[Cite as United Assn. of Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry v. Jack's Heating, Air Conditioning & Plumbing, Inc.,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HARDIN COUNTY

UNITED ASSOCIATION OF JOURNEYMAN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY, LOCAL UNION NO. 776, CASE NO. 6-12-06 PLAINTIFF-APPELLANT,

v.

JACK’S HEATING, AIR CONDITIONING & PLUMBING, INC., OPINION

DEFENDANT-APPELLEE.

Appeal from Hardin County Common Pleas Court Trial Court No. CV 20081164

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

Date of Decision: January 22, 2013

APPEARANCES:

Joseph M. D’Angelo for Appellant

William E. Clark for Appellee Case No. 6-12-06

ROGERS, J.

{¶1} Plaintiff-Appellant, United Association of Journeymen and

Apprentices of the Plumbing and Pipe Fitting Industry, Local Union Number 776

(“Local 776”), appeals the judgment of the Hardin County Court of Common

Pleas denying its request for attorney fees and court costs. On appeal, Local 776

argues that its introduction of an itemized billing statement, two Ohio State Bar

Association (“OSBA”) publications regarding attorney billing practices, and the

testimony of its counsel should have led the trial court to grant its request for

attorney fees and court costs. For the reasons that follow, we affirm in part and

reverse in part the trial court’s judgment.

{¶2} In May 2008, Local 776 filed a complaint against Defendant-

Appellee, Jack’s Heating, Air Conditioning and Plumbing, Inc. (“Jack’s”),

alleging that Jack’s violated Ohio’s prevailing wage law. On July 9, 2010, the

trial court granted Local 776’s summary judgment on its claims that Jack’s

violated the prevailing wage law. In its judgment entry, the trial court stated that

Local 776 was entitled to attorney fees, but it failed to actually order that Jack’s

pay such attorney fees.

{¶3} Both parties appealed to this court. On January 18, 2011, we affirmed

the trial court’s grant of summary judgment in Local 776’s favor. But, we also

reversed the trial court on the basis that it failed to order that Jack’s pay Local

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776’s attorney fees and court costs. The matter was then remanded to the trial

court. See United Assn. of Journeymen & Apprentices of the Plumbing & Pipe

Fitting Industry, Local Union No. 776 v. Jack’s Heating, Air Conditioning &

Plumbing, Inc., 3d Dist. No. 6-10-11,

(“Jack’s I”).

{¶4} On remand, the trial court conducted a hearing on May 3, 2011 to

determine the issue of attorney fees. Local 776’s attorney throughout the course

of these proceedings was Joseph D’Angelo. During the presentation of evidence,

D’Angelo introduced the following exhibits: (1) an itemized bill from his law firm

for its services on behalf of Local 776 in this matter (the “Bill”); (2) an OSBA

publication entitled “The Economics of Law Practice in Ohio in 2010” (the “2010

Survey”); and (3) another OSBA publication called “The Economics of Law

Practice in Ohio in 2007” (the “2007 Survey”).

{¶5} The Bill details the work that D’Angelo and other members of his law

firm purportedly performed during the course of this action from May 21, 2008

until November 30, 2010. Each time entry describes the task performed and

includes the initials of the firm employee who performed it. However, the Bill

does not include a key that matches the initials with the name and position of the

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firm employees who performed the described work.1 In total, the Bill lists

approximately 400 hours of work performed and $65,537.55 in fees and costs.

When D’Angelo offered the Bill into evidence, he was not under oath. At that

time, he stated that he thought “$65,000 [was] a reasonable allotment of time and

expense for the undertaking.” May 3, 2011 Hearing Transcript, p. 5.

{¶6} The OSBA publications provide the results of online surveys

distributed to Ohio law firms regarding their billing practices. Both publications

provide the median and average billing rate for all Ohio law firms that responded.

They also break down the median and average billing rate based on the size,

location, and practice area of the responding law firms. Further, the publications

list the median and average billing rate for partners and associates based on firm

size.

