STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
11-672
HEALTH EDUCATION AND WELFARE FEDERAL CREDIT UNION
VERSUS
THE PEOPLES STATE BANK
**********
APPEAL FROM THE TENTH JUDICIAL DISTRICT COURT PARISH OF NATCHITOCHES, NO. 82,294, DIV. B HONORABLE DEE A. HAWTHORNE, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and Billy Howard Ezell, Judges.
AFFIRMED.
Bernard Slattery Johnson Kristina B. Gustavson Cook, Yancey, King & Galloway P. O. Box 22260 Shreveport, LA 71120-2260 Telephone: (318) 221-6277 COUNSEL FOR: Plaintiff/Appellee - Health Education and Welfare Federal Credit Union
Christopher Michael Sylvia P. O. Box 1200 Many, LA 71449 Telephone: (318) 256-4383 COUNSEL FOR: Defendant/Appellant - The Peoples State Bank THIBODEAUX, Chief Judge.
In this redhibition matter, Plaintiff Health Education and Welfare
Credit Union (“HEW”) filed suit against Defendant The Peoples State Bank (“the
Bank”) seeking a return or reduction in the purchase price of a mobile banking unit
sold to HEW because the automated teller machine (“ATM”) on the unit was
defective at the time of the sale. After trial, the trial court ruled in favor of HEW,
finding that the Bank breached the warranties of fitness and fitness for a particular
purpose. The trial court awarded HEW $13,308.00 in specific damages. The trial
court held an evidentiary hearing on the issue of attorney fees and costs. The trial
court issued a final judgment and awarded HEW attorney fees and costs in the
amounts of $53,042.00 and $4,191.19, respectively. We affirm.
I.
ISSUE
We must decide whether the trial court abused its discretion in
awarding $53,042.00 in attorney fees to HEW.1
II.
FACTS AND PROCEDURAL HISTORY
The facts in this matter are not in dispute. The underlying action
stemmed from the sale of a mobile banking unit from the Bank to HEW. The trial
court awarded HEW $13,308.00 for the replacement of a defective ATM that was
part of the mobile banking unit. The trial court held a separate evidentiary hearing
to fix the amount of attorney fees and costs.
In advance of the evidentiary hearing, HEW filed its Motion and
supporting proof seeking $58,962.00 in attorney fees and $7,141.44 in costs. At
1 Neither the underlying award for damages nor the award for costs is challenged on appeal. the hearing, counsel for the Bank only generally opposed the amount of attorney
fees sought by HEW. The Bank’s counsel failed to specifically object to any of
HEW’s itemized invoices and was admittedly unprepared to do so. The trial court
granted the Bank’s request to file a supplemental brief to specifically challenge
HEW’s invoices. HEW subsequently filed a brief in reply.
After the evidentiary hearing and after reviewing both parties’ briefs
concerning the invoices, the trial court issued its final judgment and awarded
$53,042.00 in attorney fees and $4,191.19 in costs to HEW. The Bank appeals the
amount of attorney fees awarded.
III.
LAW AND DISCUSSION
Standard of Review
We review an award of attorney fees in a redhibition case for abuse of
discretion. Buteau v. Leleux, 591 So.2d 1261 (La.App. 3 Cir. 1991). As this court
stated in Buteau, “[b]efore this court will disturb an award by the trial court, the
record must clearly reveal that the trier of fact abused its much discretion in
making the award.” Id. at 1266 (citations omitted).
Discussion
The supreme court articulated ten factors to be considered in
reviewing the reasonableness of an award of attorney fees: “(1) the ultimate result
obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4)
amount of money involved; (5) extent and character of the work performed; (6)
legal knowledge, attainment, and skill of the attorneys; (7) number of appearances
made; (8) intricacies of the facts involved; (9) diligence and skill of counsel; and
(10) the court’s own knowledge.” State, Dep’t of Transp. and Dev. v. Williamson,
2 597 So.2d 439, 442 (La.1992). The supreme court noted that these factors were
derived from Rule 1.5(a) of the Rules of Professional Conduct. Id.
A trial court is afforded much discretion in awarding attorney fees in a
redhibition case. Dailey v. The Home Furnishings Store, 02-1225 (La.App. 4 Cir.
9/17/03), 857 So.2d 1051. Attorney fees should be awarded on a case-by-case
basis after examining the factors listed above. It is not per se unreasonable, as a
matter of law, for the attorney fees award to be greater than the award for damages.
