Fair Housing Advocates Assoc. Inc. v. Charles James

• Decision Date: 18 September 1996
• Docket Number: 17622,96-LW-4127
• Parties: FAIR HOUSING ADVOCATES ASSOC. INC., Appellant v. CHARLES JAMES, ET AL., Appellees C.A.
• Court: Ohio Court of Appeals

FAIR HOUSING ADVOCATES ASSOC. INC. Appellant v. CHARLES JAMES, ET AL., Appellees

No. 17622.

96-LW-4127 (9th)

Court of Appeals of Ohio, Ninth District Summit

September 18, 1996

APPEAL FROM JUDGMENT ENTERED IN THE COMMON PLEAS COURT COUNTY OF SUMMIT, OHIO CASE NO. CV94 10 3383.

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

DECISION

SLABY Judge.

Fairhousing Advocates Association, Inc., (FAA) appeals from the Summit County Court of Common Pleas' decision awarding it attorney fees, asserting the amount of the award is insufficient. Charles and Donna James (Landlords) cross-appeal from that decision, questioning the propriety of the attorney fee award. We reverse.

FAA is a private, nonprofit corporation which was formed in February of 1993 in order to promote awareness of, as well as compliance with, the federal and state fair housing laws. In fulfilling its mission, FAA makes "tester" telephone calls to various landlords claiming to be a potential tenant in order to assess whether such landlords might be violating the fair housing laws. On one such occasion, FAA called Landlords posing as a single parent with a four-year-old child who was seeking a one bedroom apartment. When Landlords refused to rent to the fictitious single parent because of the claimed child, FAA alleged they had violated the law prohibiting discrimination based on familial status.

After reporting the matter to the appropriate administrative agencies and apparently exhausting its administrative remedies, FAA filed an action against Landlords in the Summit County Court of Common Pleas. In its complaint, FAA alleged violations of the federal and state fair housing laws seeking damages for, inter alia, "the deflection of its resources of its education and counseling services in order to eliminate [Landlords'] conduct." The complaint also specified FAA's demand for attorney fees. The state claim was eventually dismissed and a bench trial commenced on the federal claim, 42 U.S.C. 3601 et seq.

At trial, FAA submitted evidence of the telephone conversation and its damages; it produced no evidence of any expense concerning the attorney fees. After the trial on May 31 1995, the trial court issued an opinion and final judgment entry on June 6. It found Landlords in violation of federal law and awarded FAA damages of $100 plus court costs.^[1] Neither the opinion nor the journal entry indicated an award of attorney fees. FAA did not seek to challenge the final order by a new trial motion or a motion for relief from judgment, and no appeal was taken from the decision.

Nevertheless, after the time for appeal expired, FAA moved for attorney fees on July 10th. Over Landlords' objection, its motion was granted. At the hearing to determine the amount of the fee award, FAA sought $16, 866. The trial court awarded fees in the amount of $2,000. These appeals followed.

We need only consider Landlords' first cross-assignment of error:^[2]

CROSS-ASSIGNMENT OF ERROR I

The trial court erred, as a matter of law, in considering a post trial motion for attorney fees following a final appealable order.

Landlords contest the trial court's authority to consider FAA's post-trial motion for attorney fees. Because FAA moved for fees only after the final judgment entry, we agree.

FAA argues that the federal substantive law entitling a prevailing party in a federal fair housing claim to attorney fees, which states only that it allows "reasonable attorney fees and costs," is somehow dispositive concerning the timing of an application for attorney fee awards. 42 U.S.C. 3613(c)(2); see, also 42 U.S.C. 1988. While the statute controls if attorney fees are available at all in this federal claim, it does not designate when or how such a claim for attorney fees should be made. Accordingly, because the federal statute does not address the period in which a claim for fees may be asserted, we find that the timing of FAA's motion for attorney fees is a procedural matter governed by state law.^[3]

Prior to the enactment of the Ohio Rules of Civil Procedure, the Ohio Supreme Court decreed that "the stability of judgments would be destroyed" if it allowed a court to consider awarding attorney fees after the judgment has become final and the term has terminated. See State v. Court of Common Pleas of Cuyahoga County (1950), 154 Ohio St. 74, 77.

After the enactment of the civil rules, in Mills v. Dayton (1985), 21 Ohio App.3d 208, 210, the Court of Appeals for Montgomery County came to a similar conclusion, finding that the principle of finality required certain motions for costs to precede a final judgment entry. More specifically, it ruled that the legislature intended a motion for prejudgment interest to be made and determined prior to the entry of final judgment.^[4] Id. at paragraph two of the syllabus; see, also, Civ.R. 54(D). Similarly, unless otherwise provided by statute, we hold that attorney fees cannot be awarded after the ultimate conclusion of a case as provided in Civ.R. 58(A). Therefore, a party should either present evidence of its attorney fee expenses at trial or move for an award of fees before the court issues the final judgment.

In the case sub judice, FAA could have sought bifurcation pursuant to Civ.R. 42(B), reserving the attorney fee issue until after it had succeeded on the merits. For whatever reason, it chose not to do so. Instead, rather than utilize the prescribed procedures, it simply waited until after the trial and the final judgment entry to move for its fees. Moreover, nothing prevents a party from presenting a claim for attorney fees in its case in chief in a bench trial.^[5] In fact, in the instant case, that is what FAA declared it would do in its complaint. However, after such notice, it then failed to present any evidence on the matter at trial. Understandably, the trial court did not award FAA any fees. See, e.g., Smith v. Padgett (1987), 32 Ohio St.3d 344, 349.

We decline to allow FAA a second chance to litigate an attorney fee issue which might properly have been presented at trial. Accord McGinnis v. Donatelli (1987), 36 Ohio App.3d 120, 121. Likewise, we rule that the trial court had no jurisdiction to modify its final judgment concerning FAA's attorney fees once its judgment had been properly filed with the clerk.^[6] See Cale Products, Inc. v Orrville Bronze & Alum. Co. (198...