Alcorso v. Correll, 110218

2021-Ohio-3351

STACY ALCORSO, Plaintiff-Appellee, v. JASON B. CORRELL, Defendant-Appellant.

No. 110218

Court of Appeals of Ohio, Eighth District, Cuyahoga

September 23, 2021

Civil Appeal from the Rocky River Municipal Court Case No. 17 CVF 2706

Ali Mustafa, for appellee.

Law Offices of Brent L. English and Brent L. English, for appellant

JOURNAL ENTRY AND OPINION

EILEEN A GALLAGHER, J.

{¶ 1} Defendant-appellant Jason Correll appeals from an order of the Rocky River Municipal Court ordering him to pay plaintiff-appellee Stacy Alcorso^[1] $26, 825 in attorney fees taxed as costs, following a landlord-tenant dispute in which Correll failed to return a portion of Alcorso's security deposit. Correll contends that he was denied due process because he did not receive notice of the "trial" scheduled to determine the amount and reasonableness of Alcorso's attorney fees and that the trial court abused its discretion by awarding "excessive" attorney fees.

{¶ 2} For the reasons that follow, we affirm.

Procedural and Factual Background

{¶ 3} Alcorso rented a home in Fairview Park, Ohio from Correll. Pursuant to a written lease agreement, Alcorso paid Correll a $1, 200 security deposit. At the end of the lease term, Alcorso vacated the premises. Correll refused to return her full security deposit, claiming that she had damaged the premises.

Fee Agreement

{¶ 4} On August 21, 2017, Alcorso entered into a "civil flat fee agreement" with Attorney Ali Mustafa to represent her in connection with her efforts to recover her security deposit (the "fee agreement"). Although the fee agreement was labeled a "flat fee agreement," it was not, in fact, a flat fee agreement. The fee agreement provided in relevant part:

2.Because of the specific nature of this matter, attorney is in a position to quote a fee for its professional services billable by the hour.

3.Attorney's fee for representing client in this matter shall be $250 per hour. This will acknowledge receipt of $350.00 as a retainer, which is to be applied towards the total fee. If the case proceeds to trial, attorney's fee shall be an additional $1, 500.00 per day. In all cases attorney's fee shall be paid in full by the date of the final disposition of the case.

* * *

5. Invoices for legal services rendered and costs advanced or incurred may be issued monthly and are payable upon receipt. Interest at the rate of 1.5 percent per month will be added to the balance due on amounts which remain unpaid sixty (60) days or more.

Litigation Commences

{¶ 5} On December 26, 2017, Alcorso filed a complaint in the Rocky River Municipal Court, seeking the return of her $1, 200 security deposit, double damages and attorney fees pursuant to RC. 5321.16. On May 31, 2019, Correll was granted leave to file a counterclaim seeking $4, 000 for additional damages to the premises, plus attorney fees, litigation expenses and costs. Following discovery, a mediation, summary judgment filings and multiple conferences and continuances, a two-day jury trial was held on July 15, 2019. The jury found in favor of Alcorso and against Correll on Alcorso's claim, awarding her $446.19 in damages. The jury also found in favor of Alcorso on Correll's counterclaim.

{¶ 6} On August 6, 2019, Alcorso filed a motion to tax costs and a motion for attorney fees. Alcorso sought to recover $1, 143.06 in costs (for fees paid to the court reporter for attendance at Correll's deposition Correll's deposition transcript and fees paid to an expert witness) and $11, 150 in attorney fees (for 44.6 hours of attorney time at a rate of $250 per hour through July 31 2016). In support of her motion for attorney fees, Alcorso submitted an affidavit (the "initial affidavit") and "time sheet" from her attorney, Ali Mustafa. In his affidavit, Attorney Mustafa averred that he had been admitted to the practice of law in Ohio in 2014, that he has "experience in residential landlord and tenant litigation," that he has "personal knowledge of asserting similar claims under similar circumstances" and that he was "familiar with the hourly rates charged by local practitioners in North East [sic] Ohio and the time incurred in prosecuting and defending residential litigation proceedings." Attorney Mustafa further averred that $250 was a "reasonable] hourly rate for legal services provided on residential litigation in North East [sic] Ohio," that "44.6 hours is a reasonable amount of time to research, review, and produce the documents, pleadings, arguments and time spent during [d]eposition and [t]rial, that were germane to this proceeding and presented to the Court" and that the work performed was "reasonable and necessary for the proper representation" of Alcorso. Attorney Mustafa also averred that "[b]ecause [his] time spent on this file well exceeded] the expected time in the ordinary course of similar litigation," he had "only included the time spent in [d]rafting, researching, review, production of documents and pleadings, and the time spent in the depositions and [t]rial" in the fee request. Attorney Mustafa's itemized "time sheet" listed the date, time spent and a general description of each of the tasks performed. These items were also set forth in a chart included in Attorney Mustafa's affidavit. Correll did not file an opposition to Alcorso's motion to tax costs or her motion for attorney fees.

{¶ 7} Following a hearing on the motions, on September 23, 2019, the trial court issued a journal entry denying the motion for attorney fees because the matter had been submitted to the jury. The trial court also denied the motion to tax costs but noted that Alcorso had been previously awarded $525 in court costs in the trial court's July 23, 2019 journal entry setting forth the jury's verdict.

The Initial Appeal

{¶ 8} Alcorso appealed, arguing that the trial court's judgment was against the manifest weight of the evidence, that the trial court had abused its discretion in refusing to tax her attorney fees and litigation expenses as costs and that the trial court had erred in failing to award her statutory double damages. This court affirmed the trial court's judgment in part and reversed it in part. This court affirmed the trial court's denial of Alcorso's motion to tax her expert witness fee and deposition expenses as costs but held that the trial court had erred in failing to award her double damages and reasonable attorney fees pursuant to R.C. 5321.16(C). The court remanded the matter to the trial court to impose statutory double damages and to tax reasonable attorney fees as costs. Alcoroso v. Correll, 2020-Ohio-4752, 159 N.E.3d 924 (8th Dist.) ("Alcoroso I").

Notice of Hearing on Attorney Fees

{¶ 9} After the case was remanded, on October 16, 2020, the trial court issued a notice of trial assignment setting an "oral hearing" for November 18, 2020. Both Attorney Mustafa and Correll's counsel were listed as "ccs." on the notice of trial assignment. The notice stated in bold, underlined, all-caps type that "ATTORNEY MUST NOTIFY DEFENDANT OF ALL COURT DATES, AS DEFENDANT WILL NOT RECEIVE NOTIFICATION FROM THE COURT." The trial court's docket indicates that on October 16, 2020, copies of the notice of trial assignment were sent "to all parties involved."

{¶ 10} When neither Correll nor his counsel appeared for the November 18, 2020 hearing, the trial court attempted to contact Correll's counsel. The trial court stated:

We got in contact with [Correll's counsel's] office. We first - his office advised that he didn't receive notice, but there was an email notice that went to his office.

And I inquired whether he'd be able to get out here today and he cannot. And there's other issues that were not - I'm not going to go into the record on relative to [Correll's counsel] and his availability.

{¶ 11} Correll did not move for a continuance. The trial court indicated that the hearing would proceed as scheduled.

Hearing on Attorney Fees

{¶ 12} At the November 18, 2020 hearing, Alcorso sought, in addition to the $11, 150 attorney fees she had previously requested (1) an additional $3, 000 for two days of trial pursuant to the fee agreement and (2) an additional $16, 025 in attorney fees related to work Attorney Mustafa had performed in connection with the appeal in Alcoroso I and in preparation for the hearing on attorney fees.

{¶ 13} Attorney Mustafa and Attorney Christopher Mulvaney testified at the hearing. In addition, Alcorso presented three exhibits at the hearing: (1) an undated unnotarized copy of a document purporting to be an affidavit executed by Attorney Mustafa relating to work performed from May 14, 2018 through July 31, 2019 (Exhibit A), ^[2] an affidavit executed by Attorney Mustafa dated November 17, 2020, relating to work performed from September 23, 2019 and November 15, 2020 (Exhibit B) and (3) a copy of the fee agreement between Alcorso and Attorney Mustafa (Exhibit C).^[3]

{¶14} Attorney Mulvaney testified that he has been licensed to practice since 2010 and that his practice involves "[primarily real estate law" with a "strong focus" on landlord/tenant law. He indicated that $250 is a reasonable hourly rate to represent a landlord or a tenant "in a case such as this" in Rocky River, Ohio. Attorney Mulvaney testified that he was familiar with Attorney Mustafa's work in landlord/tenant cases, that Attorney Mustafa was opposing counsel in a matter pending in the Lorain County Court of Common Pleas and that Attorney Mustafa's skill level merited a $250 hourly rate. Attorney Mulvaney discussed the requirements of R.C. 5321.16. He explained that the purpose of the mandatory double damages and attorney fees provisions in R.C. 5321.16 is to "level the playing field" between tenants, who are commonly unrepresented...