Opinion
Civil Action No. 99-254-C-1
December 21, 2001
RULING ON MOTIONS FOR PARTIAL SUMMARY
This matter is before the court on a motion for partial summary judgment filed by plaintiff Shaw Constructors, Inc. (Shaw). Record document numbers 58-60. A motion for partial summary judgment was also filed by defendant PCS Nitrogen Fertilizer, L.P. (PCS). Record document numbers 61-64.
Each party also filed opposition memoranda to the other party's motion for partial summary judgment. Record document numbers 67, 68, 74-76, 79.
Background
The undisputed facts provide the background information necessary to understand and resolve the legal issues presented by the parties' motions for partial summary judgment.Defendant PCS entered into a contract with ICE Kaiser Engineers, Inc. and Henry J. Kaiser Company (Kaiser) to design and construct a project called the 1265 STPD Nitric Acid Facility at the PCS nitrogen plant near Geismar, Louisiana. Kaiser did not furnish a bond and notice of its contract with PCS was not recorded. The contract between PCS and Kaiser provided in Section 5.3:
CONTRACTOR represents and warrants to OWNER, and covenants and agrees that the Plant, the Facility and the Work shall be at the time of Provisional Completion free and clear of any and all liens, security interests, charges, and encumbrances (collectively "Encumbrances") related to the Work.
Section 14.1 of the contract also provided as follows:
CONTRACTOR shall immediately pay and discharge or shall provide security sufficient and satisfactory in itself to pay and discharge any obligations CONTRACTOR or any of its Subcontractors or Vendors may have, in respect of which any Encumbrances may be levied or is levied against the Work, the Plant, the Facility, the Site, the Complex, or the Owner Indemnified Parties. CONTRACTOR shall indemnify, defend and hold harmless the Owner Indemnified Parties from and against any such Encumbrance and any and all associated Losses. If at any time OWNER shall receive notice or information of the recording of any such Encumbrance or any evidence of any such Encumbrance which, if valid, would constitute a legal charge upon property of OWNER, the Plant, the Facility or any part thereof, it shall forthwith communicate the receipt of such notice, information or evidence to CONTRACTOR.
The very next provision, Section 14.2 states:
If any such Encumbrance remains unsatisfied after the Date of Mechanical Completion, CONTRACTOR shall promptly refund to OWNER all amounts that OWNER my be compelled to pay in discharging any such Encumbrance.
Kaiser then subcontracted a portion of the construction project to Shaw, pursuant to a written subcontract. The first paragraph of the subcontract between Kaiser and Shaw stated:
This Subcontract is made pursuant to a Contract between PCS Nitrogen Company (hereinafter called "Owner") and ICF Kaiser Engineers, Inc. and Henry J. Kaiser Company (hereinafter called "Contractor") wherein Contractor agreed with Owner to provide 1265 STPD Nitric Acid Facility.
In section VI of the subcontract Shaw agreed to a provision entitled "Waiver of Liens":
Subcontractor hereby agrees to and does waive his right to file any mechanic's liens or claims of any sort or kind against Owner's premises or any part thereof. Subcontractor further agrees to obtain a written waiver of the right to file any mechanic's liens or claims of any sort or kind against Owner's premises or any part thereof from any and all subcontractors, suppliers and materialmen at the time any subcontracts or purchase orders are issued in connection with the Work. In accordance with Article 25E of Exhibit "C", General Conditions for Subcontracts, a "Release and Waiver of Lien" in the form of Appendix 1-A thereto shall be executed by Subcontractor prior to release of each payment hereunder.
The new PCS nitric acid facility was constructed and eventually put into service.
After performing work pursuant to the subcontract, on January 27, 1999, Shaw filed and recorded two statements of claim, lien and privilege in the parishes of Iberville and Ascension against PCS. Shaw recorded amended and supplemental lien affidavits and statements of claim and privilege against PCS in the same two parishes on February 17, 1999.
