Covington v. McNeese State University , 11 La.App. 3 Cir. 1077 ( 2012 )

AMY, J.,

concurring in part and dissenting in part.

hi concur with the majority that the plaintiff is entitled to attorney fees in this case. I also agree with the decision to deny the request for sanctions for frivolous appeal and with the dispositions of the motions to strike.

However, I dissent from the remaining aspects of the majority opinion as I conclude that a full affirmation of the underlying judgment is appropriate. Notably, I find that the trial court acted within its discretion in compensating fewer attorney hours than sought and in determining the appropriate hourly rate.

Similarly, I conclude that the trial court acted reasonably in denying the enhancement to the lodestar hourly rate claimed. Therefore, I dissent from the majority’s decision to apply that enhancement on appeal. Instead, I think it is likely that, in awarding the present day market value to the attorney’s hourly rate rather than applying the prevailing historical rates at the time the hours were accrued, the trial court took into account some of the very compelling factors at work in this case. Further, jurisprudence suggests that a significant delay between the time legal services are rendered and the time that they are awarded may be acknowledged with either a delay enhancement or an award based on current market rates. See, e.g., Humphrey v. United Way of Texas Gulf Coast, 802 F.Supp.2d 847 (S.D.Tex.2011). See also Walker v. U.S. Dep’t of HUD, 99 F.Sd 761, 773 (5th Cir.1996) (wherein the Fifth Circuit explained that, in eompensat-ing 12for a delay in payment in a desegregation proceeding “the district court may either grant an unenhanced lodestar based on current rates ... or calculate the lodestar using the rates applicable when the work was done and grant a delay enhancement. ... It may not do both.”).

I also differ from the majority with regard to the appropriate amount of attorney fees awarded for work performed on appeal. Certainly, the plaintiffs defense of this appeal supports the award of fees pursuant to 42 U.S.C. § 12205. However, I believe that much of the litigation expense reported by the plaintiffs counsel was accrued in pursuit of the answer, which I have generally found to be unsuccessful. Therefore, I would set a figure lower than that now awarded.

For these reasons, I respectfully dissent in part and would affirm the trial court’s decision in full.