Opinion
C.A. NO. 18992
January 20, 1999
APPEAL FROM JUDGMENT ENTERED IN THE BARBERTON MUNICIPAL COURT COUNTY OF SUMMIT, OHIO CASE NO. 95 CVI 1229.
APPEARANCES:
PAUL M. GREENBERGER, Attorney at Law, for Appellant.
KENNETH R. TELEIS, Attorney at Law, for Appellees.
Appellant GMS Management Co., Inc. ("GMS"), appeals a judgment granting appellees Charles and Lizabeth Christe supplemental attorneys' fees. This Court affirms.
I.
The Christes originally brought this action against GMS seeking the refund of a security deposit. The trial court eventually granted the Christes summary judgment and awarded them damages and attorneys' fees pursuant to R.C. 5321.16. GMS filed a direct appeal from the award of summary judgment and this Court affirmed in Christe v. GMS Management Co., Inc. (Oct. 22, 1997), Summit App. No. 18267, unreported.
Following the direct appeal, the Christes filed a Civ.R. 60(B) motion in the trial court seeking supplemental attorneys' fees for defending the judgment on appeal. The trial court granted the motion and awarded the Christes an additional $750 in attorneys' fees as "damages." GMS appeals, raising one assignment of error with three sub-parts:
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY AWARDING SUPPLEMENTAL ATTORNEY FEES FOR SERVICES RENDERED IN SUCCESSFULLY DEFENDING A CHAPTER R.C. 5321 JUDGMENT ON APPEAL BECAUSE:
A. ATTORNEY FEES IN CHAPTER R.C. 5321 CASES ARE "COSTS," NOT "DAMAGES."
B. THE COURT OF APPEALS (C.A. 18267), HAVING EXCLUSIVE JURISDICTION OVER APPELLATE ATTORNEY FEE AWARDS, DID NOT AWARD SUCH FEES AS COSTS, SPECIFICALLY HOLDING THAT THERE WERE REASONABLE GROUNDS FOR THE APPEAL.
C. RES JUDICATA BARS CONSIDERATION OF ANY ISSUE WHICH WAS OR COULD HAVE BEEN LITIGATED PRIOR TO THE ENTRY OF A FINAL JUDGMENT.
Sub-parts A and B are related and will be addressed together. Sub-part C will be addressed separately.
II.
In sub-parts A and B, GMS contends that attorneys' fees under R.C. Chapter 5321 are "costs," not "damages." As such, GMS argues, attorneys' fees could only have been awarded by this Court at the time of the direct appeal. However, this Court has previously held that attorneys' fees awarded pursuant to R.C. Chapter 5321 are damages. Chaney v. Davis (Sept. 18, 1996), Summit App. No. 17593, unreported; Cameron v. Chateau Invest. Co. (Nov. 25, 1992), Summit App. No. 15634, unreported. Therefore, sub-parts A and B are overruled.
III.
In sub-part C, GMS contends that regardless of whether the attorneys' fees are characterized as damages or costs, res judicata bars the Christes from relitigating the issue in a subsequent action.
"The doctrine of res judicata * * * is that an existing final judgment or decree between the parties to litigation is conclusive as to all claims which were or might have been litigated in a first lawsuit." (Emphasis added.) Rogers v. Whitehall (1986), 25 Ohio St.3d 67, 69. The only issue herein is whether the Christes were entitled to an additional award of damages to cover the attorneys' fees that were incurred in defending the prior judgment on appeal — an issue that could not have been litigated prior to a final resolution of the appeal. See State ex rel. Elyria v. Trubey (1983), 24 Ohio App.3d 44, 46-47. Therefore, sub-part C is also overruled.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the County of Summit, Barberton Municipal Court, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E).
Costs taxed to appellant.
Exceptions.
-------------------- WILLIAM R. BAIRD FOR THE COURT
DICKINSON, J., CONCURS
Although I concur in the affirmance of this judgment, I disagree with the majority's conclusion that attorneys' fees under R.C. Chapter 5321 are "damages" as opposed to "costs."
The majority of Ohio appellate districts that have confronted this issue have concluded that attorneys' fees are costs under R.C. Chapter 5321. See, e.g., Lacare v. Dearing (1991), 73 Ohio App.3d 238, 241 (Eleventh Appellate District); Fant v. DiSabato (Dec. 29, 1987), Franklin App. No. 87AP-265, unreported (Tenth Appellate District); Breault v. Williamsburg Estates (Nov. 21, 1986), Lucas App. No. L-86-116, unreported (Sixth Appellate District); Rand v. Washington (May 26, 1983), Montgomery App. No. 7822, unreported (Second Appellate District); Drake v. Menczer (1980), 67 Ohio App.2d 122 (Eighth Appellate District). Only two other Ohio appellate districts have concluded that attorneys' fees are damages. Exline v. Nelson (July 1, 1987), Vinton App. No. 434, unreported (Fourth Appellate District); Fay Gardens Mobile Home Park v. Newman (1983), 14 Ohio App.3d 144, 148 (Twelfth Appellate District).
In Drake, the Eighth Appellate District cited Sorin v. Bd. of Edn. (1976), 46 Ohio St.2d 177, for the proposition that "[t]raditionally, when a statute authorizes the award of attorneys' fees, it does so by allowing the fees to be taxed as costs." Drake, supra, at 124. The Drake court then reasoned that,
[t]he statutory language regarding damages and fees provides for an award of "actual damages together with reasonable attorneys' fees" (emphasis added), R. C. 5321.02. In our view, had the legislature intended attorneys' fees to be considered a part of the awardable damages, the statute would read "actual damages including reasonable attorneys' fees." The present language necessitates a conclusion that attorneys' fees are not awardable as damages.
(Emphasis sic.) Id. at 124-125.
Although the Drake court was quoting from a different section of the landlord-tenant act, its rationale would apply to the section at issue here, which reads: "If the landlord fails to comply with division (B) of this section, the tenant may recover the property and money due him, together with damages * * * and reasonable attorneys fees." (Emphasis added.) R.C. 5321.16(C).
I find the Drake analysis to be persuasive. In my opinion, the statutory language and the greater weight of authority supports the conclusion that attorneys' fees under R.C. Chapter 5321 constitute costs rather than damages. Therefore, I would overrule Cameron and Chaney.
Having so concluded, I must address GMS's argument that the lower court was without jurisdiction to award costs, as the exclusive jurisdiction for awarding appellate costs rests with the appellate court under App.R. 23. Because the Christes were relying on this Court's prior decisions in Cameron and Chaney, I would affirm the award in this particular case and require that requests for attorneys' fees in future appeals be addressed to this Court in accordance with App.R. 23.
In conclusion, although I ultimately concur in the result, I would overrule Cameron and Chaney and designate attorneys' fees under R.C. Chapter 5321 as costs.