Vandenplas v. City of Muskego

• Decision Date: 25 July 1986
• Docket Number: No. 85-2477,85-2477
• Citation: 797 F.2d 425
• Parties: Lawrence VANDENPLAS and Barbara Vandenplas, Plaintiffs-Appellants, v. CITY OF MUSKEGO, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 425

797 F.2d 425

Lawrence VANDENPLAS and Barbara Vandenplas, Plaintiffs-Appellants, v. CITY OF MUSKEGO, et al., Defendants-Appellees.

No. 85-2477.

United States Court of Appeals Seventh Circuit.

Argued Feb. 27, 1986.

Decided July 25, 1986.

Walter F. Kelly, Sutton & Kelly, Milwaukee, Wis., for plaintiffs-appellants.

Raymond Pollen, Riordan, Crivello, Carlson, & Mentkoski, Milwaukee, Wis., for defendants-appellees.

Before HARLINGTON WOOD, JR., FLAUM, and RIPPLE, Circuit Judges.

HARLINGTON WOOD, JR., Circuit Judge.

Plaintiffs-appellants Lawrence and Barbara Vandenplas appeal from the district court's award of attorneys' fees to the defendants-appellees pursuant to 42 U.S.C. Sec. 1988. The court concluded that the Vandenplases' suit brought pursuant to 42 U.S.C. Sec. 1983 was frivolous and that the defendants were therefore entitled to recover their fees. Because we find that the district court abused its discretion in finding that the section 1983 action was meritless, we reverse its decision awarding attorneys' fees.

I.

Lawrence Vandenplas and his wife, Bernice, were owners of property in Muskego, Wisconsin. Although they did not reside on the property, the Vandenplases did farm the land. The focal point of the dispute in the case centers around two buildings the Vandenplases maintained on the property. One of these buildings was used as a barn and the other was used as a grainery.

On August 8, 1980, Gerald P. Lee, acting in his capacity as Muskego building inspector, issued a condemnation order for the barn and grainery pursuant to Wis.Stat.Ann. Sec. 66.05. Under this statute, building inspectors, among others, are authorized to order that the owner of any building raze it if, in the inspector's judgment, the structure "is so old, dilapidated or has become so out of repair as to be dangerous, unsafe, insanitary or otherwise unfit for human habitation, occupancy or use, and so that it would be unreasonable to repair the same...." Wis.Stat.Ann. Sec. 66.05(1)(a). As provided for under Wisconsin law, the Vandenplases, as soon as the condemnation order was issued, filed an action in state court seeking to enjoin the demolition of the buildings. The state court issued a temporary restraining order and scheduled a hearing on the matter. Pursuant to Wis.Stat.Ann. Sec. 66.05(3), the court was limited to determining "whether the order of the inspector of buildings [was] reasonable...." If the order was reasonable, the court was required to dissolve its restraining order.

In the instant case, although the court determined that the order providing for the demolition of the Vandenplases' buildings was reasonable, it nonetheless granted a six-month stay to allow time for repairs to be made. Near the end of the six-month period the Vandenplases, after already having begun repairs on the barn and grainery petitioned the state court for an extension of the stay. The court refused and the Vandenplases appealed. The state appellate court ultimately dismissed the case and, in so doing, noted that the state trial court had erred in granting the six-month stay in the first place. The appellate court concluded that under the statute once the trial court determined that the raze order was reasonable it has no further authority to stay the demolition.

After this determination, the Vandenplases sought injunctive relief in federal district court which was ultimately denied. The Vandenplases' attempt to persuade the Muskego Common Council to reverse the raze order was similarly unsuccessful. On June 12, 1981, the structures were demolished.

The Vandenplases subsequently brought a section 1983 action alleging that Wis.Stat.Ann. Sec. 66.05 was unconstitutional both on its face and as applied in their case. The Vandenplases also alleged that the Common Council's action upholding the condemnation order constituted unlawful retaliation against them in violation of their first amendment rights. Finally, Lawrence Vandenplas, along with his daughter Barbara, claimed that they were subjected to excessive force by Muskego officials in violation of their constitutional rights on the date that the buildings were razed.

