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SINGER v. SHANNON & LUCHS CO.

February 9, 1987

Arlene B. Singer, et al., Plaintiffs,
v.
Shannon & Luchs Company, et al., Defendants



The opinion of the court was delivered by: PRATT

 John H. Pratt, Judge

 The court once again considers motions by Shannon & Luchs for attorney's fees in litigation with Arlene Singer and Joel Joseph. Now before the court are Shannon & Luchs' motion for attorney's fees and expenses, and Shannon & Luchs' motion for attorney's fees and expenses incurred in connection with its fee application. This case is on remand from the Court of Appeals, which directed that we state with specificity our calculation of attorney's fees awarded to Shannon & Luchs, especially with regard to the work done on the successive appeals in this case. Shannon & Luchs has presented petitions for attorney's fees supported by detailed documentation of the hours expended on this litigation and affidavits setting forth the hourly rates charged by the various attorneys employed in this case. Plaintiffs oppose both motions for fees and expenses.

 Background

 In order properly to evaluate the fee applications, it is necessary to detail the long, circuitous and tortured journey this case has taken through the judicial system. This case arises out of a $ 90,000 loan advanced by the National Savings and Trust Company (NS&T) to Joel Joseph and Arlene Singer (plaintiffs) in April, 1981. Plaintiffs sought this loan in order to purchase another home. Plaintiffs executed a promissory note to cover the loan; repayment of the note was guaranteed by Shannon & Luchs and was secured by a deed of trust to American Security Bank on plaintiffs' property on Foxhall Road in the District of Columbia. By the terms of the note and the deed of trust, payment of the entire amount of principal and interest was due within 180 days, or upon the sale of the Foxhall Road property, whichever occurred first. Shannon & Luchs was the exclusive broker of plaintiffs' Foxhall Road property.

 For reasons which are not of record, the Foxhall Road property did not sell. Plaintiffs refused to pay the note when it came due, so NS&T called upon Shannon & Luchs to satisfy its guarantee. Shannon & Luchs paid the principal and interest due, an amount totalling $ 96,696.99, to NS&T, following which Shannon & Luchs commenced steps toward foreclosure. In order to prevent foreclosure, plaintiffs on January 18, 1982, filed this action against Shannon & Luchs alleging antitrust violations, violations of D.C. law governing second mortgages, breach of Shannon & Luchs fiduciary duty as real estate agent for plaintiffs, and breaches of the broker listing contracts. Plaintiffs also moved for a temporary restraining order to prevent foreclosure.

 On January 29, 1982, Judge Penn, by stipulation and order, directed plaintiffs to pay to Shannon & Luchs $ 2,100, in consideration for which Shannon & Luchs agreed not to proceed with foreclosure during the following two months, unless plaintiffs defaulted on the payment of the $ 2,100. After April 1, 1982, however, Judge Penn's order permitted Shannon & Luchs to proceed with foreclosure and forbade plaintiffs from seeking to enjoin or otherwise to restrain a foreclosure sale. By the terms of this stipulation and order, plaintiffs also withdrew their motion for a TRO.

 Plaintiffs then filed a motion for summary judgment on Count II of the complaint. Count II alleged violations of the D.C. law governing the terms of mortgages. Defendants counterclaimed for liability on the note and cross-moved for summary judgment on Count II of the complaint and on its counterclaims. On March 18, 1982, this court denied plaintiffs' motion for summary judgment and granted of Shannon & Luchs' cross-motion for summary judgment. Judgment was so entered on the same day.

 This case then made its first trip to the United States Court of Appeals when plaintiffs appealed from the grant of summary judgment. Shannon & Luchs moved to dismiss the appeal on grounds of lack of finality. The Court of Appeals granted this motion and dismissed the appeal on March 31, 1982. The court noted that an appeal would be proper if this court directed entry of final judgment on the adjudicated claims.

 On April 21, 1982, plaintiff Joel Joseph shifted the area of combat by filing suit in the Superior Court for the District of Columbia. Joseph v. Luchs, Civil Action No. 5791-82 (hereinafter the Joseph action). *fn1" The complaint in Joseph alleged that Shannon & Luchs had breached its duties as trustees under the deed of trust by failing to make an independent determination of the need for foreclosure. One week later, on April 28, 1982, Joseph filed a motion for a temporary restraining order seeking to restrain the foreclosure in order for the court to have a chance to name new trustees. Defendant opposed the motion for a TRO, and filed a motion to stay the proceedings on April 29. In connection with this action, Joseph's deposition was taken on May 12, 1982. Defendant moved to dismiss under Fed. R. Civ. P. 41(b) on May 17, 1982.

 The litigation in the Superior Court also triggered a round of motions in this court. On April 28, 1982, Shannon & Luchs moved in this court to remedy plaintiffs' violation of Judge Penn's stipulation and order. After briefing and a hearing, this court ordered Joseph to comply with Judge Penn's January, 1982 order and to cease seeking relief restraining foreclosure. Order of May 20, 1982. We also directed Joseph to pay costs, excluding attorney's fees, incurred by Shannon & Luchs in filing both the motion to enforce Judge Penn's order of January 29, 1982, and its opposition to the temporary restraining order filed in Superior Court.

