[Cite as Ritzler v. Arcadia , 2020-Ohio-4416.]

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

ROBERT A. RITZLER, ET AL., PLAINTIFFS-APPELLANTS, CASE NO. 5-20-16

v. VILLAGE OF ARCADIA, O P I N I O N

DEFENDANT-APPELLEE.

Appeal from Hancock County Common Pleas Court Trial Court No. 2017 CV 00463 Judgment Affirmed Date of Decision: September 14, 2020

APPEARANCES: 

### John T. Barga for Appellants 

### John C. Filkins for AppelleeCase No. 5-20-16

-2- SHAW, P.J. {¶1} Plaintiffs-appellants, Robert Ritzler and Charity Ritzler (“the Ritzlers”), bring this appeal from the February 18, 2020 judgme nt of the Hancock County Common Pleas Court denying their request that defendant- appellee, Village of Arcadia (“Arcadia”), pay the Ritzlers’ attorney’s fees pursu ant to R.C. 2323.51 and Civ.R. 11. On appeal, the Ritzlers argue that they had pro ven Arcadia had engaged in frivolous conduct in this matter and that the Ritzle rs had sufficiently established their attorney’s fees. Background {¶2} After repeatedly receiving high water bills, the Ritzlers began to suspect they were being overcharged for water by Arcadia. The Ritzlers compared their water bills and their water usage to neighbors and similarly-si zed families in the area and they felt that their bills were significantly higher. They contacted Arcadia and Arcadia came out to check for leaks on the premises but non e were discovered. Arcadia then analyzed the water meter, and after testing it was discovered that the meter was reading at approximately 2.35 times higher than the a ctual amount used by the Ritzlers. {¶3} On December 17, 2018, the Ritzlers filed a complaint against Ar cadia alleging that Arcadia had breached its contractual obligation t o provide water at the usual, customary, and reasonable rate. The Ritzlers alleged th at they had beenCase No. 5-20-16

-3- paying their water bills and that Arcadia had overcharged them for water in the amount of $6,488.97 plus interest. The Ritzlers claimed that t hey had been overcharged on their monthly bills from 2010 to when the meter was replaced by Arcadia in 2018. The Ritzlers also requested costs and attorne y’s fees. {¶4} On January 18, 2019, Arcadia filed a “Special and Limited Appearance” to present a motion to dismiss based on sovereign i mmunity. The Ritzlers opposed the motion, emphasizing that there was a clear exception to sovereign immunity for breach of contract claims. See R.C. 2744.09(A) (“This chapter does not apply to * * * [c]ivil actions that seek to re cover damages from a political subdivision or any of its employees for contractual l iability[.]”). The trial court denied Arcadia’s motion to dismiss, reasoning that “there exists factual disputes, which preclude the Court’s consideration of the motio n to dismiss. [Arcadia]’s own motion suggests the possibility of an exception to sovereign immunity protection.” (Doc. No. 19). The trial court added th at the matter should be converted to a motion for summary judgment, and directed the parties to file their respective motions. {¶5} On March 25, 2019, Arcadia filed a motion for summary judgment again asserting sovereign immunity, claiming that despite the s tyling and wording of the claim, the Ritzlers were actually asserting a tort claim , not a breach of contract claim. In the motion, Arcadia acknowledged that the Ritzlers’ water meter was notCase No. 5-20-16

-4- reading correctly; however, Arcadia argued that it was impossib le to discern exactly when the water meter stopped reading correctly. {¶6} On April 4, 2019, the Ritzlers filed their own motion for summa ry judgment and a response to Arcadia’s motion for summary judgmen t. The Ritzlers argued that Arcadia had admitted that the meter was not reading correctly, thus it had been established that they were being overcharged. The Rit zlers again emphasized that sovereign immunity was not proper in a breach o f contract claim. They attached evidence and affidavits supporting their claim. {¶7} On April 18, 2019, the trial court filed its decision on the pa rties’ summary judgment motions. The trial court granted the Ritzlers ’ motion for summary judgment, in part, finding that sovereign immunity prot ection did not

cover a breach of contract action. The trial court also determ ined that Arcadia had acknowledged that the Ritzlers’ water meter was not reading cor rectly. However,

the trial court determined that two issues of fact remained to be litigated: 1) when the Ritzlers’ water meter began malfunctioning; and 2) what the appropriate amount of damages were for the over-billing. {¶8} The issues of fact were set for trial, but shortly before the t rial commenced the parties settled the matter with Arcadia paying th e amount requested by the Ritzlers in their complaint. Subsequently, on July 24, 2019, the Ritzlers filed a Civil Rule 41(A)(1)(a) notice of dismissal of their case.Case No. 5-20-16

