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Billieson v. City of New Orleans

Court of Appeals of Louisiana, Fourth Circuit

August 2, 2017

CASEY BILLIESON, ET AL
v.
CITY OF NEW ORLEANS

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 1994-19231, DIVISION "A" Honorable Tiffany G. Chase, Judge

          LOBRANO, J., CONCURS IN THE RESULT Joseph M. Bruno BRUNO & BRUNO LLP COUNSEL FOR PLAINTIFF/APPELLANT

          James McClendon Williams CHEHARDY, SHERMAN, WILLIAMS, MURRAY, RECILE, STAKELUM & HAYES, LLP COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Chief Judge James F. McKay, III, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods

          Regina Bartholomew-Woods, Judge

         Class Counsel/Appellant, Joseph M. Bruno, brings this appeal of the trial court's August 3, 2016 ruling in favor of Appellee, James M. Williams, ordering payment to the Irpino Law Firm for the firm's services in representing Mr. Williams. The payment, totaling $87, 061.50, is purportedly for work performed in relation to what will be referred to as the "Billieson Litigation, " and was ordered to be drawn from an administrative expense account established specifically for the Billieson Litigation. For the reasons that follow, we reverse the ruling of the trial court and remand this matter for further proceedings.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         The underlying case, originally filed in 1994, concerned children who suffered from exposure to lead paint in public housing buildings owned and operated by the Housing Authority of New Orleans ("HANO"). On October 27, 1997, a hearing on class certification was conducted, and the trial court denied the plaintiffs' request to certify the class. However, on March 3, 1999, this Court reversed the trial court's decision, certified the class, and remanded the matter for further proceedings. Billieson, et al v. City of New Orleans, 98-1232 (La.App. 4 Cir. 3/3/99), 729 So.2d 146. On February 9, 2000, several attorneys, including Joseph M. Bruno, were appointed as class counsel for the Billieson Litigation class action. The case continued for another ten (10) years until multiple settlements with the defendants were reached in 2010.

         In two (2) separate judgments, both dated December 29, 2011, the trial court approved the settlements and ordered that forty percent (40%) of the total settlement amount be set aside for attorneys' fees. However, class counsel could not agree upon the allocation of said fees. As a result of the disagreement among class counsel, on May 24, 2014, the trial court ordered that Scott Bickford and James Williams be appointed co-special masters pursuant to La.R.S. 13:4165, and charged them to, inter alia, "create or adopt any existing procedure for the fair, equitable and reasonable allocation and distribution of attorney fees." The order provided that the special masters would be compensated at a rate of $350.00 per hour, and that "attorneys who assist" them would be compensated at a rate of $175.00 per hour. The special masters were ordered to "jointly submit to the Court, with copy to counsel, a monthly accounting of their billing and expenditures of cost." Furthermore, the court ordered that "[a]ll bills must be submitted to all counsel before submission to the Court."

         On August 6, 2014, Motions to Disqualify and Remove Special Master Williams were filed by several class counsel. On August 7, 2014, Judge Chase recused herself from hearing the Motions to Disqualify Special Master Williams re-allotted the disqualification hearing to another division of the trial court. It was ultimately re-allotted to Judge Julien. A hearing ensued on October 24, 2014. On October 27, 2014, Judge Julien issued a judgment in which she, inter alia, denied the Motions to Disqualify and Remove Special Master Williams.

          On December 8, 2014, Special Master Williams through the Irpino Law Firm, filed a motion to amend the trial court's May 24, 2013 order, which appointed Bickford and Williams as co-special masters; in the motion he requested that the special masters be dismissed from the attorneys' fee division determination portion of the underlying case. The trial court granted the motion to amend on December 15, 2014, and Special Masters Bickford and Williams were dismissed from the attorneys' fees division determination portion of the underlying case. However, the Irpino Law Firm continued to provide legal services to Special Master Williams through March of 2015.

         Over a year later, on or about June 23, 2016, Special Master Williams filed a Motion for Payment, wherein he moved for payment directly to the Irpino Law Firm in the amount of two hundred twenty-three thousand, eight hundred seventy-five dollars ($223, 875.00) for services rendered. On July 5, 2016, Class Counsel/Appellant Joseph M. Bruno filed a memorandum in opposition to Special Master Williams' motion for payment. On or about the same date, class counsel Gary J. Gamble and Jennifer N. Willis also filed oppositions to Special Master Williams' motion for payment. A hearing on the motion for payment was held on July 13, 2016, and at the conclusion of the hearing, the trial court orally stated the following:

