Spell v. McDaniel

852 F.2d 762, 1988 WL 76038
CourtCourt of Appeals for the Fourth Circuit
DecidedJuly 26, 1988
DocketNos. 85-1523, 85-1524, 85-1691, 85-1714 and 85-1757
StatusPublished
Cited by113 cases

This text of 852 F.2d 762 (Spell v. McDaniel) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Spell v. McDaniel, 852 F.2d 762, 1988 WL 76038 (4th Cir. 1988).

Opinion

ORDER

PER CURIAM:

Henry Z. Spell, a successful civil rights plaintiff in a suit brought against Patrolman Charles McDaniel and the City of Fayetteville, North Carolina, see Spell v. McDaniel, 824 F.2d 1380 (4th Cir.1987), is again before this court on a motion for attorney’s fees under 42 U.S.C. § 1988 for services performed in connection with the appeal and subsequent response to the appellant’s petition for writ of certiorari. Plaintiff also seeks attorney’s fees for time spent by his attorneys in preparing the present fee petition. Plaintiff seeks reimbursement of the amount he has already substantially paid his seven appellate counsel, five of whom joined the case post-trial, under a contractual fee agreement whereby counsel charged Spell for 1,886.1 hours of attorney time at rates varying from $80 to $150 per hour with an additional “contingency multiplier” of 1.5 applied to 1,362.3 of these hours and a bonus for winning of $15,000 resulting in a total attorney’s fee of $383,236.25. In addition, plaintiff seeks from defendants the $5,482 he was charged for 98.2 hours attributed by his counsel to paralegal services, over $8,000 in costs and expenses, compensation for delay, and interest on the fee award. These sums are in addition to the $224,758.50 in attorney’s fees and costs already awarded plaintiff in connection with the trial. We find that the amounts charged to Spell by his multiple [764]*764appellate counsel represent a vast duplication of endeavors already performed at the trial level, a substantial degree of duplication and overkill in connection with the post-trial proceedings, an unconscionable exercise of billing judgment as to the reasonable number of hours expended and ultimately charged to plaintiff Spell, and an affront to the very purposes of the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988. For these reasons, and as discussed more fully below, we award plaintiff the sum of $80,295.69 which we find represents a “reasonable” attorney’s fee, expenses and adjustment for delay as contemplated by § 1988.

I

Plaintiff Spell brought the underlying § 1983 action against the defendant police officers and the City of Fayetteville, North Carolina, in 1984. After two jury trials, compensatory damages of $900,000 were awarded to plaintiff. Subsequently the district court awarded attorney’s fees and costs for plaintiff’s trial counsel, Gerald Beaver and William Richardson of the Fayetteville law firm of Beaver, Thompson, Holt & Richardson, P.A., in the amount of $335,942.57. The district court arrived at this figure by enhancing the reasonable lodestar figure of $224,758.50 by a 1.5 contingency multiplier. See Spell v. McDaniel, 616 F.Supp. 1069, 1107-10 (E.D.N.C.1985). The defendants appealed contesting both the fee award and the imposition of liability against them under 42 U.S.C. § 1983.

Plaintiff’s trial counsel, Gerald Beaver, by affidavit in support of the present petition, states that as of May 1985 his four-member law firm was no longer able to shoulder the financial burden of representing Spell on the contingency basis which Spell’s financial condition necessitated. Beaver and Richardson therefore took on a substantial additional case load and sought alternative or associate counsel to represent Spell on appeal. Beaver states that informal discussions with attorneys between the ages of 35 and 45 at several similarly small North Carolina law firms led him to believe that all such firms shared the same predicament as did his firm. He states further that he believed it unnecessary to contact larger firms because in his “personal experience” such firms “seldom, if ever, ... take contingent work.”

In September 1985, Beaver came in contact with Alfred Bryant, then of the seven-member Richmond, Virginia, firm of Oben-shain, Hinnant, Ellyson, Runkle & Bryant (Obenshain), who after some discussion with his partners and with Beaver, agreed to represent Spell on appeal, and ultimately in subsequent proceedings, in association with Beaver and Richardson on a contingency basis. Bryant and Beaver agreed that the only way their representation could go forward given the size of their firms, and the limited time until the appellant’s brief was due, January 21, 1986, was if Spell agreed, by written contract, to compensate Bryant and all Obenshain attorneys who worked on Spell’s case at a base hourly rate of $150 with an additional contingency multiplier of 1.5 resulting in a total hourly rate of $225. By the terms of this same contract Beaver and Richardson were to be compensated at base hourly rates of $125 again enhanced by 1.5 to reach a total hourly rate of $187.50. In addition, Spell must separately reimburse counsel for paralegal services and out-of-pocket costs. Spell, then currently an inmate in state prison, signed this contract, and its enforceability is not in issue.

On appeal, this court affirmed the verdict for Spell on the merits. See 824 F.2d 1380, 1405. The district court’s fee award was affirmed as to expenses and the $224,-758.50 lodestar but vacated and remanded as to the application of the contingency multiplier in light of the Supreme Court’s intervening decision in Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, — U.S. -, 107 S.Ct. 3078, 97 [765]*765L.Ed.2d 585 (1987), and our determination that an enhancement for contingency was not necessary to attract competent trial counsel to represent plaintiffs such as Spell in this type of litigation. 824 F.2d at 1404-05.

The defendants then petitioned the Supreme Court for certiorari, which petition was denied on January 19, 1988. On January 20, 1988, the judgment, then totalling roughly $1,235,000 including interest, which had been stayed by this court pending the Supreme Court’s action on the cer-tiorari petition, was released from bond. At this time Spell made full payment on the bills submitted to him by counsel for which he now seeks full reimbursement from defendants through the exercise of this court’s discretion under § 1988.

II

The Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, provides that in federal civil rights actions such as the underlying action brought pursuant to 42 U.S.C. § 1983, “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” “The purpose of § 1988 is to ensure ‘effective access to the judicial process’ for persons with civil rights grievances. H.R.Rep. No. 94-1558, p. 1 (1976). Accordingly, a prevailing plaintiff ‘should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.’ ” Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40 (1983) (citing S.Rep. No. 94-1011, p. 4 (1976), U.S.Code Cong. & Admin.News 1976, p. 5908).

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852 F.2d 762, 1988 WL 76038, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spell-v-mcdaniel-ca4-1988.