Bales v. Forest River, Inc.

2019 Ohio 4160

ROGER BALES, Plaintiff-Appellee/Cross-Appellant, v. FOREST RIVER, INC., Defendant-Appellant/Cross-Appellee.

No. 107896

COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

October 10, 2019

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-17-875918

Appearances:

Burdge Law Office Co., L.P.A. and Elizabeth Ahern Wells, Ronald L. Burdge, and Scarlett M. Steuart, for appellee/cross-appellant.

Bruns, Connell, Vollmar & Armstrong, L.L.C. and Kevin C. Connell, Adam C. Armstrong, and Tara F. Taylor, for appellant/cross-appellee.

EILEEN A. GALLAGHER, J.:

{¶ 1} Defendant-appellant/cross-appellee Forest River, Inc. ("Forest River") and plaintiff-appellee/cross-appellant Roger Bales appeal from a decision of the trial court awarding Bales $47,637.02 in attorney fees and litigation costs, in connection with the parties' settlement of claims Bales had brought against Forest River for alleged violations of the Ohio Consumer Sales Practices Act and the Magnuson Moss Warranty Act. Forest River contends the trial court failed to provide a sufficient explanation of its attorney fee award and abused its discretion by awarding Bales too much in attorney fees and litigation costs. Bales contends that the trial court abused its discretion by awarding him too little in attorney fees and litigation costs. Finding no merit to the parties' arguments, we affirm the decision of the trial court.

Factual Background and Procedural History

{¶ 2} In January 2016, Bales purchased a 2014 Wildwood travel trailer manufactured by Forest River (the "RV") from Ruff's RV Center in Euclid, Ohio. After he purchased it, Bales had a number of problems with the RV that he attempted to have repaired. On February 14, 2017, Bales filed suit against Forest River, asserting claims of breach of express and implied warranties, violations of the Ohio Consumer Sales Practices Act, R.C. 1345.01 et seq., ("CSPA") and violations of the Magnuson Moss Warranty Act, 15 U.S.C. 2301 et seq., ("MMWA") (collectively, the "RV warranty claims") based on various alleged "malfunctions, defects and problems" he had experienced with the RV, including:

electrical issues, frame and axle defects, trailer does not sit level, abnormal and excessive tire wear, defective entertainment center, cook top vent flap replaced, finish cracking under power panel to fridge, finish flaking off of silverware drawer, finish cracking under bedroom sliding doors, bedroom door keeps falling off track, stove front burnernot igniting, foam under sofa seat collapsed, large bow in bathroom wall, tongue jack malfunctions, clips broken on bathroom vent, dinette skirt falling off, outside door won't stay latched, bumper panel had to be repaired, and more.

{¶ 3} Bales alleged that Forest River had breached its warranties because the RV was "out of service for reason of repair" for "more than 100 days in the first year." He sought rescission of the contract and/or damages or other statutory remedies, plus "expenses of suit and litigation," interest from the date of the sales contract and reasonable attorney fees and costs. Forest River filed an answer denying the material allegations of the complaint and asserting numerous defenses. Forest River denied that the RV was defective and claimed Bales had damaged the RV. After the parties completed fact and expert discovery, the case was set for trial.

{¶ 4} On June 27, 2018, the day trial was scheduled to begin, the parties reached a settlement. Forest River agreed to buy back the RV and to pay Bales' "reasonable attorney fees and litigation costs." As stated in the "agreed entry resolving the case" (the "agreed entry"):

The parties have resolved this matter in that Defendant Forest River, Inc. has agreed to buy back the RV, and to pay Plaintiff's reasonable attorney fees and litigation costs, to be determined by [the] Court in a subsequent Motion for Attorney Fees and Litigation Costs. Plaintiff Roger Bales and Defendant Forest River, Inc. further stipulate and agree that Roger Bales is the prevailing party under all claims in this case for the purpose of seeking attorney fees and litigation costs under R.C. 1345.09(F) and 15 U.S.C. 2310(d).

{¶ 5} On July 13, 2018, Bales filed a motion for attorney fees and ligation costs. Bales requested that the trial court award him $44,417.25 in attorney fees and$10,499.74 in litigation costs incurred in litigating the RV warranty claims. The $44,417.25 in requested attorney fees were broken down as follows:

 Timekeeper Total Hours Hourly Rate Total  Attorney Burdge  0.9 hours  $350.00  $ 360.001  Attorney Wells  125.99 hours  $275.00  $34,647.25  Attorney Steuart  50.20 hours  $175.00  $ 8,785.00  Paralegal  5.0 hours  $125.00 $ 625.00     $44,417.25 

{¶ 6} The $10,499.74 in requested litigation costs consisted of $6,000 in expert costs ($4,500 for an expert inspection and $1,500 for expert testimony), $258.95 in filing fees, $31.00 in facsimile transmission costs, $24.10 for delivery service fees, $550.24 for trial-related hotel and meal expenses, $1165.90 in mileage and parking costs, $49.87 in printing costs, $671.23 for photographs, $21.00 in subpoena fees and $1,727.45 in transcript costs.

