routine collections. The cases and the note cited are also not apposite since, as the history of the litigation demonstrates, this case is anything but a routine collection case. The usual foreclosure does not involve two attempts for TRO's in both the District and Superior Court of the District, emergency motions in the Superior Court and in the D.C. Court of Appeals, and an appeal to the D.C. Circuit on the issue of liability on the note and the note's compliance with D.C. Code § 28-3301(c). Given the length and intensity of this litigation, the market rates charged by King & Nordlinger and Arent, Fox for general litigation services are appropriate rates. Thus, we adopt these rates as the reasonable hourly rates for the purposes of calculating a "lodestar" fee.
B. Reasonable Number of Hours Expended
We turn to examine Shannon & Luchs' fee application to determine if the hours claimed for activities within the scope of attorney's fees provisions of the deed of trust are reasonable. Shannon & Luchs has submitted copies of its computerized time records, as well as summaries of these records in support of its application. These records meet the requirements set forth by the Court of Appeals in National Association of Concerned Veterans, 675 F.2d at 1327. Shannon & Luchs' fee application requests fees starting in November, 1981 and ending in September, 1983, a period of twenty-two (22) months.
For November and December, 1981, Shannon & Luchs asks fees of 3.4 hours of work. Since this activity took place prior to the filing of this lawsuit, there is no danger of allowing recovery on non-prevailing claims. At that time, Shannon & Luchs was preparing to foreclose on the Foxhall Road property or to take other steps to enforce the note and the deed of trust. These fees, for conferences and preliminary work, seem reasonable and are within the scope of the deed of trust. Thus, recovery of these fees will be allowed.
In January, 1982, all activity surrounded the filing of the action, the motion for a TRO, and the entry of the stipulation and order of Judge Penn. As previously indicated, all these hours are within the scope of the deed of trust. We also find that the hours claimed by Shannon & Luchs for work done both by Arent, Fox and by King & Nordlinger were reasonably expended considering the amount and level of activity during that month. Thus, Shannon & Luchs can recover all fees claimed for this month.
In February, 1981, the time claimed was expended in order to answer the complaint and to prepare and to file defendants' successful opposition to plaintiffs' motion for summary judgment and the motion for summary judgment on the counterclaims and on Count II. This time appears to have been reasonably expended, and it is within the scope allowed by the deed of trust. Thus, recovery for these hours is allowed.
For March, 1982, of the fees requested by Shannon & Luchs, we deduct 2.0 hours of time spent by J. Mercurio for work on the notice of deposition and request for documents and preparing the opposition to the motion for a protective order. These excluded fees lie outside the scope of the deed of trust because they relate solely to the claims arising out of the brokerage agreement rather than from the deed of trust. All other hours are allowed as reasonable, including the hours expended to oppose plaintiffs' first appeal of the March 18 summary judgment.
Of the time expended in April, 1982, the vast majority was spent litigating the Joseph v. Luchs action in Superior Court and the motion brought in this court to enforce Judge Penn's order. We will disallow, however, 4.0 hours expended by J. Mercurio for the Singer deposition, for the request for documents, for the interrogatories, and for conferences with G. Marx, on April 6 and 19 as beyond the scope of the deed of trust. For G. Marx, in addition to the 3.0 hours deducted by Shannon & Luchs for the Singer deposition, we further deduct 2.0 hours for conference with J. Mercurio on April 6 and for preparation of questions for the Joseph deposition
as well as 3.2 hours spent on preparing a request for production of documents and interrogatories. The remainder of the hours expended by Arent, Fox and King & Nordlinger appear to be reasonable.
