Grand Pointe Homeowners Association, Inc. v. Cheryl C. Haymes Heymann

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-36

GRAND POINTE HOMEOWNERS ASSOCIATION, INC.

VERSUS

CHERYL C. HAYMES HEYMANN

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, DOCKET NO. 2017-2281
HONORABLE MICHELLE BREAUX, DISTRICT JUDGE

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SYLVIA R. COOKS
JUDGE
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Court composed of Sylvia R. Cooks, John E. Conery, and D. Kent Savoie, Judges.

AFFIRMED AS AMENDED.

L. Lane Roy
Stephanie D. Veech
Brown Sims, P.C.
600 Jefferson Street, Suite 800
Lafayette, LA 70501
(337) 484-1240
COUNSEL FOR DEFENDANT/APPELLANT
Cheryl C. Haymes Heymann

John A. Mouton, III
Attorney at Law
P.O. Box 82438
Lafayette, LA 70598
(337) 988-6499
COUNSEL FOR PLAINTIFF/APPELLEE:
Grand Pointe Homeowners Association, Inc.

Mahtook & Lafleur, L.L.C.
Charles A. Mouton
Jared L. Foti
P.O. Box 3089
Lafayette, LA 70502
(337) 266-2189
COUNSEL FOR PLAINTIFF/APPELLEE:
Grand Pointe Homeowners Association, Inc.

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

Grand Pointe Homeowners Association, Inc. (Grand Pointe) sued Cheryl C.

Haymes Heymann (Heymann) in 2017 to enforce its restrictive covenant provisions

including a $20.00 per day fine imposed for each day that Heymann left her

uncompleted townhouse in a derelict condition. According to the trial court

judgment, Heymann remained non-compliant for 1,019 days. In its unfinished state,

Heymann’s townhouse allegedly presented a hazard to neighboring property owners

and resulted in the flooding of two townhouses in the development. The saga began

in 2014 after Heymann began renovations on her newly purchased townhouse.

Heymann gutted the interior of the townhouse and boarded up the doors and

windows with plywood. She attempted to replace the balcony she had removed with

a balcony of a depth of one and one-half feet greater than allowed under the

restrictive covenant. After being instructed that she could not enlarge the balcony

she proceeded to construct supports for the larger balcony. Eventually she was

unable to financially afford to complete the renovation and left the property in a state

of disrepair. Heymann admitted she knew she was not in compliance with the

restrictive covenant requirements.

In 2019, the Association consented to Heymann selling the townhouse with

an agreement in place for Heymann to deposit $59,913.39 in an escrow account and

in turn Grand Pointe agreed to clear the liens from the title to her immovable

property. In September of 2019, the trial court awarded Grand Pointe $21,655.20 in

damages against Heymann. The trial court also found Grand Pointe was entitled to

attorney fees in accordance with the provisions of the restrictive covenants and under

the provisions of La.R.S. 9:1145, but ordered a separate hearing to determine the

amount of fees to be awarded.

On August 22, 2019, the trial court awarded Grand Pointe attorney fees in the

amount of $50,675.00. The trial court based its award on the number of hours shown

on the records produced by Grand Pointe’s attorneys multiplied by the rate of

$250.00 per hour. The trial court found the number of hours reflected in the

documents presented was reasonable and that the rate charged and requested by the

attorneys was also reasonable. Heymann did not present any evidence to controvert

these documents and she did not present any expert witness or any testimony to

contradict Grand Pointe’s assertion that the hourly rate charged is reasonable in

Lafayette. In its judgment, the trial court stated it relied on the state supreme court’s

decision in Covington v. McNeese State Univ., 12-2182 (La.5/7/13), 118 So.3d 343

“for guidance” in calculating the award of reasonable attorney fees. The trial court

further remarked that “Louisiana uses the lodestar method to calculate attorney’s

fees.”1 Heymann does not appeal the damage award or judgment2 except as to the

amount of attorney’s fees awarded.