Id.
At the evidentiary hearing in this matter, the trial court was presented
with a plentitude of documentary evidence. It is clear from reviewing the trial
court’s ruling and reasons for judgment that the court meticulously analyzed that
evidence before awarding attorney fees. We see no reason to re-hash its thorough
analysis, and we find no abuse of discretion in the amount of attorney fees
awarded. Thus, we affirm, and we adopt the trial court’s well-reasoned opinion as
our own. Its opinion is incorporated by reference as Appendix “A” to this opinion.
IV.
CONCLUSION
For the reasons articulated above, we affirm the judgment of the trial
court, adopt its opinion as our own, and incorporate its opinion by reference. Costs
of this appeal are assessed against The Peoples State Bank.
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D HEALTH EDUCATION AND DOCKET NUMBER 82 294 B s WELFARE FEDERAL CREDIT UNION N
VERSUS 10TH JUDICIAL DISTRICT COUR
THE PEOPLE S STATE BANK NATCHITOCHES PARISH LOUI ANA
RULING AND REASONS FOR RULING CONCERNING ATTORNEY FEES AND COSTS
The Court previously awarded the plaintiff Health Education and Welfare Federal Credit Union HEW the amount of 13 for the 00 308 replacement of a defective ATM which was a part of a mobile banking unit MBU that was sold
to HEW by the defendant The People s State Bank PSB The court also awarded reasonable attorney fees and costs to HEW to be determined at an
evidentiary hearing to fix the amount to be awarded The reader is referred to the
s written reasons for Court judgment concerning the case on the merits which is
incorporated herein by reference
FACTS
HEW filed its Motion and Application for Court to Fix Attorney s Fees with attached supporting proof i e invoices documents affidavits etc HEW is
seeking 58 00 in attorneys fees and 7 962 44 1 41 in costs This amount of
attorneys fees includes 5 000 estimated post judgment future fees The
defendant PSB filed a Response to Plaintiff s Memorandum in Support of Motion and Application for Court to Fix s Fees Without any particular basis for Attorney its argument PSB asserted that s fees should be fixed in the amount of attorney
00 7 5 00 one half of the amount awarded to replace the defective ATM machine built in the MBU it sold to HEW
20 ynuf c v r iDtisthe 4 C t d I f i tf iC i 1DC
1 At the hearing PSB was not prepared to argue in opposition to any specific
charge on the invoices submitted and filed in the record by HEW s counsel While
PSB did raise general questions about whether it was reasonable for HEW to have
two attorneys for the trial and whether the redacted time entries should be
considered it was s PSB position that the amount awarded to HEW for
replacement of the ATM should essentially be the only or main consideration in
determining attorney s fees PSB argued that the attorney s fees should be set at
no more than the amount awarded for replacement of the ATM Ultimately PSB s
counsel asked for permission to file a post hearing brief in which he would address
the individual invoices entered in the record The Court granted his request and
allowed a response to be filed by HEW Consequently HEW felt it necessary to
respond
ANALYSIS
Attorney fees are only recoverable when authorized by statute or contract
Fontenot v State Department of Public Safety and Corrections 625 So 2d 1 122
1124 La App 1 1993 The trial court generally has much discretion in setting Cir
an award of attorney fees Short v Plantation Management Corp 781 So 2d 46
65 La l 2000 While a court App s attorney fee award should not be modified on
appeal absent a showing of an abuse of discretion it is not without parameters but
is dependent on the reasonableness of a particular sum Id This reasonableness
inquiry applies where attorney fees are established by statute as well as by contractual agreement City of aton Rouge v Stauffer Chemical Company 500
2d 397 400 So 401 1987 La A trial court has great discretion in awarding attorney s fees in a redhibition case Dailey v The Home Furnishings Store 2002 1225 La App 4 Cir 9 03 1 7
2 t
857 So 2d 1051 citing Philippe v Browning Arms Company 395 So 2d 310 La
s fees should be awarded on a case 1980 Attorney by basis after examining
many factors It is not unreasonable as a matter of law for the attorneys fees to be
greatex than the damage award Id
The Louisiana Supreme Court in State Department of Transportation and
Development v Williamson 597 So 2d 439 441 42 La 1992 set out the factors
to be considered by a court in reviewing the reasonableness of an award of attorney
fees
1 the ultimate result obtained 2 the responsibility incurred 3 the importance of the litigation 4 amount of money involved 5 extent and character of the work performed 6 legal knowledge attainment and skill of the attorneys 7 number of appearances made 8 intricacies of the facts involved 9 diligence and skill of counsel and 10 the court s own knowledge The Supreme Court noted that these factors were derived from Rule 1 a of 5 the Rules of Professional Conduct