Mortgage book 324, entry 173, and mortgage book 0820, page 019, respectively.
Mortgage book 325, entry 041, and mortgage book 824, page 299, respectively.
On February 23, 1999, Shaw filed suit against PCS and Kaiser in state court and the action was removed to this court on March 18, 1999. Kaiser and Shaw entered into a COMPROMISE AGREEMENT. The agreement required Kaiser to make payments to Shaw, but Shaw did not waive any claim it had against PCS. After making partial payments to Shaw, Kaiser discontinued payments, leaving an unpaid balance of more than $2,000,000, and filed a bankruptcy proceeding. Shaw then pursued its claims against PCS.
See, "COMPROMISE AGREEMENT" between Kaiser and Shaw, record document number 64, defendant's exhibit I.
Shaw agreed to dismiss its claims and this lawsuit against PCS if Kaiser executed the agreement and furnished replacement security for Shaw's liens, as provided in the COMPROMISE AGREEMENT. While Kaiser did execute the COMPROMISE AGREEMENT, it did not provide the replacement security.
In a prior ruling the court found that the lien waiver clause in Section VI of the subcontract between Kaiser and Shaw contains a stipulation pour autrui for the benefit of PCS. Before any revocation by Shaw or Kaiser, PCS manifested its intention to avail itself of the benefit of the lien waiver provision. Therefore, Louisiana Civil Code Article 1981 gave PCS the right to demand performance from Shaw of the obligation created by the waiver and to require that Shaw cancel its liens. Also, because the Private Works Act creates no separate in personam claim which Shaw can assert against PCS in these circumstances, and Shaw had no contractual privity with PCS, PCS cannot be liable to Shaw for the amount remaining due from Kaiser.
PCS's Claim for Damages and Attorney's Fees
Both motions now before the court involve the counterclaim asserted by PCS to collect damages and reasonable attorney's fees under LSA-R.S. 9:4833.B. based on Shaw's refusal to cancel the liens filed against PCS's property. Shaw moved for partial summary judgment in its favor to dismiss PCS's counterclaim for attorney's fees, costs and damages for Shaw's refusal to cancel its statements of claim, lien and privilege filed in January and February 1999. In support of its motion, Shaw submitted a statement of material facts and the affidavit of Randall C. Gregory. Shaw argued that it acted with reasonable cause and without malice or bad faith, and invoked the principle that courts should not impose damages on a party for resorting in good faith to the protections of the law. Shaw asserted that because of the substantial sum of money involved and Kaiser's default, it justifiably guarded its rights by refusing to cancel the liens against PCS. Shaw also relied on the terms of the compromise agreement with Kaiser to show that its actions were reasonable. Finally, Shaw maintained that the amount of property included in the statements of claim, lien and privilege was reasonable given the only description of PCS's property that could be located in the public records.
Record document numbers 9 and 24, answer and counterclaim, and supplemental and amended answer and counterclaim filed by PCS; record document numbers 10 and 28, answer to counterclaim and supplemental and amended complaint filed by Shaw.
Record document number 59, Shaw's statement of material facts, numbers 1 and 2.
Shaw also relied on Gregory's affidavit filed in March 2001 in connection with its opposition to PCS's motion for partial summary judgment. See, affidavit attached to record document number 46. Gregory is the plaintiff's associate general counsel and assistant secretary, and was personally involved in the negotiations with Kaiser on the nitric acid facility project. Attached to Gregory's latest affidavit were two letters. Plaintiff's exhibit A, letter dated October 20, 2000, signed by Eugene R. Preaus, counsel for PCS; plaintiff's exhibit B, letter dated October 26, 2000, signed by Eric A. Kracht, counsel for Shaw.
Welch v. Daigrepont, 378 So.2d 607, 609 (La.App. 3rd Cir. 1979) (case involving 1976 version of Private Works Act attorney's fee provision).