1
“The lodestar figure is calculated by multiplying the number of hours the
prevailing party reasonably expended on the litigation (as supported by adequate
documentation) by a reasonable hourly rate for the region and for the experience of
the lawyer.” Id. at 941 (citing Stanton, 327 F.3d at 965). After computing the
lodestar figure, the district court may then adjust the figure upward or downward
taking into consideration twelve “reasonableness” factors: (1) the time and labor
required; (2) the novelty and difficulty of the questions involved; (3) the skill
requisite to perform the legal service properly; (4) the preclusion of other
employment by the attorney due to acceptance of the case; (5) the customary fee;
(6) whether the fee is fixed or contingent; (7) time limitations imposed by the client
or the circumstances; (8) the amount involved and the results obtained; (9) the
experience, reputation, and ability of the attorneys; (10) the “undesirability” of the
case; (11) the nature and length of the professional relationship with the client; and
(12) awards in similar cases. Morales v. City of San Rafael, 96 F.3d 359, 363 n. 8
(9th Cir. 1996). “The party seeking an award of fees should submit evidence
supporting the hours worked and rates claimed.” Hensley v. Eckerhart, 461 U.S.
424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), superseded by the
Prison Litigation Reform Act on other grounds. However, trial courts may use
“rough” estimations, so long as they apply the correct standard. Fox v. Vice, 563
U.S. 826, 838, 131 S.Ct. 2205, 180 L.Ed.2d 45 (2011).

Vasquez v. Kraft Heinz Foods Co., 2020 WL 1550234, at *7 (S.D. Cal. Apr. 1, 2020).
2
On February 21, 2020, this court signed an order of dismissal of Heymann’s appeal of
damages in response to her motion to dismiss.
2

Legal Analysis

Heymann asserts the trial court erred in using the lodestar method to calculate

the amount of attorney’s fees to which Grand Pointe is entitled. She also avers the

trial court abused its discretion in awarding excessive and unreasonable attorney fees

considering the amount of the judgment recovered. Heymann further asserts the trial

court erred in failing to consider the factors enunciated in Rivet v. State Department

of Transportation & Development, 96-145 (La. 9/5/96), 680 So.2d 1154.

Grand Pointe, in response to Heymann’s appeal, first asserts that we do not

have any appeal before us to consider because Heymann only filed for a suspensive

appeal below and did not post the required security bond. We have held that when

an appellant fails to timely post a bond for suspensive appeal the matter is converted

to a devolutive appeal, for which there is no requirement of security, when the

requirements of a devolutive appeal are timely met. Heymann’s appeal of the

attorney fee award was well within the time for filing a devolutive appeal and we

therefore proceed to address the matter before us. See, Letulle v. S & E Oil Co., 384

So.2d 598 (La.App. 3 Cir. 1980) and Clement v. Graves, 04-1831 (La.App. 1 Cir.

9/28/05), 924 So.2d 196, and cases cited therein.

The record before us contains the evidence presented by Grand Pointe to

support its claim for reasonable attorney fees in the matter. This evidence consists

of the attorneys’ billing records which the parties stipulated contain the accurate

“legal bills that are being requested in connection with the enforcement of the

covenant issue and the collection of the assessments.” The parties also stipulated

that the bills submitted to Grand Pointe by its attorneys as reflected on this exhibit

have all been paid and there was thus no need to call a witness in this regard. When

the trial court asked counsel for Heymann “do you have anything you want to

present?” he responded “No, ma’am. We’ve presented a pre-trial memorandum and

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that’s all that we have, Your Honor.” Thus, the evidence presented by Grand Pointe

is uncontroverted. The trial court then took the matter under advisement and later

rendered judgment.

The amount of attorney’s fees rests largely within the discretion of the
trier of fact and should not be disturbed unless unreasonable or
manifestly erroneous. Ardoin v. Kipling Korner Grocery, 02–1372
(La.App. 3 Cir. 3/5/03), 839 So.2d 1167.

