[Cite as Northwest State Community College v. Northwest State Community College Edn. Assn.
OEA/NEA, 2016-Ohio-8393.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               HENRY COUNTY




NORTHWEST STATE
COMMUNITY COLLEGE,

        PLAINTIFF-APPELLANT,                                     CASE NO. 7-16-11

        v.

NORTHWEST STATE
COMMUNITY COLLEGE EDUCATION                                      OPINION
ASSOCIATION, OEA/NEA,

        DEFENDANT-APPELLEE.




                 Appeal from Henry County Common Pleas Court
                           Trial Court No. 15-CV-0081

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                         Date of Decision: December 27, 2016




APPEARANCES:

        Rory P. Callahan for Appellant

        Donato S. Iorio and Edward J. Stechschulte for Appellee
Case No. 7-16-11


SHAW, P.J.

       {¶1} Plaintiff-appellant, Northwest State Community College (“the

College”), brings this appeal from the November 6, 2015, judgment of the Henry

County Common Pleas Court confirming an arbitrator’s award to defendant-

appellee Northwest State Community College Education Association OEA/NEA

(“the Union”). The College also appeals the July 14, 2016, judgment of the Henry

County Common Pleas Court awarding attorney’s fees to the Union based on the

College’s breach of the parties’ Collective Bargaining Agreement (“CBA”).

                 I.     Relevant Facts and Procedural History

                                  a. Introduction

       {¶2} The parties in this case, the College and the Union, entered into a CBA

titled “School Support Personnel Agreement,” which was effective from July 1,

2011, through June 30, 2015.

       {¶3} On July 31, 2014, the Union filed a grievance pursuant to the CBA,

claiming that the College violated the CBA by unilaterally eliminating the position

of Associate Director of Financial Aid, a union position, and transferring the duties

of that position to the newly created position of “Assistant Director of Financial

Aid,” a non-union position. Per the CBA, the matter proceeded to arbitration on

February 10, 2015.




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                                    b. The Arbitration Hearing

         {¶4} At the arbitration hearing, four witnesses provided testimony to the

arbitrator.1 Amber Yokum testified that beginning in 2010 she worked as the

Associate Director of Financial Aid for the College. Yokum testified that the

Associate Director of Financial Aid position was a union position.2

         {¶5} Yokum testified that in December of 2013, she was promoted from her

position as Associate Director of Financial Aid to Interim Director of Financial Aid.

Yokum testified that a person then filled her old position as Associate Director of

Financial Aid on an interim basis. Yokum testified that the person filling her old

job on an interim basis left the College five or six months later, and the position of

Associate Director of Financial Aid thereafter went unfilled.

         {¶6} Yokum testified that in her new position she worked with Kathryn

Soards to create the position of Assistant Director of Financial Aid at the College,

which caused the primary issue between the parties.




1
  We will provide a brief summary of the pertinent testimony of the witnesses; however, the witness testimony
will be provided slightly out of order for ease of understanding.
2
  Yokum indicated that as her duties expanded in the Associate Director position, she questioned whether the
position should have been in the union and covered by the CBA. The CBA was said to include Secretaries,
Assistant Librarians, Custodians, Switchboard Operators, Receptionists, Computer Programmers/Lab
Assistants, Network Technicians, Network Administrators, Computer Programmers and all other School
Support Personnel; however, the CBA excluded professional, managerial and supervisory employees.
Yokum felt that over time her position acquired more supervisory and managerial duties. While Yokum
brought her questions regarding the position’s classification to the attention of various people, including her
union representative, it is undisputed that nothing was ever done under the CBA by either party to alter, or
attempt to alter, the classification of the Associate Director position and remove it as a union position.

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Case No. 7-16-11


         {¶7} Kathryn Soards, the Chief Fiscal and Administrative Officer at the

College, testified that she was involved with the creation of both the original

Associate Director of Financial Aid position, which was being effectively

eliminated by the new position, and the new Assistant Director of Financial Aid

position. Soards affirmatively testified that the original Associate Director of

Financial Aid position was a bargaining-unit position covered by the CBA.3

         {¶8} Soards testified that after Yokum was promoted from Associate

Director of Financial Aid to Interim Director of Financial Aid, the College created

the position of Assistant Director of Financial Aid.4 Soards testified that with the

creation of the Assistant Director of Financial Aid position the Associate Director

position had “probably * * * been eliminated now because we don’t have any

intentions of filling that position.” (Tr. at 40).

