United States District Court, N.D. Texas, Dallas Division
Albert G. Hill, III, Plaintiff,
William Schilling, et al., Defendants.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
HARRIS TOLIVER UNITED STATES MAGISTRATE JUDGE
to the District Judge's Amended Order of
Reference, Doc. 1940, Margaret Keliher, as
Independent Executor of the Estate of Albert G. Hill, Jr.,
Deceased's, Application and Brief in Support of
Attorneys' Fees and Costs Pursuant to the Court's
December 10, 2018 Memorandum Opinion and Order (ECF
1920) is before the Court for a recommended disposition.
For the reasons that follow, Keliher should be awarded
attorneys' fees in the amount of $27, 378.50 and costs of
the limited scope of the issue before the Court, an extensive
narrative of the parties' dispute is not necessary. To be
brief, in December 2018, District Judge Sam A. Lindsay held
Plaintiff, Albert G. Hill, III (“Hill III”) in
civil contempt for disobeying an order entered on July 10,
2017 (the “July 2017 Order”). Doc. 1920 at 11.
The July 2017 Order was precipitated by an emergency motion
(the “Emergency Motion”) filed by then Defendant
Albert G. Hill, Jr. (“Hill Jr.”) regarding Hill
III's attempts to violate a temporary restraining order
(“TRO”) the Court had entered just weeks earlier.
See Doc. 1754. The July 2017 Order directed Hill III
to neither remove nor attempt to remove First Tennessee Bank
NA (“FTB”) as trustee of three trusts that Hill
Jr. had established for the benefit of Hill III's
children. Doc. 1757 at 2. It subsequently came to light that
Hill III had attempted to do just that. Doc. 1920 at 11.
Accordingly, on November 16, 2018, Judge Lindsay held a
contempt hearing to consider imposing sanctions against Hill
III (the “2018 Contempt Hearing”). Doc. 1918.
Court thereafter held Hill III in civil contempt and
determined that his actions had caused his opponent to incur
unnecessary legal fees and costs. Doc. 1920 at 11. The Court
further ordered that, as a sanction, Hill III would be
required to pay the Estate of Hill, Jr. its reasonable and
necessary attorney's fees and costs incurred in: (1)
bringing the motion that precipitated the court's July
2017 Order; and (2) preparing for and participating in the
2018 Contempt Hearing. Doc. 1920 at 18. The fee issue has
been fully briefed and is ripe for ruling.
Court of Appeals for the Fifth Circuit employs a two-step
process when determining an award of attorneys' fees.
Jimenez v. Wood Cnty., Tex., 621 F.3d 372, 379 (5th
Cir. 2010) (citing Rutherford v. Harris Cnty., Tex.,
197 F.3d 173, 192 (5th Cir. 1999)). The first step is the
lodestar calculation, “which is equal to the number of
hours reasonably expended multiplied by the prevailing hourly
rate in the community for similar work.” Id.
In evaluating the reasonableness of the number of hours
claimed, courts determine “whether the total hours
claimed are reasonable [and] also whether particular hours
claimed were reasonably expended.” La. Power &
Light Co. v. Kellstrom, 50 F.3d 319, 325 (5th Cir.
1995). The party seeking attorneys' fees bears the burden
of establishing the prevailing market rate for similar
services. Blum v. Stenson, 465 U.S. 886, 896 n.11
(1984). Following the calculation of the lodestar, the Court
then must determine whether to adjust the fee on the basis of
several other factors that may be of significance in the
particular case. There is a strong presumption that the
lodestar calculation represents the reasonable fee. City
of Burlington v. Dague, 505 U.S. 557, 562 (1992).
Parties' Arguments and Analysis
Keliher, as executor of Hill Jr.'s Estate,
(“Keliher”) has submitted a brief and supporting
documentation requesting a total fee award of $30, 682.50 and
costs of $15.00. Doc. 1928 at 6. The requested fee is
includes: (1) $27, 378.50 for fees incurred in July 2017 and
November 2018, which generally encompasses the period leading
up to the entry of the July 2017 Order as well as
Keliher's preparation for and attendance at the 2018
Contempt Hearing; and (2) $3, 304.00 for fees incurred in
December 2018 in connection with drafting the instant motion.
Doc. 1928 at 6.
initial matter, because Hill III does not object to
Keliher's attorneys' proposed hourly rates, and
considering the Court's experience in assessing the
reasonableness of attorney billing rates, the Court finds
that the hourly rates charged in this case were reasonable.
See Islamic Ctr. of Miss., Inc. v. City of
Starkville, 876 F.2d 465, 469 (5th Cir. 1989)
(“When that rate is not contested, it is prima
facie reasonable.”). As to the hours billed, Hill
III raises only a limited number of objections, which will be
addressed in seriatim below.
Hill III argues that Keliher seeks fees of $596.50 for
services performed on July 1 and July 2, 2017, which predate
the July 3 email that referred to the removal of FTB as
trustee and was the basis for the Emergency Motion and the
July 2017 Order. Doc. 1932 at 2. Similarly, Hill III contends
that Keliher seeks $387.50 for services performed after the
filing of the Emergency Motion, which was not part of the
“bringing” of the motion for which Judge Lindsay
permitted a fee award. Doc. 1932 at 2.
responds that the fees incurred prior to July 3, 2017 are
recoverable because they stemmed from FTB's communication
with Hill Jr. regarding one of his grandchildren's
request for a trust disbursement that would have violated the
TRO and which was then relied upon by Hill Jr. in his
Emergency Motion. Doc. 1941 at 2. As to the post-filing fees
of $387.50, Keliher contends that they directly related to
the July 2017 Order because they were incurred in reviewing
the Order itself. Doc. 1941 at 2. The Court concurs with
Keliher for essentially the reasons she states. Any other
reading would violate the spirit of Judge Lindsay's order
authorizing a fee award.
Hill III asserts that for the services rendered from July 5
to July 7, 2017, counsels' time entries are block-billed
and thus not capable of complete segregation. Doc. 1932 at
2-3. He suggests a 25% across-the-board reduction. Doc. 1932
at 3. Keliher responds that only a few entries during this
referenced period were in block format, and counsel excluded
an appropriate amount of time for entries that did not relate
to the Emergency Motion. Doc. 1941 at 3.
term ‘block billing' refers to the disfavored
‘time-keeping method by which each lawyer and legal
assistant enters the total daily time spent working on a
case, rather than itemizing the time expended on specific
tasks.'” Hoffman v. L & M Arts, No.
3:10-CV-0953-D, 2015 WL 3999171, at *4 n.5 (N.D. Tex. July 1,
2015) (Fitzwater, J.) (quotation omitted). The practice
“prevents the court from accurately determining the
time spent on any ...