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 the 6 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
HE W s counsel attached a memorandum to its application to fix attorney s fees and costs citing a number of cases therein which the Court has considered as
well PSB filed memoranda as well citing other cases The Court has taken all of
these factors into consideration in determining the reasonableness of HEW s
s fees and costs attorney
3 Hourly Rate Charged
s counsel Kristina B Gustavson graduated with honors from Tulane HEW
University and has approximately 7 years experience in the field of commercial
law She has had experience practicing in two large law firms known for excellent
work
The Court finds that the skill of the attorney handling the case for HEW is
without question She did excellent work She was well prepared and responsive
to the Court at all times She diligently provided the Court with numerous detailed
and thorough memoranda r uested by the Court on all legal issues and on the
complicated facts of this case There were numerous documents involved in this
litigation and HEW s trial counsel had all of these documents well organized
Presentation of the evidence showed that counsel was well prepared and skilled at
eliciting the necessary facts and explanations of complicated technical information
and with managing the many documents in court Trial bench books were
prepared for the Court which made the trial run smoothly With lesser skills this
trial could have taken twice the time that it did Actually PSB did not question the skill of HEW s counsel
PSB did not appear to raise any specific question concerning the hourly rate
charged by HEW s counsel either but simply left that determination to the Court
HEW trial counsel charged an hourly rate of 200 00 per hour While this may be
on the high side in our small community for all of the above reasons the Court
does not find it to be unreasonable
4 s Specific Objections to Charges on HEW Attorney Invoices PSB
In its hearing memorandum PSB reviewed each invoice and raised post
several specific objections in regard to some of the charges PSB had specific
objection s invoices s to 14 of HEW
1 In regard to 13 of those invoices an objection is raised to fees associated with redacted time entries for a total of 3 00 6 20 in charges
The Court has read each one of the redacted entries and does not find the
redactions inappropriate Nor does the Court find the charges to be unreasonable
which charges appear in large part to be for consultation with client personnel
The attorney had an obligation to keep her client informed as well as to prepare
s objections to fees personnel for trial Therefore the Court rejects all of PSB
associated with redacted time entries
2 PSB objects to the fees charged by the attorney partner BSJ at the rate of 250 an hour
PSB objects to 4 of these entries 100 00 4 hrs on Invoice No 34508
00 5 hrs on Invoice No 36026 75 125 00 3 hrs on Invoice No 39362 and
00 5 hrs on Invoice No 43453 for a total of 425 125 00 The time charged by
BSJ was minimal The work done by BSJ does not appear to be duplicative nor
does it appear that BSJ is generall Y overseein g work P erformed bY Ms Gustavson The charges are reasonable The Court will not disallow these charges
3 PSB objects to fees charged for what it deemed to be excessive time charged for research
In this regard PSB objected to Invoice No 34508 asserting that HEW s
counsel had charged b hours for trial attorney researching law for a total of
00 2 1 00 PSB claimed that 900 00 of these charges should be disallowed The
Court has reviewed this invoice and cannot find such charges The only entry
5 which includes the word research was by SSS and was marked N C
indicating there was no charge There were several entries described as analysis
one for analysis regarding causes of action against PSB and broker for 2 hours
one for analysis of Louisiana law regarding venue and jurisdiction for 0 60 hours
and one for analysis of principal place of business of entities and of Louisiana law
regarding foreign corporation filing suit in Louisiana for 0 40 hours for a total of
3 hours
The Court notes that even if 6 hours were charged for research it does not
find devoting 6 hours to research excessive There were a number of different
issues that needed to be researched concerning code articles or statutes as well as cases relating to those issues In addition throughout the litigation issues arose
which the Court equested that the attorneys research and brief for the specificall Court The Court of its own knowledge is aware of the time necessary to
properly research and address these issues
PSB raised this same objection to Invoice No 38403 s counsel HEW
charged 2 1 hours for research PSB objected to the entire charge and believed that
the expenditure was unnecessary The court disagrees This issue and how it
