[Cite as Jones v. Natural Essentials, Inc., 2018-Ohio-5071.]

IN THE COURT OF APPEALS 

ELEVENTH APPELLATE DISTRICT 

PORTAGE COUNTY, OHIO 

TERESA JONES, et al., : O P I N I O N 

 Plaintiffs-Appellants, : 

 CASE NO. 2018-P-0010

 - vs - : 

NATURAL ESSENTIALS, INC., : 

 Defendant-Appellee. : 

Civil Appeal from the Portage County Court of Common Pleas, Case No. 2014 CV 

00215. 

Judgment: Affirmed. 

Natalie F. Grubb and Mark E. Owens, Grubb & Associates, L.P.A., 437 West Lafayette 

Road, Suite 260-A, Medina, OH 44256 (For Plaintiffs-Appellants). 

Todd H. Lebowitz and Kyle T. Cutts, Baker & Hostetler, LLP, Key Tower, 127 Public 

Square, Suite 2000, Cleveland, OH 44114 (For Defendant-Appellee). 

DIANE V. GRENDELL, J. 

{¶1} Plaintiffs-appellants, Teresa Jones, Kevin Jones, and Robert Lovejoy, 

appeal from the judgment of the Portage County Court of Common Pleas, ordering the 

payment of attorney’s fees and other sanctions to defendant-appellee, Natural 

Essentials, Inc. The issues to be determined by this court are whether leaving a 

deposition because the notice did not state solely that it would be videotaped rather 

than stenographically recorded is sanctionable; whether an affidavit of attorney’s fees is 

sufficient to support such an award as a frivolous conduct sanction; whether an affidavit 
 2

stating payment of a court reporter’s invoice had been made is sufficient to award the 

reporter’s fees as a discovery sanction; and whether multiple failures to provide 

discovery, both in response to the defendant’s requests and court orders, is 

sanctionable conduct under R.C. 2323.51 and Civ.R. 11. For the following reasons, we 

affirm the judgment of the lower court. 

{¶2} On March 14, 2014, the appellants filed a Complaint in the Portage 

County Court of Common Pleas against Natural Essentials, alleging wrongful 

termination in relation to a workers’ compensation matter. Natural Essentials filed an 

Answer on May 27, 2014. 

{¶3} Natural Essentials filed a Motion to Compel Lovejoy and Kevin Jones to 

respond to written discovery requests on September 23, 2014. Pursuant to the Motion, 

Natural Essentials had served requests for interrogatories, production of documents, 

and admissions on July 14, 2014, following up with multiple letters to opposing counsel. 

An e-mail response received on September 12, 2014, which “purport[ed] to attach 

responses” to discovery requests, contained only documents from an unrelated case. 

{¶4} On September 23, 2014, appellants filed a request for leave to file 

untimely responses to the Requests for Admissions, stating that a response had been 

submitted on or about September 10 and asserting that the delay in responding resulted 

from lead counsel’s departure from the firm. Appellants also filed a Memorandum in 

Opposition to the Motion to Compel, arguing that discovery had been sent via e-mail to 

Natural Essentials on September 25, 2014. Natural Essentials responded that it had 

received only inadequate responses from Lovejoy and none were received in relation to 

Kevin Jones. 
 3

{¶5} A December 1, 2014 Magistrate’s Order granted the Motion to Compel in 

part and set forth certain items appellants must provide to Natural Essentials within 30 

days. 

{¶6} On December 4, 2014, appellants filed a Motion for Protective Order, 

arguing that they appeared for scheduled depositions but declined to participate 

because they had not been provided notice that the depositions were to be videotaped. 

{¶7} Natural Essentials filed a Motion to Compel Plaintiffs to Testify and Motion 

for Sanctions on December 9, 2014, and a Brief in Opposition to the Motion for 

Protective Order on December 10, 2014. These filings contended that the notices 

informed the appellants there would be a video deposition, but the appellants “walked 

out” of the depositions rather than be taped. The transcript of the “attempted 

deposition” included appellants’ counsel’s objection to the notice, which she deemed 

inadequate, as well as her statement that appellants would provide testimony in front of 

the stenographer or submit to a videotaped deposition the following day “provided that 

defendant modify [its] notice,” which Natural Essentials refused. Natural Essentials 

attached a copy of an invoice from the court reporter/videographer, David Tackla, for 

fees in the amount of $1,701.40. 

