Free Motion for Attorney Fees - District Court of Arizona - Arizona

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Lori A. Butler, Bar No. 016139 W EIL & W EIL, PLLC 1600 S. Fourth Avenue, Suite C Yuma, Arizona 85364 Tel: (928) 783-2161 Fax: (928) 783-6082 Attorney for G-12, LLC

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 By: /s/ Lori A. Butler Lori A. Butler v. 33.854 Acres of Land, more or less, located in Yuma County, State of Arizona, et al., Defendants. G-12, L.L.C., an Arizona Limited Liability Company, ("Landowner"), respectfully applies for fees and expenses under the Equal Access to Justice Act and provides the following Memorandum of Points and Authorities in support thereof. Respectfully submitted this 30th day of January 2007. Weil & Weil, PLLC UNITED STATES OF AMERICA, Plaintiff, APPLICATION FOR FEES AND EXPENSES UNDER THE EQUAL ACCESS TO JUSTICE ACT (28 U.S.C. § 2412) Case No. CV03-2007-PHX-SRB IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

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MEMO RANDUM OF POINTS AND AUTHORITIES G-12, LLC, respectfully applies for fees and costs under the Equal Access to Justice Act and as grounds states as follows: I. ELIGIBILITY A. Application is Timely The Equal Access to Justice Act, as amended, 28 U.S.C. § 2412 (the "EAJA"), provides for an award of attorney fees and costs to a prevailing party in litigation against the United States. Pursuant to 28 U.S.C. § 2412(d)(1)(A): "Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." Pursuant to 28 U.S.C. § 2412(d)(1)(B), an application for EAJA fees must be filed no later than 30 days after final judgment in the action. Here, that date would be within 30 days after the November 1, 2006, Judgment became final. (A copy of the Judgment is attached as Exhibit "A".) The Judgment became final 60 days after the Judgment was issued because no notice of appeal was filed. Federal Rules of Appellate Procedure, Rule 4(a)(1)(B). This application was filed within 30 days after final judgment. Hence, this application is timely. B. Real Party In Interest G-12, L.L.C., is the real party-in-interest in this proceeding. The Complaint in Condemnation was filed on October 16, 2003. In October 2003, the Betty Dose Trust executed a Warranty Deed conveying any and all interests in the subject property to G-12, L.L.C. G-12, L.L.C., filed its Answer and all subsequent documents as "Landowner" or "Defendant" in conjunction with the Trust. Payment from the Court Registry for just

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compensation was made payable to G-12, L.L.C. G-12, L.L.C. has paid the bills for attorney fees and costs in this proceeding. G-12, L.L.C. is the real party-in-interest for purposes of this EAJA application. See Germano-Millgate Tenants Ass'n v. Cisneros, 855 F.Supp. 233 (N.D. Ill. 1993)(Partnership that issued checks to counsel was real party in interest and was "party" entitled to attorney's fees under 28 U.S.C. § 2412(d). Attached hereto as Exhibit "B" is the Affidavit of Kathy McCloud, Comptroller of G-12, L.L.C. Ms. M cCloud states that G-12, L.L.C. meets the statutory eligibility

requirements of a "party" under 28 U.S.C. § 2412(d)(2)(B). C. Prevailing Party Under 28 U.S.C. § 2412(d)(2)(H), "prevailing party" in the case of eminent domain proceedings means: "a party who obtains a final judgment (other than by settlement), exclusive of interest, the amount of which is at least as close to the highest valuation of the property involved that is attested to at trial on behalf of the property owner as it is to the highest valuation of the property involved that is attested to at trial on behalf of the Government". Thus, in an eminent domain action, whether a party is a "prevailing" party is

