Health Education and Welfare Federal Credit Union v. the Peoples State Bank

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-672

HEALTH EDUCATION AND WELFARE FEDERAL CREDIT UNION

VERSUS

THE PEOPLES STATE BANK

**********

APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. 82,294, DIV. B
HONORABLE DEE A. HAWTHORNE, DISTRICT JUDGE

**********

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and
Billy Howard Ezell, Judges.

AFFIRMED.

Bernard Slattery Johnson
Kristina B. Gustavson
Cook, Yancey, King & Galloway
P. O. Box 22260
Shreveport, LA 71120-2260
Telephone: (318) 221-6277
COUNSEL FOR:
Plaintiff/Appellee - Health Education and Welfare Federal Credit Union

Christopher Michael Sylvia
P. O. Box 1200
Many, LA 71449
Telephone: (318) 256-4383
COUNSEL FOR:
Defendant/Appellant - The Peoples State Bank

THIBODEAUX, Chief Judge.

In this redhibition matter, Plaintiff Health Education and Welfare

Credit Union (“HEW”) filed suit against Defendant The Peoples State Bank (“the

Bank”) seeking a return or reduction in the purchase price of a mobile banking unit

sold to HEW because the automated teller machine (“ATM”) on the unit was

defective at the time of the sale. After trial, the trial court ruled in favor of HEW,

finding that the Bank breached the warranties of fitness and fitness for a particular

purpose. The trial court awarded HEW $13,308.00 in specific damages. The trial

court held an evidentiary hearing on the issue of attorney fees and costs. The trial

court issued a final judgment and awarded HEW attorney fees and costs in the

amounts of $53,042.00 and $4,191.19, respectively. We affirm.

I.

ISSUE

We must decide whether the trial court abused its discretion in

awarding $53,042.00 in attorney fees to HEW.1

II.

FACTS AND PROCEDURAL HISTORY

The facts in this matter are not in dispute. The underlying action

stemmed from the sale of a mobile banking unit from the Bank to HEW. The trial

court awarded HEW $13,308.00 for the replacement of a defective ATM that was

part of the mobile banking unit. The trial court held a separate evidentiary hearing

to fix the amount of attorney fees and costs.

In advance of the evidentiary hearing, HEW filed its Motion and

supporting proof seeking $58,962.00 in attorney fees and $7,141.44 in costs. At

1
Neither the underlying award for damages nor the award for costs is challenged on
appeal.

the hearing, counsel for the Bank only generally opposed the amount of attorney

fees sought by HEW. The Bank’s counsel failed to specifically object to any of

HEW’s itemized invoices and was admittedly unprepared to do so. The trial court

granted the Bank’s request to file a supplemental brief to specifically challenge

HEW’s invoices. HEW subsequently filed a brief in reply.

After the evidentiary hearing and after reviewing both parties’ briefs

concerning the invoices, the trial court issued its final judgment and awarded

$53,042.00 in attorney fees and $4,191.19 in costs to HEW. The Bank appeals the

amount of attorney fees awarded.

III.

LAW AND DISCUSSION

Standard of Review

We review an award of attorney fees in a redhibition case for abuse of

discretion. Buteau v. Leleux, 591 So.2d 1261 (La.App. 3 Cir. 1991). As this court

stated in Buteau, “[b]efore this court will disturb an award by the trial court, the

record must clearly reveal that the trier of fact abused its much discretion in

making the award.” Id. at 1266 (citations omitted).

Discussion

The supreme court articulated ten factors to be considered in

reviewing the reasonableness of an award of attorney fees: “(1) the ultimate result

obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4)

amount of money involved; (5) extent and character of the work performed; (6)

legal knowledge, attainment, and skill of the attorneys; (7) number of appearances

made; (8) intricacies of the facts involved; (9) diligence and skill of counsel; and

(10) the court’s own knowledge.” State, Dep’t of Transp. and Dev. v. Williamson,

2

597 So.2d 439, 442 (La.1992). The supreme court noted that these factors were

derived from Rule 1.5(a) of the Rules of Professional Conduct. Id.

