Celcog, LLC v. Perkins

1

CELCOG, L.L.C. DBA STRAWN'S EAT SHOP TOO, MONJUNI'S OF PORTICO, INC., AIR U SHREVEPORT, LLC, THE BRAIN TRAIN, LLC, AND BEARING SERVICE & SUPPLY, INC. Plaintiffs-Appellees v. ADRIAN PERKINS, IN HIS OFFICIAL CAPACITYAS MAYOR OF THE CITY OF SHREVEPORT, LOUISIANA Defendant-Appellant

No. 54, 254-CA

Court of Appeals of Louisiana, Second Circuit

May 18, 2022

Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 624, 744 Honorable Craig Owen Marcotte, Judge

CARMOUCHE, BOKENFOHR, BUCKLE & DAY By: Nichole M. Buckle Counsel for Appellant

LANGLEY & PARKS, LLC By: Glenn L. Langley Counsel for Appellees

Before COX, STEPHENS, and ROBINSON, JJ.

STEPHENS, J.

Defendant Adrian Perkins, in his official capacity as mayor of the City of Shreveport, Louisiana, appeals judgments of the First Judicial District Court, Parish of Caddo, State of Louisiana, in favor of plaintiffs, Celcog, LLC, dba Strawn's Eat Shop Too, Air U Shreveport, LLC, The Brain Train, LLC, and Bearing Service & Supply, Inc., granting plaintiffs' motion for attorney fees and awarding them attorney fees in the amount of $36, 000. For the following reasons, we affirm the judgments of the trial court.

FACTS AND PROCEDURAL HISTORY

In response to the COVID-19 pandemic, the governor of Louisiana declared a statewide public health emergency on March 11 2020. Subsequently, on or about July 8, 2020, the mayor of the City of Shreveport, Louisiana, Adrian Perkins, issued an executive order requiring citizens to wear masks or facial coverings when inside business establishments in Shreveport, Louisiana (the "Mayor's Order"). In response to the Mayor's Order, local businesses Celcog, LLC, dba Strawn's Eat Shop Too, Air U Shreveport, LLC, The Brain Train, LLC, and Bearing Service & Supply, Inc. ("Businesses"), filed a petition for declaratory and injunctive relief, requesting an injunction and temporary restraining order pursuant to La C.C.P. art. 3603.^[1] They alleged the enforcement measures contained in the Mayor's Order violated the Louisiana Constitution and Louisiana state law and that Mayor Perkins lacked the authority to make such an order.

Specifically, the alleged constitutional violations were set forth as follows:

COUNT II - RIGHT TO DUE PROCESS OF LAW

41. The preceding allegations are incorporated in full as if fully set forth.

42. Article I, Section 2, of the Louisiana Constitution provides that "No person shall be deprived of life, liberty, or property, except by due process of law."

43. The Order purports to permit enforcement by undefined measures.

44. The Order threatens to terminate or suspend protected property rights, including utility services, permits, and licenses without due process.

45. The Order is vague in that it requires determination of whether certain actions are "impractical."

46. The Order poses a direct conflict with La. R. S. 14:313 and thereby presents citizens with conflicting legal obligations.

COUNT III - EQUAL PROTECTION

47. The preceding allegations are incorporated in full as if fully set forth.

48. The Order applies arbitrarily, capriciously, and without rational basis.

COUNT IV - RIGHTS TO FREE EXPRESSION, FREE EXERCISE OF RELIGION. AND TO ASSEMBLE PEACEABLY

49. The preceding allegations are incorporated in full as if fully set forth.

50. Article I, Section 7 of the Louisiana Constitution provides: "No Law shall curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish his sentiments on any subject, but is responsible for abuse of that freedom."

51. Article I, Section 8, of the Louisiana Constitution provides: "No law shall be enacted respecting an establishment of religion or prohibiting the free exercise thereof."

52. Article I, Section 9, of the Louisiana Constitution provides: "No law shall impair the right of any person to assemble peaceably[.]"

53. The Order purports to restrict the rights of citizens to assembly peaceably unless they undertake symbolic political activity.

