ROSEMARY LEDET, Judge.
This is the second appeal in this expropriation case. The plaintiff — the expropriating authority — is the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (the "Board"). The defendant — the property owner — is 1732 Canal Street, L.L.C. ("1732 Canal"). In the first appeal, the Board challenged the jury's award of $9,566,640.00 to 1732 Canal as the total compensation due for the expropriated property; this court affirmed. Board of Sup'rs of Louisiana State University and Agr. and Mechanical College v. 1732 Canal Street, L.L.C., 12-1370 (La.App. 4 Cir. 6/19/13), ___ So.3d ___, 2013 WL 3078512 ("7732 Canal I").
In the instant appeal, the Board challenges the post-trial award to 1732 Canal of expert fees and costs; the Board does not challenge the post-trial award of attorneys' fees in the amount of 18% of the additional just compensation plus interest. Answering the appeal, 1732 Canal seeks an increase in attorneys' fees.
On October 18, 2010, the Board filed a petition for expropriation against 1732 Canal in its capacity as owner of the property located at 1732 Canal Street in New Orleans, Louisiana (the "Property"). The purpose of the expropriation was to facilitate the construction of the new University Medical Center (also known as the Academic Medical Center). According to the petition, the improvements on the Property
Contemporaneous with the filing of the expropriation petition, the Board deposited $4,500,000.00 into the registry of the court as just compensation due to 1732 Canal to compensate it to the full extent of its loss. In response, 1732 Canal filed an answer and a reconventional demand, alleging that the Board had "not deposited the just and fair compensation due defendant."
In its petition, the Board requested a jury trial. From April 30, 2012, to May 3, 2012, a four-day jury trial was held. As a result of stipulations,
The testimony of 1732 Canal's two appraisers is summarized in this court's opinion in 1732 Canal I as follows:
1732 Canal Street I, 12-1370 at pp. 7-8, ___ So.3d at ___.
The jury returned a verdict of $9,566,640.00 as the total compensation due for the expropriated property. On May 10, 2012, the trial court entered judgment in accord with the jury's verdict. Subtracting the amount deposited ($4,500,000.00) from the jury's verdict ($9,566,640.00), the trial court awarded 1732 Canal an additional sum of $5,066,640.00. In its judgment, the trial court also awarded "any attorney's fees, expert fees, and costs to be fixed upon hearing of the post-trial motion to be filed promptly by 1732 Canal Street, L.L.C."
On May 25, 2012, 1732 Canal filed a Motion for Award of Attorneys' Fees, Expert Fees, and Costs (the "Motion"). In the Motion, 1732 Canal requested attorneys' fees in the full amount it paid under a contingency fee contract of 33 1/3% of the additional just compensation, and costs and expert fees in the actual amount it incurred. It also requested a special setting, noting the probable need to present evidence. Although the Motion was set for hearing on August 2, 2012, the parties jointly agreed, due to a scheduling conflict, to submit the Motion on the briefs. The trial court allowed the parties to submit supplemental memoranda.
In support of the Motion, 1732 Canal attached five affidavits — one from its lead counsel, Randall Smith, and one from each of its four testifying expert witnesses. In his affidavit, Mr. Smith attested that 1732 Canal incurred a total of $391,998.00 taxable expert fees and costs in prosecuting its claims to judgment by jury verdict. Mr. Smith also attested that 1732 Canal's attorneys "anticipate incurring significant
Each of the four experts in their affidavits explained their qualifications, the work they performed in this case, and the fees they charged 1732 Canal as follows.