{¶7} The 2010 Survey covers the billing practices of Ohio law firms in

2009 while the 2007 Survey covers 2006 trends. A review of the 2010 Survey

reveals the following relevant information regarding billing practices in 2009:

Median Hourly Rate (all firms): $200; Median Hourly Rate (firms with 3-6 attorneys): $198; Median Hourly Rate (firms in Northwest region): $175; Median Hourly Rate (firms in Toledo): $185; Median Hourly Rate (general practice firms): $160;

1 We note that D’Angelo filed a brief with the trial court that identifies the names and positions of the employees who are shown as billing time. These identifications, however, are merely listed in the argument section of the brief and not included in evidentiary material, such as an affidavit. Further, there was no testimony during the hearing as to these identifications. Consequently, there is no evidence in the record identifying the names and positions of the employees whose initials are included in the itemized bill.

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Median Hourly Rate (labor law firms representing unions): $150; Median Hourly Rate (partners in firms with 2-7 partners): $200; Median Hourly Rate (associates in firms with 2-7 partners): $175. (Exhibit 2, p. 23-24).

Meanwhile, the 2007 survey provides the 2006 median hourly rate for each of

these categories. When introducing the publications, D’Angelo offered no

testimony indicating which median hourly rate was appropriate to consider when

assessing the reasonableness of his request for attorney fees.

{¶8} After introducing these exhibits into evidence, D’Angelo rested on

behalf of Local 776. Jack’s then called D’Angelo as though on cross-examination.

At that time, the trial court placed D’Angelo under oath. His testimony revealed

that his office is located in Toledo and that he is a partner in a law firm with five

attorneys. When asked the nature of his practice, D’Angelo indicated that he does

work on behalf of labor unions and that his firm is “full service.” Id. at p. 9.

{¶9} In regard to the Bill, D’Angelo testified that he reviewed it and

“eliminated any time entries that appeared in my opinion to be duplicative of other

entries that were already there.” Id. at p. 10. He also stated that a variety of

associates and law clerks performed work on the case to keep fees to a minimum.

Further, D’Angelo conceded that several of the time entries in the Bill were for

work on pleadings that were never filed with the trial court. Finally, he admitted

that Local 776 was requesting $65,000 in attorney fees for his firm’s efforts in

obtaining a judgment of approximately $5,000 against Jack’s.

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{¶10} After Jack’s counsel finished his questioning, the parties presented

closing arguments. In his closing, D’Angelo indicated that he has 16 years of

legal experience. D’Angelo also supplemented the evidence and argument

presented at the hearing by filing a brief that summarized Local 776’s legal

position on its request for attorney fees. No evidentiary material was attached to

the brief.

{¶11} On December 23, 2011, the magistrate denied Local 776’s request

for attorney fees. The basis for the denial was that Local 776 “failed to present

sufficient evidence to support its request * * *.” (Docket No. 51, p. 4). While the

magistrate noted that the Bill was “detailed and comprehensive,” Local 776 failed

to present “disinterested third-party evidence that the number of billable hours was

either reasonable or necessary to the action.” (Id.). Further, the magistrate found

little value in the 2010 Survey because although it “indicated the range of fees

charged by lawyers in the Toledo area,” Local 776 did not provide “evidence as to

the skill, reputation, experience or ability of the lawyer(s) involved, or the

complexity of the issues * * *.” (Id.).

{¶12} Local 776 objected to the magistrate’s decision. After each party

filed its respective briefs, the trial court affirmed the magistrate’s decision on the

basis that Local 776 “has failed to meet its evidentiary burden in supporting its

request for attorney’s fees.” (Docket No. 59).

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{¶13} It is from this judgment that Local 776 filed this timely appeal,

presenting the following assignment of error for our review.

Assignment of Error No. I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT REFUSED TO AWARD COSTS AND ATTORNEYS’ FEES TO THE PLAINTIFF/APPELLANT.

{¶14} In its sole assignment of error, Local 776 contends that since it

presented sufficient evidence for the trial court to award attorney fees and court

costs, the trial court erred in failing to grant such an award. We agree in part and

disagree in part.

