COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59758 TIMOTHY W. LISTON, ET AL. : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION KEN JUREK : : Defendant-appellee/ : Cross-Appellant : DATE OF ANNOUNCEMENT : MARCH 5, 1992 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Berea Municipal Court : Case No. 85-CVF-484 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants: For defendant-appellee/Cross- appellant: Mark Fusco, Esq. Gerald A. Innes, Esq. Frank J. Groh-Wargo, Esq. 319 EST Bldg., P.O. Box 517 30 Park Drive, P.O. Box 332 Elyria, OH 44036-0517 Berea, OH 44017 - 2 - PATTON, J., Plaintiffs-appellants, Dawn and Tim Liston, collectively "tenants", appeal the amount of attorney fees awarded by the trial court. They contend the award is inadequate and fails to reflect the time expended by their attorney in preparation of the case. Defendant-appellee, Ken Jurek, "landlord", cross-appeals contending the award is excessive. The tenants leased the upstairs of a residential home located in Berea, Ohio. The tenants experienced a number of problems with the dwelling unit and ultimately requested an inspection by the Berea Building Department. The Building Department inspected the premises and found violations of the Berea Building Code that materially affected health and safety. The landlord was notified of these violations and subsequently made two attempts to evict the tenants. The tenants prevailed in the eviction action and thereafter, on April 15, 1985, filed a complaint for retaliatory eviction pursuant to R.C. 5321.02. The landlord responded by filing an answer and several counterclaims. The counterclaims included intentional interference with a business relationship, slander per se, invasion of privacy, fraud, fraud in the inducement, intentional infliction of emotional distress, and retaliatory conduct by a tenant. The landlord ultimately dismissed the counterclaims except for the claims of fraud and fraud in the inducement. On - 3 - the morning of trial the landlord dismissed the remaining counterclaims. Following a bench trial the court found in favor of the tenants and awarded them $63.70 in compensatory damages and $250 in punitive damages. Thereafter, a hearing was held to determine the amount of attorneys' fees to be awarded to the tenants. The tenants requested $11,750.00 in attorneys' fees based on time spent and counsels' hourly rate. At the hearing attorney Joseph Gambino testified that the 158 hours of time expended by the tenants' counsel in litigating the case was reasonable. Further, he testified that the billing rate of $75.00 per hour was also reasonable. Subsequent to the hearing the court awarded $3,972.00 in attorneys' fees and $580.00 in deposition costs. In the instant appeal each of the parties contests the amount of attorneys' fees awarded by the trial court. Since the respective assignments of error are interrelated they will be discussed together. The tenants assignment of error provides: I. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING THE PLAINTIFFS ONLY ONE-THIRD OF THE ACTUAL ATTORNEYS' FEES INCURRED IN LITIGATING THE RETALIATORY EVICTION CLAIM. The landlord's cross-assignments of error provide: I. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING ATTORNEY FEES BY FAILING TO RELATE THE AWARD TO THE "RESULTS OBTAINED" IN THE PRINCIPLE CASE. II. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING DEPOSITION EXPENSES AS COSTS. - 4 - The tenants contend the trial court erred in making an inadequate award of attorneys' fees. They argue that had the court used a mathematical computation of hours expended multiplied by an hourly rate they would be entitled to $11,750.00 in attorneys' fees rather than the $3,972.00 they were awarded. We are not persuaded by the tenants' argument and decline to hold that the trial court abused its discretion. The awarding of attorneys' fees is within the sound discre- tion of the trial court. Drake v. Menczer (1980), 67 Ohio App. 2d 122. Upon appeal the only questions for inquiry are whether the factual conclusions upon which the trial court based the exercise of its discretion were against the manifest weight of the evidence or whether there was an abuse of discretion. Swanson v. Swanson (1976), 48 Ohio App. 2d 85, 90. An abuse of discretion is more than an error of judgment. It implies that a court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219. Moreover, in calculating attorneys' fees it has been held that, "[T]ime expended is only one of the factors to be considered. The value of services may be greater or less than that which would be reflected by a simple multiplication of an hourly rate by time expended." Swanson, supra, at 90-91. In Posey v. Mentor Lagoons (June 20, 1991), Cuyahoga App. No. 58868, unreported, this court affirmed a trial court's - 5 - attorney fee award of $750.00 where a mathematical