Mr. Cantrell attested that he is a Florida resident; that he is the head of Cantrell Real Estate, Inc.; and that he has been appraising property since the 1970s. He attested that in preparation for trial in this case, he prepared an 86-page expert report. He also attested that the amount of fees invoiced by him (and paid by 1732 Canal) totaled $132,647.13, broken down as follows:
Strategy/Conferences, Property Inspections 26.25 hours $ 15,851.25
Review of appraisals; Research; Report
Preparation 78.95 hours $ 70,319.50
Prepare for deposition Deposition 45 hours $ 13,980.00
Prep for trial testimony 43 hours $ 12,685.00
Trial 29.5 hours $ 8,702.50
FedEx $ 410.89
Travel $ 10,697.99
___________
TOTAL INVOICED AMOUNT $132,647.13
Mr. Thorns attested that he is a New Orleans domiciliary; that he is President of Thorns Consulting, Inc.; and that he has been appraising property in the New Orleans area continuously since 1978. He attested that in preparation for trial in this case, he prepared a 121-page expert report. He also attested that the amount of fees actually invoiced by him (and paid by 1732 Canal) totaled $38,200.00, broken down as follows:
Appraisal $18,000.00
Consultation 11 hours $ 2,200.00
Depo. Pre/Depo 10 hours $ 2,000.00
Trail Prep + Trial 80 hours $16,000.00
__________
TOTAL INVOICED AMOUNT $38,200.00
Mr. Williams attested that he is the head of John C. Williams Architects, L.L.C.; that he has been engaged as an architect in the New Orleans area continuously since 1983; and that he has been accepted as an expert in architecture by the Louisiana courts. Mr. Williams attested that the amount of fees actually invoiced by him (and paid by 1732 Canal) totaled $106,969.03, broken down as follows:
Property Inspections, Research, Document Review
and Report Preparation 404.91 hours $ 91,179.68
Prepare for Deposition; Deposition 6.5 hours $ 1,950.00
Prepare for Trial + Trial (Williams) 41.25 hours $ 12,375.00
Document Production Costs, Postage, etc. $ 1,464.35
___________
TOTAL INVOICED AMOUNT $106,969.03
Mr. Blazek attested that he has been a principal of Leaaf Environmental, L.L.C., since 2005; that he has been engaged in environmental consulting work in New Orleans since 1989; that he holds numerous LDEQ and EPA certifications; and that he is a Louisiana state certified Asbestos Inspector and Supervisor. Mr. Blazek attested that the amount of fees actually invoiced by him (and paid by 1732 Canal) totaled $24,974.50, broken down as follows:
Review of Environmental Documents $ 2,465.79
Deposition prep + Deposition $ 2,625.00
Trial prep + Trial $19,062.50
Automobile charges + Parking $ 499.00
Equipment + related charges $ 150.00
Document Production Costs, Postage, etc. $ 172.21
__________
TOTAL INVOICED AMOUNT $24,974.50
Two of the four experts — Mr. Cantrell and Mr. Williams — attested that their invoices included time for other credentialed staff of their firm, who assisted them in the fact-gathering related to their expert report and trial preparation. Both Mr. Cantrell and Mr. Williams further attested that their staff's work was performed under their supervision and that it "was work necessary for trial that [they] would have been required to perform (at [their] hourly rate) if [they] had not had their [staff's] assistance." Three of the experts (all but Mr. Thorns) attested that they considered and relied in part upon the work performed by other experts in this matter.
Finally, all four experts attested that the work that they performed in this matter consisted of the following three tasks: (1) fact-gathering and site investigation necessary for the preparation of their reports; (2) preparation of their expert reports; and (3) preparation for trial, including preparation for cross-examination questions for both deposition and trial purposes. All four experts further attested that all of the fees set forth in their invoices submitted to the trial court in connection with the Motion were actually incurred and necessary to their presentation of their testimony at trial.
In addition to the total invoiced fees for the four testifying experts, 1732 Canal also requested the fees for its exhibit and demonstrative consultant, Jeffrey Hamill, in the total invoiced amount of $36,800.00, broken down as follows:
Expert Witness Meetings + Site Visits 12 hours $ 3,500.00
Demonstrative Design 112 hours $16,800.00
Exhibit Prep/Organization (trial prep) 95 hours $ 9,500.00
War Room Services (trial prep) + Trial 4 days $ 7,000.00
__________
TOTAL INVOICED AMOUNT $36,800.00
1732 Canal further requested the fees for the following three non-testifying experts: Morphy Makofsky, Inc. — $1,690.00; Moses Consulting Engineer — $7,027.50; and Reed Estimating Services Co. — $3,150.00. 1732 Canal still further requested other miscellaneous costs, including filing fees and equipment rental.
