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In the Matter of the Attorney's Fees and Costs In the Termination of Parental Rights To v. State of Wyoming

January 25, 2013

IN THE MATTER OF THE ATTORNEY'S FEES AND COSTS IN THE TERMINATION OF PARENTAL RIGHTS TO: NRF AND JWF, MINOR CHILDREN, DONALD LEE TOLIN, ATTORNEY FOR LMB, NATURAL MOTHER, APPELLANT (RESPONDENT),
v.
STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES, APPELLEE (PETITIONER).



Appeal from the District Court of Natrona County The Honorable Catherine E. Wilking, Judge

The opinion of the court was delivered by: Golden, Justice.

Before KITE, C.J., and GOLDEN,*fn1 HILL, VOIGT, and BURKE, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] Attorney Donald L. Tolin, who was court appointed to represent an indigent parent in a parental rights termination action filed by the State of Wyoming, Department of Family Services (DFS), which is a state agency legislatively obligated to pay for the costs of the action including the indigent parent's attorney fee, Wyo. Stat. Ann. § 14-2-318(a) and (b) (LexisNexis 2011), appeals the district court's fifty percent reduction of his requested amount of attorney fees for his representation in this action. As more fully explained below, we hold that the district court did not abuse its discretion by reducing Mr. Tolin's fee application and, therefore, we affirm that fee reduction.

ISSUE

[¶2] Mr. Tolin states the issue as:

Whether or not the [district court] abused its discretion in cutting attorney's fee by 50%, and whether or not its decision was unsupported by the evidence, arbitrary, and capricious.

STANDARD OF REVIEW

[¶3] In the usual case where the trial court observed the attorney's work first hand from the start of the litigation through its conclusion, an appellate court plays a limited role in reviewing a trial court's award of an attorney's fee. In the usual case, the appellate court customarily defers to the trial court's judgment and reviews the trial court's attorney fee award for abuse of discretion. Joe's Concrete & Lumber, Inc., v. Concrete Works of Colorado, Inc., 2011 WY 74, ¶ 12, 252 P.3d 445, 448 (Wyo. 2011); Ultra Resources, Inc. v. Hartman, 2010 WY 36, ¶ 149, 226 P.3d 889, 935 (Wyo. 2010). "We can hardly think of a sphere of judicial decisionmaking in which appellate micromanagement has less to recommend it." Fox v. Vice, ---U.S.---, 131 S.Ct. 2205, 2216, 180 L.Ed.2d 45 (2011). The instant case is not, however, the usual case because District Court Judge Scott Skavdahl, who observed Mr. Tolin's work from the start of the litigation through the end of the trial, resigned from his state judicial office and entered his federal judicial office long before Mr. Tolin filed his application for an award of his attorney's fee. By the time Mr. Tolin filed his fee application, District Court Judge Catherine Wilking, appointed to fill Judge Skavdahl's vacated state judicial office, had been in that office nine months. It was Judge Wilking, not Judge Skavdahl, who reviewed and acted upon Mr. Tolin's fee application. In Mr. Tolin's appellate brief, he does not assert that our standard of review of his fee award is other than an abuse of discretion. We are confident that given Judge Wilking's experience and knowledge, both as a lawyer before her appointment to the trial bench and as a trial judge after that appointment, she was well-qualified to consider judiciously Mr. Tolin's fee application. We also would note here that we agree with many federal appellate courts that appellate judges, such as those on this Court, "are themselves experts in assessing the reasonableness of an attorney's fee award, and . . . the appellate court may independently review the record, or itself set the fee." New Jersey v. EPA, 687 F.3d 386, 390 (D.C. Cir. 2012) (per curiam) (quoting Envtl. Def. Fund, Inc. v. EPA, 672 F.2d 42, 54 (D.C. Cir. 1982)); see also ACLU of Georgia v. Barnes, 168 F.3d 423, 432 (11th Cir. 1999); Halderman v. Pennhurst State Sch. & Hosp., 49 F.3d 939, 942-45 (3rd Cir. 1995); Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 181 (4th Cir. 1994); and Sidag Aktiengesellschaft v. Smoked Foods Prods. Co., Inc., 960 F.2d 564, 566-67 (5th Cir. 1992).

BACKGROUND

[¶4] On March 16, 2009, District Court Judge Scott Skavdahl appointed Mr. Tolin to represent indigent LMB in a termination of parental rights action filed by the Wyoming Department of Family Services (DFS). State law requires DFS to pay for the costs of the action, including the attorney's fee for the indigent parent. Wyo. Stat. Ann. § 14-2-318(a) and (b) (LexisNexis 2011). The action was tried before Judge Skavdahl and a six-person jury over seven trial days beginning September 27, 2010, and, with an intervening weekend break, ending October 5, 2010, with the jury's verdict terminating LMB's parental rights. Mr. Tolin timely filed LMB's notice of appeal on October 21, 2010, but on November 30, 2010, pursuant to LMB's decision, he filed a notice withdrawing that appeal.