computation of hours expended multiplied by an hourly rate would have resulted in a $2,870.00 award. We rejected the appellant's contention that the trial court's failure to apply a stringent mathematical calculation constituted an abuse of discretion. We reaffirm that holding herein. The trial court in its findings of fact and conclusions of law stated, "that the amount of hours claimed by Plaintiffs are excessive and unreasonable in view of the nature of the case itself, the issues involved, and the time actually spent in court, by the parties thereto." After reviewing the record, we cannot conclude that the trial court's exercise of discretion was against the manifest weight of the evidence. We also decline to find that the trial court abused its discretion in awarding an unreasonable, arbitrary or unconscionable fee. Accordingly, the tenants' assignment of error is overruled. Initially, the landlord contends that the trial court abused its discretion awarding attorneys' fees by failing to properly consider the amount involved and the results obtained. Specifically, he argues a compensatory damage award of $63.70 and punitive damage award of $250.00 does not justify the award of $3,972.00 in attorneys' fees. We are not persuaded that the trial court abused its discretion in awarding $3,972.00 in attorneys' fees. - 6 - As noted previously, an abuse of discretion is more than an error of judgment. It implies that a court's attitude is unreasonable, arbitrary and unconscionable. Blakemore, supra. In the instant case the appellant argues he is entitled to a reduction of attorneys' fees by alleging that the trial court failed to attach sufficient weight to the results obtained in rendering its award of attorneys' fees. At best, the landlord's argument alleges an error of judgment. It is thus insufficient to constitute an abuse of discretion. See, Blakemore, supra. Next, the landlord contends the tenants failed to exhibit good faith in causing the case to proceed to trial rather than accepting a June of 1985 settlement offer of $1,800.00. We decline to find that the tenants exhibited bad faith in rejecting the settlement offer of $1,800.00 at a time when little or no discovery had been undertaken to evaluate their claim and the landlord, thereafter, withdrew the $l,800.00 offer. We thus conclude that the landlord's counsel has failed to establish even a colorable claim of bad faith. The landlord's final contention is that the trial court abused its discretion in awarding deposition expenses as costs. The contention also lacks merit. Civ. R. 54(D): Costs. Except when express provision therefore is made either in a statute or in these rules, costs shall be allowed to the prevailing party unless the court otherwise directs. - 7 - This court in Jones v. Pierson (1981), 2 Ohio App. 3d 447, 449, established a two-prong test for awarding costs pursuant to Civ. R. 54(D): (1) The trial court must determine if it is a necessary litigating expenses; and (2) If so, whether the litigating expense is reasonable to tax as costs in a particular case. See, also, Bookatz v. Kupps (1987), 39 Ohio App. 3d 36. "Much of the funds expended by a party are necessary and vital to the litigation and must be characterized as taxable litigating expenses which will normally be awarded as costs to the prevailing party pursuant to Civ. R. 54(D). In most cases, all litigating expenses shall be awarded as costs." Jones, supra, paragraph two of the syllabus. "A trial court's discretion to disallow costs is limited to refusing to tax a litigating expense as a cost only where such expense is an unusual expense in type or amount which because of the prevailing party's conduct it is inequitable to assess against the nonprevailing party." Horne v. Clemens (1985), 25 Ohio App. 3d 44, 46. Civ. R. 54(D) allows assessment of the costs of depositions and court reporter's services where said expenses were necessary and vital expenditures of litigation. Jones, supra; Horne, supra; see also Bookatz, supra. In the instant case, the trial court granted the tenants Civ. R. 54(D) motion for payment of deposition costs in the - 8 - amount of $580.50. Upon a review of the record, we conclude that the trial court properly granted the tenants' Civ. R. 54(D) motion as it related to taxable deposition costs. Granting the tenants' deposition costs did not constitute an abuse of discretion by the trial court. The taking of the depositions was essential and ultimately resulted in the dismissal of all the landlord's counterclaims. We thus reject appellant's argument to the contrary. Accordingly, the landlord's assignments of error are overruled. Judgment affirmed. - 9 - It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Berea Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, C.J. KRUPANSKY, J., CONCUR JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .