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Hill v. Schilling

United States District Court, N.D. Texas, Dallas Division

September 30, 2019

Albert G. Hill, III, Plaintiff,
v.
William Schilling, et al., Defendants.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          RENEE HARRIS TOLIVER UNITED STATES MAGISTRATE JUDGE

         Pursuant 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 $15.00.

         A. Procedural History

         Given 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.

         The 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.

         B. Applicable Law

         The 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.[1] There is a strong presumption that the lodestar calculation represents the reasonable fee. City of Burlington v. Dague, 505 U.S. 557, 562 (1992).

         C. Parties' Arguments and Analysis

         Margaret 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.

         As an 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.

         First, 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.

         Keliher 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.

         Second, 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.

         “The 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 ‚Äúprevents the court from accurately determining the time spent on any ...


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