-5- {¶9} On August 22, 2019, the Ritzlers filed a motion for attorney’s fees and sanctions pursuant to R.C. 2323.51 and Civ.R. 11. The Ritzlers alleged that Arcadia and its attorney had engaged in frivolous conduct in this actio n by filing motions that were not supported by the law or the facts. {¶10} The matter proceeded to a hearing on October 31, 2019. At the inception of the hearing the trial court stated that based upon its research it believed the Ritzlers still had standing to request attorney’s fees for frivolous conduct and sanctions even though the underlying action had been dismissed. The trial court then addressed some of the potential evidence and testimony tha t was going to be presented. The Ritzlers’ attorney stated that he intended to i ntroduce the affidavit of another attorney who was not involved in this case into evid ence without offering the attorney’s testimony. The affidavit would claim that the h ourly fee rate of $250 charged in this matter by the Ritzlers’ attorney was reasonable . The trial court inquired as to why the attorney would not be present at the hea ring to testify and be subject to cross-examination, and the Ritzlers’ attorney respon ded that it was a matter of timing and expense. The trial court refused to admit the affidavit as hearsay, reasoning that the rules of evidence still applied at the hearing. {¶11} The hearing then commenced with the Ritzlers’ attorney calling Arcadia’s attorney to testify. Arcadia’s attorney testified th at he charged $175 perCase No. 5-20-16

-6- hour and that in the Hancock County area he had seen a range of fees between $150- 200 per hour. He acknowledged that he had seen higher rates el sewhere though. {¶12} Arcadia’s attorney also testified that he prepared the motions in this case, including those based on sovereign immunity. Arcadia’s a ttorney testified that prior to the trial court’s ruling on the matter he did not beli eve that there was a contract that had been breached by Arcadia because Arcadia had not overtly done something wrong. In addition, Arcadia’s attorney testified tha t at the time he filed the motions based on sovereign immunity he believed that any ex isting “contract” for water was between Arcadia and the water supply entity, not between Arcadia

and the Ritzlers. {¶13} The Ritzlers each testified individually at the hearing, statin g that they had issues for years with the water prices, that Arcadia had do ne multiple dye tests to check for leaks, and that the water meter was ultimately rep laced. Robert Ritzler

testified that he did the calculations to determine how much he thought Arcadia owed for overpayments. He testified that he assumed in his cal culations that the water meter had been reading incorrectly since April 21, 2010. {¶14} The administrator for Arcadia also testified at the hearing. H e indicated that he was satisfied in April of 2018 that the Ritzl ers’ meter was not reading correctly and that they were being overcharged for wate r. However, he testified that he was uncertain as to when the meter began malf unctioning. TheCase No. 5-20-16

-7- administrator testified that the meter could have gone bad slow ly and that the Ritzlers went from having no children in the house to having mu ltiple children in the house, increasing water usage. The administrator testified that based on his inspection he could not determine when the meter started readin g incorrectly. {¶15} The Ritzlers’ attorney also testified regarding his fees and hi s bills in this matter. A copy of his “bill” was also introduced into evi dence. Arcadia’s attorney challenged the Ritzlers’ attorney on the fact that som e of the attorney’s fees clearly predated the filing of the breach of contract action. Arcadia’s attorney also pointed out that it was not possible to discern from the bills what work had been done in relation to supposed frivolous conduct. The parties su bmitted written closing arguments and the matter was submitted to the trial cou rt for determination. {¶16} On February 18, 2020, the trial court filed its entry analyzing the attorney’s fees and sanctions issues. The trial court reasoned as follows. [The Ritzlers] first argue, as a contract dispute, [Arcadia] ha d no basis in law to defend this action based on sovereign immunity. [The Ritzlers] contend that a simple reading of the sovereign immunity statutes would have revealed this. On this point, the Court agrees. (See Exhibit 93; R.C. § 2744.09). However, othe r aspects of the Village’s defense were not frivolous. Whether privity existed between the parties was, at the initial stages of this litigation, a worthy question. Questioning the amount of reimbursement sought by [the Ritzlers] was also a fair point because questions existed about when the malfunction began and the Village was permitted to access the property to replace it. Another important issue to examine is the timing of the settlement. Even after the Village learned that the water mete rCase No. 5-20-16