Standard of Review

{¶15} We review a trial court’s attorney fees award for abuse of discretion.

Bittner v. Tri-Cty. Toyota, Inc.,

(1991). A trial court will

be found to have abused its discretion when its decision is contrary to law,

unreasonable, not supported by the evidence, or grossly unsound. See State v.

Boles, 2d Dist. No. 23037,

, ¶17-18, citing Black’s Law Dictionary

11 (8th Ed. 2004). Under the abuse of discretion standard, a reviewing court may

not simply substitute its judgment for that of the trial court. Blakemore v.

Blakemore,

(1983). In applying abuse of discretion review

to attorney fee awards, we only reverse a trial court’s order upon a showing that

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“the amount of fees [awarded] is so high or so low as to shock the conscience.”

White v. Lima Auto Mall, Inc., 3d Dist. No. 1-08-63,

.

{¶16} Local 776 concedes that the abuse of discretion standard generally

applies to appellate review of attorney fee awards. However, it also argues that

because the trial court based its order on Local 776’s failure to meet its evidentiary

burden, this appeal presents a question of law that should be reviewed de novo.

This argument fails to account for the numerous cases in which the court of

appeals has applied abuse of discretion review where the trial court entirely denied

an award of attorney fees due to the failure of the requesting party to establish the

reasonableness of its request. E.g., Unick v. Pro-Cision, Inc., 7th Dist. No.

09MA171,

. Based on this case law, we reject Local 776’s

contention that de novo review applies to this matter.

The American Rule and R.C. 4115.16(D)

{¶17} Ohio follows the American Rule, which requires that each party bear

its own attorney fees and costs during the course of litigation. Sorin v. Bd. of Edn.

of Warrensville Hts. School Dist.,

(1976). However, there

are a number of exceptions to this general rule. Specifically, “attorney fees may

be awarded when a statute * * * provides for the losing party to pay the prevailing

party’s attorney fees.” Wilborn v. Bank One Corp.,

, 2009-

Ohio-306, ¶ 7.

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{¶18} Since this is a prevailing wage matter, the dictates of R.C.

4115.16(D) apply. The statute provides that when a trial court finds that a party

violated the prevailing wage law, it “shall award attorney fees and court costs to

the prevailing party.” (Emphasis added.) R.C. 4115.16(D). Due to the statute’s

plain language, we have interpreted R.C. 4115.16(D) as requiring that trial courts

award attorney fees and court costs whenever they find violations of the prevailing

wage law. Jack’s I,

; Internatl. Bhd. of Elec. Workers,

Local Union No. 8 v. Stollsteimer Elec., Inc., 3d Dist. No. 4-05-29, 2005-Ohio-

6866, ¶ 3; see also Internatl. Bhd. of Elec. Workers, Local Union No. 8 v.

Stollsteimer Elec., Inc.,

,

(6th Dist.)

(agreeing with our reading of R.C. 4115.16(D)). As a result, by virtue of the trial

court’s grant of summary judgment, Local 776 is entitled to an award of attorney

fees and court costs in this matter.

Bittner Framework for the Reasonableness of Attorney Fee Awards

{¶19} When an exception to the American Rule allows for an award of

attorney fees, trial courts are generally instructed to follow the two-part test

enunciated in Bittner. Although Bittner was handed down in the context of the

Ohio Consumer Sales Practices Act, courts have applied it to fee awards in a

variety of other contexts, e.g., Jefferson v. Creveling, 9th Dist. No. 24206, 2009-

Ohio-1214, ¶ 33 (applying Bittner to request for attorney fees under R.C. 2323.51

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for bad faith conduct during litigation), including in prevailing wage enforcement

actions, e.g., Village of W. Unity ex rel. Beltz v. Merillat,

,

(6th Dist.). As such, we likewise apply its guidance

here.

{¶20} Under Bittner, “[t]he trial court should first calculate the number of

hours reasonably expended on the cases [and multiply it] by an hourly fee * * *.”

