Succession of Josephine Grieshaber Widow of Charles C. Wagner

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

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MAY 24, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

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