A trial court is afforded much discretion in awarding attorney fees in a

redhibition case. Dailey v. The Home Furnishings Store, 02-1225 (La.App. 4 Cir.

9/17/03), 857 So.2d 1051. Attorney fees should be awarded on a case-by-case

basis after examining the factors listed above. It is not per se unreasonable, as a

matter of law, for the attorney fees award to be greater than the award for damages.

Id.

At the evidentiary hearing in this matter, the trial court was presented

with a plentitude of documentary evidence. It is clear from reviewing the trial

court’s ruling and reasons for judgment that the court meticulously analyzed that

evidence before awarding attorney fees. We see no reason to re-hash its thorough

analysis, and we find no abuse of discretion in the amount of attorney fees

awarded. Thus, we affirm, and we adopt the trial court’s well-reasoned opinion as

our own. Its opinion is incorporated by reference as Appendix “A” to this opinion.

IV.

CONCLUSION

For the reasons articulated above, we affirm the judgment of the trial

court, adopt its opinion as our own, and incorporate its opinion by reference. Costs

of this appeal are assessed against The Peoples State Bank.

AFFIRMED.

3

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1

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D
HEALTH EDUCATION AND DOCKET NUMBER 82
294 B s
WELFARE FEDERAL CREDIT
UNION N

VERSUS 10TH JUDICIAL DISTRICT COUR

THE PEOPLE
S STATE BANK NATCHITOCHES PARISH LOUI ANA

RULING AND REASONS FOR RULING
CONCERNING ATTORNEY FEES AND COSTS

The Court previously awarded the
plaintiff Health Education and Welfare
Federal Credit Union HEW the amount of
13
for the
00
308 replacement of a
defective ATM which was a
part of a mobile banking unit MBU that was sold

to HEW by the defendant The People
s State Bank PSB The court also
awarded reasonable
attorney fees and costs to HEW to be determined at an

evidentiary hearing to fix the amount to be awarded The reader is referred to the

s written reasons for
Court
judgment concerning the case on the merits which is

incorporated herein by reference

FACTS

HEW filed its Motion and
Application for Court to Fix Attorney
s Fees with
attached supporting proof i
e invoices documents affidavits etc HEW is

seeking 58
00 in attorneys fees and 7
962 44
1 41 in costs This amount of

attorneys fees includes 5
000 estimated post judgment future fees The

defendant PSB filed a Response to Plaintiff
s Memorandum in Support of Motion
and Application for Court to Fix
s Fees Without any particular basis for
Attorney
its argument PSB asserted that
s fees should be fixed in the amount of
attorney

00
7
5 00 one half of the amount awarded to replace the
defective ATM machine
built in the MBU it sold to HEW

20
ynuf
c
v
r
iDtisthe
4
C
t
d
I
f i tf iC
i 1DC

1

At the hearing PSB was not prepared to argue in opposition to any specific

charge on the invoices submitted and filed in the record by HEW
s counsel While

PSB did raise general questions about whether it was reasonable for HEW to have

two attorneys for the trial and whether the redacted time entries should be

considered it was s
PSB position that the amount awarded to HEW for

replacement of the ATM should essentially be the only or main consideration in

determining attorney
s fees PSB argued that the attorney
s fees should be set at

no more than the amount awarded for replacement of the ATM
Ultimately PSB
s

counsel asked for permission to file a
post hearing brief in which he would address

the individual invoices entered in the record The Court granted his request and

allowed a response to be filed
by HEW Consequently HEW felt it necessary to

respond

ANALYSIS

Attorney fees are only recoverable when authorized by statute or contract

Fontenot v State Department
of Public Safety and Corrections 625 So
2d 1 122

1124 La
App 1 1993 The trial court generally has much discretion in setting
Cir

an award of attorney fees Short v Plantation
Management Corp 781 So
2d 46

65 La
l 2000 While a court
App s attorney fee award should not be
modified on

appeal absent a showing of an abuse of discretion it is not without
parameters but

is dependent on the reasonableness
of a particular sum Id This reasonableness

inquiry applies where attorney fees are established
by statute as well as by
contractual agreement
City of aton Rouge v Stauffer Chemical Company 500

