COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67040 EDWARD BROWNIE : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION ALUMINUM SMELTING & REFINING : CO., INC. : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION MAY 25, 1995 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 185163 JUDGMENT Affirmed in part; reversed in part. DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: BRUCE C. ALLEN, ESQ. ROBERT S. STONE, ESQ. BLAIR HODGMAN, ESQ. KENNETH J. WALSH, ESQ. Allen & Hodgman DAN L. MAKEE, ESQ. 13111 Shaker Square McDonald, Hopkins, Burke Suite 304 & Haber Co., L.P.A. Cleveland, Ohio 44120-2345 2100 Bank One Center 600 Superior Avenue, E. Cleveland, Ohio 44114 - 3 - JAMES D. SWEENEY, P.J., Plaintiff-appellant Edward Brownie appeals from the trial court's order which granted the motion to enter order of sanctions and costs and to continue existing stay of proceedings until paid which was filed by the defendant-appellee Aluminum Smelting & Refining Co. Inc. (Aluminum Smelting). The procedural history of this case is crucial for its determination, and the essential facts are adduced below. The initial suit was filed in the common pleas court on June 3, 1985. There were discovery disputes during the course of the litigation, and the appellee filed two motions to compel, a motion to dismiss, and a motion for a protective order. Only the first motion to compel and the motion for a protective order were granted by the court. Subsequent to these motions, the appellant voluntarily dismissed the action. On February 22, 1990, the suit was refiled. On May 25, 1990 and on July 26, 1990, the appellee filed motions requesting that the costs of the first action be assessed, and that the case be stayed pending payment. On May 30, 1991, the trial court awarded $21,964.50 to the appellees, and the appellant appealed. Based upon Muze v. Mayfield (1991), 61 Ohio St.3d 173, the case was returned to the trial court. The trial court again assessed costs, and eventually dismissed the action based upon the failure of the appellant to pay the costs. The case was returned to this court. This court, in Brownie v. Aluminum Smelting & Refining Co., - 4 - Inc. (April 15, 1993), Cuyahoga App. No. 62034, unreported, affirmed in part, reversed in part and remanded for a determination of the proper amount of sanctions. Upon remand, the trial court once again assessed costs and it is from this order that this appeal was filed. The Appellant sets forth two assignments of error. The first assignment of error: THE TRIAL COURT ERRED IN DISREGARDING THE MANDATE OF THIS COURT TO AWARD FEES FOR ONLY THE JUNE 8, 1986 AND OCTOBER 3, 1988 MOTIONS, AND NO OTHERS. The central issue disputed is the decision of the trial court upon remand to grant sanctions and costs to the appellee on motion to dismiss and one of the motions to compel. On March 3, 1992, the trial court granted as sanctions a total sum of $16,980. The court awarded $1,330 for the motion to compel filed on July 8, 1986; $2,576 for the motion to dismiss filed on September 12, 1986; $4,722 for the motion to compel filed on April 8, 1987; and $8,352 for the motion for protective order filed on October 3, 1988. The appellant argues that this court in Brownie, supra, found the motion to dismiss and the second motion to compel to be moot, and based upon the doctrine of the law of the case, the trial court erred in renewing the costs awarded on these motions. In City of North Olmsted v. Eliza Jennings, Inc. (1993), 91 Ohio App.3d 173 this court set forth the applicable law: The doctrine of the law of the case provides that a decision of a reviewing court remains the law for that case as to all relevant legal - 5 - questions in subsequent proceedings both at trial and appellate levels unless that rule of practice achieves an unjust result. Weir v. Kebe (1985), 29 Ohio App.3d 53, 29 OBR 62, 503 N.E.2d 177. The rule ensures consistency in the results of the case, avoids excessive litigation, and preserves the structure of superior and inferior courts as designed by the Ohio Constitution. Nolan v. Nolan (1984), 11 Ohio St.3d 1, 3, 11 OBR 1, 2, 462 N.E.2d 410, 412. The rule was created because of the necessity of a trial court to obey the mandate of a reviewing court upon a retrial of a case. Gohman v. St. Bernard (1924), 111 Ohio St. 726, 731, 146 N.E. 291, 292. It applies upon remand for a reviewing court, when a trial court is confronted with substantially the same facts and issues as were involved in the prior appeal. Hawley v. Ritley (1988), 35 Ohio St.3d 157, 519 N.E.2d 390. In Brownie, supra, this court applied Muze, supra, and held that although the trial court erred in awarding attorney fees as costs under Civ.R. 41(D) alone, an award of attorney fees can properly be based upon the authority of Civ.R. 37. This court held that the trial court has jurisdiction to award discovery sanctions under Civ.R. 37 and Civ.R. 41(D). This court went on to find that sanctions were only proper for the July 8, 1986, motion to compel and the October 3, 1988, motion for a protective order. The court clearly found that the other two motions were moot, and no sanctions could be awarded on those motions. Based upon the doctrine of the law of the case, the appellant's first assignment of error is well taken. The trial court improperly awarded $2,576 on the motion to dismiss, and $4,722 on the motion to compel when this court found these two - 6 - motions to be moot. The appellee's award of fees is reduced by the sum of $7,298, leaving an award