John M. Stafford appeals a trial court's judgment regarding attorney fees awarded after a ruling against the Bellbrook-Sugarcreek School Board for violations of the Open Meetings Act (OMA). The trial court partially sustained Stafford's objections to a magistrate’s decision, awarding him $48,562.50 in fees but reducing his attorney’s hourly rate from $325 to $200 and reducing his total fee request by 30% without justification. Stafford raised several points of contention: the unsupported reduction of the hourly rate, the unjustified decrease in hours, denial of fees related to a fee application, lack of clarity on accepted and rejected fees, exclusion of expert fees, and omission of two pages of billing summaries. While most of his arguments were deemed lacking merit, the court acknowledged an abuse of discretion in reducing the hourly rate. The appropriate hourly rate determined should be $250. The appellate court reversed the trial court’s judgment and remanded the case for recalculation of the fee award. The underlying case involved a complaint filed by Stafford in September 2019, which included extensive allegations against the school board, leading to a permanent injunction and civil forfeitures, followed by an attorney-fee hearing where Stafford initially sought $224,506.72 in fees.
Stafford contested the magistrate’s ruling, asserting errors in three key areas: (1) the magistrate awarded only 269.7 hours of recoverable attorney fees instead of the 475.8 hours claimed, (2) the hourly rate for attorney Clinger was reduced from $325 to $200, and (3) the exclusion of expert witness fees totaling $13,276.81 for Sussman. Additionally, the respondents objected, claiming Stafford improperly introduced billing summaries and was not entitled to fees for discovery-related litigation. The trial court addressed these objections in a Decision and Judgment Entry dated January 19, 2022, which included comprehensive factual findings supported by testimony from a fee hearing.
Stafford was represented by two law firms: McTigue, Colombo and Waite, Tomb, Eberly. McTigue, Colombo was retained in June 2019 to investigate potential misuse of public resources and Open Meetings Act violations related to the Bellbrook Sugarcreek School District, with a fee agreement set at $325 per hour, consistent with local rates. Attorney Derek Clinger initiated public records requests that uncovered emails and documents forming the basis of Stafford’s claims. Stafford had already acquired meeting minutes pertinent to alleged violations before retaining McTigue, Colombo.
Waite, Tomb, Eberly was engaged around September 2019 to assist with the case, having a long-term relationship with Stafford. Attorney Wayne Waite and Jeremy Tomb, who had extensive experience with Open Meetings Act cases, represented Stafford under a fee agreement of $250 per hour for attorney services and $125 per hour for paralegal work. While Waite, Tomb, Eberly contributed to the Complaint, McTigue, Colombo retained primary drafting responsibilities. At the attorney fee hearing, Stafford had several open billing entries for various matters, with some billing submitted by Waite, Tomb, Eberly reflecting work outside the Open Meetings Act litigation scope.
Billing entries include Stafford's efforts to obtain a civil protection order against Matthew Yoxtheimer, which Stafford argues are pertinent to the case due to Respondents’ counsel's motion to intervene and request for a protective order in the civil protection order proceedings. After the complaint was filed on September 19, 2019, Clinger continued to seek public records from the school district and various third-party entities, including the City of Bellbrook and the Greene County Sheriff’s Office. Clinger discovered that the school district superintendent was involved in sending emails related to a levy election, revealing additional communications and including a school board member in those discussions. Amid ongoing litigation, Clinger also represented Stafford in a case against a political action committee supporting the school district's levy, where the same attorneys for Respondents also represented the superintendent in an Ohio Elections Commission matter. Nearly identical protective order motions were filed in both cases simultaneously. Clinger’s billing included references to the Ohio Elections Commission case due to overlapping arguments and evidence. Both law firms prepared a spreadsheet supporting the attorney fee application, with McTigue, Colombo investigating potential misuse of public resources and Open Meetings Act violations. Clinger adjusted billing entries based on the relevance to the current case, ensuring privileged communications were protected. Those entries were reviewed and modified as needed in collaboration with Colombo. Waite, Tomb, Eberly maintained separate billing systems, with Tomb noting that only entries directly relevant to the case were included in the fee application. He excluded unrelated billing items, particularly those involving collateral attacks on Stafford. The final spreadsheets from both firms were submitted to Erin Sussman at Sterling Analytics for further evaluation.