Well, one of the arguments that was raised specifically, I believe by Mr. Bruno's office, is whether or not attorneys' fees are not contemplated by the special master statute. And, as everyone in this room is aware, this case is not - has not been anything near normal since this Court has taken over this case. And while I understand that - I believe - and I am jumping back and forth between Mr. Gambel's opposition and Miss Willis' opposition and Mr. Bruno's opposition and pulling bits and pieces from it, but as it relates to the fact that attorneys' fees are not contemplated under [La. C.C.P. art. 151], and on recusal motions, I do not believe that Mr. Williams was taking a position. But the problem with it was, as I am sure Mr. Gambel learned, you know, a lot of us did not realize how things were really moving with what you have to do - I did not know when I was supposed to call the Attorney General in the case and whether or not you could subpoena someone in a case, a judge in a case. So I think that there were a lot of things that were learned through the process in this case.
I am going to grant the motion for payment. However, I am going to list the attorneys' fees for Mr. Irpino at the Attorney General rate at the time of the occurrence of the bills . . . I Googled it, and the only thing I could find was some Attorney General rates for LSU and some other entities, and that came up to $175[.00] an hour.

         On August 3, 2016, the trial court issued its written judgment as follows:

The Irpino Law Firm will be paid at a rate of $175.00 per hour for its time spent representing Co-Special Master James Williams in connection with the Billieson litigation. The 497.50 hours spent by the Irpino Law Firm were justified and reasonable. However, the Court finds that $175.00 per hour is the amount which would have been charged if Co-Special Master James Williams had gone through the Attorney General's office for representation. Although Mr. Irpino's experience and reputation warrant his billed amount, the Court will only allow an hourly rate of $175.00 per hour. Accordingly:
It is hereby ordered that the CADA shall make payment to the Irpino Law Firm in the amount of $87, 062.50 (eighty seven thousand sixty-two dollars and fifty cents) from the administrative expense account in the Billieson matter.

         On August 5, 2016, Appellant, Joseph Bruno, on behalf of himself and in his capacity as class counsel, filed a motion and incorporated memorandum for new trial. The trial court denied the motion for new trial on August 9, 2016. Mr. Bruno filed a petition for order of suspensive appeal on August 12, 2016. On August 22, 2016, the trial court granted the petition for suspensive appeal and set a bond and/or security in the amount of one hundred thousand dollars ($100, 000.00). Mr. Bruno then filed a request for written reasons on August 24, 2016. On the same date, Mr. Bruno notified the trial court of his intent to seek supervisory review of the trial court's August 3, 2016 order to disburse the payment to the Irpino Law Firm and its August 22, 2016 order setting the suspensive appeal bond in the amount of one hundred thousand dollars ($100, 000.00). On August 25, 2016, the trial court provided written reasons for the order and set a return date of September 26, 2016. Mr. Bruno filed a writ application with this Court on September 8, 2016, asserting that the trial court committed legal error when it set the suspensive appeal bond in the amount of one hundred thousand dollars ($100, 000.00). This Court granted the writ and remanded to the trial court to set bond in accordance with La. C.C.P. art. 2124(B)(2). Bond was accordingly reset in the appropriate amount of $334.50. Now, the matter comes to this Court on Appeal of the trial court's award of attorneys' fees.[1]

         ASSIGNMENT OF ERROR

         Appellant generally argues the trial court erred in granting the motion for payment. The assignment of error has several prongs, the first of which argues that the special master statute, La. R.S. 13:4165, does not contemplate an award of attorneys' fees. Appellant highlights the statute's silence in that regard, and references well-established jurisprudence holding that attorneys' fees are only appropriate when specifically authorized by statute or contract. Appellant makes a similar argument with respect to La. C.C.P. art. 151, the article relied upon by class counsel in moving to disqualify Special Master Williams.[2] Appellant equates the rights and responsibilities of a Special Master to that of a judge, based upon the Louisiana Supreme Court's June 23, 2014 promulgation of subsection (E) to its Code of Judicial Conduct applicable to compliance with the code, which states:

During the tenure of his or her appointment in accordance with statutory law, a special master is required to comply with all of the provisions of Canons 1 through 5, except Canons 5C(3), 5D, and 5E. In addition, a special master will not be subject to the prohibitions in Canons 4B, 4C, 5B(2), and 5C(2). As to Canons 6 and 7, a special master is required to comply with Canon 6B(1) and is prohibited from soliciting or accepting political campaign contributions while serving as a special master. A special master who becomes a candidate for judicial office shall be subject to all of the provisions of Canon 7 that apply to judicial candidates.[3]

         In making this comparison, Appellant argues that because a judge has "no personal right to continue handling a case, " a special master is similarly so limited, and need not employ the services of private counsel to maintain his or her status in any particular case. Appellant further submits the debt owed to the Irpino Law Firm "is not real" as there is no evidence that Special Master Williams has made any payment, and that, in any event, the firm's representation was not "successful" because Special Master Williams voluntarily withdrew from his role in that regard on the issue of attorneys' fees. Lastly, Appellant critiques the trial court's judgment for its lack of statutory or jurisprudential support, suggesting that the trial court judge simply relied on the "unique circumstances" of the Billieson Litigation as justification for her ruling. Appellant further suggests the ruling lends support to his contention ...


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