[¶5] On February 1, 2011, Judge Skavdahl, having on January 31, 2011, resigned from his state judicial office, was installed as Federal Magistrate Judge for the District of Wyoming; on that same date, Judge Catherine Wilking was installed in the state judicial office vacated by Judge Skavdahl.*fn2 On October 26, 2011, some eleven months after Mr. Tolin had filed LMB's notice withdrawing her appeal of the district court's order terminating her parental rights, and nearly nine months after Judge Skavdahl had left his state judicial office, Mr. Tolin filed in state district court his motion for an order approving payment of his attorney's fees in his representation of LMB. His motion included his twenty-six page detailed itemized billing showing that for the period of February 27, 2009, through February 24, 2011, he claimed 487 hours 17 minutes at the hourly rate of $100, for a total of $48,717.00. He also claimed expenses of $334.30. Between early November 2011 and December 14, 2011, DFS filed its response to Mr. Tolin's fee motion, and Mr. Tolin filed his redacted motion as well as a seventy-eight page affidavit and a four-page affidavit, all in support of his fee motion.

[¶6] On December 15, 2011, Judge Wilking held a thirty minute hearing on Mr. Tolin's fee motion. On January 9, 2012, Judge Wilking issued her decision letter, which was followed on January 10, 2012, by her order awarding Mr. Tolin $24,358.50 in fees, a fifty percent reduction from the fees sought in his motion, and $334.30 in expenses. Mr. Tolin timely appealed that order.

DISCUSSION

[¶6] In the district court's decision letter, the court correctly observed the following principles:

Wyoming has adopted the federal "lodestar" test for the determination of the reasonableness of attorney fees. UNC Teton Exploration Drilling, Inc. v. Peyton, 774 P.2d 584 (Wyo. 1989). See Stanbury v. Larsen, 803 P.2d 349 (Wyo. 1990). The lodestar test requires that two factors be considered: (1) whether the fee charged represents the product of reasonable hours times a reasonable rate; and (2) whether other factors of discretionary application should be considered to adjust the fee either upward or downward. UNC Teton, 774 P.2d at 595. The party who is seeking an award of fees has the burden of providing proof of the reasonableness of his fee. See Miles v. CEC Homes, Inc., 753 P.2d 1021 (Wyo. 1988); Jones Land & Livestock v. Federal Land Bank, 733 P.2d 258 (Wyo. 1987). In order to meet that burden of proof, the claimant must present not only an itemized billing reflecting the time and the rate, but there must be evidence demonstrating that the fee was reasonable. UNC Teton.

Hinckley v. Hinckley, 812 P.2d 907, 915 (Wyo. 1991). See also Ultra Resources, Inc., ¶ 162, 226 P.3d at 938. The district court determined that an hourly rate of $100 was a reasonable rate for Mr. Tolin's fee claim in the parental rights termination action and that rate is not an issue in this appeal. Similarly, the district court's award of $334.30 in expenses is not an issue here. The only issue before us is Mr. Tolin's claim that 487 hours 17 minutes is reasonable and the district court abused its discretion by reducing the hours claimed by fifty percent. The district court explained that reduction in its decision letter (emphasis added):

Considering the "reasonable hours" factor, the Court thoroughly reviewed the itemized fees requested by Mr. Tolin and was concerned by several entries and concerned with the "reasonableness" of the hours spent by Mr. Tolin overall. The Court will detail many of those concerns herein, but will also note that the concerns listed are merely illustrative and by no means exhaustive:

1. Mr. Tolin's invoice reflects over four (4) hours of legal research regarding the pretrial memorandum. Yet a review of the pretrial memorandum submitted by Mr. Tolin fails to reveal why that research was undertaken, as no case law is cited by Mr. Tolin in that memorandum and the memorandum does not mention any unique or novel legal issues involved in the termination action;

2. Mr. Tolin's invoice contains many entries for time billed for clerical work, such as walking to and from the courthouse to file documents or to retrieve documents;

3. Much of the time billed by Mr. Tolin is clearly excessive for the actual work done. For example, Mr. Tolin billed thirty (30) minutes to read a Notice of Setting for a Pretrial Conference, a document that would take only a few minutes to read;

4. Mr. Tolin's invoice contains entries for over forty (40) hours of time spent reviewing eight-hundred and nine (809) pages of discovery, which the court finds excessive;

5. The invoice indicates that it took Mr. Tolin approximately twelve (12) hours to review the Department of Family Service's exhibits, which the court finds excessive;

6. Mr. Tolin's billing for actual trial time is also excessive. For example, the invoice contains entries for

17.83 hours billed on September 25, 2010; 17.72 hours billed on September 27, 2010; and 21.49 hours on September 28, 2010.