54. The Order purports to command businesses to post signage with political content and/or to condition their right to do business on posting signage with political content.

55. The Order purports to permit large, risky protests without masks while requiring worshipers to wear masks at religious gatherings.

COUNT V - RIGHT TO PRIVACY

56. The preceding allegations are incorporated in full as if fully set forth.

57. Article I, Section 5, of the Louisiana Constitution provides: "Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful person or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court."

58. Neither the Order nor any purported violation of the Order provides grounds for any fire marshal, police officer, or other government agent to search, inspect, or demand access to any private property.

Thereafter, the trial court issued a temporary restraining order and set the matter for hearing, which occurred on July 20, 2020. The sole issue before the trial court was whether Mayor Perkins had the authority to issue the

Mayor's Order. The trial court ultimately held Mayor Perkins lacked the authority to issue the Mayor's Order and that the order was "unconstitutional in that it violates separation of powers and plaintiffs' constitutional rights to due process of law." The trial court converted the previously granted temporary restraining order to a preliminary injunction. The trial court further ordered that the issue of attorney fees remain open. Mayor Perkins did not seek supervisory review of the trial court's judgment.

Businesses subsequently filed a motion for attorney fees, alleging they were entitled to an award of attorney fees pursuant to 42 U.S.C. § 1988 as their petition asserted claims that were actionable under both state and federal law. They asserted that because Louisiana is a fact-pleading state, their allegations of violations of the Louisiana Constitution were sufficient to prove violations of the United States Constitution and that the requisites for an award of attorney fees under 42 U.S.C. § 1988 were met. Mayor Perkins opposed Businesses' motion and argued 42 U.S.C. § 1988(b) was inapplicable because Businesses failed to allege a single violation of the United States Constitution or any other federal statue and failed to assert any other claim arising under federal law. He further noted that had he attempted to remove this case to federal court based upon the applicability of the United States Constitution to Businesses' claims, he would have been unable to do so because Businesses had intentionally and carefully drafted their petition to include only state law claims.

A hearing on Businesses' motion was held on December 14, 2020, where, in addition to the above arguments, Businesses asserted the claims alleged in their petition were sufficient to state a cause of action under federal law because the due process clause of the Louisiana Constitution was merely a codification of the due process clause of the United States Constitution; thus the trial court inevitably must have considered the United States Constitution in determining the constitutionality of the Mayor's Order. By contrast, Mayor Perkins pointed out that the trial court had ruled only on Businesses' state law claims asserted in their petition, not on the basis of any federal law.

Thereafter, the trial court granted Businesses' motion. In doing so, it acknowledged Businesses' petition specifically referred to only Louisiana statutes and the Louisiana Constitution but noted the petition also stated Businesses were entitled to relief because "the conduct sought to be restrained is unconstitutional." The trial court held that both the Louisiana and United States Constitutions were at issue in the case and clarified that its prior ruling was that both were violated by the Mayor's Order. A written judgment in accordance with the trial court's ruling was rendered on December 18, 2020. Mayor Perkins filed an application for writ of supervisory review, which was denied by this court on January 28, 2021, and a motion to reconsider, which was denied by the trial court on March 17, 2021.

Following a hearing on the traversal of invoices submitted by Businesses' counsel, additional invoices were provided by Businesses and both sides filed memoranda in support of their argument. Businesses ultimately requested attorney fees of approximately $41, 900. Mayor Perkins asserted the attorney fees requested by Businesses were excessive and unreasonable and noted Businesses' counsel incurred significantly more hours of work on the issue of attorney fees than on the merits of the underlying litigation. He further argued that the invoices submitted by Businesses' counsel contained numerous instances of noncompensable work, including duplicative billing and charges for clerical work. Mayor Perkins urged that, in keeping with the applicable Lodestar Method, Businesses' counsel's hourly rate, as well as the hourly rate of any paralegal work, should be reduced and the total number of hours awarded should be reduced to account for the instances of noncompensable work. On the other hand, Businesses argued the hourly rates requested were normal hourly rates charged for established clients, and that the invoices submitted contained only necessary work on the underlying merits...