         {¶9} Soards specifically testified and admitted that a portion of the work

done by the new Assistant Director position was “bargained for work.” (Tr. at 47).

However, Soards testified that at one point the Union indicated it was fine with the


3
  The duties for the Associate Director of Financial Aid were enumerated in a job posting, which was included
in the record. There were eighteen enumerated “essential duties and responsibilities,” which included, inter
alia, “Responsible for understanding and complying with federal, state and institutional regulations and
policies,” “Processing of Professional Judgment applications,” “Responsible for Transfer Monitoring to
award over funding or duplicating funding with other institutions,” “Assist in the preparation of FA nights
with area high schools,” and “Assists with updating financial aid policies and procedures.” (Union Ex. 1).
4
  The duties for Assistant Director of Financial Aid were enumerated in a job posting, which was included in
the record. There were twelve enumerated duties, including, inter alia, “Responsible for overseeing and
administering the Federal Student Loan Program including the management of the Federal Student Loan
default prevention program by maintaining the default prevention plan and serving as the point of contract
[sic] with any outside parties associated with this initiative,” and “Assist the Director of Financial Aid in
preparing and making presentations at FA nights with area high schools.” (Union Ex. 2).

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Case No. 7-16-11


creation of the new position so long as the College reinstated the Associate Director

position. (Tr. at 65).

       {¶10} Juan Gonzalez also testified at the arbitration hearing. Gonzalez

testified that he was hired in the position of Assistant Director of Financial Aid after

it was created and that he held that position as of the date of the arbitration hearing.

Gonzalez testified that his position was not in the union. During Gonzalez’s

testimony, the Union had Gonzalez read each of the 18 enumerated duties contained

in the job description for the old Associate Director of Financial Aid position.

Gonzalez’s testimony indicated that he performed 16 of the 18 duties of that old

union job. Gonzalez testified that he would likely be performing the remaining two

duties of the old union job in the future. (Tr. at 72-77). Thus in Gonzalez’s new,

non-union position as Assistant Director of Financial Aid, he did all, or almost all,

of the work that had been done in the old union position of Associate Director of

Financial Aid.

       {¶11} Jason Rickenberg, co-president of the Union, testified that it was his

understanding that the Associate Director of Financial Aid union position had been

unilaterally eliminated and replaced by the College, giving the work to a non-union

position.   Rickenberg testified that there was a process to change a job’s

classification in the CBA and it was not used by the College in this case, which is

why the Union filed its grievance.


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Case No. 7-16-11


                           c. The Arbitrator’s Decision

       {¶12} At the conclusion of the arbitration hearing, the parties filed closing

briefs and the matter was submitted to the arbitrator for a decision. The arbitrator

interpreted the CBA, relying in part on the following portions of the CBA he deemed

relevant.

                    Article XIV: JOB CLASSIFICATIONS

       Classification System

       Each School Support Employee position will be placed within one
       of the columns of the classification system.

       1. There shall be no change in classification unless there is a
          significant change in the job duties.

       2. The Job Audit Committee will evaluate requests for change in
          classification. * * *

       3. A request for a change in classification, based on a significant
          change in job duties may be initiated by an employee, the
          administration, or the NSCC Support Staff Negotiations
          Committee. The Party requesting the change in classification
          shall complete a Position Description Questionnaire (PDQ).
          This is used to collect sufficient information about the position,
          duties, responsibilities, and qualifications in order that an
          appropriate assignment of a classification and corresponding
          pay grade can be made by college personnel. * * *

       4. New support staff positions, unless specifically exempted by
          law, shall be assigned to the bargaining unit if the job
          descriptions specify duties that are performed by unit
          members or which by the nature of the duties should
          reasonably be assigned to the bargaining unit. All new
          position’s job description will be developed by the
          administration and will be bargained by the administration

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Case No. 7-16-11


           and the Support Staff Negotiations Committee, along with the
           wages, hours, terms and conditions of employment.

