Jun 17, 2011

Defense Attorneys Go Home Hungry: Ohio Civil Rights Commission v. Mellon Ridge

The Court of Common Pleas in the County of Warren, Ohio, recently denied defense attorneys’ motion for Attorney’s fees under Fed. R. Civ. P. 11 and R.C. 2323.51 and R.C. 2335.39, in the Ohio Civil Rights Commission v. Mellon Ridge (Case No. 05CV64506 The court denied the fees and said: “Mellon Ridge’s proof of the reasonable and necessary attorney’s fees is problematic in the extreme,” according to the court.

In what started out in the trial phase as a fair housing complaint, Rodney Jackson filed a complaint in the Ohio Civil Rights Commission against Mellon Ridge Residential Care Facility alleging that he had been discriminated against because of his race, and because of the Defendant’s failure to reasonably accommodate his disability. Mr. Jackson required the use of a wheelchair and the services of a service animal, namely, a dog, in order to function.

The court found that the Defendant’s rationale for rejecting Mr. Jackson’s residency was legitimate – Mellon Ridge required proof of vaccinations and health records from a veterinarian before any resident of the facility could be admitted. Thus the court found for the Defendants.

Defendant, Mellon Ridge filed a petition for fees in the amount of $86,668.12. So why didn’t they get it? The Defense even hired “a prominent and well-respected local attorney with many years of litigation experience” to review the billing records and testify at the fee evidentiary hearing. The attorney found that “the amount of fees claimed [were] reasonable and necessary.”

There were billing records, but Defense counsel “…made a calculated choice not to submit his billing records into evidence (in the evidentiary hearing).” Apparently copies of the billing records were made available to the Plaintiffs during discovery, but the Magistrate never saw them. In fact, when asked about the lack of detail in the accounting for attorney’s fees in the evidentiary hearing, Defense counsel stated “I don’t believe the statute requires that kind of explicit detail.”

The only thing even remotely resembling “an itemized list or other evidence of the legal services” required for attorney’s fees under R.C. 2323.51(B)(5) was a short table contained in the Defense’s time affidavit giving the names, the amount of time spent, the hourly rate, and the total amount of fees of each attorney who worked on the case. The court noted, however, that what was NOT included in the time affidavit was “a breakdown of how these hours were spent and what activities were performed.”

Defense counsel was obviously mistaken. The correct way attorney’s fees are calculated per the Lodestar method: the number of hours reasonably expended on a case, multiplied by reasonable attorney’s fees. However, per the Ohio statute, in order to recover attorney’s fees based on frivolous conduct, an itemized list or other evidence of legal services is required.

How could Defense counsel have missed that? The need for an itemized list of legal services being rendered is not mutually exclusive to civil, fair housing cases such as this. The Bankruptcy Code, 11 U.S.C.A. §330, states that “attorney fee applications must include itemized daily entries, with nature and purpose of particular entries noted, with actual time spent on each item, rather than minimum block of time, recorded separately, and abbreviations must be explained.”
The Illinois Appellate Court, Second District, held that “the court is not bound by the attorney's opinion as to what constitutes a reasonable fee and must inquire into all of the necessary factors. The time spent on a case is the factor of greatest importance. An attorney's general statement as to the time spent is an insufficient basis for a fee award and detailed time records are usually required. The attorney must itemize both the time expended and the work performed. In re Marriage of Pease, 106 Ill. App. 3d 617, 623, 435 N.E.2d 1361, 1367 (Ill. App. Ct. 1982).

Under Ohio’s R.C. 2323.51 (B)(5), “the party’s counsel of record may submit to the court or be ordered by the court to submit to it, for consideration in determining the amount of reasonable attorney’s fees, an itemized list or other evidence of the legal services rendered, the time expended in rendering the services and the attorney’s fees associated with those services.” (Emphasis added).
The problem with Defense’s request for attorney’s fees is that the court found the basis for the fees – that the Plaintiffs made a frivolous appeal, was that Plaintiff’s appeal was NOT found to be frivolous. The attorney’s fees expended in the appeal phase was therefore unrecoverable, but how could the Magistrate decide what amount to deduct from the fees when there wasn’t a detailed record outlining which of that $86,000 consisted of defending an appeal?

“Absent detailed billing records, any sum would be a mere shot in the dark – arbitrary and capricious,” the court concluded, refusing to make an award of reasonable and necessary attorney’s fees.

Defense counsel missed out on a slice of the Mellon for failure to follow the fee petition rules.