16 determined from a mathematical calculation. 17 At trial the Don Dorchester, on behalf of the Government, attested to the value of the 18 subject property as $475,000.00. 19 At trial, on behalf of the property owner, Glen Curtis attested to the value of the 20 subject property as $1,184,000.00. 21 Also on behalf of the property owner, Jim Sanders, Defendants' expert witness, 22 attested to the value of the subject property as $1,050,000.00. 23 On August 15, 2006, following trial, a jury returned a verdict in the amount of 24 $1,353,800.00. Judgment was issued on November 1, 2006, for just compensation in the 25 amount of $1,353,800.00. See Judgment attached hereto as Exhibit "A". 26 Here, final judgment, in the amount of $1,353,800.00, is at least as close to the highest 27 28 3

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valuation of the property that is attested to at trial on behalf of the property owner ($1,184,000.00) as it is to the highest valuation of the property that is attested to at trial on behalf of the Government ($475,000.00). G-12, LLC is unquestionably the "prevailing party" under the EAJA. II. ENTITLEMENT The EAJA creates a presumption of a fee award. See United States v. 313.34 Acres of Land, 897 F.2d 1473, 1477 (9 th Cir. 1990); United States v. First Nat'l Bank of Circle, 732 F.2d 1444, 1447 (9 th Cir. 1984); Thomas v. Peterson, 841 F.2d 332, 335 (9 th Cir. 1988). According to the terms of 28 U.S.C. § 2412(d)(1)(A): "Except as otherwise specifically provided by statutes, a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action . . ., unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." (Emphasis added.)

14 The Government's position was not substantially justified. 15 Title 28 U.S.C. § 2412(d)(2)(D) imposes upon the government the burden to show that 16 its position was substantially justified. Ratnam v. Immigration and Naturalization Service 17 18 position was substantially justified is within the Court's discretion. United States v. 313.34 19 Acres of Land, 897 F.2d at 1477. 20 The Ninth Circuit has set forth the following considerations to be used when deciding 21 whether the government's position was substantially justified: 22 1. 23 into evidence based on the (a) qualifications of the appraiser, (b) impartiality or lack thereof 24 of the appraiser (how often he was employed by the government), (c) factual basis of the 25 appraisal (specifically, the reasons the appraisal differs from that of the landowner; (d) 26 awards and sales of similar property in the area at or about the time in question, (e) whether 27 28 4 The reasonableness and reliability of the government's appraisals introduced v. Jean, 177 F.3d 742, 743 (9 th Cir. 1999). A determination of whether the government's

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the comparable sales used by the appraiser were in fact comparable; 2. A comparison of the government's appraisal, the offer made, and proof of

valuation at trial; 3. Any explanation offered by the government as to discrepancies between its

offer, the appraisal(s), and trial evidence; 4. The good faith, or lack of it, of the government in trying to reconcile the

dispute prior to litigation; and 5. Any other relevant evidence.

United States v. 313.34 Acres of Land, 897 F.2d 1473 (9 th Cir. 1990); see also United States v. Charles Gyurman Land & Cattle Co., 836 F.480, 485 (10th Cir. 1987); United States v. 1,378.65 Acres of Land, 794 F.2d 1313, 1317 (8 th Cir 1986); United States v. 640.00 Acres of Land, 756 F.2d 842, 850 (11th Cir. 1985). Although the Government has the burden to prove substantial justification, G-12, LLC provides the following information to support a finding of no substantial justification. The Government's pre-litigation offer was in the amount of $408,000.00 for the subject property. After the eminent domain proceeding was filed, the Government retained appraiser Don Dorchester. Mr. Dorchester provided an appraisal of the subject property at

$475,000.00 (approximately $65,000.00 more than the offer). This was also the valuation provided at trial. At trial Defendants were able to point out numerous errors with Mr. Dorchester's valuation. The Government's appraiser lists eight "comparable" sales in his appraisal report that precede the valuation date by four years (1999 sales). Mr. Dorchester did not make any market conditions adjustment regarding sales that preceded the valuation date by over four years, contrary to basic tenants of appraisal procedure.

