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Prevailing Whistleblower Plaintiffs Can Collect Post-Judgment Fees

Posted on Tuesday, November 20, 2018

The plaintiffs who prevailed in a Whistleblowers’ Protection Act (WPA) lawsuit could recover post-judgment attorney fees under MCL 15.364, the Michigan Court of Appeals has ruled in a published opinion.

In Cadwell, et al. v City of Highland Park (Docket No. 338070), the trial court’s original judgment in favor of the plaintiffs and a subsequent remittitur judgment included an award of attorney fees. Thereafter, the plaintiffs sought additional attorney fees for the efforts their lawyer expended to enforce and collect on the remittitur judgment.

The defendant, however, claimed the WPA only lets the trial court award attorney fees in connection with legal work that is performed leading up to the judgment. According to the defendant, the WPA does not allow a trial court to award fees for post-judgment legal work.

The Court of Appeals refuted the defendant’s argument, addressing for the first time the issue of post-judgment attorney fees under the WPA.

“We conclude that a plaintiff prevailing on an action filed under the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., may recover postjudgment attorney fees under MCL 15.364,” the Court of Appeals wrote. “However, because the trial court failed to properly evaluate whether the requested attorney fees were reasonable and appropriate, we vacate the court’s order awarding postjudgment attorney fees and remand for further proceedings consistent with this opinion.”

Whistleblower Suit

The plaintiffs were employed by the defendant, Highland Park, as chief of police and deputy chief of police. In 2010, they filed a contract lawsuit and a WPA retaliation claim against the defendant. The case was heard by a jury, which found in favor of the plaintiffs and awarded them $760,680 each. The judgment included $500,000 each in damages for emotional distress. The trial court entered a judgment awarding the plaintiffs $760,680 each, plus costs and $47,695.60 in attorney fees.

The defendant appealed. The Court of Appeals affirmed the jury verdict but found the award of emotional distress damages was unsupported by the evidence. The Court of Appeals determined that remittitur was warranted and remanded the case to the trial court. On remand, the plaintiffs accepted the remitted judgment. The trial court entered a remittitur judgment, which indicated that the judgment amount, costs and attorney fees “shall earn and bear interest at the applicable statutory rate pursuant to MCL §600.6013(8).”

Thereafter, various motions were filed by both sides. This appeal involves the motion filed by the plaintiffs for additional attorney fees and costs to compensate their attorney for enforcing and collecting the remittitur judgment. According to the plaintiffs, the defendant was liable for paying their post-trial attorney fees pursuant to MCL 15.364. The plaintiffs supported their motion with a record of 148.8 hours spent on the case by their attorney from the time the Michigan Supreme Court denied leave to appeal and the day before the fee motion was filed. When multiplied by the requested rate of $400 per hour, the plaintiffs were asking for $59,520 in additional fees. They also requested filing fees of $140, for a total of $59,660 in post-trial fees.

The defendant, however, maintained the WPA does not permit recovery of post-judgment fees and that the plaintiffs were improperly trying to collect fees related to rulings that were ultimately overturned by the Court of Appeals.

The trial court granted the plaintiffs’ motion, awarding the plaintiffs additional fees of $29,760, which represented 148.8 hours at $200 an hour. The defendant appealed, asserting the trial court abused its discretion by awarding additional fees.

‘Brought Under The WPA’

In its analysis, the Court of Appeals explained the WPA provides that a trial court may, in its discretion, award a plaintiff who prevails on a WPA claim “reasonable attorney fees” if the court finds it “appropriate” to do so.

“Pursuant to MCL 15.364, the trial court’s original judgment in this case included an award for reasonable attorney fees, which [the defendant] did not challenge in its first appeal,” the Court of Appeals noted. “Further, the remittitur judgment entered following remand from this Court likewise contained an award of reasonable attorney fees in [the plaintiffs’] favor. [The defendant] agrees that the award of attorney fees in connection with the original and the remittitur judgment was appropriate under the WPA. However, [the defendant] argues that the WPA only permits the trial court to award attorney fees in connection with work leading up to the moment that a judgment is entered and that it does not allow a court to award any attorney fees for postjudgment legal proceedings.”