Bittner,

. The product of this calculation is called the

“lodestar” figure. Unick,

. To satisfactorily prove the

lodestar, the requesting party must show that the hours billed are “necessary to the

action and [do] not include ‘hours that are excessive [or] redundant.’” Id. at ¶ 28,

quoting Hensley v. Eckerhart,

,

(1983); Jacobs v.

Holston,

(6th Dist. 1980) (stating that to establish

reasonableness of attorney fee request, the lawyer must establish the

reasonableness of the hourly rate and the amount of time expended on the case).

The requesting party must also establish the reasonableness of the hourly rate. In

doing so, the requesting party must “‘produce satisfactory evidence – in addition

to the attorney’s own affidavits – that the requested rates are in line with those

prevailing in the community for similar services by lawyers of reasonably

comparable skill, experience, and reputation.”

, quoting Blum v.

Stenson,

,

(1989); see also Southeast Land

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Dev., Ltd. v. Primrose Mgt. L.L.C.,

,

(3d Dist.) (outlining same requirements in determining the lodestar figure).

{¶21} Once the lodestar is determined, the trial court should consider

modifying it based on the factors listed in the Ohio Rules of Professional Conduct

regarding the reasonableness of the fee. Bittner,

.2 Rule

1.5(a) lists the following factors as relevant to determining the reasonableness of

an attorney fee award:

(1) [T]he time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) [T]he likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) [T]he fee customarily charged in the locality for similar legal services;

(4) [T]he amount involved and the results obtained;

(5) [T]he time limitations imposed by the client and by the circumstances;

(6) [T]he nature and length of the professional relationship with the client;

2 The Ohio Rules of Professional Conduct became effective on February 1, 2007 and superseded the Ohio Code of Professional Responsibility. Since Bittner was decided in 1991, the court cited the factors listed in DR 2-106(B) as those trial courts should consider in awarding attorney fees. Since this matter implicates attorney fees incurred after February 1, 2007, we consider the factors included in the Rules of Professional Conduct as controlling our review. See O’Neill v. Tanoukhi, 7th Dist. No. 10-MA-45,

(applying factors in Prof.Cond.R. 1.5 to Bittner analysis since matter post-dated the effective date of the Rules of Professional Conduct). Regardless, we note that the factors in DR 2-106(B) are substantially similar to the factors in Prof.Cond.R. 1.5(a).

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(7) [T]he experience, reputation, and ability of the lawyer or lawyers performing the services; and

(8) [W]hether the fee is fixed of contingent.

Burden of Proof under Bittner

{¶22} We can find no case that specifically requires the prevailing party in

a prevailing wage enforcement action to prove the reasonableness of its attorney

fee request. But, under the Bittner framework, courts have generally required the

requesting party to prove the reasonableness of its request. E.g., Southeast Land

Dev., Ltd.,

,

, quoting Unick, 2011-

Ohio-1342, at ¶ 27. Further, other courts that have addressed matters implicating a

statutorily-mandated attorney fee award have placed the burden of proof regarding

the attorney fee request upon the requesting party. E.g., TCF Natl. Bank v. Smith,

5th Dist. No. 2009 CA 00101,

, ¶ 21-22 (requiring prevailing

party to prove reasonableness of its fee request when seeking attorney fees under

R.C. 5721.39); In re Estate of Szczotka, 11th Dist. No. 2005-L-042, 2006-Ohio-

1449, ¶ 29 (requiring defender of will in will contest to prove reasonableness of its

fee request when seeking attorney fees under R.C. 2107.75). We apply the

persuasive guidance of these cases here and find that R.C. 4115.16(D) does not

vary the general requirement under Bittner that requesting parties prove the

reasonableness of their fees. Accordingly, our review of the record here focuses

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on whether Local 776 has carried its burden to establish the reasonableness of its

fee request.

Local 776’s Evidence for its Attorney Fee Request

{¶23} Local 776 presented three exhibits and offered D’Angelo’s testimony

on cross-examination by Jack’s counsel in its attempt to carry its burden under

Bittner. Since this evidence is insufficient to establish that the number of hours

billed by D’Angelo was reasonable, we find that Local 776 has not carried its

burden to establish the reasonableness of its fee request.

