice. (TR Vol II p. 358-360). After

her review, Sussman identified multiple entries and recommended their

removal, representing nearly 100 hours of billing and totaling 12% of the

fees originally submitted. (TR Vol II p. 394, 449).

To familiarize herself with legal billing rates in Ohio, Sussman

reviewed an annual Real Rate Report, which contains data across different

benchmarks, such as years of experience, geographic area, types of

litigation, and practice area, (TR Vol II p. 328). The Real Rate Report

surveys attorney billing rates by different cities. In conducting her review,

Sussman reviewed the rates billed in Columbus and Cincinnati; in the

hearing, Sussman quoted the billing rates from Columbus and later testified

those rates were consistent with rates that are charged in Dayton. (TR Vol

II p. 374, 447). In her review, there was no instance where $250 per hour

was an unreasonable hourly rate. (TR Vol II p. 374). When questioned how

she reconciled the hourly rate of Wayne Waite, who is a very experienced

local attorney with that of Derek Clinger, who had been licensed for just

under 5 years at the time the complaint was filed, Sussman stated that was

based on McTigue & Colombo being an "election law firm” which allowed -12-

them to command higher rates for the niche practice area. (Id.). Sussman

also pointed out Stafford’s long relationship with Wayne Waite and her

understanding that the hourly rate has always been $250 per hour, but that

didn’t mean that Wayne Waite wasn’t entitled to a higher hourly rate, just

that he charged much less than he could have given his experience. (TR

Vol II p. 374-375).

Bernard Wharton is a licensed attorney in Ohio who was admitted to

practice in 1994. (TR Vol II p. 588-589). Wharton is a shareholder with

McCaslin, Imbus & McCaslin in Cincinnati, Ohio who has been practicing

municipal, government, and school law since 1996 or 1997. While Wharton

has represented various public bodies, public employees, and public

agencies, he primarily represents school boards in litigation, (TR Vol III p.

590-591). Wharton also testified that he has “quite a lot” of experience in

both seeking attorney fees and defending against claims for attorney fees.

(TR Vol Ill p. 592). Wharton was retained by Respondents to review

Stafford’s request for attorney fees, (TR Vol III p. 595-596). To arrive at his

ultimate opinion, Wharton spoke with Respondents’ counsel, reviewed

several of the pleadings filed in this case, conducted research into attorney

fee awards and the Open Meetings Act, and reviewed the application for

attorney fees with the attached billing summaries. (TR Vol III p. 597-598).

In Wharton’s view, this was an open and shut Open Meetings Act case

given that Respondents had admitted some of the violations alleged in their -13-

Answer. (TR Vol III p. 601). Wharton believed the next step after the Answer

was filed was either an agreed injunction with an agreement to resolve the

issue of forfeiture and attorney fees, or if an agreement couldn’t be reached,

filing a Motion for Judgment on the Pleadings by the Relator. (Id.). After

reviewing the billing summaries and noting that the parties were more than

a year into litigation without resolution, Wharton testified “there was a lot

more going on than just an Open Meetings Act case.” (Id.). Wharton went

on to explain:

“ ...it was…such a cut-and-dried case based on the Answer

admitting violations, the fact that it took—I think by my count,

it was seven months before [Stafford] even filed a Motion for

Judgment on the Pleadings, plus all the extraneous issues

that are clearly visible in the billing statement summaries

provided by [Stafford] in their fee application tells me there

was a lot of personal animus involved in this litigation between

the parties, that there really is no good explanation under the

law why all of this should have mushroomed to the size that it

is when you had a fairly simple Open Meetings Act case that

the Respondents admitted to in their Answer, and at that point,

file your Motion for Judgment on the Pleadings, pocket the win

and go home. There’s no need to draw it out unless there are,

you know, non-legal reasons for drawing it out.” (TR Vol III p. -14-

601-602).

Wharton also reviewed Erin Sussman’s affidavit and, in his opinion,

the affidavit did not address whether the hours billed were actually

necessary to prosecuting Stafford’s Open Meetings Act claim. (TR Vol III p.

604-605). In Wharton’s opinion, there are five areas of legal work that are

necessary to prosecute a case. First is pre-lawsuit investigation, which

includes interviewing the client, gathering information that helps the

attorney identify legal claims the client may have, and gathering what is

need[ed] to draft a Complaint or what the attorney may need to refer to in a

Complaint. Second is drafting the Complaint and reviewing any responsive

pleadings. Third is engaging in the discovery process. Fourth is dispositive

motion practice, if applicable. The fifth and final area is a trial on the merits.

