KENTON COUNTY, KENTUCKY; KENTON COUNTY FISCAL COURT; CLYDE MIDDLETON, AS KENTON COUNTY JUDGE EXECUTIVE; CLYDE MIDDLETON, AS MEMBER OF KENTON COUNTY FISCAL COURT; CHARLES L. SUMME, AS KENTON COUNTY COMMISSIONER; and CHARLES L. SUMME, AS MEMBER OF KENTON COUNTY FISCAL COURT v. ELIZABETH A. BERNARD AND BARBARA D. BONAR and WOLNITZEK, ROWEKAMP, BENDER AND BONAR, P.S.C. v. KENTON COUNTY, KENTUCKY; CLYDE MIDDLETON, KENTON CLYDE MIDDLETON, AS MEMBER OF KENTON COUNTY FISCAL COURT; RICHARD T. COMBS, AS KENTON COUNTY COMMISSIONER; RICHARD T. COMBS, AS MEMBER
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RENDERED: December 23, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1997-CA-000037-MR
KENTON COUNTY, KENTUCKY;
KENTON COUNTY FISCAL COURT;
CLYDE MIDDLETON, AS KENTON
COUNTY JUDGE EXECUTIVE;
CLYDE MIDDLETON, AS MEMBER OF
KENTON COUNTY FISCAL COURT;
CHARLES L. SUMME, AS KENTON
COUNTY COMMISSIONER; and
CHARLES L. SUMME, AS MEMBER OF
KENTON COUNTY FISCAL COURT
v.
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE ROBERT W. McGINNIS, SPECIAL JUDGE
ACTION NO. 93-CI-001311
ELIZABETH A. BERNARD
AND
APPELLEE
NO. 1997-CA-000130-MR
BARBARA D. BONAR and
WOLNITZEK, ROWEKAMP, BENDER
AND BONAR, P.S.C.
v.
APPELLANTS
APPELLANTS
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE ROBERT W. McGINNIS, SPECIAL JUDGE
ACTION NO. 93-CI-001311
KENTON COUNTY, KENTUCKY;
CLYDE MIDDLETON, KENTON
AS COUNTY JUDGE EXECUTIVE;
CLYDE MIDDLETON, AS MEMBER OF
KENTON COUNTY FISCAL COURT;
RICHARD T. COMBS, AS KENTON
COUNTY COMMISSIONER;
RICHARD T. COMBS, AS MEMBER
OF KENTON COUNTY FISCAL COURT;
APPELLEES
CHARLES L. SUMME, AS
COUNTY COMMISSIONER;
CHARLES L. SUMME, AS
KENTON COUNTY FISCAL
KENTON COUNTY FISCAL
KENTON
MEMBER OF
COURT; and
COURT
OPINION
AFFIRMING
* * *
BEFORE: GUIDUGLI, JOHNSON, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
These two appeals arise from a jury trial in
which the jury found that Betty Bernard (Bernard) was not
appointed Assistant County Administrator (the assistant position)
as a result of sexual discrimination and awarded her damages in
the amount of $93,361.
The Kenton Circuit Court, presided over
by a Special Judge, entered judgment in Bernard’s favor on
June 13, 1996, and entered an award of attorney fees in the
amount of $49,835 on December 16, 1996.
In case no. 1997-CA-000037-MR, appellants, Kenton
County, Clyde Middleton (Middleton), in his capacity as Kenton
County Judge Executive and as a member of the Kenton County
Fiscal Court, Richard T. Combs, in his official capacity as
Kenton County Commissioner and as a member of the Kenton County
Fiscal Court, Charles L. Summe, in his official capacity as
Kenton County Commissioner and as a member of the Kenton County
Fiscal Court, and the Kenton County Fiscal Court (the fiscal
court) (collectively the County), appeal from the trial court’s
order granting judgment in favor of Bernard and from its denial
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of the County’s motion for judgment notwithstanding the verdict
(JNOV).
In case no. 1997-CA-000130-MR, appellants, Barbara D.
