Legal Battle Between Larry and Jimmy Flynt May Finally Be Over

CINCINNATI, OH—Jimmy Flynt's attorneys got an early Christmas present this year, when a three-judge panel of Ohio's First District Court of Appeals ruled on December 24 that the bills for legal services submitted by the attorneys were "reasonable and customary for a Cincinnati area commercial litigation dispute," Courthouse News Ohio has reported. And now it'll be up to brother Larry Flynt to pay them. The fees in question stem from a business dispute between the brothers that began in 2009, although the disagreements between the brothers started long before that. In the current case, Jimmy Flynt, the owner of the corporation Hustler Cincinnati, Inc. (HCI), opened a Hustler novelty store at 411 Elm Street in Cincinnati in 2000, and purchased that property about a year later, but in 2004, HCI transferred ownership of the building to his brother's corporation, Elm 411, LLC, which then entered into a ten-year lease of the property with HCI. However, as relations between the brothers began to sour, Elm 411 sought to evict HCI from the premises in 2009, which HCI's attorneys fought by filing a complaint with the Hamilton County Common Pleas Court, seeking to remain in the property for the term of the lease. Elm 411 countersued, and the consolidated case went to trial in 2013, with the judge finding that the existing lease was valid and that Elm 411 could not evict HCI. The thing is, though, that the lease agreement contained the following clause: "In any dispute between the parties (whether or not litigated) arising hereunder or out of Lessee’s use or occupancy of the Premises, the prevailing party’s reasonable costs and expenses (including fees of attorneys and experts) will be paid or reimbursed by the unsuccessful party." Since Elm 411 failed to evict HCI, Jimmy's attorneys Robert W. Hojnoski and Associates naturally sought to have Larry (or Elm 411) pay their legal expenses in the amount of $170,652.75, which Hojnoski's expert witness testified were reasonable and customary for the Cincinnati area, but Elm 411 appealed the grant of legal fees, and that's the case on which the court of appeals issued its ruling on the 24th. In deciding in favor of HCI, Judge Penelope R. Cunningham cited the 1987 Ohio Supreme Court case of Nottingdale Homeowner's Association v. Darby, which held that "contractual fee shifting provisions are enforceable as long as the fees awarded are fair, just, and reasonable as determined by the trial court upon a full consideration of all the circumstances of the case," as well as the 2005 Ohio First District case Keal v. Day, which stated that one recognized exception to the general rule prohibiting "fee shifting" to the opposing party is, "where the contract between the parties provides for fee shifting." It's possible that Elm 411 LLC could appeal the decision to Ohio's Supreme Court, but considering the cost of such a move, as well as the further legal expense Elm 411 would owe to HCI if it loses, the appeals court's decision will likely be the final legal action taken in this case. The First District Court of Appeals decision can be found here. Pictured, l-r: Larry and Jimmy Flynt.