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COA: Award fees for litigation costs

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The Indiana Court of Appeals instructed a trial court today to follow its guidance on remand to determine the amount of money to award to a man who wants to recover fees for litigation at the trial and appellate levels. The court hopes to avoid another appeal of the case.

In Christopher Scott Barker v. City of West Lafayette and Officer Adam S. Ferguson,  No. 79A02-0804-CV-384, Christopher Barker appealed the denial of fees related to his litigation to recover fees. After being acquitted of resisting law enforcement and battery upon a law enforcement officer charges, Barker sued the city of West Lafayette on federal claims of false arrest, excessive force, and malicious prosecution. The jury found in favor of Barker on his false arrest and malicious prosecution claims. He filed a petition to recover attorney fees and costs pursuant to 42 U.S.C. 1988. The trial court awarded him nearly $50,000, relying on Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974).

Barker appealed, and on remand the trial court recalculated his fees based on the lodestar method and awarded him $92,906. The trial court didn't believe he should receive compensation for the federal claim he lost or the fact the trial court originally relied on Johnson to calculate the fees.

Barker then filed a motion to correct error, which the trial court granted without a hearing or receiving a response from the city. The trial court set aside its previous decision in its entirety, recalculated Barker's attorney fees at a higher hourly rate, but stated it didn't compensate him for the lost claim or its previous use of Johnson. The new order included fees related to his excessive force claim but denied him nearly $57,000 in fees for litigation of the fee issue in the trial court, on appeal, and on remand.

The city filed a motion to correct error, arguing they weren't allowed sufficient time to respond to Barker's motion to correct error; the trial court re-affirmed its order.

In the instant case, the Court of Appeals ruled Barker was entitled the nearly $57,000 in fees for litigation that the trial court had denied because he was the prevailing party. The city's argument that Barker led the trial court to use Johnson to calculate his original fee award was unpersuasive, wrote Judge Terry Crone.

The appellate court affirmed the award of fees related to the excessive force claim, the hourly rate used by the trial court to calculate Barker's attorney fees award, and the award of paralegal fees. It found there was no reversible error committed by the trial court when it re-affirmed and re-entered its prior order, wrote the judge.

Judge Crone wrote in a footnote at the end of the opinion that the trial court should consider the Court of Appeals' guidance when determining on remand the amount of fees Barker is entitled to in order to avoid another appeal of the case and further expenditure of public funds.

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