{¶24} Courts have recognized that merely submitting an attorney’s

itemized bill is insufficient to establish the reasonableness of the amount of work

billed. Whitaker v. Kear,

(4th Dist. 1997); Climaco,

Seminatore, Delligatti & Hollenbaugh v. Carter,

(10th

Dist. 1995). Often, parties offer expert testimony to establish that the hours

charged was reasonable in light of the litigation’s particular facts. E.g., Hawkins

v. Miller, 11th Dist. No. 2011-L-036,

, ¶ 28 (affirming award of

attorney fees where expert testified to the amount of time and hourly rate

charged);

(affirming trial court’s finding that evidence was

sufficient to prove reasonableness of fee request where expert testified to the

reasonableness of the time spent on the litigation). Meanwhile, in some matters,

the requesting party refrains from offering expert testimony but instead offers

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testimony from other individuals to corroborate the attorney’s self-serving

testimony that the fee request is reasonable. E.g., Koblenz & Koblenz v. Summers,

8th Dist. No. 94806,

, ¶ 14 (affirming award of attorney fees in

collection action where both an attorney with the plaintiff law firm and a third

party attorney testified to the nature of the proceedings giving rise to the collection

action); Schottenstein, Zox & Dunn Co., L.P.A. v. Reineke, 9th Dist. No.

10CA0138-M,

(affirming award of attorney fees in

collection action where both an attorney with the plaintiff-law firm and the

defendant-client testified the nature of the proceedings giving rise to the collection

action).

{¶25} Here, Local 776 offered the Bill and D’Angelo’s testimony to show

that the amount of hours charged was reasonable. The Bill itself cannot show that

the amount of hours charged was reasonable since there is no indication in the Bill

itself that the work performed was necessary. As a result, D’Angelo’s testimony

could serve as the only possible basis for establishing the necessity and

reasonableness of the hours charged in the Bill.

{¶26} In considering D’Angelo’s testimony, we preliminarily note that

D’Angelo made his statement that the bill was reasonable for the amount of time

he spent on behalf of Local 776 before the trial court placed him under oath. It is

well-settled that a trial court may only receive testimony after a witness is placed

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under oath, R.C. 2317.30; Evid.R. 603, and the failure to place a witness under

oath precludes the consideration of a witness’s statement as evidence, Arcaro

Bros. Builders, Inc. v. Zoning Bd. of Appeals, City of N. College Hill,

(1966). As a result, D’Angelo’s statement about the reasonableness of the

Bill was non-testimonial, and we only consider D’Angelo’s statements after he

was placed under oath as evidence in support of Local 776’s attorney fee request.

{¶27} D’Angelo did testify that he removed duplicative entries from the

Bill before offering it into evidence. But this self-serving testimony does not, by

itself, prove that the amount of hours billed was reasonable and necessary for the

prosecution of the action. It merely proves that the time removed before the Bill’s

introduction was unreasonable. Further, a review of D’Angelo’s testimony reveals

that he offered no statements describing the complexity of the issues involved in

this matter, the ultimate goals of Local 776, and the adversarial nature of the

proceedings.3 Compare Reineke,

(affirming award of

attorney fees in collection suit where the requesting attorney testified “at length”

regarding the complexity of the case, the aims of his client, and the adversarial

nature of the action).

{¶28} Absent expert testimony regarding the reasonableness of Local 776’s

fee request or in-depth testimony from either D’Angelo or another witness

3 D’Angelo’s testimony also suffers from other deficiencies. Most notably, he conceded that several of the time entries in the Bill are for work on pleadings that were never filed.

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regarding the nature of this matter, the trial court would have to speculate as to the

reasonable amount of time necessary for the successful prosecution of this matter.

Such rank speculation is contrary to the guidance of Bittner and its progeny and

the trial court appropriately declined from engaging in it. Further, without the

necessary evidence to show the reasonableness of the amount of time charged in

the Bill, the trial court was unable to properly calculate the lodestar figure.