2d 397 400
So 401 1987
La
A trial court has
great discretion in awarding attorney
s fees in a redhibition
case
Dailey v The Home Furnishings Store 2002
1225 La App 4 Cir 9
03
1 7

2

t

857 So
2d 1051 citing Philippe v Browning Arms Company 395 So
2d 310 La

s fees should be awarded on a case
1980 Attorney by basis after examining

many factors It is not unreasonable as a matter of law for the
attorneys fees to be

greatex than the damage award Id

The Louisiana Supreme Court in State
Department of Transportation and

Development v Williamson 597 So
2d 439 441
42 La
1992 set out the factors

to be considered
by a court in reviewing the reasonableness of an award of attorney

fees

1 the ultimate result obtained 2 the responsibility incurred 3 the
importance of the litigation 4 amount of money involved 5 extent
and character of the work
performed 6 legal knowledge attainment
and skill of the
attorneys 7 number of appearances made 8
intricacies of the facts involved 9 diligence and skill of
counsel and
10 the court
s own
knowledge
The Supreme Court noted that these factors were
derived from Rule 1
a of
5
the Rules of Professional Conduct

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 if apparent to the client 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 the
6 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

HE W
s counsel attached a memorandum
to its application to fix attorney
s
fees and costs
citing a number of cases therein which the Court has considered as

well PSB filed memoranda as well
citing other cases The Court has taken all of

these factors into consideration in
determining the reasonableness of HEW
s

s fees and costs
attorney

3

Hourly Rate Charged

s counsel Kristina B Gustavson graduated with honors from Tulane
HEW

University and has approximately 7 years experience in the field of commercial

law She has had experience practicing in two large law firms known for excellent

work

The Court finds that the skill of the attorney handling the case for HEW is

without question She did excellent work She was well prepared and responsive

to the Court at all times She diligently provided the Court with numerous detailed

and thorough memoranda r
uested by the Court on all legal issues and on the

complicated facts of this case There were numerous documents involved in this

litigation and HEW
s trial counsel had all of these documents well
organized

Presentation of the evidence showed that counsel was well
prepared and skilled at

eliciting the necessary facts and explanations of complicated technical information

and with managing the many documents in court Trial bench books were

prepared for the Court which made the trial run smoothly With lesser skills this

trial could have taken twice the time that it did
Actually PSB did not question the
skill of HEW
s counsel

PSB did not appear to raise
any specific question concerning the hourly rate

charged by HEW
s counsel either but simply left that determination to the Court

HEW trial counsel charged an
hourly rate of 200
00 per hour While this may be

on the high side in our small
community for all of the above reasons the Court

does not find it to be unreasonable

4

s Specific Objections to Charges on HEW Attorney Invoices
PSB

In its hearing memorandum PSB reviewed each invoice and raised
post

several specific objections in regard to some of the charges PSB had specific

objection s invoices
s to 14 of HEW

1 In regard to 13 of those invoices an objection is raised to fees associated
with redacted time entries for a total of 3
00
6 20 in charges

The Court has read each one of the redacted entries and does not find the

redactions inappropriate Nor does the Court find the charges to be unreasonable

which charges appear in large part to be for consultation with client personnel

The attorney had an obligation to keep her client informed as well as to prepare

s objections to fees
personnel for trial Therefore the Court rejects all of PSB

associated with redacted time entries

2 PSB objects to the fees charged by the attorney partner BSJ at the rate of
250 an hour

PSB objects to 4 of these entries 100
00 4 hrs on Invoice No 34508

00 5 hrs on Invoice No 36026 75
125 00 3 hrs on Invoice No 39362 and

00 5 hrs on Invoice No 43453 for a total of 425
125 00 The time charged by

BSJ was minimal The work done by BSJ does not appear to be duplicative
nor

does it appear that BSJ is generall Y overseein g work P erformed bY Ms Gustavson
The charges are reasonable The Court will not disallow these charges