{¶ 7} In support of his motion, Bales attached: (1) a copy of the agreed entry; (2) affidavits from Attorneys Ronald Burdge, Elizabeth Ahern Wells and Scarlett Steuart — the three attorneys from Burdge Law Office Co., L.P.A. (the "Burdge law firm") who worked on the case — along with their curriculum vitaes, information regarding their education and experience and itemized billing records; copies of documents related to other cases involving the Burdge law firm in whichtheir clients received significant attorney fee awards; (3) a copy of an affidavit from Attorney Krista Ray, dated October 14, 2010, in which she opined $350 was a reasonable hourly rate for Attorney Burdge;² (4) copies of Forest River's pretrial statement and responses to Bales' third set of requests for admissions and (5) a copy of a "United States Consumer Law Attorney Fee Survey Report 2015-2016" edited by Attorney Burdge.

{¶ 8} In his affidavit, Attorney Ronald Burdge averred that Bales had paid a $2,500 retainer and that the Burdge law firm had thereafter agreed to represent Bales in this matter on "a contingent hourly rate fee shifting basis," i.e., if Bales did not prevail, the Burdge law firm had no right to recover attorney fees from Bales beyond the retainer, and that Bales was obligated to pay all litigation expenses.Attorney Burdge further averred that the billing statements attached to his affidavit were "[t]rue and accurate itemized details" of his firm's billing records for the case, that "[b]ased on [his] education, training and experience," the hourly rates charged for the legal services he and the other attorneys and paralegal rendered in the case were reasonable and that the time and expenses billed on the case were reasonable and necessary. Attorneys Wells and Steuart included similar averments in their affidavits. In her affidavits, Attorney Wells further detailed the history of the case, including her efforts to resolve the parties' dispute and the fact that her attorney trial time had been previously awarded in other cases.

{¶ 9} Forest River opposed Bales' motion, asserting that the amount of the recovery — i.e., a loan payoff of $14,672.04 in exchange for title to the RV plus a payment of $2,372.32 to Bales — "did not justify fees and expenses of over $50,000" and that the trial court should award Bales only $7,500 in attorney fees because that amount was "more in line" with the '"amount involved and results obtained'" under Bittner v. Tri-County Toyota, Inc., 58 Ohio St.3d 143, 569 N.E.2d 464 (1991).

{¶ 10} Specifically, Forest River argued that plaintiff's counsel's hourly rates should be adjusted downward because the issues in the case "were not novel or difficult" for the Burdge law firm, "which specializes in consumer law," and that plaintiff's counsel presented no "objective" or "other corroborating evidence" beyond their self-serving affidavits that their hourly rates were "reasonable and customary for similar legal services in the locality." Forest River also argued that it should not be charged (1) for $12,480.25 in attorney travel time billed by Bales'counsel to travel to Cleveland from their offices in Dayton or (2) for $831.25 in allegedly "duplicative work" billed by Attorneys Wells and Steuart "for their time to appear on the morning of trial and participate in negotiations that resulted in the settlement of the case."

{¶ 11} With respect to the $10,499.74 in requested litigation costs, Forest River argued that Bales' expert witness expenses and attorney travel expenses were excessive and not recoverable under the CSPA or the MMWA. Forest River requested that the trial court award Bales only $2,783.60 in litigation costs to cover the "ordinary expenses of litigation such as subpoena fees, deposition transcripts, postage and copying costs." In support of its opposition, Forest River submitted a copy of a powerpoint presentation showing damage Bales allegedly caused to the RV and copies of journal entries from two Franklin County Common Pleas cases in which the trial court awarded plaintiffs represented by the Burdge law firm significantly lower attorney fee awards than had been requested.

{¶ 12} In response, Bales filed a reply in which he requested a 15 percent enhancement of his attorney fees under Bittner, 58 Ohio St.3d 143, 569 N.E.2d 464. In its surreply, Forest River asserted that any enhancement of Bales' attorney fees would be "improper."

{¶ 13} The trial court scheduled a hearing on the motion for attorney fees and litigation costs for September 26, 2018. The hearing did not proceed as scheduled. Instead, the parties agreed that the trial court could rule on Bales'motion for attorney fees and litigation costs based on the parties'...