Court rules city must pay Hope's attorney fees
Lead Summary
By
Brandy Chandler-brandychandler@gmail.com
Highland County Common Pleas Court Judge Rocky Coss has ruled that the city of Hillsboro must pay Jack Hope's attorney fees stemming from the litigation regarding Hope's property, the Parker Hotel. However, a dollar amount has not yet been determined.
A hearing on the matter was held July 16, and in a motion filed June 9 by Hope's attorney Joseph L. Trauth Jr., "Hope is entitled to collect attorneys' fees because he asserted claimed that 1) Hillsboro violated Hope's state and federal constitutional rights by attempting to destroy Hope's private property pursuant to a city ordinance that was in conflict with the Ohio Revised Code and therefore invalid and 2) Hillsboro denied Hope his procedural right to due process rights as guaranteed by both the Ohio and United States Constitutions ... As a prevailing plaintiff in this case, Hope is entitled to recover his attorney's fees he expended to right the constitutional wrong committed by Hillsboro."
On May 20 Coss filed an entry granting a motion for summary judgment which stated the city of Hillsboro's ordinance regarding dangerous buildings was unconstitutional. Hope had filed a complaint against the city of Hillsboro on June 25, 2009, "alleging that he had received a letter dated June 8, 2009 that it intended to solicit bids for the demolition of (Hope's buildings, including the Parker Hotel) located at 131-137 W. Main St., Hillsboro, Ohio. (Hope) obtained legal counsel and an amended complaint was filed on Sept. 4, 2009. (The city) filed its answer and counterclaim seeking approval of the court for demolition of the building."
The suit was filed in response to a letter sent to Hope by Hillsboro Deputy Law Director Kathryn Hapner, who also represented the city on the case, "informing him that (the city) intended to solicit bids for destruction (of the aforementioned properties) on July 6, 2009. It indicated that the buildings constitute a threat to the public" according to court documents. Hope was sent a letter informing him that he must bring the buildings up to code or the city would solicit bids to demolish them.
Since the May 20 ruling, the Hillsboro City Council has voted to implement changes to the dangerous buildings ordinance, which added an appeals process and changed the amount of time an individual has to appeal a ruling by the city's housing inspector.
The court noted in the the May 20 ruling, "This does not prohibit (the city) from taking enforcement action in the future once the ordinance has been amended or replaced to comply (with the ORC) an to provide due process to owners of buildings as required by the Fourteenth Amendment to the United States Constitution."
The city of Hillsboro has faced financial difficulties and recently laid off three employees and cut budgets in an attempt to address a pending deficit in the general fund by the end of 2011 which has been as high as $730,000. As of the city's June 12 council meeting, the deficit was projected at $169,000. Council voted to permit the city auditor to prepare his tax budget so the city would have a $450,000 carryover into 2012. That would result in cuts of approximately 21 percent across general fund departments.
Hapner filed a response July 10 that said even thought the court ruled in favor of Hope in the first and second counts of the amended complaint, "Neither the first nor the second count of (Hope's) amended complaint mention any form of civil rights violation, nor is any civil rights violation under 42 USC 1981 or 1988 appear anywhere in (Hope's) amended complaint, except in the sixth cause of action and paragraph VI in (Hope's) prayer for relief."
Since the court dismissed counts three through seven of the complaint, Hapner wrote, "Since the only cause of action whereby (Hope) alleged a civil rights violation was count six, and said count was dismissed, (Hope) did not prevail on his civil rights cause of action and is therefore, not entitled to attorney fees."
In Coss' July 16 entry he wrote, "Upon consideration of the arguments and citations of counsel, the court finds that 42 USC 1988 (B) provides that a trial court may award reasonable attorney fees to the prevailing party in in an action filed under 42 USC 1983. However, the United States Supreme Court has held that notwithstanding the use of the permissive word 'may' rather than the mandatory word 'shall,' that a trial court is required to award a prevailing party reasonable attorney fees unless special circumstances exist that would justify a denial of a fee award. The (city) argues that the plaintiff (Hope) is not entitled to any award, but not based on special circumstances."
Coss wrote that he was "inclined to agree" with the city's argument regarding the dismissed counts based upon the language of the statute, however "decision of the federal and state courts render that interpretation untenable," and cited two court cases that supported Hope's motion.
"Therefore," Coss wrote, "the court feels that is has no choice under the law but to grant the plaintiff's motion for attorney fees and hereby grant said motion. Plaintiff shall submit an affidavit of counsel with detailed billing for attorney fees setting forth dates, time and subject of the time by July 29. (The city) shall have until Aug. 12 to file any written objections and if desired to request an evidentiary hearing. The court will not consider any fees for work done in the case prior to the filing of the amended complaint as that is the first time that the constitutional claims were raised. If no request for evidentiary hearing is filed, the court will decide the amount to be awarded based upon the case file, the affidavit and memoranda of the parties."