Bonar and Wolnitzek, Rowekamp, Bender, & Bonar, P.S.C.
(collectively Bonar), appeal from the trial court’s order setting
attorney fees in the amount of $49,825.
Although these appeals
were heard together on oral argument, we will separate them for
purposes of this opinion.
NO. 1997-CA-000037-MR
Former Kenton County Judge Executive Robert B.
Aldemeyer (Aldemeyer) appointed Bernard as Director of
Administration of Kenton County in 1989 at an annual salary of
$35,256, pursuant to an executive order of the fiscal court.
The
order provided that Bernard was appointed pursuant to KRS 67.711,
which permits a county judge executive to appoint a deputy judge
executive, assistants, secretaries, and clerical workers “who
shall serve at his pleasure.”
KRS 67.711(1).
Aldemeyer was defeated by Middleton in the November
1989 elections.
Bernard sought reappointment as Director of
Administration in Middleton’s administration.
Although Middleton
interviewed Bernard, another individual was ultimately appointed.
Middleton recommended to the fiscal court that Bernard be
temporarily appointed as Director of Special Projects at her
current salary.
The fiscal court approved Middleton’s
recommendation by executive order dated February 13, 1990.
Bernard’s appointment was to last until the end of the fiscal
year on June 30, 1990, and the minutes of the fiscal court
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indicate that Bernard was aware of the need to find another
position.
In an article which appeared in The Kentucky Post on
June 12, 1990, it was announced that an assistant administrator
position was going to be created and that Bernard would be
appointed to the position at a salary of $37,024.
However, it
appears that the creation of the assistant position was not
initially discussed by the fiscal court until June 26, 1990.
At
that time, it was decided to discuss the assistant position at
the next caucus and that further action be delayed.
The fiscal
court also voted to extend Bernard’s temporary position until
August 1, 1990.
The assistant position was next discussed by the fiscal
court on July 31, 1990.
At that time a resolution was adopted
creating the assistant position at Salary Grade 53.
Although we
cannot determine the actual dollar amount of Salary Grade 53 from
the record, we note that Bernard was a Salary 73/G at this time.
We assume that Salary Grade 53 is lower.
At the fiscal court meeting on August 28, 1990,
Middleton recommended that Ralph Bailey (Bailey) be appointed to
the assistant position.
The matter was discussed during an
executive session and ultimately approved.
Bailey was hired at a
salary rate of $26,500.
Bernard was appointed Director of Human Services by an
executive order dated September 25, 1990.
position was $24,897.60.
The salary for that
Bernard served in this position until
-4-
1994, when she voluntarily left her county job for a new
position.
Bernard filed a civil action against the County
alleging sexual discrimination in violation of KRS 344.040 and
Title VII of the Federal Civil Rights Act (42 U.S.C. Sec.
2000(e)).
Bernard’s complaint also included claims for breach of
contract, violation of the County’s affirmative action policy,
and retaliatory discharge.
Bernard sought compensatory and
punitive damages, costs, and attorney fees.
Bernard’s claims were tried before a jury.
The trial
court entered a directed verdict in favor of the County on all of
Bernard’s claims except for her allegation that the County
discriminated against her on the basis of her sex in not
appointing her to the assistant position.
The jury returned a
verdict in Bernard’s favor and awarded compensatory damages in
the amount of $93,361.
The County’s JNOV motion was denied and
this appeal followed.
The County contends that the trial court erred in
denying its motion for JNOV on the ground that appointment to the
position of assistant director is discretionary under KRS 67.711
and not subject to KRS 344.040.
We will begin our discussion of
the County’s argument by stating that the facts that appointments
made pursuant to KRS 67.711(1) are discretionary and the
appointee serves at the pleasure of the judge executive do not
mean that the judge executive and the fiscal court may engage in
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discrimination in making the appointment.
To the extent the
County makes this argument, it is completely without merit.
The County also maintains that the assistant position
is not subject to the provisions of KRS 344.040.