3 PSB objects to fees charged for what it deemed to be excessive time charged
for research

In this regard PSB objected to Invoice No 34508 asserting that HEW
s

counsel had charged b hours for trial attorney researching law for a total of

00
2
1 00 PSB claimed that 900
00 of these charges should be disallowed The

Court has reviewed this invoice and cannot find such charges The only entry

5

which includes the word research was by SSS and was marked N
C

indicating there was no charge There were several entries described as analysis

one for analysis regarding causes of action against PSB and broker for 2 hours

one for analysis of Louisiana law regarding venue and jurisdiction for 0
60 hours

and one for analysis of principal place of business of entities and of Louisiana law

regarding foreign corporation filing suit in Louisiana for 0
40 hours for a total of

3 hours

The Court notes that even if 6 hours were
charged for research it does not

find devoting 6 hours to research excessive There were a number of different

issues that needed to be researched
concerning code articles or statutes as well as
cases relating to those issues In addition throughout the litigation issues arose

which the Court
equested that the attorneys research and brief for the
specificall
Court The Court of its own knowledge is aware of the time necessary to

properly research and address these issues

PSB raised this same
objection to Invoice No 38403 s counsel
HEW

charged 2
1 hours for research PSB
objected to the entire charge and believed that

the expenditure was
unnecessary The court disagrees This issue and how it

applied to this particular case was a serious question This charge was not

inappropriate nor was the charge excessive

There were no more specific
objections to time charged for research

4 As to Invoice No 34508 PSB raises
only 3 other specific objections PSB
objected to the charges for drafting and revising an analysis and for drafting
and revising the petition

On Invoice No 34508 HEW
s counsel
charged 3
5 hours for
Preparing
memorandum regarding potential claims
against People
s State Bank 1
5 hours

6

for Preparing draft petition against People
s State Bank and 5 hours for
1

Revising drafts of analysis and petition

The Court recognizes that a great deal goes into preparing an
analysis as

well as a petition It requires reading and considering all applicable law and

jurisprudence reading and considering all documents related to the cause of action

gathering and assimilating all the facts and circumstances of the case and

considering all of these in relation to one another Then it requires actually writing

a concise and cogent document in this The amount of time charged in this
regard

regard in the Court
s opinion is modest

5 As to Invoice No 36026 PSB raises
only 3 other specific objections PSB
objected charges for review and analysis of the Answer preparation of the
to

corporate deposition notice and preparing for corporate deposition

On Invoice No 36026 HEW
s counsel charged 2
0 hours specifically for

Review and analysis of answer filed
by Peoples State Bank meeting with Bernard
S Johnson
regarding discovery process email correspondence with Jeff Goff

Nora Hinton and Gloria Bowden
regarding same In regard to the review and

analysis of the answer the Court finds that an analysis of the answer that was filed

by PSB should have taken additional time because the affirmative defenses were

raised without any recitation of
purported facts upon which they might be based

requiring a lawyer to sift through the facts to try to determine the basis of each
such claim In addition this time
entry includes other things not referenced in
s objection This time
PSB
charge is not excessive

On Invoice No 36026 counsel for HEW
charged 2
80 hours specifically for

Preparing notice of corporate deposition of Peoples State Bank As in the

preparation of a petition or analysis preparation for a corporate
deposition requires
a review and analysis of all documents factual assertions and law and a

