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Sloan v. Cunningham

United States District Court, S.D. Alabama, Southern Division

January 18, 2018

LARRY E. SLOAN, Plaintiff,
v.
JAMES P. CUNNINGHAM, Defendant/Counterclaim Plaintiff,
v.
ECOVERY, LLC, Counterclaim Defendant.

          ORDER

          KRISTI K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE

         Before the Court is plaintiff Larry Sloan's motion for judgment, attorneys' fees, and costs associated with the underlying Promissory Note.[1] (Doc. 68).

         I. Background

         The Court entered Summary Judgment in favor of Sloan on November 29, 2017. (Doc. 67). The Court granted Sloan leave to supplement the record with the amount of damages due, and afforded Defendant James P. Cunningham the opportunity to respond. (Doc. 67 at 15). Now, Sloan moves this Court for entry of judgment. (Doc. 68). Sloan submitted evidentiary material in support of his Motion, including relevant legal bills and expenses. Sloan's request includes unpaid principal and prejudgment interest, attorneys' fees, and costs related to the collection of the debt. As of December 6, 2017, Sloan asserts Cunningham owed a total of $286.584.51 in principal and interest. (Doc. 68 ¶ 4). Additionally, under the terms of the Note, Sloan argues interest accrues each day at a rate of $41.19. (Id. at ¶ 5). Sloan requests the total amount plus per diem prejudgment interest up to and including the date of entry of judgment. (Id.). The request is as follows:

• $286, 584.51 - Principal and interest up to and including December 6, 2017
• Attorney's fees -
o $15, 158.61 - The Murray Firm
o $34, 620.00 - Briskman & Binion
• $8, 044.68 - Litigation costs (which includes $3, 250 in attorney's fees for John Crowley)
• $41.19 - Interest accrued daily beginning December 7, 2017

         II. Attorneys' Fees

         The relevant contract is a Promissory Note, executed by Cunningham in favor of Sloan on November 15, 2010. In it, Cunningham promised to pay principal and interest and “all costs of collection or securing or of attempting to collect or secure, this note and interest thereon, including without limitation, a reasonable attorney's fee . . . .” (Doc. 1-1 at 2).

         Sloan retained the services of three law firms during the course of the litigation: Coale, Dukes, Kirkpatrick & Crowley, P.C., The Murray Firm, and Briskman & Binion. The Murray Firm withdrew after initially representing Sloan and filing the suit in federal court. Briskman & Binion succeeded The Murray Firm and represented Sloan for the duration of this litigation. Coale, Dukes, Kirkpatrick & Crowley, P.C. represented Sloan in matters arising before litigation occurred and ended on December 9, 2016, according to invoices Sloan submitted.

         Alabama law applies to the Promissory Note. (Doc. 1-1 at 2 (“This note is to be construed according to the laws of the State of Alabama.”)). As noted by the Eleventh Circuit in McMahan v. Toto, 256 F.3d 1120, 1132 (11th Cir. 2001), the Supreme Court has held that

[I]n an ordinary diversity case where the state law does not run counter to a valid federal statute or rule of court, and usually it will not, state law denying the right to attorney's fees or giving a right thereto, which reflects a substantial policy of the state, should be followed.

Alyeska Pipeline Serv. Co. v. Wilderness Society, 421 U.S. 240, 259 n. 31 (1975).

         “Alabama follows the ‘American rule, ' whereby attorney fees may be recovered if they are provided for by statute or by contract . . . .” Jones v. Regions Bank, 25 So.3d 427, 441 (Ala. 2009) (citations omitted); Hartford Acc. & Indem. Co. v. Cochran Plastering Co., Inc., 935 So.2d 462, 472 (Ala. Civ. App. 2006) (citations omitted) (same). “The determination of whether an attorney fee is reasonable is within the sound discretion of the trial court . . . .” Kiker v. Probate Court of Mobile Cnty., 67 So.3d 865, 867 (Ala. 2010) (citations omitted). To reach a decision as to the reasonableness of the fee requested, Alabama courts consider a non-exclusive list of criteria that includes:

(1) The nature and value of the subject matter of the employment; (2) the learning, skill, and labor requisite to its proper discharge; (3) the time consumed; (4) the professional experience and reputation of the attorney; (5) the weight of his responsibilities; (6) the measure of success achieved; (7) the reasonable expenses incurred; (8) whether a fee is fixed or contingent; (9) the nature and length of a professional relationship; (10) the fee customarily charged in the locality for similar legal services; (11) the likelihood that a particular employment may preclude other employment; and (12) the time limitations imposed by the client or by the circumstances.

Pharmacia Corp. v. McGowan, 915 So.2d 549, 552-53 (Ala. 2004) (quoting Van Schaack v. AmSouth Bank, N.A., 530 So.2d 740, 749 (Ala. 1988) (internal brackets omitted). “These criteria are for purposes of evaluating whether an attorney fee is reasonable; they are not an exhaustive list of specific criteria that must all be met.” Id. Instead, the Alabama Supreme Court explained “they are available for the trial judge to use in connection with each claim for attorney's fees.” Graddick v. First Farmers and Merchants Nat. Bank of Troy, 453 So.2d 1305, 1311 (Ala. 1984).

         The trial court may consider both expert opinion and its own judgment in determining the reasonableness of the requested fees. See, e.g., Beal Bank, SSB v. Schilleci, 896 So.2d 395, 404 (Ala. 2004) (“The trial court, in connection with a consideration of the opinion evidence proffered by qualified experts, may call to his aid his own estimate of the value of such legal services after considering the aforementioned elements and, generally speaking, the allowance rests within the sound judicial discretion of the trial court.”) (quoting Ingalls v. Hare, 96 So.2d 266, 274 (Ala. 1957)). Overall, “a fee is clearly excessive when after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee.” Peebles v. Miley, 439 So.2d 137, 143 (Ala. 1983).

         The party requesting fees has the burden of supplying the Court with evidence from which the Court can determine the reasonable rate. Am. Civil Liberties Union of Ga. v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999) (citing Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988)). “A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation.” Norman, 836 F.2d at 1299. In this case, Mobile, Alabama is the relevant legal community. See Barnes, 168 F.3d at 437 (“[T]he relevant market for purposes of determining the reasonable hourly rate for an attorney's services is ‘the place where the case is filed.'”) (citation and quotation marks omitted).

         The Court must also determine whether the time expended on the matter is reasonable. “In determining whether the number of hours expended are reasonable, the court should not include any hours which are ‘excessive, redundant or otherwise unnecessary.'” Wright v. Holifield, 2013 WL 105768, at *3 (S.D. Ala. Jan. 9, 2013) (quoting Norman, 836 F.2d at 1301). A party cannot recover fees for hours expended that are excessive, redundant, or “unreasonable to bill to a client and therefore to one's adversary irrespective of the skill, reputation or experience of counsel.” Norman, 836 F.2d at 1301 (emphasis omitted).

         “When an applicant for attorney fees has carried his burden of showing that the claimed rate and number of hours are reasonable, the resulting product is presumed to be the reasonable fee to which counsel is entitled.” Beal Bank, SSB, 896 So.2d at 408 (internal quotations omitted). After calculating the lodestar, “[t]he court may then adjust the lodestar to reach a more appropriate attorney's fee, based on a variety of factors, including the degree of the ...


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