In support of
its argument, the County points us to the Federal Civil Rights
Act where the term “employee,” as defined for the purpose of the
Act, does not include any person chosen by an elected official to
be on his personal staff or any appointee responsible for making
policy.
The County cites several cases for the authority that
KRS 344.040 “should be interpreted consonant with federal
interpretation” of the Federal Civil Rights Act.
Meyers v.
Chapman Printing Co., Inc., Ky., 840 S.W.2d 814, 821 (1992).
The exact issue was addressed by the United States
District Court for the Eastern District of Kentucky in Lococo v.
Barger, 958 F. Supp. 290 (E.D. Ky. 1997), not cited by either
party.
We agree with the Court’s disposition of this argument
and adopt the following portion of Lococo as our own:
Like Title VII, the Kentucky Civil Rights
Act, KRS Chapter 344, proscribes certain
unlawful employment practices. In fact, the
general purpose of the Kentucky act is to
provide a means for implementing within the
state the policies embodied in the Federal
Civil Rights Act of 1964, as amended, as well
as other related federal statutes. KRS
344.040(1). It is, therefore, common
practice to look to the federal counterpart
in construing KRS 344. See Palmer v.
International Ass’n of Machinists, 882 S.W.2d
117, 119 (Ky. 1994) (noting that KRS Chapter
344 was modeled after the federal statute,
Title VII of the Civil Rights Act of 1964).
-6-
KRS Chapter 344, however, is not the mirror
image of Title VII in every respect. The
policy statements of the Kentucky act go
further than the federal counterpart. The
Kentucky act, for example, was implemented to
“‘protect ... personal dignity and freedom
from humiliation.’”. Meyers v. Chapman
Printing Co., Inc., 840 S.W.2d 814, 817 (Ky.
1992) (quoting KRS 344.020(1)(b)). The
federal act has no such policy statement.
Id.
In addition, the Kentucky act goes
beyond Title VII in proscribing certain
employment practices. To wit, it is a
violation of a Kentuckian’s civil rights for
an employer to discriminate against an
individual “because the individual is a
smoker or nonsmoker, so long as the person
complies with any workplace policy concerning
smoking.” KRS 344.040(1).
The definition of employee under the
Kentucky act presents another example in
which the acts are dissimilar. It simply
states:
“Employee” means an individual
employed by an employer, but does
not include an individual employed
by his parents, spouse, or child,
or an individual employed to render
services as a domestic in the home
of the employer.
KRS 344.030(5). Clearly, the Kentucky
definition of employee does not contain the
personal staff exception set forth in the
federal counterpart. Had the General
Assembly intended to include such an
exemption, it, presumably, would have done so
explicitly. Consequently, the Court declines
to borrow the exception from federal law and
impose it within the statutory scheme of the
Kentucky Civil Rights Act.
Lococo, 958 F. Supp. at 293-94.
Finally, the County argues that the trial court
submitted an erroneous instruction on the issue of damages to the
jury.
The gist of the County’s argument is that the trial court
-7-
should have used the salary of the assistant position as fixed by
the fiscal court at $26,500 instead of her former salary of
$35,000.
Bernard maintains that her previous salary of $35,000
should be used to determine her damages because, but for the
discrimination, she would have been appointed to the assistant
position at a salary of $35,000 per year instead of being
“demoted” to a lower paying job.
“The appropriate standard for the measurement of a back
pay award is to take the difference between the actual wages
earned and the wages the individual would have earned in the
position that but for discrimination, the individual would have
attained.”
Gunby v. Pennsylvania Electric Co., 840 F.2d 1108,
1119 (3rd Cir. 1988), cert. denied, 492 U.S. 905, 109 S. Ct.
3213, 106 L. Ed. 2d 564 (1989).
The purpose of a back pay award
in a discrimination action is to erase the effects of the
discrimination by construing the hypothetical employment history
of the person discriminated against to determine the amount of
back pay due.
Equal Employment Opportunity Commission v. Ford
Motor Co., 645 F.2d 183, 199 (4th Cir. 1981), rev’d. on other
grounds, Ford Motor Co. v. Equal Employment Opportunity
Commission, 458 U.S. 219, 102 S. Ct. 3057, 73 L. Ed. 2d 721
(1982).
