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STATE OF LOUISIANA COLLETTE JOSEY COVINGTON AND JADE COVINGTON v. MCNEESE STATE UNIVERSITY AND THE BOARD OF SUPERVISORS FOR THE UNIVERSITY OF LOUISIANA SYSTEM
I concur with the majority that the fee application submitted by the attorneys for Covington was properly accepted by the trial court. I also concur with the determination that the reduction of hours was error and would increase the hours to the full number submitted in the fee application. I join the opinion insofar as damages for frivolous appeal are denied and with the dispositions of the motions to strike.
I disagree with the majority that the trial court abused its discretion in setting the hourly rate at $240.00. McNeese submitted recent cases from the Western District which were unpublished, and which the trial court claimed not to rely on in reaching its decision that the hourly rate would be $240.00. I see no reason to similarly discount those cases. I believe the $240.00 figure is within the broad discretion afforded the trial court in setting the rate, and would affirm the trial court's judgment.
I also disagree that an enhancement of the lodestar calculation is appropriate in this case. As I read the Supreme Court jurisprudence comprehensively cited by the majority, I would find that this is not the “rare and exceptional case” in which the award should be enhanced. The majority notes that the U.S. Supreme Court has tried to “cabin” the use of enhancements. I find that the “strong presumption” that the lodestar fee is reasonable holds in this case. I agree that McNeese and its agents acted deplorably towards Covington, its lawyers used every dilatory tactic in the book to avoid compensating her or addressing her grievances, and that the abuse continued into this litigation over the attorney fees. But I find that the award is sufficient to compensate Covington's attorneys. I would simply find that the amount reached by applying the lodestar calculation is not unreasonably low, and therefore an enhancement is not appropriate, for these reasons and the reasons assigned by Judge Amy in his dissent.
Finally, I dissent from the amount awarded for attorney fees for work done on appeal. I agree that we can and should award additional fees. See Hutto v. Finney, 473 U.S. 678, 98 S.Ct. 2565 (1978), where the Supreme Court affirmed an award of additional attorney fees for work done appeal in a suit brought by prisoners in Arkansas. I think, though, that in order to award additional attorney fees, we must make a specific finding that Covington is a prevailing party under 42 U.S.C. § 12205 in this appeal. I would so find. Nevertheless, I believe the amount awarded by the majority is excessive, and would award a lower amount.
NUMBER 11–1077
I concur with the majority that the plaintiff is entitled to attorney fees in this case. I also agree with the decision to deny the request for sanctions for frivolous appeal and with the dispositions of the motions to strike.
However, I dissent from the remaining aspects of the majority opinion as I conclude that a full affirmation of the underlying judgment is appropriate. Notably, I find that the trial court acted within its discretion in compensating fewer attorney hours than sought and in determining the appropriate hourly rate.
Similarly, I conclude that the trial court acted reasonably in denying the enhancement to the lodestar hourly rate claimed. Therefore, I dissent from the majority's decision to apply that enhancement on appeal. Instead, I think it is likely that, in awarding the present day market value to the attorney's hourly rate rather than applying the prevailing historical rates at the time the hours were accrued, the trial court took into account some of the very compelling factors at work in this case. Further, jurisprudence suggests that a significant delay between the time legal services are rendered and the time that they are awarded may be acknowledged with either a delay enhancement or an award based on current market rates. See, e.g., Humphrey v. United Way of Texas Gulf Coast, 802 F.Supp.2d 847 (S.D.Tex.2011). See also Walker v. U.S. Dep't of HUD, 99 F.3d 761, 773 (5th Cir.1996) (wherein the Fifth Circuit explained that, in compensating for a delay in payment in a desegregation proceeding “the district court may either grant an unenhanced lodestar based on current rates ․ or calculate the lodestar using the rates applicable when the work was done and grant a delay enhancement․ It may not do both.”).
I also differ from the majority with regard to the appropriate amount of attorney fees awarded for work performed on appeal. Certainly, the plaintiff's defense of this appeal supports the award of fees pursuant to 42 U.S.C. § 12205. However, I believe that much of the litigation expense reported by the plaintiff's counsel was accrued in pursuit of the answer, which I have generally found to be unsuccessful. Therefore, I would set a figure lower than that now awarded.
For these reasons, I respectfully dissent in part and would affirm the trial court's decision in full.
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Docket No: 11–1077
Decided: September 05, 2012
Court: Court of Appeal of Louisiana, Third Circuit.
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