7

consideration of how each may relate to PSB HEW and all of the actors involved

in this litigation The Court finds that 2
80 hours is not excessive

On Invoice No 36026 counsel for HEW also charged 2
00 hours

specifically for Outlining questions for upcoming deposition of Peoples State

Bank 3
20 hours for Preparing outline for upcoming
deposition of Peoples State

Bank and 3
00 hours for Preparing for deposition of
Peoples State Bank and

60 hours for Preparing for deposition of
5
Peoples State Bank traveling to and

from Natchitoches taking deposition of
Peoples State Bank While not expressly

listed in the PSB memorandum these charges
appear to be the 8
2 hours objected

to by PSB for Preparing for corporate deposition

This case is document intensive and the facts
conceming the equipment

complicated and difficult It takes substantial time to
organize and pull together
documents to adequately address the issues in this case In
addition the charge for
60 hours also includes time for
5
traveling to and from Natchitoches and taking

deposition of Peoples State Bank The Court does not find these time
charges to
be excessive

6 As to Invoice No 36730 PSB raises
only 1 other specific objection PSB
objected to 2
5 hours charged for
Drafting letter July 13 2009 regarding
ATM

s counsel charged 2
HEW 5 hours to Prepare letter to Peoples State Bank

regarding ATM and inability to be repaired This letter was prepared and written

by HEW
s counsel at the request of PSB
Again to prepare such a letter requires

organizing all the facts and circumstances in light of all information including that

which was received in
discovery It is time
consuming and difficult The work

product was excellent It made clear what the difficulties
were and the great effort

made by HEW to mitigate its
damages

8

The Court does not find this time charge excessive

7 As to Invoice No 38403 PSB raises only 1 other specific objection PSB
objected 20 hours charged for Analysis of missed
to 0
opportunities

s counsel
HEW 20 hours for Analysis regarding document
charged 0

received from HEW Federal Credit Union
regarding missed opportunities for the

branch The claim for missed opportunities was rejected as the Court found the

claimed losses were far too speculative Consequently the charge for 0
20 hours

or 00 is disallowed
40 A

8 As to Invoice No 40893 PSB raises
only 1 other specific objection PSB
objected to 0 hours
3 charged to Preparation of settlement offer letter
December 9 2009

s counsel charged 1
HEW 50 hours for Preparing settlement offer letter to

Chris Sylvia and 1
50 hours for Preparing settlement offer letter to Chris Sylvia
at Peoples State Bank This letter was prepared and written at the request of PBS

and included additional and
clarifying information obtained by the parties through

discovery and preparation The Court finds these charges reasonable

9 As to Invoice No 42680 PSB raises
only l other specific objection PSB
objected to 1
40 hours charged to
Drafting written discovery which were
not ever
actually propounded

s counsel charged 1
HEW 40 hours to Draft
interrogatories and request for
production to defendant Peoples State Bank HEW argues that after a conference

between counsel and the Court of 2010
on
January counsel believed that

settlement negotiations would take
place between HEW and PSB and as a result

held off on propounding additional
discovery

Such a conference did occur and the Court did
encourage PSB to participate

in settlement negotiations The decision to hold off on
propounding additional

9

discovery was a reasoned decision and an additional effort to resolve the litigation

These charges will not be disallowed

10 As to Invoice No 43453 PSB raises only 2 other specific objection PSB
9 hours for Fees charged by Nickelson
objected to 7 JCN claiming that
an additional attorney working on the lawsuit was not necessary and likely
resulted in duplicative work being preformed therefore all of these fees
1
5
00 80 should be disallowed
PSB also objected to 6 hours
8 7
1
0020 in fees for
or
Deposition
preparation

HEW was charged 7
9 hours for the work of another
attorney JCN as

follows

a 50 hours for Conference with Kristi B Gustavson
0
regarding
upcoming trial 2 review pretrial brief 3
b 30 hours for Conference with Kristi B Gustavson
0
regarding
trial subpoenas and other matters
c 20 hours for Conference with Kristi B Gustavson
0
regarding
upcoming trial and review correspondence from opposing
counsel regarding scheduling conference
d 50 hours for Conference with Kristi B Gustavson
0
regarding
settlement and trial strategy
e 80 hours for Prepare for trial and conference with Kristi B
3
Gustavson regarding same
f 30 hours for Prepare for trial and conference with
1
Kristi B
Gustavson regarding same
g 3 hours for Prepare for trial and conference
1
with Kristi B
Gustavson regarding same

