Ashtabula Cnty. Airport Auth. v. Rich

2019 Ohio 5308

ASHTABULA COUNTY AIRPORT AUTHORITY, et al., Plaintiff-Appellee, v. JOSEPH A. RICH, Defendant-Appellant.

CASE NO. 2019-A-0019

COURT OF APPEALS ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY, OHIO

December 23, 2019

OPINION

Civil Appeal from the Ashtabula County Court of Common Pleas, Case No. 2015 CV 0097.

Judgment: Affirmed.

David E. Pontius and Jason L. Fairchild, Andrews & Pontius LLC, 4810 State Road, P.O. Box 10, Ashtabula, OH 44005 (For Plaintiff-Appellee).

David A. McGee, Svete & McGee Co., LPA, 401 South Street, Building 1A, Chardon, OH 44024 (For Defendant-Appellant).

MATT LYNCH, J.

{¶1} Defendant-appellant, Joseph A. Rich, appeals from the judgments of the Ashtabula County Court of Common Pleas, granting plaintiff-appellee, the Ashtabula County Airport Authority, $33,135 in attorney's fees, denying Rich's request for summary judgment, and clarifying the scope of the attorney's fees hearing. For the following reasons, we affirm the judgments of the court below.

{¶2} On February 17, 2015, Ashtabula Airport Authority and its president, Dwight Bowden, filed a Complaint against Rich in the Ashtabula County Court of Common Pleas, alleging that he had breached the terms of his lease agreement with Ashtabula Airport Authority. After being notified via letter that his tenancy had been terminated effective September 30, 2013, Rich failed to vacate until December 2014. The Complaint raised claims for Breach of Contract for Unpaid Rent and Indemnification for Attorney's Fees. In Rich's Answer, he argued, inter alia, that the claims were "barred by * * * the rules governing compulsory counterclaim."

{¶3} Ashtabula Airport Authority and Bowden filed a Joint Motion for Partial Summary Judgment on September 2, 2015, in which they argued Rich failed to vacate and pay rent payments from October 1, 2013 to December 15, 2014, and the lease's indemnification clause required Rich to pay for attorney's fees incurred from defending prior suits in relation to the lease and Rich's lack of compliance. Rich filed a Motion for Summary Judgment and Brief in Opposition on January 14, 2016.

{¶4} The facts giving rise to this lawsuit were demonstrated through testimony and exhibits presented on summary judgment. Pursuant to Rich's testimony, he signed an agreement to lease the hangar for 2013. He subsequently suspended his electricity and began using a generator in the hangar, in violation of Airport Rules and Regulations. An August 13, 2013 letter from the Ashtabula Airport Authority's counsel to Rich indicated that his tenancy would be terminated on September 30, 2013, for violating the lease and Airport Rules. Rich agreed that his plane remained in the hangar from October 2013 through December 15, 2014, when he vacated, but he paid no rent for those months.

{¶5} On October 7, 2013, in Ashtabula County Court of Common Pleas Case No. 2013 CV 756, Rich filed a Complaint against Ashtabula Airport Authority, Bowden,and the Ashtabula County Airport Authority Board of Trustees, raising claims for Breach of Contract, Discriminatory Conduct, Breach of Good Faith, Declaratory Judgment, Breach of Fiduciary Duty, Fraud, and a violation of 42 U.S.C. §§ 1983 and 88, claims relating to the attempted termination of the lease. On December 12, 2014, the court dismissed Rich's claims, holding that Ashtabula Airport Authority had a right to terminate the lease.

{¶6} Ashtabula Airport Authority filed a Complaint on October 25, 2013, in the Ashtabula County Court, Eastern Division, asking for restitution of the premises and rent. The court dismissed the matter on November 25, 2013, as being raised in the incorrect court, which decision was affirmed on appeal. Ashtabula Cty. Airport Auth. v. Rich, 11th Dist. Ashtabula No. 2013-A-0069, 2014-Ohio-4288.

{¶7} In the present matter, based on the foregoing facts, the trial court issued a March 30, 2016 Judgment Entry, granting the Ashtabula Airport Authority and Bowden's Motion for Partial Summary Judgment and denying Rich's Motion for Summary Judgment. In addition to finding the rent claim was properly raised, the court concluded the lease's indemnification clause was enforceable. Following a hearing on the issue of damages at which expert testimony was presented regarding the reasonableness of attorney's fees, the court awarded Ashtabula Airport Authority $57,575 for attorney's fees and $3,132.38 for unpaid rent, and Bowden $101,930 for attorney's fees.