Although the employment history of the person actually
placed in the disputed position is often the best indicator of
the hypothetical employment history of the person discriminated
against, it is not controlling on the issue of back pay.
-8-
Ford,
645 F.2d at 199.
The true focus should be on the probable job
career of the person discriminated against.
Id.
We agree with Bernard that the damages awarded to her
for back pay were justified based on a comparison of what she
actually earned and what she would have earned had the
discrimination not occurred.
The jury was free to award back pay
in a lesser amount under the instruction given by the trial
court, and the fact that their verdict was the maximum as set by
the trial court shows that they believed that, but for the
discrimination, Bernard would have obtained the position at the
salary of $35,000 per year.
NO. 1997-CA-000130-MR
Bernard was represented throughout these proceedings by
appellant, Barbara D. Bonar, a partner in the law firm of
Wolnitzek, Rowekamp, Bender & Bonar (collectively Bonar).
Bonar
was assisted by David Shearer (Shearer), an associate with the
firm, and he also relied on the firm’s paralegals, law
assistants, and law clerks for support.
The County was
represented by four attorneys during the trial.
The case lasted
five years, and the record shows that it was vigorously defended
by the County.
Following the jury’s return of a verdict in favor of
Bernard, Bonar applied for attorney fees for successful
prosecution of the case under KRS 344.450, which provides:
Any person injured by any act in violation of
the provisions of this chapter shall have a
civil cause of action in Circuit Court to
-9-
enjoin further violations, and to recover the
actual damages sustained, together with the
costs of the law suit. The court’s order or
judgment shall include a reasonable fee for
the plaintiff’s attorney of record and any
other remedies contained in this chapter.
(Emphasis added.)
In her affidavit in support of her motion for attorney
fees, Bonar sought an hourly rate of $150 for herself and $110
for Shearer.
Paralegals were billed at the rate of $70 per hour,
law assistants at $50 per hour, and law clerks at the rate of $40
and $35 per hour.
Bonar sought a total of $77,916, representing
a total of 652.45 hours.
Bonar further stated in her affidavit
that the billing rates were “fair, reasonable, and customary in
the Northern Kentucky area for legal services rendered of this
nature.”
Bonar also attached a detailed, itemized billing
statement to her motion.
In response to Bonar’s motion, the County agreed that
Bonar was entitled to attorney fees under KRS 344.350, but
disputed the amount sought by Bonar.
First, the County pointed
out that Bernard only succeeded on one of her claims and stated
that because she did not prevail on all of her claims, Bonar was
not entitled to a fee of $78,000.
The County also alleged that
the hourly rates for Bonar and Shearer were not reasonable and
that the prevailing hourly rate in Northern Kentucky was $100 per
hour.
A hearing on Bonar’s motion was held on August 20,
1996.
Both the trial and this hearing were presided over by a
-10-
Special Judge from the 18th Judicial Circuit, which includes
Pendleton, Harrison, Nicholas, and Robertson counties, which are
near Kenton County.
attorney fees.
The trial judge expressed his opinion on
He stated that the highest hourly rate in his
circuit is $75 per hour but allowed $100 per hour for Kenton
County because he understands that attorneys charge more in the
greater Cincinnati area.
He considered such things as inter-
office consultations between attorneys and research on issues
which appeared in the statutes as overhead, not to be billed
separately.
He opined that two attorneys were unnecessary in
many cases.
As for paralegals, the trial judge took issue with
the fact that paralegals were paid separately, especially when
they were paid $10 per hour but billed at $70.
He opined that
fees for paralegals, secretarial work, and office overhead were
included in the attorney fees.
The trial judge stated that he
would allow Bonar to submit additional evidence, her billing
statements, but that he would most likely set the hourly rate at
$100.
The trial judge further indicated that he would go through
the statement submitted by Bonar with a pen, and line through
what he would disallow, to calculate Bonar’s fee.