-8- had been malfunctioning, its failure to resolve the dispute wel l prior to trial was never explained. (See Exhibit 1). Based up on information known to the Village as far back as March of 2019 (and likely much earlier), this matter could have been settled without the necessity of protracted legal proceedings. For the se reasons, there is compelling evidence to find that the Village and its counsel unnecessarily delayed resolution of this case. However, this finding does not apply to the Plaintiffs’ Rule 11 claim. There is insufficient evidence to establish that Fil kins and the Village acted willfully or intentionally. * * * Having found the existence of some frivolous conduct, Plaintiffs may b e entitled to attorney’s fees. (Doc. No. 56). {¶17} The trial court then analyzed the Ritzlers’ claims for attorney ’s fees, noting that the preferred method to establish an award of attor ney’s fees is to offer disinterested opinions on the reasonableness of the hours spent and the reasonableness of the hourly rate. The trial court stated that the Ritzlers did not secure the appearance of an expert, rather, the Ritzlers’ couns el submitted his own affidavit suggesting the reasonableness of his hourly rate and the time spent on the matter. The trial court also noted that the testimony and the bills from the Ritzlers’ attorney did not “delineate those portions of his fees dealing with the various disputed issues.” ( Id .) {¶18} Ultimately, the trial court found two “serious” problems existe d with regard to the Ritzlers’ claim for attorney’s fees, the first be ing that there was no expert testimony that the time spent on this case was reasonabl e. The trial courtCase No. 5-20-16

-9- stated that, “An opinion from counsel that his own services wer e reasonable cannot be considered totally objective. The benefit of having another learned set of eyes and ears review the file would have provided the Court with the opportunity to objectively evaluate the request, especially given that it was a matter in contention.” (Doc. No. 56). {¶19} The second major issue was that the trial court found that only some of Arcadia’s conduct was frivolous and the time spent respondin g specifically to “frivolous” matters was not self-evident from the billing state ments. “It is impossible for the Court to separate the work done to defend ag ainst the frivolous action of the Village versus efforts expended to assert legitim ate defenses.” ( Id .) Thus the trial court reasoned that without the necessary inform ation, it could not award attorney’s fees in this case. It is from this judgment t hat the Ritzlers appeal, asserting the following assignment of error for our review. Assignment of Error The trial court committed reversible error when it failed to acknowledge, accept and use the facts produced during the October 31, 2019 hearing, the documents in the record and the appropriate legal standard that support an award of attorney fe es to plaintiffs. {¶20} The Ritzlers make various claims in their assignment of error contending that the trial court erred by denying their request for attorney’s fees in this matter. They argue, inter alia , that the trial court incorrectly stated that expert testimony was necessary to establish that the hours spent on th is case wereCase No. 5-20-16

-10- reasonable, and that there was sufficient evidence to support t heir motion for attorney’s fees.

Standard of Review {¶21} Generally, we review a trial court’s decision regarding an awar d of attorneys’ fees for an abuse of discretion. United Assn. of Journeyman and Apprentices of the Plumbing and Pipe Fitting Industry v. Jack's Heating, Air Condition & Plumbing, Inc., 3d Dist. No. 6–12–06, 2013–Ohio–144, ¶ 15, citing Bittner v. Tri–Cty. Toyota, Inc., 58 Ohio St.3d 143, 146, 569 N.E.2d 464 (1991). An abuse of discretion suggests the trial court’s deci sion is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

Discussion {¶22} The Ritzlers argue that they are entitled to attorney’s fees an d sanctions pursuant to R.C. 2323.51 and Civ.R. 11. The party requesting the attorney’s fees has the burden of providing evidence that the h ours worked were necessary to the action and that the amount of the fees is reas onable. Southeast Land Dev., Ltd. v. Primrose Mgt., L.L.C., 3d Dist. Hancock Nos. 5–10–04, 5–10– 11, 2011–Ohio–2341, ¶ 15.Case No. 5-20-16