{¶8} On December 12, 2014,1 the court issued an Order granting the Motion to 

Compel, finding that there had been proper notice of the video depositions and the 

appellants’ actions “were unreasonable and obstructionist, constitute sanctionable 

discovery misconduct, and warrant appropriate relief under Rule 37(D).” Appellants and 

 

1. For the sake of clarifying the record, an Order that is identical with the exception of the date and 

signature was also filed on December 17, 2014, for reasons that are not evident. 
 4

counsel were ordered to pay $1,701.40 in deposition-related fees, as well as defense 

counsel’s preparation costs and costs for filing related motions and responses. 

{¶9} On January 7, 2015, Natural Essentials filed a Motion to Dismiss Due to 

Plaintiffs’ Continuing Discovery Misconduct, contending that the appellants had failed to 

comply with orders to provide discovery and pay the Tackla invoice. On January 20, 

2015, the appellants filed a Notice of Dismissal without Prejudice, dismissing all claims. 

{¶10} Natural Essentials filed a February 12, 2015 Motion to Enforce the 

December 12, 2014 sanctions. On the same date, it filed a Motion to Impose Sanctions 

for Frivolous Conduct and Other Litigation Misconduct. Appellants filed a brief in 

opposition. 

{¶11} A hearing was held on the foregoing motions on July 30-31, 2015. The 

following pertinent testimony and exhibits were presented: 

{¶12} Following his opening argument, Natural Essentials’ attorney, Todd 

Lebowitz, presented a Summary of Fees and an attached affidavit for fees arising from 

the alleged frivolous conduct, and affirmed that the affidavit was accurate. The fees 

totaled $49,637.66 after a 10 percent discount. The court admitted this as an exhibit. 

{¶13} All three plaintiffs, Teresa Jones, Kevin Jones, and Robert Lovejoy, 

testified that they had not been advised by counsel that the depositions would be 

videotaped, although they would have gone forward with a stenographic deposition. 

Kevin Jones and Lovejoy both testified that they answered the interrogatories and 

requests for documents to the best of their ability and submitted them to counsel. 

{¶14} Monique George, the office manager at Grubb and Associates, counsel for 

appellants, testified that the attorney who had been handling the present matter left the 
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firm around the time the request for discovery was made in July 2014, which resulted in 

a failure to review the requests until August 2014. George admitted she mistakenly emailed documents from another case to opposing counsel rather than the answers to 

the request for admissions. The correct documents were never provided since Lebowitz 

sent an e-mail stating it was unnecessary to respond as the matters had already been 

deemed admitted. 

{¶15} Jessica Bartolozzi, an attorney at Grubb and Associates, testified that she 

attempted to e-mail the interrogatories and requested documents from Kevin Jones and 

Lovejoy to opposing counsel on September 25, 2014, but mistakenly failed to add 

opposing counsel’s e-mail address for Jones’ documents, resending the e-mail on 

October 10. After the Magistrate’s Order requiring discovery, she provided the 

necessary documents to the court but failed to realize they also must be provided to 

defense counsel. After she was alerted to the error, the documents still were not sent to 

opposing counsel. 

{¶16} Patricia Lowery, who practices law in her firm in Medina, opined that the 

hourly rate of $455 to $475 charged by Natural Essentials’ counsel was not a 

reasonable hourly rate. She also believed the time expended drafting the motions at 

issue was unreasonable. 

{¶17} Jon Jastromb, a videographer in Northeast Ohio, testified that he typically 

does not charge for videography work that is scheduled but not completed, with the 

exception of his set-up fee. 

{¶18} In an August 31, 2015 decision, the magistrate found “a course of 

unprofessional conduct,” which “unreasonably and substantially impaired Natural 
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Essentials’ ability to defend itself in this litigation.” It found the December 12, 2014 

order should be enforced and ordered appellants and attorney Grubb to pay $10,000 in 

attorney’s fees pursuant to R.C. 2323.51 and Civ.R. 11. On the same date, the court 

adopted the decision.