Sterling Analytics, a national and international consulting firm specializing in legal invoice review and validation, engaged Erin Sussman, a licensed New York attorney and Global Services Manager, to analyze legal invoices from McTigue, Colombo and Waite, Tomb, Eberly. Sussman, who has extensive experience in ethical billing and has not previously testified regarding the Ohio Open Meetings Act, conducted a detailed line-by-line examination of the invoices, identifying issues such as block billing, vague entries, and duplicative work. The review involved collaboration with both law firms, leading to multiple revisions of billing entries.
Sussman recommended significant adjustments, including reducing Derek Clinger's hourly rate to that of a paralegal for clerical tasks, eliminating certain clerical billings entirely, and cutting travel billing to 50% of the timekeeper's rate. Most instances of multiple billings for the same task were streamlined to a single entry. She applied billing judgment to interoffice and inter-firm communications, retaining those deemed strategic or valuable.
Her analysis resulted in the identification of nearly 100 hours of billing, totaling 12% of the fees originally submitted, that were recommended for removal. To assess billing rates in Ohio, Sussman referenced an annual Real Rate Report, finding a $250 hourly rate reasonable across various benchmarks, including Columbus and Cincinnati. She noted that Wayne Waite's higher rates were justified due to his experience in a niche practice area, although he typically charged less than his potential market rate.
Bernard Wharton, an Ohio attorney since 1994, specializes in municipal, government, and school law, predominantly representing school boards. He was engaged by Respondents to evaluate Stafford’s request for attorney fees. Wharton determined that the case was straightforward under the Open Meetings Act, noting Respondents' admission of some violations in their Answer. He suggested that after the Answer, the logical course was either to reach an agreed injunction or file a Motion for Judgment on the Pleadings. However, he observed significant delays and complexities beyond the Open Meetings Act issues, indicating personal animus between the parties.
The trial court addressed Stafford's challenges to the magistrate's reduction of recoverable attorney-fee hours and rejected most arguments, including the reduction of Clinger’s hourly rate from $325 to $200 and the recovery of costs for hiring fee-expert Sussman, citing the Open Meetings Act did not allow such expenses. The court found no error in allowing Stafford to present billing summaries or in the magistrate's rulings on fees related to discovery motions. After reviewing the case record, the court concluded that expending 475.8 hours on a case resolved through cross-motions for judgment was unreasonable, especially given the admissions made by Respondents.
The Court identified 180.3 hours of unnecessary legal work performed by counsel, comprising 87.2 hours of redundant tasks among attorneys and 93.1 hours deemed unreasonable for the litigation. This overstaffing issue was highlighted by the billing records, which showed multiple attorneys charging for reviewing the same documents. Notably, six attorneys and two paralegals logged 121.1 hours on a protective order that could have been resolved earlier. Consequently, the Court decided to reduce the remaining 295.5 hours billed by 30%. After establishing reasonable hourly rates for Stafford’s legal team, the Court calculated a total fee award of $48,562.50, incorporating the relevant professional conduct rules without further adjustments. An appeal followed, focusing on whether the trial court abused its discretion in its fee award under R.C. 121.22(I)(2), which allows the court to order reasonable attorney fees for the prevailing plaintiff. The standard for reviewing such awards is whether there was an abuse of discretion, defined as decisions that are unreasonable, arbitrary, or unconscionable.
In a specific assignment of error, Stafford challenged the reduction of attorney Derek Clinger’s hourly rate from $325 to $200, asserting that there was insufficient evidence for this adjustment. The trial court justified the reduction by noting Clinger's less than five years of experience and highlighted that the basis for his original rate was related to his firm’s niche in election law, which was not applicable in this case. The respondents countered that Stafford did not sufficiently demonstrate the reasonableness of Clinger's proposed rate, with an expert supporting a lower rate of $250 for another attorney involved in the case.
