No Hearing on Attorney’s Fees

May 8, 2017 § 2 Comments

When the Livingston Property Owners Association (LPOA) denied Paul and Janice Berlin permission to construct a fence where they wished on their property, the couple went ahead anyway with their plans.

The LPOA sued in chancery court, and the chancellor ordered the Berlins to remove part of the fence and awarded the association reasonable attorney’s fees. The Berlins appealed.

In Berlin v. LPOA, decided April 25, 2017, the COA affirmed. One of the grounds for appeal was the manner in which the trial court made its determination about attorney’s fees. Judge Wilson’s declaration on the issue for a unanimous court describes both the appellants’ claim and its disposition:

¶29. The Berlins argue that the chancellor erred in awarding attorneys’ fees to LPOA without conducting a hearing on the reasonableness of the amount awarded. This issue requires discussion of some additional procedural background.

¶30. At the conclusion of LPOA’s case-in-chief in September 2014, LPOA’s attorney in the litigation, James L. Martin, requested permission to wait until after the conclusion of the trial to submit an affidavit regarding LPOA’s attorneys’ fees and costs. The chancellor granted his request, and Martin then asked whether LPOA would “be permitted to have a hearing as to the reasonableness of those fees.” The chancellor responded, “Yes, of course. Always.” The next day, at the conclusion of the trial, the chancellor gave the parties oral instructions regarding post-trial briefing and submissions, which included the following:

“[T]he parties each ask that their attorneys be allowed to present testimony of fees . . . at a later date. This Court hereby requires the same to be done in writing. The affidavit . . . as to the reasonableness and necessity of said services can be attached thereto.”

In her final instructions to the parties, the chancellor did not mention a hearing on attorneys’ fees; rather, she indicated that she would issue her opinion after receiving the parties’ submissions.

¶31. On November 14, 2014, Martin filed an affidavit in support of LPOA’s request for
attorneys’ fees and costs of $17,485.58. Martin stated that he had over thirty years of
experience as a practicing attorney, including significant experience in real property matters, and that his usual hourly rate was $300. Martin’s affidavit also addressed the other factors set out in Rule 1.5 of the Mississippi Rules of Professional Conduct. [Fn omitted] Martin attached an itemization and hourly breakdown of his work on the case, which showed a total of 59.75 hours billed from 2010 to 2014. On November 17, 2014, one of the Berlins’ attorneys filed a similar affidavit in support of their request for $31,637.50 in attorneys’ fees and costs, along with itemized billing records. The Berlins’ request for attorneys’ fees was based on approximately 125 hours of attorney time at a rate of $250 per hour.

¶32. On June 24, 2015, the chancellor issued her opinion and final judgment and found that LPOA was entitled to recover $17,485.58 in attorneys’ fees and costs pursuant to section 14.01 of the covenants. In their motion for reconsideration or a new trial, the Berlins objected that they had not been “afforded an opportunity to contest . . . whether [LPOA’s attorneys’ fees] were reasonable and necessary.” LPOA responded that the chancellor’s posttrial instructions put the Berlins on notice that the court intended to rule on the issue without a further hearing. LPOA also argued that its attorney’s affidavit was sufficient and that no hearing was necessary. On September 3, 2015, the chancellor denied the Berlins’ motion without specifically addressing the issue of attorneys’ fees.

¶33. The Berlins do not dispute that a prevailing party in an action to enforce the covenants is entitled to an award of attorneys’ fees, and section 14.01 makes clear that a prevailing party is entitled to such an award. See Journeay v. Berry, 953 So. 2d 1145, 1162-63 (¶¶63-66) (Miss. Ct. App. 2007) (holding that valid restrictive covenants are contractual in nature and therefore may support an award of attorneys’ fees). However, “[a] contractual provision to pay attorney’s fees is not a blank check; it is limited by the reasonableness of the fee which includes an analysis of whether work performed was actually necessary.” Pikco Fin. Inc. v. Staten (In re Staten), 559 B.R. 666, 674 (Bankr. S.D. Miss. 2016). “[W]e review the issue of the reasonableness of the trial court’s award of attorneys fees applying an abuse of discretion standard. This Court will not disturb the finding of the trial court on such an issue unless it is manifestly wrong or exhibits a manifest abuse of discretion.” Microtek Med. Inc.
v. 3M Co., 942 So. 2d 122, 130 (¶24) (Miss. 2006), abrogated on other grounds by Upchurch Plumbing Inc. v. Greenwood Utils. Comm’n, 964 So. 2d 1100, 1116-17 (¶¶41-43) (Miss. 2007). “In this context, the word ‘manifest’ has been defined to mean ‘unmistakable, clear, plain, or indisputable.’” Id. (quoting Mosley v. Mosley, 784 So. 2d 901, 904 (¶7) (Miss. 1997)).

