Indiana Hosp. Licensing Council v. Women's Pavilion of South Bend

• Decision Date: 23 December 1985
• Docket Number: No. 3-783A219,3-783A219
• Citation: 486 N.E.2d 1070
• Parties: INDIANA HOSPITAL LICENSING COUNCIL, Appellant (Plaintiff Below), v. WOMEN'S PAVILION OF SOUTH BEND, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 1070

486 N.E.2d 1070

INDIANA HOSPITAL LICENSING COUNCIL, Appellant (Plaintiff Below), v. WOMEN'S PAVILION OF SOUTH BEND, Appellee (Defendant Below).

No. 3-783A219.

Court of Appeals of Indiana,

Fourth District.

Dec. 23, 1985.

Linley E. Pearson, Atty. Gen., Michael Schaefer, Deputy Atty. Gen., Indianapolis, for appellant.

William Rosenbaum, Dillon & Cohen, Indianapolis, Roy Lucas, Lucas & Associates, P.C., Fairfax, Va., for appellee.

MILLER, Judge.

The Indiana Hospital Licensing Council (Indiana Licensing) and Women's Pavilion of South Bend, Inc. (Pavilion) have been engaged in an extended dispute over the constitutionality of the application of a statute which infringed on Pavilion's practice of performing first-trimester abortions. See Indiana Hospital Licensing Council v. Women's Pavilion of South Bend, Inc. (1981), Ind.App., 420 N.E.2d 1301. The instant issue before this court concerns the amount of appellate attorneys' fees to be awarded for one of the law firms representing Pavilion in the appeal. See Indiana Hospital Licensing Council v. Women's Pavilion of South Bend, Inc. (1981), Ind.App., 424 N.E.2d 461 (on rehearing). Pavilion's local counsel settled his claim with Indiana Licensing, and this appeal concerns the fees awarded to Pavilion's Washington, D.C. counsel. Indiana Licensing avers the trial court's $51,910.05 award after applying a 100% multiplier was excessive while Pavilion argues the award was too small. We find the hourly rates determined by the trial court amounting to $25,268.75 for Lucas & Associates proper, but we agree with Pavilion on the issue of the multiplier. We remand for reduction in the amount of attorneys' fees.

FACTS

Pavilion is a first trimester abortion facility located in South Bend, Indiana. In August of 1978, Indiana Licensing filed a complaint for preliminary and permanent injunctions against Pavilion, alleging it was operating without a license as proscribed by a statute requiring the licensing of all "ambulatory outpatient surgical centers." See IND.CODE 16-10-1-7. Pavilion brought a counterclaim under 42 U.S.C. Sec. 1983 to challenge the licensing statute as an unconstitutional invasion of the right to privacy under the Fourteenth Amendment. The trial court held that although Pavilion appeared to be an ambulatory outpatient surgical center within the meaning of the statute to the extent a first trimester abortion is a surgical procedure, attempted regulation of such abortions through the application of Indiana's licensing statute would constitute an impermissible degree of state interference during the first trimester.

Pavilion asked the trial court to award attorney's fees pursuant to 42 U.S.C. Sec. 1988. This section provides that in any Sec. 1983 action, "the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs." Id. Pavilion reasoned attorneys' fees should be awarded because it prevailed on its Section 1983 claim to vindicate its constitutional rights. The trial court denied the request, and Pavilion's counsel did not appeal the ruling at the request of their client.

Indiana Licensing, however, appealed the trial court's decision concerning the unconstitutional application of the statute. Pavilion's counsel prepared an appellee's brief in reply to the allegations of error. Our court affirmed the trial court's decision. Indiana Hospital Licensing Council v. Women's Pavilion of South Bend, Inc. (1981), Ind.App., 420 N.E.2d 1301.

Pavilion also filed a motion on appeal asking our court for a supplemental order remanding the case to the trial court to award attorneys' fees under Section 1988 for both the trial and the appeal. Indiana Licensing did not dispute Pavilion would normally be entitled to fees under the statute, but contended it waived the issue by failing to cross-appeal. We ruled that because Pavilion did not raise the trial fee issue in its appellate brief, it had waived this issue under Ind. Rules of Procedure, Appellate Rule 8.3(A)(7). Nevertheless, we decided Pavilion had not waived its entitlement to fees for the appeal. Thus, we remanded the case to determine the attorneys' fees incurred in defense of the appeal and on remand. Indiana Hospital Licensing Council v. Women's Pavilion of South Bend, Inc. (1981), Ind.App., 424 N.E.2d 461 (on rehearing). The instant proceeding ensued.

Pavilion moved, on April 2, 1982, for an award of appellate attorneys' fees and additionally requested the trial court to modify its judgment in order to allow trial fees also. Attached to this motion were a memorandum of law and various affidavits and exhibits. They include the following facts.