       5. Any new classes in the classification system will be bargained
          by the administration and the Support Staff Negotiations
          Committee, along with the wages, hours, terms and conditions
          of employment for said classes.

                    ARTICLE XXIX: SUBCONTRACTING

       A. There shall be no subcontracting, subletting or assignment
          outside the bargaining unit for a period exceeding a total of
          sixty (60) days in any twelve (12) month period per
          classification of work performed or which is capable of being
          performed by bargaining unit employees, with the exception
          of positions vacated by employees on leaves of absence per
          Article I (B)(2) or if paragraph B below applies. No supervisor
          or non-bargaining unit employee shall at any time perform
          work performed by, or which could be performed by,
          employees except in case of emergency and then only for a
          limited period of time.

       {¶13} On April 13, 2015, the arbitrator issued a decision finding in favor of

the Union. The arbitrator reviewed all the issues and arguments, and reasoned, in

part, as follows.

       By not having previously pursued [the CBA] procedure before
       unilaterally eliminating the Associate Director position and
       directing that some or all of the duties of that former bargaining
       unit position be performed by one or more classified or graded
       employee(s), the College has violated not only Article XIV, Section
       3 but also Article XXIX, Section A, entitled “Bargaining Unit
       Work.” That specific section States: “No supervisor or non-
       bargaining unit employee shall at any time perform work
       performed by, or which could be performed by, employees except
       in case of emergency and then only for a limited time.” (emphasis



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Case No. 7-16-11


         added)5 Soards did recognize that a portion of the work currently
         assigned to the Assistant Director position is “bargained for
         work.” (Tr. 47). Also, in direct response to this arbitrator’s
         question “Was there an emergency to create the Assistant
         Director position?” Soards responded, “No, it probably wasn’t an
         emergency.” As a result, the College has acted in contravention
         of the limitations recognized for reassigning what has been
         previously recognized by both parties as bargaining unit work to
         one or more non-bargaining unit employee(s).

(Doc. No. 1, Ex. A).6

         {¶14} The arbitrator’s decision in favor of the Union ultimately “directed”

the College “to complete the requisite Position Description Questionnaire”

mentioned in Article XIV, Section 3, and to follow the remainder of the provisions

outlined in the CBA. The arbitrator did not determine that a new position could not

be created or that a job classification could not be changed; rather, he merely

directed the parties to follow CBA procedure.

                            d. The College’s Appeal to Henry County
                                     Common Pleas Court

         {¶15} On July 13, 2015, the College filed an “Application and Motion to

Vacate Arbitration Award” in the Henry County Common Pleas Court seeking to

vacate the arbitrator’s decision pursuant to R.C. 2711.10. (Doc. No. 1). The College

argued, inter alia, that the arbitrator did not follow the CBA, that the arbitrator



5
 This emphasis was added by the Arbitrator, not this Court.
6
 The arbitrator ruled on additional issues in his decision as well, such as the timeliness of the grievance filed;
however, that issue is not raised on appeal and will not be discussed further, particularly given the College’s
counsel’s statement at oral argument that the College was no longer pursuing that argument.

                                                      -8-
Case No. 7-16-11


improperly ruled against the College, that the arbitrator exceeded his authority, and

that the State Employment Relations Board (“SERB”) actually had exclusive

jurisdiction over the matter.

       {¶16} On July 23, 2015, the Union filed a “Cross-Motion/Application to

Confirm Arbitration Award.” In addition to seeking to confirm the arbitrator’s

award, the Union additionally requested an award for its attorney’s fees and

expenses.

       {¶17} Also on July 23, 2015, the Union filed an answer to the College’s

application to vacate the arbitrator’s award.

       {¶18} On August 20, 2015, the College filed its answer to the Union’s

motion to confirm the arbitrator’s award.