Bonar filed additional evidence regarding attorney fees
with the trial court, which included affidavits from several
local attorneys stating that the fee sought by Bonar was
reasonable.
Bonar also filed another itemized statement with the
trial court seeking an additional $3,362.50 for time spent on the
-11-
case since the previous statement, raising the total to
$81,416.20.
On December 16, 1996, the trial court entered an order
granting Bonar attorney fees in the amount of $49,825.
The order
provided:
Attached to this order is a copy of counsel’s
itemized list of services. Items disallowed
are crossed from said list. Disallowed items
include services by non-attorneys,
interoffice consultations, and repetitive or
unnecessary services. An hourly rate of
$100.00 per hour was applied to the remaining
time. Said rate represents a reasonable rate
for the 16th judicial circuit.
Kentucky, through Meyers v. Chapman Printing Co., Inc.,
Ky., 840 S.W.2d 814, 826 (1992), has adopted the approach used by
the United States Supreme Court in Hensley v. Eckerhart, 461 U.S.
424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), to determine the
appropriate attorney fees owed to counsel for a prevailing party
where the fee is authorized by statute to insure effective access
to the judicial process for persons with civil rights grievances.
In Hensley, the Court noted that the most logical starting point
for this determination is to multiply the number of hours which
were reasonably expended on litigation by a reasonable hourly
rate, which would produce a “lodestar” figure, which may then be
adjusted for special factors in the litigation.
See Hensley, 461
U.S. at 433, 103 S. Ct. at 1939, 76 L. Ed. 2d at 50.
While the
parties have found no published Kentucky decisions dealing
directly with what special factors require an adjustment, we can
look at historic decisions to see the elements to be considered
-12-
in awarding attorney fees in Kentucky.
In the case of Harding’s
Adm’r. v. Harding, 132 Ky. 133, 116 S.W. 305 (1909), the Court
recognized the attorney fee should be reasonable, taking into
consideration:
the character of services rendered; time
employed; size of the estate; and, the extent of the litigation.
In Axton v. Vance, 207 Ky. 580, 269 S.W. 534, 536-37 (1925), the
Court considered these elements as historic considerations in
awarding attorney fees in Kentucky:
(a) Amount and character of services
rendered.
(b) Labor, time, and trouble involved.
(c) Nature and importance of litigation or
business in which the services were rendered.
(d) Responsibility imposed.
(e) The amount of money or the value of
property affected by the controversy, or
involved in the employment.
(f) Skill and experience called for in the
performance of the services.
(g) The professional character and standing
of the attorneys.
(h) The results secured.
Greenway v. Irvine’s Ex’r., 234 Ky. 597, 28 S.W.2d 760
(1930) stressed variables peculiar to the facts and circumstances
of each case in fixing an attorney fee.
Realizing the trial
court should have a handle on these variables, the Court in
Motch’s Ex’x. v. Motch’s Ex’rs., 306 Ky. 334, 207 S.W.2d 759
(1948) said the attorney fee should be left largely to the trial
court’s discretion, and Martin v. Martin’s Ex’rs., 311 Ky. 164,
223 S.W.2d 345, 347 (1949) added that in seeking the
reasonableness of the attorney fee in probate cases, the trial
court should consider:
-13-
(1) the time and labor required, the novelty
and difficulty of the questions involved and
the skill requisite properly to conduct the
cause; (2) whether the acceptance of
employment in the particular case will
preclude the lawyer’s appearance for others
in cases likely to arise out of the
transaction, and in which there is a
reasonable expectation that otherwise he
would be employed, or will involve the loss
of other business while employed in the
particular case or antagonisms with other
clients; (3) the customary charges of the Bar
for similar services; (4) the amount involved
in the controversy and the benefits resulting
to the client from the services; (5) the
contingency or the certainty of the
compensation; (6) the character of the
employment, whether casual or for an
established or constant client.
The Court added that, “No one of these considerations in itself
is controlling.
They are mere guides in ascertaining the real
value of the service.”
Id.
