Parrish v. Denato, 59996

• Decision Date: 22 February 1978
• Docket Number: No. 59996,59996
• Citation: 262 N.W.2d 281
• Parties: Alfredo G. PARRISH, Plaintiff, v. The Honorable J. P. DENATO, Judge, Polk County District Court, in his official capacity only, Defendant.
• Court: Iowa Supreme Court

Page 281

262 N.W.2d 281

Alfredo G. PARRISH, Plaintiff, v. The Honorable J. P. DENATO, Judge, Polk County District Court, in his official capacity only, Defendant.

No. 59996.

Supreme Court of Iowa.

Feb. 22, 1978.

Linda Del Gallo, Des Moines, for plaintiff.

Richard C. Turner, Atty. Gen., Ray W. Sullins, Asst. Atty. Gen., Dan L. Johnston, County Atty., for defendant.

Considered by MOORE, C. J., and MASON, REES, REYNOLDSON, and McCORMICK, JJ.

MASON, Justice.

Plaintiff, Alfredo G. Parrish, seeks review by certiorari of the legality of defendant's actions in denying plaintiff's application for reconsideration of a fee awarded to plaintiff for services rendered in representing at public expense Robert Charles Bragg who had been charged with murder.

May 19, 1976, plaintiff was appointed by the Polk District Court to represent Robert Charles Bragg. Trial to a jury resulted in a verdict convicting Bragg of manslaughter. September 29, plaintiff submitted an itemized claim to the district court for 61.2 hours of in-court time and 163.6 hours of out-of-court time. October 13, the Honorable J. P. Denato ordered plaintiff be paid $3,145.50 for 116.5 hours of the time submitted and for other expenses incurred by him. October 27, plaintiff applied for reconsideration of the fee award. After hearing defendant denied any change in the original award.

November 4, plaintiff petitioned this court for an original writ of certiorari. This procedure was approved by this court in Furey v. Crawford County, 208 N.W.2d 15, 19 (Iowa 1973), where we said, "that the proper mode to obtain review of trial court's determination of reasonable compensation is to petition this court for an original writ of certiorari, alleging trial court exceeded its jurisdiction or otherwise acted illegally. Rule 306, * * * Rules of Civil Procedure."

November 18, we granted the writ and the case is now before us on that basis.

At the hearing on plaintiff's application for reconsideration the following colloquy took place:

"THE COURT: This is a matter of application of defendant's attorney to reconsider attorney's fees for on an appointed basis under # 8960, State vs. Bragg.

"MR. PARRISH: Your Honor, I would like to call as my first witness, Keith Uhl, please.

"THE COURT: What is it you propose to show by Mr. Uhl?

"MR. PARRISH: Oh, the preparation by him on a similar case that he worked on (in) his private capacity.

"THE COURT: Counsel, I'm going to reject that. I believe the Supreme Court said that the trial court is supposed to be an expert in these areas so I will reject this offer of testimony.

"MR. PARRISH: Well, could I make a record, then, on that, Your Honor?

"THE COURT: I've indicated I'm going to reject this offer of testimony. No, sir, you cannot.

"MR. PARRISH: Your Honor, I can't even make a record?

"THE COURT: Do you have anything else you wish to offer?

"MR. PARRISH: Well, I have two other witnesses also that

"THE COURT: The same object?

"MR. PARRISH: No. The object was that they were appointed in court-appointed cases, on criminal cases that involved the same issue of murder in the first degree and that they were paid substantially more regarding the bill that they submitted and I submitted substantially more hours where the circumstances involved was a person incarcerated at the time he was charged with the incident. And the Court paid them the amount of the bill they submitted, and I have

"THE COURT: Can you give me case identification on those? I would be glad to look over those files.

" * * *

"THE COURT: Can you get it for me? I would be glad to look it over.

" * * *

"THE COURT: I'm simply asking you for the cases that you wish to present attorneys on. I can look at the file and see what's been paid and I don't need the attorneys to tell me, and I will be looking at the file in any case.

" * * *

"THE COURT: What precisely, other than the files, do you wish to offer in regard to those two cases?

"MR. PARRISH: The hours of preparation involved, as to their opinion of reasonableness of my opinion to the reasonableness of their bill.

"THE COURT: I would make the same ruling as to the offer of testimony of Mr. Uhl.

" * * *

"THE COURT: I can't agree with you, Counsel, that the opinion of a fellow attorney as to what case what time was reasonable on a case with a similar charge would be very material or center very directly upon the issue here which is the fee which you submitted in this case. So I will continue to reject that offer of testimony.

