ROBERT G. DOWD, JR., Judge.
Thomas DeWalt appeals from the judgment awarding him attorneys' fees at trial and on appeal. He claims the trial court abused its discretion in awarding only some of the fees he requested. We affirm in part and reverse in part.
DeWalt was a driver for a trucking company owned by Donald Davidson. During his employment, DeWalt was diagnosed with a brain tumor that restricted his ability to drive long distances. When DeWalt was unable to accept long distance delivery assignments, the employer repeatedly refused to give him available local deliveries or other jobs, sending him home without pay and issuing disciplinary write-ups. DeWalt sued the company and Davidson under the Missouri Human Rights Act for having constructively discharged him based on his disability. The jury found in favor of DeWalt on his discrimination claim against Davidson individually, but found the company not liable. DeWalt testified to over $80,000 in compensatory damage, but the jury awarded him only $7,500 and found Davidson not liable for punitive damages. After trial, DeWalt requested $133,198.50 in attorneys' fees as a prevailing plaintiff under Section 213.111.2 of the MHRA. The trial court reduced that amount and awarded him $75,000, without explanation.
The judgment as to liability was affirmed on appeal. See DeWalt v. Davidson Service/Air, Inc., 398 S.W.3d 491, 506-08 (Mo.App.E.D.2013). The amount of attorneys' fees awarded was also at issue in that appeal. DeWalt argued that the trial court failed to recognize the important public purpose in pursuing MHRA claims and instead erroneously based its award solely on the amount of the compensatory damages. Id. at 506-07. At oral argument on that appeal, Davidson asserted that awarding fees in proportion to damages was appropriate and served to encourage settlements without allowing attorneys to recover a windfall in fees on a small verdict.
In the opinion, we set out the factors to be considered when assessing a fee award under the MHRA, noting that "the most crucial factor is the degree of success obtained." Id. at 507. We found that there was no explanation for the trial court's award, but it appeared to be ten times the amount of damages. Id. We held, as other courts have, that while the amount of damages is "not irrelevant," a "rule of proportionality would make it difficult, if not impossible, for individuals with meritorious civil rights claims but relatively small potential damages to obtain redress from the courts." Id. Therefore, we stated, a court may not reduce fees to maintain a ratio between the fees and the damages. Id. We concluded that because the trial court had failed to enumerate its reasons for reducing the requested fee, this Court could not determine whether it had given proper consideration to the relevant factors or abused its discretion. Id. at 507-08. Therefore, we reversed and remanded the attorneys' fees award for the entry of findings of fact and conclusions of law consistent with our opinion. Id. at 508. We also instructed the trial court to rule on DeWalt's request for attorneys' fees on appeal. Id. at 508 n. 4.
On remand, the trial court entered findings and conclusions relating to the trial attorneys' fee award. It reduced the requested amount first for what it found to be "additional, duplicative, unnecessary or non-productive" work, including all of the time counsel spent preparing the fee application
This appeal follows. DeWalt argues in Point I that the trial court abused its discretion in awarding only some of the requested fees on appeal because the award bears no relation to the amount of time it actually took to respond to the breadth of issues raised by Davidson in the first appeal, which he claims opposing counsel conceded, and fails to consider the importance of MHRA claims. He argues in Point II that the award of attorneys' fees at trial is also an abuse of discretion because it is again improperly based on the size of the verdict without consideration of the important nature of the claim and erroneously excluded some of counsel's compensable work. We address these points out of order.
Attorneys' fees are authorized for a prevailing party under the MHRA. Section 213.111.2. The reasons are twofold: "(1) to fully make the plaintiff whole by compensating him or her for the costs of bringing suit and (2) to deflect that discrimination may result in nominal or small monetary damages." Coyle v. City of St. Louis, 408 S.W.3d 281, 291 (Mo.App. E.D.2013) (internal citations omitted). While the determination of reasonable attorneys' fees under the MHRA is in the sound discretion of the trial court, there are, as we said in the first appeal, a number of factors to be considered: (1) the rates customarily charged by the attorneys involved in the case and by other attorneys in the community for similar services; (2) the number of hours reasonably expended on the litigation; (3) the nature and character of the services rendered; (4) the degree of professional ability required; (5) the nature and importance of the subject matter; (6) the amount involved or the result obtained; and (7) the vigor of the opposition. Id. at 506-07. Again, "the most crucial factor is the degree of success obtained." DeWalt, 398 S.W.3d at 507. Nevertheless, the court may not reduce fees when the damages are small in order to maintain some proportionality between the damages and the fees awarded. Id.
The trial court listed all of these factors and made findings regarding most of them, focusing mostly on the degree of DeWalt's success:
DeWalt's first argument is that reducing the award by 30% was an abuse of discretion. We agree. The determination of reasonable attorneys' fees is within the trial court's sound discretion. Id. at 506. We will not reverse that determination unless we find that the amount was arbitrarily arrived at or is so unreasonable as to indicate indifference and a lack of proper judicial consideration. Id. Although the trial court carefully considered most of the factors as instructed in the first opinion, it nevertheless inappropriately relied entirely on the policy of encouraging settlement — without any findings regarding the settlement efforts of counsel in this case — and failed to even mention the nature and importance of this MHRA claim. Thus, the 30% percent reduction — while not explicitly a ratio between the verdict and the fee award — nevertheless is unreasonable due to the lack of appropriate findings on all applicable factors.
