SUCCESSION OF JOSEPHINE GRIESHABER NO. 22-CA-480 WIDOW OF CHARLES C. WAGNER FIFTH CIRCUIT
COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 758-034, DIVISION "P" HONORABLE LEE V. FAULKNER, JR., JUDGE PRESIDING
May 24, 2023
JOHN J. MOLAISON, JR. JUDGE
Panel composed of Judges Susan M. Chehardy, Stephen J. Windhorst, and John J. Molaison, Jr.
JUDGMENT VACATED IN PART; REMANDED, WITH INSTRUCTIONS. JJM SMC SJW COUNSEL FOR PLAINTIFF/APPELLANT, ROBERT A. BARNETT Brian J. Eiselen Robert A. Barnett
COUNSEL FOR PLAINTIFF/APPELLEE, SEAN R. DAWSON, ADMINISTRATOR OF THE SUCCESSION OF JOSEPHINE G. WAGNER Sean R. Dawson MOLAISON, J.
In this matter pertaining to the calculation of attorney’s fees incurred on
behalf of an estate, the appellant seeks review of the trial court’s judgment which
reduced his billed hours. For the reasons that follow, the portion of the judgment
reducing the fees is vacated, and we remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
While the instant action arises in the context of a succession proceeding, it
does not invoke any issues directly related to the last will and testament of
Josephine G. Wagner. The issue before us strictly involves review of the amount of
attorney’s fees determined by the trial court for the work of the appellant, Robert
Barnett, on behalf of the estate.
On March 29, 2022, Sean Dawson, in her capacity as administratrix of the
Succession of Josephine G. Wagner, filed a Petition For Authority To Pay Debt
And Tableau Of Distribution. In the petition, Dawson stated that the succession
debt of attorney Robert Barnett, consisting of $63,650.00 in fees and $8,619.50 in
costs, had not been paid. The petition acknowledged that the amount of costs had
been verified, but informed the court that certain heirs of the succession opposed
payment of Mr. Barnett’s bill in full. In her prayer for relief, Dawson asked the
Court to review, in camera, Mr. Barnett’s billing statement and “responses to
questions undersigned had [for Mr. Barnett]” to determine if all amounts should be
approved. A hearing was conducted by the trial court on May 17, 2022. On June 3,
2022, the trial court’s written judgment granted Dawson’s petition, in part, and
ordered payment of Mr. Barnett’s costs in the amount of $8,619.50. With respect
to Mr. Dawson’s billable fees, however, the trial court’s award was $32,000. After
a motion was filed by Mr. Barnett for the purpose of asking the court to include
decretal language in order to make its judgment appealable, the trial court issued
an amended judgment on July 19, 2022. The instant appeal followed.
22-CA-480 1 ASSIGNMENT OF ERROR
On appeal, Mr. Barnett asserts that the trial court reduction of his attorney’s
fees is an abuse of discretion and is not supported by the record.
LAW AND ANALYSIS
Our review of the record shows that Mr. Barnett submitted a bill to the
succession for 254.60 hours, for work performed from December 1, 2020, to
March 10, 2021. The invoice commemorated tasks billed in 10-minute increments
that ranged from telephone calls and electronic correspondence, to more complex
matters such as the preparation of pleadings, depositions and court appearances.
Separately, Dawson included a document labeled “RESPONSES TO SEAN
DAWSON” which consisted of 25 questions about specific entries of Mr.
Barnett’s bills, with Mr. Barnett’s explanations, in “Part I,” and six questions in
“Part II” about Mr. Barnett’s expenses.
In seeking a reduction of Mr. Barnett’s bill, Dawson makes clear that there is
no dispute that the hourly rate charged, $250.00, is not excessive given Mr.
Barnett’s years of experience and professional certifications. Rather, the sole issue
presented to the trial court was whether the amount of hours billed was excessive.
Standard of review
In making awards of attorney’s fees, the trial court is vested with great
discretion, the exercise of which will not be interfered with, except in a case of
clear abuse. Brandner v. Staf-Rath, L.L.C., 12-62 (La. App. 5 Cir. 5/31/12), 102
So.3d 186, 189, writ denied, 12-2196 (La. 11/21/12), 102 So.3d 62, and writ
denied, 12-2210 (La. 11/21/12), 102 So.3d 62. Attorney’s fees are subject to the
review and control by the courts. Abadie v. Markey, 97-684 (La. App. 5 Cir.
