in-the-matter-of-the-attorneys-fees-and-costs-in-the-termination-of , 2013 WY 113 ( 2013 )

IN THE SUPREME COURT, STATE OF WYOMING
2013 WY 113APRIL TERM, A.D. 2013
September 27, 2013
IN THE MATTER OF THE
ATTORNEY'S FEES AND COSTS IN
THE TERMINATION OF PARENTAL
RIGHTS TO: KMO, DMO, CMO, AKO,
DKO, MTO, ABO, EEO, and JBO, Minor
Children,
DONALD LEE TOLIN, Attorney for
HJO, Natural Mother,
S-13-0054
Appellant
(Respondent),
v.
STATE OF WYOMING, DEPARTMENT
OF FAMILY SERVICES,
Appellee
(Petitioner).
Appeal from the District Court of Natrona County
The Honorable John C. Brackley, Judge
Representing Appellant:
Donald Lee Tolin, Law Offices of Donald Tolin, Casper, WY.
Representing Appellee:
Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy
Attorney General; and Jill E. Kucera, Senior Assistant Attorney General.
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, 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.
HILL, Justice.
[¶1] Attorney Donald Tolin challenges an order awarding him a substantially reduced
fee in a termination of parental rights case. Finding no abuse of discretion, we affirm the
district court.
ISSUE
[¶2] Tolin states his single issue as follows:
Whether or not the district court’s order cutting attorney’s
fees for indigent mother’s attorney from $121,530.00 to
$25,000.00 was an abuse of discretion, arbitrary, and
capricious.
FACTS
[¶3] The underlying facts of this case are presented in HJO v. State (In re KMO), 2012
WY 99, 280 P.3d 1203 (Wyo. 2012) (KMO I) and need not be repeated here. However,
parts of the procedural history leading up to this appeal are new and thus need mention.
[¶4] In KMO I, this Court affirmed the district court’s order terminating mother’s
parental rights. After KMO I was published, Mr. Tolin filed a fee motion with this Court
for his time spent as mother’s appointed attorney on appeal. This Court reduced the
request by one-third.
[¶5] Meanwhile, father’s attorney filed a motion for attorney’s fees in May of 2012,
almost one year after the underlying trial. The court eventually requested a fee motion
from Mr. Tolin as well and on December 21, 2012, he filed his fee motion and requested
$121,530.00 in fees and $3,468.84 in costs. Mr. Tolin billed at the rate of $100/hour but
his motion stated that his hourly rate would increase to $200/hour if the Department of
Family Services (DFS) objected to the payment of the fees. 1
[¶6] On January 30, 2013, the district court entered an order awarding Mr. Tolin
attorney’s fees in the amount of $25,000.00, and $3,468.84 in costs.2 The court noted in
its order that it could not “in good conscience, approve the requests for fees.” A section
1
This Court is generally offended by the nature of Mr. Tolin’s attempt to intimidate the DFS to pay “or
else” suffer the consequences of a fee increase. We query whether this behavior calls into question the
Wyoming Rules of Professional Conduct Rule 1.5 “Fees.”
2
The district court order was entered five days after this Court published Tolin v. State (In re NRF), 2013
WY 9, 294 P.3d 879 (Wyo. 2013). There, this Court affirmed an order reducing by half Mr. Tolin’s fee
($48,717.00 to $24,358.50) in a separate termination of parental rights case.
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of the order entitled “Examples of Problems with Fee Request” details the court’s
concerns:
1. The claim for fees in the amount of $121,530.00 is about
five times higher than previously observed requests.
2. The amount of hours claimed per day appear overstated,
and, even if accurate, an attorney cannot maintain an
appropriate level of function with so few breaks.
3. The amount of pleadings generated by Mr. Tolin was
mind boggling. Much of the “paperwork” was redundant.
Suffice it to say, the amount of pleadings far exceeded
what was necessary to adequately preserve a good record.
4. During trial Mr. Tolin was cautioned several times about
redundant and/or irrelevant witness questions.
5. Mr. Tolin claims more than two times the amount of hours
claimed by the Department’s lead counsel (who had little
participation in the juvenile court case).
6. On page 77 of his request for fees Tolin writes: “…Rate
will revert to $200.00/hour if bill is contested in Court…”
(Compare cases discussing ethical problems in sending a
bill threatening interest on unpaid balance when there was
no written fee agreement allowing same.)
7. There is little or no write off of items that proved to be
unproductive and redundant.
8. Mr. Tolin’s affidavit in support of fees filed December 28,
2012, states that “…payment of fees has been delayed
significantly …”. As noted above, he did not even file a
request for fees until the Court imposed a deadline for
same. Any “delay” is his own making.