PCS contended that Shaw was without reasonable cause when it failed to authorize cancellation of the liens because there is no question that Shaw knew it had agreed in the subcontract not to file any liens against PCS's property. PCS argued further that Shaw's refusal to cancel any portion of the lien was clearly unreasonable because Shaw at least knew that the work was performed on a site located only in Ascension Parish, not both Ascension and Iberville Parishes. PCS asserted that it is entitled to a total of $76,871.34 in damages and attorney's fees, representing the fees incurred in this litigation as well as fees charged as a result of having to participate in the Kaiser bankruptcy proceeding.
In its opposition, Shaw stated that it did not dispute the fees incurred by Eugene Preaus for this case, but did argue that the fees outlined in the affidavit of Alan Hoffman should be disregarded in their entirety because they are excessive. According to Shaw, PCS had several separate and distinct claims it elected to pursue against Kaiser in the bankruptcy that were unrelated to Shaw's claims. Record document number 74, p. 17.
Applicable Law
It is unnecessary to set forth again the standards governing summary judgment. Neither PCS nor Shaw argued that there is a genuine issue of material fact in dispute that would prevent entry of summary judgment, and both asserted that the undisputed facts entitles them to judgment as a matter of law. A review of the record establishes that the issues raised in the parties' motions may be properly decided on summary judgment. This is a nonjury case and the relevant evidentiary facts are undisputed. In some instances competing inferences may be drawn from the undisputed facts in order to resolve by summary judgment the ultimate legal question. However, these inferences cannot involve issues of witness credibility or disputed material facts. A review of the record also shows that a trial would not enhance the court's ability to draw any inferences or conclusions. Therefore, the court finds that in this case it may draw inferences without resort to the expense of trial. In drawing inferences and conclusions, the court neither makes nor implies any adverse credibility determinations regarding the evidence relied upon by either party. In this diversity case the court must apply the portion of the Private Works Act which addresses improperly filed statements of claim or privilege, found at LSA-R.S. 9:4833:
A. If a statement of claim or privilege is improperly filed or if the claim or privilege preserved by the filing of a statement of claim or privilege is extinguished, an owner or other interested person may require the person who has filed a statement of the claim or privilege to give a written authorization directing the recorder of mortgages to cancel the statement of claim or privilege from his records. The authorization shall be given within ten days after a written request for authorization has been received by the person filing the statement of claim or privilege from a person entitled to demand it.
B. One who, without reasonable cause, fails to deliver written authorization to cancel a statement of claim or privilege as required by Subsection A of the Section shall be liable for damages suffered by the owner or person requesting the authorization as a consequence of the failure and for reasonable attorney's fees incurred in causing the statement to be cancelled.
C. A person who has properly requested written authorization for cancellation shall have an action against the person required to deliver the authorization to obtain a judgment declaring the claim or the privilege extinguished and directing the recorder of mortgages to cancel the statement of claim or privilege if the person required to give the authorization fails or refuses to do so within the time required by Subsection A of the Section. The plaintiff may also seek recovery of the damages and attorney's fees to which he may be entitled under this Section.
An identical provision is contained in the Public Works Act. LSA-R.S. 38:2242.1.B.
The statute under which PCS filed its counterclaim was worded differently before the amendment in 1981 and was designated as LSA-R.S.9:4821. The former provision provided in pertinent part:
In the event the owner by certified mail to the lien claimant requests the cancellation of the lien and states the reason why the lien is invalid, and the lien is not canceled within thirty days after receipt of such written request, the owner, upon successful prosecution of his suit and a showing that the refusal to cancel the lien was arbitrary, capricious, and unreasonable, shall be entitled to reasonable attorney's fees. (Emphasis added.)
This standard was in effect from 1976 until the current law was enacted in 1981 and became effective January 1, 1982. Before 1976, the jurisprudence held that attorney's fees could only be awarded to the owner if it could be shown that the lien claimant's refusal to cancel the lien upon request was in bad faith and malicious.
See, Callender v. Marks, 166 So. 891 (La.App. 2nd Cir. 1936);Hurwitz v. Lotz, 133 So. 351 (La. 1931).