Pavilion retained two law firms in this case for trial and appellate representation. One was Lucas & Associates, P.C., of Washington, D.C. (now Fairfax, Virginia), which is experienced in medical-legal litigation all over the country. The firm's practice encompasses the areas of health care law, malpractice, hospital staff policies, and zoning discrimination. Most particularly, the firm has been involved in several federal abortion cases, such as Roe v. Wade (1973), 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147; Doe v. Bolton (1973), 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201; and Mahoning Women's Center v. Hunter (1980), 447 U.S. 918, 100 S.Ct. 3006, 65 L.Ed.2d 1110. The firm alleges as a result of its participation of these particular cases, it does not receive clients with views inimical to a pro-abortion stance.

Attorney Roy Lucas, the senior attorney of the firm, has fifteen years of experience in trial and appellate work. During the course of the appeal and remand, his billing rates increased from $75 per hour to $125 per hour. Lynn Miller, an associate attorney with four years of experience, was billed at a rate of $50 to $75 per hour. Another associate, Jeanette Helfrich, with two years of experience was billed from $65 to $75 per hour. Three law clerks--Geoffrey Gavett, Rhoda Barish, and Louis Stern--had their time billed from $30 to $35 per hour.

Pavilion also employed local counsel, Sanford Brook of Amaral & Brook, South Bend, who assisted during the entire proceedings--at trial, on appeal, and on remand. He assisted Lucas & Associates in briefing the issues, preparing for oral argument, and composing many of the filings in this court. He had experience with abortion litigation at the state and federal level, and his hourly rate in this case was $65. Brook represented Pavilion on three other occasions. As a result of his involvement in this particular case, he received anonymous and threatening phone calls and letters, and was personally attacked on television by a member of the local bar. All in all, Brook's representation of Pavilion in this case has drawn adverse public reaction.

Both law firms presented a detailed accounting of hours billed and expenses incurred. ¹ The firms have broken down the entire course of proceedings into four events: the initial trial over the injunction; the appeal; the issue of attorneys' fees on appeal; and the remand to determine attorneys' fees. Moreover, the firms have logged their expenses for each stage. A summary of the trial and appellate fees for each firm is:

Pavilion also raised the argument that its attorneys were entitled to a bonus multiplier. Each attorney, Lucas and Brook, by affidavit stated he was entitled to a multiplier. In addition, essentially identical affidavits of two South Bend attorneys were presented in support of a multiplier for Brook. Finally, an attorney from Chicago attested to the factors militating toward applying a bonus for Lucas. The affidavits of Brook and the two South Bend attorneys, however, only supported Brook's fees, and gave no opinion on Lucas's fees. The evidence in favor of a multiplier for Lucas's work then is contained in the Chicago attorney's affidavit and Lucas's self-serving affidavit. Moreover, Pavilion only relies on Lucas's affidavit in its brief and we will discuss its content in our opinion. After requesting application of a 100% multiplier, in addition to 10% interest running from the time fees were incurred, the total requests for each firm was $96,138.51 for Lucas & Associates and $20,966.98 for Amaral & Brook.

The counterpart evidence presented by Indiana Licensing consisted solely of an affidavit from an Indianapolis attorney who had written briefs in over 100 appeals. He declared the prevailing fee in Indianapolis for an appellee's brief was $2,500 and for oral argument, between $250 and $500.

After a hearing, ² the trial court issued its order with a supporting memorandum of law. The trial court first ruled again Pavilion was not entitled to attorney's fees for trial work but that, pursuant to our ruling on rehearing, it was entitled to appellate fees and to fees for working on the fee issue itself.

The court in its memorandum of law found the number of hours billed and hourly rates for the appeal and the attorneys' fee issue on appeal were acceptable. It made a downward adjustment, however, in the number of billable hours required on remand because some of the time was spent asking the trial court again for trial fees, an issue we already decided against Pavilion. For Lucas & Associates, the court reduced Attorney Lucas's hours from 41 to 30.75 and Attorney Helfrich's from 69.5 to 52, so that when using the hourly rates of $125 and $75 respectively, the attorneys' fees on remand were $7,743.75. The court reduced Attorney Brook's hours from 28.6 to 21.5, and multiplied this times his hourly rate of $65 to arrive at $1,397.50 for Mr. Brook's attorney's fees on remand. Thus, the court determined the "lodestar figures," or billable hours times the billing rate, for each law firm were $25,268.75 for Lucas & Associates, and $5,614.05 for Amaral & Brook.

Next, the court determined Pavilion was entitled to all amounts itemized as expenses in the appeal, in the appellate request for attorneys' fees,...