On November 28, 2012, the trial court rendered judgment in favor of 1732 Canal and against the Board on the Motion, awarding the following: $750,000.00 in attorneys' fees; $10,472.50 for Mr. Cantrell's
In response, 1732 Canal filed a motion for new trial. Following two hearings, the trial court granted the motion for new trial. In its judgment dated April 29, 2013, the trial court awarded 1732 Canal attorneys' fees in the amount of 18% of the additional just compensation plus interest. The trial court further awarded the same amounts as in its earlier judgment for the following miscellaneous costs: filing fees ($784.50), sheriff's costs ($607.82), jurors' meals ($150.00), and rental equipment used at trial ($2,524.44). The trial court still further awarded the following expert fees and costs:
Review of appraisals; Research; Report Preparation 78.95 hours $70,319.50
Prep for trial testimony 43 hours $12,685.00
Trial 29.5 hours $ 8,702.50
__________
TOTAL AWARD $91,707.00
Appraisal $18,000.00
Trail Prep + Trial 80 hours $16,000.00
__________
TOTAL AWARD $34,000.00
Property Inspections, Research, Document Review
and Report Preparation 404.91 hours $ 91,179.68
Prepare for Trial + Trial (Williams) 41.25 hours $ 12,375.00
___________
TOTAL AWARD $103,554.68
Review of Environmental Documents $ 2,465.79
Trial prep + Trial $19,062.50
__________
TOTAL AWARD $21,528.29
Demonstrative Design 112 hours $16,800.00 Exhibit Prep/Organization (trial prep) 95 hours $ 9,500.00 War Room Services (trial prep) + Trial 4 days $ 7,000.00 __________ TOTAL AWARD $33,300.00
6. Morphy Makofsky, Inc. $1,690.00
7. Moses Consulting Engineer $7,027.50
8. Reed Estimating Services Co. $3,150.00
This appeal by the Board followed. Answering the appeal, 1732 seeks an increase in attorneys' fees.
On appeal, the Board does not challenge 1732 Canal's right to recover reasonable expert fees and costs; rather, it challenges the excessiveness and unreasonableness of certain of the expert fees and costs awarded. Before addressing the Board's arguments, we outline the general principles governing the award of expert fees and costs.
The award of costs — which encompasses the award of expert fees — is authorized by overlapping statutory and codal provisions: La. R.S. 13:5112, which provides for the discretionary award of costs in favor of the successful party in a suit against the state or a political subdivision;
This court recently outlined the governing principles for reviewing awards of
The determination of the reasonableness of an expert fee award turns on the particular facts and circumstances of
State v. St. Charles Airline Lands, Inc., 03-1292, 03-1293, 04-20, pp. 21-22 (La. App. 5 Cir. 4/27/04), 871 So.2d 674, 688 (citing Natchitoches Parish Port Comm'n v. DeBlieux & Kelley, Inc., 99-313 to 99-315, p. 30 (La.App. 3 Cir. 3/22/00), 760 So.2d 393, 410-11); see also Tipton v. Campbell, 08-0139, p. 28 (La.App. 4 Cir. 9/24/08), 996 So.2d 27, 46 (citing City of Shreveport v. Noel Estate, Inc., 41,148, pp. 30-31 (La.App. 2 Cir. 9/27/06), 941 So.2d 66, 85-86). The jurisprudence has identified as the most important factor in determining an expert fee award the requirement that the award be reasonable. Nicholson, 460 So.2d at 629 (citing Town of Krotz Springs v. Weinstein, 401 So.2d 664 (La.App. 3d Cir.1981)) (stating that the "most important" factor is that "expert witnesses are entitled only to reasonable compensation.").
In this case, the Board contends that the trial court abused its discretion in awarding expert fees and costs by:
The Board further contends that, contrary to 1732 Canal's contention, expert fee awards in expropriation cases do not impact a landowner's constitutional right to be compensated to the full extent of its loss; rather, the Board points out that the award of expert fees and costs is separate from the damage award for just compensation. In support, the Board cites Rivet v. State, Dep't of Transp. & Dev., 01-0961, p. 6 (La.11/28/01), 800 So.2d 777, 782; and State v. Miss Chub, L.L.C., 47,054, p. 4 (La.App. 2 Cir. 4/11/12), 92 So.3d 422, 425.
Transcript Pages Total Fee
Expert Consumed by Charged Total Fee
Witness Qualification Expert's Testimony (Invoiced) Awarded
Mr. Cantrell Appraiser 102 pages $132,647.13 $ 91,707.00
Mr. Thorns Appraiser 88 pages $ 38,200.00 $ 34,000.00
Mr. Williams Architect 114 pages $106,969.03 $103,554.68
Mr. Blazek Environmental 75 pages $ 24,974.50 $ 21,528.29
The first issue is whether the trial court erred in creating and applying a new standard for awarding expert fees in expropriation cases. According to the Board, the new standard the trial court applied was that it awarded compensation to the property owner (1732 Canal) for all documented (invoiced) expert fees that the property owner actually incurred. The Board contends that neither whether the property owner actually incurred expert fees nor whether the trial court had documentation (invoices) for the expert fees is relevant in determining the reasonableness of the expert fee award. The Board thus contends that the trial court abused its discretion by creating and applying this new standard to award expert fees for Mr. Williams and Mr. Cantrell in the amounts of $103,554.68 and $91,707.00, respectively. The Board characterizes these two awards as so outrageously excessive as to "shock the conscience."