(TR Vol III p. 608-609). Wharton opined that 20 hours was a reasonable

amount of time to spend on pre-lawsuit investigation, 25 hours was a

reasonable amount of time to draft the Complaint and review the Answer,

and 40 hours was a reasonable amount of time to expend on dispositive

motions in this case. (TR Vol III p. 610-614). Wharton additionally testified

that $250 per hour was a reasonable rate, but $330 per hour was too high

for Greene County. (TR Vol III p. 606-607, 629). In sum, Wharton opined

that a total of 85 hours at a rate of $250 per hour for a total attorney fee

award of $21,250.00 was reasonable in this case. (TR Vol III p. 614).

Wharton specifically opined that there was no reasonable basis for -15-

six attorneys and two paralegals to spend a total of 121.1 hours on the

motion for protective order that was filed in this case. (TR Vol III p. 615-

616). In fact, Wharton did not believe that any hours billed for the motion for

protective order were reasonably related to the Open Meetings Act claims.

(TR Vol III p. 619). Similarly, Wharton opined that hours billed in the civil

stalking protection order case filed in the Greene County Domestic

Relations Court were not reasonable and necessary to this case and that

he would not consider litigation occurring outside the Open Meetings Act

case as connected to the necessary resolution of the Open Meetings Act

case. (TR Vol III p. 671-672).

(Footnotes omitted.) January 19, 2022 Decision and Judgment Entry at pg. 4-11.

{¶ 10} After making the foregoing findings, the trial court resolved several

challenges by Stafford to the magistrate’s reduction of recoverable attorney-fee hours.

The trial court rejected most of Stafford’s arguments. The trial court also rejected his

challenge to the magistrate’s reducing Clinger’s hourly rate from $325 to $200. Finally,

the trial court rejected Stafford’s argument about recovering the expense of hiring fee-

expert Sussman. The trial court held that the OMA did not permit recovery of this litigation

expense. As for the respondents’ objections, the trial court found no error in the

magistrate’s allowing Stafford to introduce billing summaries. The trial court also found

no error in the magistrate’s decision with regard to the recovery of fees related to the

litigation of discovery motions.

{¶ 11} The trial court then conducted an independent review of the record and -16-

concluded as follows:

This Court has thoroughly reviewed the record in this case, including

the testimony adduced at the attorney fee hearing and the billing summaries

submitted by counsel. As the parties are aware, this Court is tasked with

determining the number of hours reasonably expended on this litigation and

must multiply that by an attorney’s reasonab[le] hourly rate. This Court

cannot conclude that it is reasonable and necessary to expend 475.8 hours

litigating a case that was entirely resolved with cross-motions for judgment

on the pleadings, especially in light of the fact that Respondents filed an

Answer wherein they admitted some of the violations alleged in the

Complaint. The Court has calculated at least 87.2 hours where counsel

were performing similar work to each other or were communicating or

reviewing drafts unnecessarily. Moreover, the Court has identified 93.1

hours of work that was not reasonable or necessary to the instant litigation.

Therefore, the Court finds that 180.3 hours should not be awarded as they

represent hours incurred unnecessarily. Given the expertise and

experience of each law firm, this Court questions the need for the

participation of both firms in this case. Indeed, rather than this case

benefiting from a divide and conquer approach, it is apparent the case was

overstaffed. A comparison of the billing entries shows that for every

significant stage of the litigation, there are a minimum of three and

sometimes as many as six attorneys billing for time related to a particular -17-

litigation task. It was not uncommon for multiple attorneys to bill for

reviewing the same document. Of particular concern is the fact that six

attorneys and two paralegals billed a total of 121.1 hours for work performed

on the protective order requested by Respondents. Due to the fact that this

case could have been resolved shortly after the Respondents’ Answer was

filed and before many of these hours were incurred, the Court finds that a

reduction of 30% of the remaining 295.5 hours is appropriate. * * *

(Footnotes omitted.) January 19, 2022 Decision and Judgment Entry at pg. 22-23.

{¶ 12} The trial court proceeded to identify the reasonable hourly rate for each of

Stafford’s attorneys and paralegals and the reasonable number of hours of work

performed by each. The trial court multiplied the reasonable hourly rates by the

reasonable number of hours and arrived at a total fee award of $48,562.50. Id. at 23.