Highland County Common Pleas Court Judge Rocky Coss has ruled that the city of Hillsboro must pay Jack Hope's attorney fees stemming from the litigation regarding Hope's property, the Parker Hotel. However, a dollar amount has not yet been determined.
A hearing on the matter was held July 16, and in a motion filed June 9 by Hope's attorney Joseph L. Trauth Jr., "Hope is entitled to collect attorneys' fees because he asserted claimed that 1) Hillsboro violated Hope's state and federal constitutional rights by attempting to destroy Hope's private property pursuant to a city ordinance that was in conflict with the Ohio Revised Code and therefore invalid and 2) Hillsboro denied Hope his procedural right to due process rights as guaranteed by both the Ohio and United States Constitutions ... As a prevailing plaintiff in this case, Hope is entitled to recover his attorney's fees he expended to right the constitutional wrong committed by Hillsboro."
On May 20 Coss filed an entry granting a motion for summary judgment which stated the city of Hillsboro's ordinance regarding dangerous buildings was unconstitutional. Hope had filed a complaint against the city of Hillsboro on June 25, 2009, "alleging that he had received a letter dated June 8, 2009 that it intended to solicit bids for the demolition of (Hope's buildings, including the Parker Hotel) located at 131-137 W. Main St., Hillsboro, Ohio. (Hope) obtained legal counsel and an amended complaint was filed on Sept. 4, 2009. (The city) filed its answer and counterclaim seeking approval of the court for demolition of the building."
The suit was filed in response to a letter sent to Hope by Hillsboro Deputy Law Director Kathryn Hapner, who also represented the city on the case, "informing him that (the city) intended to solicit bids for destruction (of the aforementioned properties) on July 6, 2009. It indicated that the buildings constitute a threat to the public" according to court documents. Hope was sent a letter informing him that he must bring the buildings up to code or the city would solicit bids to demolish them.
Since the May 20 ruling, the Hillsboro City Council has voted to implement changes to the dangerous buildings ordinance, which added an appeals process and changed the amount of time an individual has to appeal a ruling by the city's housing inspector.
The court noted in the May 20 ruling, "This does not prohibit (the city) from taking enforcement action in the future once the ordinance has been amended or replaced to comply (with the ORC) and to provide due process to owners of buildings as required by the Fourteenth Amendment to the United States Constitution."
The city of Hillsboro has faced financial difficulties and recently laid off three employees and cut budgets in an attempt to address a pending deficit in the general fund by the end of 2011 which has been as high as $730,000. As of the city's July 12 council meeting, the deficit was projected at $169,000. Council voted to permit the city auditor to prepare his tax budget so the city would have a $450,000 carryover into 2012. That would result in cuts of approximately 21 percent across general fund departments.
Hapner filed a response July 10 that said even thought the court ruled in favor of Hope in the first and second counts of the amended complaint, "Neither the first nor the second count of (Hope's) amended complaint mention any form of civil rights violation, nor is any civil rights violation under 42 USC 1981 or 1988 appear anywhere in (Hope's) amended complaint, except in the sixth cause of action and paragraph VI in (Hope's) prayer for relief."
Since the court dismissed counts three through seven of the complaint, Hapner wrote, "Since the only cause of action whereby (Hope) alleged a civil rights violation was count six, and said count was dismissed, (Hope) did not prevail on his civil rights cause of action and is therefore, not entitled to attorney fees."
In Coss' July 16 entry he wrote, "Upon consideration of the arguments and citations of counsel, the court finds that 42 USC 1988 (B) provides that a trial court may award reasonable attorney fees to the prevailing party in an action filed under 42 USC 1983. However, the United States Supreme Court has held that notwithstanding the use of the permissive word 'may' rather than the mandatory word 'shall,' that a trial court is required to award a prevailing party reasonable attorney fees unless special circumstances exist that would justify a denial of a fee award. The (city) argues that the plaintiff (Hope) is not entitled to any award, but not based on special circumstances."
Coss wrote that he was "inclined to agree" with the city's argument regarding the dismissed counts based upon the language of the statute, however "decision of the federal and state courts render that interpretation untenable," and cited two court cases that supported Hope's motion.
"Therefore," Coss wrote, "the court feels that it has no choice under the law but to grant the plaintiff's motion for attorney fees and hereby grant said motion. Plaintiff shall submit an affidavit of counsel with detailed billing for attorney fees setting forth dates, time and subject of the time by July 29. (The city) shall have until Aug. 12 to file any written objections and if desired to request an evidentiary hearing. The court will not consider any fees for work done in the case prior to the filing of the amended complaint as that is the first time that the constitutional claims were raised. If no request for evidentiary hearing is filed, the court will decide the amount to be awarded based upon the case file, the affidavit and memoranda of the parties."
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