GEORGE FEWQUAY, PLAINTIFF-APPELLEE, CROSS-APPELLANT,
v.
WILLIAM PAGE, IN HIS OFFICIAL CAPACITY, LINDA BERKOWITZ, IN HER CAPACITY, DEFENDANTS-APPELLANTS, CROSS-APPELLEES
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Plaintiff is entitled to attorney's fees for defending an appeal against an award of fees, but defendants are not entitled to fees for defending against a cross-appeal unless the cross-appeal was frivolous.
Plaintiff won an employment discrimination case and was awarded attorney's fees. Both parties appealed the fee award, and the appeals were affirmed. N…
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BY THE COURT:
Plaintiff George Fewquay won this employment discrimination case against defendants William Page and Linda Berkowitz, and the district court awarded Fewquay attorney’s fees under 42 U.S.C. § 1988. The defendants appealed the award of attorney’s fees, and the plaintiff filed a cross-appeal seeking an increase in the amount of fees. This court affirmed under Rule 36-1, thus resolving both appeals against the respective appellants. Plaintiff and defendants now seek attorney's fees for time spent defending the other side’s appeal.
Fewquay is entitled to attorney’s fees under § 1988 as a prevailing plaintiff successfully defending an attack on the award in his favor on appeal. See, e.g., Ustrak v. Fairman, 851 F. 2d 983 (7th Cir.1988); Aubin v. Fudala, 821 F. 2d 45 (1st Cir.1987); Greater Los Angeles Council on Deafness v. Community Television of Southern California, 813 F. 2d 217 (9th Cir.1987). The defendants contend that this issue is controlled not by § 1988, but by Fed.R.App.P. 39(a), relying on Buian v. Baughard, 687 F. 2d 859 (6th Cir.1982). However, the Sixth Circuit has explicitly overruled this case, relying on precedent from this circuit’s predecessor. See Kelley v. Metropolitan County Bd. of Educ., 773 F. 2d 677, 681-82 (6th Cir.1985) (en banc) (citing Robinson v. Kimbrough, 652 F. 2d 458, 463 (5th Cir. Aug. 1981)), cert. denied, 474 U.S. 1083, 106 S.Ct. 853, 88 L.Ed.2d 893 (1986); see also Lattimore v. Oman Constr., 868 F. 2d 437, 440 n. 6 (11th Cir.1989) (per curiam). Fewquay is entitled to fees relating to his defense of the defendants’ appeal.
Defendants are not entitled to attorney’s fees for time spent defending the plaintiff’s cross-appeal. A defendant may receive such fees only when the plaintiff’s unsuccessful appeal was frivolous. See Fidelity Guarantee Mortgage Corp. v. Reben, 809 F. 2d 931, 938 (1st Cir.1987); Munson v. Friske, 754 F. 2d 683, 698 n. 10 (7th Cir.1985). Defendants do not contend that Fewquay’s appeal was frivolous, nor do we find that it was.
Defendants’ motion for attorney’s fees is DENIED. Fewquay’s motion for attorney’s fees is GRANTED, and we REMAND the case to the district court to determine a reasonable attorney’s fee.
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Winn-Dixie Stores, Inc. v. David A. Reddick & James A. Stokes, 954 So. 2d 723 (Fla. 1st DCA 2007)…ward for time spent establishing their entitlement to that fee. See Johnson v. State of Mississippi, 606 F. 2d 685, 638 (5th Cir.1979) (concluding “[a]ttorney’s fees may be awarded for time spent litigating the fee claim”); see also Fewquay v. Page, 907 F. 2d 1046 (11th Cir.1990); Aubin v. Fudala, 821 F. 2d 45 (1st Cir.1987); Cunningham v. County of Los Angeles, 879 F. 2d 481, 490 (9th Cir.1988). Accordingly, as a matter of law, section 760.11(5), Florida Statutes, permits appellants to receive an award of a…
Authorities Cited (11 total)
- Milo John Munson v. Friske, 754 F.2d 683 (7th Cir. 1985)
- Robinson v. Kimbrough, 652 F.2d 458 (5th Cir. 1981)
- Ustrak v. Fairman, 851 F.2d 983 (7th Cir. 1988)
- Lattimore v. Oman Constr., 868 F.2d 437 (11th Cir. 1989)
- Kelley v. Metro. Cnty. Bd. OF Educ., 773 F.2d 677 (6th Cir. 1985)
- Greater LOS Angeles Council ON Deafness v. Community Television OF Southern California, 813 F.2d 217 (9th Cir. 1987)
- Buian v. Baughard, 687 F.2d 859 (6th Cir. 1982)
- Metro. Cnty. Bd. of Educ. of Nashville & Davidson Cnty. v. Kelley, 474 U.S. 1083 (U.S. 1986)
- Lawrence v. Cunningham, 474 U.S. 1083 (U.S. 1986)
- Aubin v. Fudala, 821 F.2d 45 (1st Cir. 1987)