9. Recently the Wyoming Attorney General announced a job
opening for an attorney to work with the Department of
Family Services. The qualifications adequate for the
position are similar to the qualifications to serve as a
parent attorney in this case. The A.G. salary range is
$4,583 - $6,917 per month ($54,996.00 - $83,004.00 per
year). The taxpayers of Wyoming would not understand
why the State should pay contract services in excess of a
year’s salary for one case that should have taken less than
two months of work.
This appeal followed.
STANDARD OF REVIEW
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[¶7] We review a district court’s decision regarding the award of attorney’s fees and
costs for abuse of discretion. A court abuses its discretion only when it acts in a manner
which exceeds the bounds of reason under the circumstances. The burden is placed upon
the party who is attacking the trial court’s ruling to establish an abuse of discretion.
Grommet v. Newman, 2009 WY 150, ¶ 61, 220 P.3d 795, 817 (Wyo. 2009).
DISCUSSION
[¶8] In his only issue Mr. Tolin argues that the district court abused its discretion in
cutting his requested fees from $121,530.00 to $25,000.00. He points this Court to Wyo.
Stat. Ann. § 14-2-318, which he contends provides a basis for the award and requires the
State to pay. He also cites the federal lodestar test in support of his argument and submits
that his motion, affidavit, and traverse establish the absolute reasonableness of his fee
request. In response the DFS argues generally that the district court did not abuse its
discretion when it reduced Mr. Tolin’s requested fee to $25,000.00. DFS asserts that Mr.
Tolin fails to carry his burden to prove that his fee request was reasonable.
[¶9] In determining the reasonableness of the fees requested, we have stated that
a trial court must follow the federal lodestar test, which
requires a determination of “(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.” Weiss, ¶ 8, 217 P.3d at 410-411 (quoting
Forshee, ¶ 7, 118 P.3d at 448). Additionally, even if fees are
provided by a valid contractual provision, “a trial court has
the discretion to exercise its equitable control to allow only
such sum as is reasonable or the court may properly disallow
attorney’s fees altogether on the basis that such recovery
would be inequitable.” Dewey v. Wentland, 2002 WY 2,
¶ 50, 38 P.3d 402, 420 (Wyo. 2002).
Thorkildsen v. Belden, 2012 WY 8, ¶ 10, 269 P.3d 421, 424 (Wyo. 2012). The district
court based its decision on Mr. Tolin’s hourly rate of $100/hour and in their appellate
briefs the parties do not assert that the hourly rate is an issue. In any case, Mr. Tolin does
not meet his burden of providing proof of the reasonableness of his original fees under
the federal lodestar test. First, there is little to no detail in his appellate argument as to
the first factor regarding whether the fee charged represents the product of reasonable
hours times a reasonable rate. Second, and more importantly, it is in looking to the test’s
second factor – allowing the district court discretion to determine whether other factors
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should be considered to adjust the fee either upward or downward – upon which we base
our decision.
[¶10] We remind Mr. Tolin that our standard on appeal is abuse of discretion which
means that to overturn a district court’s decision and actually find that it abused its
discretion this Court must find that the decision was wholly unsupported by the evidence,
illegal, or clearly incorrect. That is not the case in this instance. In addition to the factors
previously noted that the district court listed as reasons for concern, the court also stated
that the “claim for fees in the amount of $121,530.00 is about five times higher than
previously observed requests” and that it “cannot recall an individual request for fees
exceeding the award in [Tolin v. State (In re NRF), 2013 WY 9, 294 P.3d 879 (Wyo.
2013)].” The court further indicated the termination case was not the first it had presided
over and in its experience most requests for fees were substantially less than the
$24,358.50 awarded on appeal in the In re NRF case.
[¶11] As in Tolin v. State (In re NRF), 2013 WY 9, 294 P.3d 879 (Wyo. 2013) the gist
of Mr. Tolin’s argument in the present case 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.” Id., ¶ 9, 294 P.3d at 883. We further
stated in In re NRF,
the [district] 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.Id. Here, we agree with the district court’s assessment of the fee request. It was not a
“merely mechanical exercise” by the district court when it reduced Mr. Tolin’s fee. In
addition to its other comments, the court noted its concern about the “amount of
pleadings generated by Mr. Tolin,” calling them “redundant” and excessive over what
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was “necessary to provide a good record.” The court also found issue with the sheer
number of hours billed on daily basis by Mr. Tolin. Id. We noted those same concerns in
In re NRF, ¶ 18, 294 P.3d at 887.
[¶12] Beyond Mr. Tolin’s general assertions, he makes no cogent argument regarding
exactly how the district court abused its discretion. Though he cites to the multitudinous
pleadings he filed below, he fails to connect any of those pleadings to how the decision of
the district court was an abuse of its discretion. He provides no evidence demonstrating
that the fee reduction was unreasonable. Hinckley v. Hinckley, 812 P.2d 907, 915 (Wyo.
1991).
CONCLUSION
[¶13] We affirm the district court’s fee reduction in this case.
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