¶34. No rule requires a chancellor to hold a hearing prior to making a determination as to the reasonableness of requested attorneys’ fees. In addition, Mississippi Code Annotated section 9-1-41 (Rev. 2014) provides:

In any action in which a court is authorized to award reasonable attorneys’ fees, the court shall not require the party seeking such fees to put on proof as to the reasonableness of the amount sought, but shall make the award based on the information already before it and the court’s own opinion based on experience and observation; provided however, a party may, in its discretion, place before the court other evidence as to the reasonableness of the amount of the award, and the court may consider such evidence in making the award.[Fn 4]

[Fn 4] Section 9-1-41 applies “[i]n any action” in which an award of reasonable attorneys’ fees is authorized and thus applies regardless of whether the award is based on a statute, a contractual provision, or common law. See Staten, 559 B.R. at 670 n.4.

Finally, although a chancellor generally should provide some on-the-record analysis of the factors set out in Rule 1.5 of the Rules of Professional Conduct, the failure to do so is not per se reversible error, and the chancellor’s award may be upheld so long as the amount is “not unreasonable.” West v. West, 88 So. 3d 735, 747 (¶58) (Miss. 2012); see Jordan v. Jordan, 105 So. 3d 1130, 1135-36 (¶¶24-28) (Miss. Ct. App. 2012) (Fair, J., specially concurring).

¶35. Given the history of this litigation, the amount of fees awarded by the chancellor was “not unreasonable,” and we cannot say that she abused her discretion. The case was pending for five years and involved multiple depositions, a two-day trial, a motion to reopen the case, and other post-trial briefing and motions. Nonetheless, LPOA requested and was awarded attorneys’ fees for less than 60 hours of attorney time. We also note that the Berlins claimed that they were entitled to a considerably larger award of attorneys’ fees and costs ($31,637.50 as compared to $17,485.58) and claimed that their lawyers reasonably spent more that twice as many hours working on the case (about 125 hours as compared to about 60 hours). If the Berlins’ fee request was even in the ballpark of “reasonable,” then the chancellor’s award to
LPOA cannot be unreasonable. Finally, we note that although LPOA’s attorney filed his detailed time records with his affidavit in November 2014, the Berlins have never identified any duplicative or unnecessary time entries or articulated any way in which LPOA’s requested fees are unreasonable. Given the particular facts and history of this case, the amount of fees awarded was not unreasonable, and we cannot say that the chancellor abused her discretion by awarding fees without a hearing or additional findings of fact. See West, 88 So. 3d at 747 (¶58). Accordingly, the award of attorneys’ fees is affirmed.

A few points:

  • If you really, really, really want to make a record on the reasonableness and amount of attorney’s fees, you’d better insist on an on-the-record hearing. This case says you have no right to it, but you can’t really complain later if you don’t insist and make a record of your insistence.
  • I am so glad to see MCA 9-1-41 cited favorably in an appellate decision. It’s an underutilized tool, but one that can have considerable power.
  • Clever how Judge Wilson turned the Berlins’ argument as to the amount of their own attorney’s fees against them.

§ 2 Responses to No Hearing on Attorney’s Fees

  • susandtaylor says:

    Thanks for the update!

  • says:

    Learned Chancellor Primeaux –

    I ditto your comments about MCA Section 9-1-41

    and attorney fees!

    Insisting on a record hearing is the safest route to take.

    If there is doubt in your mind about how to proceed on

    the issue of attorney fee relief, feel free to ask the

    Chancellor about his or her policy/preference on this point……

    as Judge Dale would say…“never assume anything.”

    As always, thanks for sharing!

    R Doleac


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