Chapel v. Wheeler Growth Co.

• Docket Number: APPEAL NO. C-220662
• Decision Date: 03 November 2023
• Citation: Chapel v. Wheeler Growth Co., 228 N.E.3d 80 (Ohio App. 2023)
• Parties: William CHAPEL, Plaintiff-Appellee, v. WHEELER GROWTH CO., Defendant-Appellant, and Millstone Valley Contracting, Inc., et al., Defendants.
• Court: Ohio Court of Appeals

228 N.E.3d 80

2023-Ohio-3988

William CHAPEL, Plaintiff-Appellee,

v.WHEELER GROWTH CO., Defendant-Appellant,andMillstone Valley Contracting, Inc., et al., Defendants.

APPEAL NO. C-220662

Court of Appeals of Ohio, First District, Hamilton County.

Date of Judgment Entry on Appeal: November 3, 2023

Civil Appeal From: Hamilton County Court of Common Pleas, TRIALNO. A-1904329.

Finney Law Firm, LLC, Christopher P. Finney and Julie M. Gugino, Cincinnati, for Plaintiff-Appellee.

Yonas and Phillabaum, LLC, Jason Phillabaum Cincinnati, and Hope Platz-becker, for Defendant-Appellant.

OPINION.

Bergeron, Judge.

{¶1} One of the venerated stories in American folklore involves a six-year-old George Washington taking a hatchet to his father’s cherry tree.Upon discovering the damaged tree, George’s father confronted him, leading brave young George to admit, "I cannot tell a lie … I did cut it with my hatchet."Today, most historians consider this story as myth, rather than fact.At trial in the case before us, defendant-appellantWheeler Growth Company("Wheeler") spun its ,own tree-cutting tale—that it had neighbor and plaintiff-appelleeWilliam Chapel’s permission to cut down his black walnut free near the property line.Unfortunately for Wheeler, the trial court found its story backed up by about as much proof as the Washington cherry tree legend.Because we conclude that the trial court did not err in finding that Wheeler authorized the tree removal and acted with malice, we affirm its judgment and its decision to award punitive damages and attorney’s fees.Furthermore, because the court acted within its discretion in awarding the attorney’s fees amount requested by Mr. Chapel, we affirm its award.

I.

{¶2} Wheeler owns a residential property in Cincinnati’s Clifton neighborhood.A retaining wall abuts the property’s west end, separating it from residential properties located below.In May 2019, heavy rains in the area caused the retaining wall to start collapsing.Justin Haskamp, a local attorney who manages the property on Wheeler’s behalf, coordinated with the city of Cincinnati for permitting and approval of plans to replace the retaining wall.He hired defendantMillstone Valley Contracting, LLC("Millstone"), owned and managed by Mark Schlichter, to complete the teardown and rebuild.

{¶3} Early in the planning phase, Wheeler’s plans hit a snag in the form of a 40-year-old black walnut tree, located in Mr. Chapel’s yard.Because the tree’s trunk rose mere inches from the bottom of Wheeler’s collapsing retaining wall, it threatened to interfere with the wall’s reconstruction.Mr. Chapel, a former University of Cincinnati carpenter, shared at trial his fondness for his tree, both for its shade and for its walnuts, which he cracked and dried out annually.In late July 2019, Mr. Haskamp, claiming to have Mr. Chapel’s permission, ordered Millstone to cut down and remove the tree to facilitate the construction of the new retaining wall.Under Millstone’s instruction, a subcontractor removed the tree.

{¶4} Mr. Chapel arrived home that evening from work only to see a stump where a majestic tree once stood.Shocked, he called 911 in an effort to ascertain who stole his tree.Eventually piecing together what happened, Mr. Chapel filed suit against Wheeler and Millstone in September 2019, claiming trespass, violation of R.C. 901.51(injuring trees on land, of another), unjust enrichment, conversion, theft, and replevin, and also accusing Wheeler of acting with malice.After a bench trial in which Wheeler agreed that Millstone and its subcontractor were acting on its behalf, the court entered judgment against Wheeler for trespass (with malice) and for violation of R.C. 901.51.It awarded Mr. Chapel $4,400 in compensatory damages for Wheeler’s removal of his tree and some fence panels and for the unauthorized use of heavy equipment on his property.Because the trial court concluded that Wheeler acted with malice, it also awarded $8,800 in punitive damages and signaled its intent to award attorney’s fees to Mr. Chapel, who was represented on a contingent fee basis.

{¶5} Throughout this litigation, Mr. Chapel denied ever giving Mr. Haskamp permission to cut down the tree, forming the basis of his malice claim.Mr. Haskamp tells a different story.At trial, he claimed to have had at least four conversations about the tree with Mr. Chapel—two prior to the removal and two immediately after.First, soon after the wall began to collapse in mid-May, Mr. Haskamp, acting on behalf of Wheeler, claims he spoke with Mr. Chapel over the phone, telling him that "the tree had to be cut down from my understanding."Mr. Haskamp indicated that he held this belief because "multiple people," including Millstone and a city of Cincinnati building inspector, Emilio Voltaire, told him the tree had to come down for proper reconstruction of the retaining wall.Mr. Haskamp admits that Mr. Chapel refused to give permission to cut down the tree during this phone call.

