Opinion
Civil Action CV-16-366
12-20-2018
PHU LE, et al., Plaintiffs v. AVERILL CONSTRUCTION LLC a/k/a JEFF AVERILL, et al., Defendants
Plaintiffs-Thaddeus Day Esq. Defendants-Jeffrey Bennett Esq.
Plaintiffs-Thaddeus Day Esq.
Defendants-Jeffrey Bennett Esq.
ORDER
Thomas D. Warren Justice
Before the court are plaintiffs' request for reconsideration pursuant to Rule 59 -essentially a motion to amend the judgment under Rule 59(e) - plaintiffs' bill of costs, and plaintiffs' application for attorney's fees.
Rule 59(e) motion
Plaintiffs' Rule 59(e) motion is denied: (1) Although the court noted that the amount overpaid "may" have been higher, the overpayment found by a preponderance of the evidence was $13, 500. (2) To the extent that plaintiffs' motion for reconsideration relies on Plaintiffs' Ex. 38, that document is hearsay and was not admitted at trial. (3) To the extent that plaintiffs are now asserting a claim for breach of warranty, no such claim is contained in their complaint and would in any event be subsumed by their claim for poor workmanship, which the court addressed. (4) In all other respects the court adheres to the analysis and rulings in its order dated September 11, 2018 and entered on the docket the following day.
Bill of Costs
Plaintiffs were prevailing parties on one of their claims and are entitled to recover the filing fee ($150.00) and service costs. 14 M.R.S. § 1502-B(1), (2). The service costs reflected in the court file total $52.30. Plaintiffs are also seeking service costs for their writ of attachment but have not submitted any documentation to substantiate that cost.
Plaintiffs' attorney is entitled to travel costs in the amount of $48.75. 14 M.R.S. § 1502-B(4).
With respect to plaintiffs' request for the fees and expenses incurred for their expert witness pursuant to 14 M.R.S. § 1502-C(1), the request is disallowed. Although the court credited Douglas Hall's testimony as to the deficiencies in workmanship he observed, that testimony did not have to come from an expert. It could have come from any competent observer. The court did not find Hall's repair estimate to be credible and excluded a significant amount of Hall's testimony because it had not been properly designated and because it had not otherwise been disclosed to defendants prior to trial.
The court allowed only the testimony previously disclosed to defendants in Hall's report attached to plaintiffs' motion for attachment. Plaintiffs are also seeking travel expenses for Andy Walsh but as far as the court can recall, Walsh did not testify at trial, either as an expert or otherwise.
Finally, although the quality of plaintiffs' photographs was poor, the court did rely on those in evaluating the evidence, and plaintiffs are entitled to $49.63 for visual aids. 14 M.R.S. § 1502-C(3).
Attorney's Fees
Plaintiffs' application for attorney's fees is denied. Plaintiffs originally filed an application for attorney's fees in the form of a July 19, 2018 affidavit from counsel that stated, "To date, the total attorney and legal support staff fees incurred by plaintiffs to prepare for and execute the trial from the time of filing complaint are $18, 433." That affidavit did not specify in any way how many hours had been spent or contain any breakdown of the work that had been performed and for which fees were sought. It did state that the bills would be made available in camera.
At the time that affidavit was filed, the court had not ruled on the merits of the case. The court's September 11, 2018 order ruled in favor of plaintiffs on their Unfair Trade Practice Act claim but granted judgment for defendants on all the other claims on plaintiffs' complaint. In light of the court's ruling, and because defendants had not responded to plaintiffs' attorney's fee claim, the court instructed plaintiffs to resubmit their fee application with specific instructions to address the inadequacy of their previous submission. September 11, 2018 order ¶¶ 32-35.
Plaintiffs have not followed those instructions. They are now seeking fees of $ 18, 549.75 (an unexplained increase of $116.75) and assert that this was all "for the UFTPA violation." In all other respects their subsequent submission is essentially identical to their previous submission, which was filed before the court decided against plaintiffs on many of their claims.
The Law Court has stated that a party seeking an attorney's fee award has "the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates." Poussard v. Commercial Credit Plan, Inc., 479 A.2d 881, 886 (Me. 1984) (emphasis added), quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).
From plaintiffs' submission the court has no way of determining (1) how much of the amount sought is in fact attributable to the Unfair Trade Practice claim on which plaintiffs prevailed, (2) whether some of the time spent was in pursuit of unsuccessful claims or arguments, and (3) whether the fee request is reasonable. Plaintiffs have not documented the number of attorney hours for which fees are claimed as required by Poussard, and they have not included a breakdown of those hours itemizing the work performed. See, e.g., Advanced Construction v. Pilecki, 2006 ME 84 ¶¶ 26-27, 901 A.2d 189. This is the bare minimum that would allow the court to determine the amount of fees to be awarded and to allow an opposing party to raise objections.
Because opposing parties have a right to object, plaintiffs' contention that billing records can only be submitted in camera is unavailing. The court had already informed plaintiffs that information as to the hours spent on tasks for which fees are sought, such as the number of hours spent researching a given issue, would not be privileged. See September 11, 2018 order ¶ 34.
The entry shall be:
1. Plaintiffs' motion pursuant to Rule 59(e) is denied.
2. Plaintiffs are awarded costs in the amount of $300.68.
3. Plaintiffs' application for attorney's fees is denied.
4. The clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).