applied to this particular case was a serious question This charge was not
inappropriate nor was the charge excessive
There were no more specific objections to time charged for research
4 As to Invoice No 34508 PSB raises only 3 other specific objections PSB objected to the charges for drafting and revising an analysis and for drafting and revising the petition
On Invoice No 34508 HEW s counsel charged 3 5 hours for Preparing memorandum regarding potential claims against People s State Bank 1 5 hours
6 for Preparing draft petition against People s State Bank and 5 hours for 1
Revising drafts of analysis and petition
The Court recognizes that a great deal goes into preparing an analysis as
well as a petition It requires reading and considering all applicable law and
jurisprudence reading and considering all documents related to the cause of action
gathering and assimilating all the facts and circumstances of the case and
considering all of these in relation to one another Then it requires actually writing
a concise and cogent document in this The amount of time charged in this regard
regard in the Court s opinion is modest
5 As to Invoice No 36026 PSB raises only 3 other specific objections PSB objected charges for review and analysis of the Answer preparation of the to
corporate deposition notice and preparing for corporate deposition
On Invoice No 36026 HEW s counsel charged 2 0 hours specifically for
Review and analysis of answer filed by Peoples State Bank meeting with Bernard S Johnson regarding discovery process email correspondence with Jeff Goff
Nora Hinton and Gloria Bowden regarding same In regard to the review and
analysis of the answer the Court finds that an analysis of the answer that was filed
by PSB should have taken additional time because the affirmative defenses were
raised without any recitation of purported facts upon which they might be based
requiring a lawyer to sift through the facts to try to determine the basis of each such claim In addition this time entry includes other things not referenced in s objection This time PSB charge is not excessive
On Invoice No 36026 counsel for HEW charged 2 80 hours specifically for
Preparing notice of corporate deposition of Peoples State Bank As in the
preparation of a petition or analysis preparation for a corporate deposition requires a review and analysis of all documents factual assertions and law and a
7 consideration of how each may relate to PSB HEW and all of the actors involved
in this litigation The Court finds that 2 80 hours is not excessive
On Invoice No 36026 counsel for HEW also charged 2 00 hours
specifically for Outlining questions for upcoming deposition of Peoples State
Bank 3 20 hours for Preparing outline for upcoming deposition of Peoples State
Bank and 3 00 hours for Preparing for deposition of Peoples State Bank and
60 hours for Preparing for deposition of 5 Peoples State Bank traveling to and
from Natchitoches taking deposition of Peoples State Bank While not expressly
listed in the PSB memorandum these charges appear to be the 8 2 hours objected
to by PSB for Preparing for corporate deposition
This case is document intensive and the facts conceming the equipment
complicated and difficult It takes substantial time to organize and pull together documents to adequately address the issues in this case In addition the charge for 60 hours also includes time for 5 traveling to and from Natchitoches and taking
deposition of Peoples State Bank The Court does not find these time charges to be excessive
6 As to Invoice No 36730 PSB raises only 1 other specific objection PSB objected to 2 5 hours charged for Drafting letter July 13 2009 regarding ATM
s counsel charged 2 HEW 5 hours to Prepare letter to Peoples State Bank
regarding ATM and inability to be repaired This letter was prepared and written
by HEW s counsel at the request of PSB Again to prepare such a letter requires
organizing all the facts and circumstances in light of all information including that
which was received in discovery It is time consuming and difficult The work
product was excellent It made clear what the difficulties were and the great effort
made by HEW to mitigate its damages
8 The Court does not find this time charge excessive
7 As to Invoice No 38403 PSB raises only 1 other specific objection PSB objected 20 hours charged for Analysis of missed to 0 opportunities
s counsel HEW 20 hours for Analysis regarding document charged 0
received from HEW Federal Credit Union regarding missed opportunities for the
branch The claim for missed opportunities was rejected as the Court found the
claimed losses were far too speculative Consequently the charge for 0 20 hours
or 00 is disallowed 40 A
8 As to Invoice No 40893 PSB raises only 1 other specific objection PSB objected to 0 hours 3 charged to Preparation of settlement offer letter December 9 2009
s counsel charged 1 HEW 50 hours for Preparing settlement offer letter to
