City of Alexandria v. Brown
| Decision Date | 15 January 2014 |
| Docket Number | No. 12–30823.,12–30823. |
| Parties | CITY OF ALEXANDRIA, Plaintiff–Intervenor Defendant–Third Party Plaintiff–Appellee Cross–Appellant v. Bridgett BROWN, Intervenor Plaintiff–Appellant v. CLECO Corporation; et al, Defendants Jacques Roy; Charles E. Johnson, Jr., Intervenor Defendants–Appellees H. Craig Davidson, Jr., Third Party Defendant–Appellant Cross–Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
OPINION TEXT STARTS HERE
Thomas More Flanagan, Flanagan Partners, L.L.P., New Orleans, LA, Sean Patrick Brady, Esq., Flanagan Partners, L.L.P., New Orleans, LA, Bridgett Elaine Brown, Attorney, Alexandria, LA, Larry English, Attorney, English & Associates, L.L.C., New York, NY, for Intervenor Plaintiff–Appellant.
Claude Favrot Reynaud, Jr., Esq., Carroll Devillier, Jr., Attorney, Leo Charles Hamilton, Breazeale, Sachse & Wilson, L.L.P., Baton Rouge, LA, John Michael Adragna, Miller, Balis, & O'Neil, P.C., Washington, DC, Howard Battle Gist, III, Gist Firm, Charles E. Johnson, Jr., Alexandria, LA, for Plaintiff–Intervenor Defendant–Appellee Cross–Appellant.
Claude Favrot Reynaud, Jr., Esq., Carroll Devillier, Jr., Attorney, Breazeale, Sachse & Wilson, L.L.P., Baton Rouge, LA, George C. Gaiennie, III, Chris J. Roy, Sr. Law Office, L.L.C., Alexandria, LA, for Intervenor Defendant–Appellee.
Michael Reese Davis, Sr., Tim Paul Hartdegen, Hymel Davis & Petersen, L.L.C., Baton Rouge, LA, for Third Party Defendant–Appellant Cross–Appellee.
Appeals from the United States District Court for the Western District of Louisiana.
Before STEWART, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
Attorneys Bridgett Brown and H. Craig Davidson appeal, and the City of Alexandria, Louisiana cross-appeals, the district court's determination of the fees owed by the City to Brown and Davidson for representing the City. For the following reasons, we AFFIRM the district court.
In 2004, the City of Alexandria, suspecting that it was being overcharged for power, hired Energy Management Services (“EMS”) to audit the City's energy contracts. At that time, the City purchased electricity through three suppliers: the Cleco Corporation, the Louisiana Energy and Power Authority, and the Southwestern Power Association. The City also possesses its own power plant—D.G. Hunter—which, though old and inefficient, the City would run when cost effective. The City's initial contract with EMS promised EMS 50% of whatever recovery the City obtained from overcharging energy suppliers.
But when EMS tried to obtain records from Cleco in order to perform the audit, Cleco had EMS thrown off its property. At that point, the City realized that it needed to hire a team of lawyers to obtain the necessary records from Cleco, and if necessary, pursue its claims. The City wanted to hire its lawyers on a contingency basis out of fear of the costs of protracted litigation.1
The City's first hire was Bridgett Brown. Brown practices in Alexandria. She devotes half her practice to criminal defense and the other half to miscellaneous civil cases. Brown knew then-City Attorney Kelvin Sanders well, having shared office space and split fees with him on personal injury, criminal, and family law cases. City Attorney Sanders testified that he hired Brown because he “trust[ed] her instincts as a lawyer,” as well as for her trial attorney skills, knowledge of local juries, and her contacts with the City Council. City Attorney Sanders also testified that Brown helped investigate the City's claims against Cleco, vet candidates to join the litigation team, and keep the City Council informed as to the status of the lawsuit. There was a lot, however, that Brown did not bring to the table: she had minimal experience in commercial litigation, and “knew nothing,” as the district court noted, “about the complexities of utilities litigation, regulations or rules of the Federal Energy Regulatory Commission, or any of the other technical matters.” Notwithstanding Brown's lack of experience in utilities litigation, her employment contract was authorized by the City Council—as the City Charter requires—in July 2005. Brown's contingency contract gave her a 10% share of any recovery.