For May, 1982, the principal deductions made from the Shannon & Luchs request are for discovery other than the deposition of Joseph on May 12, 1982, and for work apparently duplicative or unused. For J. Mercurio we deduct 1.0 hours spent preparing interrogatory answers, opposition and objections. All the time for G. Marx is deducted since it relates to interrogatories, or is for review of "splitting cause of action," for which there is no indication that such work was used in litigation. Of the time requested for J. Bartoo, 9.4 hours for preparation of objections and answers to interrogatories are deducted, as well as 9.1 hours spent reviewing the file and interrogatory answers, which seem unnecessarily duplicative. In addition 2.0 hours of conference time for J. Bartoo are also deducted. Of D. Whiddon's time, the 1.5 hours spent on Judge recusal work is excluded because the issue of recusal was not a part of this case. The remainder of the hours expended and claimed were related to compensable aspects of the case and were reasonably expended.
Of the time expended by Shannon & Luchs attorneys from June 1-16, 1982, virtually all the time relates either to the flurry of eleventh hour activity in Joseph or to the foreclosure sale. This all falls within the scope of the deed of trust and is reasonable in light of the substantial amount of litigious activity. We deduct only 0.2 of J. Mercurio's time spent preparing a deposition. The remainder of the hours for June 1-16 are allowed.
Of the hours claimed for June 17-30, 1982, most of these hours are compensable portions of the Joseph litigation. We deduct the 12.9 hours spent by G. Marx on a response to a motion to compel filed by plaintiffs and 20.0 hours spent by J. Stuckey on research on an abuse of process motion -- which was never filed -- and on the admissibility of evidence presented during previous litigation. All other hours are allowed, including the hours related to the motion to dismiss the Joseph action.
For the time expended in July and August, 1982, Shannon & Luchs requests compensation for work relating to plaintiffs' motion to amend the March 18, 1982 summary judgment and for the motion to dismiss Joseph v. Luchs. These hours are compensable under the deed of trust and appear to be reasonably expended. Thus, all requested hours are allowed for July and August, 1982.
For September 1982, the hours claimed by Shannon & Luchs relate primarily to the plaintiffs' motion to stay judgment. Since plaintiffs succeeded in staying the judgment as to $ 15,000 of a $ 115,452.99 judgment, Shannon & Luchs can only recover 87% of the hours expended on the motion to stay the judgment during this month. In addition, we deduct 1.8 hours spent on conferences and letters to Rucci, whose deposition was taken during September, 1982. This means that Shannon & Luchs can be compensated for.6 hours for G. Marx, 7.7 hours for J. Mercurio, 6.1 hours for D. Personette, and 3.0 hours for C. McDaid. The hours claimed for King & Nordlinger will be allowed in full since these are related to the motion to dismiss Joseph only.
For October, 1982, we deduct all time spent litigating the plaintiffs' motion to compel. This encompasses 6.5 hours for G. Marx and 0.5 hours for J. Mercurio. We also exclude 2.3 hours for J. Mercurio relating to the Bernstein deposition. We allow in full the hours accumulated on a hearing on the motion to dismiss Joseph ; and we allow 87% of 4.3 hours expended by J. Mercurio on the motion to stay judgment, i.e. 3.7 hours. The hours for King & Nordlinger are allowed as reasonable.
For November, 1982 all the hours claimed relate either to the execution of the unstayed judgment or to plaintiffs' largely unsuccessful motion at the D.C. Circuit for summary reversal. As to the hours for enforcement of the judgment, these hours are allowed under the note and are reasonable. As to the hours expended on the motion for summary reversal, Shannon & Luchs is clearly entitled to recover most of these fees, since summary reversal was denied as to all aspects of the judgment except the attorney's fee award. Since Shannon & Luchs has deducted 20% of its expenditures in connection with the main appeal, a figure we find to be a more than reasonable division between the attorney's fee issue and the other issues on appeal, we also apply this figure to the motion for summary reversal.
As such, of the 2.2 hours claimed for J. Mercurio on the motion for summary reversal, we allow recovery for 1.7 hours; for D. Personette, we allow recovery for 3.4 hours.