Finally, the trial court found that “the relevant Prof. Cond.R. 1.5(a) factors” were

subsumed within its calculation and declined to make any additional adjustment based

on those factors. This appeal by Stafford followed.

II. Analysis

{¶ 13} The attorney-fee issue is governed by R.C. 121.22(I)(2), which provides that

“[i]f the court of common pleas issues an injunction pursuant to division (I)(1) of this

section, the court shall order the public body that it enjoins to pay * * * reasonable

attorney’s fees.” We review the trial court’s attorney-fee award under R.C. 121.22(I) for

an abuse of discretion. Specht v. Finnegan, 149 Ohio App.3d 201, 2002-Ohio-4660, 776

N.E.2d 564, ¶ 42 (6th Dist.) (“Both the Ohio Public Records Act and the Open Meeting -18-

Act permit a trial court, in its discretion, to award a prevailing plaintiff attorney fees. * * *

Matters within a court’s discretion will not be disturbed on appeal absent an abuse of that

discretion.”). “Abuse of discretion” has been defined as an attitude that is unreasonable,

arbitrary or unconscionable. AAAA Ents., Inc. v. River Place Community Urban

Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). Most instances of abuse

of discretion will result in decisions that are simply unreasonable, rather than decisions

that are unconscionable or arbitrary. Id. A decision is unreasonable if there is no sound

reasoning process that would support it. Id.

A. Reduction in Attorney Derek Clinger’s Hourly Rate

{¶ 14} In the first of his six assignments of error, Stafford contends the trial court

abused its discretion in reducing attorney Clinger’s hourly rate from $325 to $200.

{¶ 15} Stafford claims the record contains no evidence to support the trial court’s

reduction. The respondents argue that Stafford failed to prove the reasonableness of

Clinger’s $325 per hour rate and that the record supported the trial court’s reduction.

{¶ 16} In support of its decision, the trial court noted that Clinger had less than five

years of experience as an attorney. Although fee expert Erin Sussman opined that

Clinger’s rate was reasonable, the trial court found that she had based her opinion on her

identification of his firm, McTigue & Colombo, as an “election law firm,” a niche practice

that commanded higher rates, whereas the present lawsuit did not involve election law.

The trial court also cited the respondent’s expert, Bernard Wharton, who opined that $250

per hour was a reasonable rate charged by Waite, Tomb & Eberly, which was the other

law firm representing Stafford in this matter. Finally, the trial court compared the attorneys’ -19-

rates and years of experience and determined that $200 per hour was a reasonable rate

for Clinger’s services.

{¶ 17} Upon review, we conclude that the record reasonably supported a reduction

in Clinger’s $325 hourly rate. But the trial court’s reduction to $200 per hour was

unsupported by the record and was unreasonable. At the fee hearing, Clinger testified

that McTigue & Colombo practices “election law, political law, [and] state and local

government law.” Through his work with the firm, Clinger possessed special expertise

and competence in OMA cases. Tr. Vol. II at 233-234. Clinger testified that he and the

two partners involved in this case, Don McTigue and Corey Colombo, all billed Stafford

at a rate of $325 per hour, which was well below the rate attorneys McTigue and Colombo

normally charged. Id. at 282.

{¶ 18} Fee expert Sussman did refer to McTigue and Colombo at one point as a

niche “election law firm.” Id. at 374. Elsewhere in her testimony, however, Sussman

recognized that the law firm had “extensive experience” in “government-type litigation,”

which “has higher rates.” Id. at 348. Sussman testified that she had researched and

collected information regarding customary hourly rates. She obtained much of this

information from an industry publication known as the “Real Rate Report.” Id. at 373. The

report did not provide rates by county, so Sussman looked at rates for Cincinnati and

Columbus. The Real Rate Report also provided her with data based on attorney

experience. Id. In Sussman’s opinion, “in no instance was $250 per hour an unreasonable

hourly rate.” Id. at 374. When questioned about experienced attorney Wayne Waite billing

only $250 per hour for his work in this case, Sussman noted that he had a longstanding -20-

relationship with Stafford and always had billed that rate as a courtesy. In Sussman’s

opinion, Waite reasonably could have charged more. Id. at 374-375. Sussman testified

that the average rates for partners in Columbus were between $375 and $516 per hour,

and the average rates for associates were between $235 and $370 per hour. Id. at 348.

