Exemptions to ‘The American Rule’ in Ohio

Exemptions to 'The American Rule' in Ohio

Obtaining a Judgment for Attorneys’ Fees for Prosecuting Claims and Defending Counterclaims

By Jo A. Tatarko, Esq.

Under ‘The American Rule’, litigants in most civil cases cannot recover their attorneys’ fees.

However, there are exceptions.

A party can seek to recover its attorneys’ fees under certain statutes, when there is a finding of fraud and/or punitive damages against the other party, and when there is a fee-shifting provision under the contract involved in the underlying dispute.  

For example, if Party A sues Party B for breach of contract and the court finds for Party A, then Party A can seek attorneys’ fees if there is a provision in the contract that allows it to do so.

This article will examine what happens when Party A also seeks to recover attorneys’ fees relating to defending counterclaims brought against it by Party B.

Calculating & Reviewing the ‘Lodestar’

In order to determine the amount of attorneys’ fees that should be awarded, a trial court must first calculate the “lodestar” amount by multiplying the number of the attorney(s) hours reasonably expended by a reasonable hourly rate.1

Secondly, the trial court must review the lodestar amount based on the factors listed in Ohio Rules of Professional Conduct 1.5(A) and modify accordingly.2  The factors relate to the nature of the litigation, the skills of the attorney(s) and the workload of the case, including its impact on the attorney’s caseload, the customary fees charged, the amount in controversy and results obtained, and the reputation and ability of the attorney(s) involved.  

Seeking Attorneys’ Fees Defending Against Counterclaims

Oftentimes, the party seeking attorneys’ fees will not only be prosecuting its own claims but also defending itself against counterclaims brought by the opposing party.  

The legal work that is done on the claims and counterclaims may not be easily separated, if at all. This is especially true when a claim for breach of contract meets with counterclaims for fraud or other alleged breaches related to the contract, such as a breach of warranty claim.

Attorneys’ Fees Awards in Ohio

Ohio courts have held that a court must award attorneys’ fees for the amount of time spent pursuing the claim for which the fees may be awarded only when it is possible to separate the time spent on the claims in such a manner.3  

If the claims and counterclaims involve common facts or are based on related legal themes and it is difficult to separate the hours on a claim-by-claim basis, the party seeking attorneys’ fees will not be prejudiced.4  Rather, where multiple claims revolve around the “same allegations, facts, discovery, and legal arguments,” attorneys’ fees can be awarded for time spent on all the claims.5  

Claims for attorneys’ fees are individual and very fact-specific.  These claims often require expert testimony.

If you have a question about your legal options, you should speak to an attorney directly.

1. Bittner v. Tri-County Toyota, Inc., 58 Ohio St. 3d 143 (1991)
2. id
3. Miller v. Grimsley, 197 Ohio App. 3d 167 (10th App. Dist. 2011).
4. Hustler Cincinnati, Inc. v. Elm 411, LLC, 2014-Ohio-5648 (1st App. Dist. 2014)
5. id

The information presented in this post is not legal advice and does not form a lawyer/client relationship. Laws and circumstances can differ and change.
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