The case of In re Citizens Fidelity
Bank & Trust Company, Ky. App., 550 S.W.2d 569, 570 (1977)
(citing Boden v. Boden, Ky., 268 S.W.2d 632 (1954)) gave us eight
variables to determine a reasonable attorney fee:
(a) Amount and character of services rendered
(b) Labor, time and trouble involved
(c) Nature and importance of the litigation
as business in which services were rendered
(d) Responsibility imposed
(e) The amount of money as the value of
property affected by the controversy, as
involved in the employment
(f) Skill and experience called for in the
performance of the services
(g) The professional character and standing
of the Attorneys
(h) The results secured[.]
Finally, the Kentucky Rules of Professional Conduct (KRPC) (Rules
Of The Supreme Court, Rule 3.130) Rule 1.5(a) list these factors
-14-
to be considered in the determination of the reasonableness of a
fee:
(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, 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;
(6) The 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.
Elements used to compile the “lodestar figure,” before
adjustments, are also not set in stone.
For instance, the trial
judge stated at the hearing that he was going to completely
disallow hours for Shearer’s attendance at the trial because he
was unaware of any benefit provided by Shearer’s presence.
We
note that seeking fees for more than one attorney is not
unreasonable per se in a complex and difficult case.
See Meyers,
840 S.W.2d at 825, holding that it was proper to allow attorney
fees for three attorneys where the case was “sufficiently complex
and difficult to prosecute.”
We also note that the County was
represented by four attorneys at trial.
If we were deciding this
issue de novo, and not for abuse of discretion, we would probably
conclude that Shearer provided tangible assistance.
Even the
trial court recognized that a prevailing party is not prohibited
-15-
from sending an extra attorney into the court to observe the
trial, as he/she may be needed to plan strategy, elicit
testimony, and evaluate facts and law.
Dailey v. Societe
Generale, 915 F. Supp. 1315, 1327 (1996).
In this case, whether
two attorneys are needed is a judgment call by the trial court
and we cannot go so far as to say he abused his discretion.
The time spent by Bonar in consultation with other
individuals in her firm on this case is also a judgment call.
To
the extent that these discussions were essential to Bernard’s
case, such as planning strategy and preparing for trial,
conferences and consultations between co-counsel can be
considered a reasonable expenditure of time and may be
compensable.
But again, this is a judgment call by the trial
court that we review for an abuse of discretion.
Time incurred by non-attorney support staff such as
paralegals, law clerks, and assistants could be part of overhead
included in a flat attorney fee rate or billed separately.
The
United States Supreme Court addressed this issue in Missouri v.
Jenkins by Agyei, 491 U.S. 274, 288, 109 S. Ct. 2463, 2471, 105
L. Ed. 2d 229, 243, (1989) (citing Cameo Convalescent Center,
Inc. v. Senn, 738 F.2d 836, 846 (7th Cir. 1984), cert. denied,
469 U.S. 1106, 105 S. Ct. 780, 83 L. Ed. 2d 775 (1985)):
Where, however, the prevailing practice is to
bill paralegal work at market rates, treating
civil rights lawyers’ fee requests in the
same way is not only permitted . . . but also
makes economic sense. By encouraging the use
of lower cost paralegals rather than
attorneys wherever possible, permitting
-16-
market-rate billing of paralegal hours
“encourages cost-effective delivery of legal
services and, by reducing the spiraling cost
of civil rights litigation, furthers the
policies underlying civil rights statutes.”
Once the lodestar calculation is reached, the trial court may
then again adjust the fee upward or downward based upon the
results achieved, recognizing the fact that Bernard did not
prevail on all her claims.
Hensley, 461 U.S. at 434, 103 S. Ct.
at 1940, 76 L. Ed. 2d at 51.
Hensley recognizes that when a
party has only limited success at trial, the lodestar amount may
be excessive for the results achieved.
1941, 76 L. Ed. 2d at 52.