Oracle 1031 Exch., LLC v. Bourque, 11-1133 p. 7 (La.App. 3 Cir. 2/8/12), 85 So.3d

736, 742, writ denied,12-546 (La. 4/20/12), 85 So.3d 1272.

We have reviewed the detailed billing submitted as evidence and find nothing

unreasonable in the amounts of time allotted for the work described. Heymann

presented no evidence to counter Grand Pointe’s assertion that the recited rate of

$250.00 per hour is reasonable and we see no basis to find any abuse of discretion

in the trial court’s finding that such a rate is reasonable in the Lafayette area. The

trial judge mentions the lodestar method for calculating attorney fees as a basis for

its ruling. While Louisiana courts do employ this method in matters concerning

federal law, we generally employ the method enunciated in Rivet when determining

the reasonableness of attorney fees claimed and hours worked. As noted in footnote

1 of this opinion the court generally considers the same factors under either the

lodestar or Rivet method.3 Our review of the record before us discloses that under

either method of calculation the attorney fee award is reasonable and that Grand

Pointe’s evidence is uncontradicted. In fact, Heymann admitted at the hearing on

attorney fees she had no evidence to present to contradict the time logged or the

amount charged other than to argue that the time logged, in her opinion, is not

reasonable for the services rendered. But neither we, nor the trial court, are provided

any evidence in support of Heymann’s assertions that the specific time increments

3
Under the lodestar method courts consider two additional factors.
4

logged as reflected in the stipulated records of Grand Pointe’s attorneys are

somehow unreasonable. After reviewing in detail the time records presented we find

no indication of any unreasonable amounts of time for the work described. We

cannot say the trial court abused its discretion in making its determination.

This court recently reiterated the well settled law to be applied in calculating

reasonable attorney fees in Camalo v. Courtois, 19-15 pp. 8-9, (La.App. 3 Cir.

10/2/19), 280 So.3d 956, 962, writ denied, 19-1776, 19-1766 (La.1/14/20), 291

So.3d 682 and 686 (emphasis added):

“A trial court’s award of attorney fees should not be modified on appeal
unless it has been shown to be an abuse of discretion.” Two Oil Servs.,
LLC v. Simons Petroleum, LLC, 14-712, p. 8 (La.App. 3 Cir. 12/10/14),
155 So.3d 677, 683; Master Credit Corp. v. Campbell & Assocs., Inc.,
98-349 (La.App. 4 Cir. 11/25/98), 724 So.2d 266; see also Gravolet v.
Bd of Comm’rs for the Grand Prairie Levee Dist., 95-2477 (La.App. 4
Cir. 6/12/96), 676 So.2d 199. 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. & Dev. v. Williamson, 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.

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.” Health Educ.& Welfare Fed. Credit Union v. Peoples
State Bank, 11-672 p. 3 (La.App. 3 Cir. 12/7/11), 83 So.3d 1055, 1057
(citing Dailey v. The Home Furnishings Store, 02-1225 (La.App. 4 Cir.
9/17/03), 857 So.2d 1051.)

Additionally, in another recent case, this court explained that:

Regardless of the language of the statutory authorization for an award
of attorney fees or the method employed by a trial court in making an

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award of attorney fees, courts may inquire as to the reasonableness of
attorney fees as part of their prevailing, inherent authority to regulate
the practice of law. State, DOTD v. Williamson, 597 So.2d 439, 441-42
(La.1992) and cases cited therein.

State v. Louisiana Land & Expl. Co., 18-890 p. 2 (La.App. 3 Cir. 5/15/19), 272 So.3d

937, 939–40.