After hiring Brown, City Attorney Sanders began looking for experts in energy law to lead the City's litigation effort. Sanders's search initially led him to H. Craig Davidson. At the time he was approached by Sanders in August 2004, Davidson had just opened his own solo practice in Baton Rouge. And though Davidson's new solo practice was a general practice firm that handled a wide variety of issues from transactional work to litigation, before going out on his own, Davidson had previously done extensive energy work as an associate for Baton Rouge attorney John Sharp. While working as an associate for Sharp on utility matters, Davidson was billed out at $350 an hour.
Davidson, in turn, recommended that the City hire Sharp. Though now disbarred, Sharp was at the time a very successful Louisiana energy lawyer with a busy practice, and had experience in representing electrical cooperatives against Cleco.
The City hired Sharp and Davidson in a single contract even though they worked for different firms. The intent behind doing so is disputed by the parties; the City claims that the Sharp/Davidson contract was a joint obligation and/or venture, but Sharp and Davidson claim that the joint contract simply was done as a convenience to the City, and that the true intent behind the contract was to hire Sharp and Davidson separately to 10% contingencies. What is undisputed is that the contract was concluded in haste, the contract refers to Sharp and Davidson collectively as “Attorney,” the contract awards Sharp and Davidson a 20% contingency, and the contract was authorized by the City Council in July 2005.
The City's last hire was Phillip Hunter, an Alexandria-based plaintiff's attorney. City Attorney Sanders claims that he hired Hunter for his contacts with city officials, as well as his trial skills. Hunter subsequently resigned from the representation, and raises no claim to attorney fees now.
Cleco did not take the City's decision to hire a litigation team lying down. The company mounted an aggressive effort to persuade the City not to file suit. Cleco also sued EMS, as well as two EMS employees (David Pugh and Sam Sansing) in Louisiana state court. Cleco claimed that EMS, Sansing, and Pugh violated non-disclosure agreements with Cleco by providing information regarding Cleco overcharges to the City (Pugh and Sansing were former Cleco employees). EMS, Sansing, and Pugh then counterclaimed. Then Alexandria attorney—and now current mayor of Alexandria–Jacques Roy, as well as his father, represented Sam Sansing in the Cleco v. EMS litigation.
While Roy's representation of Sansing in the Cleco v. EMS state court litigation would eventually become the subject of controversy, in the short run, Cleco's efforts to block the City's planned litigation were unsuccessful. The City filed suit against Cleco in Louisiana state court in June 2005, and Cleco removed the case to the Western District of Louisiana later that month.
Sharp and Davidson drafted the petition. Brown reviewed the petition but did not, according to her testimony at trial, add “any document, section, sentence, comma, period, or word” to the petition. Instead, she claims that her major contribution was helping to convince the City to file suit, though Davidson undoubtedly also played an important part in doing so. All four attorneys signed the petition.
After the suit was filed, each attorney on the litigation team played a different role. Sharp acted as lead counsel, and had the “final word on all pleading and litigation strategies.” Davidson acted as the senior associate. He facilitated communications, managed correspondence, and participated in the mediation process. Brown's role is much less clear. She did not principally draft any letter, interrogatory, or request for production during her time on the case. Brown nonetheless claimed in her lodestar submissions to the district court that she spent 1,650 hours (approximately 12–15 hours a week) on the case. She claims that her primary duties were to keep the City Council informed, and to discuss the case with Davidson and City Attorney Sanders. She also claims credit for participating in the selection of a consultant and an auditor to quantify the City's losses.
While representing Sam Sansing—but not EMS or its principal David Pugh—against Cleco in the Cleco v. EMS state court litigation, Jacques Roy also ran for Mayor of Alexandria. Roy won the election, and was sworn into office in December 2006. As he was not a neophyte to litigation with Cleco, Roy took an active role in the litigation, as did the new city attorney, Charles Johnson. The transition between administrations did not go as smoothly for Bridgett Brown, though the City's and Brown's accounts of what happened vary substantially.
City Attorney Johnson alleges that shortly after taking office Brown called his office and engaged in a profanity-laced rant about how he needed to get the “M–F white boys” Sharp and Davidson under control because Sharp and Davidson were not communicating with her regarding the status of the case. Johnson also reports that he was told by Sharp that Brown had directed a racial epithet towards former City Attorney Sanders at an earlier lawyers' meeting. For his part, City Attorney Saunders testified during the trial that “[s]he may have” directed a racial epithet towards him, and that “she's a colorful person.” 2
Though the other members of the Cleco litigation team did not report that they considered Brown's language to be a major disruption, Ms. Brown's other efforts to have Mayor Roy removed from the case were. Brown felt that the Mayor's representation of Sam Sansing in the state court ...
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