       {¶19} On September 17, 2015, the Union filed a motion for summary

judgment seeking to confirm the arbitration award. The Union argued that there

was no basis under R.C. 2711.10 to overturn the arbitrator’s award and that the

arbitrator’s award was grounded in the CBA.

       {¶20} On September 17, 2015, the College filed a motion for summary

judgment seeking to vacate the arbitrator’s award. The College argued that the

matter should not have gone to arbitration in the first place because SERB had

exclusive jurisdiction over the matter and that the arbitrator’s decision did not draw

its essence from the CBA.


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Case No. 7-16-11


       {¶21} Both parties filed responsive briefs and reply briefs related to the

summary judgment motions.

       {¶22} On November 6, 2015, the trial court filed its judgment entry on the

matter. (Doc. No. 27). The trial court ultimately ruled in favor of the Union and

confirmed the arbitrator’s award. The trial court found that SERB did not have

exclusive jurisdiction over the matter, citing E. Cleveland v. E. Cleveland

Firefighters Local 500, I.A.F.F., 70 Ohio St. 3d 125, 128, 1994-Ohio-174, wherein

the Supreme Court of Ohio stated that SERB had exclusive jurisdiction

       to resolve charges of unfair labor practices * * * in two general
       areas: (1) where one of the parties files charges with SERB
       alleging an unfair labor practice under R.C. 4117.11; or (2) a
       complaint brought before the court of common pleas alleges
       conduct that constitutes an unfair labor practice specifically
       enumerated in R.C. 4117.11, and the trial court therefore
       dismisses the complaint for lack of subject-matter jurisdiction.

The trial court determined that such circumstances giving SERB exclusive

jurisdiction were not present in this case.

       {¶23} The trial court also determined that “the Arbitrator drew the essence

of his decision from the [CBA], that it was grounded in applicable law and that the

facts existed in the record to preclude it from being arbitrary or capricious.” (Doc.

No. 27).

       {¶24} Finally, the trial court also found that the Union was to be awarded the

costs of the litigation, including all reasonable attorney’s fees.


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Case No. 7-16-11


         {¶25} The College then appealed the trial court’s judgment to this Court. On

December 16, 2015, this Court dismissed the College’s appeal on the basis that the

issue of attorney’s fees was still outstanding and unresolved and thus any appeal

was premature.

         {¶26} Following this Court’s dismissal, the Union filed a motion for an

award of attorney’s fees on February 11, 2016. The Union argued that it should be

awarded fees based on the College’s breach of the CBA, or, in the alternative, for

frivolous conduct committed by the College. The Union asserted attorney’s fees in

the amount of $14,537.50. No affidavits related to the reasonableness and necessity

of the fees were included; however, the Union attached one short summary of the

amounts billed and the total amount owed outstanding.7

         {¶27} On June 17, 2016, the College filed a memorandum in opposition to

the Union’s request for fees. The College argued that a fee award for breach of

contract was not proper at all in this instance as there was a statutory agreement not

a “common law contract,” and that there was no frivolous conduct here. The

College also argued that the fees allegedly incurred were excessive, and that the

amount of hours allegedly worked was not reasonable. On June 28, 2016, the Union

filed a reply.


7
 In a footnote, the Union noted that the hourly rate billed was $125 per hour. The Union contended that the
prevailing market rate in the region was $225 per hour, though it provided no evidence to support that figure.
The Union asserted that it spent 116.3 hours on this case at a rate of $125 per hour for a total fee alleged at
$14,537.50.

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Case No. 7-16-11


       {¶28} On July 13, 2016, the trial court filed a journal entry indicating that

there had been a hearing on June 17, 2016, on the matter of attorney’s fees in the

court’s chambers. No transcript, if one was created at all, was provided to this Court

of the hearing in the trial court’s chambers. There is no indication from the trial

court’s entry that any witnesses were called, that any evidence was presented, or

that any stipulations were entered at that time. (Doc. No. 42).

       {¶29} On July 14, 2016, the trial court filed a judgment entry briefly stating

the case history then determining that the Union should be awarded attorney’s fees

for the College’s “breach of contract.” The trial court found that “attorney fees in

the sum of $14,537.50 are reasonable and are owed by [the College] * * * to the

[Union].” (Doc. No. 43).