3/11/98), 710 So.2d 327, 333. Regardless of the language of the statutory
authorization for an award of attorney’s fees or the method employed by a trial
court in making an award of attorney’s fees, courts may inquire as to the
22-CA-480 2 reasonableness of attorney’s fees as part of their prevailing, inherent authority to
regulate the practice of law. Richardson v. Parish of Jefferson, 98-625 (La. App. 5
Cir. 2/10/99), 727 So.2d 705, 708, writ denied, 99-864 (La. 5/7/99), 740 So.2d
1289. A reasonable attorney’s fee is determined by the facts of an individual case.
Gottsegen v. Diagnostic Imaging Services, 95-977 (La. App. 5 Cir. 3/13/96), 672
So.2d 940, 943, writ denied, 96-0707 (La. 4/26/96), 672 So.2d 909. Factors to be
taken into consideration in determining the reasonableness of attorney’s fees
include: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the
importance of the litigation; (4) the amount of money involved; (5) the extent and
character of the work performed; (6) the legal knowledge, attainment, and skill of
the attorneys; (7) the number of appearances involved; (8) the intricacies of the
facts involved; (9) the diligence and skill of counsel; and (10) the court's own
knowledge. Rivet v. State, Dept. of Transp. & Dev., 96-0145 (La. 9/5/96), 680
So.2d 1154, 1161, citing State, DOTD v. Williamson, 597 So.2d 439 (La.1992).
There is no evidence in the record before us to indicate whether the trial court
considered any of the Rivet factors when reducing the amount of Mr. Barnett’s
fees.
Mr. Barnett’s billable hours
As stated above, Mr. Barnett billed the estate for 254.60 hours, for work
performed from December 1, 2020, to March 10, 2021, at an uncontested rate of
$250.00 per hour. The one who asserts a fact bears the burden of proving that fact;
therefore, the burden of proving the reasonableness of the fees charged is on the
attorney claiming fees are owed. Succession of Herrle, 517 So.2d 386 (La. App. 5
Cir. 1987), writ denied, 519 So.2d 129 (La. 1988). Once an attorney proves to the
trial court’s satisfaction that the amount claimed due is actually owed, the burden
of proof shifts to the client to prove that the fees are clearly excessive. Gold,
Weems, Bruser, Sues & Rundell v. Granger, 06-859 (La. App. 3 Cir. 12/29/06),
22-CA-480 3 947 So.2d 835, 842, writ denied, 07-0421 (La. 4/27/07), 955 So.2d 687. Here, the
only evidence presented was Mr. Barnett’s bill and Dawson’s written query about
certain entries within the bill. In asking the court to review the bill and determine
whether it was reasonable, Dawson generally alleged that the bill was excessive,
without identifying specific entries to support the claim. In addition, as part of
their opposition to the payment of Mr. Barnett’s fees, counsel for the heirs, M.
Elizabeth Bowman, attached a copy of her own billing from December 1, 2020,
through March 31, 2021, with an attestation. It is unclear from the record before
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SUCCESSION OF JOSEPHINE GRIESHABER NO. 22-CA-480 WIDOW OF CHARLES C. WAGNER FIFTH CIRCUIT
COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 758-034, DIVISION "P" HONORABLE LEE V. FAULKNER, JR., JUDGE PRESIDING
May 24, 2023
JOHN J. MOLAISON, JR. JUDGE
Panel composed of Judges Susan M. Chehardy, Stephen J. Windhorst, and John J. Molaison, Jr.
JUDGMENT VACATED IN PART; REMANDED, WITH INSTRUCTIONS. JJM SMC SJW COUNSEL FOR PLAINTIFF/APPELLANT, ROBERT A. BARNETT Brian J. Eiselen Robert A. Barnett
COUNSEL FOR PLAINTIFF/APPELLEE, SEAN R. DAWSON, ADMINISTRATOR OF THE SUCCESSION OF JOSEPHINE G. WAGNER Sean R. Dawson MOLAISON, J.
In this matter pertaining to the calculation of attorney’s fees incurred on
behalf of an estate, the appellant seeks review of the trial court’s judgment which
reduced his billed hours. For the reasons that follow, the portion of the judgment
reducing the fees is vacated, and we remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
While the instant action arises in the context of a succession proceeding, it
does not invoke any issues directly related to the last will and testament of
Josephine G. Wagner. The issue before us strictly involves review of the amount of
attorney’s fees determined by the trial court for the work of the appellant, Robert
Barnett, on behalf of the estate.