in the sum of $9,682. The appellant's first assignment of error is well taken. The appellant's second assignment of error: THE TRIAL COURT ABUSED ITS DISCRETION BY AWARDING EXCESSIVE AND UNREASONABLE AMOUNTS FOR THE TWO MOTIONS FOR WHICH THIS COURT ALLOWED AN AWARD OF FEES. In this assignment of error, the appellant argues that the trial court abused its discretion in awarding excessive and unreasonable amounts as sanctions and costs on the two motions for which this court permitted the assessment of attorney fees. As stated in the previous assignment, the trial court awarded a total of $9,682. The sum of $1,330 was awarded for the motion to compel filed on July 8, 1986, and $8,352 was awarded for the motion for protective order filed on October 3, 1988. Specifically, the appellant argues that the trial court abused its discretion in awarding fees for the attendance by the appellee's counsel at a pre-trial scheduled prior to the filing of the motion to compel; and that the fees charged were excessive for a motion that should have taken an hour to prepare. As to the motion for a protective order, the appellant argues that the appellee also violated the discovery deadline; that the amount charged was grossly excessive in that there is nothing in the record to justify the astronomic hourly rates, work was duplicative, and the charges contained items unrelated to the discovery difficulties. - 7 - A reviewing court will not reverse an award of attorney fees absent an abuse of discretion. Freeman v. Crown City Mining, Inc. (1993), 90 Ohio App.3d 546. The court stated: Normally, where attorney fees are authorized by statute, the entitlement to and the amount of an award lies within the sound discretion of the trial court. Meacham v. Miller (1992), 79 Ohio App.3d 35, 42, 606 N.E.2d 996, 1000; Yarber v. Cooper (1988), 61 Ohio App.3d 609, 613, 573 N.E.2d 713, 715; see, also, Smith v. Padgett (1987), 32 Ohio St.3d 344, 513 N.E.2d 737. The determination by a trial court of the appropriate amount of any attorney fee award will not be reversed on appeal unless it is an abuse of discretion. Lacare v. Dearing (1991), 73 Ohio App.3d 238, 241, 596 N.E.2d 1097, 1099; Meacham, supra. "An abuse of discretion involves more than an error of *** judgment; it connotes an attitude on the part of the court that is unreasonable, unconscionable or arbitrary." Franklin Cty. Sheriff's Dept. v. State Emp. Relations Bd. (1992), 63 Ohio St.3d 498, 506, 589 N.E.2d 24, 30; Wilmingron Steel Products, Inc. v. Cleve. Elec. Illum. Co. (1991), 60 Ohio St.3d 120, 122, 573 N.E.2d 622, 624. When applying the abuse of discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court. In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181, 1183- 1185, citing Berk v. Matthews (1990), 53 Ohio St.3d 161, 169, 559 N.E.2d 1301, 1308. In the case sub judice, the trial court in its order indicated that it complied with this court's mandate in Brownie, supra, and considered those factors outlined in Swanson v. Swanson (1976) 48 Ohio App.2d 85. The court cited two specific exhibits attached to the motion, and reviewed the itemized fee bill submitted by the appellee. The court found the itemized bill to be reasonable and necessary and indicated that at the hearing the testimony explained - 8 - the necessity and reasonableness of the specific itemized bills. The court reviewed the complexity of the litigation, the care and skill of the attorneys, the financial exposure of the appellee, and the necessity of conducting discovery to adequately defend the lawsuit. The court found: The Court finds that Plaintiffs' lawsuit sought $270 million from Defendant, thereby justifying it to seek full and complete discovery. The time and labor involved in preparing the motions was recorded by defense counsel and has been reviewed and found not excessive. The defense was required to review the status of its discovery needs each time Plaintiffs failed to timely or completely provide discovery. Defense counsel appropriately used associate counsel at lower attorney rates to assist in the preparation of motions. The fees charged were reasonable in the community in 1986, 1987, and 1988. Defendants' present Motions do not seek a higher attorney rate or an interest factor, though the sanctionable conduct of Plaintiffs occurred years ago. Defense counsel had a good relationship with his client and was a reputable and experienced, professional litigation attorney in the community. Defense counsel's fees were fixed at hourly rates. His fee bills were charged at his firm's standard hourly rates, without premium, and were paid in full. The court finds under the factors listed in Swanson and DR2-106(B) that Defendant's claim is fair in all respects. The trial court complied with the directives of this court in the method it used to determine the award of attorney fees. No abuse of discretion has been shown which would require the reversal of the trial court's decision. The trial court's award of $9,682 attorney fees as discovery sanctions was not an abuse of discretion. - 9 - The appellant's second assignment of error is overruled. Judgment affirmed in part, and reversed in part. - 10 - This cause is affirmed in part and reversed in part and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein taxed. It is ordered that a special mandate be sent to the Court of Common Pleas 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. DYKE, J., and KARPINSKI, J., CONCUR. JAMES D. SWEENEY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which .