801 F.2d 1197 (10th Cir. 1986), 84-1814, Mares v. Credit Bureau of Raton

Docket Nº:84-1814.
Citation:801 F.2d 1197
Party Name:Caldo MARES and Sally Mares, his wife, Plaintiffs-Appellants, v. CREDIT BUREAU OF RATON, and Janet Yarbrough, individually, and in her official capacity, Defendants-Appellees.
Case Date:September 08, 1986
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1197

801 F.2d 1197 (10th Cir. 1986)

Caldo MARES and Sally Mares, his wife, Plaintiffs-Appellants,


CREDIT BUREAU OF RATON, and Janet Yarbrough, individually,

and in her official capacity, Defendants-Appellees.

No. 84-1814.

United States Court of Appeals, Tenth Circuit

September 8, 1986

Page 1198

Richard J. Rubin, Santa Fe, N.M. (Anthony G. Lopez, Taos, N.M., with him on the briefs), for plaintiffs-appellants.

Owen M. Russell (Don Klein, Jr., with him on the briefs), Raton, N.M., for defendants-appellees.

Before MOORE and ANDERSON, Circuit Judges, and JOHNSON, District Judge. [*]

ANDERSON, Circuit Judge.

This appeal deals solely with the amount of attorneys' fees and costs awarded by the district court following its judgment in favor of plaintiffs, Caldo and Sally Mares. The underlying suit involved an action against the Credit Bureau of Raton for violating plaintiffs' rights under the Truth-In-Lending Act, 1 the Fair Credit Reporting Act, 2 and the Fair Debt Collection Practices Act. 3 Plaintiffs prevailed and were awarded damages totalling $2,500, which included $500 in punitive damages for defendants' conduct in violating the Fair Credit Reporting Act. The district court also ruled that plaintiffs were entitled to reasonable attorneys' fees as provided by each of the statutes. 4

Plaintiffs' two attorneys ultimately submitted an application for fees and expenses

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totalling $29,612.60, of which the court awarded $4,261.49. 5 This appeal by plaintiffs' attorneys followed. 6 They contend that the award was inadequate and that the district court failed to comply with our decision in Ramos v. Lamm, 713 F.2d 546 (10th Cir.1983). We affirm in part and reverse in part.

As litigation goes, the development of this case appears to be essentially unremarkable. During the sixteen month period from complaint to trial the docket sheet shows activity in all but two months. The complaint was filed on October 18, 1979. Both sides conducted timely discovery consisting of interrogatories and depositions. Plaintiffs also propounded requests for admissions and sought discovery of documents. The defense was vigorous, including resistance to discovery, and at one point plaintiffs were forced to seek an order compelling responses. Following discovery plaintiffs filed a motion for summary judgment, which was granted on the Truth-in-Lending violation issue. Both sides submitted memoranda arguing that motion. The court's written opinion was eight pages long, citing much of the authority researched and presented by plaintiffs.

Pursuant to order of the court, both sides presented proposed findings of fact and conclusions of law prior to trial, as well as the usual pretrial lists of witnesses and exhibits. Trial commenced on February 25, 1981, and concluded the following day. Plaintiffs submitted supplemental requested findings and conclusions two weeks later. On March 17, 1981, the district court entered its nine-page findings and conclusions. They generally followed the sequence and content of the findings proposed by plaintiffs concerning the federal statutory violation issues. The court adopted plaintiffs' proposed conclusions of law almost word for word on those issues, and also awarded attorneys' fees. The court denied as redundant any damage award on plaintiffs' state law claim and denied damages for alleged loss of equity and appreciation in a prospective home. Plaintiffs also suffered a major defeat on the amount of punitive damages sought. In all, plaintiffs were awarded a total of $2,500.

The month prior to trial, plaintiffs' attorney Anthony G. Lopez associated Richard J. Rubin as co-counsel. Mr. Rubin was present and assisted at trial. His subsequent fee application was denied by the court on the ground that his assistance was unnecessary.

For the professional services just outlined, plaintiffs' attorneys filed an application for fees and expenses two weeks after the court's favorable decision. 7 Mr. Lopez requested fees and expense reimbursement totalling $15,463.81. Mr. Rubin requested a total of $3,478.34. Then ensued the dispute over fees which is now before us.

Because Mr. Lopez had signed a contingent fee agreement with plaintiffs, the district

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court delayed an award of fees pending the outcome of Cooper v. Singer, 689 F.2d 929 (10th Cir.1982), on rehearing, 719 F.2d 1496 (10th Cir.1983), then on appeal to this court. In the meantime, on December 2, 1981, plaintiffs' attorneys filed a second application for fees and costs in which Mr. Lopez requested $15,640.84, and Mr. Rubin $4,239.33. 8 On September 30, 1982, a panel of this court held, in Cooper, that when counsel agreed to be paid in accordance with a contingent fee contract, that contract constituted the maximum statutory fee allowable.