The Court of Appeals pointed out that while MCL 15.364 “plainly allows” an award of attorney fees to a prevailing plaintiff, “we have not had an occasion to determine whether that same statutory provision also permits a court to award attorney fees for legal representation taken after the initial judgment on the WPA claim is entered, i.e. postjudgment attorney fees.”

The Court of Appeals explained its primary goal when interpreting a statute “is to ascertain and give effect to the intent of the Legislature.” In this case, MCL 15.364 says: “A court, in rendering a judgment in an action brought pursuant to this act, shall order, as the court considers appropriate, reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages, or any combination of these remedies. A court may also award the complainant all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, if the court determines that the award is appropriate.”

In light of this language, the defendant argued the additional attorney fees requested by the plaintiffs were “not in furtherance of rendering a judgment under the WPA.”

“We disagree,” the Court of Appeals wrote. “A plaintiff who prevails on a WPA claim but then must engage in postjudgment legal proceedings in order to collect on his or her judgment is still prosecuting an action brought pursuant to the WPA. Here, although the post-trial motions and appeals did not all directly challenge the merits of [the plaintiffs’] claims brought under the WPA, we recognize that, generally, [the defendant’s] posttrial actions were undertaken to limit the effect of the judgment and [the plaintiffs’] actions were taken in an effort to collect on the judgment they were awarded. Thus, although ostensibly related to subjects such as the proper calculation of interest or the collection of a partially paid judgment, the postjudgment actions were brought under the WPA.”

Other Arguments

The defendant also claimed that, under the plain language of MCL 15.364, post-judgment attorney fees were impermissible because only fees generated in connection with a judgment following the adjudication of a WPA claim can be collected.

The defendant “contends that the language ‘in rendering a judgment’ should be interpreted to mean that attorney fees can only be awarded in connection with the rendering of the judgment issued following the jury verdict,” the Court of Appeals said. “The Legislature, however, used the indefinite article ‘a,’ which denotes the possibility of more than one ‘judgment.’ Thus, there can be more than one judgment.”

Here, numerous judgments were entered, including the original judgment, the remittitur judgment, and every opinion and order entered by the Court of Appeals that disposed of an appeal. Therefore, “contrary to [the defendant’s] argument, the statute does contemplate the award of attorney fees for legal proceedings taken after the ‘original’ judgment entered in favor of a plaintiff who succeeds on a claim brought under the WPA,” the Court of Appeals said, noting its decision was supported by McLemore v Detroit Receiving Hospital and University Medical Center, 196 Mich App 391 (1992).

“Moreover, we note that this Court has determined in numerous other cases that appellate attorney fees are recoverable under similarly worded statutes,” the Court of Appeals stated. “In addition, because the WPA is remedial in nature, it must ‘be liberally construed to favor the persons the Legislature intended to benefit.’ … Thus, the attorney-fee provision must be liberally construed to benefit employees engaged in protected activity under the WPA. Interpreting the statute to permit the recovery of postjudgment attorney fees is, therefore, consistent with the remedial purpose of the act.”

In conclusion, the Court of Appeals found the trial court abused its discretion in determining that $200 an hour was a reasonable rate. According to the Court of Appeals, the trial court basically determined that because the defendant could not afford to pay any more than $200 per hour, the amount of fees should be less than the requested amount.

However, the defendant’s ability to pay “is not a relevant consideration,” the Court of Appeals explained. “In determining whether a fee is reasonable, the focus is on the lawyer who performed the legal services, not on the opposing party’s ability to pay. Moreover, by failing to briefly discuss each of the reasonableness factors set forth in Pirgu [v United Servs Auto Ass’n, 499 Mich 269 (2016)] the trial court necessarily abused its discretion. Accordingly, we vacate the court’s order awarding postjudgment attorney fees and remand to the trial court for reconsideration in light of this opinion.”

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