{¶8} On appeal, Rich argued that the claim for rent and request for attorney's fees were compulsory counterclaims that should have been raised in the prior litigation, in Case No. 2013 CV 756. This court held that the rent claim was not compulsory since it had not accrued at the time Rich commenced litigation in 2013. Ashtabula Cty. AirportAuth. v. Rich, 2017-Ohio-9263, 103 N.E.3d 51, ¶ 31 (11th Dist.). As to attorney's fees, we held:

Since the issue of attorney's fees in the underlying proceeding was a compulsory counterclaim [in Case No. 2013 CV 756], we reverse the court's judgment awarding attorney's fees in favor of the appellees. However, as to the award of rent in the present proceedings, since it was properly raised in this matter, attorney's fees that were expended in litigating that claim only may be awarded. On that basis, we remand to the trial court for the sole issue of determining and awarding the amount of attorney's fees expended only in relation to the collection of rent owed by Rich to the Ashtabula Airport Authority that was sought in the present lawsuit.

Id. at ¶ 41.

{¶9} On remand, Rich filed a June 22, 2018 Motion for Summary Judgment, arguing that no attorney's fees should be ordered since the airport had refused to accept his rent payments. Ashtabula Airport Authority filed its Brief in Opposition and Motion for Summary Judgment on June 29, 2018, requesting attorney's fees in the amount of $33,030.

{¶10} On October 12, 2018, the court issued a Judgment Entry denying the motions. It found Rich's argument had already been rejected and lacked merit. As to Ashtabula Airport Authority, it found that the itemized billings provided "do not clearly demonstrate that the work cited was performed in order to collect rent" and that "[f]urther context is necessary for the Court to make this determination."

{¶11} Ashtabula Airport Authority filed a motion for clarification on what matters would be presented at the scheduled damages hearing. In an October 19, 2018 Judgment Entry, the court clarified that no testimony would be permitted as to the reasonableness and necessity of attorney's fees and that the purpose of the hearing was to "determine and award the specific amount of attorney's fees that were expended inrelation to the collection of rent owed by Rich to the Ashtabula County Airport, as opposed to those that were expended in relation to this entire matter."

{¶12} On December 14, 2018, the trial court held the hearing on attorney's fees, again clarifying that it was for the limited purpose of considering fees in relation to the collection of rent. The court stated it would not be taking expert testimony as to the reasonableness of the fees, which testimony had been given at the prior damages hearing.

{¶13} Attorneys for Ashtabula Airport Authority, Jason Fairchild and David Pontius, testified regarding the work they and their firm did on the matter relating to the collection of attorney's fees. Rich's counsel objected to Ashtabula Airport Authority attorneys acting as witnesses and providing expert testimony, which objections were overruled.

{¶14} Fairchild testified as to each item billed for the collection of back rent, which charges began on December 15, 2014, and proceeded to the conclusion of the matter. Charges included drafting legal documents filed in the present case, conferences with Pontius and Bowden's counsel, and preparation for the deposition of Bowden. Fairchild testified that he collaborated with Bowden's counsel on the matter. He believed that all entries on the billing statement were for work that related to the collection of attorney's fees and related indemnification.

{¶15} Pontius presented similar testimony as to billing entries for his work. He noted that several entries included on the bill, however, should be excluded from the fee award as they related to the appeal in prior proceedings or were unrelated to rent or attorney's fees (including reviewing an insurance plan obtained because of litigation withRich and an e-mail sent to Bowden's counsel unrelated to rent collection). Pontius emphasized that e-mails to Bowden were necessary as he was the "principal individual that I was required to report to at each and every stage of the litigation."

{¶16} On January 9, 2019, the trial court issued a Judgment Entry in which it detailed the testimony presented regarding fees and found that the attorneys for Ashtabula Airport Authority spent 220.9 hours "in the pursuit of back rent against the defendant" at a rate of $150 per hour. It further found that the award of fees was reasonable given that Rich raised irrelevant defenses and created "unreasonable obstacles" during the litigation. The court awarded attorney's fees in the amount of $33,135.

{¶17} Rich timely appeals and raises the following assignments of error:

{¶18} "[1.] The Trial court erred in admitting, and basing its judgment of January 9, 201[9] * * *, upon, evidence beyond the mandate of this Court upon remand of December 26, 2017, to wit '...the sole issue of ... the amount of attorney fees expended only in relation to the collection of rent... in the present lawsuit' * * *.

{¶19} "[2] The Trial court erred in denying * * * Appellant, Rich's, Motion for Summary Judgment * * * herein as a determination of '... the sole issue of ... the amount of attorney fees expended only in relation to the collection of rent' * * * required that any such claimed fees be reasonable, necessary and proportional, Prof.Cond.R. 1.5(a).

{¶20} "[3.] The trial court erred in...