On March 29, 2022, Sean Dawson, in her capacity as administratrix of the
Succession of Josephine G. Wagner, filed a Petition For Authority To Pay Debt
And Tableau Of Distribution. In the petition, Dawson stated that the succession
debt of attorney Robert Barnett, consisting of $63,650.00 in fees and $8,619.50 in
costs, had not been paid. The petition acknowledged that the amount of costs had
been verified, but informed the court that certain heirs of the succession opposed
payment of Mr. Barnett’s bill in full. In her prayer for relief, Dawson asked the
Court to review, in camera, Mr. Barnett’s billing statement and “responses to
questions undersigned had [for Mr. Barnett]” to determine if all amounts should be
approved. A hearing was conducted by the trial court on May 17, 2022. On June 3,
2022, the trial court’s written judgment granted Dawson’s petition, in part, and
ordered payment of Mr. Barnett’s costs in the amount of $8,619.50. With respect
to Mr. Dawson’s billable fees, however, the trial court’s award was $32,000. After
a motion was filed by Mr. Barnett for the purpose of asking the court to include
decretal language in order to make its judgment appealable, the trial court issued
an amended judgment on July 19, 2022. The instant appeal followed.
22-CA-480 1 ASSIGNMENT OF ERROR
On appeal, Mr. Barnett asserts that the trial court reduction of his attorney’s
fees is an abuse of discretion and is not supported by the record.
LAW AND ANALYSIS
Our review of the record shows that Mr. Barnett submitted a bill to the
succession for 254.60 hours, for work performed from December 1, 2020, to
March 10, 2021. The invoice commemorated tasks billed in 10-minute increments
that ranged from telephone calls and electronic correspondence, to more complex
matters such as the preparation of pleadings, depositions and court appearances.
Separately, Dawson included a document labeled “RESPONSES TO SEAN
DAWSON” which consisted of 25 questions about specific entries of Mr.
Barnett’s bills, with Mr. Barnett’s explanations, in “Part I,” and six questions in
“Part II” about Mr. Barnett’s expenses.
In seeking a reduction of Mr. Barnett’s bill, Dawson makes clear that there is
no dispute that the hourly rate charged, $250.00, is not excessive given Mr.
Barnett’s years of experience and professional certifications. Rather, the sole issue
presented to the trial court was whether the amount of hours billed was excessive.
Standard of review
In making awards of attorney’s fees, the trial court is vested with great
discretion, the exercise of which will not be interfered with, except in a case of
clear abuse. Brandner v. Staf-Rath, L.L.C., 12-62 (La. App. 5 Cir. 5/31/12), 102
So.3d 186, 189, writ denied, 12-2196 (La. 11/21/12), 102 So.3d 62, and writ
denied, 12-2210 (La. 11/21/12), 102 So.3d 62. Attorney’s fees are subject to the
review and control by the courts. Abadie v. Markey, 97-684 (La. App. 5 Cir.
3/11/98), 710 So.2d 327, 333. Regardless of the language of the statutory
authorization for an award of attorney’s fees or the method employed by a trial
court in making an award of attorney’s fees, courts may inquire as to the
22-CA-480 2 reasonableness of attorney’s fees as part of their prevailing, inherent authority to
regulate the practice of law. Richardson v. Parish of Jefferson, 98-625 (La. App. 5
Cir. 2/10/99), 727 So.2d 705, 708, writ denied, 99-864 (La. 5/7/99), 740 So.2d
1289. A reasonable attorney’s fee is determined by the facts of an individual case.
Gottsegen v. Diagnostic Imaging Services, 95-977 (La. App. 5 Cir. 3/13/96), 672
So.2d 940, 943, writ denied, 96-0707 (La. 4/26/96), 672 So.2d 909. Factors to be
taken into consideration in determining the reasonableness of attorney’s fees
include: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the
importance of the litigation; (4) the amount of money involved; (5) the extent and
character of the work performed; (6) the legal knowledge, attainment, and skill of
the attorneys; (7) the number of appearances involved; (8) the intricacies of the
facts involved; (9) the diligence and skill of counsel; and (10) the court's own
knowledge. Rivet v. State, Dept. of Transp. & Dev., 96-0145 (La. 9/5/96), 680
So.2d 1154, 1161, citing State, DOTD v. Williamson, 597 So.2d 439 (La.1992).
There is no evidence in the record before us to indicate whether the trial court
considered any of the Rivet factors when reducing the amount of Mr. Barnett’s
fees.