The Board's contention that the trial court adopted and applied a new, incorrect standard is based primarily on the following colloquy between counsel and the trial court regarding the award for Mr. Williams' trial preparation — $91,179.68 for 404.91 hours of "Property Inspections, Research, Document Review and Report Preparation":
Ultimately, the trial court found that the total amount of $91,179.68 was recoverable. In so finding, the trial court stated: "[w]hile the Court finds that that amount is high, the Court has the documentation for it. I'll have to go along with that."
The Board emphasizes that both the trial court and 1732 Canal acknowledged that the award for Mr. Williams' preparatory work was "high." The Board contends that a high fee, by definition, cannot be a reasonable fee. In support, the Board cites Black's Law Dictionary's definition of reasonable, which is as follows: "
1732 Canal counters that even a high fee can be a reasonable fee. In support, 1732 Canal cites two cases in which substantial fees have been upheld in expropriation cases: St. Charles Airline Lands, Inc., 03-1292, 03-1293, 04-20 at pp. 21-22, 871 So.2d at 688 (affirming award of expert fees of $151,435.79 in 2004); DeBlieux & Kelley, Inc., 99-313 to 99-315 at p. 30, 760 So.2d at 410-11 (affirming award of expert fees of about $100,000.00 in 2000). The jurisprudence supports 1732 Canal's contention that even a high fee award can be a reasonable fee. See Bourque v. Vinturella, 543 So.2d 640, 642 (La.App. 1st Cir.1989) (holding that "[w]hile we find these expert fees to be high, we do no find these fees so high as to constitute an abuse of discretion"); see also Rauch-Milliken Int'l, Inc. v. Halprin, 09-723, p. 7 (La.App. 5 Cir. 12/29/09), 30 So.3d 879, 884 (affirming an award of a "substantial" fee). Contrary to the Board's contention, the trial court's characterization of the fee awarded for Mr. Williams' trial preparation as "high" does not dictate a finding that the fee was unreasonable; nor does it dictate a finding that the trial court abused its discretion in awarding the fee.
According to the Board, the trial court erred in relying on the amount of time Mr. Williams actually spent preparing for trial (404.91 hours). The Board contends that the trial court was required to determine a reasonable amount of time for Mr. Williams' trial preparation given the particular facts and circumstances of this case. The Board cites SDS, Inc. v. State, Dep't of Transp. and Dev., 07-0406, p. 8 (La. App. 4 Cir. 2/13/08), 978 So.2d 1013, 1018, for the proposition that the fees a property owner is entitled to recover for trial preparation are "directly related to the usefulness of the testimony to the trier of fact." Id. (citing State, Dep't of Transp. and Dev. v. Jacob, 491 So.2d 138 (La.App. 3d Cir. 1986)). The Board thus contends that the following two factors should be considered in determining the reasonableness of a fee for trial preparation: (i) the reasonably necessary time for preparation, and (ii) the relative usefulness of the expert's testimony.
As to the first factor, the Board cites the Town of Krotz Springs case for the proposition that an expert fee award for an unreasonable amount of time spent by an expert witness in preparing for trial should be reduced. In the Town of Krotz Springs
Town of Krotz Springs, 401 So.2d at 667. Likewise, the Board contends that Mr. Williams' actual preparatory time was unreasonable and that the award for his time should be drastically reduced.
In further support of its position, the Board characterizes Mr. Williams as a "peripheral expert" and contends that the award of 404.91 hours for his trial preparation is exorbitant. The Board points out that Mr. Williams was qualified as an architectural expert and that his tasks at trial were limited to the following two: (i) demonstrating that the building was structurally sound; and (ii) calculating the cost to rebuild the shell of the building, taking into account tax credits. According to the Board, the record reflects the following regarding Mr. Williams' trial preparation:
To put the hours Mr. Williams spent on this case in context, the Board points out that Mr. Williams' invoiced hours almost exceeded 1732 Canal's lead counsel's (Mr. Smith's) hours on the case. Given these circumstances, the Board contends that the bulk of Mr. Williams' preparatory work was not reasonably necessary and should be disallowed.
