Gauthier v. Gauthier

234 N.E.3d 1168

2024-Ohio-266

Forrest P. GAUTHIER, Plaintiff-Appellant,

v.Su Kang GAUTHIER, Defendant-Appellee,andRobert A. Klingler, Defendant.

APPEAL NO. C-220521

Court of Appeals of Ohio, First District, Hamilton County.

Date of Judgment Entry on Appeal: January 26, 2024

Civil Appeal From: Hamilton County Court of Common Pleas, TRIAL NO, A-1303244.

Thomas E. Grossmann, Cincinnati, for Plaintiff-Appellant.

Robert A. Klingler Co., L.P.A., and Robert A. Klingler, Cincinnati, for Defendant-Appellee.

OPINION.

Crouse, Presiding Judge.

{¶1} Plaintiff-appellant Forrest P. Gauthier ("Forrest") appeals from the trial court’s judgment awarding defendant-appellee Su Kang Gauthier ("Su") $93,583.34 in attorney fees and costs. This appeal is the fourth appeal between Forrest and Su concerning issues that arose from their 2009 divorce, and the third appeal specifically concerning an award of attorney fees.

{¶2} In three assignments of error, Forrest challenges the trial court’s award of fees and costs, contends that his due-process rights were violated, and contests the jurisdiction of this court to hear the appeal. Finding Forrest’s arguments to be without merit, we affirm the trial court’s judgment, bringing a long overdue and much needed resolution to the parties’ dispute over attorney fees and costs.

I. Factual and Procedural Background

{¶3} The prior appeals in this case provide guidance as to which billings submitted by Su’s attorney, defendant Robert Klingler, may permissibly be recovered by Su in an award of attorney fees. It is accordingly necessary to delve into the procedural history of the parties’ litigation in some detail.

{¶4} Forrest and Su were granted a divorce in 2009 by the Warren County Domestic Relations Court. A "Full Text Separation Agreement," which contained a personal-property agreement dividing the parties’ personal property, was incorporated into the divorce decree. The parties subsequently entered into an addendum agreement in 2010 to resolve additional issues that arose over the division of their assets. Covered in the addendum agreement was the disposition of an IRS refund check and a lump-sum payment from Forrest to Su.

{¶5} Forrest filed this action against Su and Klingler in 2013, alleging that. Su had converted property awarded to Forrest under the personal-property agreement and that she had breached the agreement in doing so. The complaint additionally alleged that Su breached the addendum agreement by improperly negotiating an IRS refund check, that she converted the proceeds of that check, and that she breached the addendum agreement by failing to report a portion of a lump-sum payment from Forrest as alimony on her tax return. With respect to Klingler, the complaint alleged that he likewise breached an agreement concerning the negotiation of the IRS refund check and that he converted Forrest’s refund proceeds.

{¶6} The trial court granted summary judgment to Su and Klingler on all claims. This court affirmed the trial court’s grant of summary judgment in Gauthier v. Gauthier, 1st Dist. Hamilton No. C-150037, 2016 Ohio App. LEXIS 4293 (Oct. 21, 2016) ("Gauthier I"). We held that the claims relating to the personal-property agreement arose out of the same transaction or occurrence that was the subject matter of a previously filed contempt action in Warren County and were therefore barred by claim preclusion and the jurisdictional-priority rule. And we held that after viewing the remaining claims in the light most favorable to Forrest, reasonable minds could only find in favor of Su and Klingler.

{¶7} Su and Klingler filed a motion for an award of attorney fees and costs, alleging frivolous conduct under R.C. 2323.51. Su also sought an award of attorney fees and costs pursuant to the addendum agreement, which contained a provision stating that a prevailing party to any action brought to enforce a term of the agreement was entitled to recover reasonable attorney fees and costs arising out of the action.

{¶8} The trial court held a hearing on the motion and awarded Su and Klingler approximately $96,000 in fees and costs, which encompassed the total amount of fees and costs incurred in defending all claims raised in Forrest’s complaint. This award was based on the trial court’s finding that Forrest and his counsel acted frivolously in filing the underlying action. The court did not award fees pursuant to the provision in the addendum agreement. It found that it did not have jurisdiction to enforce that agreement because "this case was disposed as a matter of law under the jurisdictional priority rule."