Id. at 436, 103 S. Ct. at
The Hensley opinion contains a well-
reasoned analysis as to how to account for a party’s success in
awarding attorney fees in this type of action, and we adopt the
following portion of that opinion as our own:
The product of reasonable hours times a
reasonable rate does not end the inquiry.
There remain other considerations that may
lead the district court to adjust the fee
upward or downward, including the important
factor of the “results obtained.” This
factor is particularly crucial where a
plaintiff is deemed “prevailing” even though
he succeeded on only some of his claims for
relief. In this situation two questions must
be addressed. First, did the plaintiff fail
to prevail on claims that were unrelated to
the claims on which he succeeded? Second,
did the plaintiff achieve a level of success
that makes the hours reasonably expended a
satisfactory basis for making a fee award?
In some cases a plaintiff may present in
one lawsuit distinctly different claims for
relief that are based on different facts and
legal theories. In such a suit, even where
the claims are brought against the same
defendants--often an institution and its
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officers, as in this case--counsel’s work on
one claim will be unrelated to his work on
another claim. Accordingly, work on an
unsuccessful claim cannot be deemed to have
been “expended in pursuit of the ultimate
result achieved.” The congressional intent
to limit awards to prevailing parties
requires that these unrelated claims be
treated as if they had been raised in
separate lawsuits, and therefore no fee may
be awarded for services on the unsuccessful
claim.
It may well be that cases involving such
unrelated claims are unlikely to arise with
great frequency. Many civil rights cases
will present only a single claim. In other
cases the plaintiff’s claims for relief will
involve a common core of facts or will be
based on related legal theories. Much of
counsel’s time will be devoted generally to
the litigation as a whole, making it
difficult to divide the hours expended on a
claim-by-claim basis. Such a lawsuit cannot
be viewed as a series of discrete claims.
Instead the district court should focus on
the significance of the overall relief
obtained by the plaintiff in relation to the
hours reasonably expended on the litigation.
Where a plaintiff has obtained excellent
results, his attorney should recover a fully
compensatory fee. Normally this will
encompass all hours reasonably expended on
the litigation, and indeed in some cases of
exceptional success an enhanced award may be
justified. In these circumstances the fee
award should not be reduced simply because
the plaintiff failed to prevail on every
contention raised in the lawsuit. Litigants
in good faith may raise alternative legal
grounds for a desired outcome, and the
court’s rejection of or failure to reach
certain grounds is not a sufficient reason
for reducing a fee. The result is what
matters.
If, on the other hand, a plaintiff has
achieved only partial or limited success, the
product of hours reasonably expended on the
litigation as a whole times a reasonable
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hourly rate may be an excessive amount. This
will be true even where the plaintiff’s
claims were interrelated, nonfrivolous, and
raised in good faith. Congress has not
authorized an award of fees whenever it was
reasonable for a plaintiff to bring a lawsuit
or whenever conscientious counsel tried the
case with devotion and skill. Again, the
most critical factor is the degree of success
obtained.
Application of this principle is
particularly important in complex civil
rights litigation involving numerous
challenges to institutional practices or
conditions. This type of litigation is
lengthy and demands many hours of lawyers’
services. Although the plaintiff often may
succeed in identifying some unlawful
practices or conditions, the range of
possible success is vast. That the plaintiff
is a “prevailing party” therefore may say
little about whether the expenditure of
counsel’s time was reasonable in relation to
the success achieved. In this case, for
example, the District Court’s award of fees
based on 2,557 hours worked may have been
reasonable in light of the substantial relief
obtained. But had respondents prevailed on
only one of their six general claims . . . a
fee award based on the claimed hours clearly
would have been excessive.
There is no precise rule or formula for
making these determinations. The district
court may attempt to identify specific hours
that should be eliminated, or it may simply
reduce the award to account for the limited
success. The court necessarily has
discretion in making this equitable judgment.
This discretion, however, must be exercised
in light of the considerations we have
identified.
Id. at 434-37, 103 S. Ct. at 1940-1941, 76 L. Ed. 2d at 51-52
(footnotes omitted) (citations omitted).