Chris Sylvia and 1 50 hours for Preparing settlement offer letter to Chris Sylvia at Peoples State Bank This letter was prepared and written at the request of PBS
and included additional and clarifying information obtained by the parties through
discovery and preparation The Court finds these charges reasonable
9 As to Invoice No 42680 PSB raises only l other specific objection PSB objected to 1 40 hours charged to Drafting written discovery which were not ever actually propounded
s counsel charged 1 HEW 40 hours to Draft interrogatories and request for production to defendant Peoples State Bank HEW argues that after a conference
between counsel and the Court of 2010 on January counsel believed that
settlement negotiations would take place between HEW and PSB and as a result
held off on propounding additional discovery
Such a conference did occur and the Court did encourage PSB to participate
in settlement negotiations The decision to hold off on propounding additional
9 discovery was a reasoned decision and an additional effort to resolve the litigation
These charges will not be disallowed
10 As to Invoice No 43453 PSB raises only 2 other specific objection PSB 9 hours for Fees charged by Nickelson objected to 7 JCN claiming that an additional attorney working on the lawsuit was not necessary and likely resulted in duplicative work being preformed therefore all of these fees 1 5 00 80 should be disallowed PSB also objected to 6 hours 8 7 1 0020 in fees for or Deposition preparation
HEW was charged 7 9 hours for the work of another attorney JCN as
follows
a 50 hours for Conference with Kristi B Gustavson 0 regarding upcoming trial 2 review pretrial brief 3 b 30 hours for Conference with Kristi B Gustavson 0 regarding trial subpoenas and other matters c 20 hours for Conference with Kristi B Gustavson 0 regarding upcoming trial and review correspondence from opposing counsel regarding scheduling conference d 50 hours for Conference with Kristi B Gustavson 0 regarding settlement and trial strategy e 80 hours for Prepare for trial and conference with Kristi B 3 Gustavson regarding same f 30 hours for Prepare for trial and conference with 1 Kristi B Gustavson regarding same g 3 hours for Prepare for trial and conference 1 with Kristi B Gustavson regarding same
HEW asserts that JCN was preparing for and performing the cross examination of PSB s chief witness Ms Tori Flynn and that his work was not
duplicative of work performed by trial counsel It appears to the Court that a g1 eat
deal of time was spent by JCN learning about the facts and circumstances of this
case in general information already possessed by Ms Gustavson who was trial
counsel i e the numerous conferences with trial counsel and reviewing the same documents that trial counsel would necessarily have to review as well While Ms Gustavson would have had to prepare the cross examination of
Tori Flynn she would not have had to learn the facts of the case The Court
10 believes that only 3 hours of the above time charged would have been necessary
for Ms Gustavson to accomplish this work Therefore 4 00 in 9 hours or 980
fees are disallowed as duplicative
s counsel charged 8 HEW 6 hours for work relating to preparation for trial
depositions PSB failed to designate the particular invoice s entries at issue
however the Court presumes the following are the entries and charges objected to
by PSB
a 80 hours for Preparing for upcoming depositions of Diebold and 1 Advent representatives b 40 hours for Teleconference with James Goldbeck in preparation for 0 trial depositions c 30 hours for Teleconference with Rich 0 Montague in order to prepare for trial deposition
d 30 hours for 1 Preparing outlines for trial depositions of Diebold and Advent technicians e 00 hours for Preparing for 3 depositions of Bill Weimer Dennis Rainey Rich Montague and James Goldbeck
None of the above charges are objectionable Preparation for trial depositions in
this case not only entail knowing the law but also entail being able to deal with the
complicated technical facts necessary to try this case
11 As to Invoice No 48109 PSB raises only 1 other specific objection PSB objected to 18 5 hours 00 3 7 00 charged to Fees charged by Nickelson JCN
HEW charged 18 5 hours for the work of another attorney JCN as follows
a 50 hours for Prepare for trial 0 including discussion Tori Flynn s examination with Kristi B Gustavson cross b 60 hours for Prepare for trial 0 c 10 hours for Prepare for trial 7 including cross examination of Tori Flynn and conference with Kristi B Gustavson regarding same r
d 00 hours for Bench trial before 10 Judge Dee Hawthorne in Natchitoches Louisiana e 30 hours for Conference with Kristi B Gustavson 0 regarding status of settlement discussions with State Bank s People and other matters
11 The Court would note that Mr Nickelson JCN did excellent work and
performed well at trial and the Court is convinced that trial counsel appreciated his