Mr. Barnett’s billable hours
As stated above, Mr. Barnett billed the estate for 254.60 hours, for work
performed from December 1, 2020, to March 10, 2021, at an uncontested rate of
$250.00 per hour. The one who asserts a fact bears the burden of proving that fact;
therefore, the burden of proving the reasonableness of the fees charged is on the
attorney claiming fees are owed. Succession of Herrle, 517 So.2d 386 (La. App. 5
Cir. 1987), writ denied, 519 So.2d 129 (La. 1988). Once an attorney proves to the
trial court’s satisfaction that the amount claimed due is actually owed, the burden
of proof shifts to the client to prove that the fees are clearly excessive. Gold,
Weems, Bruser, Sues & Rundell v. Granger, 06-859 (La. App. 3 Cir. 12/29/06),
22-CA-480 3 947 So.2d 835, 842, writ denied, 07-0421 (La. 4/27/07), 955 So.2d 687. Here, the
only evidence presented was Mr. Barnett’s bill and Dawson’s written query about
certain entries within the bill. In asking the court to review the bill and determine
whether it was reasonable, Dawson generally alleged that the bill was excessive,
without identifying specific entries to support the claim. In addition, as part of
their opposition to the payment of Mr. Barnett’s fees, counsel for the heirs, M.
Elizabeth Bowman, attached a copy of her own billing from December 1, 2020,
through March 31, 2021, with an attestation. It is unclear from the record before
us whether the trial court accepted Mr. Barnett’s bill on its face and then required
the succession to prove the excessiveness of the charges, or whether the court
rejected the bill as submitted.
It is well-settled that a court, in awarding an appropriate attorney’s fee,
should reduce the number of hours submitted in the fee application if the claimed
time is “excessive, redundant, or otherwise unnecessary.” Covington v. McNeese
State Univ., 12-2182 (La. 5/7/13), 118 So.3d 343, 350, citing Hensley v. Eckerhart,
461 U.S. 424, 434, 103 S.Ct. 1933, 1939-40, 76 L.Ed.2d 40 (1968). Although a
trial court has considerable discretion in awarding attorney’s fees, such discretion
is not unbridled and cannot be exercised to invalidate or modify an otherwise
reasonable fee charged pursuant to a valid contract for legal services between
consenting parties. Alvarez v. Cressend, 15-276 (La. App. 5 Cir. 12/23/15), 182
So.3d 1154, 1158. This Court has previously opined that to uphold the trial court’s
reduction of attorney’s fees, such a reduction must be predicated on a factual
finding that the fees were never earned, but will refrain from altering the
contractual relationship between an attorney and client in the absence of a showing
that a fee charged was clearly excessive. Anderson, Hawsey & Rainach v. Clean
Land Air Water Corp., 489 So.2d 928 (La. App. 5th Cir.), writ denied, 492 So.2d
1221 (La. 1986).
22-CA-480 4 In the instant case, the trial court presumably found Mr. Barnett’s fee to be
excessive, but the trial court’s judgment does not specify any reasons why it
reduced Mr. Barnett’s bill almost exactly by one-half. As a whole, we find that this
particular record on appeal leaves us with an inadequate factual basis upon which
to assess the trial court's judgment.
Louisiana Code of Civil Procedure article 2164 provides that an “appellate
court shall render any judgment which is just, legal, and proper upon the record on
appeal.” Pursuant to that article, an appellate court may remand a matter to the trial
court to permit that court to take additional evidence where necessary to reach a
just decision and prevent a miscarriage of justice. See, e.g., Alex v. Rayne Concrete
Service, 05-1457 (La. 1/26/07), 951 So.2d 138, 155. In this instance, we find that
remanding the case is an appropriate procedural remedy because the record lacks
the evidence that would allow us to resolve whether there is merit to Mr. Barnett’s
claim that the trial court erred in reducing his proposed attorney’s fee.
CONCLUSION
For the foregoing reasons, we vacate the portion of the judgment reducing
the attorney’s fee award and remand this matter to the trial court for the taking of
evidence, if necessary, on the issue of the appropriate attorney’s fee, to render a
new judgment, and to issue written reasons for judgment.
JUDGMENT VACATED IN PART; REMANDED, WITH INSTRUCTIONS.
22-CA-480 5 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON LINDA M. WISEMAN STEPHEN J. WINDHORST FIRST DEPUTY CLERK JOHN J. MOLAISON, JR. CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
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22-CA-480 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HON. LEE V. FAULKNER, JR. (DISTRICT JUDGE) ROBERT A. BARNETT (APPELLANT) CHRISTY M. HOWLEY (APPELLEE) M. ELIZABETH BOWMAN (APPELLEE) SEAN R. DAWSON (APPELLEE) STACY R. PALOWSKY (APPELLEE)
MAILED BRIAN J. EISELEN (APPELLANT) ATTORNEY AT LAW 4628 WINDSOR STREET METAIRIE, LA 70001