Established principles of statutory interpretation require rejection of Shaw's argument that the change in the language of the statute in 1981 had no effect on the applicable legal standard. When the legislature enacts or amends a statute, it is presumed to be aware of the preceding statutes and court decisions involving the same subject matter. If the legislature words the new statute differently from the preceding statute, it is presumed to have intended to change the law. Said another way: "[p]rovisions in an obsolete statute omitted from the more recent legislation cannot be applied. . . . If a change occurs in the language, a change was intended in the legislative result." This change in the law was recognized by the Louisiana First Circuit Court of Appeal in LaMoyne-Clegg Development Corp. v. Bonfanti-Fackrell, Ltd.
Under LSA-R.S. 9:4833(B), a defendant contractor who fails to deliver written authorization to cancel the lien without reasonable cause is liable for reasonable attorney's fees incurred by the plaintiff owner. Unlike the prior statute, LSA-R.S. 9:4821, the current statute does not require the owner to show that defendant's refusal to cancel the lien was arbitrary and capricious, in addition to unreasonable, in order to be able to collect reasonable attorney's fee.
New Orleans Rosenbush Claims Service, Inc. v. City of New Orleans, 653 So.2d 538, 544 (La. 1995); Popich Bros. Water Transport v. Gulf Coast Marine Inc., 705 So.2d 1267, 1270-17 (La.App. 4th Cir. 1998), writ denied, 717 So.2d 1166 (La. 1998); Warren v. Bergeron, 636 So.2d 1013, 1017 (La.App. 1st Cir. 1994), writ denied, 642 So.2d 1295 (1994).
Popich, citing, McGee v. State, 502 So.2d 121, 122 (La.App. 4th Cir. 1986), writ denied, 505 So.2d 730 (La. 1987)
Where the legislature deliberately amends an act or repeals an act and enacts a new statute changing the provisions of the prior statute by using words conveying a different meaning, the courts are not authorized to ascribe a meaning at variance with the plain import of the language used as that would be exercising legislative functions and would in effect operate as a judicial repeal.Popich, 705 So.2d at 1271.
509 So.2d 43, 46-47 (La.App. 1st Cir. 1987).
Therefore, the court must give effect to the current statute as written, not the parts of it that were omitted or repealed in 1981, or old case law which provided an entirely different standard before any statute was enacted.
Shaw also relied on the comments to the 1981 amendments which stated in the first sentence: "[t]his section is new but does not change the law." Comment(a). This general statement is unpersuasive in light of the plain language of the statute, and the history of the changes in the language used to define the governing standard.
There are few cases interpreting the 1981 statute. Nonetheless, it is evident that the only remaining standard for judging Shaw's conduct in refusing to cancel its improperly filed liens is one of reasonableness. The requirements of bad faith, malice, and arbitrary and capricious conduct have been repealed. It is only necessary for PCS to establish that the liens were improperly filed and that Shaw refused to cancel them without reasonable cause.
The parties did not cite and the court did not find any controlling Louisiana Supreme Court case interpreting the current version of the statute.
The court can discern no distinction between the phrase "without reasonable cause" and the term "unreasonable" which was part of the prior statute.