{¶9} Both Su and Forrest appealed the trial court’s judgment. In Gauthier v. Gauthier, 1st Dist. Hamilton Nos. C-170387 and C-170398, 2018-Ohio-4970, 2018 WL 6566879 ("Gauthier II"), this court reversed the trial court’s judgment. We held that the trial court erred in determining that the conduct of Forrest and his counsel in filing the underlying action was frivolous under R.C. 2323.51. Id. at ¶ 24 and 27. We also held that the court erred in determining that it did not have jurisdiction to award fees under the addendum agreement. Id. at ¶ 36. We remanded the cause to the trial court; to determine whether the addendum agreement entitled Su to attorney fees and costs incurred defending the addendum-agreement claims and, if so, to determine the amount of fees and costs to which Su was entitled. Id. at ¶ 39.

{¶10} Following our remand, on September 25, 2019, Su filed a "motion for award of attorney fees and costs pursuant to the 2010 agreement between the parties." The motion asserted that Su was the prevailing party on the addendum-agreement claims and that she was entitled to fees incurred defending those claims. It further asserted that Klingler had reviewed his time entries and redacted any entries that were not directly related to the addendum-agreement claims.

{¶11} In support of the motion, Klingler provided a "second supplemental affidavit." The affidavit stated that Klingler had reviewed various documents in the case, including Forrest’s deposition, defendants’ motion for summary judgment, and Forrest’s reply thereto, and had determined what percentages of each document dealt with the personal-property claim versus the addendum-agreement claims. The affidavit stated that Klingler had broken down any "block billed" entries in his billing records into single-task entries, and that he had redacted any billing entries that were not directly related to the addendum-agreement claims. After these revisions, Su sought $81,014 in attorney fees "which cannot be easily divided between addendum agreement claims and non-addendum agreement claims" and $5,099.50 in costs. The affidavit set forth Klingler's opinion "that at least two-thirds of this remaining attorney fee amount was directly related to and necessary for the defense of the addendum-related claims." (Emphasis sic.)

{¶12} In March 2020, Su filed updated time records documenting the additional fees and costs incurred. Klingler also filed a "third supplemental affidavit," stating that the defendants, for the time billed up to November 14, 2018, "were seeking two-thirds of the total fees and costs they incurred, to account for the First District Court of Appeals ruling that fees and costs were not recoverable for ‘frivolous conduct’ on the personal property claims, but only contractually, for the ‘addendum agreement’ claims." But the affidavit specified that for the time billed after November 14, 2018, defendants were seeking recovery in full for all time billed because "all attorney time spend [sic] after that date was directed only to the recoverable ‘addendum agreement’ claims."

{¶13} The affidavit further stated that Klingler had updated his billing rate for all entries, regardless of when the actions described therein were performed, from an hourly rate of $425 to a rate of $495. The affidavit explained that Klingler’s hourly rate was $495 from January of 2017 until it was raised to $545 in January of 2019. Klingler did not seek to apply this most recent rate. The affidavit stated, "It is appropriate to use current billing rates in fee applications for past time expended on a case, to account for a delay in payment over years."

{¶14} The affidavit specifically set forth the amount of attorney fees sought for two thirds of the time billed before November 14, 2018, and for all time billed after that date, along with the requested costs. Altogether, Su requested an award of $93,583.34.

{¶15} After determining that Su was the prevailing party on Forrest’s addendumagreement claims and that she was entitled to attorney fees and costs incurred in defending those claims, the trial court conducted a hearing to determine the amount of fees and costs to award. In addition to Klingler’s affidavit, Su presented affidavits from two expert witnesses, Lawrence Glassmann and Lynn Pundzak, stating that Klingler’s billing records were consistent with the work in the case and that the rates billed were reasonable. Pundzak opined on Klingler’s approach of only seeking two thirds of the time billed up to a certain date, stating that it was "a reasonable, perhaps even overly-generous, approach." She further approved of Klingler’s adjustment of his hourly rate to $495, stating "hourly rates should be adjusted to current rate levels due to the fact that compensation for fees and expenses may not come until the end of the case."

{¶16} At the hearing, Forrest’s counsel cross-examined Pundzak on the reasonableness of Klingler’s fees and costs. Forrest attempted to call Su as a witness, but the trial court granted an oral motion to quash his subpoena of Su. The trial court also refused to allow Forrest to call Klingler as a witness and disallowed testimony by Forrest’s counsel. The trial court awarded Su $93,583.34 in attorney fees and costs. After the hearing, Forrest gave an extensive proffer of the exhibits and testimony that he was disallowed from...