assistance however much of what he did was necessarily duplicative As
explained above JCN had to learn the entire case and spend 10 hours in the court
room to primarily cross examine Tori Flynn
With her prior knowledge of the case the Court believes that trial counsel
could have prepared for Ms s cross Flynn examination in an additional 5 hours
The Court previously allowed 3 hours for Ms Flynn in regard to Invoice No
43453 above Therefore as to Invoice Nno 48109 the Court disallows 5 13
hours of these charges or 2 00 7 00 in fees
12 As to Invoice No 44771 PSB raises only 1 specific objection PSB objected to 20 hours charged for Preparation of post trial brief
HEW charged 20 hours for work relating to post trial brief preparation as follows
a 1 40 hours for Preparing background facts for post trial brief b 80 hours for Review of trial 2 transcript in order to prepare post trial brief c 2 0 hours for Prepare trial brief post d 00 hours for 2 Preparing post trial brief regarding legal analysis e 50 hours for 2 Preparing post trial brief regarding background facts f 50 hours for 1 Preparing post trial brief regarding legal analysis g 2 80 hours for Preparing post trial brief regarding analyst sic testimony at trial h 0 hours for 5 Preparing and finalizing post trial brief
At the conclusion of the trial of this matter counsel for PSB requested that a
transcript of the trial be prepared and the Court ordered detailed briefing There
were several legal issues that the Court wanted the attorneys to specifically address In addition the case was fact intensive and the Court wanted the facts
specifically argued in the briefs In the Court s view any briefing on factual
12 issues assertion of facts and conclusions needed to be cited to the transcript This
is a lengthy detailed and time consuming process Just reading the transcript and
depositions takes hours Counsel for HEW did an excellent job and the Court will
not disallow any of this time as unreasonable
13 As to Invoice No 48110 PSB raises only 1 other specific objection PSB objected to 3 hours for Fees charged by Nickelson claiming that an additional attorney working on the lawsuit was not necessary and likely resulted in duplicative work being preformed
s counsel charged 0 HEW 30 hours or 60 00 in fees for the work of another
attorney JCN for Conference with Kristi B Gustavson regarding supplemental
post trial brief The Court disallows this charge as duplicative and unnecessary
PSB made no other specific objections to the charges on HEW s invoices
Additional Charles or Fees Asserted by HEW
s argues further that from November HEW 30 2010 to December 16 2010
time incurred by HEW s counsel for preparing for and attending the December 16 h
hearing amounted to 2 00 4 60 of billable time not including preparation time for
its post hearing brief which took approximately 2 hours or 400 00 Consequently
HEW claims an additional 2 00 8 60 in s fees attorney
The Court believes these charges to be reasonable
Attorney fees determined to be reasonable
HEW seeks reimbursement for attorneys fees actually incurred in the
amount of 00 53 822 56 00 billed and paid and 2 962 860 not yet billed
The Court finds that 18 9 hours at 200 an hour should be disallowed in a total
amount of 3 00 7 80 Without further evaluation that leaves attorney fees in the
amount of 53 00 042 This calculation does not include the request for an
estimated future amount of fees
13 netc
The trial judge has great discretion in awarding costs including expel t
witness fees deposition costs exhibit costs and related expenses Sz prun v
Louisiana Farm Bureau Mut Ins Co App 1 Cir 4 La 10 2010 WL 1740002 3
Simpson v Goodman La App 1 Cir 12 98 727 So 28 2d 555 Absent an abuse
of discretion the courts of appeal will not interfere with an award of costs Uela v
Plaquemines Parish Government 811 2d 1263 1282 So 2002 C 4 App Lair The only costs taxable against a litigant are those provided for by positive law
Woolen v Lucksinger 14 So 3d 311 l App La Cir 2008 HEW seeks reimbursement for costs as follows
1 Filing fees 839 00 an additional 425 00 1 2 00 64 2 Long distance telephone charges 205 79 an additional 20 55 34 226 3 Photocopies 1 40 0 31 an additional 120 00 1 40 51 4 Mileage 307 50 an additional 75 00 382 50 5 Westlaw Legal Research 2 90 8 53 an additional 108 00 90 2 61 6 Courier Fee 70 00 7 Court Reporter Fees 893 30 8 Trial subpoena cost 325 00 9 Custom tabs index tabs binding 22 05 10 Federal Express 80 20 11 Conference Call Charges 13 80 12 Trial transcript 477 50 13 Meals for KBG and JCN 22 00
for a total of 7 99 8 89
The Court finds the following listed expenses are disallowed since these charges are not provided for by law 2 of the photocopy charge 575 70 all of the Westlaw charge 90 261 all of the courier fee 70 00 all of the Federal Express charges 80 20 and 2 of the meals charges 00 for a total of 11 disallowed charges in the amount of 80 6 3 98 The Court allowed of the