{¶19} Appellants subsequently filed Objections to Magistrate’s Decision, which 

were overruled, and a Motion for Findings of Fact and Conclusions of Law. On January 

4, 2018, the magistrate issued Findings of Fact and Conclusions of Law, finding that 

“the record in this case is rife with examples of actions (or inactions) on the part of 

Plaintiffs’ counsel which amount to refusal to cooperate with Defendant’s efforts to 

conduct discovery in the case,” including the failure to go forward with the depositions 

and failure to provide all discovery that was ordered by the court. Subsequent 

objections filed by appellants were overruled. 

{¶20} On appeal, appellants raise the following assignments of error: 

{¶21} “[1.] The trial court abused its discretion in finding that appellants ‘walked 

out’ of their depositions. 

{¶22} “[2.] The trial court erred as a matter of law in failing to find that appellants 

have a good faith basis under existing Ohio law for requiring proper notice of video 

depositions. 

{¶23} “[3.] The trial court erred as a matter of law by relying on evidence 

submitted outside of the sanctions hearing and in awarding $10,000 in legal fees 

without admissible evidence. 

{¶24} “[4.] The trial court abused its discretion by awarding Tackla’s purported 

fees for the cancelled depositions. 
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{¶25} “[5.] The trial court abused its discretion in finding that appellants’ counsel 

made knowingly false representations to the trial court or engaged in frivolous conduct 

under R.C. 2323.51. 

{¶26} “[6.] The trial court erred in awarding Rule 11 sanctions against 

appellants.” 

{¶27} The first and second assignments of error will be addressed jointly, as 

they relate to appellants’ contention that they properly refused to participate in the 

depositions since the notice was not sufficient to permit videotaping. 

{¶28} Pursuant to Civ.R. 37(D)(1)(a)(i) “a court may, on motion, order sanctions 

if * * * [a] party or party’s officer, director, or a managing agent or a person designated 

under Civ.R. 30(B)(5) or Civ.R. 31(A) fails, after being served with a proper notice, to 

appear for that person’s deposition.” This court has held that “[a] trial court has 

considerable latitude in imposing sanctions for discovery violations and a trial court’s 

decision on a discovery violation will not be reversed absent a showing of 

an abuse of discretion.” (Citations omitted.) Bd. of Trumbull Twp. Trustees v. Rickard, 

2017-Ohio-8143, 98 N.E.3d 800, ¶ 55 (11th Dist.). 

{¶29} There is no question that the appellants failed to participate in videotaped 

depositions sought by Natural Essentials, pursuant to the direction of counsel. 

Appellants fail to cite authority for the proposition that their refusal to participate is not 

the equivalent of failure to appear, as it had the same consequence of not attending the 

deposition in the first instance. See E.I. DuPont de Nemours & Co., Inc. v. Thompson, 

29 Ohio App.3d 272, 276, 504 N.E.2d 1195 (8th Dist.1986) (“[a]s a practical matter, 

failing to appear at a deposition, and appearing but refusing to answer are equivalent”).
 8

Although the appellants take issue with the characterization of their conduct as “walking 

out,” the wording used is of little relevance. The court accurately described the facts 

surrounding this incident in finding this conduct sanctionable under Civ.R. 37(D)(1)(a)(i). 

{¶30} In relation to the appellants’ contention that they were excused from 

participation due to lack of notice that the deposition would be videotaped, Civ.R. 

30(B)(3) requires: “If a party taking a deposition wishes to have the testimony recorded 

by other than stenographic means, the notice shall specify the manner of recording, 

preserving, and filing the deposition.”

{¶31} Here, notices were provided to the appellants that the depositions would 

be recorded “stenographically and/or on video.” Although the appellants contend that 

the notices were “ambiguous and unclear as to whether video was the chosen method 

of recording,” there was no reason for the appellants or their counsel to be unaware that 

a videotaped deposition may take place given the word “video” was included in the 

notice. 