On the second factor — the relative usefulness of the expert's testimony — the Board cites State, Dep't of Transp. and Dev. v. Nelken, 628 So.2d 1279, 1283 (La. App. 3d Cir.1993), for the proposition that the expropriating authority cannot be cast in judgment for expert fees of an expert whose calculations are not used by other experts in arriving at their ultimate value conclusions. In Nelken, the expert's testimony regarding economic losses was rejected. Finding the expert's fees could not be taxed to the expropriating authority, the appellate court reasoned:
Nelken, 628 So.2d at 1283. Although the Board acknowledges that Mr. Williams' testimony was not rejected (and thus this case is distinguishable from Nelken), it contends that Mr. Williams' calculations of the cost to build a new shell were used only by Mr. Cantrell in conjunction with his cost approach, which the other two instate appraisers rejected. The Board contends that this is "a solid basis to strike any award of expert fees for Mr. Williams' work."
1732 Canal counters that the Board's argument that Mr. Williams' testimony was not useful and that it did not assist the jury is pure conjecture. 1732 Canal emphasizes that the jury interrogatories did not require a breakdown of the compensation awarded and that there was no indication in the amount awarded to suggest that the jury relied upon any one expert in particular. The record supports this contention. The jury was only asked to indicate the total just compensation for the Property and the improvements; "there was no jury interrogatory to ascertain how the jury arrived at its determination." 1732 Canal I, 12-1370 at p. 9, ___ So.3d at ___.
1732 Canal points out that expert fees are recoverable even if the expert's opinion is not accepted in full. In support, it cites State, Dep't of Transp. and Dev. v. Restructure Partners, L.L.C., 07-1745, p. 28 (La.App. 1 Cir. 3/26/08), 985 So.2d 212, 233, which held that "all that is required to impose expert witness fees against a political subdivision in accordance with La. R.S. 13:5112 is a substantive judgment in favor of the party requesting the award, provided the expert witness fees were reasonably necessary to the presentation of that party's case." Id. (citing Nicholson, 460 So.2d at 629). Based on this principle, 1732 Canal contends that the expert fees for all four of its testifying experts, including Mr. Williams, are recoverable.
The record reflects that Mr. Williams submitted detailed invoices of his fees and expenses for trial preparation and for testifying at trial on two separate days. His testimony consumed 114 pages of trial transcript, which was more than any of 1732 Canal's other experts. Moreover, he testified on two separate days. His testimony spanned numerous topics including the historical development of the New Orleans Central Business District area, the resurgence of adaptive reuse, the financial feasibility of renovating the building using tax credits (which he opined could have been obtained by a developer), the layout and physical characteristics of the building, the architectural significance of the building, the possible uses of the building, the replacement costs, and the ability to redevelop the building without full asbestos removal. To prepare for his testimony on these multiple topics, Mr. Williams thoroughly inspected the building, took numerous photographs, studied the history and construction of the building, and prepared a report. In so doing, Mr. Williams also assembled a team — a structural engineer, a "mechanical/electrical/plumbing" engineer, contractor, cost estimator, and environmental consultant (Mr. Blazek).
At trial, Mr. Williams opined on the financial feasibility of redeveloping the Property, the availability to a developer of tax credits, and a cost estimate to rebuild a shell equal to the building that was on the Property. As noted elsewhere, Mr. Cantrell testified at trial that he relied on Mr. Williams' opinions and calculations in determining the value of the Property, albeit using the cost method. Given the multiple
As noted, the Board also contends that the trial court applied the same incorrect new standard in awarding an unreasonably excessive fee for Mr. Cantrell's services. The Board argues that although the trial court deducted $40,940.13 from Mr. Cantrell's total invoiced fees of $132,647.13, it made a "blanket award" of $91,707.00 for all of the other fees that Mr. Cantrell documented.
The second issue is the reasonableness of the expert fees awarded for the out-of-state expert. 1732 Canal retained one out-of-state expert — Mr. Cantrell, an appraiser from Florida. 1732 Canal cites Myers v. Broussard, 96-1634, p. 25 (La. App. 3 Cir. 5/21/97), 696 So.2d 88, 101, for the proposition that an out-of-state expert's fee is recoverable when the expert's particular expertise and testimony are essential to the party's recovery. 1732 Canal contends that such is the case here given Mr. Cantrell's "vast, specialized expertise in eminent domain matters and in appraising large, unique, special-use buildings such as the building at 1732 Canal Street."
The Board counters that the trial court erred in awarding 1732 Canal expert fees for its out-of-state appraiser. In support, the Board cites Welton v. Falcon, 341 So.2d 564, 573 (La.App. 4th Cir. 1977), for the following rule regarding out-of-state experts:
The Board contends that 1732 Canal failed to establish that there were no in-state expert appraisers available, besides the two in-state appraisers that testified at trial, to value the Property and its improvements.
