Cupp Drug Store, Inc. v. Blue Cross

201 So. 3d 319, 2016 La. App. LEXIS 1547
CourtLouisiana Court of Appeal
DecidedAugust 10, 2016
DocketNo. 50,843-CA
StatusPublished
Cited by4 cases

This text of 201 So. 3d 319 (Cupp Drug Store, Inc. v. Blue Cross) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cupp Drug Store, Inc. v. Blue Cross, 201 So. 3d 319, 2016 La. App. LEXIS 1547 (La. Ct. App. 2016).

Opinion

WILLIAMS, J.

kin this unfair trade practices case, after a hearing on remand, the trial court rendered a judgment awarding $110,000 in attorney fees to the plaintiff, Cupp Drug Store, Inc., d/b/a The Corner Drug Store. For the following reasons, we amend the trial court’s judgment and affirm as amended.

FACTS

The plaintiff, an incorporated pharmacy operator, filed a lawsuit against Blue Cross and Blue Shield of Louisiana, Inc., Blue Cross and Blue Shield of Louisiana, Inc. as Louisiana Health Services & Indemnity Co., HMO Louisiana, Inc. and RxBlue (collectively “Blue Cross”). The plaintiff, a Blue Cross provider, alleged that the defendants had engaged in conduct which violated the Louisiana Unfair Trade Practices and Consumer Protection Law (“LUTPA”). Following a trial, the jury ruled in favor of the plaintiff and awarded damages in the amount of $185,000, plus court costs and attorney fees. On August 8, 2013, the trial court entered a final judgment in accordance with the jury’s verdict. In accordance with LUTPA, the [321]*321judgment provided that the amount of court costs and attorney fees would be determined by the trial court following a post-trial hearing.

Subsequently, on September 4, 2013, the plaintiff filed a motion to set a hearing date to fix attorney fees and court costs. The following day, Blue Cross filed a motion for a suspensive appeal, which was granted on September 11, 2013. Thereafter, on November 8, 2013, the trial court signed a “supplemental judgment” setting forth costs and awarding $110,000 in attorney fees.

|2Blue Cross appealed the judgment, including the award of attorney fees, arguing, inter alia, that the trial court lacked the authority to enter a supplemental judgment quantifying and assessing attorney fees. The plaintiff answered the appeal, seeking an increase in the amount of damages and attorney fees awarded. This Court vacated the supplemental judgment, finding that the trial court was divested of jurisdiction when the first suspensive appeal was granted and the cash bond was deposited in the court registry. We remanded this matter to the trial court for an evidentiary hearing to determine attorney fees and costs. Additionally, we awarded the plaintiff attorney fees in the amount of $5,000, for work done in defending the appeal. Cupp Drug Store, Inc. v. Blue Cross and Blue Shield of La., Inc., 49,782 (La.App.2d Cir.1/7/15), 161 So.3d 860, writ denied, 2015-0571 (La.5/22/15), 171 So.3d 549.

On remand, the trial court conducted an evidentiary hearing to determine attorney fees and costs as instructed by this Court. By this time, the judge who had presided over the trial was no longer a district court judge.1 The current trial judge awarded the plaintiff attorney fees in the amount of $110,000, in addition to the amount of $5,000 for work done on the appeal, as ordered by this Court. The trial court also awarded the plaintiff an additional $5,312.50 in attorney fees for “post[-]appeal work.”

At the conclusion of the hearing, the trial court stated:

I paid particular attention to Judge Smith’s reasons for judgment with regard to the attorney fees. And at the end of the day, it’s hard for me to try to substitute my judgment for that of Judge Smith. He heard this case over, I believe it was an 8-year period of time.
[¡¿Because of his unique position in evaluating the reasonableness of the attorney fees, I feel that I’m obligated and I feel it’s only fair that I confirm what Judge Smith awarded in the amount of $110,000.
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Now, on the post-appeal work, with regard to that, the 21.25 hours, I will award * * * I’ll make it $250 an hour for that 21.25 hours, and I didn’t calculate that number. But using [plaintiff counsel’s] formula on the 685 hours, we’d award the sum of $110,000. * * * On the 21.25,1 get $5,312.50.
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DISCUSSION

The plaintiff contends the trial court erred in awarding only $110,000 in attorney fees for the trial of the case, because it felt “obligated” to award the same amount as the former judge, who did not conduct an evidentiary hearing. The plaintiff concedes that counsel agreed to represent the [322]*322drug store for a discounted rate of $130 per hour, due to a longstanding friendship between counsel and Gil Birch, the owner of the .drug store. However, according to the plaintiff, Blue Cross should not be allowed to benefit from the “friendship rate” counsel charged a longtime friend. The plaintiff argues that the unrefuted evidence presented at the evidentiary hearing showed that counsel expended 685.75 hours litigating and trying the LUTPA claim. Further, the plaintiff maintains that its expert witness testified that “the regional, customary hourly fee for complex commercial litigation” fell within the range' of $250-$300 per hour.

Attorney fees are not allowed except where expressly provided for by contract or statute. State, Dept. of Transp. & Dev. v. Wagner, 2010-0050 (La.5/28/10), 38 So.3d 240; Carroll Insulation & Window Co., Inc. v. Biomax Spray Foam Insulartion, LLC, 50,112 (La.App.2d Cir.11/18/15), 180 So.3d 518. When provided for by statute or contract, the award of attorney fees rests within the discretion of the fact finder. Sher v. Lafayette Ins. Co., 2007-2441 (La.4/8/08), 988 So.2d 186; Urban’s Ceramic Tile, Inc. v. McLain, 47,955 (La.App.2d Cir.4/10/13), 113 So.3d 477.

Our unfair trade practices law provides for a statutorily-mandated attorney fee as follows: “In the event that damages are awarded under [LSA-R.S. 51:1409], the court shall award to the person bringing such action reasonable attorney fees and costs.” See LSA-R.S. 51:1405 and 51:1409.

The reasonableness of attorney fees is determined by the factors set forth in Rule 1.5(a) of the Rules of Professional Conduct, which are as follows: (1) the time and labor required, the novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.

As stated above, the amount of an award for attorney fees is within the discretion of the trial court. Chandler v. Ouachita Par. Sheriff’s Office, 48,179 (La.App.2d Cir.8/7/13), 121 So.3d 1216; Bohn v. Louisiana Farm Bureau Mut. Ins. Co., 482 So.2d 843 (La.App.2d Cir.1986), writs denied, 486 So.2d 750, 752 (La.1986). Generally, each case is considered in light of its own facts and circumstances; however, the amount awarded must be | ¿reasonable. Id. Before an attorney fee award will be disturbed on appeal, the record must reveal that the trial court abused its discretion in making the award. Wilks v. Ramsey Auto Brokers, Inc., 48,738 (La.App.2d Cir.1/15/14), 132 So.3d 1009; Smith v. Acadiana Mortg. of La., Inc., 42,795 (La.App.2d Cir.1/30/08), 975 So.2d 143.

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201 So. 3d 319, 2016 La. App. LEXIS 1547, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cupp-drug-store-inc-v-blue-cross-lactapp-2016.