She opined that the rates for “government litigation” in particular were even higher. Id. at

348-349. She believed that the rates charged by both of Stafford’s law firms in this case

were “very reasonable,” on the “low end,” and consistent with rates charged in Dayton,

Ohio. Id. at 347-349, 447-448.

{¶ 19} Attorney Tomb also testified at the fee hearing. He expressed familiarity

with legal rates in southwest Ohio, including Dayton and Columbus. In Tomb’s opinion,

the $250 per hour charged to Stafford was “in the bottom third” of accepted attorney-fee

rates. Tr. Vol. I at 65. He explained that this rate was based on Stafford’s being a long-

time client and what he traditionally had charged. Id. at 67. Tomb believed the $325 per

hour rate McTigue & Colombo charged Stafford also was reasonable. Id. at 89.

{¶ 20} Attorney Colombo also testified about the fee issue. He explained that his

firm specializes in “anything pertaining to elections and campaign finance” but also

advertises “public records and open meetings” as a primary area of specialty. Id. at 198.

His firm advises public and private clients on OMA issues. Id. at 198-199. Colombo opined

that his firm’s $325 per hour rate in this case was on the “low end” of what other Columbus

firms would charge. Id. at 207. Colombo testified that his normal rate was $450 per hour

but that he gave Stafford a reduced rate for various reasons. Id. at 207-208. Colombo

testified that his partner, Don McTigue, typically charged $600 per hour. Id. at 208. With -21-

regard to attorney Clinger’s $325 rate in this case, Colombo testified that the firm usually

bills Clinger at a rate of $375 per hour. Id. For someone right out of law school, Colombo

stated that a rate in the “mid-200s is not uncommon.” Id. at 209.

{¶ 21} Finally, attorney Bernard Wharton testified for the respondents about

attorney-fee rates. Wharton, a partner at a law firm in Cincinnati, testified that his practice

included defense work in OMA cases. He charged $275 per hour to review the fee issues

in this case. His rate generally was between $250 and $350 per hour when contracting

with a defense client. Tr. Vol. III at 597. When asked to identify a reasonable hourly rate

for Stafford’s “attorneys in this case,” Wharton responded, “I think $250 an hour is a very

reasonable rate for here in Greene County.” Id. at 606-607. Wharton never opined

specifically about a reasonable rate for attorney Clinger. His opinions about a reasonable

rate were based solely on his experience as a practicing attorney. Id. at 633.

{¶ 22} In our view, it is impossible to review the foregoing testimony and

reasonably conclude that a fair rate for Clinger’s work in this case was $200 per hour.

Although we cannot say that any reduction in Clinger’s $325 per hour rate would be an

abuse of discretion, not one witness provided testimony to support reducing his rate to

$200 per hour. Clinger testified that the partners in his firm usually charged well above

his $325 per hour rate. Fee expert Sussman testified that she could not identify any

instance where $250 per hour would be unreasonable. Attorney Tomb testified that his

firm’s $250 rate for Stafford was low and was based on the firm’s long-term relationship

with him. Tomb believed McTigue & Columbo’s $325 per hour rate was reasonable.

Attorney Colombo testified that he normally billed Clinger out at a rate of $375 per hour. -22-

Wharton, the respondents’ own witness, testified broadly and without differentiation that

$250 per hour was “very reasonable” for Greene County. This statement implied that a

higher rate would be reasonable.1

{¶ 23} Based on the record before us, we hold that the trial court acted

unreasonably, and thereby abused its discretion, in reducing Clinger’s hourly rate from

$325 to $200. In our view, the largest reduction the record reasonably supported was a

reduction to $250 per hour. Accordingly, we sustain Stafford’s first assignment of error

insofar as the trial court erred in reducing Clinger’s rate below $250 per hour.

B. Thirty-Percent Reduction in Attorney-Fee Award

{¶ 24} In his second assignment of error, Stafford contends the trial court abused

its discretion in making a 30-percent reduction to the number of hours for which he would

be entitled to attorney fees.

{¶ 25} The essence of Stafford’s argument is that the trial court engaged in

impermissible “double counting of deductions” by (1) determining that 180.3 of the 475.8

billed hours were incurred unnecessarily and/or were unrelated to this case and then (2)

applying an across-the-board 30 percent reduction to the remaining 295.5 hours. Stafford

maintains that this type of double deduction is contrary to Calypso Asset Mgt., LLC v. 180

Industrial, LLC, 2021-Ohio-1171, 171 N.E.3d 790 (10th Dist.).