The district court ultimately granted summary judgment in favor of the defendants on all claims except the claim alleging use of excessive force. This claim was tried to a jury which found that the Vandenplases' constitutional rights had not been violated. We affirmed the result reached by the district court denying the Vandenplases relief. Vandenplas v. City of Muskego, 753 F.2d 555 (7th Cir.), cert. denied, --- U.S. ---, 105 S.Ct. 3481, 87 L.Ed.2d 616 (1985).

The defendants thereafter sought an award of attorneys' fees pursuant to section 1988. On July 1, 1985, 612 F.Supp. 342, the district court concluded that the defendants were entitled to fees incurred in litigating all of the Vandenplases' claims except the one alleging excessive use of force. The court concluded that, apart from the excessive force claim, the remaining claims brought by the Vandenplases were "utterly frivolous." The court directed the defendants to submit a schedule showing the fees they incurred excluding those fees attributable to the excessive force claim. Armed with this information, the district court, on August 8, 1985, awarded the defendants $5,425.20 in attorneys' fees. The Vandenplases appeal from this order.

II.

Before reaching the merits of the fee question, we must first deal with the defendants' claim that we lack jurisdiction to consider the district court's fee award. The defendants argue that the Vandenplases' notice of appeal, filed August 27, 1985, with regard to the court's July 1, 1985 order, was untimely. Pursuant to Fed.R.App.P. 4(a) a notice of appeal, for purposes of this case, must be filed within thirty days of the district court's decision in order to be timely. The defendants therefore contend that the Vandenplases can challenge on appeal only the district court's order, dated August 8, 1985, granting a specific amount of fees and not the July 1 order which stated that the defendants were entitled to a fee award in the first place.

Although we agree with the defendants that timely filing of a notice of appeal is jurisdictional, Crowder v. Telemedia, Inc., 659 F.2d 787, 788 (7th Cir.1981) (per curiam) (citing Browder v. Director, Illinois Department of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978)), we nonetheless believe that the Vandenplases' August 27 notice of appeal was timely with respect to the July 1 order. In Crowder, we held that an order "awarding attorneys' fees, but not determining the amount, is an interlocutory order incidental to and a predicate" for the judgment actually directing a specified fee award. 659 F.2d at 788. We see no reason to reexamine this result and therefore hold that the court's July 1 order was merely interlocutory and a predicate for the August 8 order setting the actual fee award. ¹ The defendants' contention that the Vandenplases' notice of appeal was untimely is, accordingly, without merit. ²

Even conceding this point, the defendants, relying primarily on Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984), argue that the Vandenplases waived any right to challenge the August 8 order by failing to oppose the fee award in the district court. In reviewing an award of attorneys' fees, the Court in Blum did decline to consider the petitioner's argument that the hours charged by respondents' counsel were unreasonable because the petitioner had failed to present evidence on this point to the district court. Id. at 1545 n. 5. In the instant case, the district court similarly found that the Vandenplases did not contend that the amount of the fee award was unreasonable. However, unlike Blum, the Vandenplases do not seek to challenge the reasonableness of the hours for which the defendants seek fees; rather, they only challenge the district court's conclusion that a fee award was warranted in the first place. With respect to this latter point, the record indicates that the Vandenplases filed a brief in the district court opposing the defendants' motion for attorneys' fees. In these circumstances, we conclude that the Vandenplases did not waive their right to challenge the court's decision to award fees. The defendants' reliance on Blum for a contrary result is misplaced.

III.

With these preliminary matters disposed of we can proceed to an examination of the merits of the district court's fee award. Under 42 U.S.C. Sec. 1988, the court in a section 1983 action may, in its discretion, "allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." Plaintiffs are considered to be prevailing parties " 'for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.' " Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helegemoe, 581 F.2d 275, 278-79 (1st Cir.1978)). This standard does not apply to prevailing defendants, however, who must satisfy a more demanding standard to be entitled to a fee award. Curry v. A.H. Robins Co., 775 F.2d 212, 219 (7th Cir.1985); Hershinow v. Bonamarte, 772 F.2d 394, 395 (7th Cir.1985). In Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978), the Supreme Court concluded that "a plaintiff should not be assessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Id. at 422, 98 S.Ct. at 701. See Hughes v Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980) (per curiam) (applying Christiansburg standard to fee cases arising under section 1988). A defendant must demonstrate that the plaintiff's claim is ...