{¶32} The appellants also argue that the notices lacked compliance with the 

Rules of Superintendence. Pursuant to Sup.R. 13(A)(2), “[n]otice is sufficient if it 

specifies that the videotape deposition is to be taken pursuant to the provisions of 

this rule.” The Rule’s commentary provides that it “is necessary in the notice to merely 

make reference to Rule 13 to satisfy the requirements of Civ.R. 30(B)(3).” While the 

notices did not include such reference, noncompliance with the Rules of 

Superintendence does not warrant reversal, since they “are not the equivalent of rules 

of procedure[,] * * * have no force equivalent to a statute,” and “create no rights in 

individual defendants.” Habo v. Khattab, 11th Dist. Portage No. 2012-P-0117, 2013-
 9

Ohio-5809, ¶ 84, citing State v. Gettys, 49 Ohio App.2d 241, 243, 360 N.E.2d 735 (3d 

Dist.1976). 

{¶33} Finally, the appellants contend that a one-day delay in taking the 

depositions, since they offered to complete video depositions the next day if given what 

they deemed to be proper written notice, should not constitute sanctionable discovery 

misconduct. However, sanctions are specifically permitted for the failure to appear for a 

deposition under Civ.R. 37(D)(1)(a)(i) and it is evident from the record that costs were 

expended in relation to the decision not to participate. 

{¶34} The first and second assignments of error are without merit. 

{¶35} We will consider the remaining assignments of error out of order for ease 

of discussion. In their fourth assignment of error, the appellants argue that the trial 

court abused its discretion by awarding the videographer/court reporter, David Tackla, 

fees for the aforementioned depositions since his invoice was not authenticated by any 

witness, nor did any witness appear at the sanctions hearing to do so. 

{¶36} It is evident from the record that the initial award of Tackla’s fees was 

made on December 12, 2014, without a hearing, based upon Natural Essentials’ motion 

and an attached invoice from Tackla. This court dismissed an appeal from that order as 

non-final. Jones v. Natural Essentials, Inc., 11th Dist. Portage No. 2015-P-0005, 2015-

Ohio-1073. Natural Essentials subsequently filed its motions requesting sanctions for 

frivolous conduct, as well as to enforce the prior judgment ordering Tackla’s fees, which 

gave rise to the sanctions hearing. At that hearing, the court accepted additional 

evidence as to Tackla’s deposition fees, allowing the appellants to contest their 

reasonableness including testimony for the appellants in relation to whether it was 
 10

reasonable to bill for a deposition that did not go forward. Following the hearing, the 

court again ordered payment of the deposition fees, although it gave 30 days to pay 

rather than the seven days previously ordered. 

{¶37} Typically, as described above, an abuse of discretion applies in reviewing 

discovery sanctions. Rickard, 2017-Ohio-8143, at ¶ 55. Natural Essentials contends 

that appellants did not contest the authenticity of the invoice upon the initial award of 

sanctions, which is accurate. Appellants did object following the sanctions hearing, at 

which the matter had again been presented to the court for review. In any event, even 

presuming there was not an adequate initial objection, the issue of authenticity can still 

be raised before this court, although evaluated under a plain error standard. Midland 

Funding LLC v. Farrell, 1st Dist. Hamilton No. C-120674, 2013-Ohio-5509, ¶ 9; Mentor 

Economic Assistance Corp. v. Eichels, 2016-Ohio-1162, 61 N.E.3d 670, ¶ 24 (11th 

Dist.). 

{¶38} We note that there was no initial affidavit submitted regarding the 

authenticity of Tackla’s invoice. However, at the hearing on sanctions, wherein the 

amount of these fees was disputed, the defendant’s attorney’s affidavit attested that 

Tackla had billed the amount of $1,701.40 and that this amount had been paid by 

Natural Essentials. To the extent that the appellants contest authenticity, that is refuted 

by the affidavit asserting these fees were in fact billed and paid. While this was not 

initially presented, it appears that both sides were permitted by the court to present 

additional evidence on this particular discovery sanction at the frivolous conduct/motion 

to enforce hearing and, as such, we find it acceptable to support the court’s award of 

deposition fees. See E.I. DuPont, 29 Ohio App.3d at 277, 504 N.E.2d 1195 (finding 
 11

fees pursuant to a motion for discovery sanctions were appropriate when an affidavit 

supported the award). 