In reviewing the trial court’s order of December 16,
1996, in light of the above, the Court is of the opinion that the
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final amount awarded as an attorney fee does not amount to an
abuse of discretion and must be affirmed.
JOHNSON, JUDGE, CONCURS.
GUIDUGLI, JUDGE, DISSENTS AND FURNISHES SEPARATE
OPINION.
GUIDUGLI, JUDGE, DISSENTING.
While I agree with the majority’s opinion of Kenton
County’s appeal (No. 1997-CA-000037-MR), I must respectfully
dissent from the majority’s position in Bonar’s appeal (No. 1997CA-000130-MR) as I believe the trial court erred in reducing the
amount of attorneys’ fees sought by Bonar.
As to the hourly rate, one of the things the trial
court is to take into consideration is the “standard of fees at
the local bar.”
(1932).
Baxter v. Hubbard, Ky., 47 S.W.2d 743, 746
Bonar submitted a great deal of evidence in support of
the hourly rate sought for herself and Shearer, including
affidavits from local practitioners, attorneys’ fees orders from
similar cases tried in Kenton County, and a local judicial study
of local attorneys’ fees.
The County submitted no evidence in
support of its claim that $100 was a reasonable hourly rate and
the trial judge cited no evidence in support of his finding that
$100 per hour was a reasonable hourly rate for the 16th judicial
circuit.
In setting the hourly rate the trial court ignored
Bonar’s evidence and established an hourly rate which is
unsupported by the evidence presented.
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I also believe that the trial court erred in reducing
the number of hours expended.
First, the trial judge stated at
the hearing that he was going to completely disallow hours for
Shearer’s attendance at the trial because he was unaware of any
benefit provided by Shearer’s presence.
Fees sought for more
than one attorney are not unreasonable per se in a complex and
difficult case.
See Meyers, 840 S.W.2d at 825 (holding that it
was proper to allow attorneys’ fees for three attorneys where the
case was “sufficiently complex and difficult to prosecute”).
In
this case the County was represented by four attorneys at trial,
the County did not object to the hours spent by Shearer at trial,
and there was no evidence to support the trial court’s conclusion
that Shearer provided no tangible assistance.
A prevailing party
is not prohibited from sending an extra attorney into the court
to observe the trial as he may be needed to plan strategy, elicit
testimony, and evaluate facts and law.
Dailey v. Societe
Generale, 915 F.Supp. 1315, 1327 (1996).
I further believe the trial court erred in completely
disallowing all time incurred by non-attorney support staff such
as paralegals and law clerks and assistants.
As noted by the
majority, the United States Supreme Court addressed this issue in
Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d
229 (1989), holding:
Where, however, the prevailing practice is to
bill paralegal work at market rate, treating
civil rights lawyers’ fee requests in the
same way is not only permitted...but also
makes economic sense. By encouraging the use
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of lower cost paralegals rather than
attorneys wherever possible, permitting
market-rate billing of paralegal hours
“encourages cost-effective delivery of legal
services and, by reducing the spiraling cost
of civil rights litigation, furthers the
policies underlying civil rights statutes.”
Jenkins, 491 U.S. at 288, 109 S.Ct. at 2471, 105 L.Ed.2d at 243,
citing Cameo Convalescent Center, Inc. v. Senn, 738 F.2d at 836,
847 (7th Cir. 1984).
Time spent by law clerks and assistants is
clearly recoverable provided it is reasonable and not overly
excessive.
See Polacco v. Curators of the University of
Missouri, 37 F.3d 366 (1994).
I believe this matter should be remanded to the trial
court for reconsideration of the amount of attorneys’ fees due
Bonar pursuant to the dictates of Meyers and Hensley.
BRIEF FOR
APPELLANTS/APPELLEES:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE/APPELLANTS:
Joseph E. Conley, Jr.
Ann M. Henn
Crestview Hills, KY
Barbara D. Bonar
Covington, KY
ORAL ARGUMENT FOR
APPELLANTS/APPELLEES:
Joseph E. Conley, Jr.
Crestview Hills, KY.
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