{¶ 26} Upon review, we find Stafford’s argument to be without merit. “[T]here is a

1 In State ex rel. Harris v. Rubino, 156 Ohio St.3d 296, 2018-Ohio-5109, 126 N.E.3d 1068, the Ohio Supreme Court approved a $250 per hour fee for attorney Clinger. Although the trial court attempted to distinguish Harris on the basis that it was “more complex,” was expedited, and was in Columbus, that case also took place in 2018 when Clinger was even less experienced. Although our decision herein is not based on Harris, we do find it worth noting the approval of his $250 rate. -23-

strong presumption that the reasonable hourly rate multiplied by the number of hours

worked, which is sometimes referred to as the ‘lodestar,’ is the proper amount for an

attorney-fee award.” Phoenix Lighting Group, LLC v. Genlyte Thomas Group, LLC, 160

Ohio St.3d 32, 2020-Ohio-1056, 153 N.E.3d 30, ¶ 19. Changes to the lodestar should be

made only when a party proves that modification is warranted based on some factor not

already subsumed within the lodestar calculation. Id. at ¶ 19.

{¶ 27} Courts traditionally modified the lodestar by considering things such as “the

time and labor required, the novelty and difficulty of the questions involved, the skill

needed to perform the legal service properly, the likelihood that the acceptance of the

particular employment precluded other employment, the time limitations imposed by the

client or by the circumstances, and the experience, reputation, and ability of the lawyer.”

Id. at ¶ 27. In Phoenix Lighting, the Ohio Supreme Court recognized, however, that such

considerations typically are subsumed in the lodestar analysis itself. Therefore, they

ordinarily provide no justification for departing from the lodestar figure. Id. at ¶ 17-20.

{¶ 28} In the present case, Stafford argues that the trial court improperly deducted

180.3 hours from his attorneys’ bill and then made another 30-percent reduction to the

remaining hours “for basically the same reasons” and without any justification for a further

reduction after the lodestar calculation. See, e.g., Appellant’s Reply Brief at 4, 6.

{¶ 29} Having examined the record, we see no improper “double counting of

deductions.” The magistrate and the trial court appear to have rejected billing for time

involving a municipal-court criminal case and a Greene County domestic-relations case.

They also rejected billing for what they reasonably found to be excessive communication -24-

between attorneys, attorneys reviewing each other’s work, and reviewing social-media

posts and other things unrelated to the OMA claims. When conducting its independent

analysis to determine a lodestar figure, the trial court found that 180.3 hours should be

excluded for excessive attorney communication/review and for other hours worked

unnecessarily.

{¶ 30} As part of its lodestar analysis, the trial court also expressed concern that

the case was overstaffed and that it lingered too long. The trial court noted that the case

ultimately was decided on cross-motions for judgment on the pleadings, meaning that

everything necessary to decide the case could be found in the complaint and the answer.

The trial court expressed particular concern that Stafford’s attorneys billed 121.1 hours

for work on a protective order sought by the respondents. The trial court deemed an

additional 30-percent reduction warranted based on the fact that much of the work

performed—although it may have related in some way to the claims in this case—could

have been avoided if Stafford had sought judgment on the pleading sooner before

incurring additional hours.

{¶ 31} We cannot say the trial court abused its discretion in making the additional

30-percent reduction. That reduction did not appear to involve the same considerations

that led the trial court to reduce the hours billed by 180.3. The trial court essentially found

that Stafford unnecessarily prolonged the case and that certain hours billed, although

perhaps related to the case, could have been avoided if Stafford had sought to end the

case sooner. In this regard, we note that Stafford filed his complaint in September 2019,

and the respondents filed their answer in November 2019. The parties then litigated a -25-

motion for a protective order. In the end, the trial court refused to stop Stafford from

making disparaging remarks about the respondents and their counsel on social media,

but it prohibited him from disclosing information or documents obtained solely through

discovery in this case. After the protective-order issue was resolved, the parties filed

cross-motions for judgment on the pleadings in June 2020, nine months after Stafford

filed his complaint and seven months after the respondents filed their answer. The trial

court resolved the case on those cross-motions, issuing six $500 forfeitures and a

permanent injunction against the respondents.