{¶39} The appellants also argue that the testimony from another stenographer, 

Jastromb, demonstrated that it is common practice within the industry to charge only for 

set up and time actually expended taking a deposition. However, Jastromb testified 

only as to what his practice was, was not qualified as an expert, and conceded that 

other videography firms charge different amounts. Thus, we find no error in the court’s 

determination that it was reasonable for Tackla to charge for the entirety of time the 

video deposition had been scheduled. 

{¶40} The fourth assignment of error is without merit. 

{¶41} We will next consider the fifth and sixth assignments of error. In their fifth 

assignment, the appellants argue that the trial court abused its discretion in finding there 

was frivolous conduct or knowingly false representations made to the court, pursuant to 

R.C. 2323.51 and Civ.R. 11, as all discovery issues occurred due to clerical errors. In 

their sixth assignment, they assert that there was no evidence of “subjective bad faith” 

necessary to prevail under Civ.R. 11. 

{¶42} When evaluating a claim of frivolous conduct under R.C. 2323.51, the 

court must consider whether there is a factual or a legal issue. To the extent that the 

issue is a factual determination, “e.g. whether a party engages in conduct to harass or 

maliciously injure another party,” we accord “substantial deference” to the trial court’s 

findings of fact and review them under an abuse of discretion standard. All legal 

questions are reviewed de novo. Curtis v. Hard Knox Energy, Inc., 11th Dist. Lake No. 

2005-L-023, 2005-Ohio-6421, ¶ 15. The same standard applies to Civ.R. 11 cases. 
 12

Fast Property Solutions, Inc. v. Jurczenko, 11th Dist. Lake Nos. 2012-L-015 and 2012-

L-016, 2013-Ohio-60, ¶ 57. 

{¶43} R.C. 2323.51(B)(1) provides that “any party adversely affected by frivolous 

conduct may file a motion for an award of court costs, reasonable attorney’s fees, and 

other reasonable expenses incurred in connection with the civil action * * *.” Frivolous 

conduct includes conduct by a party that “obviously serves merely to harass or 

maliciously injure another party to the civil action or appeal or is for another improper 

purpose, including, but not limited to, causing unnecessary delay or a needless increase 

in the cost of litigation.” R.C. 2323.51(A)(2)(a)(i). 

{¶44} Civ.R. 11 provides that an attorney’s signature on a pleading, motion, or 

document constitutes a certificate that the attorney has “read the document; that to the 

best of the attorney’s * * * knowledge, information, and belief there is good ground to 

support it; and that it is not interposed for delay.” In determining whether there is a 

violation of Civ.R. 11, the courts apply a “subjective bad-faith standard” which is met 

when a violation is found to be “willful.” Fast Property at ¶ 53. In contrast, R.C. 2323.51 

does not require a showing of willfulness. Chapman v. Chapman, 11th Dist. Lake No. 

2015-L-039, 2015-Ohio-4833, ¶ 48. 

{¶45} Here, the trial court found sanctions to be warranted under both R.C. 

2323.51 and Civ.R. 11. There were several grounds provided in the record and 

described in the court’s judgments to support a finding of, at the very least, frivolous 

conduct. During the discovery process, there were multiple occasions of unnecessary 

delay caused by the actions of the appellants, including their failure to provide discovery 

for two months, failure to exercise any care in attaching the correct discovery 
 13

documents to e-mails and to send them to appropriate parties, and failure to ensure 

communications requesting discovery were reviewed and complied with in a timely 

manner. The appellants also refused to participate in a deposition for which they had 

appropriate notice. Perhaps most significantly, the appellants failed to comply with 

multiple court orders to pay sanctions and to provide specific items of discovery by the 

set deadline. At the time the appellants chose to voluntarily dismiss their claims, they 

had complied with neither of the court’s discovery orders. 