For December, 1982 through May, 1983, all the hours claimed relate to the appeal. Applying the same 20% reduction, Shannon & Luchs may recover only for 1.2 of the 1.6 hours claimed for December, 1982, all hours claimed on behalf of Arent, Fox for January, 1983, 1.0 hours for King & Nordlinger for January, 1983, 0.5 hours for Arent, Fox for February, 1983, 1.5 hours for Arent, Fox for March, 1983, 0.3 hours for King & Nordlinger for April, 1983, 1.9 hours for King & Nordlinger for May, 1983, and all hours claimed for Arent, Fox for May, 1983. These hours all represent 80% of the total hours spent working on the appeal for each month.
As to the hours claimed for July through September, 1983, these hours represent work on the enforcement of the judgment or incidental communications between counsel. All these hours are allowable under the deed of trust, and are reasonable in amount, except the 2.0 hours claimed for J. Mercurio in September to attend a status call is deducted.
C. The Lodestar Fee
Having determined the reasonable hourly rate and the reasonable number of hours expended, all that is left is to calculate the lodestar fee. This calculation is summarized in Exhibit 1, attached to this opinion. In total, Shannon & Luchs is entitled to receive $ 53,750.90 in attorney's fees for all compensable litigation up to, but not including, the time expended in preparing this fee application. As we stated in connection with our previous fee award, this award, seemingly disproportionate to the amount of the note, has been "caused by plaintiffs own obstructive behavior in pursuing every device to prevent the foreclosure from taking place." Order of January 10, 1984 at 2. This lodestar figure represents a reasonable attorney's fee due under the terms of the deed of trust.
III. Reasonable Expenses Claimed in July 1986 Petition
In order to award costs, these too must be segregated to include only those costs within the scope of the deed of trust and incurred in connection with successful litigation. Of the expenses submitted for reimbursement, Shannon & Luchs cannot recover any transcript costs, except those incurred in connection with the May, 1982 deposition of Joel Joseph. The remaining expenses are, however, not so easily segregated. For these expenses, such as copying, messenger fees, phone charges, the costs will be apportioned based on the percentage of billable hours for which recovery of fees is allowed.
The total amount of expenses claimed by Shannon & Luchs through September, 1983 is $ 4,588.23. Of this amount, transcript costs of $ 460.36 are excluded. On the remaining amount, 86.6% of the expenses are compensable, reflecting the same percentage recovery as for the hours of billable personnel time claimed by Shannon & Luchs.
The total amount of expenses due Shannon & Luchs is $ 3,574.74.
IV. Attorney's Fees & Expenses Incurred Preparing the Fee Application
Shannon & Luchs has also petitioned for an award of the attorney's fees and expenses incurred in connection with the present fee application. Plaintiffs do not dispute that Shannon & Luchs is entitled to such an award. Plaintiffs object, instead, on the same grounds as for the principal petition for attorney's fees, asserting failure to prove that the rates claimed are reasonable rates and arguing that the aggregate attorney's fee request is excessive.
Because Shannon & Luchs' petition for fees incurred in connection with the fee application is accompanied by an affidavit from Mr. Mercurio similar to the affidavit accompanying the principal application, plaintiffs' objections as to the reasonableness of the hourly rates are rejected for the same reasons that the same objections were rejected in the context of the principal fee award. Again, we find, based on our experience, that Arent, Fox's usual hourly rates are within the range of fees charged by firms of comparable stature for commercial litigation.
As to the aggregate amount of fees claimed in connection with the present application for attorney's fees, we note that these amounts seem excessive. The D.C. Circuit has, however, mandated that we follow the lodestar method in assessing attorney's fees. Thus, an award of fees is appropriate for all hours reasonably expended. Plaintiffs point to no hours claimed that they consider to be excessive. In light of the detail required to sustain a fee application, we also cannot point to any unreasonably expended hours. The Court of Appeals has required that the activities for which fees are claimed be segregated, and that the petitioning party compile substantial documentation of the hours spent on these activities, and the purposes for which these hours were expended. Such detail takes time to assemble and to organize, and adds significantly to the cost of preparing a fee application.