{¶ 32} Having reviewed the record, we conclude that the trial court did not act

unreasonably in applying a 30-percent reduction to Stafford’s attorneys’ hours. Although

the parties’ dispute the extent to which Stafford was entitled to share information and

make disparaging remarks on social media occurred in the context of this case, it had

little if anything to do with the merits of his OMA claims and did nothing to advance the

resolution of those claims. The parties certainly were entitled to ligate Stafford’s right to

express himself on social media as extensively as they desired, but the trial court acted

within its discretion in refusing to order the respondents to pay for all 121.1 hours of legal

work on a tangential issue that resulted in what fairly may be characterized as a split

decision.

{¶ 33} In short, we are unconvinced that the trial court impermissibly double-

counted deductions when it reduced Stafford’s attorneys’ hours billed for various reasons

and then applied a further 30-percent reduction for a different reason. The record

supported a finding that the case was over-litigated based on the presence of extraneous -26-

or tangential issues arising from personal animus. Tr. Vol. III at 602, 621-623.

{¶ 34} Stafford’s citation to the Tenth District’s decision in Calypso fails to

persuade us otherwise. In Calypso, 2021-Ohio-1171, 171 N.E.3d 790, the trial court

reduced the number of hours billed as part of its lodestar analysis, which involved

determining a reasonable hourly rate and multiplying that rate by the reasonable number

of hours worked. After determining the lodestar figure, the trial court applied a 65-percent

reduction to it based on essentially the same analysis and for the same reasons that led

to the lodestar figure. Not surprisingly, the Tenth District found impermissible double

counting of deductions. Id. at ¶ 39-43. Unlike Calypso, we conclude that different

considerations and concerns justified the trial court’s initial reduction in hours billed and

its additional 30-percent reduction, all as part of its lodestar calculation. The second

assignment of error is overruled.

C. Attorney Fees for Fee Application and Hearing

{¶ 35} In his third assignment of error, Stafford contends the trial court abused its

discretion in refusing to award him attorney fees for the time his attorneys spent in

connection with his fee application and hearing.

{¶ 36} The trial court declined to award such fees on the authority of State ex rel.

Plain Dealer Publishing Co. v. Cleveland, 76 Ohio St.3d 1218, 667 N.E.2d 1232 (1996).

In that case, the Ohio Supreme Court found the relator not entitled to attorney fees for

“fee application preparation.” The Plain Dealer case arose under a prior version of Ohio’s

Public Records Act, R.C. 149.43(C). Stafford contends it has no applicability to his fee

request under the OMA. He also argues that Plain Dealer is distinguishable insofar as -27-

attorney-fee awards were discretionary when it was decided, whereas attorney-fee

awards are mandatory under the OMA unless a statutory exception applies. In his reply

brief, Stafford also asserts that Plain Dealer did not “announce any sort of principle that

fees for fee application preparation are never recoverable under any circumstances.”

{¶ 37} Upon review, we find no error in the trial court’s denial of a fee award for the

time Stafford’s attorneys spent in connection with his fee application and hearing. The

version of R.C. 149.43(C) in effect when Plain Dealer was decided provided for a

judgment “that awards reasonable attorney’s fees” to a prevailing party under the Public

Records Act. The Plain Dealer court reviewed this language and held that attorney fees

for “fee application preparation” were “not within the ambit of R.C. 149.43(C).” Plain

Dealer at 1219. Contrary to Stafford’s argument on appeal, the Ohio Supreme Court did

not suggest that awarding attorney fees for fee application preparation was discretionary

under the Public Records Act. To the contrary, it effectively announced a principle that

such fees were never recoverable because they fell outside the ambit of R.C. 149.43(C).

{¶ 38} The following year, the Ohio Supreme Court extended Plain Dealer to a fee

request under the OMA. In White v. Clinton Cty. Bd. of Commrs., 77 Ohio St.3d 1267,

675 N.E.2d 471 (1997), the prevailing party sought attorney fees under both the OMA

(R.C. 121.22) and the Public Records Act (R.C. 149.43). The version of R.C. 121.22(I)(2)

in effect at the time provided for recovery of “all court costs and reasonable attorney’s

fees.” Similarly, R.C. 149.43 authorized an award of reasonable attorney’s fees. The Ohio

Supreme Court found the appellant entitled to certain costs and attorney fees, but it

denied recovery “for preparation of the fee application.” Id. at 1268. Although the White -28-

court cited Plain Dealer, which had involved a fee request under the Public Records Act,

we find it noteworthy that the appellant in While had sought the fees under both the OMA

and the Public Records Act.

