575 So. 2d 1030 | Ala. | 1990
Cecil W. Lowery and Gene Schofield filed a
"In any action or proceeding to enforce a provision of [section] . . . 1983 . . . of this title, title IX of Public Law
92-318 . . ., the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs."
In Alabama, in state law causes of action, attorney fees are recoverable as part of the costs of an action only when authorized by statute or when provided in a contract or by special equity, such as a proceeding where the efforts of an attorney create a fund out of which fees may be paid.Reynolds v. First Alabama Bank,
"In the case of Cecil Lowery, we, the jury, find favor of the Plaintiff, Cecil Lowery, and against the Defendant, Jammy D. Thomas, and assess his damages at $500.00."
"In the case of Gene Schofield, we, the jury, find in favor of the Plaintiff, Gene Schofield, and against the Defendant, Jammy D. Thomas, and assess his damages at $500.00."
The order of the trial court denying the petition for attorney fees was as follows:
"It is, therefore, ORDERED AND ADJUDGED by the Court that the Plaintiffs' said petition for award of attorney's fees be, and the same is, hereby denied."
Thus, the argument of Lowery and Schofield dealing with their entitlement to an award of attorney fees is predicated on the supposition that under the jury's verdicts, they were "prevailing parties" under § 1988, as a matter of law.
If the § 1983 claim and the state law claim arise out of a "common nucleus of operative fact," then in determining the plaintiff's status as a "prevailing party" under § 1988 it is immaterial upon which claim or claims the judgment is based, unless the § 1983 claim is specifically denied. Maher v. Gagne,
In Texas State Teachers Ass'n v. Garland Independent SchoolDistrict,
"We think the language of Nadeau v. Helgemoe, [
581 F.2d 275 (1st Cir. 1978),] quoted in our opinion in Hensley [v. Eckerhart,461 U.S. 424 ,103 S.Ct. 1933 ,76 L.Ed.2d 40 ] adequately captures the inquiry which should be made in determining whether a civil rights plaintiff is a prevailing party within the meaning of § 1988. If the plaintiff has succeeded on 'any significant issue in litigation which achieve[d] some of the benefit the parties sought in bringing suit,' the plaintiff has crossed the threshold to a fee award of some kind. Nadeau,581 F.2d, at 278-279 ."
Therefore, under the facts in this case, where the § 1983 claims and the state law claims arose out of a "common nucleus of operative fact" and where Lowery and Schofield did succeed on a significant issue that achieved some of the benefit they sought in bringing the suit, they are prevailing parties under § 1988, for there was no affirmative denial of their § 1983 claims. Davis v. Everett,
"The discretion of the trial court in denying attorneys' fees to a prevailing party under § 1988 is extremely narrow, and such party should ordinarily be awarded attorneys' fees unless special circumstances would render such an award unjust."Canterbury Nursing Home, Inc. v. Alabama State Health Planning Development Agency,
REVERSED AND REMANDED WITH INSTRUCTIONS.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur.
"(1) [T]he time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the 'undesirability' of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases."
See, also, O. Hymer, The Eleventh Circuit's Application ofthe Civil Rights Attorney's Fees Awards Act of 1976, 36 Ala. L. Rev. 103 (1984), for a more in-depth treatment of the 12 factors to be considered.