It is this inherent authority “derived from Rule 1.5(a) of the Rules of

Professional Conduct,” Rivet, 680 So.2d 1161, that formed the basis of the state

supreme court’s decision in Rivet, and likewise underpins the foundation of the

lodestar method. The jurisprudence does not require that our courts weigh one factor

more than others, but that we consider all of the factors enunciated in Rivet on a case

by case basis. And this is so whether the basis for an attorney fee award is

contractual or statutory. See, Village Shopping Ctr. P’ship. v. Kimble Dev., LLC, 19-

238 (La.App. 5 Cir. 12/30/19), 287 So.3d 882. Here, it is both.

Heymann asserts that the mere fact that the attorney fees exceed the damages

award is reason enough to overturn the trial court’s judgment. This is simply not the

law. See Louisiana Land & Expl., 272 So.3d 937. In fact, where, as here, attorney

fees are part of the recovery to which the prevailing party is entitled those fees form

part of the total recovery. They are “a part of the calculation of the results

obtained because such an award in th[is] instance is also a part of the total

recovery.” Id. at 941. See also, Camalo, 280 So.3d at 956. Moreover, according to

the U.S. Supreme Court, “’the degree of success obtained is the most crucial element

in determining a reasonable attorney’s fee.’” Louisiana Land, 272 So.3d at 941,

quoting Combs v. City of Huntington, Texas, 829 F.3d 388, 394 (5th Cir. 2016)

(citing Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933 (1983) and Marek v.

Chesny, 473 U.S. 1, 105 S.Ct. 3012 (1985)). In Camalo, this court awarded the

Camalos $108,250.66 in attorney fees “over three times the total, unchallenged,

6

damages awarded [of] $30,000.00” and awarded the Giglios “$65,000.00 in attorney

fees, where they recovered roughly $22,000.00 in total damages.” Camalo, 280

So.3d at 962.

The trial court stated in its judgment that it reviewed the lengthy detailed

records provided by Grand Pointe before determining that the hours billed and the

$250.00 per hour rate are both reasonable. Heymann offered no factual or expert

evidence to contradict Grand Pointe’s evidence. There is no basis in this record to

gainsay the trial court’s conclusion of reasonableness. Likewise, analyzing the only

evidence available to us in this record, we conclude, after applying the relevant

factors cited in Camalo, the trial court did not abuse its discretion in concluding an

award of $50,675.00 for attorney fees is reasonable, though it exceeds the monetary

damage award of $21,655.20. Taken together, the total recovery is substantial and

represents a significant sum for a homeowners’ association. Heymann’s recalcitrant

behavior, and insistence that the rules just do not apply to her, required considerably

more work than might have been necessary had she been willing to follow the rules

as required of all residents subject to the covenant restrictions. The ruling is not only

a victory for the homeowners’ association, but it is one for all homeowners in the

development as it protects their property values and the integrity of their covenant

restrictions. The attorneys were required to not only attend many court appearances

but also had to attend many meetings with the homeowners’ association, its

members, and board as is reflected in its billing records.

In addition to the award of attorney fees below, Grand Pointe is also entitled

to an award of attorney fees on appeal as the prevailing party.

“Generally, when an award for attorney’s fees is granted at the trial
level, additional attorney’s fees are proper for work done on appeal.
This is to keep the appellate judgment consistent with the underlying
judgment.” Wilczewski v. Brookshire Grocery Store, 08–718, p. 18

7

(La.App. 3 Cir. 1/28/09), 2 So.3d 1214, 1226, writ denied, 09–456
(La.4/13/09), 5 So.3d 170.

Oracle 1031 Exch., LLC v. Bourque, 11-1133 p. 10 (La.App. 3 Cir. 2/8/12), 85 So.3d

736, 743, writ denied, 12-546 (La. 4/20/12), 85 So.3d 1272. We therefore amend

the award of attorney fees to Grand Pointe to add the sum of $2,500.00 for work

done by its attorneys on appeal.

The judgment of the trial court is affirmed as amended and all costs of this

appeal are assessed against Cheryl C. Hames Heymann.

AFFIRMED AS AMENDED.

8