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Mr. Dorchester arrived at his valuations by taking a mathematical average of all sales (old sales and newer sales) and made no adjustment for timing of sales, location, zoning or other elements of comparison required. Mr. Dorchester used an insider transaction as a comparable sale, in violation of basic tenet of real estate appraisal principles. Mr. Dorchester did not utilize heavy industrial sale property as comparable sales, despite the zoning of the subject property as heavy industrial property. Finally, as to good faith of the Government trying to reconcile the dispute prior to trial, G-12, LLC submits there was absolutely no attempt to resolve this matter. The parties executed a Stipulation for Modification of Pretrial Schedule acknowledging May 9, 2006, as the date for settlement conference. A settlement conference was set before Mark E. Aspey, United States Magistrate Judge, for May 9, 2006. In preparation for the settlement conference counsel expended time to complete a Confidential Settlement Brief. Defendants and counsel cleared their schedules for this conference. At the last minute counsel for the landowners was notified that the settlement conference would be cancelled because the Government does not settle condemnation cases. Accordingly, there is no good faith in attempting to resolve this dispute prior to trial. In sum, there is no substantial justification for the Government's position on just compensation in this matter. There are no special circumstances present in this case that would make an award of fees unjust. 28 U.S.C. § 2412(d)(1)(A). III. REASONABLENESS OF REQUESTED AWARD G-12, LLC submits that the requested attorneys' fee award is reasonable. Counsel for landowners expended substantial time to all facets of this litigation up to and including the week long trial in August 2006. During the months of June, July and August 2006, John Weil, counsel for Landowners, was precluded from working for other

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clients because of the required preparation for trial in this case. The fee contracted between attorney and client in this case was a fixed hourly rate. No written fee agreement exists. See Exhibit "C", Statement of Consultation and Exhibit "D" Statement Regarding Fee Agreement and Exhibit "E", Affidavit of Lori Butler. The amount of money involved in this litigation was significant. The Landowner's valuation of the subject property was $1,185,000.00. This valuation differed greatly from the Government's valuation of $475,000.00. Accordingly, presentation of this case was valued at least over six hundred thousand dollars, due to the differential in valuations. As a result of counsel's efforts prior to and at trial, the jury returned a verdict in the amount of $1,353,800.00. This result clearly substantiated counsel's significant effort expended on this case. John Weil has a long-standing attorney/client relationship with Landowners which has lasted over twenty years. The hourly fee charged for this litigation is identical to the hourly fee charged to the client for all matters. Attached is a true and correct copy of Invoices itemizing the time spent in this eminent domain action and the costs of the litigation. As the Invoices show, counsel spent attorney time totaling $86,747.75 on this litigation and incurred additional costs of $10,617.14 .

Some of the time entries indicate "split with 192.019 acres". This designates that the attorney time or expense pertained to two condemnation cases, the instant case, and United States v. 192.019 Acres of Land, Case No. CIV-03-2006, and therefore, the attorney time or expense was split 50/50 between the two cases. Wherefore, G-12, LLC, respectfully applies for an award of attorney fees and costs pursuant to the Equal Access to Justice Act.

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Respectfully submitted this 30 th

day of January 2007. Weil & Weil, PLLC

By:

/s/ Lori A. Butler Lori A. Butler

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CERTIFICATE OF SERVICE I hereby certify that on January 30 th , 2007, I electronically transmitted the Application for Fees and Expenses Under the Equal Access to Justice Act (28 U.S.C. §2412) and all attachments to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM /ECF registrants: Sue A. Klein Assistant U.S. Attorney Two Renaissance Square 40 North Central Ave., Ste. 1200 Phoenix, AZ 85004-4408 [email protected] I hereby certify that on January 30, 2007, I electronically transmitted the attached

10 document to the following: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 /s/ Lori A. Butler Lori A. Butler The Honorable Susan R. Bolton United States District Court 401 West Washington Street, SPC 50 Phoenix, Arizona 85003 [email protected]

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