The trial court deemed $200 per hour a reasonable rate for attorney Clinger's services, after comparing the attorneys’ rates and experience. However, this reduction from Clinger’s $325 hourly rate was found to be unreasonable and unsupported by the record. Clinger’s expertise in OMA cases was highlighted, and he testified that he and his partners, Don McTigue and Corey Colombo, charged Stafford $325 per hour, which was lower than their usual rates. Fee expert Sussman characterized McTigue and Colombo as a niche "election law firm" and acknowledged their extensive experience in government litigation, which typically commands higher rates. Sussman gathered data on customary attorney rates from the "Real Rate Report," indicating that $250 per hour was reasonable, though she acknowledged that Wayne Waite, who charged that rate, could have billed more due to his long-standing relationship with Stafford. Average rates for partners in Columbus ranged from $375 to $516 per hour, while associates charged between $235 and $370 per hour. Sussman found the rates charged by both law firms involved to be reasonable for the area. Attorney Tomb, familiar with rates in southwest Ohio, considered the $250 rate for Stafford to be in the bottom third of acceptable fees, while McTigue and Colombo's $325 rate was deemed reasonable. Colombo noted that his firm specializes in election law and typically charges $450 per hour but offered a reduced rate to Stafford. Lastly, attorney Wharton testified that his own fees ranged from $250 to $350 per hour for OMA case defense work and considered $250 per hour a reasonable rate for Stafford’s attorneys, though he did not specifically address Clinger’s rate.
Opinions on a reasonable hourly rate for Clinger's work were solely based on his experience as an attorney. The court found it unreasonable to conclude that Clinger's fair rate was $200 per hour, noting that no witness supported such a reduction. Clinger's typical rate was $325 per hour, with other attorneys indicating that rates of $250 and $375 were reasonable. Wharton, a witness for the respondents, suggested that a rate higher than $250 could be justified. Consequently, the court determined that reducing Clinger's rate to below $250 was an abuse of discretion.
Regarding Stafford's second assignment of error, he argued that the trial court improperly applied a 30-percent reduction to hours billed after already excluding 180.3 hours deemed unnecessary or unrelated to the case, which he claimed constituted double counting of deductions. However, the court found Stafford's argument meritless, stating that the lodestar figure—a reasonable hourly rate multiplied by the hours worked—should only be modified based on factors not included in the lodestar calculation. The court noted that the trial court had valid reasons for rejecting certain hours, including excessive communication and unrelated tasks. Thus, no improper double counting was identified, and the deductions were deemed appropriate.
The trial court raised concerns regarding the overstaffing and prolonged nature of the case, ultimately resolved on cross-motions for judgment on the pleadings, indicating that all necessary information was contained within the complaint and answer. The court highlighted that Stafford’s attorneys billed 121.1 hours for a protective order motion, deeming a further 30-percent reduction appropriate due to avoidable hours resulting from Stafford not seeking a judgment on the pleadings sooner. The court found no abuse of discretion in this additional reduction, which was distinct from a previous reduction of 180.3 hours. Stafford's complaint was filed in September 2019, with the respondents answering in November 2019, followed by litigation on the protective order. Ultimately, the trial court barred Stafford from making disparaging remarks on social media but allowed him to disclose information solely obtained through discovery. The court issued six $500 forfeitures and a permanent injunction against the respondents. The trial court's decision to further reduce Stafford's attorneys’ hours was supported by the record, which indicated that the case involved extraneous issues not directly related to the merits of the claims. Stafford's reference to a Tenth District case was dismissed, as it involved impermissible double counting, unlike the circumstances in this case.