The Board contests 1732 Canal's contention that retention of an out-of-state appraiser was justified by Mr. Cantrell's expertise in valuing unique, special use property. The Board points out that neither
The Board also points out that the fee awarded for 1732 Canal's out-of-state appraiser, Mr. Cantrell, is nearly three times the fee charged by, and awarded for, its in-state appraiser, Mr. Thorns. The Board contends that not only was Mr. Cantrell's fee unreasonable in amount, but also Mr. Cantrell's opinion — which was based on the cost method — was discredited by the two in-state appraisers. The Board thus contends that Mr. Cantrell's fee is out-of-line with awards made in similar cases.
Contrary to the Board's contention, we find no abuse of discretion in the trial court's expert fee award for the out-of-state appraiser, Mr. Cantrell. At trial, Mr. Cantrell opined that this case involves a unique, special use property. He explained that the building on the Property was unique in that it was designed for use as a residential facility, as opposed to other similar buildings that were designed for use as office buildings or hotels. He noted that the building was E-shaped and had about 1,036 apartment units. He opined that the building had multiple features that were so different that it was necessary to value the building itself, using the cost method, to determine the total value for the Property.
Although he acknowledged that he was not familiar with the City of New Orleans, Mr. Cantrell testified that he was familiar with similar type developments in other areas. He cited as examples the downtown Philadelphia Bellview Hotel, which was purchased for $19 million and converted to housing, retail, and a hotel; and the Fillmore Hospital in Syracuse, New York. Mr. Cantrell testified he worked independently from 1732 Canal's in-state appraiser, Mr. Thorns, in valuing the Property. Mr. Cantrell further testified he charged 1732 Canal a "standard fee" for his services.
Given Mr. Cantrell's testimony regarding the unique, special nature of the Property and its improvements, the record arguably supports 1732 Canal's position that no local expert was available with Mr. Cantrell's credentials and expertise. Regardless of whether the retention of an out-of-state expert was justified, we find, as 1732 Canal contends, that the trial court adequately took Mr. Cantrell's out-of-state status into account by deducting $40,940.13 — which included Mr. Cantrell's travel expenses of $10,697.99 — from the actual amount invoiced by Mr. Cantrell. We thus find the Board's contention that the trial court abused its discretion in awarding $91,707.00 for Mr. Cantrell's expert fees unpersuasive.
The third issue is the recovery of expert fees for the preparatory time spent by the testifying experts consulting with counsel. The Board contends that the fees awarded for all four of 1732 Canal's testifying expert
The well-settled jurisprudential rule on which the Board relies is that "`[t]he defendant can have taxed as costs the reasonable cost of time spent by the expert in gathering facts necessary for his testimony but not for time spent in consultation which only assists the attorney in preparation of litigation.'" Saden v. Kirby, 01-2253, p. 7 (La.App. 4 Cir. 8/7/02), 826 So.2d 558, 562-63 (quoting Albin v. Illinois Cent. Gulf R. Co., 607 So.2d 844 (La.App. 1st Cir.1992) (citing State Through Dep't of Highways v. United Pentecostal Church of Hodge, 313 So.2d 886, 894 (La.App. 2d Cir.1975)); Wingfield v. State ex rel. Dep't of Transp. and Dev., 03-1740, 03-1741, p. 6 (La.App. 1 Cir. 5/14/04), 879 So.2d 766, 770 (citing Smith v. Roussel, 00-1672, p. 6 (La.App. 1 Cir. 6/22/01), 808 So.2d 726, 731)). The distinction the jurisprudential rule makes is between time spent providing litigation assistance to counsel and time spent by the expert preparing himself for trial; the former is disallowed, the latter is allowed. Simply stated, "fees for time spent in consultation and other matters that simply benefit the attorney are not properly taxed as costs." Yuspeh, 02-1179 at p. 3, 848 So.2d at 98; see also Baker v. Marcello, 533 So.2d 1057, 1059 (La.App. 4th Cir.1988) (disallowing fees incurred as a result of the plaintiff's "fishing expedition" attempting to link his hip complaint to his accident). The jurisprudence, however, allows recovery for an expert's trial preparation and development of facts on which the expert's opinions are based.