       {¶30} It is from this judgment that the College appeals, asserting the

following assignments of error for our review.

                   ASSIGNMENT OF ERROR 1
       THE TRIAL COURT ERRED IN FINDING THAT THE
       ARBITRATOR PROPERLY EXERCISED JURISDICTION
       OVER A REPRESENTATION MATTER THAT WAS WITHIN
       THE EXCLUSIVE JURISDICTION OF THE STATE
       EMPLOYMENT RELATIONS BOARD UNDER OHIO LAW.

                   ASSIGNMENT OF ERROR 2
       THE TRIAL COURT ERRED IN AWARDING ATTORNEY’S
       FEES TO THE DEFENDANT-APPELLEE BASED ON A
       BREACH OF CONTRACT THEORY THAT WAS
       INAPPLICABLE IN A MOTION TO VACATE AND
       CONFIRM ARBITRATION.


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Case No. 7-16-11


                   Standard of Reviewing Arbitration Decisions

      {¶31} Ohio law favors and encourages arbitration. St. Marys v. Internal.

Assn. of Firefighters Local 3633, 3d Dist. Auglaize No. 2-13-29, 2014-Ohio-2575,

¶ 25, citing Mahoning Cty. Bd. of Mental Retardation v. Mahoning Cty. TMR Edn.

Assn., 22 Ohio St. 3d 80, 84 (1986). “Consequently, arbitration awards are generally

presumed valid.” Univ. of Toledo v. Am. Assn. of Univ. Professors, 6th Dist. Lucas

No. L–12–1317, 2013–Ohio–2811, ¶ 10, citing Findlay City School Dist. Bd. of

Edn. v. Findlay Edn. Assn., 49 Ohio St. 3d 129, 131 (1990).

      {¶32} Revised Code 2711.10 explicitly limits the trial court’s review of an

arbitration award to a narrow set of extreme circumstances. It reads,

      In any of the following cases, the court of common pleas shall
      make an order vacating the award upon the application of any
      party to the arbitration if:

      (A) The award was procured by corruption, fraud, or undue
      means.

      (B) There was evident partiality or corruption on the part of the
      arbitrators, or any of them.

      (C) The arbitrators were guilty of misconduct in refusing to
      postpone the hearing, upon sufficient cause shown, or in refusing
      to hear evidence pertinent and material to the controversy; or of
      any other misbehavior by which the rights of any party have been
      prejudiced.

      (D) The arbitrators exceeded their powers, or so imperfectly
      executed them that a mutual, final, and definite award upon the
      subject matter submitted was not made.


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Case No. 7-16-11


       If an award is vacated and the time within which the agreement
       required the award to be made has not expired, the court may
       direct a rehearing by the arbitrators.

       {¶33} Generally, if the arbitrator’s award is based on the language and

requirements of the agreement, the arbitrator has not exceeded his powers. See

Miami Twp. Bd. of Trustees v. Fraternal Order of Police, Ohio Labor Council, Inc.,

81 Ohio St. 3d 269, 273 (1998). Moreover, revised code 2711.10(D) is not violated

if “ ‘the arbitrator’s award draws its essence from the collective bargaining

agreement and is not unlawful, arbitrary or capricious.’ ” St. Mary’s, supra, at ¶ 28,

quoting Findlay, supra at paragraph two of syllabus. An arbitrator’s award draws

its essence from an agreement when (1) the award does not conflict with the express

terms of the agreement and (2) the award has rational support or can be rationally

derived from the terms of the agreement. Ohio Office of Collective Bargaining v.

Ohio Civil Serv. Emps. Assn., Local 11, AFSCME, AFL–CIO, 59 Ohio St. 3d 177

(1991), syllabus. Although there are strict measures in place to review the award of

arbitration by the trial court, and great deference is given to the arbitration process,

we review the trial court’s decision to affirm or vacate an arbitrator’s award de novo.

St. Mary’s, supra, at ¶ 29.