" * * *

"THE COURT: For the record, though, the case of Hollowell and Armento that you have given me here will be considered by the Court and they're part of the record in this hearing, if you wish."

On November 1, the court overruled plaintiff's application. That ruling is in pertinent part as follows:

" * * *

"In its original fee setting, the Court allowed all the trial hours specified by the attorney in his bill, but concluded that the extent of the non-trial time was not reasonable under the circumstances.

"In addition to the allowance made, the Court's * * * paid a $400 bill for extra investigation expense * * *. The final Court's allowance of course took into account that this $400 item had been paid direct by the Court.

" * * * After consultation with the Chief Judge of the District, the fee rate in Polk County was increased to $25 an hour. And such rate was applicable to the fee bill in question here.

"In this hearing the Defendant's attorney, offered the testimony of fellow attorneys on the question of the reasonableness of his fee bill as submitted, which evidence was rejected by the Court on the reasoning that the setting of such fees is a matter for the judicial discretion of this Court and the Court is its own expert on such matters * * *.

"Counsel offered into evidence the files in State vs. Armento, # 5419, and State v. Hollowell, # 5506. The fee in the Hollowell case was set by the judge in the preceding year. The Armento case involved 18 days of trial and approximately one hundred hours of non-trial and preparation work. He was one of two jointly tried Defendants; the other was represented by private counsel.

"Several Iowa cases touch this subject, * * *.

" * * *

"The Court also reviewed cases from other states collected at 18 ALR 3rd 1074 at 1104.

"It is the Court's practice to separate the trial time from the balance of the time claim. In this case there were 361/2 hours of trial time which leaves a claim of 188.3 'non-trial' or preparation hours, being 241/2 full eight hour work days, with additional investigation expense ($400 paid direct) and additional legal research of $157.50, as well as photo expense. The Court considered that 80 non-trial hours, or ten full eight hour work days was a reasonable amount of time for trial preparation with the additional investigation, legal research, and photo expense being added.

"The Court, as in the usual case, does not contend here that the attorney did not expend the time claimed on this case.

"Rather the Court feels that its function is to assess a reasonable amount of time for the defense of the case. The opinion on this point of the attorney involved is obviously not the only source for arriving at such judgment else there would (be) no point in the Court's involvement in setting the fee. The Court talked to the trial judge, as it did in Armento and other murder and rape cases here. Although this case was difficult, this Court concludes that it was not so exceptionally difficult in comparison to a number of other capital cases tried here a number of them also involved delicate and difficult matters."

In written brief and argument plaintiff states the following contentions are presented for review in this proceeding:

1. Did the trial court abuse its discretion by refusing to allow plaintiff to present expert testimony of the amount of trial preparation time involved in a murder case?

2. Did the trial court abuse its discretion by refusing to allow plaintiff to make an offer of proof concerning excluded expert testimony on attorney fees?

3. Did the trial court abuse its discretion by arbitrarily determining 80 hours was a reasonable amount of preparation time for the Bragg first degree murder trial?

4. Did the trial court abuse its discretion when it determined plaintiff's compensation by making allowance therein of $400 which was earlier paid by the court?

I. In connection with plaintiff's foregoing statement of issues we point out a writ of certiorari provides a very limited review of the trial court's discretion, only to the extent of determining if there had been an abuse thereof. Furey v. Crawford County, 208 N.W.2d at 19. See State ex rel. Fletcher v. District Court, 213 Iowa 822, 831, 238 N.W. 290, 294 and State v. Holliday, 169 N.W.2d 768, 770 (Iowa 1969).

In Holliday, 169 N.W.2d at 770, defendant urged "that the ruling of the trial court was within his judicial discretion, and was not in fact an illegal ruling such as to allow review by means of certiorari." The contention was rejected after a review of many of our decisions.

These decisions and the authorities cited therein recognize that "abuse of discretion" may constitute an illegality so as to allow certiorari.

II. The scope of our review by certiorari in matters of this type is not de novo. Grant v. Fritz, 201 N.W.2d 188, 199 (Iowa 1973); Carstensen v. Bd. of Trustees, Etc., 253 N.W.2d 560, 562 (Iowa 1977). However, see Lloyd v. District Court of Scott County, 201 N.W.2d 720, 722 (Iowa 1972) and State v. Cullison, 227 N.W.2d 121, 125-127 (Iowa 1975).

III. Plaintiff contends the trial court abused its discretion when it did not allow him to present expert testimony of other lawyers on the issue of reasonable compensation in a murder case. He does not dispute the trial court had the power to fix compensation under section 775.5, The Code, which is in pertinent part as follows:

"An attorney appointed by the court to...