In the instant case, the trial court, in fixing the awards for both of 1732 Canal's expert appraisers, Mr. Cantrell and Mr. Thorns, disallowed amounts for time spent consulting with counsel. As to Mr. Cantrell, the trial court, agreeing with the Board, disallowed the invoiced amount for "Strategy/Conferences, Property Inspection." Indeed, the trial court disallowed the entire invoiced amount of $15,851.25 even though part of that amount was for property inspection. Likewise, as to Mr. Thorns, the trial court disallowed $2,200.00, which was invoiced for eleven hours of "Consultation." As to all four testifying experts, the trial court, agreeing with the Board, disallowed all amounts related to depositions and deposition preparation.
The Board contends that additional amounts should be disallowed as to all four testifying experts for consultation with counsel and Mr. Hamill. We find this contention unpersuasive. The jurisprudence has recognized the reality that a complex case, such as this expropriation case, may require extra expert trial preparation time. See Northwest Ins. Co. v. Borg-Warner Corp., 501 So.2d 1063, 1065 (La.App. 2d Cir.1987) (noting that "several factors such as complexity and length of the trial, necessity for pre-trial preparation, and the degree and significance of the expertise are relevant to the amount of the
As to expert appraisers, in particular, the jurisprudence has noted that the relevant factors to consider include "`whether the preparatory work done by the appraiser was reasonably necessary, whether it actually tended to show the value of the property taken or severance damages, and whether the conclusions he reached based on that preparatory work were of some usefulness in determining the award which should be made.'" Nicholson, 460 So.2d at 629 (quoting State, Dep't of Highways v. Gordy, 322 So.2d 418, 423 (La.App. 3rd Cir.1975)). Additional considerations include "`the value of the property being taken and the amount of severance damages sustained by the landowner.'" Id.
Based on our review of the record, we cannot conclude that the trial court abused its discretion in refusing to further reduce the expert fee awards for the four testifying experts for their time spent consulting with counsel and Mr. Hamill. All four of 1732 Canal's testifying experts attested in their affidavits that all of the fees set forth in their invoices submitted to the trial court in connection with the Motion were necessary to their presentation of their testimony at trial. The trial court deducted certain amounts from the invoiced amounts for each of the four experts. Given the complicated nature of this expropriation case, the huge size of the building at issue, the large sum of money involved, and the amount of preparation the experts attested was required to prepare for testifying at trial, we cannot conclude that the trial court abused its discretion in fixing the expert fee awards for the four testifying experts.
The fourth issue is the inclusion of costs for exhibits not introduced into evidence. The Board's contention is based on the trial court's award of $34,000.00 of the $36,800.00 charged by Mr. Hamill, who was 1732 Canal's exhibit and demonstrative consultant. The Board points out that Mr. Hamill's fee included $9,500.00 for 95 hours of "[e]xhibit prep/organization (trial prep)." The Board contends that this portion of the award is problematic in that it includes compensation for all of the 181 exhibits that Mr. Hamill prepared, despite that only a fraction of those exhibits — approximately 56 exhibits (30%) — were introduced at trial. The Board cites Delaney v. Whitney National Bank, 96-2144, 97-0254, p. 18 (La.App. 4 Cir. 11/12/97), 703 So.2d 709, 720, for the proposition that "`exhibits used in court to assist the jury but not introduced in evidence are not properly taxed as costs [because] ... [n]o one can be sure such exhibits helped the jury.'" Id. Based on Delaney, the Board contends that because only 30% of the exhibits were introduced, only 30% of the $9,500.00 award for exhibit-related fees should have been awarded ($2,850.00). The Board thus contends that the costs awarded for Mr. Hamill's services should be reduced by $6,650.00 (70% of the $9,500.00), at a minimum. The Board also argues that Mr. Hamill's fee for exhibit-related work is less justifiable because many of the exhibits were not created by him; rather, many of the exhibits simply were photographs lifted from the appraisal reports or downloaded from the Orleans Parish Assessor's website.
1732 Canal counters that the trial court's award for Mr. Hamill's services was not an abuse of discretion. It points out that
1732 Canal further contends that Mr. Hamill's services were vital to its presentation to the jury. It explains that the exhibits and demonstratives that Mr. Hamill created were prepared to break down long, complex reports and expert testimony into graphics more easily understood by the jury. It further explains that as a result of Mr. Hamill's work it was able to "streamline" the testimony of its expert witnesses for presentation at trial. It points out that the Fifth Circuit recently affirmed an award for Mr. Hamill's similar services in State, Dep't of Transp. and Dev. v. Monteleone, 11-1013, pp. 31-32 (La.App. 5 Cir. 11/13/12), 106 So.3d 153, 173, writ denied, 13-0118 (La.3/1/13), 108 So.3d 1179. In affirming the award, the Fifth Circuit in Monteleone, reasoned as follows:
Monteleone, 11-1013 at p. 32, 106 So.3d at 173. Likewise, 1732 Canal contends that the trial court in this case properly awarded the costs for Mr. Hamill's similar services that streamlined the presentation of the evidence.