Petitioner cannot, however, recover fees and expenses for those parts of the attorney's fee application on which they did not prevail. Thus, the aggregate fees and costs for this motion will only be allowed in the same proportion that such aggregate fees and costs were allowed on the principal motion for fees and expenses. Since we have awarded fees and costs totalling $ 57,325.64 of a total request by Shannon & Luchs of $ 65,242.13, Shannon & Luchs can recover 87.8% of the fees and expenses incurred in connection with the fee application. Thus, on Shannon & Luchs petition for fees and costs incurred in connection with its application for attorneys' fees we award petitioners $ 12,377.16 in attorney's fees and $ 278.34 in costs.
Upon consideration of the fee petitions submitted by Shannon & Luchs, Shannon & Luchs is entitled to $ 53,750.90 in attorney's fees and $ 3,574.74 in costs incurred during the litigation between plaintiffs and Shannon & Luchs. In addition, Shannon & Luchs shall receive attorney's fees of $ 12,377.16 and costs of $ 278.34 incurred in connection with its application for attorney's fees.
An order consistent with the foregoing has been entered this day.
ORDER AND FINAL JUDGMENT
For the reasons stated in the accompanying memorandum opinion, it is by the court this 9th day of February, 1987,
ORDERED that Shannon & Luchs' motion for attorneys' fees and expenses is granted to the extent of $ 53,750.90 in attorney's fees and $ 3,574.74 in expenses, and that the remainder of Shannon & Luchs' motion for attorney's fees is denied; and it is
ORDERED that Shannon & Luchs motion for attorney's fees and expenses incurred in connection with its fee application is granted to the extent of $ 12,377.16 in attorney's fees and $ 278.34 in expenses, and the remainder of Shannon & Luchs motion for attorney's fees and expenses incurred in connection with its fee application is denied.
There being no issues left for this court to adjudicate, it is by the court
FURTHER ORDERED, ADJUDGED AND DECREED that defendant Shannon & Luchs Company, in addition to any amounts previously recovered on its counterclaims in this action, recover from plaintiffs Arlene B. Singer and Joel D. Joseph, jointly or severally, the aforesaid amounts of attorney's fees and expenses totalling $ 69,981.14, with interest thereon at the rate provided in 28 U.S.C. § 1961, against Arlene B. Singer and Joel D. Joseph and each of them.
Singer et al. v. Shannon Luchs Attorneys' Fee Summary
Hours Hours Hourly
Date Attorney Claimed Granted Rate Total
Nov. 1981 D. Huddle 1.40 1.40 70 98.00
R. Luchs 0.50 0.50 70 35.00
Dec. 1981 D. Huddle 0.20 0.20 70 14.00
R. Luchs 1.30 1.30 70 91.00
Jan. 1982 G. Marx 2.80 2.80 95 266.00
J. Mercurio 18.90 18.90 145 2,740.50
R. Luchs 6.90 6.90 70 483.00
Feb. 1982 G. Marx 31.30 31.30 95 2,973.50