Analysis
Although subsequent events may have prevented the subcontract waiver provision from being enforced by Kaiser, that does not change what Shaw promised not to do in the agreement itself. The court's ruling that PCS was a third party beneficiary and could enforce the lien waiver provision was a separate finding from the interpretation of the waiver provision. The plain language of the waiver conferred a clear and direct benefit on PCS whereby Shaw agreed not to file any liens or privileges against PSC's premises. There was absolutely no language in the contract or the Private Works Act to support Shaw's position regarding the interpretation of the lien waiver. In these circumstances Shaw did not have reasonable cause to refuse to authorize removal of the liens when PCS requested cancellation.Shaw essentially urged the court to find that it proceeded reasonably because it was owed a substantial amount of money, and acted on the advice of counsel who made plausible legal arguments that it could not be held to its agreement. The difficulty with Shaw's position is that it ignores the fundamental fact that it clearly and unequivocally waived the rights it later sought to enforce against PCS. Kaiser's bankruptcy, the compromise agreement between Shaw and Kaiser, and the emergence of the legal issue of the ability to enforce the waiver clause, do not change the fact that at the time Shaw filed the liens against PCS, it had freely entered into a subcontract which contained a provision relinquishing the very rights it was trying to assert. Shaw's invocation of the principle that courts cannot inflict damages on a party for resorting in good faith to the law for protection of its rights, has no force where Shaw resorted to asserting rights against a party that it had knowingly waived. Shaw's contention that its good faith is demonstrated by its partial release to the extent of payments made by Kaiser is also unconvincing. No significance can be ascribed to this action, which can be interpreted as nothing more than Shaw's recognition that it could not collect more than what was owed.
The case of Dickson v. Moran, 344 So.2d 102, 105 (La.App. 2nd Cir. 1977), indicates that advice of counsel could be a factor to consider in determining whether a lien was recorded in bad faith or malice. See also, Abbeville Lumber Co. v. Richard, 350 So.2d 1292, 1301 (La.App. 3rd Cir. 1977). Again, however, the current law applicable to PCS's counterclaim does not require proof of bad faith or malice.
The reasons Shaw relies upon here (substantial amount of money at issue and questionable enforceability of the lien waiver clause) are clearly distinguishable from the facts in Z. Ellis Roofing Company, Inc. v. McDonnel Enterprises Inc., 562 So.2d 1191 (La.App. 5th Cir. 1990),writ denied, 567 So.2d 616 (La. 1990), in which the court held that the record did not support an award of attorney's fees. In Ellis, unlike the present case, there was a genuine factual dispute underlying the determination of whether the lien was valid. Whether the claimant had waived his rights to file a lien was not an issue. The question was whether the lien was timely filed.
Shaw also invoked the compromise agreement with Kaiser to support the argument that there was reasonable cause not to cancel the liens. In light of the well established law of contracts and third party beneficiaries, Shaw's apparent position that somehow the terms of that agreement could be enforceable against PCS is unpersuasive. The compromise agreement was between Shaw and Kaiser. Other than to continually emphasize the large sum of money involved, Shaw failed to explain how the compromise agreement justified its actions vis-a-vis PCS or provided reasonable cause not to cancel the liens.
Shaw also stated in its memorandum that following Kaiser's default, its only recourse for protecting its rights was to file the liens against PCS. The record in this case clearly does not support this assertion. Shaw could and did pursue available remedies against Kaiser.
The unreasonableness of Shaw's actions is demonstrated further by Shaw's refusal to cancel at least the part of the liens which affected PCS's property well beyond the parish where the nitric acid facility was located. The information provided in Gregory's affidavits does not support the conclusion that Shaw's actions on this point were reasonable. Gregory's affidavits explain why at the time the liens were filed they covered PCS's property located in two parishes. However, his affidavits do not provide any explanation for the refusal to cancel even a part of the lien when PCS made its demand in October 2000. At that point, if not before, Shaw was on notice that the work was not performed in two parishes on both sides of the river and Shaw could have at least released part of the property. Yet, Shaw failed to take any steps to correct or amend its statements of claim, lien and privilege to reflect these known facts.
It is undisputed that the statements and amended statements of claim, lien and privilege covered property of PCS located in both Ascension and Iberville Parishes. Record document number 59, Shaw's statement of material facts, numbers 1 and 2.
Gregory explained that before filing the statements of claim, lien and privilege he reviewed the public records, but could not find a notice of contract or notice of termination associated with the work performed that included a legal description of the property where Shaw's work was performed. Therefore, he relied on the narrowest recorded description of the property including PCS's plant that he could find in the public records — approximately 1,000 acres owned by PCS in both Iberville and Ascension Parishes.