{¶6} In multiple emails to Mr. Voltaire after the call, Mr. Haskamp reiterates his troubles, stating: "Our neighbor behind has a walnut tree, that he refused to let us cut down (grow on his side) but our contractor is saying that it has to go.Can you/the city help us get him to act like you made me for my neighbors [sic] driveway repair?"Mr. Voltaire replied the next day explaining that Mr. Haskamp could file a formal complaint to initiate that process.That same day, Mr. Haskamp followed up: "[T]he neighbor with the walnut tree refuses to let us cut down at our expense even so I think we will need your help."Mr. Haskamp suggested that Mr. Chapel "seemed to relent" about the tree after a second conversation that occurred in-person near the properties in which Mr. Haskamp offered to cut down the tree at his own expense.Mr. Chapel denies ever speaking to Mr. Haskamp about the tree before he issued the edict to topple it.

{¶7} In the lead-up to the unfortunate felling, Mr. Schlichter, on behalf of Millstone, asked Mr. Haskamp whether he had told Mr. Chapel that his tree "needs to go."In response, he asserted, "Yes he does and the city inspector told him so and he agreed."After Mr. Schlichter requested written confirmation, which Mr. Haskamp never supplied, Mr. Haskamp assured him that Mr. Chapel had agreed to the removal according to Mr. Voltaire, the city inspector.At trial, Mr. Voltaire denied ever even asking Mr. Chapel for his permission, let alone telling.Mr. Haskamp that he had given it.Despite "No Trespassing" signs placed near the tree facing the workers, Mr. Haskamp ordered the tree cut down in late July 2019.

{¶8} After the cutting of the tree, Mr. Chapel placed am additional "No Trespassing" sign directly on the stump, but Wheeler’s contractors removed what remained of the tree and some fence panels anyway, making use of Mr. Chapel’s property in the process.In two subsequent phone calls that Mr. Chapel maintains never occurred, Mr. Haskamp claims that Mr. Chapel "said that he was going to surrender."

{¶9} Yet no white flag was raised.Across several years of contentious litigation, the parties eventually arrived at trial, with a victory for Mr. Chapel.Afterwards, the case ballooned far beyond the value of a single, albeit meaningful, black walnut tree.After a hearing with testimony from Mr. Chapel’s counsel and from experts on both sides, the court awarded Mr. Chapel $191,984 in attorney’s fees and $17,652.53 in costs and expenses, totaling $209,636.53.The court calculated these amounts based on a "lodestar" formula submitted by Mr. Chapel’s attorneys: 526 hours worked (plus a few hours for the fees hearing), multiplied individually by the hourly rates of the respective attorneys (ranging from $255 to $475 per hour) and staff (averaging about $150 per hour).They supported their fees application with a 43-page line-item work ledger, breaking down tasks with individual descriptions and listing the corresponding attorney or staff member.Additionally, Mr. Chapel’s counsel testified as to how the fees were justified under the Prof.Cond.R. 1.5(a) factors, which trial courts can use to assess reasonableness.Although Wheeler’s expert suggested that the overall hours and fees were unreasonable for a property case involving only a few thousand dollars in potential compensatory damages, he did not challenge the reasonableness of any specific tasks listed in opposing counsel’s application.However, Wheeler did cross-examine Mr. Chapel’s testifying attorney about the length of specific tasks billed, such as phone calls and emails, and argued generally to the court that Mr. Chapel’s attorneys had performed some unnecessary tasks.Wheeler did not contest the hourly rates, and the court concluded that the hours, rates, and expenses were fair and reasonable.

{¶10} On appeal, Wheeler raises three assignments of error.First, it contests the court’s finding that it acted with mallee in authorizing its contractors to enter Mr. Chapel’s property and to remove the tree.Its second assignment of error depends upon the first—it argues the court erred in awarding punitive damages and attorney’s fees at all because the trial court can’t award either without a finding of malice under these circumstances.Third, Wheeler contends the trial court awarded Mr. Chapel an, unreasonably high amount of attorney’s fees.Because the first and second assignments relate to the finding of malice, we address them together before turning to the reasonableness of the court’s attorney’s fees award.

II.

[1–3]{¶11} Wheeler’s first and second assignments of error challenge the court’s factual finding of malice."The standard of review following a civil bench trial is whether the trial court’s judgment is against the manifest weight of the evidence as supported by competent, credible evidence."Downtime Rebuild, LLC v. Trinity Logistics, Inc., 2019-Ohio-1869, 135 N.E.3d 1258, ¶ 12 (1st Dist.), citingEastley v. Volkman,...