                              First Assignment of Error

       {¶34} In the College’s first assignment of error, it argues that the trial court

erred by finding that the arbitrator properly exercised jurisdiction over this case.


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Case No. 7-16-11


Specifically, the College contends that SERB had exclusive jurisdiction to hear the

case. The College also argues that the Union failed to prove that the creation of the

“Assistant Director of Financial Aid” position violated the CBA.

          {¶35} We will deal first with the College’s argument that SERB had

exclusive jurisdiction over this matter. In support of its argument, the College cites

Franklin Cty. Law Enf’t Ass’n v. Fraternal Order of Police, Capital City Lodge No.

9, 59 Ohio St. 3d 167 (1991), for the proposition that, “The State Employment

Relations Board has exclusive jurisdiction to decide matters committed to it

pursuant to R.C. Chapter 4117.” Revised Code Chapter 4117 generally covers

Public Employee Collective Bargaining.

          {¶36} In this case, the trial court directly addressed the College’s argument

that SERB had exclusive jurisdiction over this matter. In its entry, the trial court

stated,

          Regarding the College’s position regarding SERB having
          exclusive jurisdiction the case of City of East Cleveland v. East
          Cleveland Firefighters Local 500, IAFF, (1994) 70 Ohio St.[3d]
          125[,] is instructive in defining SERB’s exclusive jurisdiction: [It
          stated SERB has exclusive jurisdiction] (1) “where one of the
          parties files charges with SERB alleging an unfair labor practice
          under Revised Code 4117.11; or (2) a complaint brought before
          the Common Pleas Court alleges conduct that constitutes an
          unfair labor practice specifically enumerated in Revised Code
          4117.11[.]” The facts before this Court would not provide a basis
          for such a determination. * * *




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Case No. 7-16-11


       {¶37} Notably the decision in East Cleveland Firefighter’s Local was

decided after the Capital City Lodge No. 9 case cited by the College. Like the

Supreme Court of Ohio in the (slightly) more recent East Cleveland Firefighter’s

Local decision, the trial court in this case similarly found that the facts here did not

warrant SERB having exclusive jurisdiction where unfair labor practices were not

asserted. We agree with the trial court.

       {¶38} The parties here explicitly bargained in the CBA for a procedure to

utilize when a job classification was being changed. Although the College attempts

to categorize this case as one that is not related to job reclassification, we certainly

cannot find that the arbitrator was entirely without authority to find that this case

was principally one of a job classification change or of a situation where bargaining

unit work was being done by a non-bargaining unit position. The College created a

new job out of the bargaining unit that did all, or nearly all, of the work that had

been done in the previous bargaining unit position. Thus we cannot find that the

trial court erred in finding that SERB did not have exclusive jurisdiction over the

matter. This is particularly true given that the College has provided us with no on-

point authority that would compel us to do otherwise.

       {¶39} Turning next to the College’s argument that the Union failed to prove

that the creation of the “Assistant Director of Financial Aid Position” violated the




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Case No. 7-16-11


CBA, we again agree with the trial court’s confirmation of the arbitrator’s award.

In analyzing this issue, the trial court held as follows.

       In the instant case the Association[,] in the context of a
       grievance[,] challenged whether the College followed the
       procedure outlined in Article XIV Section 3 of the Collective
       Bargaining Agreement. The Association never claimed that the
       change could not occur, but the Collective Bargaining Agreement,
       Article XIV spelled out the procedure to be followed when a
       bargaining unit position change was to be considered. It was the
       Association’s position and the finding of the Arbitrator that the
       College acted unilaterally to change the bargaining unit position.

       ***

            The Court would conclude that the Arbitrator drew the
       essence of his decision from the Collective Bargaining Agreement,
       that it was grounded in applicable law and that the facts existed
       in the record to preclude it from being arbitrary or capricious.

(Doc. No. 27).

       {¶40} In this case, evidence from both parties established that the Associate

Director of Financial Aid position was a bargaining unit position. It was also

undisputed that the Assistant Director of Financial Aid position was not in the

bargaining unit. The only testimony in the record indicates that the person hired to

be the Assistant Director of Financial Aid did essentially all of the old work that

had been assigned to the Associate Director of Financial Aid. Further, the only

testimony in the record indicates that the Associate Director of Financial Aid

position will go unfilled and has “probably” been eliminated.