HEW asserts that JCN was
preparing for and performing the cross
examination of PSB
s chief witness Ms Tori Flynn and that his work was not

duplicative of work performed by trial counsel It appears to the Court that a
g1
eat

deal of time was spent
by JCN learning about the facts and circumstances of this

case in general information
already possessed by Ms Gustavson who was trial

counsel i
e the numerous conferences with trial
counsel and reviewing the same
documents that trial counsel would
necessarily have to review as well
While Ms Gustavson would have had to
prepare the cross
examination of

Tori Flynn she would not have had to learn the facts of the case The Court

10

believes that only 3 hours of the above time charged would have been necessary

for Ms Gustavson to accomplish this work Therefore 4 00 in
9 hours or 980

fees are disallowed as duplicative

s counsel charged 8
HEW 6 hours for work relating to preparation for trial

depositions PSB failed to designate the particular invoice
s entries at issue

however the Court presumes the following are the entries and charges objected to

by PSB

a 80 hours for Preparing for upcoming depositions of Diebold and
1
Advent representatives
b 40 hours for Teleconference with James Goldbeck in preparation for
0
trial depositions
c 30 hours for Teleconference with Rich
0
Montague in order to prepare
for trial deposition

d 30 hours for
1
Preparing outlines for trial depositions of Diebold and
Advent technicians
e 00 hours for Preparing for
3
depositions of Bill Weimer Dennis Rainey
Rich Montague and James Goldbeck

None of the above charges are
objectionable Preparation for trial depositions in

this case not only entail knowing the law but also entail
being able to deal with the

complicated technical facts necessary to try this case

11 As to Invoice No 48109 PSB raises
only 1
other specific objection PSB
objected to 18
5 hours 00
3
7 00 charged to Fees charged by Nickelson
JCN

HEW charged 18
5 hours for the work of another attorney JCN as follows

a 50 hours for Prepare for trial
0
including discussion Tori Flynn
s
examination with Kristi B Gustavson
cross
b 60 hours for Prepare for trial
0
c 10 hours for Prepare for trial
7
including cross examination of
Tori Flynn and conference with Kristi B Gustavson regarding
same
r

d 00 hours for Bench trial before
10
Judge Dee Hawthorne in
Natchitoches Louisiana
e 30 hours for Conference with Kristi B Gustavson
0
regarding
status of settlement discussions with State Bank
s
People and other
matters

11

The Court would note that Mr Nickelson JCN did excellent work and

performed well at trial and the Court is convinced that trial counsel appreciated his

assistance however much of what he did was necessarily duplicative As

explained above JCN had to learn the entire case and spend 10 hours in the court

room to
primarily cross
examine Tori Flynn

With her prior knowledge of the case the Court believes that trial counsel

could have prepared for Ms
s cross
Flynn examination in an additional 5 hours

The Court previously allowed 3 hours for Ms Flynn in regard to Invoice No

43453 above Therefore as to Invoice Nno 48109 the Court disallows 5
13

hours of these charges or 2
00
7 00 in fees

12 As to Invoice No 44771 PSB raises only 1
specific objection PSB
objected to 20 hours charged for Preparation of post trial brief

HEW charged 20 hours for work
relating to post trial brief preparation as
follows

a 1
40 hours for
Preparing background facts for post trial brief
b 80 hours for Review of trial
2
transcript in order to prepare post
trial brief
c 2
0 hours for Prepare
trial brief
post
d 00 hours for
2
Preparing post
trial brief regarding legal analysis
e 50 hours for
2
Preparing post
trial brief regarding background
facts
f 50 hours for
1
Preparing post
trial brief regarding legal analysis
g 2
80 hours for
Preparing post
trial brief regarding analyst sic
testimony at trial
h 0 hours for
5
Preparing and finalizing post
trial brief

