# Payan v. Nash Finch Co.

> Colorado Court of Appeals · August 16, 2012 · 310 P.3d 212

URL: https://www.frixlaw.com/law-library/cases/5158988

## Case

- **Full name:** Rosa PAYAN Guadalupe Arroyo Saloman Martinez Debra Gomez Antonio Esquibel and Julia Morgan v. NASH FINCH COMPANY, d/b/a Avanza Supermarket
- **Court:** Colorado Court of Appeals
- **Decided:** August 16, 2012
- **Citations:** 310 P.3d 212; 2012 COA 135; 2012 Colo. App. LEXIS 1311; 2012 WL 3517836
- **Precedential status:** Published
- **Opinion:** Dissent by Booras
- **Judges:** Booras, Fox, Terry
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5158988

## Opinion text

Judge BOORAS
dissenting.
T 68 I respectfully dissent from the majority's decision reversing the trial court's order awarding attorney fees to plaintiffs.
169 As the majority recognizes, an award of attorney fees must be reasonable. Taillitsch v. Child Support Services, Inc., 926 P.2d 143, 147 (Colo.App.1996). The determination of reasonableness is a question of fact for the trial court and "will not be disturbed on review unless it is patently erroneous and unsupported by the evidence." Spensieri v. Farmers Alliance Mut. Ins. Co., 804 P.2d 268, 270 (Colo.App.1990).
170 The United States Supreme Court provided guidance in Hensley v. Eckerhart, 461 U.S. 424, 434 , 103 S.Ct. 1933 , 76 L.Ed.2d 40 (1983), for determining the amount of a reasonable fee:
The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate [lodestar amount]. This caleu-lation provides an objective basis on which to make an initial estimate of the value of a lawyer's services. The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly.
Id. at 4883, 108 S.Ct. 1983 (emphasis added). Accordingly, the Colorado courts have endorsed calculation of a lodestar amount as a method of determining attorney fees that ,"carries with it a strong presumption of reasonableness." Spensieri, 804 P.2d at 270 .
T71 Here, as explained in the majority opinion, the trial court calculated a lodestar amount by initially accepting the number of hours submitted by plaintiffs' counsel and multiplying those hours by an adjusted fee. The court then reduced this amount by various percentages for block billing, redundancies, excessive conferences, and non-statutory claims. The trial court explained its rationale for these calculations in a detailed, twenty-page, single-spaced order. The majority concludes that the trial court's calculation was in error because the trial court should have applied the percentage reduction to the billable hours before multiplying by the hourly rate.
172 I disagree with the majority that the trial court's lodestar calculation was erroneous. In my view, the trial court's method was a permissible method or variation of performing the lodestar calculation as set out in Hensley, and thus, was not an abuse of discretion. In Hensléy, in the context of an adjustment for "results obtained," the Supreme Court stated:
There is no precise rule or formula for making these determinations. The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. The court necessarily has discretion in making this equitable judgment. This discretion, however, must be exercised in light of the considerations we have identified.
Hensley, 461 U.S. at 436-37 , 103 S.Ct. 1933 .
Similarly, the United States Court of Appeals for the Seventh Circuit has noted:
The division of issues between those relevant to computing a lodestar and those relevant to adjustments is not always consistent. ... The district court can make an adjustment in the process of computing a lodestar or after computing a lodestar, so long as the court provides an explanation for each adjustment and does not adjust for the same factor twice.
Ohio-Sealy Mattress Mfg. Co. v. Sealy Inc., 776 F.2d 646 , 651 n. 3 (7th Cir.1985). Other *225 courts have approved an adjustment for block billing or inadequate documentation of hours by reducing the final lodestar figure rather than the number of hours elaimed. See Harper v. City of Chicago Heights, 223 F.3d 593, 604-05 (7th Cir.2000) (acknowledging that when a fee petition is vague or inadequately documented, a district court may either strike the problematic entries or reduce the proposed fee by a reasonable percentage); Gates v. Deukmejian, 987 F.2d 1392, 1399 (9th Cir.1992) ("when faced with a massive fee application the district court has the authority to make across-the-board percentage cuts either in the number of hours claimed or in the final lodestar figure"); In re Olson, 884 F.2d 1415, 1430 (D.C.Cir.1989) (after disallowing certain fees, the remaining fees were reduced ten percent to disallow fees for services that were "excessive, redundant, unnecessary, or inadequately documented"); Humphrey v. United Way, 802 F.Supp.2d 847, 864-65 (S.D.Tex.2011) (because block billing entries "lumped together" too many tasks and made it impossible for the court to determine whether the amount of time for any one entry was reasonable, court reduced fees by five percent).
T73 The majority dismisses the variations of the Hensley lodestar calculation used by other jurisdictions as "not binding" and notes that no Colorado case authorizes a different approach. However, I believe that the more relevant question under an abuse of discretion standard is whether any previous Colorado case prohibits the calculation that the trial court used here. See, e.g., Williams v. Leach, 194 Colo. 374, 375-76 , 572 P.2d 481, 482-83 (1977) (trial court did not abuse its discretion in allowing a reasonable time for correction of insufficient extradition documents where no statute specifically authorized a continuance for the correction of insufficient documents, but no statute prohibited such). I am not aware of any case that requires a particular mathematical lodestar calculation to the exclusion of a different reasonable method. Additionally, the Court in Hensley characterized the "reasonable hours multiplied by a reasonable hourly rate" calculation as "the most useful starting point," rather than as a "mandatory" method of initial calculation. Hensley, 461 U.S. at 433 , 103 S.Ct. 1933 .
11 74 Although the majority reads Tallitsch as holding that the lodestar calculation "must begin" by determining the reasonable number of hours expended by counsel in working on the case, I do not read Tallitsch as setting out a mandatory starting point. Rather, a division of this court simply approved the standard lodestar calculation used by the trial court in that case. An alternative mathematical calculation was not at issue. Tallitsch, 926 P.2d at 148 .
175 Here, the trial court acknowledged the difficulty caused by block billing in determining a reasonable number of hours because it precluded an analysis of the billing records. The court selected the twenty percent reduction of the award based on a 2008 California study that found block billing typically resulted in a ten percent to thirty percent increase in time shown in billing statements. Thus, the court's adjustment was not arbitrary or unexplained. Because the court initially accepted plaintiffs' requested hours without adjustment, and then adjusted for block billing and other matters by reducing the final fee award, the court did not adjust for the same factor twice. Finally, instead of relying solely on its mathematical caleula-tions, the court reviewed the final attorney fee determination and concluded that "the overall result reflects a reasonable and generous award for a case with de damages and de minim{i/s public importance."
T76 In my view, it was within the trial court's discretion to make an adjustment for block billing by reducing the entire award instead of reducing the number of billed hours. This method is in accord with the Supreme Court's observation in Hensley that "[where the documentation of hours is inadequate, the district court may reduce the award accordingly." Hensley, 461 U.S. at 433 , 103 S.Ct. 1933 .
T77 Therefore, I would affirm the trial court's award of attorney fees.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5158988. Public record. Not legal advice.