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Case No. 7-16-11


       {¶41} Under Article XXIX, Section A, of the CBA, no subcontracting or

assignment of bargaining unit work was supposed to be done for a period in excess

of 60 days except in the case of emergency. The only testimony indicated that there

was no emergency here and that the new job was going to continue to do bargaining

unit work indefinitely. Based on the evidence presented, we cannot find that the

trial court erred in determining that the arbitrator’s award drew its essence from the

CBA.

       {¶42} Finally, we would note that the College’s entire challenge to the

arbitrator’s decision seems nearly moot given that the CBA’s effective date ended

June 30, 2015, and presumably all of the jobs the CBA applied to would likely have

to be renegotiated.    Therefore, the arbitrator’s award ordering the parties to

negotiate over the bargaining unit work is something that already had to take place.

       {¶43} Nevertheless, even putting the final point aside as it was neither raised

nor briefed by the parties, we do not find the College’s arguments well-taken for the

reasons previously stated, and the College’s first assignment of error is overruled.

                            Second Assignment of Error

       {¶44} In the College’s second assignment of error, it argues that the trial

court erred by awarding attorney’s fees to the Union in this case. Specifically, the

College argues that the “American Rule” generally has each party bear its own

attorney’s fees absent an express statutory or contractual provision otherwise, that


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Case No. 7-16-11


the parties did not have a “common law contract,” and that the trial court

erroneously relied on cases cited by the Union indicating that this was a breach of

contract case when those cases were distinguishable.

       {¶45} In the alternative, the College argues that the fee award was excessive

because the Union would have had to file to confirm its own arbitration award

anyway, and that similar briefing to the briefing in this case had been done by the

Union previously in another case, which should have dramatically reduced the

amount of time spent on this case. The College also argues that the issues in this

case were relatively straightforward, that they did not require an evidentiary hearing,

and thus 116.3 hours of allotted time was excessive.

       {¶46} We will deal first with the College’s alternative argument related to

the amount of the fees, as it is dispositive of this assignment of error.

       {¶47} Generally, “[b]efore awarding attorney fees, a trial court must

determine the reasonableness of the time spent on the matter and the reasonableness

of the hourly rate.” Hubbard v. Hubbard, 3d Dist. Defiance No. 4-08-37, 2009-

Ohio-2194, ¶ 12, citing Bagnola v. Bagnola, 5th Dist. Stark No.2004CA00151,

2004-Ohio-7286. “Courts have recognized that merely submitting an attorney’s

itemized bill is insufficient to establish the reasonableness of the amount of work

billed.” United Assn. of Journeymen & Apprentices of the Plumbing & Pipe Fitting

Industry v. Jack’s Heating, Air Conditioning & Plumbing, Inc., 3d Dist. Hardin No.


                                         -19-
Case No. 7-16-11


6-12-06, 2013-Ohio-144, ¶ 24 (citations omitted); see also Inverness v. Maher, 3d

Dist. Hancock No. 5-15-16, 2015-Ohio-3816, ¶ 72; Hubbard, supra, at ¶ 12.

Evidence must be presented that the hours expended on the case by the attorney

were necessary and that the rates are comparable to those in the community for

similar services by attorneys of a similar level of skill. Jack’s Heating at ¶ 20.

“Although trial court judges may have experience and knowledge regarding the

setting of fees, they ‘must base the fee determination upon evidence adduced and

cannot substitute [their] own knowledge for evidence.’ ” (Emphasis added.) Jack’s

Heating at ¶ 31, quoting In re Wood's Estate, 55 Ohio App. 2d 67, 75, 379 N.E.2d
256 (10th Dist.1977).