The trial court's decision to reduce the hours billed and apply a 30% reduction in the lodestar calculation is justified based on different considerations than those in the Calypso case. Stafford's third assignment of error, claiming the trial court abused its discretion in denying attorney fees for the preparation of his fee application and hearing, is rejected. The trial court relied on the precedent set in State ex rel. Plain Dealer Publishing Co. v. Cleveland, which determined that attorney fees for fee application preparation were not recoverable under R.C. 149.43(C) of Ohio’s Public Records Act. Stafford argues this case is not applicable to his request under the Ohio Open Meetings Act (OMA) and asserts that the ruling was discretionary at that time, unlike the mandatory nature of attorney fees under the current OMA. However, the court finds no error in the trial court's denial, noting that in both the Plain Dealer and White v. Clinton Cty. Bd. of Commrs. cases, the Ohio Supreme Court held that such fees were outside the scope of recoverable attorney fees under both the Public Records Act and the OMA. Therefore, despite Stafford's claims, the trial court's decision aligns with established precedents that deny recovery for attorney fees related to fee applications.
The award of attorney fees related to Stafford's fee application and hearing is determined to be outside the scope of R.C. 121.22, leading to the overruling of the third assignment of error. In the fourth assignment, Stafford argues that the trial court did not provide a sufficiently detailed explanation for its fee award decisions, including which attorney hours were accepted or rejected. While the magistrate did not address each billing entry individually, it did specify the types of excluded entries and their reasons. The trial court, in its comprehensive 24-page ruling, examined roughly 250 billing entries and justified its decisions, countering Stafford's claims of insufficient explanation. The court found no abuse of discretion regarding the trial court’s detailed analysis. In the fifth assignment, Stafford contends the trial court erred by not including expert witness fees in litigation costs. However, the court upheld the trial court’s decision, clarifying that the expert fee incurred for reviewing the fee application did not qualify as a court cost or attorney fee under R.C. 121.22(I). Stafford's citations from workers’ compensation cases were deemed inapplicable, as those statutes were broader and explicitly included expert fees.
The Ohio Supreme Court in Moore clarified that under R.C. 4123.519, the legislature aimed to ensure that a claimant’s recovery is not diminished by reasonable litigation expenses related to appeals. Specifically, it included expert witness fees for depositions in the definition of costs associated with legal proceedings. The court distinguished this from other civil case cost classifications, deeming cases like Plain Dealer and White more relevant than those involving different statutory language.
In the case at hand, Stafford's appeal regarding litigation expenses was rejected, as the court found that the expenses incurred for review and testimony by Sussman did not constitute "court costs." Additionally, Stafford's sixth assignment of error claimed the trial court improperly excluded two pages from McTigue and Colombo’s billing summaries, which contained pre-complaint entries for public-record requests and related communications. The magistrate had denied these entries due to a lack of clarity regarding their relevance.
Upon review, the trial court identified that while some billing hours were reasonable and necessary for the case, others lacked sufficient detail to confirm their relevance, particularly those relating to third-party public records that did not involve the necessary majority of school board members to constitute Open Meetings Act violations. Furthermore, hours billed for activities related to a "threatening letter" were deemed unrelated to the case and thus not recoverable.
The Court modifies the Magistrate’s decision to include 1.5 hours billed by Derek Clinger for finalizing eight specific public records requests but overrules the remainder of Stafford’s objections. Stafford argues that pre-lawsuit public records requests were essential for investigating Open Meetings Act (OMA) violations related to his complaint. He claims that initial billing summaries reflect necessary efforts to obtain relevant information, asserting the need to "cast a wide net" for uncovering details pertinent to his claims. However, the trial court found it challenging to determine which requests were connected to the OMA violations in question. The Court concluded that the trial court was not required to award attorney fees for all failed attempts to uncover OMA violations. The trial court's analysis of the billing summaries was deemed reasonable, and no abuse of discretion was found. Consequently, Stafford's first assignment of error is sustained, leading to a reversal of the trial court’s award of $48,562.50 in attorney fees plus court costs, with instructions to recalculate the fee at a rate of $250 per hour for Clinger. Judges Epley and Lewis concurred in this decision.