14 t
photocopy charges because this case involved so many copies and many were
used in the trial of the matter
HEW seeks reimbursement for costs in the amount of 7 99 8 89 The Court
finds that 3 80 6 98 should be disallowed Without further evaluation that leaves
costs in the amount of 4 19 91 The Court finds these reasonable and allowed
according to law
Other considerations
PSB argues that any fees or costs relating to HEW s claim for lost income
should be disallowed because the plaintiff was not successful in regard to this
claim at trial the court having found that any such loss was not reasonably
quantifiable Very little time was spent addressing this issue at trial and only one
witness testified concerning this claim The Court will not reduce the fees in this
regard
The final consideration by this Court is the main argument made by PSB
whether the amount awarded as s fees should be completely driven by the attorney
amount finally awarded on the substantive claim 13 00 308
This Court finds that it should not be so driven in this case under these
circumstances The Court finds that PSB in large part is the cause for delaying
resolution of this matter and for the amount of s fees attorney and costs
necessitated and ultimately expended in this litigation
HEW purchased a mobile banking unit MBU from PSB The ATM
machine built in the MBU was not the product advertised and the ATM that was
there was inoperable and irreparable PSB personnel had all of the information it
needed to make this determination at the time of the sale
15 HEW was forced to hire an attorney to represent its interests PSB has paid
no extra s fees as it was represented by in attorney house counsel As the result of
the diligent efforts of HEW and its retained counsel PSB was urgently advised of
the problems and the defect at issue even before the suit was filed and before any
significant fees and costs were incurred
HEW could have successfully urged a claim for return of the purchase price
of 115 00 because the MBU was clearly not fit for its intended use without a 000
working or reparable ATM HEW was faced with a dilemma when PSB refused
to make good on its sale At that point in addition to the costs associated with the
sale itself HEW had invested additional money preparing the MBU for HE W s
use i e having it custom painted with its logo and other installation In expenses
addition HEW could not afford to buy a new MBU HEW could have pursued its
claim for the return of the purchase price all costs relating to sale and all of the
expenses involved in preparing the MBU for HEW s use However when PSB
refused to make good on the sale in an effort to mitigate its losses HEW personnel
searched diligently to find a replacement for the defective ATM It was not a
simple feat as there were extreme space limitations and most companies could not
provide such a product HEW finally found a company that could provide a
replacement and it made the purchase
PSB was offered the opportunity to simply pay for the replacement however
PSB would not respond at all to any of HEW s proposals or attempts to settle the
case On several occasions throughout the litigation PSB specifically requested
that HEW prepare and submit to them settlement proposals Each time PSB
requested it HEW did so it made the proposal and provided the factual and legal
argument supporting its proposal This was confirmed at the January status
16 conference when counsel for PSB reported that no answer had been made to HE W
in regard to any of its settlement proposals The Court strongly encouraged PSB to
participate in efforts to settle this litigation It is clear that at each step in this
process PSB has been aware of the facts sufficient to know that the ATM was not
the product advertised and that the ATM was defective inoperable and irreparable
Instead PSB chose to forego actively pursuing a settlement and instead relied on
its chances at trial HEW was forced to continue to incur s fees and costs attorney
The purpose of the statutory authority to award attorneys fees and costs is to
make the buyer whole In a redhibition action reasonable s fees should be attorney
awarded to justly compensate plaintiffs who succeed in establishing liability on the part of the seller or manufacturer under Louisiana Civil Code article 2545 Linoski
et al v Fleetwood Homes of Texas et al 38 338 La App 2 Cir 5 04 1 2 873 So 2d 886
Consequently the Court awards all the attorney s fees and costs incurred
thus far and not disallowed by the Court herein 53 y0 and 4 042 19 91
respectively The Court will not award an anticipated amount for future fees and costs at this time
s counsel is to HEW prepare the judgment in accordance with this ruling
which will be signed upon presentation
WRITTEN REASONS FOR RULING RENDERED IN CHAMBERS at
Natchitoches Natchitoches Parish Louisiana on the day of February 2010
DEE A HAWTH RNE DISTRICT JtTDGE DIVISION B