       {¶48} The party requesting attorney’s fees carries the burden of proof to

show that the request was reasonable. Jack’s Heating at ¶ 22. Trial courts should

not speculate as to whether the hours were necessary or that the fee itself is

reasonable. Id. at ¶ 28. We review a trial court’s decision on whether to award

attorney’s fees under an abuse of discretion standard. Jack’s Heating at ¶ 15

citing Bittner v. Tri–Cty. Toyota, Inc., 58 Ohio St. 3d 143, 146 (1991). A trial court

will be found to have abused its discretion when its decision is contrary to law,

unreasonable, not supported by the evidence, or grossly unsound. Jack’s Heating

at ¶ 15 citing State v. Boles, 2d Dist. No. 23037, 2010–Ohio–278, ¶¶ 17–18, citing

Black’s Law Dictionary 11 (8th Ed.2004).


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Case No. 7-16-11


        {¶49} In this case the trial court initially stated in its judgment entry

confirming the arbitrator’s award that it would award attorney’s fees to the Union.8

Before the trial court had determined the amount, the reasonableness, and the

necessity of any fees, the College appealed. This Court dismissed that appeal as

premature, due to the issue of attorney’s fees still outstanding.

        {¶50} Following this Court’s dismissal, the Union filed for attorney’s fees in

the amount of $14,537.50 and the College argued against those fees, making the

same arguments it does now on appeal. As far as the record indicates, the trial court

did not hold an evidentiary hearing on the record or collect evidence on the matter

of attorney’s fees before granting the fees in the requested amount.

        {¶51} As no evidentiary hearing was held and no evidentiary materials were

produced in this case, no actual evidence whatsoever was presented as to the

reasonableness of the rate charged. No actual evidence whatsoever was presented

as to the necessity of the amount of time spent. No actual evidence whatsoever was

presented that the amount of time spent was reasonable. No stipulations were

presented by the parties that the rates were reasonable and that the hours expended

were reasonable and necessary. We are merely left with contested allegations made

by the Union in its motion for fees that its fee-rate was reasonable, and that the

amount of work done was reasonable and necessary.


8
 The actual original judgment entry indicated fees would be awarded to the College, but that was corrected
by a nunc pro tunc entry.

                                                  -21-
Case No. 7-16-11


       {¶52} In the Union’s motion for fees, there was one exhibit attached that

contained a table covering approximately one-quarter of a page adding up the total

hours spent, the bill total, and the balance due. There were no affidavits along with

this exhibit attesting to the reasonableness and necessity of the work, and there was

certainly no other testimony attesting to it either by the attorneys who did the work

or another attorney altogether claiming that the time and rate were both reasonable

and necessary. This Court has stated that submitting an itemized bill is insufficient

to establish attorney’s fees, let alone a brief table summary containing no sworn

evidentiary statements. See Jack’s Heating, supra, at ¶ 24; Inverness v. Maher,

supra, at ¶ 73.

       {¶53} In the absence of any actual evidence presented as to the

reasonableness and necessity of the fees rather than mere allegations, the trial court

had to engage in speculation that the fees in this case were reasonable and necessary.

While the hourly rate itself might seem reasonable, particularly given the

comparable rates cited by the Union in its motion to the trial court, no actual

evidence was presented confirming those rates and stating that they were actually

reasonable.

       {¶54} In sum, the Union produced absolutely no evidence establishing the

reasonableness and necessity of its fees or the hours spent and the College

challenged this issue, particularly the amount of hours, both at the trial court level


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Case No. 7-16-11


and to this Court. In order to uphold the trial court’s award of fees, this Court would

have to improperly speculate that the rate was reasonable and that the amount of

hours spent was both reasonable and necessary. Thus we have no choice but to

reverse the trial court’s award of fees to the Union as the amount is simply not

supported by any actual evidence in the record. Therefore, the College’s second

assignment of error is sustained.

       {¶55} For the foregoing reasons, the College’s first assignment of error is

overruled and its second assignment of error is sustained. Therefore, the judgment

of the Henry County Common Pleas Court is affirmed in part and reversed in part

and this case is remanded for further proceedings consistent with this opinion.

                                                         Judgment Affirmed in Part,
                                                              Reversed in Part and
                                                                  Cause Remanded

PRESTON and WILLAMOWKSI, J.J., concur.

/jlr




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