In further support of the award, 1732 Canal points out that the trial court observed
We find 1732 Canal's arguments regarding the appropriateness and reasonableness of the trial court's award of costs for Mr. Hamill's services persuasive. Hence, we reject the Board's contention that the costs awarded for Mr. Hamill's services should be reduced.
1732 Canal contends that its answer to the Board's appeal encompasses not only a request for additional attorneys' fees for its counsel's post-judgment work on appeal, but also a request to increase the 18% attorneys' fees award to 33 1/3%, or in the alternative to 25%. 1732 Canal, in its appellee's brief, labels itself as a "cross-appellant" and sets forth the following assignment of error: "[t]his Court should increase the award of attorney fees to 1732 Canal Street from eighteen percent (18%) to thirty-three and one-third percent (33 1/3%), or, in the alternative, to twenty-five percent (25%)." The Board, on the other hand, contends that because 1732 Canal's answer did not specifically pray that the 18% attorneys' fee award be increased, that issue is not before us on appeal. We agree.
An appellee's answer to an appeal is governed by La. C.C.P. art. 2133, which provides in pertinent part:
La. C.C.P. art. 2133(A). The jurisprudence has construed Article 2133 to mean that "an answer to the appeal operates as an appeal only from those aspects of the judgment which the answer complains." Samuel v. Baton Rouge General Medical Center, 98-1669, pp. 5-6 (La.App. 1 Cir. 2/18/00), 757 So.2d 43, 46 (citing Lolan v. Louisiana Industries, 95-602, p. 1 (La. App. 3 Cir.11/2/95), 664 So.2d 616, 618, n. 1).
Although an answer to an appeal and an appeal may serve the same function, they are not interchangeable. Clark v. Schwegmann Giant Supermarket, 96-2301, p. 5 (La.App. 4 Cir. 1/13/99), 740 So.2d 137, 141 (La.App. 4 Cir. 1999). When a party files an answer, as opposed to a cross appeal, the scope of review is limited to the claims expressly stated in the answer. Indeed, an appellee is required to state the relief demanded in its answer to the appeal. La.C.C.P. art. 2133. Unlike an answer to an appeal, "[a]n appeal entitles the appellant to raises [sic] all issues without specifying them in either the notice or order of appeal." Clark, 96-2301 at p. 5, 740 So.2d at 141.
Explaining the difference between an answer to an appeal and a cross-appeal, we noted in Clark that:
Id. (quoting Plotkin, LOUISIANA CIVIL PROCEDURE, Art. 2133, § 1)(internal citations omitted). Although an answer to an appeal is a cheaper, less complicated procedure, "the trade off is that under LSA-C.C.P. art. 2133 the answer must state ... what the `relief demanded' is, and the answer operates as an appeal only from those matters `of which [the appellee]... complains in his answer.'" Clark, 96-2301 at p. 7, 740 So.2d at 142 (quoting La. C.C.P. art. 2133).
Applying the above principles, we find 1732 Canal's answer to the appeal requests only additional attorneys' fees for its counsel's post-judgment work on appeal. The pertinent averments in its answer are as follows:
Nowhere in its answer does 1732 Canal mention the trial court's 18% attorneys' fee award. Given its failure to mention or to assign as error the 18% attorneys' fee award, 1732 Canal's answer cannot be considered as raising that issue on appeal. The sole issue its answer raises is whether 1732 Canal is entitled to an additional award of attorneys' fees for its counsel's post-judgment work on appeal.
As to the issue raised on appeal, we find the record before us is insufficient to determine the appropriate additional award of attorneys' fees for 1732 Canal's attorneys' post-judgment work on appeal. The difficulty in determining this additional award of attorneys' fees is the result, in part, of the fact that the post-judgment work on appeal encompasses not only the instant appeal, but also the prior appeal of the judgment on the merits — 1732 Canal I. We thus find it appropriate to remand to the trial court for a determination of the additional award of attorneys' fees to which 1732 Canal is entitled for both appeals. See Monteleone, 11-1013 at p. 34, 106 So.3d at 174 (remanding for a hearing on the issue of attorneys' fees for work on appeal).
For the forgoing reasons, the judgment of the trial court is affirmed. This case is remanded to the trial court for a determination