At the conclusion of the trial of this
matter counsel for PSB requested that a

transcript of the trial be prepared and the Court ordered detailed
briefing There

were several legal issues that the Court wanted the attorneys to
specifically
address In addition the case was fact intensive and
the Court wanted the facts

specifically argued in the briefs In the Court
s view any briefing on factual

12

issues assertion of facts and conclusions needed to be cited to the transcript This

is a lengthy detailed and time
consuming process Just reading the transcript and

depositions takes hours Counsel for HEW did an excellent job and the Court will

not disallow any of this time as unreasonable

13 As to Invoice No 48110 PSB raises
only 1 other specific objection PSB
objected to 3 hours for Fees charged by Nickelson claiming that an
additional attorney working on the lawsuit was not necessary and
likely
resulted in duplicative work being preformed

s counsel charged 0
HEW 30 hours or 60
00 in fees for the work of another

attorney JCN for Conference with Kristi B
Gustavson regarding supplemental

post trial brief The Court disallows this charge as duplicative and unnecessary

PSB made no other specific objections to the
charges on HEW
s invoices

Additional Charles or Fees Asserted by HEW

s argues further that from November
HEW
30 2010 to December 16 2010

time incurred by HEW
s counsel for preparing for and attending the December 16
h

hearing amounted to 2
00
4 60 of billable time not including preparation time for

its post hearing brief which took
approximately 2 hours or 400
00 Consequently

HEW claims an additional 2
00
8 60 in s fees
attorney

The Court believes these
charges to be reasonable

Attorney fees determined to be reasonable

HEW seeks reimbursement for
attorneys fees actually incurred in the

amount of 00 53
822
56 00 billed and paid and 2
962 860 not yet billed

The Court finds that 18
9 hours at 200 an hour should be disallowed in a total

amount of 3
00
7 80 Without further evaluation that leaves
attorney fees in the

amount of 53
00
042 This calculation does not include the request for an

estimated future amount of fees

13

netc

The trial judge has great discretion in awarding costs including expel
t

witness fees deposition costs exhibit costs and related expenses Sz
prun v

Louisiana Farm Bureau Mut Ins Co
App 1 Cir 4
La 10 2010 WL 1740002
3

Simpson v Goodman La
App 1 Cir 12
98 727 So
28 2d 555 Absent an abuse

of discretion the courts of
appeal will not interfere with an award of costs Uela v

Plaquemines Parish Government 811 2d 1263 1282
So 2002
C
4
App
Lair
The only costs taxable
against a litigant are those provided for by positive law

Woolen v Lucksinger 14 So
3d 311 l
App
La
Cir 2008
HEW seeks reimbursement for costs as follows

1 Filing fees 839
00 an additional 425 00 1 2
00 64
2 Long distance telephone charges 205
79 an additional 20
55
34
226
3
Photocopies 1 40
0 31 an additional 120
00 1 40 51
4 Mileage 307
50 an additional 75 00 382
50
5 Westlaw Legal Research 2 90
8 53 an additional 108
00
90
2 61
6 Courier Fee 70
00
7 Court Reporter Fees
893
30
8 Trial subpoena cost 325
00
9 Custom tabs index tabs
binding 22
05
10 Federal Express 80
20
11 Conference Call Charges 13
80
12 Trial transcript 477
50
13 Meals for KBG and JCN 22
00

for a total of 7
99
8 89

The Court finds the
following listed expenses are disallowed since these
charges are not provided for by law 2 of the photocopy
charge 575
70 all of
the Westlaw charge
90
261 all of the courier fee 70
00 all of the Federal
Express charges 80
20 and 2 of the meals charges 00 for a total of
11
disallowed charges in the amount of
80
6
3 98 The Court allowed of the