An affidavit executed January 27, 1999, in connection with the statement of claim, lien and privilege by Douglas Fussell, Shaw's executive vice president, included a statement that Shaw's labor, material and services were used in the construction of PCS's nitric acid plant located in Geismar, Louisiana. Thus, Shaw knew well before October 2000 that the work was located and performed in one parish. This affidavit was attached as exhibit C to Shaw's supplemental and amended complaint filed January 22, 2001. Record document number 28.
In summary, based on the undisputed facts, Shaw is liable to PCS for damages and attorney's fees under LSA-R.S. 9:4833 because: (1) the ruling issued by the court on August 3, 2001, demonstrates that Shaw's liens against PCS's property filed in January and February 1991 were improperly filed, and (2) Shaw's refusal to authorize cancellation or partial cancellation of the liens in October 2000 was without reasonable cause, since Shaw knew that it had entered into a subcontract in which it clearly and expressly agreed not to file any claims or liens of any kind against PCS's premises, and also knew that the PCS facility on which it performed the work was located only in Ascension Parish.
Amount of Damages and Attorney's Fees
Shaw does not dispute the amount of attorney's fees incurred by PCS in this litigation, as set forth in the affidavit of Eugene R. Preaus, in the amount of $33,513.95.
Shaw argued that the damages claimed by PCS in the form of attorney's fees and expenses incurred in connection with its participation in the Kaiser bankruptcy proceedings were necessitated by the failure of PCS to require Kaiser to furnish and maintain a bond. Furthermore, Shaw argued, the amounts claimed by PCS are excessive because PCS had several separate and distinct claims against Kaiser that it elected to pursue in the Kaiser bankruptcy, which claims were wholly unrelated to the Shaw claims. Shaw did not challenge the amount or reasonableness of any particular attorney's fee entry or expense item.
In his affidavit attorney Allen Hoffman explained that the amount of attorney's fees claimed by PCS in connection with its participation in the Kaiser bankruptcy proceedings includes all attorney's fees directly attributable to the Shaw lien claims, excludes all attorney's fees attributable to the two matters not related to the Shaw lien claims, and includes one-third of all attorney's fees attributable to general services rendered to protect PCS's rights with respect to all claims.
The lodestar method of determining the amount of an attorney's fee award is typically used in the federal courts. To determine the amount of the fee award, the court must first calculate the lodestar by multiplying the number of hours reasonably spent on the litigation times a reasonable hourly billing rate. Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939 (1983); Watkins v. Fordice, 7 F.3d 453, 456 (5th Cir. 1993),aff'd, 49 F.3d 728 (5th Cir. 1995). The court should then consider the factors announced in Johnson v. Georgia Highway Express Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), when analyzing the reasonableness of the hours expended and the hourly rate requested. Watkins, supra. The lodestar may then be adjusted if the Johnson factors, not included in the reasonable fee analysis, warrant the adjustment. Watkins, supra; Shipes v. Trinity Industries, 987 F.2d 311, 320 (5th Cir. 1993), cert. denied, 510 U.S. 991, 114 S.Ct. 548 (1993) However, the lodestar is presumptively reasonable and should be modified only in exceptional cases. City of Burlington v. Dague, 505 U.S. 557, 561, 112 S.Ct. 2638, 2641 (1992).
The court is required to determine "whether particular hours claimed were reasonably expended." Alberti v. Klevenhagen, 896 F.2d 927, 932 (5th Cir.), modified, 903 F.3d 352 (5th Cir. 1990). "If more than one attorney is involved, the possibility of duplication of effort along with the proper utilization of time should be scrutinized. The time of two or three lawyers in a courtroom or conference when one would do, may obviously be discounted." Johnson, supra, at 717.