[¶7] Mr. Tolin voices an initial criticism of the district court's decision, stating "unfortunately, Judge Wilking has made judicial determinations on matters in which she was not directly involved. At the time of trial, Judge Wilking was a private attorney and a contracted Guardian Ad Litem for the State of Wyoming. Prior to that she was a prosecutor for the State of Wyoming in [sic] as an Assistant District Attorney in the Seventh Judicial District." Unfortunately, Mr. Tolin has no one but himself to blame that Judge Skavdahl, who presided over the litigation, did not make the judicial determinations on Mr. Tolin's fee application. Recall that the trial in this case concluded on October 5, 2010; Mr. Tolin withdrew LMB's appeal on November 30, 2010; Judge Skavdahl did not join the federal judiciary until February 1, 2011; and Mr. Tolin did not file his fee application until October 26, 2011. As we said earlier in this opinion, given Judge Wilking's experience and knowledge, both as a lawyer before her appointment to the state trial bench and as a trial judge after that appointment, she was well-qualified to consider judiciously and make judicial determinations about Mr. Tolin's fee application. Combs v. Walters, 518 P.2d 1254 (Wyo. 1974) (per curiam).

[¶8] The overall tenor of Mr. Tolin's argument seems to be that the district court should have accepted his evidentiary submissions (including his bill records) at face value and awarded his fee application in the full amount. To the contrary, the court's discretion in fashioning a fee award "is by no means shackled by" the attorney's billing records; "it is the court's prerogative (indeed, its duty) to winnow out excessive hours." Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 296 (1st Cir. 2001). The district court has the obligation to peruse the fee application with an experienced eye. Foley v. City of Lowell, Mass., 948 F.2d 10, 19 (1st Cir. 1991). We agree with the federal courts from which we adopted the lodestar test, UNC Teton Exploration Drilling Inc. v. Peyton, 774 P.2d 584, 594-95 (Wyo. 1989), that "[b]illing for legal services . . . should not be a merely mechanical exercise. . . . [T]he Court must scrutinize the claim with particular care. . . . A reasonable fee can only be fixed by the exercise of judgment." Copeland v. Marshall, 641 F.2d 880, 888 (D.C. Cir. 1980). This is particularly true where the fee is sought from a public agency like DFS that has the ability to pay with legislatively authorized funds. Id. We agree with the many federal courts that emphasize the importance of "billing judgment." Because the attorney who is seeking an award of fees has the burden of providing proof of the reasonableness of his fee, that attorney must prove he or she has exercised "billing judgment." Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939-40, 76 L.Ed.2d 40 (1983); UNC Teton, 774 P.2d at 594-95; Green v. Adm'rs of Tulane Educ. Fund, 284 F.3d 642, 662 (5th Cir. 2002). "Billing judgment is usually shown by the attorney writing off unproductive, excessive, or redundant hours." Green, 284 F.3d at 662; see also Barnes, 168 F.3d at 428 (fee applicant must exclude from fee application excessive, redundant, or otherwise unnecessary hours that would be unreasonable to bill a client irrespective of the skill, reputation or experience of counsel); National Ass'n of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1327-28 (D.C. Cir. 1982) (fees are not recoverable for nonproductive time; therefore, the fee application should indicate whether nonproductive time or time expended on unsuccessful claims was excluded and, if time was excluded, the nature of the work and the number of hours involved should be stated); Ramos v. Lamm, 713 F.2d 546, 553 (10th Cir. 1983).

[ΒΆ9] Against this backdrop of the fee applicant's burden of proof and the district court's duty to winnow out unproductive, excessive, and redundant hours, we now turn to Mr. Tolin's criticisms of the district court's six enumerated "merely illustrative and by no means exhaustive" concerns about several entries of Mr. Tolin's billing records and the reasonableness of the overall hours claimed by Mr. Tolin. The district court's selection of this short representative list of concerns is understandable, as there is no requirement for a line-by-line or blow-by-blow examination of the fee applicant's entire billing record. Case v. Unified Sch. Dist. No. 23, Johnson Cnty., Kan., 157 F.3d 1243, 1254 (10th Cir. 1998); Foley, 948 F.2d ...


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