In re Interdiction Hoge

256 So. 3d 458
CourtLouisiana Court of Appeal
DecidedSeptember 26, 2018
DocketNo. 52,368-CA
StatusPublished
Cited by1 cases

This text of 256 So. 3d 458 (In re Interdiction Hoge) 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
In re Interdiction Hoge, 256 So. 3d 458 (La. Ct. App. 2018).

Opinion

STONE, J.

The trial court denied David and Alyson Hoge's request for $65,946.81 in attorney fees and costs and awarded them $2,500 in attorney fees and costs. For the following reasons, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Paul Hoge ("Paul") was born on November 28, 1936 and has lived in Shreveport his entire life. For the last 7 years, he has resided in the home of LaRae Cook ("Cook"), his girlfriend of 13 years. Paul has one son, David Hoge ("David"). David and his wife, Alyson Hoge ("Alyson") (jointly "the Hoges"), live in Little Rock, Arkansas. In 2015, Paul was diagnosed with Alzheimer's and dementia. On January *46025, 2017, the Hoges filed a petition to interdict Paul. Due to a series of motions filed by both parties, including multiple continuances by Paul, depositions, and days of testimony, the interdiction was contested over a period of 8 months.

On August 11, 2017, the parties agreed that full interdiction was not warranted as a less restrictive means was available. A judgment of limited interdiction was rendered, denying the full interdiction. The stipulations of the limited interdiction are as follows: 1) Christopher Smith and Gina Smith be appointed as limited co-curators over the person of Paul; 2) Alyson be appointed as the limited undercuratrix over the person of Paul; 3) Donald Hathaway, Jr. be appointed as the limited curator over Paul's property; 4) Mark Ford, CPA for Paul, appointed as the limited undercurator over the property of Paul.

Thereafter, on September 20, 2017, the Hoges filed a rule for reimbursement wherein they sought $65,946.81 in reimbursements for attorney fees and costs. In a hearing on October 30, 2017, the trial court granted the Hoges reimbursement in the amount of $2,500. The trial court based its judgment on: 1) the length and contentiousness of the interdiction; 2) the financial stability of the Hoges; 3) an affidavit executed by Paul Hoge stating he does not wish to reimburse the Hoges; 4) the fact that the Hoges filed the interdiction to preserve the assets of the interdict; and 5) the fact that the Hoges stated throughout the interdiction proceeding that they did not want or expect Paul's money. The Hoges appealed the trial court ruling, arguing the award was not fair or reasonable in light of the fees they incurred in connection with the interdiction.

DISCUSSION

A court of appeal should not set aside a trier of fact's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Rosell v. ESCO, 549 So.2d 840 (La. 1989) ; Stobart v. State, Through DOTD, 617 So.2d 880 (La. 1993). The appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one, after reviewing the record in its entirety. Stobart, supra .

La. C. C. P. art. 4550 provides that the trial court may render judgment for costs and attorney fees against any party as the court may consider fair. (emphasis added). Regardless of the statutory authorization for an award of attorney fees, courts should examine certain factors to determine the reasonableness of the fees. Rivet v. State, Dep't. of Transp. & Dev. , 96-0145 (La. 09/05/96), 680 So.2d 1154, 1161. Factors to be considered include the ultimate result obtained; the responsibility incurred; the importance of the litigation; the amount of money involved; the extent and character of the work performed; the legal knowledge, attainment, and skill of the attorneys; the number of appearances involved; the intricacies of the facts involved; the diligence and skill of counsel; and the court's own knowledge. Id. ; see also , Ezzell v. Miranne , 2015-471 (La. App. 5th Cir. 01/27/16), 185 So.3d 171.

In support of their argument, the Hoges cite In re Interdiction of DeMarco , 2009-1791 (La. App. 1 Cir. 04/07/10), 38 So.3d 417. In DeMarco , Mrs. DeMarco, through her retained counsel, filed a motion for approval of her counsel's attorney fees and costs. The trial court reduced the billed attorney fee and awarded an amount less than what was requested. In reversing the trial court, the Louisiana First Circuit Court of Appeal stated, "we conclude the trial court was clearly wrong in determining that the fees and expenses billed by Mrs. DeMarco's retained counsel were not earned or clearly excessive under the *461terms of the contract for legal services." The First Circuit also discussed the court's role in altering attorney fees, and stated, "[U]nless the provisions of an attorney-client contract produce an excessive, unearned, or incommensurate fee according to the factors set forth in Rule 1.5(a) of the Louisiana State Bar Association Rules of Professional Conduct, the fee charged must be considered reasonable and enforceable." See Moody v. Arabie , 498 So.2d 1081 (La. 1986).

We find the instant case to be distinguishable from DeMarco . In DeMarco , the request was for an approval of attorney fees, which the trial court determined was unearned and clearly excessive. In the matter sub judice , the trial court did not find the fee charged was unearned or clearly excessive under the terms of the contractual agreement. Additionally, the attorney fees were not altered as they were still effective between the Hoges and their attorney. Notably, in its oral reasons for awarding the Hoges $2,500 in attorney fees, the trial court made the following observation:

[I]t is shocking for, to expect Mr. Hoge to refund or reimburse the amount of $65,946.81 in this matter. Throughout these proceedings, which were protracted unnecessarily, in the Court's opinion, the plaintiffs in this matter kept emphasizing through pleadings and otherwise that they were concerned about the reduction of Mr. Hoge's assets. They emphasized throughout the litigation that that was their only concern, that -- to maintain Mr. Hoge's assets so that he could provide for himself, and for him to go to the medical treatment that was necessary. They testified that their net worth was approximately $1.5 million, and they do [sic] not want Mr. Hoge's money nor [sic] did they expect any of it, etc. But yet they file this motion to request that Mr. Hoge reimburse them for $65,946.81, which the court does not find to be reasonable or fair in these circumstances. The court does agree that there was a limited interdiction that was granted.

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256 So. 3d 458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-interdiction-hoge-lactapp-2018.