First, contrary to DeWalt's claim, there is nothing inherently incompatible about the policy of encouraging settlement and the policy of encouraging meritorious MHRA suits. In discussing the application of rules regarding offers of judgment in civil rights cases, courts have consistently held that the purpose of furthering societal interest in eliminating discrimination and the purpose of encouraging settlements "are not in opposition." Gabriel v. Saint Joseph License, LLC, 425 S.W.3d 133, 140 (Mo.App.W.D.2013); see also Marek v. Chesny, 473 U.S. 1, 5, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985) ("nothing incompatible about these two objectives") and its progeny.
Second, despite its other detailed findings and its earnest attempt to follow the dictates in our first opinion, the trial court's focus on what it concluded to be a
Id. at 523-24 (emphasis added and citations omitted). The Court concluded that the claim prevailed on was not actually an MHRA claim for which attorneys' fees were even available; nevertheless, the Court pointed out that had it been an MHRA claim, the appeal "might have been well taken" in light of the trial court's stated reasons for the award. Id. at 524. This suggests that the Supreme Court saw potential error in the reduction of fees based primarily on the size of the award and without consideration of the nature and importance of the subject matter.
We find such an error here, where the court failed to consider the nature and importance of the subject matter and instead relied principally on the size of the verdict in measuring DeWalt's degree of success. This is not to say that the size of the verdict in an MHRA case is irrelevant. As we and other courts have stated, the degree of success is crucial. That success is partially measured by how much of the plaintiff's requested relief he actually recovered. But courts must keep in mind that even small verdicts in MHRA cases may still reflect a high degree of success when properly considered in light of the nature and importance of the subject matter in the particular case. We note that not all civil rights claims are of the same nature or of equal importance. Therefore, the consideration of this factor, and the others, as well as the ultimate determination of fees requires a case-specific analysis. Nothing we say herein detracts from the trial court's discretion and expertise in fashioning the appropriate award in a particular case, as long as proper consideration is given to all of the relevant factors.
DeWalt also alleges the trial court erred by excluding from the award counsel's time spent preparing the request for fees. We agree. Reasonable time spent preparing fee applications is generally
The trial court relied on Williams v. Trans States Airlines as authority for excluding time spent preparing the fee request. 281 S.W.3d 854 (Mo.App.E.D. 2009). In that case, counsel submitted his time for work on the fee application, and the opposing party argued that the number of hours spent on that task was unreasonable and submitted its own calculation of total attorneys' fees (excluding the time spent on the fee request, among other proposed reductions). Id. at 879. The trial court then significantly reduced the requested fees beyond the reductions suggested by the opponent without explanation. Id. at 879-80. This Court found that such a significant departure from the parties' submissions without explanation was an abuse of discretion. Id. Williams does little more than reaffirm the trial court's general discretion in these matters, with the limitation that a court's reasoning needs to be explained. Nothing in that case authorizes a trial court to completely eliminate compensation for counsel's time preparing a fee request; nor is Missouri law otherwise inconsistent with the federal case law cited above stating that reasonable time spent on fee requests is compensable.
Finally, DeWalt claims that the trial court refused to compensate for time speaking to the client, which he argues conflicts with a lawyer's ethical responsibility to communicate regularly with the client. DeWalt mischaracterizes the trial court's findings. The court did not "refuse" to compensate counsel for communicating with his client; it reduced the time spent speaking to the client and to cocounsel by $1,800. This was about half of the combined request of $3,590 for speaking to the client, the mediator and cocounsel ($1,700 was charged for speaking to the client and the mediator and $1,890 was charged for speaking to co-counsel). This reduction was within the trial court's discretion, and DeWalt has failed to show it to be an abuse thereof.
Point II is granted in part and denied in part.
Fully compensating a prevailing plaintiff for prosecuting his MHRA claim to final judgment "obviously" includes the "reasonable hours" counsel spent in connection with an appeal. See Pollock v. Wetterau Food Distribution Group, 11 S.W.3d 754, 775 (Mo.App.E.D.1999). Therefore, the same factors should be considered when calculating fees on appeal as are considered when calculating fees at trial. Here, the trial court found that the case was not complicated and did not involve novel or complex issues, that counsel's hourly rate was reasonable and that the number of hours submitted (over 100 hours) was not reasonable. Despite DeWalt's insistence that the issues on appeal were broader and more complicated than the trial court found, we generally defer to the trial court's opinion on this issue given
Point I is granted.
The following portions of the award of attorneys' fees at trial are reversed and remanded: (1) the 30% reduction and (2) the complete exclusion of fees for time spent preparing the fee request. In all other respects, the award of attorneys' fees at trial is affirmed. On remand, the trial court is directed to reconsider the above portions of the award, make any additional necessary findings and conclusions consistent with this opinion and recalculate the award if necessary.
The award of attorneys' fees on appeal is reversed and remanded. On remand, the trial court is directed to reconsider the award, make findings and conclusions consistent with this opinion and recalculate the award if necessary.
KURT S. ODENWALD, P.J. and GARY M. GAERTNER, JR., J., concur.