 On June 3, 1982, Joseph in compliance with this court's May 20 order, withdrew his motions in Superior Court for a TRO and for a preliminary injunction. With the June 16 date of the foreclosure sale fast approaching, Joseph, still undaunted, filed on June 8, 1982, an emergency motion to remove the trustees of the deed of trust. At a hearing on June 10, 1982, the Superior Court denied this motion. Plaintiff Joseph then sought an emergency ruling by the District of Columbia Court of Appeals, which denied his motion on June 15, 1982. The foreclosure sale then proceed as scheduled on June 16. The Joseph v. Luchs litigation in the Superior Court terminated four months later, with no intervening activity, when Judge Bowers of that court granted defendants' motion to dismiss on October 28, 1982. *fn2" Order of Oct. 28, 1982, Civ. No. 5791-82 (D.C. Super.).

 The foreclosure sale did not, however, end litigation in this court. First, with respect to the amounts due under the promissory note, the foreclosure sale did not satisfy the full amount due. Shannon & Luchs then moved for an order making this court's summary judgment final, pursuant to Fed. R. Civ. P. 54(b). The court granted this motion on September 17, 1982, and entered judgment for $ 96,696.99, 14% interest from October 27, 1981, foreclosure costs of $ 3,006, transfer tax of $ 750 and attorney's fees of $ 15,000.

 This case then made its second trip to the United States Court of Appeals. After filing the notice of appeal, plaintiffs filed a motion for stay of judgment in this court, which was granted as to the attorney's fee award but which was denied as to all other parts of the judgment. Plaintiffs then filed a similar motion in the Court of Appeals, which was denied for lack of a supersedeas bond. Order of Nov. 1, 1982 (D.C. Cir.) (per curiam). Plaintiff next sought a summary reversal, which also was granted as to the attorney's fee award, but denied as to all other parts of the judgment. After briefing and oral argument, the Court of Appeals affirmed all the remaining portions of the judgment without opinion. Order of May 16, 1983 (D.C. Cir.). A petition for rehearing and the suggestion of rehearing en banc were both denied. Order of June 14, 1983 (per curiam); Order of June 28, 1983 (per curiam) (en banc). The summary reversal and remand therefore concerned only this Court's award of attorney's fees of $ 15,000.

 On remand, this court received an attorney's fees application, with supporting documentation, from Shannon & Luchs. Plaintiffs opposed. On January 10, 1984, we awarded Shannon & Luchs $ 78,115.60 in costs and attorney's fees. Final judgment on the attorney's fee award was entered on February 22, 1984. At the same time, Counts I, III and IV, which were not previously adjudicated on summary judgment, were dismissed with prejudice in accordance with a stipulation in which Shannon & Luchs agreed to pay plaintiffs $ 6,000. Plaintiffs then made a third trip to the Court of Appeals to challenge this court's attorney's fee award.

 The D.C. Circuit vacated this court's award of attorney's fees and remanded for further consideration. Singer v. Shannon & Luchs, 250 U.S. App. D.C. 269, 779 F.2d 69 (D.C. Cir. 1985). The Court of Appeals directed us to consider and to specify the reasonableness of the attorney's fee award in light of that court's opinion in National Ass'n of Concerned Veterans v. Secretary of Defense, 219 U.S. App. D.C. 94, 675 F.2d 1319 (D.C. Cir. 1982). The court also wanted us to specify the areas of compensable activity and to clarify the grounds upon which fees would be awarded, whether pursuant to the attorney's fee provisions of the note or on independent grounds such as bad faith or vexatiousness. Further, the court directed that we reconsider the award of attorney's fees for the successful aspect of the earlier appeal, i.e., the previous award of attorney's fees of $ 15,000.

 Discussion

 Consideration of defendants' second application for attorney's fees, in light of the remand, presents two tasks. First, it is necessary to determine the appropriate attorney's fee award for all activities prior to the present fee application. To do this, we need to examine and to delineate the scope of the attorney's fees provision in the deed of trust, i.e., which activities in this litigation are subject to this provision; we also need to decide whether any independent grounds for attorney's fees exist to support a fee award as to any litigation not encompassed by the contractual fee provision. The second task will be to determine the reasonable fees and expenses recoverable in connection with the preparation and submission of the successful portions of Shannon & Luchs present fee application. For all activities for which a fee award would be proper, the reasonable amount of such fees is calculated in accordance with the "lodestar" method outlined in National Ass'n of Concerned Veterans.

 The job of calculating the reasonable attorney's fees due Shannon & Luchs is in two respects easier now than in January, 1984. First, there remains no question in this case as to whether the deed of trust can properly be interpreted to sustain a contractually-based attorney's fee award. In the Memorandum Order of January 10, 1984, this court noted that the language of the deed of trust was unambiguous in allowing "costs, expenses and attorney's fees incurred" with respect to the trust and the promissory note. Order of January 10, 1984 at 2. The United States Court of Appeals agreed that the language of the deed and the promissory note supported some award of fees, Singer, 779 F.2d at 70, noting only that it might not be appropriate to award fees for the portions of the actions on which Shannon & Luchs was unsuccessful. Id. at 71. Thus, we can take it as established that the deed of trust authorizes an award of attorney's fees and expenses.

 Shannon & Luchs has also eased the task by offering a more limited attorney's fee petition. In part addressing the concerns voiced by the Court of Appeals, Shannon & Luchs has reduced the number of hours claimed for work in the Court of Appeals and reduced the number of hours claimed for discovery done on Counts I, III and IV of the complaint. Significantly, Shannon & Luchs also has not claimed ...


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