Lowe v. Angelo's Italian

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 29, 2000
• Docket: 00-3108
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 29 2000 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

JAMIE LOWE,

Plaintiff,

v. Nos. 00-3108 & 00-3120 (D.C. No. 93-CV-1233-JTR) ANGELO’S ITALIAN FOODS, INC., (D. Kan.)

Defendant-Appellee- Cross-Appellant.

PAUL ARABIA,

Movant-Appellant- Cross-Appellee.

ORDER AND JUDGMENT *

Before BRORBY , KELLY , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.

Movant-appellant and cross-appellee Paul Arabia appeals a magistrate

judge’s ruling on his claim for attorney fees against his former client,

defendant-appellee and cross-appellant Angelo’s Italian Foods, Inc. The ruling

denied Arabia’s claim for payment and ordered him to refund part of the attorney

fees Angelo’s had previously paid.

We first address Angelo’s’ jurisdictional challenge to this appeal. It claims

Arabia’s notice of appeal, filed April 12, 2000, was too late because the district

court denied his motion to reconsider on February 16, 2000, more than thirty days

before the notice of appeal was filed. Fed. R. App. P. 4(a)(1)(A). Arabia’s notice

of appeal, filed within thirty days of the March 15, 2000 entry of judgment,

however, was timely. Rule 4(a)(1)(A), (7); Fed. R. Civ. P. 58. Thus this court

has jurisdiction, and Angelo’s’ motion to dismiss the appeal is denied.

Arabia has filed a motion to strike Angelo’s’ supplemental appendix.

Although the supplemental appendix is irrelevant to the matters before this court,

Angelo’s is entitled to file it. See Fed. R. App. P. 10(a)(1) (record on appeal to

include “original papers and exhibits filed in the district court”); but see 10th Cir.

R. 10.3(A) (“Only essential parts of the district court record should be designated

-2- for the record on appeal.”). Therefore, the motion to strike the supplemental

appendix is denied.

Turning to the merits, the underlying undisputed facts are as follows. In

1993, Angelo’s and Arabia entered into a contract for Arabia to represent

Angelo’s in a case filed against Angelo’s under the Americans with Disabilities

Act. Arabia produced records for billings from June 25, 1993 to May 31, 1994,

when his motion to withdraw as counsel was granted by the district court.

Angelo’s paid several thousand dollars to Arabia for attorney fees, but eventually

disputed the fees already paid and those Arabia sought to collect.

After a hearing at which expert testimony was received, and after

considering written submissions, the magistrate judge found that Arabia did not

have the necessary experience in the area of employment law or the ADA to

charge a premium hourly rate, even though the rate charged was the rate set in the

1993 contract. The magistrate judge further found that the number of hours

charged was unreasonable. Consequently, Arabia’s claim for payment in full was

denied, and he was ordered to reimburse Angelo’s for part of the fee already paid.

On appeal, Arabia claims (1) in evaluating his attorney fee claim, the

magistrate judge erred when he applied the legal standards applicable in

fee-shifting situations, rather than those applicable to a contract for attorney fees;

(2) the magistrate judge improperly made a general reduction in the fee, rather

-3- than identifying specific charges that were unreasonable; (3) the fee reduction

was overly harsh; and (4) the magistrate judge should have enforced the contract

for attorney fees. In its cross appeal, Angelo’s argues that the magistrate judge

should have reduced Arabia’s fee even more, based on the expert testimony.

Although Arabia argues for a more stringent standard of review, we will

review the magistrate judge’s ruling for an abuse of discretion. Garrick v.

Weaver , 888 F.2d 687, 690 (10th Cir. 1989) (review of attorney fees awarded

pursuant to contingency fee agreement). The parties do not challenge the

magistrate judge’s decision to apply the Kansas Rules of Professional Conduct .

See D. Kan. Rule 83.6.1(a) (adopting Kansas Rules of Professional Conduct ).

Rule 1.5(e) provides,

[u]pon application by the client, all fee contracts shall be subject to review and approval by the appropriate court having jurisdiction of the matter and the court shall have the authority to determine whether the contract is reasonable. If the court finds the contract is not reasonable, it shall set and allow a reasonable fee.

Rule 1.5 lists eight factors to be considered in evaluating the reasonableness of an

attorney fee, see City of Wichita v. B G Prods., Inc. , 845 P.2d 649, 654 (Kan.

1993), which were applied here by the magistrate judge.

The district court must provide a “concise but clear explanation” of its

reasons for any adjustments to the fee award. Mares v. Credit Bureau of Raton ,

801 F.2d 1197, 1201 (10th Cir. 1986) (quoting Hensley v. Eckerhart , 461 U.S.

-4- 424, 437 (1983) ). Although a reasonable attorney fee is generally determined by

applying an hourly rate to the number of hours worked, it may be appropriate for

a judge to make a general adjustment in an attorney fee where the reasons are

clear. Cf. United Phosphorus, Ltd. v. Midland Fumigant, Inc. , 205 F.3d 1219,

1233 (10th Cir. 2000) (no abuse of discretion for reduction of attorney fees by

20% for time spent on claims for which party not entitled to attorney fees);

Hensley , 461 U.S. at 436-37 (“no precise rule or formula” required for

determining attorney fee awarded to prevailing party; district court “may attempt

to identify specific hours [to eliminate], or it may simply reduce the award”);

Case v. Unified Sch. Dist. No. 233 , 157 F.3d 1243, 1250 (10th Cir. 1998) (general

reduction of attorney fees to prevailing party not erroneous where sufficient

reasons given). Disputes over attorney fees “‘should not result in a second major

litigation.’” Ellis v. Univ. of Kan. Med. Ctr. , 163 F.3d 1186, 1202 (10th Cir.

1999) (quoting Hensley , 461 U.S. at 437).

Here, the magistrate judge’s memorandum and order clearly and fully

explained the reasons for reducing Arabia’s fee, incorporating the expert

evidence. We have thoroughly reviewed the parties’ briefs, the record, the

magistrate judge’s orders, and the applicable law. Based on our review, we find

no abuse of discretion in the magistrate judge’s ruling.

-5- Angelo’s’ motion to dismiss is denied. Arabia’s motion to strike the

supplemental appendix submitted by Angelo’s is denied. The judgment of the

United States District Court for the District of Kansas is AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge

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