Parties submitting fee requests are required to exercise billing judgment. "Ideally, billing judgment is reflected in the fee application, showing not only hours claimed, but also hours written off."Id. Leroy v. City of Houston, 831 F.2d 576, 585, n. 15 (5th Cir. 1987),cert. denied, 486 U.S. 1008, 108 S.Ct. 1735 (1988); Alberti, 896 F.2d at 930. Parties do not have the right to bill for inadequately documented time or for time on issues which they do not prevail. Louisiana Power Light Company v. Kellstrom, 50 F.3d 319, 324 (5th Cir.), cert. denied, 516 U.S. 862, 116 S.Ct. 173 (1995); Watkins, 7 F.3d at 457; see, Texas State Teachers Association v. Garland Independent School District, 489 U.S. 782, 784, 109 S.Ct. 1486, 1489 (1989). Rather than trying to apportion hours among multiple claims, the court should focus on "the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Hensley, 461 U.S. at 435, 103 S.Ct. at 1940. The most critical factor in determining a fee award is the "degree of success obtained." Id., 461 U.S. at 436, 103 S.Ct. at 1941.
In Pennsylvania v. Delaware Valley Citizens' Council for Clear Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 3098 (1986), the Court clarified that the novelty and complexity of the issues, special skill and experience of counsel, quality of representation, and the results obtained from the litigation are presumably fully reflected in the lodestar amount and thus cannot serve as an independent basis for increasing the fee. Burlington and Shipes eliminated the contingent nature of the fee as an additional basis for enhancement. Shipes also concluded that the time constraints involved is a factor subsumed in the number of hours reasonably expended.
Regarding the proper hourly rate used to calculate the lodestar fee, when the attorney's customary billing rate is the rate at which the attorney requests the lodestar to be computed, and that rate is within the range of prevailing market rates, the court should consider this rate when fixing the hourly rate to be allowed. Islamic Center v. City of Starkville, 876 F.2d 465, 469 (5th Cir. 1989). "When that rate is not contested, it is prima facie reasonable." Id.
In this case, Shaw does not contest the reasonableness of the hourly rates of the attorneys or others providing services for PCS in connection with the bankruptcy proceeding. Therefore, the court is left to determine the number of hours reasonably spent on the bankruptcy litigation. That task is complicated in this case because PCS is not claiming attorney's fees attributable to matters not related to the Shaw lien claims, and claims only one-third of all attorney's fees attributable to general services rendered in the bankruptcy proceedings. It appears from Hoffman's affidavit that the fee bills he attached include only those charges which fall in the two categories for which PCS seeks recovery. However, Hoffman did not explain in his affidavit or in a separate attachment which hours fall into which of the two categories. Nor can it be determined from Hoffman's affidavit whether a claim for one-third of all attorney's fees attributable to general services is reasonable. Supposing that the attorney's fees attributable solely to the Shaw lien claim were approximately one-third of the total attorney's fees incurred in connection with the bankruptcy proceeding, a claim for one-third of all attorney's fees attributable to general services rendered in the bankruptcy proceedings might be reasonable. But if the fees attributable solely to the Shaw lien claim comprised substantially less than one-third of the fees incurred on the other two matters, recovery of one-third of the general services fees might be unreasonable.
These circumstances warrant a reduction of one-third of the amount of attorney's fees and costs incurred by PCS in connection with the Shaw lien claim in the bankruptcy proceedings. This amounts to a reduction of $14,050.36, resulting in attorney's fees and expenses in the amount of $28,100.73.
Conclusion
Accordingly, the motion for partial summary judgment filed by defendant PCS Nitrogen Fertilizer, L.P. (PCS) on the issue of damages and attorney's fees under LSA-R.S. 9:4833 is granted, and the motion for partial summary judgment filed by plaintiff Shaw Constructors, Inc. is denied. PCS is awarded attorney's fees incurred in connection with this litigation in the amount of $33,513.95, and is awarded damages, consisting of attorney's fees and expenses incurred in connection with the bankruptcy proceedings, in the amount of $28,100.73.
Judgment shall be rendered in favor of defendant PCS Nitrogen Fertilizer, L.P. in the total sum of $61,614.68, plus interest.