{¶ 39} The Ohio Supreme Court’s refusal to award attorney fees in connection with

the fee applications in Plain Dealer and White supports the trial court’s decision in

Stafford’s case. As in those cases, the version of R.C. 121.22 in effect at the time of

Stafford’s case authorized an award of “reasonable attorney’s fees” to a prevailing party.

The Ohio Supreme Court held attorney fees for fee applications did not come within the

scope of the fee provisions of the Public Records Act or the OMA.2 Stafford points out

that an award of attorney fees was discretionary under the version of R.C. 149.43 in effect

at the time of Plain Dealer, whereas an attorney-fee award was mandatory in his OMA

case. Whether an award of any attorney fees was mandatory or discretionary, however,

does not alter the fact that fees for time spent in connection with Stafford’s fee application

and hearing fell outside the ambit of R.C. 121.22. Accordingly, the third assignment of

error is overruled.

D. Sufficiency of Trial Court’s Explanation

{¶ 40} In his fourth assignment of error, Stafford contends the trial court abused its

discretion in failing to state with sufficient particularity which claimed hours of attorney

work it was accepting, which it was rejecting, and why.

2 We note that the General Assembly subsequently amended the Public Records Act to provide that reasonable attorney fees “shall include reasonable fees incurred to produce proof of the reasonableness and amount of the fees and to otherwise litigate entitlement to the fees.” R.C. 149.43(C) (effective September 29, 2007). No similar amendment has been made to the language of the OMA. -29-

{¶ 41} Stafford argues that neither the magistrate nor the trial court provided a

reasonably specific explanation for the fee-award determination and the reductions that

were made. Although the magistrate did not individually address each of the hundreds of

billing entries, the magistrate did identify the types of entries that were excluded and

stated why. March 18, 2021 Magistrate’s Decision at 9-10. The trial court provided an

even more detailed review. In its 24-page ruling, the trial court addressed each of the

specific types of exclusions challenged by Stafford. January 19, 2022 Decision and

Judgment Entry at 13-18. The trial court went further and specifically examined roughly

250 individual billing entries and explained why they were included or excluded. Id. at 15-

17.

{¶ 42} In his assignment of error, Stafford disputes the trial court’s analysis of a

handful of these entries. He has not persuaded us, however, that the trial court failed to

state the basis for its decision with sufficient particularity. As the respondents note, this

court recently affirmed a much more succinct attorney-fee award in Alegre, Inc. v. Hyde

Component Sales, Inc., 2d Dist. Montgomery No. 29093, 2022-Ohio-542, ¶ 32 (finding no

abuse of discretion in the trial court’s summary determination to award 30 percent of the

requested fees, while noting that “the court below could have been more precise in its

explanation of how it reached $110,000”). The fourth assignment of error is overruled.

E. Stafford’s Expert Witness’ Fees

{¶ 43} In his fifth assignment of error, Stafford contends the trial court abused its

discretion in failing to include an expert’s fee as part of the cost of this litigation. His

argument concerns the expense he incurred to have expert witness Erin Sussman review -30-

the fee application and testify at the fee hearing. Although the OMA is silent regarding

expert fees, Stafford argues that the statute must be construed liberally to allow recovery

of such fees as costs.

{¶ 44} Upon review, we see no error in the trial court’s refusal to include

Sussman’s fee in its award. As set forth above, R.C. 121.22(I) provides for the recovery

of “court costs” and “reasonable attorney’s fees.” The litigation expense Stafford incurred

to hire Sussman was not a court cost or an attorney fee. White at 1268, citing Plain Dealer

at 1219.

{¶ 45} In opposition to our conclusion, Stafford cites workers’ compensation cases.

See Moore v. Gen. Motors Corp., 18 Ohio St.3d 259, 480 N.E.2d 1101 (1985); Kilgore v.