J. Mercurio 7.40 7.40 145 1,073.00
R. Luchs 0.90 0.90 70 63.00
Mar. 1982 C. Strong 0.20 0.20 130 26.00
G. Marx 14.20 14.20 95 1,349.00
J. Mercurio 11.80 9.80 145 1,421.00
R. Luchs 1.60 1.60 70 112.00
Apr. 1982 G. Marx 9.90 4.70 95 446.50
J. Mercurio 35.90 31.90 145 4,625.50
R. Luchs 6.40 6.40 80 512.00
D. Huddle 0.30 0.30 80 24.00
W. Daisley 5.20 5.20 80 416.00
May-82 G. Marx 1.20 0.00 95 0.00
J. Mercurio 32.00 31.00 145 4,495.00
J. Bartoo 45.90 25.40 80 2,032.00
D. Whiddon 3.00 1.50 40 60.00
D. McDaid 1.50 1.50 40 60.00
R. Luchs 2.60 2.60 80 208.00
W. Daisley 1.20 1.20 80 96.00
June 1-16, G. Marx 2.00 2.00 95 190.00
1982 J. Mercurio 31.50 31.30 145 4,538.50
M. Jaffe 0.70 0.70 150 105.00
H. Sinclair 8.80 8.80 100 880.00
D. Whiddon 1.00 1.00 40 40.00
D. McGann 1.70 1.70 40 68.00
J. Stuckey 4.70 4.70 1 4.70
P. Landen 23.20 23.20 1 23.20
R. Luchs 5.80 5.80 80 464.00
D. Huddle 1.00 1.00 80 80.00
W. Daisley 1.00 1.00 80 80.00
Subtotal to June 16, 1982 325.9 290.3 30193.4
June 17-30, J. Mercurio 7.60 7.60 145 1,102.00
1982 G. Marx 12.90 0.00 95 0.00
H. Sinclair 0.90 0.90 100 90.00
P. Landen 54.40 54.40 1 54.40
J. Stuckey 20.00 0.00 1 0.00
R. Luchs 1.00 1.00 80 80.00
Jul-82 J. Mercurio 5.60 5.60 145 812.00
G. Marx 13.70 13.70 95 1,301.50
P. Landen 4.10 4.10 1 4.10
R. Luchs 2.90 2.90 80 232.00
Law Clerk 0.30 0.30 11.00
Aug. 1982 J. Mercurio 10.80 10.80 145 1,566.00
G. Marx 4.40 4.40 95 418.00
C. McDaid 5.00 5.00 40 200.00
Library 0.30 0.30 40 12.00
D. Huddle 0.30 0.30 80 24.00
Sept. 1982 J. Mercurio 10.70 7.70 145 1,116.50
G. Marx 0.70 0.60 95 57.00
D. Personette 7.00 6.10 65 396.50
C. McDaid 3.40 3.00 40 120.00
R. Luchs 0.50 0.50 80 40.00
Oct. 1982 J. Mercurio 15.20 11.80 145 1,711.00
G. Marx 7.80 1.30 95 123.50
C. McDaid 1.60 1.60 40 64.00
M. Finnemore 0.50 0.50 40 20.00
R. Luchs 0.30 0.30 80 24.00
Nov. 1982 J. Mercurio 5.40 4.90 145 710.50
G. Marx 5.30 5.30 95 503.50
D. Personette 4.50 3.40 65 221.00
C. McDaid 9.40 9.40 40 376.00
Dec. 1982 J. Mercurio 1.60 1.20 145 174.00
Jan. 1983 J. Mercurio 8.90 8.90 160 1,424.00
G. Marx 48.90 48.90 100 4,890.00
Y. Edwards 10.80 10.80 30 324.00
R. Luchs 0.70 0.50 80 40.00
W. Daisley 0.60 0.50 80 40.00
Feb. 1983 J. Mercurio 0.70 0.50 160 80.00
Mar. 1983 G. Marx 1.90 1.50 100 150.00
Apr. 1983 W. Daisley 0.40 0.30 80 24.00
May-83 J. Mercurio 10.30 10.30 160 1,648.00
R. Luchs 0.70 0.50 80 40.00
W. Daisley 2.00 1.40 80 112.00
Jul-83 R. Luchs 0.30 0.30 80 24.00
Aug. 1983 J. Mercurio 5.00 5.00 160 800.00
R. Luchs 0.20 0.20 80 16.00
W. Daisley 0.50 0.50 80 40.00
Sept. 1983 J. Mercurio 8.80 6.80 160 1,088.00
G. Marx 0.40 0.40 100 40.00
J. Bartoo 11.20 11.20 85 952.00
D. Munkasey 5.80 5.80 45 261.00
Subtotal June 17, 1982
to Sept. 336.20 283.20 23,557.50
Totals 662.10 573.50 53,750.90
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