{¶46} All of this conduct delayed discovery and resulted in Natural Essentials 

having to expend excessive time sending requests and reminders to opposing counsel 

and filing motions with the court seeking compliance. We do not find an abuse of 

discretion in the court’s determination that the appellants’ actions amounted to frivolous 

conduct. Chapman at ¶ 38 (“[b]ecause the trial judge has observed the proceedings 

and is most familiar with the parties, their counsel and the basis for their actions, that 

court’s finding of frivolous conduct is entitled to ‘substantial deference upon review’”) 

(citation omitted). Awards of sanctions for frivolous conduct under R.C. 2323.51 have 

been upheld in similar circumstances. See Giles v. Cent. Ohio Technical College, 5th 

Dist. Licking No. 07CA69, 2008-Ohio-3428, ¶ 64 (failure to comply with discovery 

requests and provide documents pursuant to an agreed order, as well as giving 

inconsistent answers regarding existing documents, caused unnecessary delay that 

warranted sanctions); also Bowling v. Stafford & Stafford Co., L.P.A., 1st Dist. Hamilton 

No. C-090565, 2010-Ohio-2769, ¶ 15 (where the documents requested were not 

produced despite the court granting a motion to compel, the parties cancelled multiple 

depositions, and counsel failed to serve documents on the opposing party, this 
 14

constituted sanctionable conduct).

{¶47} To the extent that the appellants argue the conduct was not sanctionable 

under Civ.R. 11, since there was no evidence of “subjective bad faith,” we emphasize 

that false or inaccurate statements appear to have been made in documents filed by the 

appellants regarding whether discovery was provided, and that court orders were 

disobeyed, both of which could be construed as bad faith actions. Regardless, we note 

that the court found sanctions were appropriate under both Civ.R. 11 and R.C. 2323.51. 

Even presuming no bad faith existed, there were still grounds for sanctions under R.C. 

2323.51 for all of the conduct at issue here, which led to the filing of multiple motions to 

compel and enforce court orders, justifying the award against the appellants. See

Chapman at ¶ 48 (where an award made pursuant to R.C. 2323.51 and Civ.R. 11 was 

challenged, the appellate court upheld the award as justified under R.C. 2323.51). 

{¶48} The fifth and sixth assignments of error are without merit. 

{¶49} Finally, in their third assignment of error, the appellants argue that the 

lower court erred by awarding attorney’s fees for the foregoing conduct by relying on 

evidence submitted outside of the sanctions hearing. 

{¶50} “[W]here a trial court has determined a party has engaged 

in frivolous conduct, the decision to assess a penalty lies within the sound discretion of 

the trial court.” Lozada v. Lozada, 11th Dist. Geauga No. 2012-G-3100, 2014-Ohio5700, ¶ 14. 

{¶51} The appellants argue that since there was no testimony given by defense 

counsel or any other defense witness regarding attorney’s fees, the court had to rely on 

records attached to sanctions motions to determine the amount awarded, which is 
 15

improper under Pisanick-Miller v. Roulette-Pontiac Cadillac GMC, Inc., 62 Ohio App.3d 

757, 761, 577 N.E.2d 446 (11th Dist.1991). In reviewing the evidence presented in this 

matter, we disagree. 

{¶52} “[A] hearing is required by R.C. 2323.51(B)(2) before a court can grant an 

award of attorney fees.” (Emphasis omitted.) Dennison v. Lake Cty. Commrs., 

11th Dist. Lake No. 2013-L-097, 2014-Ohio-4295, ¶ 15. Here, there is no question that 

a hearing was held. At that hearing, defendant’s counsel referenced prior filings relating 

to his fees which had been attached to the Motion to Impose Sanctions, presented into 

evidence a Summary of Fees and Expenses and accompanying affidavit attesting to the 

accuracy of the fees charged, stated that he affirmed those were his fees, and 

volunteered to be cross-examined as to the fees (which did not occur). Following the 

hearing, a supplement with additional fees was provided. The court accepted the 

Summary of Fees and Expenses into the record as an exhibit. 

{¶53} While it is accurate that Attorney Lebowitz did not testify at the hearing, we 

find the detailed records of the fees submitted to be sufficient to support the court’s 

award of sanctions. This court has found that, while generally submitting an attorney’s 

bill is insufficient to establish the reasonableness of fees, when the statement “included 

itemized notations of the activities for which he was billing, all of which related to the 

defense of the” specific matter for which fees were sought, the detailed fee statement 

was sufficient to permit the court “to render an informed opinion regarding the 

reasonableness of the fees.” Lozada, 2014-Ohio-5700, ¶ 60-61. Similarly, this court 

has held that an award of attorney’s fees supported by a fee statement submitted into 

evidence at a hearing on a motion for sanctions provided “competent, credible evidence 
 16

that supports the award of attorney fees made by the trial court.” Kucharski v. 