Chrysler Corp., 92 Ohio St.3d 184, 749 N.E.2d 267 (2001). But the statutes at issue in

those cases were broader and by their own terms reasonably encompassed expert-

witness fees. In Moore, the Ohio Supreme Court explained:

The legislature pursuant to R.C. 4123.519 has demonstrated its

intent that a claimant’s recovery shall not be dissipated by reasonable

litigation expenses connected with the preparation and presentation of an

appeal pursuant to R.C. 4123.519. Therefore, we find that the legislature

intended as a matter of public policy to include as part of the “cost of any

legal proceedings authorized by this section” the witness fee paid to an

expert in the preparation and giving of a deposition for presentation and use

in an R.C. 4123.519 appeal. * * *

Moore at 262; see also Kilgore at 187 (observing that “the traditional dichotomy between -31-

‘costs’ and ‘expenses’ in civil cases * * * is not directly applicable in the workers’

compensation area”).

{¶ 46} In our view, the Plain Dealer and White cases are more applicable than

workers’ compensation cases involving different statutory language. Because the

litigation expense Stafford incurred to have Sussman review his fee application and testify

at the fee hearing does not qualify as a “court cost,” we overrule his fifth assignment of

error.

F. Exclusion of Portion of Billing Summary

{¶ 47} In his sixth assignment of error, Stafford contends the trial court abused its

discretion in excluding two pages from McTigue & Colombo’s billing summaries.

{¶ 48} The two pages at issue are pre-complaint time entries involving public-

record requests to the respondents and others, telephone calls and emails related to the

public-record requests, and review of materials obtained pursuant to the public-record

requests. The magistrate denied recovery for the pre-suit billing entries, finding it

“impossible to ascertain what the subject of the public records requests and discussions

with Stafford were.” March 18, 2021 Magistrate’s Decision at fn. 11. On review, the trial

court examined the disputed two pages in light of the hearing testimony and found as

follows:

This Court has reviewed the transcripts of testimony in this case and

notes that Clinger did identify eight public records requests that were issued

on July 12, 2019 as the requests that produced the email communications

that formed the basis of one of the Open Meetings Act violations in this -32-

case. Thus, the hours billed for those public records requests were

reasonable and necessary to the instant action. That said, the remaining

billing entries contained in the first two pages of the McTigue and Colombo

billing summary contain insufficient detail for this court to discern which

public records requests were sent and which discussions with Stafford and

among counsel were had in furtherance of this case as opposed to other

matters. While Clinger testified that the public records requests issued to

third-parties produced additional email communications about the levy

election, the testimony established that the only school officials who were

on the email chains were the Superintendent and a single Respondent

herein. Since the third-party email chains do not involve a majority of the

school board members, they cannot constitute violations of the Open

Meetings Act. Therefore, the hours billed for the third-party public records

requests were not reasonable and necessary to the instant litigation. In

addition, this Court finds that the billing entries related to what was referred

to as the “threatening letter” contained on page two of the McTigue and

Colombo billing summary reflect hours billed that were not reasonable and

necessary to this case, as the “threatening letter” is wholly separate from

this litigation.

Based on the foregoing, the Court modifies the Magistrate’s decision

to include 1.5 hours billed by Derek Clinger to finalize the eight public

records requests identified above and overrules the remainder of Stafford’s -33-

objection herein.

January 19, 2022 Decision and Judgment Entry at 18.

{¶ 49} On appeal, Stafford contends pre-lawsuit public-record requests were

necessary to investigate and uncover the OMA violations underlying his complaint against

the respondents. He explains that the first two pages of billing summaries reflect efforts

made to obtain information for the lawsuit. He insists that it was necessary to “cast a wide

net” to uncover information related to the claims in his complaint. The fact remains,

however, that the trial court found itself largely unable to determine which public-record

requests and subsequent actions actually involved the OMA violations at issue in this

case. Contrary to Stafford’s argument, we are unpersuaded that the trial court was

obligated to compel the respondents to pay attorney fees for all of his attempts to uncover

OMA violations, regardless of the success or failure of those efforts.

{¶ 50} The record reflects a reasoned analysis by the trial court of the first two

pages of McTigue & Colombo’s billing summaries. We see no abuse of discretion. The

sixth assignment of error is overruled.

III. Conclusion

{¶ 51} Having sustained Stafford’s first assignment of error, we reverse the trial

court’s January 19, 2022 judgment awarding him attorney fees in the amount of

$48,562.50 plus court costs. The case is remanded for the trial court to recalculate its

attorney-fee award applying a rate of $250 per hour for attorney Derek Clinger.

............. -34-

EPLEY, J. and LEWIS, J., concur.

Copies sent to:

Jeremy M. Tomb Hillary Jaqua Nicholas E. Subashi Tabitha Justice Hon. Adolfo A. Tornichio