Barker v. City of West Lafayette

• Decision Date: 09 October 2008
• Docket Number: No. 79A02-0804-CV-384.,79A02-0804-CV-384.
• Citation: 894 N.E.2d 1004
• Parties: Christopher Scott BARKER, Appellant-Plaintiff/Cross-Appellee, v. CITY OF WEST LAFAYETTE and Officer Adam S. Ferguson, Appellees-Defendants/Cross-Appellants.
• Court: Indiana Appellate Court

894 N.E.2d 1004

Christopher Scott BARKER, Appellant-Plaintiff/Cross-Appellee, v. CITY OF WEST LAFAYETTE and Officer Adam S. Ferguson, Appellees-Defendants/Cross-Appellants.

No. 79A02-0804-CV-384.

Court of Appeals of Indiana.

October 9, 2008.

Richard A. Waples, Jaunae M. Hanger, David R. Brimm, Waples & Hanger, Indianapolis, IN, Attorneys for Appellant.

Kenneth Collier-Magar, Collier-Magar & Roberts, P.C., Indianapolis, IN, Attorney for Appellee.

OPINION

CRONE, Judge.

Case Summary

Christopher Scott Barker appeals the trial court's attorney fees order issued upon remand from another panel of this Court. The fees order followed Barker's successful civil rights action against the City of West Lafayette and Officer Adam S. Ferguson (collectively, "the City"). The City filed a cross-appeal. We affirm in part, reverse in part, and remand.

Issues

Barker raises one issue, which we restate as the following three:

I. Did the trial court err in denying Barker's petition for fees related to his trial court and post-remand litigation to recover attorney fees?

II. Did the trial court err in denying Barker's petition for fees related to his prior fee-related appeal to this Court?

III. Did the trial court err in awarding fees related to Barker's unsuccessful excessive force claim against the City?

In its cross-appeal, the City raises four issues, which we consolidate and restate as the following three:

IV. Did the trial court use a reasonable hourly rate in calculating Barker's attorney fees?

V. Did the trial court err in failing to deduct fees for clerical work performed by paralegals?

IV. Did the trial court commit reversible error by ruling prematurely upon Barker's motion to correct error?

Facts and Procedural History

This is Barker's second appeal involving the trial court's award of attorney fees pursuant to 42 U.S.C. § 1988.¹ In Barker's prior appeal, another panel of this Court stated the underlying facts as follows:

On July 21, 2002, Ferguson arrested Barker for resisting law enforcement and battery upon a law enforcement officer. After being acquitted of all criminal charges, Barker sued the city for violation of his civil rights pursuant to 42 U.S.C. § 1983. The complaint made federal claims of false arrest, excessive force, and malicious prosecution, and also made state law claims of false arrest and battery.

The jury found in favor of Barker on his federal claims of false arrest and malicious prosecution and his state claim of false arrest. It found in the City's favor on the battery and excessive force claims. The total judgment entered against the City was $40,000.

After trial, Barker filed a petition requesting an award of attorney fees and costs pursuant to 42 U.S.C. § 1988. The total amount Barker requested was $141,520.26 [which included his initial petition for $120,200.26 in fees and costs plus a supplemental petition for $21,320.00 in fees expended while litigating his fee claims before the trial court]. In support of this petition, Barker submitted billing records indicating the amount of time spent on the case by various attorneys and paralegals, multiplied by the hourly rate for those persons.

On August 16, 2007, the trial court entered an order awarding Barker $48,000 in attorney fees and $1,953.01 in costs. In its detailed order, the trial court relied exclusively upon the multi-part test for determining reasonable attorney fees found in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.1974).

Barker v. City of W. Lafayette, 878 N.E.2d 230, 231-32 (Ind.Ct.App.2007) ("Barker I"). This Court reversed the trial court's decision and remanded with instructions to recalculate Barker's attorney fees award pursuant to the lodestar method, which requires the multiplication of a reasonable number of hours spent on the litigation times a reasonable hourly rate. Id. at 232-33.

Upon remand, Barker filed supplemental petitions for fees and expenses related to the appeal—$28,342.16—and fees related to the proceedings on remand— $7,248.64. In recalculating Barker's fees award, the trial court determined that Barker was entitled to an award of $92,960.51. The trial court explained its decision not to award Barker the entire amount of $177,111.06: "Plaintiff's counsel should not receive any compensation for losing the excessive force, assault and battery claims, or compensation for filing his fee petitions, or compensation for taking an appeal [because] this Court relied upon Johnson v. Georgia Highway Express Inc., which was cited to the Court by plaintiff. Said compensation being unreasonable." Appellant's App. at 19.