Weakland, 11th Dist. Portage No. 2001-P-0020, 2002-Ohio-5156, ¶ 23. 

{¶54} The Summary of Fees lists each motion filed and the corresponding fees, 

referencing (but not attaching) pertinent exhibits for each motion that had been 

previously presented with the Motion to Impose Sanctions, which provided more 

detailed breakdowns of the specific tasks performed, including research undertaken, 

telephone conversations, time spent drafting each motion, and time spent reviewing and 

proofreading motions. From the Summary and exhibits previously presented, it is 

evident that the court was able to conduct a thorough review of all costs expended and 

the amount of time spent on each relevant task. 

{¶55} To the extent that Pisanick is cited by appellants for the proposition that 

evidentiary materials submitted with motions cannot be considered, we emphasize that 

the Summary of Fees and attached affidavit were submitted at trial and accepted into 

the record. We note that in Pisanick, this court held that “a motion for attorney fees 

under R.C. 2323.51 must be decided solely upon the evidence presented at the 

hearing, not upon evidentiary materials submitted with the motion or otherwise.” Id. at

761. However, we do not believe Pisanick should preclude consideration of the exhibits 

referenced in the Summary of Fees. The affidavit submitted at the hearing attests to the 

fact that all submitted fee records were an accurate accounting of the work undertaken. 

Further, Pisanick has been distinguished in situations where supporting documentation 

was presented prior to the hearing on fees, since Pisanick’s reversal was based, at 

least in part, on the fact that the opposing party had no opportunity to rebut documents 

presented after the hearing. Reddy v. Singh, 3d Dist. Marion No. 9-14-29, 2015-Ohio-
 17

1180, ¶ 65 (“we cannot find that the trial court erred in using the evidence already 

contained in the record [from motions for frivolous conduct] to make its decision on 

frivolous conduct in this case”). Further, subsequent to Pisanick this court has stated 

that courts “may not rely exclusively on what has or has not been submitted with the 

motion itself.” (Emphasis added.) Cic v. Nozik, 11th Dist. Lake No. 2000-L-117, 2001 

WL 822465, *2 (July 20, 2001). We find no reason why the totality of the information 

included in the record in the present case could not be considered by the trial court in 

light of the affidavit supporting the contention that the billing was true and accurate. 

{¶56} Appellants also argue that, pursuant to Attorney Lowery’s testimony, the 

rate charged and amount of time expended by Lebowitz were unreasonable. We do not 

find this to warrant reversal. Defense counsel requested fees in the amount of 

$49,637.66, but the court awarded only $10,000. When awarding attorney’s fees, the 

trial court should calculate the number of hours reasonably expended on the litigation 

multiplied by a reasonable hourly rate, and then may modify the amount by applying 

reasonableness factors, which include, inter alia, time required to perform the service 

properly, the customary fee in the locality, and the experience of the lawyer. Lozada, 

2014-Ohio-5700, at ¶ 54-55, citing Bittner v. Tri-County Toyota, Inc., 58 Ohio St.3d 143, 

145, 569 N.E.2d 464 (1991). In reaching its ultimate award, the lower court clearly took 

into account Lowery’s testimony and arrived at an award that was much lower than had 

been requested. We do not find a ground for interfering with the court’s authority to 

award attorney’s fees since the amount is not “so high or so low as to shock the 

conscience.” Bittner at 146. 

{¶57} The third assignment of error is without merit. 
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{¶58} For the foregoing reasons, the judgment of the Portage County Court of 

Common Pleas is affirmed. Costs to be taxed against appellants. 

COLLEEN MARY O’TOOLE, J., concurs in judgment only, 

THOMAS R. WRIGHT, P.J., concurs with a Concurring Opinion. 

______________________________________ 

THOMAS R. WRIGHT, P.J., concurs with a Concurring Opinion. 

Because appellants did not object to or oppose the admission of counsel’s 

affidavit and fee summary, otherwise inadmissible via Evid.R. 802, Evid.R. 801(C), and 

Evid.R. 901(A), I concur.