Consequently, we find that the trial court did not abuse its discretion in finding

that Local 776’s evidence did not satisfy its burden under Bittner to prove the

reasonableness of its fee request.

{¶29} We also note that Local 776’s evidence regarding the hourly rate

charged by D’Angelo and his law firm has three significant deficiencies. First,

when offering the OSBA publications, D’Angelo did not indicate which statistics

in the publications were relevant to the reasonableness of the hourly rates. As a

result, the trial court was left with no guidance from Local 776 as to how the

statistics in the voluminous OSBA publications applied to the hourly rates charged

by D’Angelo. Second, D’Angelo’s testimony obfuscated the proper statistic to

consider. For instance, he testified that his law firm was “full-service” but also

that he handled many union matters. Based on this conflicting testimony, it is

questionable whether the trial court should have compared the hourly rates in the

Bill to the typical hourly rates charged by general practice firms or the typical

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hourly rates charged by labor law firms.4 Third, Local 776 failed to offer any

evidence of D’Angelo’s reputation, experience, and ability, which is fatal to its

ability to prove the reasonableness of the hourly rates charged in the Bill.5 City of

Canton v. Irwin, 5th Dist. No. 2011CA00029,

(reversing trial

court’s awarding of attorney fees on basis of $250 hourly rate where the

requesting party offered no evidence of the attorney’s reputation, experience, and

ability).

{¶30} Local 776 cites to Merillat in support of its contention that the Bill

and the OSBA surveys are sufficient to carry its burden under Bittner. However, a

review of Merillat reveals that it is inapposite to this matter. There, the requesting

party appealed the trial court’s award of attorney fees because it argued that the

award was too low. The court of appeals reversed the award for the following

reasons: (1) the trial court failed to account for fees incurred by law

clerks/paralegals; (2) the trial court arbitrarily reduced the hourly rate and total fee

award due to the billing practices of the non-requesting party’s attorney; and (3)

the trial court failed to award fees incurred during the preparation of the fee

request. Merillat,

. The court of appeals gave no

4 There are other portions of D’Angelo’s testimony that confuse the analysis of the hourly rates’ reasonableness. He testified that his law firm has five attorneys and is located in Toledo. It is questionable based on this testimony whether the trial court should have considered the typical rates for law firms of the same size, or whether it should have considered the typical rates for Toledo law firms or Northwestern Ohio law firms. 5 In his closing argument on behalf of Local 776, D’Angelo stated that he had 16 years of experience. However, this statement was not made while D’Angelo was under oath, which, as noted above, precludes it from being considered as evidence.

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explicit or implicit indication that the requesting party’s bill and an OSBA survey

were sufficient to support its request. Consequently, none of the issues presented

in Merillat are under consideration here and the court of appeals’ decision there

has no bearing on our analysis.

{¶31} Local 776 also argues that since trial court judges are lawyers, they

are able to assess the reasonableness of fee requests without any corroborating

evidence, besides bills and OSBA surveys, directing them. Although trial court

judges may have experience and knowledge regarding the setting of fees, they

“must base the fee determination upon evidence adduced and cannot substitute

[their] own knowledge for evidence.” In re Wood’s Estate,

(10th Dist. 1977). Accordingly, we reject Local 776’s suggestion that trial court

judges are able to determine reasonable attorney fees without the necessary

evidence.

{¶32} In sum, the trial court did not abuse its discretion in finding that

Local 776 failed to present sufficient evidence to establish the reasonableness of

its fee request.

Consequences for Failure to Satisfy Bittner

{¶33} We now turn to determining the appropriate consequence for Local

776’s failure to carry its burden under Bittner. We can find no case explicitly

indicating the consequences that result from a party’s failure to prove the

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reasonableness of its request for statutorily-mandated attorney fees. As such, we

must resort to analysis by analogy to guide our review.