14

t

photocopy charges because this case involved so many copies and many were

used in the trial of the matter

HEW seeks reimbursement for costs in the amount of 7
99
8 89 The Court

finds that 3
80
6 98 should be disallowed Without further evaluation that leaves

costs in the amount of 4
19
91 The Court finds these reasonable and allowed

according to law

Other considerations

PSB argues that any fees or costs relating to HEW
s claim for lost income

should be disallowed because the plaintiff was not successful in regard to this

claim at trial the court having found that any such loss was not reasonably

quantifiable Very little time was spent addressing this issue at trial and only one

witness testified
concerning this claim The Court will not reduce the fees in this

regard

The final consideration by this Court is the main
argument made by PSB

whether the amount awarded as
s fees should be completely driven by the
attorney

amount finally awarded on the substantive claim 13
00
308

This Court finds that it should not be so
driven in this case under these

circumstances The Court finds that PSB in
large part is the cause for delaying

resolution of this matter and for the amount of s fees
attorney and costs

necessitated and ultimately
expended in this litigation

HEW purchased a mobile banking unit MBU from PSB The ATM

machine built in the MBU was not the
product advertised and the ATM that was

there was inoperable and irreparable PSB personnel had all of the information it

needed to make this determination at the time of the
sale

15

HEW was forced to hire an attorney to represent its interests PSB has paid

no extra s fees as it was represented by in
attorney house counsel As the result of

the diligent efforts of HEW and its retained counsel PSB was urgently advised of

the problems and the defect at issue even before the suit was filed and before any

significant fees and costs were incurred

HEW could have successfully urged a claim for return of the purchase
price

of 115
00 because the MBU was clearly not fit for its intended use without a
000

working or reparable ATM HEW was faced with a dilemma when PSB refused

to make good on its sale At that point in addition to the costs associated with the

sale itself HEW had invested additional
money preparing the MBU for HE W
s

use i
e having it custom painted with its
logo and other installation In
expenses

addition HEW could not afford to buy a new MBU HEW could have pursued its

claim for the return of the purchase
price all costs relating to sale and all of the

expenses involved in preparing the MBU for HEW
s use However when PSB

refused to make good on the sale in an effort to
mitigate its losses HEW personnel

searched diligently to find a
replacement for the defective ATM It was not a

simple feat as there were extreme space limitations and most companies could not

provide such a product HEW finally found a company that could provide a

replacement and it made the purchase

PSB was offered the
opportunity to simply pay for the replacement however

PSB would not respond at all to
any of HEW
s proposals or attempts to settle the

case On several occasions throughout the
litigation PSB specifically requested

that HEW prepare and submit to them settlement
proposals Each time PSB

requested it HEW did so it made the proposal and provided the factual and legal

argument supporting its proposal This was confirmed at the January status

16

conference when counsel for PSB reported that no answer had been made to HE W

in regard to any of its settlement proposals The Court strongly encouraged PSB to

participate in efforts to settle this litigation It is clear that at each step in this

process PSB has been aware of the facts sufficient to know that the ATM was not

the product advertised and that the ATM was
defective inoperable and irreparable

Instead PSB chose to forego actively pursuing a settlement and instead relied on

its chances at trial HEW was forced to continue to incur
s fees and costs
attorney

The purpose of the statutory
authority to award attorneys fees and costs is to

make the buyer whole In a redhibition
action reasonable s fees should be
attorney

awarded to justly compensate plaintiffs who succeed in
establishing liability on the
part of the seller or manufacturer under Louisiana Civil Code article 2545 Linoski

et al v Fleetwood Homes
of Texas et al 38
338 La App 2 Cir 5
04
1 2 873
So
2d 886

Conclusion

Consequently the Court awards all the attorney
s fees and costs incurred

thus far and not disallowed
by the Court herein 53
y0 and 4
042 19
91

respectively The Court will not award an
anticipated amount for future fees and
costs at this time

s counsel is to
HEW
prepare the judgment in accordance with this ruling

which will be signed upon
presentation

WRITTEN REASONS FOR RULING RENDERED IN
CHAMBERS at

Natchitoches Natchitoches Parish Louisiana on the day of February 2010

DEE A HAWTH
RNE
DISTRICT JtTDGE DIVISION B

17