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EVANS v. PARADISE MOTORS

March 18, 1991

EILEEN EVANS, Plaintiff,
v.
PARADISE MOTORS, INC., et al., Defendants



The opinion of the court was delivered by: LANGFORD

AWARD OF ATTORNEY'S FEE'S

 SYNOPSIS

 Plaintiff EILEEN EVANS (EVANS) sued defendants PARADISE MOTORS (PARADISE), MICHAEL LONG (LONG) AND JOHN SLACK (SLACK), alleging violation of the Federal Odometer Act (15 U.S.C. § 1989(a)(2), intentional misrepresentation, negligent misrepresentation, breach of contract and bad faith denial of contract. After a six-day trial a jury found PARADISE and LONG liable under the Odometer Act, and PARADISE, LONG and SLACK liable jointly and severally on all other causes of action.

 The jury awarded $ 1500 for the Odometer Act violation, $ 4,501 in compensatory damages and $ 50,000 in punitive damages.

 Plaintiff's attorneys submitted an application for fees and costs. One application was for preliminary work early in the case by a sole practitioner. The other part of the application was for 254 hours of legal work by a partner, a first-year associate and a summer law clerk of a large law firm. The total application for fees was $ 47,116.80. The attorneys also submitted an application for costs of $ 610.55.

 The Court examined the itemized hourly bills of the sole practitioner and law firm and determined that the amount of time spent on each segment of the case was reasonable and that the work had been apportioned among the partner, associate and clerk in an economical fashion. The Court found that some additional time was spent because defendants on the eve of trial began to use two attorneys simultaneously, where before they had only used one. This required extra time at trial, since each attorney examined and cross-examined witnesses and presented arguments to the jury.

 The Court also found that the case presented at least one novel legal issue which had resulted in a published opinion by the District Court.

 The Court also found that plaintiff's attorneys had obtained an extraordinary result, one of the highest awards ever made in an odometer case.

 The Court examined the credentials of plaintiff's attorneys and found them to be outstanding. During the course of proceedings the Court observed that plaintiff's counsel at all times showed a high caliber of legal expertise and conduct.

 The Court also found that public policy requires that an attorney have a reasonable expectation of receiving an adequate fee in an odometer case; otherwise the public will be unprotected against this type of fraud.

 The Court further found that the fee in this case was not unreasonable when compared with fees in other odometer cases.

 The Court having considered all these factors, and the record in the case,

 IT IS HEREBY ORDERED that the application for attorney's fees and costs on behalf of plaintiff EILEEN EVANS be GRANTED in its entirety.

 One defendant was excluded from liability under the Odometer Act, but was found liable on all other causes of action. These causes of action form the underlying wrongful conduct which the Odometer Act seeks to prevent. The Court determined that he should be equally liable for plaintiff's attorney's fees. Therefore,

 IT IS FURTHER ORDERED that defendants PARADISE MOTORS, MICHAEL LONG and JOHN SLACK are jointly and severally liable for the attorney's fees submitted by plaintiff EILEEN EVANS: $ 47,116.80. All defendants are likewise liable for EVANS' costs: $ 610.55.

 BACKGROUND

 In 1988, EVANS negotiated with PARADISE to purchase a 1986 Alfa Romeo convertible with an odometer reading of approximately 17,000 miles. Before the transaction was completed, she discovered that the true mileage of the car was more than 40,000 miles. She was unable to obtain a satisfactory resolution from PARADISE.

 Evans then sued PARADISE, its owner, LONG, and salesman SLACK for:

 1) violating the Federal Odometer Act, 15 United States Code Section 1989(b);

 2) intentional misrepresentation;

 3) negligent misrepresentation;

 4) breach of contract;

 5) bad faith denial of contract.

 After six days of trial before a jury, on October 16, 1990, the jury made the following findings, by special verdict:

 1) Defendants PARADISE and LONG had violated the Federal Odometer Act; EVANS was awarded damages of $ 1500.

 2) Defendants PARADISE, LONG and SLACK had committed intentional misrepresentation, negligent misrepresentation, breach of contract and bad faith denial of contract;

 a) for intentional misrepresentation, the jury awarded EVANS compensatory damages of $ 1,501 and punitive damages of $ 25,000;

 c) for negligent misrepresentation, the jury awarded EVANS compensatory damages of $ 0.00;

 d) for breach of contract, the jury awarded EVANS compensatory damages of $ 3,000;

 e) for bad faith denial of contract, the jury awarded EVANS compensatory damages of $ 0.00 and punitive damages of $ 25,000;

 Judgment was accordingly entered on October 22, 1990, against PARADISE and LONG for $ 1500, and against PARADISE, LONG and SLACK, jointly and severally, for $ 54,501, with interest.

 Defendants moved for a new trial or judgment notwithstanding the verdict. The motions were denied on November 29, 1990.

 FEES AVAILABLE UNDER TWO STATUTES

 15 U.S.C § 1989(a)(2) (Federal Odometer Act)

 (This is significant, at least in part, because one defendant, JOHN SLACK, was dismissed from Odometer Act liability, found liable only for state causes of action.)

 The Odometer Act provides that an award of attorney's fees shall be for a "reasonable" amount, but does not set forth any other guidance to the federal court as to the calculation of a reasonable fee award. See 15 U.S.C.A. § 1989(a)(2) (West 1990); Bayless v. Irv Leopold Imports, Inc., 659 F. Supp. 942 (D. Or. 1987). Therefore, federal courts look to other opinions calculating reasonable attorney's fees under other federal statutes. Bayless, 659 F. Supp. at 942.

 NINTH CIRCUIT RULE: KERR FACTORS

 In an odometer case, the Bayless court looked to the Ninth Circuit's twelve factor approach articulated in Kerr v. Screen Extras Guild, Inc. 526 F.2d 67, 70 (9th Cir. 1975), cert. denied, 425 U.S. 951, 48 L. Ed. 2d 195, 96 S. Ct. 1726 (1976) (calculating reasonable ...


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