{¶34} The most analogous cases that we have found implicate contractual

provisions that mandate the awarding of attorney fees to a prevailing party in

breach of contract claims. For instance, in Unick, the parties entered into a

contract that included the following provision: “[i]n the event of a default * * *,

the defaulting party shall reimburse the nondefaulting party * * * for all costs and

expenses reasonably incurred by the nondefaulting party * * * in connection with

the default, including without limitation attorney’s fees.” (Emphasis added.)

Unick,

. The trial court entirely denied the attorney fee

award even though the contract required such an award because the requesting

party failed to carry its burden under Bittner. Id. at ¶ 21. The court of appeals

affirmed the denial and found that “when a prevailing party does not present

sufficient evidence to support a request for attorney’s fees, the trial court has the

discretion to deny the request in its entirety.” Id. at ¶ 33; see also Southeast Land

Dev., Ltd.,

,

(“If all elements of the

required proof are not provided, the trial court may deny the request for attorney

fees in its entirety.”); Stonehenge Land Co. v. Beazer Homes Invests., L.L.C.,

,

(10th Dist.) (affirming denial of attorney fees

where requesting party did not carry burden under Bittner even though the contract

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entitled the requesting party to an attorney fee award). In light of this case law, we

find that the mandatory nature of attorney fee awards under R.C. 4115.16(D) does

not preclude a trial court from denying attorney fees altogether where the

requesting party fails to provide sufficient evidence to establish the reasonableness

of its request. Without the discretion to entirely deny attorney fees, trial courts

would be required to engage in rank speculation and hand down awards that are

unsupported by the evidence, which is plainly a result that is not contemplated by

R.C. 4115.16(D).

{¶35} We acknowledge that an outright denial of attorney fees seems

inconsistent with R.C. 4115.16(D)’s compulsory language. But, other cases

involving statutorily-mandated fee awards have implicitly recognized that trial

courts are empowered to deny all attorney fees if the requesting party fails to carry

its burden. In Szczotka, the court of appeals addressed the awarding of statutorily-

mandated attorney fees under R.C. 2107.75. There, the court reversed the trial

court’s denial of attorney fees, but only because it failed to enumerate its

reasoning for the denial. Szczotka,

. It further remanded

the matter so that the trial court could provide its basis for the denial. This

disposition indicates that an outright denial of statutorily-mandated attorney fees is

appropriate provided that the trial court provides its reasoning and that its

reasoning is compliant with Bittner.

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{¶36} Based on the foregoing, the trial court in this matter was empowered

to entirely deny Local 776’s awarding of attorney fees provided that Local 776

failed to carry its burden under Bittner. Consequently, the trial court did not abuse

its discretion in doing so.

Court Costs

{¶37} R.C. 4115.16(D) also mandates that a non-prevailing party reimburse

the prevailing party for the court costs it incurred in prosecuting the action.

Unlike requests for attorney fees, there is no burden on the prevailing party to

prove the reasonableness of its court cost request. Here, the trial court did not

order that Jack’s pay the court costs incurred by Local 776. This failure

contravenes the requirements of R.C. 4115.16(D) and constitutes reversible error.

Accordingly, we reverse the trial court’s order insofar as it fails to award court

costs to Local 776.

{¶38} In sum, Local 776 had the burden of proving the reasonableness of

its attorney fee request and it failed to prove that the amount of hours charged by

its attorney were reasonable to the prosecution of this action. As a result, the trial

court did not abuse its discretion in finding that Local 776 failed to carry its

burden under Bittner and it appropriately exercised its discretion in denying Local

776’s fee request in its entirety. However, the trial court did err in failing to award

court costs to Local 776.

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{¶39} Accordingly, we overrule in part and sustain in part Local 776’s sole

assignment of error.

{¶40} Having found error prejudicial to Local 776, in the particulars

assigned and argued in part in its sole assignment of error, we affirm in part and

reverse in part the judgment of the trial court, and remand for further proceedings

consistent with this opinion.

Judgment Affirmed in Part, Reversed in Part and, Cause Remanded

PRESTON, P.J. and WILLAMOWSKI, J., concur.

/jlr

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