On March 5, 2008, Barker filed a motion to correct error. On March 13, 2008, without holding a hearing or receiving a response from the city, the trial court granted that motion and set aside its February 28, 2008, decision in its entirety.² Id. at 20. It recalculated Barker's fee award using higher hourly rates for the attorneys and paralegals and awarded Barker fees and expenses in the total amount of $120,200.26. The trial court stated again that Barker should not receive compensation for fees toward his unsuccessful claims or his pursuit of fees, and it again suggested that Barker had invited error by citing the Johnson case to the trial court during the fees proceedings. In this revised fee order, the trial court effectively granted Barker's initial April 17, 2007, petition for fees and expenses but denied Barker $56,910.80 in fees for litigation of the fee issue in the trial court, on appeal, and on remand.

On March 18, 2008, the City filed a motion to correct error, arguing that the trial court had ruled on Barker's motion to correct error before the City had sufficient time to respond. The City also pointed out that although the trial court had ruled that Barker should not receive attorney fees related to his unsuccessful excessive force claim, it had failed to deduct those fees from the award. The City also claimed that the trial court had used excessive hourly rates and numbers of hours in its revised calculation.

On April 14, 2008, the trial court issued an order acknowledging its error in ruling upon Barker's motion to correct error without allowing the requisite time for the City's response. On substantive grounds, however, the trial court "reaffirmed and re-entered" its order of March 13, 2008. Id. at 22. Barker now appeals, and the City cross-appeals.

Discussion and Decision

Generally, we review a trial court's denial of attorney fees pursuant to 42 U.S.C. § 1988 for an abuse of discretion. Jaffee v. Redmond, 142 F.3d 409, 412 (7th Cir.1998). This deferential standard of review is appropriate in view of the trial court's superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters. Id. An abuse of discretion occurs when the trial court's decision is clearly against the logic and effects of the facts and circumstances before the court. Gauvin v. State, 878 N.E.2d 515, 520 (Ind.Ct.App.2007), trans. denied (2008). We do not revisit weight and credibility issues but confine our review to the evidence and reasonable inferences favorable to the judgment. McGill v. McGill, 801 N.E.2d 1249, 1251 (Ind.Ct. App.2004).

When a trial court denies attorney fees to a prevailing party under Section 1988 as a result of applying a principle of law, however, the justifications for the generally deferential standard of review are absent. Jaffee, 142 F.3d at 412. Therefore, as with all questions of law, we review de novo the alleged legal errors made by the trial court in denying fees. Id.

I. Fees for Establishing Underlying Litigation Fees

Barker contends that the trial court erred in denying his claim for attorney fees expended in preparing and defending his fee petition before the trial court. Pursuant to 42 U.S.C. § 1988(b), a court "may allow the prevailing party [in an action to enforce a provision of 42 U.S.C. § 1983] a reasonable attorney's fee[.]" However, it is generally accepted that fees should be awarded to a prevailing party "almost as a matter of course." Barker I, 878 N.E.2d at 232 (citing Davis v. Murphy, 587 F.2d 362, 364 (7th Cir. 1978)). As Barker points out, the law on this issue was long ago settled by the U.S. Supreme Court when it determined that a statutory fee award for the prevailing plaintiff presumptively encompasses all aspects of the civil action, including fees on fees litigation. Commissioner, INS v. Jean, 496 U.S. 154, 161-62, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990) (citing with approval Gagne v. Maher, 594 F.2d 336, 343-44 (2nd Cir.1979) (holding that trial court's denial of attorney fees for time spent in obtaining them would "dilute" the value of a fees award by forcing attorneys into extensive uncompensated litigation in order to gain any fees under Section 1988), aff'd on other grounds by 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980)). In Barker I, this Court clearly determined that Barker was a "prevailing party" for purposes of this fee statute. 878 N.E.2d at 233. Thus, we must conclude that the trial court erred in denying Barker fees expended to recover Section 1988 fees. We hereby reverse this portion of the trial court's order and remand with instructions to award Barker fees in the amount of $21,320.00 for his fees litigation prior to the first appeal, plus $7,248.64 for fees expended pursuing fees following the first remand in this case.

II. Denial of Appellate Fees

Barker also claims that the trial court erred by denying his petition for fees related to his earlier successful appeal. In its fees order, the trial court suggested that Barker had somehow invited its error of failing to use the lodestar method by citing the Johnson case in his initial attorney fee brief. See Appellant's App. at 19 ("Plaintiff's counsel should not receive any compensation for ... taking an appeal and this Court relied upon Johnson v. Georgia Highway Express...