-11- {¶23} In this case, the trial court determined that there was some frivolous conduct committed by Arcadia and its attorney. Arcadia did not file a cross-appeal challenging this issue so we will accept the trial court’s find ing on this matter. {¶24} Nevertheless, the trial court determined that it could not awar d attorney’s fees here because no evidence was presented that the hours spent on this case were reasonable beyond the self-serving affidavit of the R itzlers’ attorney and because there was no differentiation through testimony or exhib its between work that was spent responding to frivolous conduct and work that wa s spent responding to legitimate factual or legal issues. In other words, the tri al court found that the Ritzlers did not adequately establish the amount of attorney’s fees that they were actually entitled to receive for responding to frivolous matter s. {¶25} The Ritzlers challenge the trial court’s determination on appea l, arguing that expert testimony is not actually required to estab lish attorney’s fees. However, this argument misconstrues the trial court’s reasoning , which was that absent evidence from a disinterested attorney, the trial court was left with the Ritzlers’ attorney’s own statement that his fees and hourly rat e were reasonable. The trial court simply did not find that affidavit sufficient t o objectively establish the matter in this particular set of circumstances. Under othe r circumstances with self-serving testimony we have found that a request for attorne y’s fees was not properly established. See United Assn. of Journeymen & Apprentices of theCase No. 5-20-16

-12- Plumbing & Pipe Fitting Industry v. Jack's Heating, Air Conditioning & Plumbing,

Inc. , 3rd Dist. Hardin No. 6-12-06, 2013-Ohio-144, ¶¶ 23-32. Never theless, we have also stated that “we have not gone so far as to hold that [disinterested/expert] testimony is a threshold requirement [to establish attorney’s f ees] in all

circumstances.” Grove v. Gamma Ctr ., Inc , 3d Dist. Marion No. 9-12-41, 2013- Ohio-1734, ¶ 31, citing Natl. City Bank v. Semco, Inc. , 3d Dist. Marion No. 9-10- 42, 2011-Ohio-172, and Jack’s Heating , supra . Regardless, the trial court here simply found that the Ritzlers did not meet their burden in thi s matter. {¶26} Notwithstanding this point, the trial court found a second deficiency with the Ritzlers’ request for attorney’s fees. The trial cour t found that it was unable to determine from the bills and testimony presented what work h ad been conducted on frivolous conduct versus what work had been spent on legitim ate defenses by

Arcadia. {¶27} The total billing appears to request $13,006.15 for work comple ted prior to the hearing on the attorney’s fees motion, and an addi tional $2,500 for preparation and attendance at the hearing on sanctions/frivolou s conduct. As an

illustration of how it is difficult to discern the attribution of work contained in the bill, one page of the bill submitted contains such lines as “1/ 22/2019 Review Motion/ legal research” and “2/4/2019 Work on Brief.” However, no amount of time is listed next to these tasks. Rather, at the bottom of f ifteen listed tasks overCase No. 5-20-16

-13- the course of nearly a month is a summary that 12.2 hours had b een worked totaling a fee of $3,050 (not including costs and expenses). There is n o breakdown whatsoever as to how much time was spent on each task on a give n day. Based on the dates, this would seem to be around the time that the Ritzl ers’ attorney would have been dealing with the motion to dismiss. There is a sligh tly more detailed billing statement beginning February 27, 2019, that shows the h ours spent on individual tasks on individual dates, but some of the “descript ions” are still vague. {¶28} Moreover, as was stressed during cross-examination, there was e ven a fair amount of work in the bills that was performed by the Ritz lers’ attorney before the lawsuit was even filed. Based on these issues, we cannot f ind that the trial court abused its discretion in determining that the Ritzlers’ evidenc e did not establish the amount of time specifically spent in dealing with the “frivolou s conduct.” See

Weaver v. Pillar , 5th Dist. Tuscarawas No. 2012-CA-32, 2013-Ohio-1052, ¶ 40 (“We find the record lacks evidence that Pillar was adversely a ffected by having to defend allegedly frivolous claims, as distinguished from the ne ed to defend the lawsuit in general[.]”) {¶29} In sum, the trial court found that there was some frivolous conduct here, but it explicitly did not find willful or intentional mis conduct that would satisfy

Civ.R. 11 s anctions. The trial court also did not find tha t th e overwhelming nature of the defense presented by Arcadia was dedicated to frivolous matters. This isCase No. 5-20-16

-14- important because when the trial court analyzed the attorney’s fees requested, the Ritzlers did not present a detailed billing. Similarly, the Ri tzlers did not supply any disinterested testimony, which the trial court felt, in this particular case , would have been necessary to help the Ritzlers’ establish their fees. Und er the facts and

circumstances of this case we cannot find that the trial court abused its discretion by denying the Ritzlers’ motion for attorney’s fees. Therefore th eir assignment of error

is overruled.

Conclusion {¶30} For the foregoing reasons the Ritzlers’ assignment of error is overruled and the judgment of the Hancock County Common Pleas Court is af firmed. Judgment Affirmed PRESTON and WILLAMOWSKI, J.J., concur. /jlr