Joanne Lewis v. Ann Romans, 81-LW-0740
| Decision Date | 24 December 1981 |
| Docket Number | 81-LW-0740,43594 |
| Parties | JoANNE LEWIS APPELLANT, v. ANN ROMANS APPELLEE. |
| Court | Ohio Court of Appeals |
For plaintiff-appellant: Louise McKinney.
For defendant-appellee: Irwin S. Horwitz.
JOURNAL ENTRY AND OPINION
This cause came on to be heard upon the pleadings and the transcript of the evidence and the record in the Shaker Heights Municipal Court, and was argued by counsel for the parties; and upon consideration, the court finds one error prejudicial to the appellant and therefore the judgment of the Shaker Heights Municipal Court is affirmed in part and evesed in part. Each assignment of error was reviewed and upon review the following disposition made:
Plaintiff-appellant JoAnne Lewis commenced this action against defendant-appellee Ann Romans in the Shaker Heights Municipal Court. Appellant maintained that appellee forcibly moved appellant from her tenancy and took possession of her property, all in violation of R.C. 5321.15 (A).®1¯ The trial court rendered summary judgment in favor of appellant on the issue of appellee's liability. The determination of appellant's damages was made by a jury, which awarded appellant $800.
Footnote 1 Revised Code 5321.15(A) states:
No landlord of residential premises shall initiate any act including termination of utilities or services, exclusion from the premises, or threat of any unlawful act, against a tenant, or a tenant whose right to possession has terminated for the purpose of recovering possession of residential premises, other than as provided in Chapters 1923., 5303., and 5321. of the Revised Code.
Appellant requested the trial court instruct the jury regarding her right to attorneys' fees.®2¯ The court refused because it found that since appellant was represented by the Legal Aid Society ("Legal Aid") and had personally incurred no legal fees, she was not entitled to recover.
Footnote 2 Revised Code 5321.15(C) provides for the award of attorney fees where a landlord violates R.C. 5321.15(A). Revised Code 5321.15(C) states:
A landlord who violates this section is liable in a civil action for all damages caused to a tenant, or to a tenant whose right to possession has terminated, together with reasonable attorneys fees.
Appellant appealed to this court and argued that the trial court erred in refusing to permit an award of attorneys' fees. In a reported decision, we held that it was of no consequence under R.C. 5321.15(C) that appellant incurred no out-of-pocket legal expenses and that attorneys' fees should be awarded directly to Legal Aid. Lewis v. Romans, Ohio App. 2d , No. 41503 ("Lewis I"). We then remanded the case for a determination of the amount of the attorneys' fees with the instructions that the amount of such fees were to be committed to the discretion of the trial court and not the jury and were to be determined in accordance with the standards set forth in Swanson v. Swanson (1976), 48 Ohio App. 2d 85.
Upon hearing this case on remand, the trial court decided it was without power to award attorneys' fees because the power to award such fees was within a court's general equitable powers and that municipal courts had no general equitable powers.®3¯ Despite this holding, the trial court stated that Legal Aid was only entitled to fees in the amount of $350 even though it had requested $8,800.
Footnote 3 The trial court reasoned that municipal courts were specifically provided for under law and were of a limited nature. Only in contract cases, the trial court held, did it have power to grant equitable relief. See R.C. 1901.18(C).
Appellant again appeals to this court, assigning two errors.
THE TRIAL COURT ERRED IN REFUSING TO ENTER JUDGMENT AGAINST THE DEFENDANT IN FAVOR OF LEGAL AID SOCIETY OF CLEVELAND FOR ATTORNEY FEES AND COSTS.
It is well settled that municipal courts can exercise only such powers as are conferred upon them by statute. State ex rel. Foreman v. Bellefontaine Municipal Court (1967), 12 Ohio St. 2d 26; State ex rel. Talaba v. Moreland (1936), 132 Ohio St. 71; State ex rel. Finley v. Miller (1934), 128 Ohio St. 442; Soul v. Lockhart (1928), 110 Ohio St. 393; Jacubenta v. Dunbar (1964), 120 Ohio App. 249; State v. McCoy (1953), 94 Ohio App. 165; Lynam v. Schueler (1946), 79 Ohio App. 101. Revised Code 1901.18 delineates those matters over which a municipal court has jurisdiction. It states in relevant part:
Subject to section 1901.17®4¯ of the Revised Code, a municipal court has original jurisdiction within its territory:
Footnote 4 Revised Code 1901.17 provides that the municipal court shall not have jurisdiction in cases where the claimed amount exceeds $10,000.
It is clear from the reading of this statute that the trial court had jurisdiction to entertain appellant's original claim for appellee's violations of R.C. 5321.15(A). Once it had jurisdiction to hear this matter, pursuant to R.C. 1901.13(D),®5¯ the court then had the power to determine all equitable remedies necessary to determine the rights of the parties. The equitable remedy necessary to dispose of all the parties' rights herein was the awarding of attorneys' fees to Legal Aid.®6¯ See Lewis I. Accordingly, the trial court erred in finding it was without jurisdiction to award attorneys' fees to Legal Aid. The first assignment of error is sustained.
Footnote 5 Revised Code 1901.13(D) provides in pertinent part:
Whenever an action or proceeding is properly brought in a municipal court within Cuyahoga County, the court has jurisdiction to determine, preserve, and enforce all rights involved therein, and to hear and determine all legal and equitable remedies necessary or proper for a complete determination of the rights of the parties.
Footnote 6 Appellant suggests another ground upon which this court can hold the trial court had jurisdiction to grant attorneys' fees. She maintains that the provisions of the Landlord-Tenant Act (Chapter 5321) are automatically part of the rental agreement between appellant and appellee. Hence, any violation of the act, such as appellant's violation of R.C. 5321.15(C), results in a breach of contract. Pursuant then to R.C. 1901.18(C) quoted in the text infra, the court had the power to grant equitable relief. We find her argument to be valid. In Laster v. Bowman (1977), 52 ohio App. 2d 379, this court stated in dicta that the rights and remedies encompassed in Chapter 5321 were part of the rental agreement between a landlord and a tenant. Subsequently, in Colquett v. Byrd (1979), 59 Ohio Misc. 45, the Mansfield Municipal Court held that where the landlord violated R.C. 5321.15, the municipal court was empowered to grant equitable relief pursuant to R.C. 1901.18(C).
THE TRIAL COURT ERRED IN FINDING THAT A REASONABLE ATTORNEY FEE FOR THE CASE IS ONLY $350.00.
Legal Aid maintained below that it spent 172.5 hours of time on this case. One attorney, Kenneth D. Petrey, spent 42.5 hours and contended his hourly rate, in light of his experience, was $70 per hour for a total of $2,975. A second attorney on this case, Louise McKinney, spent 130 hours on this case; 20.5 hours were spent prior to her admission to the bar.®7¯ Legal Aid maintained her time was worth $40 per hour for a total of $2,975. In addition, Legal Aid sought reimbursement for $627.50 it expended for transcripts and appellate fee. As a matter of law, we find this method of determining fees to be deficient. See Swanson at 91.
Footnote 7 We note that the trial court incorrectly found that Ms. McKinney was a legal intern during the entire time she represented appellant. The record undisputedly reveals that she was an intern for only 20.5 of those hours.
In Swanson, this court set forth the standards to be followed in determining the amount of attorneys' fees to be awarded. Following DR 2-106(B), Code of Professional Responsibility (1970), 23 Ohio St. 2d, this court set forth guidelines for determining the reasonableness of a fee. They include:
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