On November 5, 1982, the district court entered an initial order granting fees to plaintiffs. On the authority of Cooper, the district court awarded attorneys' fees in the amount of $833.33, amounting to one-third of plaintiffs' $2,500 recovery. Four days later, plaintiffs' counsel informed the trial court that a petition for rehearing had been filed in the Cooper case. Plaintiffs' counsel then requested the trial court to withdraw its November 5, 1982, fee order to await the outcome of the Cooper rehearing. On October 24, 1983, this court, en banc, reversed Cooper and rejected the calculation of statutory attorneys' fees based on a percentage of the client's recovery. Cooper v. Singer, 719 F.2d 1496 (10th Cir.1983).

On January 9, 1984, nearly three years after the trial court decided this case, plaintiffs' counsel submitted a third request for attorneys' fees. The chief difference between that request and those previously submitted was a claim for an increase in hourly rates from $60.00 to $90.00 per hour for Mr. Lopez, and $75.00 to $100.00 per hour for Mr. Rubin. The latter also claimed additional hours for collateral assistance to counsel in the Cooper case and for work on the attorneys' fee request.

Thus, by 1984, plaintiffs' counsel had logged 303.42 hours on the case, including time expended on their application for fees. Their total requested fees and expenses amounted to $29,612.60, plus $860.29 requested in a separate cost bill. At every stage of the fee application proceedings defendants vigorously contested the amounts claimed. They also argued strenuously that fact issues had been raised by plaintiffs' attorneys which should be explored by way of a hearing. Plaintiffs' attorneys opposed a hearing, R. Vol. I at 350, and the court did not hold one. On May 3, 1984, the district court entered a revised memorandum opinion and order awarding attorneys' fees of $3,960.00, $188.10 gross receipts tax, and expense reimbursement in the amount of $181.33, totalling $4,329.43. 9

Plaintiffs' attorneys contend that the district court erred in its award: (a) by reducing their hours eligible for compensation without undertaking a "task specific analysis" and making findings sufficient for review; (b) by refusing to award fees to Mr. Rubin; (c) by refusing to recognize increased fee rates in effect at the time the award was made; and (d) by improperly excluding certain expenses.

An appellate court plays a limited role in reviewing a trial court's award of attorneys' fees. "We customarily defer to the

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District Court's judgment because an appellate court is not well suited to assess the course of litigation and the quality of counsel." Copeland v. Marshall, 641 F.2d 880, 901 (D.C.Cir.1980) (en banc). The trial court "saw 'the attorneys' work first hand,' " Poolaw v. City of Anadarko, 738 F.2d 364, 368 (10th Cir.1984), cert. denied, 469 U.S. 1108, 105 S.Ct. 784, 83 L.Ed.2d 779 (1985) (quoting Higgins v. State ex rel. Oklahoma Employment Security Commission, 642 F.2d 1199, 1203 (10th Cir.1981)), and "has far better means of knowing what is just and reasonable than an appellate court," Trustees v. Greenough, 15 Otto 527, 105 U.S. 527, 26 L.Ed. 1157 (1882). Accordingly, an attorneys' fee award by the district court will be upset on appeal only if it represents an abuse of discretion. Pennsylvania v. Delaware Valley Citizens' Council For Clean Air, --- U.S. ----, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986); Evans v. Jeff D., --- U.S. ----, 106 S.Ct. 1531, 89 L.Ed.2d 747 (1986); Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984); Comacho v. Colorado Electronic Technical College, Inc., 590 F.2d 887 (10th Cir.1979); see also Copeland, 641 F.2d at 901; Konczack v. Tyrrell, 603 F.2d 13, 19 (7th Cir.1979), cert. denied, 444 U.S. 1016, 100 S.Ct. 668, 62 L.Ed.2d 646 (1980); Carr v. Blazer Financial Services, Inc., 598 F.2d 1368 (5th Cir.1979). Findings on underlying questions of fact are subject to the clearly erroneous standard of review. Ries Biologicals, Inc. v. Bank of Santa Fe, 780 F.2d 888 (10th Cir.1986).

"We reemphasize that the district court has discretion in determining the amount of a fee award." Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). In that process "the fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates." Id. "It remains important, however, for the district court to provide a concise but clear explanation of its reasons for the fee award." Id. Such explanations must "give us an adequate basis for review." Ramos, 713 F.2d at 552. And, in reaching their determinations district courts must follow the guidelines established by the Supreme Court and this court. See, e.g., Delaware Valley, 106 S.Ct. 3088; Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541; Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933; Ramos v. Lamm, 713 F.2d 546. "[T]he benchmark for the awards...

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